Reno v. Bossier Parish School Board Brief for Appellant

    Nos. 95-1455 and 95-1508

Y ■;' ' ■.' ’• ^
Janet Reno, Attorney General i 
. United States, appellant ;

-' . . _  . :"; • *, ■•’ i ', ;•: : '' * vj®I&0  i Bossier Parish School Bqari
: . :;. $  ■ ■*,. • • . ■.■? ■' -

V George Price, et.au, appel| uS

■ ■ -
Bossier Parish'&chool,Board :

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H i i
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1; THE iFEDBRAL A PPELLANTf

^ A ^ n g S o lM to r G e r i^ M i
|  Dbvad l ; Patrick^ ,^ ^ bvalL/Patock:*,
.;:s< Assistant Attorney General -  

Paul Bender  ̂ A ; ; 
v i.Deputy Solicitor General ■ 1 .. S$f ■'
Cornelia T.L. Pillard • ' •>;• 

Assistant to the Solicitor General 
David K. Flynn > '’•* ■ 0 ? i- '  .■;
Steven H. Rosenbaum ‘ » 
Samuelr. Bagenstos , . 

Attorneys \

Department of Justice 
Washington, D.C. 205S0 
(202) 511-2217

m t b



QUESTIONS PRESENTED
1. Whether a district court assessing a covered juris­

diction’s purpose under Section 5 of the Voting Rights Act 
of 1965, 42 U.S.C. 1973c, may disregard factors this 
Court has held are relevant to proof of discriminatory 
purpose, on the ground that such evidence is also rele­
vant to show vote dilution under Section 2, 42 U.S.C. 
1973.

2. Whether the district court clearly erred in finding 
no discriminatory purpose.

3. Whether a voting change that clearly violates Sec­
tion 2 of the Voting Rights Act is entitled to preclear­
ance under Section 5 of the Act. (i)

( i )



TABLE OF CONTENTS

Opinion below...................................................................... 1
Jurisdiction...........................................-..............................  1
Statutory provisions involved ..........................................  1
Statement..............................................................................  2
Summary of argum ent...........................................................  14
Argument:

I. The district court erred in concluding that the
Bossier Parish School Board adopted the Police 
Jury redistricting plan without any discrimina­
tory purpose ................................................................  16
A. The district court committed legal error by

categorically refusing to consider the dilutive 
effect of the Board’s decision and the Board’s 
history of discrimination.....................................  16

B. Other record evidence, together with the evi­
dence the district court erroneously failed to 
consider, demonstrates that the Board acted 
with a discriminatory purpose in adopting
the Police Jury p la n ......................................... 24

C. The district court erred in finding that the
Board had any legitimate, nondiscriminatory 
reason for adopting the Police Jury plan....... 29

II. A plan that dilutes minority voting strength in 
violation of Section 2 of the Voting Rights Act 
is not entitled to preclearance under Section 5
of the Act ................................................................  33

Conclusion ...........................................................................  44

TABLE OF AUTHORITIES
Cases: Page

Abbott Laboratories v. Gardner, 387 U.S. 136
(1967) ....................................................................... 35

Allen V. State Bd. of Elections, 393 U.S. 544
(1969) ......................................................................  35

Page

(m )



IV

Cases—Continued: Page
Arizona V. Reno, 887 F. Supp. 318 (D.P.C. 1995),

appeal dismissed, 116 S. Ct. 1037 (1996).............. 21
Beer v. United States, 425 U.S. 130 (1976) 15, 33, 35-36,

38, 42, 43
Bob Jones Univ. V. United States, 461 U.S. 574

(1 9 8 3 ).............................................  41
Brown V. Board of Educ., 347 U.S. 483 (1954) __  5
Busbee V. Smith, 549 F. Supp. 494 (D.D.C. 1982),

aff’d, 459 U.S. 1166 (1983) ........................... 17,22,26,28
City of Lockhart V. United States, 460 U.S. 125

(1983).......................................................................  33,39
City of Mobile V. Bolden, 446 U.S. 55 (1980) .......  17,18,

21,37
City of Pleasant Grove V. United States:

479 U.S. 462 (1987) ................................. 23,30-31,42
568 F. Supp. 1455 (D.D.C. 1983), aff’d, 479

U.S. 462 (1987) .............................................  17
City of Port Arthur v. United States:

459 U.S. 159 (1982) ........................................... 23
517 F. Supp. 987 (D.D.C. 1981), aff’d, 459 U.S.

159 (1982) ......................................................  17,19
City of Richmond V. United States, 422 U.S. 358

(1975)....................................................................... 16, 23
Columbus Bd. of Educ. V. Penick, 443 U.S. 449

(1979) ......................................................................  18,19
EEOC V. Ethan Allen, Inc., 44 F.3d 116 (2d Cir.

1994).........................................................................  32
Eccles V. Peoples Bank, 333 U.S. 426 (1948).......... 35
Garza V. County of Los Angeles, 918 F.2d 763 (9th 

Cir. 1990), cert, denied, 498 U.S. 1028 (1991).... 26, 28 
Johnson V. De Grandy, 114 S. Ct. 2647 (1994)....40-41, 43,

44
Ketchum V. Byrne, 740 F.2d 1398 (7th Cir. 1984),

cert, denied, 471 U.S. 1135 (1985)....... .............. .. 26
Lemon V. Bossier Parish School Bd., 240 F. Supp.

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

V

Litton Fin. Printing Div. V. NLRB, 501 U.S. 190
(1991) .......................................................................  41,42

Louisiana V. United States, 380 U.S. 145 (1965).... 5
Major V. Treen, 574 F. Supp. 325 (E.D. La. 1983).. 5
Miller v. Johnson, 115 S. Ct. 2475 (1995).....21, 22, 33, 44
Morse V. Republican Party of Virginia, 116 S. Ct.

1186 (1996) ...................................................35,38,39,44
Morton Salt Co. V. G.S. Suppiger Co., 314 U.S.

488 (1942)................................................................ 35
NAACP  v. Hampton County Election Comm’n,

470 U.S. 166 (1985) ...............................................  42
Neiv York V. United States, 874 F. Supp. 394

(D.D.C. 1994) .........................................................  21
Personnel Administrator V. Feeney, 442 U.S. 256

(1979) .......................................................................  18
Presley V. Etowah County Comm’n, 502 U.S. 491

(1992) .....................................................................  42
Public Serv. Comm’n V. Wycoff Co., 344 U.S. 237

(1952) ....................................................................... 35
Pullman-Standard V. Swint, 456 U.S. 273 (1982).... 18, 24,

32
Rogers V. Lodge, 458 U.S. 613 (1982)......... 16,17,18,19,

20, 21, 41
Rybicki V. State Bd. of Elections, 574 F. Supp. 1082

(N.D. 111. 1982).......................................................  26
Shaw V. Hunt, No. 94-923 (June 13, 1996) ............. 22
Shaw V. Reno, 509 U.S. 630 (1993) .........................  32
South Carolina V. Katzenbach, 383 U.S. 301 (1966).. 34
Southwest Merchandising Corp. V. NLRB, 53 F.3d

1334 (D.C. Cir. 1995) ............................................ 32
St. Mary’s Honor Center V. Hicks, 509 U.S. 502 .

(1993) ......................................................................  32
Texas v. United States, Civ. Act. No. 94-1529

(D.D.C. July 10, 1995) .........................................  23
Thornburg V. Gingles, 478 U.S. 30 (1986)..........29, 37, 38
United States V. Board of Comm’rs, 435 U.S. 110

(1978) ...................................................................39,41,42
United States v. Virginia, No. 94-1941 (June 26,

1996)

Cases—Continued: Page

31



Cases—Continued:
VI

Page
Village of Arlington Heights V. Metropolitan Hous­

ing Dev. Corp., 429 U.S. 252 (1977)-----14,16,17, 18,
20, 21, 24, 27

Washington V. Davis, 426 U.S. 229 (1976)............ 16,18
White V. Regester, 412 U.S. 755 (1973) ................. 36
Wilton v. Seven Falls Co., 115 S. Ct. 2137 (1995).. 35
Zimmer V. McKeithen, 485 F.2d 1297 (5th Cir.

1973), aff’d sub nom. East Carroll Parish School 
Bd. V. Marshall, 424 U.S. 636 (1975) ................. 40

Constitution, statutes and regulations:
U.S. Const. Amend. X I I I ........................................... 5
Declaratory Judgment Act, 28 U.S.C. 2201 ...........  34-35
Voting Rights Act Amendments of 1982, Pub. L.

No. 97-205, § 2(b) (4), 96 Stat. 133 (1982) .......  37
Voting Rights Act of 1965, 42 U.S.C. 1973 et seq.:

§ 2, 42 U.S.C. 1973............................................... passim
§2 (a), 42 U.S.C. 1973(a)..................................  2,37
§ 2 (b ) ,42U.S.C. 1973(b) .................................. 2,37
§ 5, 42 U.S.C. 1973c.............................................passim

28 C.F.R.:
Section 51.52(a)..................................................  34
Section 51.55(b) ( 2 ) ........................ 2,13,15-16, 33, 40

Miscellaneous:
50 Fed. Reg. (1985):

p. 19,122...............................................................  39
p. 19,131...............................................................  39

52 Fed. Reg. 487 (1987) .................   40,41
II.R. Rep. No. 227, 97th Cong., 1st Sess. (1981).... 38
Proposed Changes to Regulations Governing Sec- 

tion 5 of the Voting Rights Act: Oversight Hear­
ings Before the Subcomm. mi Civil and Constitu­
tional Rights of the House Comm, on the Judici­
ary, 99th Cong., 1st Sess. (1985)........................ 40,41

S. Rep. No. 417, 97th Cong., 2d Sess. (1982).......33, 38, 40
Subcomm. on Civil and Constitutional Rights of the 

House Comm, on the Judiciary, 99th Cong., 2d 
Sess., Ser. No. 9, Voting Rights Act: Proposed 
Section 5 Regulations (Comm. Print 1986) ....... 41

H it l l j e  ( E iu t r l  o f  %  I t t i t e b  S t a t e s
October Term, 1995

Nos. 95-1455 and 95-1508
Janet Reno, Attorney General of the 

United States, appellant 
v.

Bossier Parish School Board

George Price, et al., appellants 
v.

Bossier Parish School Board

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

BRIEF FOR THE FEDERAL APPELLANT

OPINION BELOW
The opinion of the three-judge district court (J.S. App. 

la-65a) is reported at 907 F. Supp. 434 (D.D.C. 1995).
JURISDICTION

The judgment of the three-judge district court was 
entered on November 2, 1995. A notice of appeal was 
filed on December 27, 1995. J.S. App. 163a-164a. The 
Court noted probable jurisdiction on June 3, 1996. The 
jurisdiction of this Court is invoked under 28 U.S.C. 
1253 and 42 U.S.C. 1973c.

STATUTORY PROVISIONS INVOLVED
The relevant statutory provisions are Sections 2 and 5 

of the Voting Rights Act of 1965, 42 U.S.C. 1973, 1973c. 
J.S. App. 165a-167a. This case also involves a provision

( 1)



2

of the Procedures for the Administration of Section 5, 28 
C.F.R. 51 .55(b)(2). J.S. App. 168a.

STATEMENT
1. Congress enacted the Voting Rights Act of 1965 

to eliminate racial discrimination in voting. Section 5 of 
the Act, 42 U.S.C. 1973c, provides that a covered juris­
diction may not implement any change affecting voting 
unless it first obtains judicial or administrative preclear­
ance. A covered jurisdiction may obtain judicial pre­
clearance of a voting change by establishing in a declara­
tory judgment action in the United States District Court 
for the District of Columbia 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. Alternatively, a covered jurisdiction 
may submit the voting change to the Attorney General 
for administrative preclearance. The change may be en­
forced if, within 60 days after its submission to her, the 
Attorney General has interposed no objection to it. There 
is no dispute that the Bossier Parish School Board re­
districting plan involved in this case is a change in an 
election practice by a jurisdiction that is covered by the 
requirements of Section 5. See J.S. App. 140a-141a 
(1)11 249, 251).

Section 2 of the Act, as amended in 1982, 42 U.S.C. 
1973, prohibits any voting practice “which results in a 
denial or abridgement of the right of any citizen of the 
United States to vote on account of race or color.” 42 
U.S.C. 1973(a). A voting practice violates Section 2 
if it has the discriminatory effect of denying minority 
citizens an equal opportunity to participate in the elec­
toral process and to elect representatives of their choice. 
42 U.S.C. 1973(b).

2. a. This appeal arises from a declaratory judgment 
action by the Bossier Parish School Board (Board) for 
preclearance of a redistricting plan. The 12-member

3

Board governs the Bossier Parish School District, which is 
coterminous with the parish. J.S. App. 3a-4a. The Board 
is elected from single-member districts for four-year, con­
current terms. A majority-vote requirement applies to 
elections of Board members. Id. at 4a. The Board re­
districted following the 1990 census in order to eliminate 
population malapportionment among its districts.

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. 2a. As of 1994, blacks com­
prised 15.5% of Bossier Parish’s registered voters. Ibid. 
The black population of the parish is concentrated in two 
areas: More than 50% of the black residents live in 
Bossier City, id. at 68a ( f  10), and the remaining black 
population is concentrated in four populated areas in the 
northern rural portion of the parish, id. at 2a, 68 a 
(1j 10).1 The parties have stipulated that it is feasible 
to draw two reasonably compact black-majority districts 
in Bossier Parish using traditional redistricting features 
such as roads, streams, railroads, and corporate bound­
aries: one in Bossier City, id. at 76a (H 36), and one 
in the northern rural area of the parish, id. at 114a 
(H 148); see id. at 113a-l 15a (Ufl 143-150).

The parties also have stipulated to facts showing that 
voting in the parish is racially polarized, J.S. App. 40a, 
122a-127a (1111181-196); see also J.A. 113-121 (Eng- 
strom declaration), and that “voting patterns in Bossier 
Parish are affected by racial preferences,” J.S. App. 122a 
(1| 181). At the time the Board voted to adopt the re­
districting plan at issue in this case, black candidates had

1 The northern rural portion of the parish is sparsely populated 
in comparison with the rest of the parish, with more densely popu­
lated communities separated by large, lightly settled areas. In 
the School Board redistricting plan at issue in this case, that 
portion of the parish is encompassed in a single, 33.5-mile-long, 
424-square-mile district. The district encompasses almost half of 
the area of Bossier Parish. J.S. App. 114a-115a (|f 149) ; id. at 
112a (!) 140).



4
run for election to the Board on at least four occasions, 
but none had ever been elected. Id. at 4a, 115a (51 153); 
see also J.A. 54-60. Black voters historically have also 
been unable to elect candidates of their choice to other 
political positions in Bossier Parish. J.S. App. 118a-172a 
(5151 153-196). Of the 14 elections in the parish since 
1980 in which a black candidate has run against a white 
candidate in a single-member district or for mayor, only 
two black candidates have won. Id. at 127a (51 196); see 
also J.A. 54-60. One was a candidate for the Bossier 
Parish Police Jury,” and the other for the Bossier City 
Council. Ibid. The black Police Juror won in Police Jury 
District 10, which contained a United States Air Force 
base, J.S. App. 117a (5151 160-161), and the black City 
Council member won in a city council district that sub­
stantially overlapped with Police Jury District 10, and 
also included the Air Force base, id. at 120a (5( 172). 
The district court found that the Base is a factor unique 
to those districts that increased the ability of black voters 
in that area to elect representatives of their choice. Id. 
at 2a n. 1.8

Bossier Parish and its School Board have a history of 
racial discrimination beginning before the Civil War and 
continuing to the present. See generally J.S. App. 42a-

2 The Police Jury is the governing body for the parish. See 
pages 6-7, infra.

3 Many residents in and around the base do not vote in local 
elections, J.S. App. 117a-118a (ffff 160-163) ; that factor, together 
with the tendency of Air Force retirees who settle in the area 
to vote in a less racially polarized way than other Bossier Parish 
residents, increases the ability of black voters in the districts 
containing the Air Force base to elect representatives of their 
choice. Id. at 117a-118a (ffff 162-163), 127a (ff 196). In the re­
configured plans adopted by the Police Jury in 1991 and the City 
Council in 1993, the Air Force base no longer has that effect. Id. 
at 2a n.l. The black incumbent Police Juror was reelected in 1991 
in the redrawn district in an election in which he ran unopposed. 
Ibid. The black City Council member ran against a white opponent 
in 1993 and lost. Id. at 120a (ff 173).

5

46a, 130a-140a (5151 214-248).* De jure segregation pre­
vailed in Louisiana’s schools long after this Court decided 
Brown v. Board of Educ., 347 U.S. 483 (1954). J.S. 
App. 136a (5| 235). The Board has repeatedly sought to 
evade its desegregation obligations. Id. at 136a-137a 
(5151 237-239). It remains under court order to remedy 
the vestiges of racial discrimination in its school system. 
See Lemon v. Bossier Parish School Bd., 240 F. Supp. 
709 ( W.D. La. 1965), aff’d, 370 F.2d 847 (5th Cir.), 
cert, denied, 388 U.S. 911 (1967). Notwithstanding the 
Board’s affirmative obligation to desegregate, the schools 
in Bossier Parish have, since 1980, become increasingly 
segregated by race. J.S. App. 137a-138a (5151240-242). 
Although black students comprise only 29% of the 
Parish’s student population, four of the 27 schools in the 
Parish have student bodies that are more than 70% 
black. Id. at 138a (51 242).6

In addition to presiding over increasing racial segrega­
tion in parish school populations, the Board has violated 
the Lemon court’s order by failing to maintain a biracial 4 5 *

4 Many decades of discriminatory government action in Louisiana 
resulted in the large-scale disenfranchisement of black voters. 
Following the passage of the Thirteenth Amendment, Louisiana 
enacted laws intended to reduce black voting; black registration 
decreased by 90% within a few years. J.S. App. 130a-131a (ffff 215- 
219). In 1921, an amendment to the state Constitution required 
persons seeking to register to vote to “give a reasonable interpre­
tation” of a constitutional provision. Id. at 132a (ff 221). That 
clause, which disenfranchised most black citizens, was not invali­
dated until 1965. Louisiana v. United States, 380 U.S. 145 (1965). 
After an all-white Louisiana Democratic primary was invalidated, 
the party adopted other discriminatory election devices, including 
an anti-single-shot law and a majority-vote requirement for party 
office. J.S. App. 132a (ff 222); Major v. Treen, 574 F. Supp. 325, 
341 (E.D. La. 1983).

5 Each of those four predominantly black schools is located 
within one of the two areas, Bossier City and the northern rural 
portion of the parish, J.S. App. 12a (ff 142), in which a reason­
ably compact majority-black district may be drawn, id. at 76a
(ff 36); id. at 114a-115a (ffff 148-150).



6

committee to recommend ways to attain and maintain a 
unitary school system. J.S. App. I03a-104a (H 1 |lll-  
112). The Board first convened the committee in 1976, 
but only the black committee members attended the few 
meetings that were held, and the Board promptly disbanded 
the committee. Ibid. The Board did not convene another 
biracial committee until 1993, shortly after submitting its 
redistricting plan to the Justice Department for Section 5 
review. Id. at 104a (1| 113). The Board promptly dis­
banded that committee because, as School Board Presi­
dent Barry Musgrove explained, “the minority members 
of the committee quickly turned toward becoming in­
volved in policy.” Id. at 105a (1| 116).

The effects of past discrimination in Bossier Parish 
continue today: “Black citizens of Bossier Parish suffer a 
markedly lower socioeconomic status than their white 
counterparts” that is “traceable to a legacy of racial dis­
crimination affecting Bossier Parish’s black citizens.” J.S. 
App. 128a (1|200); see generally id. at 127a-130a 
(UK 197-213). That status “makes it harder for blacks to 
obtain necessary electoral information, organize, raise 
funds, campaign, register, and turn out to vote, and this 
in turn causes a depressed level of political participation 
for black persons within Bossier Parish.” Id. at 130a 
(1J213). Significantly smaller proportions of black 
voting-age citizens than white voting-age citizens have in 
fact registered to vote in Bossier Parish. Id. at 127a 
(1 197).

b. Following the 1990 census, redistricting efforts by 
the Bossier Parish Police Jury preceded the School Board 
redistricting. The Police Jury, like the School Board, con­
sists of 12 members who are elected from single-member 
districts in the same manner as the Board. J.S. App. 2a. 
The Police Jury has never had a districting plan that 
contained any majority-black districts. Ibid.

During the 1990-1991 redistricting process, the white 
Police Jurors and their demographer knew that it was 
feasible to effectuate black political participation by adopt­

7

ing a non-dilutive redistricting plan. J.S. App. 76a (1) 36), 
82a-83a (1153), 114 (1)148). Police Jurors nonethe­
less told citizens who advocated creating majority-black 
districts that it was impossible to create such districts 
because the black population was too dispersed. Id. at 
3a, 83a (1| 54); see also id. at 82a (1)52). In April, 
1991, the Police Jury adopted a redistricting plan that, 
like all of its predecessors, contains no majority-black 
districts. Id. at 3a, 68a (H 11).

On May 28, 1991, the Police Jury submitted its redis­
tricting plan to the Attorney General seeking preclear­
ance under Section 5. The Police Jury did not provide 
the Attorney General with information then available to 
it showing that reasonably compact majority-black dis­
tricts could be created. J.S. App. 68a-69a (H 11), 76a 
(H 36), 82a-83a (U 53). Nor did it provide a copy of a 
letter from the Concerned Citizens of Bossier Parish, a 
local organization, protesting the Police Jury’s exclusion 
of black citizens from the redistricting process, id. at 
69a (I) 11), despite the organization’s express request 
that the letter be included in Jh e  Police Jury’s Section
5 submission, id. at 87a (H1| 65, 66). On July 29, 
based on what turned out to be inaccurate and incom­
plete information, the Attorney General precleared the 
Police Jury redistricting plan. Id. at 3a, 68a-69a ( f  11).

c. The School Board began its own redistricting pro­
cess in early 1991. J.S. App. 4a. With its next election 
not scheduled to occur until October, 1994, the Board 
proceeded without urgency. Id. at 4a, 93a (1| 83). The 
Board initially chose not to use the districts in the 1991 
Police Jury plan, but to develop a different plan. Id. 
at 4a, 28a, 47a, 94a ('ll 87). Although the Board and 
the Police Jury have jurisdiction over the same geo­
graphic area and both use 12 single-member districts, the 
bodies serve different functions and for at least a decade 
have maintained different electoral districts. Id. at 3a-4a
6  n.3, 72a-73a (1|1| 24, 26); U.S. Exh. 94, at 14. School 
boards and police juries have different redistricting inter­



8

ests that generally warrant different plans: “For example, 
police juries are concerned with road maintenance, drain­
age, 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 con­
cerned with having a public school or schools in each 
district.” J.S. App. 73a ( f  24); U.S. Exh. 94, at 14-15. 
Police Jury district lines do not correspond with school 
attendance zones, and schools are unevenly distributed 
in the Police Jury districts, with some districts contain­
ing no schools and others containing several. J.S. App. 
8a, 112a ( |̂ 141). If used by the Board, the 1991 Police 
Jury plan would, in addition, pit two sets of Board in­
cumbents against one another and create other districts 
with no Board incumbents. Id. at 8a, 102a (̂ j 109).

The Board hired Gary Joiner, the Police Jury’s cartog­
rapher, to develop a redistricting plan for the Board, 
estimating that he would spend 200 to 250 hours on the 
project. J.S. App. 92a (^ 80), 94a (̂ ] 86). The carto­
grapher met privately with Board members and showed 
them various computer-generated alternative districts. Id. 
at 97a ( f  96).

Beginning in March, 1992, representatives of local 
black community groups (including defendant-intervenor 
George Price, president of the local chapter of the NAACP) 
requested that representatives of the black community 
be included in the Board’s redistricting process. The 
Board did not respond to those requests. J.S. App. 5a, 
96a-98a ( ^ j  93-94, 97). In August, 1992, with no other 
plan publicly on the table, Price presented a plan for 
two majority-black districts that had been developed by 
the NAACP. Id. at 6a, 96a-97a (̂ J 95), 98a 98-
99). Price was told that the Board would not consider 
a plan that did not also draw the other ten districts. Id. 
at 6a, 98a (1| 99).

At the September 3, 1992, Board meeting. Price pre­
sented an NAACP plan depicting all 12 districts, but the 
Board refused to consider it, ostensibly because “the

plan’s district lines crossed existing precinct lines, and 
therefore violated state law.” J.S. App. 99a ( |̂ 102); 
id. at 6a.’’ The Board’s cartographer and attorney knew 
at the time, however, that the crossing of existing pre­
cinct lines did not legally preclude the Board from con­
sidering the plan. Id. at 99a-100a ( f  102). Although 
state law prohibits school boards from splitting precincts, 
id. at 71a-72a ( |̂ 21), school boards were always “free 
to request precinct changes from the Police Jury neces­
sary to accomplish their redistricting plans [sic: goals],” 
id. at 7a (quoting id. at 72a ( |̂ 23 )). That practice is 
“quite common” statewide. Id. at 72a ('f 22); J.A. 168 
(Joiner testimony); see J.A. 136-138 (Creed testimony); 
J.A. 140-141 (Creed supplemental testimony).* 7 The 
Bossier Parish School Board itself apparently had antici­
pated the necessity of splitting precincts in its redistricting 
plan. See J.S. App. 29a, 56a-57a, 95a ('f 89). Joiner 
had given the Board precinct maps at the start of the 
redistricting process, telling them that they “would have 
to work with the Police Jury to alter the precinct lines,” 
id. at 95a (i| 89). .

At no time during the redistricting process did the 
Board or its cartographer ever assert that there was any 
value in avoiding precinct splits or in minimizing their 
number. Nor, during the redistricting process, did Board 
members or their cartographer ever discuss the alleged 
costs of creating precinct splits. See generally U.S. Exhs. 
26-28, 32, 34 (Board minutes); J.A. 87-88 (Blunt testi­
mony). The Board never requested that the Police Jury 
consider realigning the precincts. J.S. App. 7a. The

0 Louisiana election precincts are administrative units established 
for the purpose of conducting elections, including siting polling 
booths and allocating election officials. See Defendant-Intervenors’ 
Exh. G at 15.

7 For example, of the nine redistricting plans the Board’s cartog­
rapher had drawn for Louisiana parishes, five involved school 
boards that sought and received precinct changes from their police 
juries in this manner. Tr. vol. I (Apr. 10, 1995), at 157-158 (Joiner 
testimony).

9



10

Board also never asked its cartographer to explore the 
possibility of modifying the NAACP proposal to reduce 
the number of precinct splits, or of otherwise developing 
a plan that would alleviate black vote dilution. Id. at 
101a (1| 106).

Instead, at the Board's next scheduled meeting, two 
weeks after Price presented the NAACP plan and two 
years before the next Board election, the Board unani­
mously passed a motion of intent to adopt the Police 
Jury plan that it had initially found unsatisfactory. J.S. 
App. 100a (1i 106). The Board’s action to adopt the 
Police Jury plan precipitated overflow citizen attendance 
at a Board meeting on September 24, 1992. Id. at 7a-8a, 
101a (1| 108). Fifteen residents voiced their opposition 
to adoption of the Police Jury plan, principally on the 
ground that it would dilute black voting strength. Ibid. 
No one spoke in favor of the Police Jury plan. Id. at 8a. 
The NAACP presented a petition containing over 500 sig­
natures— the largest number of signatures on a petition 
opposing a Board action that had been submitted on any 
subject in years. Id. at 101a (H 108). The petition asked 
the Board to consider alternatives to the Police Jury plan 
that would be less dilutive of minority voting strength. 
Id. at 7a-8a.

George Price, on behalf of several community organiza­
tions representing interests of black residents, urged the 
Board to consider the NAACP plan or to use it as a 
foundation for creating a different non-dilutive plan. J.S. 
App. 6a-8a; 101a (H 108). Price also explained to the 
Board that, in light of the NAACP plan, which demon­
strated the feasibility of drawing one or more reasonably 
compact majority-black districts, the Attorney General’s 
preclearance of the Police Jury plan did not guarantee 
preclearance of the same plan for School Board elections, 
j  A. 122, 132. The Board did not respond to the oppo­
nents of the Police Jury plan, and adopted that plan at 
its next meeting. J.S. App. 8a, 102a (1| 109).

11

Several board members explained, in private conversa­
tions, why the Board had refused to consider any ess 
dilutive redistricting plan. Board member Henry Bu 
stated that although he personally favors having black 
representation on the board, other school board member 
oppose that idea.” J.A. 93 (Davis testimony); J.S. App. 
31a, 53a-54a. Board member Barry Musgrove said that 
“the Board was ‘hostile’ toward the idea of a black major­
ity district.” J.A. 123 (Price testimony); J.S. App. 53a. 
Board member Thomas Myrick explained to Price his own 
opposition to a less dilutive redistricting plan Myrick 
represented a district that included portions of predomi­
nantly black communities, which, if not divided could 
comprise part of a black-majority district north of Bossier 
City J.S. App. 81a (1 48), 93a-94a (11 85); see also 
J.A. 102-103 (Castille declaration); J.S. App. llO a - ll ta  
(1111 133-138).8 Myrick told Price that “he had worked 
too hard to get [his] seat and that he would not stand by 
and ‘let [them] take his seat away from him.’ ” J.A. 
124 (Price testimony); see J.A. 135 (Harry testimony); 
J S App. 53a. Myrick also told Joiner, the Board’s own 
cartographer, that he wanted to avoid creating a black- 
majority district. J.A. 163-164 (Joiner testimony).

The Board submitted the Police Jury plan to the Attor­
ney General for preclearance. On August 30, 1993, the 
Attorney General objected to the plan under Section 5 
of the Voting Rights Act, citing information available to

s Myrick, accompanied by at least two Police Jurors who repre­
sented districts that similarly divided black communities, had met 
frequently with the Police Jury’s cartographer, Gary Joiner during 
the Police Jury redistricting process. J.S. App. 81a (([ 48), 93a-94a 
(1185). Although Myrick flatly denied at trial having met with 
Joiner, J.A. 151, 156-157, Joiner testified that Myrick had come 
to his office several times—as many as six to ten—to discuss the 
Police Jury redistricting, and to indicate his opposition to drawing 
a black majority district, J.A. 159-164. It was Myrick who firs 
proposed to the Board that it adopt the Police Jury plan as its owi 
J.A. 151-152 (Myrick testimony).



12

the Board, showing the clear discriminatory effect of the 
plan on minority voting strength, that had not been pro­
vided when the Police Jury submitted the same plan in 
1991. J.S. App. 8a, lU6a d | 119), 154a-158a. On De­
cember 20, 1993, the Attorney General denied the Board’s 
request for reconsideration and withdrawal of the objec­
tion. Id. at 159a-162a.

3. On July 8, 1994, the Board filed a declaratory 
judgment action seeking Section 5 preclearance from a 
three-judge district court for the District of Columbia. 
One judge of the panel presided over a two-day trial that 
was held on April 10 and 11, 1995. The record, consist­
ing primarily of stipulated facts, written direct testimony 
prepared before trial, and the transcript of live cross and 
rediiect examinations, was provided to the other judges 
and closing argument was conducted before the entire 
panel. J.S. App. 9a. On November 2, 1995, the district 
court granted preclearance. Id. at 36a.

The district court first held that Section 5 preclearance 
cannot be denied based upon a violation of Section 2. 
J.S. App. 11 a-12a. The court reasoned that Section 2 

uses plainly different language and serves a different func­
tion from that of section 5.” Id. at 15a. The court held 
that the discriminatory effects addressed by Section 5 are 
limited to retrogressive effects, whereas Section 2’s “re­
sults standard can be violated * * * irrespective of 
whether the disputed voting practice is better or worse 
than whatever it is meant to replace.” Ibid. The court did 
not address the United States’ alternative argument that a 
Section 2 violation, even if not a form of prohibited 
“effect” under Section 5, nevertheless constitutes an equi­
table defense against Section 5 preclearance, on which the 
United States bears the burden of proof. See U S Post- 
Trial Br. 32 n.27.

The district couit concluded that the legislative history 
of the Act did not support denial of preclearance based 
on a Section 2 violation. In its view, resort to the leais-

13

lative history was inappropriate because the language of 
the statute is “unambiguous.” J.S. App. 17a. The court 
also refused to accord any deference to the Department 
of Justice regulation requiring the Attorney General to 
withhold preclearance of voting changes that clearly vio­
late Section 2, 28 C.F.R. 51 .55(b )(2 ), on the ground 
that a federal court has authority co-equal with that of 
the Attorney General to interpret Section 5 in the first 
instance. J.S. App. 18a-19a. In light of its legal ruling, 
the court declined to decide whether the evidence estab­
lished that the redistricting plan was dilutive in violation 
of Section 2. Id. at 9a n.6.

The district court then held that the Board had met its 
burden of showing that, in adopting the Police Jury plan, 
it did not act with a racially discriminatory purpose. J.S. 
App. 27a-29a. In deciding that question, the court held 
that “evidence of a section 2 violation” may not be con­
sidered as “evidence of discriminatory purpose under sec­
tion 5.” Id. at 23a; see also id. at 24a, 9a n.6. The court 
thus refused to consider, as relevant to the Board’s pur­
pose, evidence of the Board’s contemporaneous awareness 
that the Police Jury plan was dilutive and therefore had the 
discriminatory effect of precluding any meaningful oppor­
tunity for black citizens to elect representatives of their 
choice. Id. at 9a n.6. The district court also refused to 
consider evidence that the Board had a long history of 
racial discrimination, including continuing noncompliance 
with a court order in the three-decade-old Lemon school 
desegregation case in which it is a defendant. Id. at 34a 
n. 18.

The district court acknowledged that the Board had 
“offered several reasons for its adoption of the Police 
Jury plan that clearly were not real reasons.” J.S. App. 27a 
& n.15. It nonetheless found “legitimate, nondiscrimina- 
tory motives” for the Board’s adoption of the Police Jury 
plan: “The Police Jury plan offered the twin attractions 
of guaranteed preclearance and easy implementation (be­



14

cause no precinct lines would need redrawing).” Id at 
27a-28a.

Judge Kessler concurred in part and dissented in part. 
J.S. App. 37a-65a. She agreed with the majority that a 
Section 2 violation docs not prevent Section 5 preclear­
ance, J.S. App. 37a, but dissented Irom the majority’s con­
clusion that the Board acted with legitimate, nondiscrim- 
inatory motives, id. at 38a-65a. Taking into account 
evidence that this Court held in Village of Arlington 
Heightv v. Metropolitan Housing Dew Corp., 429 U.S. 
252, 266 (1977), is relevant in assessing discriminatory 
purpose, Judge Kessler would have found that “the evi­
dence demonstrates conclusively that the Bossier School 
Board acted with discriminatory purpose.” J.S. App. 39a.

SUMMARY OF ARGUMENT

1. This Court consistently has held that the discrim­
inatory effect of a voting change on racial minorities, and 
the history of discrimination by the jurisdiction that 
adopted the change, are highly relevant in the assessment 
of whether the jurisdiction acted with a discriminatory pur­
pose. By prohibiting consideration of such probative evi­
dence under Section 5 of the Voting Rights Act of 1965, 
42 U.S.C. 1973c, the district court squarely contravened 
this Court s established approach to determining discrim­
inatory purpose in both voting and non-voting contexts. 
Because the application of an erroneously restrictive legal 
standard necessarily affected its decision, the district 
court’s judgment cannot stand.

When all the relevant evidence is considered, the record 
permits only one conclusion: that the Board adopted its 
i edistricting plan with a racially discriminatory purpose.
In addition to the clearly dilutive impact of the plan__
which “effectively excludes minority voters from the polit­
ical process, J.S. App. 41a— and the Board’s history of 
discrimination, several other indicia make the Board’s dis­
criminatory purpose clear. After a long, deliberate search

15

for a redistricting plan different from that of the Police 
Jury, the Board suddenly rushed to adopt the Police Jury 
plan as soon as it became clear that the local African- 
American community would oppose any efforts to obtain 
preclearance of a dilutive plan. As a result, the School 
Board entirely disserved two of its primary traditional 
districting concerns: incumbency protection and distribu­
tion of schools and attendance areas among districts. The 
decision to adopt the Police Jury plan at the time it was 
adopted makes sense only if the Board was intent on 
drawing a plan without any majority-black districts and 
chose the Police Jury plan because it was the only such 
plan that the Board thought likely to be precleared.

In this context, “guaranteed preclearance” was not, as 
the district court believed (J.S. App. 28a), a nondiscrim 
inatory motivation; rather, it was a means of effectuating 
the Board’s purposeful discrimination. Although the Board 
has asserted other allegedly legitimate justifications, those 
reasons constituted nothing more than post hoc rationali­
zations. Indeed, the district court found that many of the 
Board’s asserted motivations “clearly were not real rea­
sons for its actions. Id. at 27a n.15. The district court’s 
finding of no discriminatory purpose is clearly erroneous 
and must therefore be reversed.

2. The district court also erred in holding that voting 
changes that dilute minority voting strength in violation 
of Section 2 of the Act are entitled to preclearance under 
Section 5. Since Beer v. United States, 425 U.S.' 130 
(1976), this Court has recognized that an unlawfully dilu­
tive voting change is not entitled to preclearance. When it 
amended Section 2 and extended Section 5 in 1982, Con­
gress was aware of and endorsed that rule; it therefore 
expressed its intent that preclearance should be withheld 
from changes that violate amended Section 2’s prohibition 
on vote dilution. The same principle is embodied in a 
regulation promulgated by the Attorney General in 1987 
and drafted with close legislative oversight. 28 C.F.R.



16

51 .55 (b )(2 ). The district court’s ruling that changes 
which are known to be illegal under Section 2 must never­
theless be precleared creates an anomaly that is plainly 
contrary to Congress’s intent.

ARGUMENT

I. THE DISTRICT COURT ERRED IN CONCLUDING 
THAT THE BOSSIER PARISH SCHOOL BOARD 
ADOPTED THE POLICE JURY REDISTRICTING 
PLAN WITHOUT ANY DISCRIMINATORY PUR­
POSE

A. The District Court Committed Legal Error by 
Categorically Refusing to Consider the Dilutive 
Effect of the Board’s Decision and the Board’s 
History of Discrimination

1. Under Section 5, a voting change adopted with a 
discriminatory purpose may not be precleared. See 42 
U.S.C. 1973c; City of Richmond v. United States, 422 
U.S. 358, 378-379 (1975). “[D]etermining the existence 
of a discriminatory purpose ‘demands a sensitive inquiry 
into such circumstantial and direct evidence of intent as 
may be available.’ ” Rogers v. Lodge, 458 U.S. 613, 618 
(1982) (quoting Village of Arlington Heights v. Metro­
politan Housing Dev. Corp., 429 U.S. 252, 266 (1977)). 
In Arlington Heights, this Court set forth a nonexhaustive 
list of factors relevant to that inquiry. “The impact of the 
official action— whether it ‘bears more heavily on one race 
than another’— may provide an important starting point.” 
Arlington Heights, 429 U.S. at 266 (citation omitted) 
(quoting Washington v. Davis, 426 U.S. 229, 242 
(1976)). Other relevant factors include the “historical 
background of the decision”— “particularly if it reveals a 
series of official actions taken for invidious purposes,” 
429 U.S. at 267; the “specific sequence of events leading 
up to the challenged decision,” including any procedural 
or substantive departures from normal practices, ibid.-, and 
the “legislative or administrative history”— “especially

17

where there are contemporary statements by members of 
the decisionmaking body, minutes of its meetings, or re­
ports,” id. at 268.

This Court has applied the Arlington Heights standards 
in adjudicating claims of unconstitutional, purposeful vote 
dilution. See Rogers, 458 U.S. at 618-622; City of Mobile 
v. Bolden, 446 U.S. 55, 70 (1980) (plurality opinion). 
The Court has also repeatedly affirmed judgments of three- 
judge district courts that have applied those standards to 
Section 5’s discriminatory purpose analysis. See City of 
Pleasant Grove v. United States, 568 F. Supp. 1455, 
1458 (D.D.C. 1985), aff’d, 479 U.S. 462 (1987); Busbee 
v. Smith, 549 F. Supp. 494, 516-517 (D.D.C. 1982), 
affd, 459 U.S. 1166 (1983); City of Port Arthur v. United 
States, 517 F. Supp. 987, 1019 (D.D.C. 1981), affd, 459 
U.S. 159 (1982).

The district court did not follow the established Arling­
ton Heights approach. Instead, it incorrectly limited the 
facts it considered probative of discriminatory purpose in 
a Section 5 proceeding. The court specifically refused to 
consider either the discriminatory effect of the challenged 
redistricting plan on minority voters or Bossier Parish’s 
history of racial discrimination. Characterizing that evi­
dence as “section 2 evidence,” the district court asserted 
that it had no bearing on the assessment of purpose in a 
Section 5 proceeding.® The court thus ignored important 
facts that were highly probative of the Board’s purpose in 9

9 J.S. App. 23a (“Miller[ V. Johnson, 115 S. Ct. 2475 (1995)] 
forecloses the permitting of section 2 evidence in a section 5 
case.”);  id. at 24a (“ [W]e will not permit section 2 evidence to 
prove discriminatory purpose under section 5.”) ; id. at 34a n.18 
(suggesting that the historical failure of the School Board to com­
ply with the terms of the desegregation order entered against it 
was irrelevant to the inquiry into its purpose in adopting a re­
districting plan with no majority-black districts) ; see also id. 
at 9a n.6 (“Because we hold * * * that section 2 of the Voting 
Rights Act * * * has no place in this section 5 action, much of 
the evidence relevant only to the section 2 inquiry is not dis­
cussed in this opinion.”).



18

adopting the redistricting plan for which it sought pre­
clearance.

a. The district court erred in refusing to consider evi­
dence of the dilutive effect of the Board’s redistricting 
plan on minority voting strength. “Necessarily, an in­
vidious discriminatory purpose may often be inferred from 
the totality of the relevant facts, including the fact, if it 
is true, that the [challenged decision] bears more heavily 
on one race than another.” Washington v. Davis, 426 U.S. 
at 242. In the voting rights context, evidence of the dis­
criminatory impact of a decision is often “an important 
starling point” for an inquiry into purpose. Bolden, 446 
U.S. at 70; see Rogers, 458 U.S. at 623-624. So, too, in 
discrimination cases arising in other contexts, this Court 
has held that the impact of a challenged practice is an 
important element in the assessment of purpose. See, e.g., 
Pullman-Standard v. Swint, 456 U.S. 273, 289 & n.18 
(1982) (Title V II); Columbus Bd. of Educ. v. Penick, 
443 U.S. 449, 464 ( 1979) (education); Personnel Admin­
istrator v. Feeney, 442 U.S. 256, 274-275 (1979) (em­
ployment); Arlington Heights, 429 U.S. at 266 (zoning). 
“Impact” evidence is probative because, when the adverse 
consequences of a challenged action upon an identifiable 
group are inevitable or foreseeable, “a strong inference 
that the adverse effects were desired can reasonably be 
drawn.” Feeney, 442 U.S. at 279 n.25.

The School Board was well aware of the dilutive effect 
of the Police Jury plan upon minority voting strength, and 
the Board’s adoption of that plan w'ith knowledge of that 
effect is strongly probative of the Board’s discriminatory 
purpose. As Judge Kessler noted below', the Police Jury 
plan “effectively excludes minority voters from the polit­
ical process.” J.S. App. 41a. Ample evidence established 
that the Board was aware of that dilutive impact. “There 
was * * * overwhelming evidence of bloc voting along 
racial lines” and, “although there had been black candi­
dates, no black had ever been elected” to the Bossier

19

Parish School Board. Rogers, 458 U.S. at 623; J.S. App. 
40a, 115a-l27a (1ffl 153-196).10 * The Board admitted 
that it was “obvious that a reasonably compact black- 
majority district could be drawn within Bossier City,” id. 
at 76a (1| 36), and that the NAACP plan Price presented 
to the Board demonstrated that a second, reasonably com­
pact majority-black district could be drawn using natural 
and artificial boundaries traditionally used in redistricting. 
Id. at 1 13a- 115a ( ^ |  143-150). Price and many other 
citizens told the Board that the proposed redistricting plan 
would unnecessarily diminish black voting strength. Id. 
at 101a-l02a 108).

“[Rjather than consider either of the alternative pro­
posals [that included compact majority-black districts] 
brought before it or direct their own cartographer to draft 
one,” however, “the School Board adopted a plan ‘which 
guaranteed that blacks would remain underrepresented on 
the [Board| by comparison to their numerical strength.’ ” 
J.S. App. 4 !a  (quoting City of Port Arthur, 517 F. Supp. 
at 1022). Such “actions having foreseeable and antici­
pated disparate impact are relevant evidence to prove the 
ultimate fact, forbidden purpose.” Penick, 443 U.S. at 
464. The district court erred in refusing to consider, as 
relevant to the Board’s purpose, this substantial, largely 
stipulated evidence demonstratinc minority vote dilution. 
See Rogers, 458 U.S. at 623-627.'

10 Board members knew that no black candidate had ever been 
elected to the Board, J.A. 125, 126 (letters from Price to School 
Board) ; U.S. Exh. 98, at 28-30 (Board member Hensley testimony 
regarding Board receipt of Price letter), and the presence of 
racial bloc voting in Bossier Parish was generally recognized 
among the community and elected officials, see, e.g., U.S. Exh. 102, 
at 8-9 (Board member Blunt testimony); J.S. App. 122a ((1181)
(Police Juror Burford’s understanding that there was substantial 
racial bloc voting); U.S. Exh. 31 (recognition in local press); 
U.S. Exh. 101, at 4, 8 (former Bossier City Councilman Jeff IJarby 
testimony); U.S. Exh. 105, at 11-13 (police juror Jerome Darby 
testimony).



20

b. The district court also failed to take into account 
other relevant evidence of purpose solely because it would 
also be relevant in a Section 2 proceeding. This Court 
has held that “[e]vidence of historical discrimination is 
relevant to drawing an inference of purposeful discrimina­
tion. Rogers, 458 U.S. at 625; accord Arlington 
Heights, 429 U.S. at 267. The district court, however, 
refused to consider the Board’s substantial and continuing 
legacy of discrimination against blacks in its administra­
tion of the Bossier Parish school system. J.S. App. 9a 
n.6, 34a n.18, 42a n.4; compare id. at 34a n.18 with 
id. at 42a-46a, 136a-l38a 236-243).

The Bossier Parish School Board has presided over 
increasingly segregated schools in spite of its affirmative, 
continuing duty to eliminate racial segregation; that fact 
buttresses our contention that the same Board acted with 
a discriminatory purpose when it adopted a redistricting 
plan that adversely dilutes black voting strength. Rogers, 
458 U.S. at 624-625 (referring to lingering school segre­
gation as relevant to proof of purposeful discrimination). 
Indeed, the Board recently violated a court desegregation 
order by disbanding a biracial committee; it did so be­
cause “the tone of the committee made up of the mi­
nority members * * * quickly turned toward becoming 
involved in policy.” J.S. App. 105a ( f  116).11 That ac­
tion is probative of the Board’s unresponsiveness to rea­
sonable concerns of the black community— another “im­
portant element * * * of [the] number of circumstances 
a court should consider in determining whether discrimi­
natory purpose may be inferred.” Rogers, 458 U.S. at 
625 & n.9. The district court erred as a matter of law 
by refusing to take into account that highly probative 
evidence of the Board’s continuing racial discrimination.

11 As Judge Kessler noted, “ [w]hat exactly the Committee was 
supposed to become involved in, if  not policy, is unclear ” J S App 
46a.

21

2. The district court gave three reasons for categor­
ically excluding from consideration any evidence that 
would be relevant in a Section 2 case. None is 
persuasive.

First, the court suggested that allowing such evidence 
in the discriminatory purpose inquiry would impermissibly 
allow a denial of preclearance to be based solely on a 
Section 2 violation. J.S. App. 23a.12 We contend, not 
that evidence of a Section 2 violation necessarily suffices 
to prove discriminatory purpose; see Rogers, 458 U.S. at 
618; Bolden, 446 U.S. at 70, but that it is relevant to 
the purpose inquiry, see Rogers, 458 U.S. at 623-624; 
Arlington Heights, 429 U.S. at 265; see also Arizona v. 
Reno, 887 F. Supp. 318, 323-324 (D.D.C. 1995) (evi­
dence relevant to Section 2 violation also relevant to Sec­
tion 5 purpose inquiry), appeal dismissed, 116 S. Ct. 1037 
(1996).13 The district court erred as a matter of law in 
ignoring that probative evidence.

Second, the district court suggested that this Court’s 
decision in Miller v. Johnson, 115 S. Ct. 2475 (1995), 
foreclosed any argument that the Board’s adoption of a 
plan that it knew diluted minority voting strength evi­
denced its discriminatory purpose. J.S. App. 34a-36a. 
That is incorrect. In Miller, 115 S. Ct. at 2492-2493, the 
Court considered an ameliorative redistricting plan and

As we explain below, a violation of Section 2 provides an 
independent basis for denying preclearance. See Point II, infra.

13 The district court erred in relying on New York v. United 
States, 874 F. Supp. 394, 398-400 (D.D.C. 1994), in support of 
its holding that evidence of a discriminatory effect that violates 
Section 2 “has no place” in a Section 5 case. J.S. App. 9a n.6, 
22a-23a. The three-judge court in New York merely held that dis­
criminatory purpose may not “always be inferred” from adoption 
of a system that has a discriminatory effect or, in the case of a 
redistricting plan, a dilutive impact, 874 F. Supp. at 399 (emphasis 
added) ; it did not hold, as did the district court below, that evi­
dence of a discriminatory effect is irrelevant to the Section 5 pur­
pose inquiry. See ibid, (citing Arlington Heights, 429 U.S. at 266).



22

held that purposeful refusal to subordinate traditional dis­
tricting principles in order to “maximizfej” the number of 
majority-black districts fails to demonstrate purposeful 
discrimination. See also Shaw v. Hunt, No. 94-923 
(June 13, 1996), slip op. 11-14 (Shaw II).  Here, by 
contrast, the Board sought consciously to minimize the 
number of majority-black districts. Despite concentra­
tions of black population, the Board adopted a plan 
that lacks any majority-black district, and that has had the 
clearly foreseeable effect of diluting minority voting 
strength, and the Board did so in circumstances strongly 
suggesting a discriminatory motivation. Such “conscious 
minimizing of black voting strength” is clearly relevant 
to a finding of discriminatory purpose. Busbee, 549 F. 
Supp. at 517 (emphasis added); see id. at 518.14 Neither 
Miller nor Shaw II disturbed the well-settled rule that 
Arlington Heights provides the appropriate standard for 
determining discriminatory purpose under Section 5. 
Rather, the Court disagreed in those cases with the At­
torney General’s application of that standard to the par­
ticular plans submitted for preclearance. The Court’s 
holdings cast no doubt on the continued application of 
traditional discriminatory purpose analysis in Section 5 
cases.

14 The Court in Miller did not refuse to consider evidence of the 
effect of the challenged districting plan. In evaluating whether 
the plan there was adopted with a discriminatory purpose, the 
Court considered the plan’s ameliorative impact. 115 S. Ct. at 2492. 
Miller is therefore fully consistent with the substantial precedent 
mandating consideration of the effect of a decision as one element 
in the totality of circumstances that indicates whether the decision 
was purposefully discriminatory. Indeed, throughout its Miller 
opinion, the Court cited Arlington Heights with approval. Miller, 
115 S. Ct. at 2483, 2487, 2489. And while this Court recently ex­
pressed doubt that “a showing of discriminatory effect under § 2, 
alone, could support a claim of discriminatory purpose under § 5,” 
it did not question the well-established proposition that disparate 
effects are relevant to discriminatory purpose. Shaw v. Hunt, 
slip op. at 14 n.6 (emphasis added).

23

Finally, the district court suggested that a purpose to 
cause retrogression in the electoral position of minority 
voters is the only type of discriminatory purpose cogni­
zable under Section 5. J.S. App. 23a-24a (quoting Texas 
v. United States, Civ. Act. No. 94-1529 (D.D.C. July 
10, 1995), slip op. 2-3. Under that approach, a jurisdic­
tion that had never had a majority-minority district could 
never be found to have a discriminatory purpose in re­
fusing to create such a district. This Court has expressly 
rejected that proposition. In City of Richmond, the Court 
concluded that the voting change under review there did 
not have an unlawfully retrogressive effect under Section 
5, but it then remanded to the three-judge court for a 
determination whether the change had been adopted with 
a discriminatory purpose. Explicitly addressing the ques­
tion how it could be forbidden by § 5 to have the pur­
pose and intent of achieving only what is a perfectly legal 
result under that section,” the Court found it “plain” that 
a voting change made “for the purpose of discriminating 
against Negroes * * * has no legitimacy at all under our 
Constitution or under the statute” and “is forbidden by 
§ 5, whatever its actual effect may have been." City of 
Richmond, 422 U.S. at 378-379 (emphasis added). The 
Court reaffirmed that proposition in City of Pleasant 
Grove v. United States, 479 U.S. 462 (1987), explaining 
that a covered jurisdiction may not “short-circuit a pur­
pose inquiry under § 5 by arguing that the intended re­
sult was not impermissible,” because not retrogressive, 
“under an objective effects inquiry.” Id. at 471 n .ll .  
See also City of Port Arthur v. United States, 459 U.S. 
159, 168 (1982) (noting that an electoral scheme 
adopted for a racially discriminatory purpose would be 
invalid even if it fairly reflected the political strength of 
a minority community).

Because of its failure to apply the correct legal stand­
ard to the Section 5 purpose inquiry, the district court’s 
decision must be reversed. In this case, as in Pullman-



24

Standard v. Swint, the district court “failed to consider 
relevant evidence” and certainly “might have come to a 
different conclusion had it considered that evidence.” 456 
U.S. at 292. At a minimum, the district court’s errors 
require a remand to permit that court to reevaluate the 
question of purpose in light of all of the relevant evidence.

B. Other Record Evidence, Together With the Evidence 
the District Court Erroneously Failed to Consider, 
Demonstrates That the Board Acted With a Dis­
criminatory Purpose in Adopting the Police Jury 
Plan

The district court not only failed to consider relevant 
evidence, but also evaluated improperly the limited evi­
dence it did consider. When all the relevant evidence 
is correctly considered, it supports only one conclusion: 
the Board acted.with a racially discriminatory purpose 
in adopting the Police Jury plan.

1. Both the “specific sequence of events leading up” 
to the Board’s decision to adopt the Police Jury plan and 
the substantive consequences of that decision demonstrate 
that the Board acted with a discriminatory purpose. See 
Arlington Heights, 429 U.S. at 267. The Board initially 
proceeded without urgency in its redistricting efforts, act­
ing separately from the Police Jury. J.S. App. 4a, 92a 
(11 80). The Board did not even begin its redistricting 
process until after the Police Jury had completed its own 
process. At that point the Board hired the Police Jury’s 
redistricting consultant, Gary Joiner, who estimated that 
it would take 200 to 250 hours to produce a plan for 
the School Board— far more time than would be necessary 
simply to adopt the Police Jury plan. Id. at 5a, 29a. 
Those initial decisions were consistent with the Board’s 
needs, for the next Board election would not occur until 
more than three years after the Police Jury adopted its 
redistricting plan. Id. at 4a. The Board proceeded with­
out haste from May, 1991, until the autumn of 1992.

25

It also best served the Board’s interests to develop a 
redistricting plan separate from the Police Jury’s. Al­
though the two bodies both cover the same geographic 
area, and both consist of 12 members elected from single­
member districts, the Board and the Police Jury had main­
tained different districts throughout the 1980s. They had 
done so because “|s]chool boards and police juries have 
different needs and different reasons for redistricting” in 
general. J.S. App. 72a (H 24). Moreover, the School 
Board and the Police Jury had divergent incumbency 
protection concerns {id. at 73a (H 26), 92a (i] 81)), and 
the fact that the Board and the Police Jury had main­
tained separate districting plans in the previous decade 
resulted in a continuing divergence in incumbency inter­
ests during the post-1990 round of redistricting. Id  at 
93a (1j84).

But the Board sharply changed course in September, 
1992, after the local NAACP made clear that it would 
actively urge the adoption of a districting plan that did 
not dilute black voting strength. During the summer of 
1992, the NAACP repeatedly requested that it be in­
cluded in the redistricting process. J.S. App. 96a-101a 
(HH 93, 94, 95, 97, 100, 106, 108); J.A. 125-129. How­
ever, when Joiner, the Board’s cartographer, demonstrated 
alternative redistricting scenarios to the Board members, 
in the late summer of 1992, the NAACP was not 
informed. J.S. App. 97a (HU 96, 97). At the September 
3, 1992, meeting of the Board, NAACP President George 
Price presented the NAACP’s 12-district plan, containing 
two districts with black voting-age majorities. Id. at 98a- 
99a (UU 98-100). Two weeks later, without directing 
Joiner to conduct any further study of Price’s plan, the 
Board unanimously passed a motion of intent to adopt 
the Police Jury plan, which contained no majority-black 
districts. Id. at 100a- 101a (U 106). Despite unanimously 
negative public comment at an intervening hearing, the 
Board adopted the Police Jury plan on October 1 without



26

a single dissenting vote. Id. at 8a, 101 a- 102a (Ilf 108- 
109).

As Judge Kessler concluded, “|t|he common-sense un­
derstanding of these events leads to one conclusion: The 
Hoard adopted the Police Jury plan—two years before 
the next election— in direct response to the presentation 
of a plan that created majority-black districts. Faced with 
growing frustration of the black community at being ex­
cluded from the electoral process, the only way for the 
School Board to ensure that no majority-black districts 
would be created was to quickly adopt the Police Jury 
plan and put the issue to rest.” J.S. App. 49a-50a. That 
conclusion is bolstered by the Board’s exclusion of mi­
norities from any meaningful part in the redistricting 
process, see Busbee, 549 F. Supp. at 518, as well as the 
anomalous substantive consequences of importing the Po­
lice Jury’s redistricting plan for use in School Board elec­
tions. Although the Board had long considered incum­
bency protection to be an important redistricting interest, 
the plan the Board adopted pitted incumbents against 
each other in two districts. J.S. App. 102a ( f  109).15 
And while school board members “are typically concerned 
with having a public school or schools in each [School

15 0ne incumbent Board member who did not stand to lose from 
the adoption of the Police Jury plan was Tom Myrick. J.S. App. 
95a (If 91). See page 11 & n.8, supra. The district court found 
it "understandable” that Myrick held a "strong desire not to have 
his district so changed that his constituency [was] obliterated” 
(J.S. App. 32a), but it is clear that Myrick recognized that pre­
serving his existing constituency came at the necessary expense 
of dividing black voters in northern Bossier Parish among several 
districts. For Myrick, protecting his incumbency was thus inex­
tricably intertwined with intentionally diluting black voting 
strength. See Garza V. County of Los Angeles, 918 F.2d 763, 771 
(9th Cir. 1990), cert, denied, 498 U.S. 1028 (1991); id. a t’778- 
779 & n .l (Kozinski, J., concurring in part and dissenting in part) ; 
Ketchum V. Byrne, 740 F.2d 1398, 1408 (7th Cir 1984) cert’ 
denied, 471 U.S. 1135 (1985) ; Rybicki v. State Bd. of Elections 
574 F. Supp. 1082, 1109 (N.D. 111. 1982) (three-judge court)

27
Board] district,” some districts in the Police Jury plan 
did not contain a single school. Id. at 73a (̂ ] 24). 
Where, as here, “the factors usually considered important 
by the decisionmaker strongly favor a decision contrary 
to the one reached,” a powerful inference of discrimina­
tion arises. Arlington Heights, 429 U.S. at 267 & n.17.

2. Board members’ own statements of opposition to 
black representation” and “drawing majority-black dis­

tricts, J.S. App. 3 la-32a; id. at 53a-54a, also show that 
the Board acted with a discriminatory purpose. Two Board 
members reported that others on the Board were “hostile” 
or “opposed” to the idea of black representation on the 
Board, or a majority-black School Board district. J.A. 
93, 123; J.S. App. 31a-32a. A third, who represented a 
district that included portions of a predominantly black 
community that, if not divided, could comprise part of a 
black-majority district north of Bossier City, insisted that 
“he had worked too hard to get [his] seat and that he 
would not stand by and ‘let [them] take his seat away 
from him.’ ” J.A. 124, 134; J.S. App. 53a, see page 11, 
supra.

The district court erred in its interpretation of those 
statements. J.S. App. 31a-32a. When all relevant evi­
dence is taken into account, the statements clearly indi­
cate, contrary to the district court’s conclusion, a purpose 
to prevent “the presence of black persons as members 
of the School Board.” Id. at 31a. The district court rea­
soned that opposition to “the intentional drawing of 
majoi ity-black districts in order to ensure black represen­
tation on the Board is “hardly an indication of discrim- 
inatory purpose unless section 5 imposes an affirmative 
obligation to draw additional fr/c] majority-black dis- 
tiicts. Ibid. Although the refusal to draw compact 
majority-black districts is not always probative of dis­
criminatory intent, in the circumstances of this case the 
Board s avowed refusal to do so communicated a clear 
message of opposition to black representation. In circum­
stances where following traditional districting principles 
would lead to the drawing of majority-black districts,



28
purposefully avoiding drawing them is probative of racially 
discriminatory purpose. See, e.g., Garza v. County of 
Los Angeles, 918 F.2d 763, 770-771 (9th Cir 1990) 
cert, denied, 498 U.S. 1028 (1991); Busbee, 549 F.
m Pn a t J? 17' The PoIice Jury Plan P'ainly disserved 
me Boards interests in incumbency protection and dis­
tribution of schools among districts. In the face of un­
questioned evidence of dilution, of the Board’s history 
ot discrimination, of the suspect timing of the Board’s 
decision to adopt the Police Jury plan, and of the Board’s 
shitting justifications, the only plausible explanation for
n ^ 0a^d s Ch° ice of the Police Jufy Plan was that the 
Board adopted that plan in order to dilute the effectiveness
of black votes. Where, as here, the Board knew that fail­
ure to draw majority-black districts would perpetuate 
black vote dilution, its expressed opposition to doing so is 
evidence of its racially discriminatory purpose.

The district court concluded that “at least a majority of 
the white Board members were responsive to the black 
community and were not opposed to black representation 
on the School Board.” J.S. App. 30a. In support of that 
conclusion, it pointed to only one fact— the Board’s ap­
pointment of a black member, Jerome Blunt, to a vacant 
School Board post. Ibid. But that appointment was 
plamiy a meaningless palliative. As Judge Kessler noted, 

Mr. Blunt was appointed to represent a district that was 
only 11% black, and his short [six-month] tenure on the 
job was a stark reminder of the highly polarized voting 
m Bossier Parish.” Id. at 54a n.9. (Blunt lost to a white 
challenger. Id. at 100a (K 105)). Moreover, the 
circumstances of Blunt’s appointment were themselves 
suspicious— the appointment occurred “at the very meet­
ing where the Board adopted a motion of intent to adopt 
the Police Jury plan.” Id. at 54a n.9. From the circum­
stances, it appears that “the School Board appointed a 
black to fill a seat they knew he would be unable [to] 
hold hoping to quell the political furor over the adoption 
of the Police Jury plan.” Ibid. This Court has noted

29

that the ephemeral success of black candidates in such 
circumstances does not warrant the drawing of favorable 
inferences. See Thornburg v. Gingles, 478 U.S 30 75-76 
& n.37 (1986).

C. The District Court Erred in Finding That the 
Board Had Any Legitimate, Nondiscriminatory 
Reason for Adopting the Police Jury  Plan

The district court found that the Police Jury plan 
“offered the twin attractions of guaranteed preclearance 
and easy implementation (because no precinct lines would 
need redrawing),” and that those were legitimate non­
discriminatory reasons for adopting that plan. J.S. App. 
27a-28a. Those factors were, however, not the Board’s 
actual reasons, nor were they nondiscriminatory. The dis­
trict court’s conclusion that the Board acted for non­
discriminatory reasons was infected by the court’s artifi­
cially restricted view of the relevant evidence, and was 
in any event, clearly erroneous.

Any interest the Board had in “guaranteed preclear­
ance was simply a means of effectuating the Board’s 
purposeful dilution of minority voting strength. The 
Board showed no concern at all with “guaranteed pre­
clearance until the local NAACP made clear that it 
would oppose preclearance of any plan that continued to 
shut out minority voters. As Judge Kessler noted, “[ijf 
guaranteed preclearance was what the Board wanted, it 
would have acted soon after the Police Jury Plan was pre­
cleared by the Justice Department on July 29, 1991,” 
lather than waiting for more than a year to adopt that 
plan. J.S. App. 58a.

Moreover, the fact that the Police Jury plan had pre­
viously been precleared might have recommended it over 
other plans comprised exclusively of white-majority dis­
tricts, but fails as a rationale for the Board’s selection of 
the Police Jury plan over any less dilutive plan. The 
Boaid could not realistically have believed that a plan



30

that ameliorated the existing dilution would be less likely to 
receive preclearance than the Police Jury plan. “[GJuar- 
anteed preclearance” was a plausible motivation for 
adopting the Police Jury plan only if the School Board 
was firmly intent on continuing to use a plan with no 
majority-black districts and it wanted assurance that it 
could do so without drawing an objection from the 
Attorney General. In short, “[tjhe Police Jury plan only 
became ‘expedient’ when the School Board was publicly 
confronted with alternative plans demonstrating that 
majority-black districts could be drawn, and demonstrating 
that political pressure from the black community was 
mounting to achieve such a result.” J.S. App. 49a.1<J

The prospect of easy implementation (because no pre­
cinct lines would need redrawing),” J.S. App. 28a, also 
was not an actual, nondiscriminatory reason for the 
Board’s adoption of the Police Jury plan that it initially 
had rejected. The court suggested that “the School Board 
entirely reasonably could have, when faced with the 
NAACP’s plan, arrived quickly at the conclusion that zero 
precinct splits was significantly more desirable than 46 ” 
id. at 29a (emphasis added), but did not find that the 
Board actually reached such a conclusion. The correct 
focus in determining the purpose behind the adoption of 
the disputed plan is on the Board’s actual purpose at the 
time it adopted that plan. City of Pleasant Grove, 479 
U-S. at 470 (rejecting argument “developed after the fact” 16

16 For similar reasons, the district court’s view that the Board’s 
adoption of a dilutive plan was “an understandable, if not neces­
sarily laudable, retreat from a protracted and highly charged 
public battle,” J.S. App. 34a, does not support its conclusion that 
such a retreat amounted to a nondiscriminatory reason for adop­
tion of the Police Jury plan. The only “public battle” the School 
Board faced arose from black citizens’ opposition to the strongly 
dilutive effect of any plan with exclusively white-majority dis­
tricts, and the Board "retreat[ed]” from it by deliberately excluding 
black voters from any meaningful participation in the process. 
See id. at 58a n.12.

31

because it was “not the true basis” for decision); cf. 
United States v. Virginia, No. 94-1941 (June 26, 1996), 
slip op. 18 ( “[A] tenable justification must describe ac­
tual state purposes, not rationalizations for actions in fact 
differently grounded.” ); id. at 2-3 (opinion of Rehnquist, 
C.J., concurring).

The evidence shows that splitting precincts was simply 
never a concern for the Board during its redistricting 
process, but was only an excuse manufactured to justify 
its refusal to draw a non-dilutive plan. The Board had 
anticipated splitting precincts from the very beginning 
of the process. J.S. App. 29a, 95a (ij 89). There is no 
finding that the Board ever considered the relative number 
of precinct splits, or their potential cost, as factors in 
selecting a plan. The Board did not ever “voice its con­
cern about too many precinct splits causing higher elec­
tion costs in its initial submission” for preclearance, nor 
did it “estimated the cost of splitting precincts before it 
voted to adopt the Police Jury plan.” Id. at 57a. And the 
Board never considered measures that would have reduced 
the number of precinct splits in the NAACP plan. Id. at 
lOOa-lOla (1) 106). Although the Board’s cartographer 
and attorney asserted that the NAACP plan could not be 
considered because its “district lines crossed existing pre­
cinct lines, and therefore violated state law,” id. at 99a 
(11 102), 6a, both those Board representatives knew at 
the time that they were free to request that the Police Jury 
realign the parish’s precincts— a process that is both 
legal and common in Louisiana. Id. at 6a-7a, 99a-100a 
(1) 102); see page 9, supra. They never approached the 
Police Jury to explore whether it was willing to take that 
step. Ibid.

The Board’s proffered justifications of “guaranteed pre­
clearance and easy implementation” were further rendered 
implausible by the fact that the Board raised them in con­
junction with a number of other justifications that lacked 
credibility. As the district court acknowledged, “[i]n the



32

course of litigation, the School Board has offered several 
reasons for its adoption of the Police Jury plan that 
clearly were not real reasons.” J.S. App. 27a n.15. The 
Board asserted, for example, that it had adopted the 
Police Jury plan to comply with this Court’s decision in 
Shaw v. Reno, 509 U.S. 630 (1993)— a decision that 
was not rendered until almost nine months after the 
Board adopted the plan. J.S. App. 27a n.15. Other 
clearly pretextual reasons proffered by the Board included 
its stated desire to avoid voter confusion by adopting the 
same boundaries for the Police Jury and School Board 
districts. Pltff’s Exh. 16 (Myrick testimony), at 4. The 
voter-confusion rationale was raised for the first time post 
hoc, in the Board’s Section 5 submission, see J.S. App. 
156a, and was not a genuine Board interest, given that 
(a) Louisiana jurisdictions commonly have different 
School Board ahd Police Jury districts; (b) the Board 
had had districts different from those of the Police Jury 
for more than a decade; and (c) the Board had not seri­
ously considered adopting the same districts as the Police 
Jury until it was faced with the black community’s request 
that it adopt a non-dilutive plan, see id. at 49a-50a, 72a 
(11 22). The fact that the Board has proffered shifting, 
insupportable justifications for its decision further sup­
ports a finding that it discriminated.17

Where “the record permits only one resolution of the 
factual issue” of intentional discrimination, reversal is ap­
propriate. Swint, 456 U.S. at 292. As we have demon­
strated, Judge Kessler was correct that, when all the rele­
vant evidence is considered, the record “demonstrates

17 See, e.g., Southwest Merchandising Corp. v. NLRB, 53 F.3d 
1334, 1344 (D.C. Cir. 1995) ; EEOC V. Ethan Allen, Inc., 44 F.3d 
116, 120 (2d Cir. 1994) (citing cases) ; see also St. Mary’s Honor 
Center v. Hicks, 509 U.S. 502, 511 (1993) (“The factfinder’s 
disbelief of the reasons put forward by the defendant (particularly 
if  * * * accompanied by a suspicion of mendacity) may, together 
with the elements of the prima facie case, suffice to show intentional 
discrimination.”) .

33

conclusively that the Bossier School Board acted with dis­
criminatory purpose.” J.S. App. 39a. The judgment of 
the district court should be reversed and the case re­
manded for entry of a declaratory judgment that the 
appellee failed to meet its burden to show lack of dis­
criminatory purpose under Section 5.

II. A PLAN THAT DILUTES MINORITY VOTING 
STRENGTH IN VIOLATION OF SECTION 2 OF 
THE VOTING RIGHTS ACT IS NOT ENTITLED 
TO PRECLEARANCE UNDER SECTION 5 OF THE 
ACT

It has long been established that retrogression in the 
voting strength of minority voters constitutes a discrimi­
natory effect precluding preclearance under Section 5. See 
Miller, 115 S. Ct. at 2483; City of Lockhart v. United 
States, 460 U.S. 125, 134 (1983); Beer v. United States, 
425 U.S. 130, 141 (1976). In Beer, 425 U.S. at 141, 
142 n.14, the Court stated that a nonretrogressive but 
unconstitutionally dilutive voting change also violates Sec­
tions. In amending the Voting Rights Act in 1982, Con­
gress, referring to that statement in Beer, indicated that 
vote dilution in violation of amended Section 2 should 
preclude preclearance under Section 5 as well: The Sen­
ate Judiciary Committee Report on the amendments stated 
that, “[i]n light of the amendment to section 2, it is in­
tended that a section 5 objection also follow if a new 
voting procedure itself so discriminates as to violate sec­
tion 2.” S. Rep. No. 417, 97th Cong., 2d Sess. 12 n.31 
(1982). Accordingly, the Department of Justice’s regula­
tions establishing procedures for the implementation of 
Section 5 provide that, even where a “submitted change 
is free of discriminatory purpose and retrogressive effect,” 
the Attorney General nonetheless shall withhold preclear­
ance where “a bar to implementation of the change is 
necessary to prevent a clear violation of amended Section 
2.” 28 C.F.R. 51 .55(b)(2). Whether Congress viewed



34

vote dilution in violation of Section 2 as a prohibited dis­
criminatory “effect” under Section 5, or, alternatively, as 
an equitable defense that should preclude a declaratory 
judgment under Section 5, Congress intended that such 
a violation should be a bar to preclearance.

1. a. Both Section 2 and Section 5 prohibit the dis­
criminatory denial or abridgement of voting rights. Sec­
tion 5 precludes preclearance of voting changes that will 
have the discriminatory “effect” of “denying or abridging 
the right to vote,” and Section 2 prohibits the use of vot- 
tng practices that “resultf]” in a discriminatory “denial or 
abndgment of the right * * * to vote.” It is well estab­
lished that a showing of discriminatory purpose is not 
required in order to show either discriminatory “effect” 
or discriminatory “results.” The similarity in meaning of 
the terms “effect” and “results” suggests that Congress 
viewed vote dilution that amounts to a discriminatory 
resultf] under Section 2 as also constituting a prohibited 

discriminatory “effect” under Section 5. Especially in 
vj,ev'. o f. S^ction 5 s purpose to prevent the perpetuation 
of discriminatory electoral systems by jurisdictions with 
a history of voting discrimination, South Carolina v 
Katzenbach, 383 U.S. 301, 328 (1966), the bar on dis­
criminatory “effectfs]” in Section 5 is most naturally read 
to incorporate the Section 2 prohibition on discriminatory 
vote dilution.

Reading Section 5 as prohibiting preclearance of voting 
changes that violate Section 2 is also supported by equi 
table principles governing declaratory judgments. Section 
5 specifies a declaratory judgment action as the mecha­
nism by which judicial preclearance may be obtained. See 
also 28 C.F.R. 51.52(a) (in determining whether to 
object to a proposed change, the Attorney General “shall 
make the same determination that would be made by 
the court in an action for a declaratory judgment” ). The 
Declaratory Judgment Act provides that any federal court 
that otherwise has jurisdiction “may declare the rights 
and other legal relations of any interested party.” 28

35

U.S.C. 2201 (emphasis added). The declaratory judg­
ment remedy is “equitable in nature,” and “equitable de­
fenses may be interposed,” Abbott Laboratories v. Gard­
ner, 387 U.S. 136, 155 (1967), including one based on 
the principle that equity withholds its assistance from 
persons using the asserted right in a manner contrary to 
the public interest. Morton Salt Co. v. G.S. Suppiger 
Co., 314 U.S. 488, 492-493 (1942); see Wilton v. Seven 
Falls Co., 115 S. Ct. 2137, 2143 (1995) (district courts 
have “unique breadth of * * * discretion to decline to 
enter a declaratory judgment” ); Public Serv. Comm’n v. 
Wycoff Co., 344 U.S. 237, 241 (1952) (Declaratory 
Judgment Act “confers a discretion on the courts rather 
than an absolute right upon the litigant” ); Eccles v. 
Peoples Bank, 333 U.S. 426, 431 (1948) ( “A declaratory 
judgment, like other forms of equitable relief, should be 
granted only as a matter of judicial discretion, exercised 
in the public interest.” ).

Discriminatory vote dilution in violation of Section 2 
is manifestly contrary to the public interest, and is thus 
an appropriate ground for denial of a declaratory judg­
ment of preclearance. “Congress intended § 5 to have 
‘the broadest possible scope.’ ” Morse v. Republican 
Party of Virginia, 116 S. Ct. 1186, 1198 (1996) (opinion 
of Stevens, J.) (quoting Allen v. State Bd. of Elections, 
393 U.S. 544, 566-567 (1969)). It would be an 
“anomalous result”— one Congress plainly did not intend 
— if the preclearance requirement were no bar to “vot­
ing practices known to be illegal” under Section 2. Morse,
116 S. Ct. at 1201 & n.25 (opinion of Stevens, J.). Thus, 
preclcarance should be denied to a voting change when 
it is known that the change will result in the unlawful 
dilution of minority voting strength, regardless of whether 
the change was instituted for a discriminatory purpose 
or had a retrogressive effect.

b. The question whether discriminatory vote dilution 
violates Section 5 first arose in Beer v. United States, 425



36

U.s _ 130 (1976). In Beer, the Court stated that Section 
,, s Pr°hibition of discriminatory effects sought principally 
to insure that no voting-procedure changes would be 

made that would lead to a retrogression in the position 
ot racial minorities with respect to their effective exercise 
of the electoral franchise,” id. at 141; a nonretrogressive 
change could not violate Section 5, the Court concluded, 
unless the (change] itself so discriminates on the basis 

of race or color as to violate the Constitution.” Ibid. 
Beer cited the cases of discriminatory vote dilution as 
examples of non-retrogressive yet unconstitutional changes 
that would violate Section 5. 425 U.S. at 142 n. 14 (cit­
ing, inter alia, White v. Regester, 412 U.S. 755 (1973))
u /,At thC I '" 16 Beer Was decided- the Court’s decision in 
White v. Regester established the standard for unconstitu­
tional racial vote dilution. Under that standard, a plain­
tiff could prove unconstitutional vote dilution by demon­
strating that “the political processes leading to nomina­
tion and election were not equally open to participation 
by the group in question— that its members had less op­
portunity than did other residents in the district to par­
ticipate in the political processes and to elect legislators 
of their choice.” 412 U.S. at 766. When this Court 
in Beer referred to a change that “itself so discrimi­
nates *■ * as to violate the Constitution,” it was re­
ferring to a change that violated White v. Regester’s vote 
dilution standards. See Beer, 425 U.S. at 141, 142 n. 14 
( It is possible that a legislative reapportionment could 
be a substantial improvement over its predecessor in terms 
of lessening racial discrimination, and vet nonetheless 
continue so to discriminate on the basis of race or color 
as to be unconstitutional.” ) (citing, inter alia, White v 
Regester, supra).

Because vote-dilution standards under the Constitution 
and Section 2 were generally coextensive at the time Beer 
was decided. Beer’s discussion meant that practices that 
violated Section 2 would not be entitled to preclearance

37

under Section 5. Subsequently, however, in City of 
Mobile v. Bolden, 446 U.S. 55 (1980), the Court held 
that proof of discriminatory purpose was necessary to es­
tablish unconstitutional vote dilution. Concluding that 
Bolden’s purpose test put plaintiffs to an inappropriately 
difficult burden, Congress amended Section 2 in 1982 to 
codify, as the statutory standard for proving unlawful 
dilution, the discriminatory “results” test originally set 
forth in White v. Regester. See Gingles, 478 U.S. at 43- 
44. Amended Section 2 thus prohibits any practice “which 
results in a denial of abridgement” of the right to vote on 
the basis of race or color. 42 U.S.C. 1973(a). Tracking 
the language in White v. Regester, Section 2 provides that 
a violation will be established if “the political processes 
leading to nomination or election * * * are not equally 
open to participation by members of a [protected class] 
in that its members have less opportunity than other 
members of the electorate to participate in the political 
process and to elect representatives of their choice.” 42 
U.S.C. 1973(b). The 1982 amendments also extended 
Section 5’s preclearance requirement, which was due to ex­
pire on August 8, 1982. Pub. L. No. 97-205, § 2 (b )(4 ), 
96 Stat. 133 (1982).

c. In enacting the 1982 amendments, Congress sought 
to reaffirm the principle, articulated in Beer, that a voting 
change that illegally dilutes minority voting strength is not 
entitled to preclearance under Section 5. The Senate Re­
port to the 1982 amendments made that point explicit:

Under the rule of Beer v. United States, 425 U.S. 
130 (1976), a voting change which is ameliorative 
is not objectionable unless the change “itself so dis­
criminates on the basis of race or color as to violate 
the Constitution.” 425 U.S. at 141; see also 142 
n.14 (citing to the dilution cases from Fortson v. 
Dorsey[, 379 U.S. 433 (1965),] through White v. 
Regester). In light of the amendment to section 2, 
it is intended that a section 5 objection also follow*



38

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tative source” for de.erm iu tg  C o ^ S s  im ™  > ' hori- 

lho«  amendments. Gr'nete 47a , ,  e enact '

f o ^ l r V r d e S r  ^  3  £  &
fully dilute minority S t r e n g t h  Ch1“ngeS, tl,at, Û"1™ - 
intention that that inmrr»r«t *• g h‘ ^  niac*e clear its 
of the amended Section 2 t ^ ? ly *° violali°ns
u-52 (opinion of S e «  ,  ) “  M <W ' 1,6 S' Ct- a‘ 1201

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gresa viewed vote dHutionTs1T p r o h ° h > T ‘<aIS° ®!’°WS that Con' 
5- In a discussion focussing on spot" * %  effect” under Section 
Court referred to a dilutive c h a f  *’0” 5 8 effects test’ the Beer 
bar preclearance for equitable refs “  -“ If that W° Uld not simP>y 
fa™ ,. but that «f Section r .
ameliorative change would not nrri; -, !^h le notlng that an
diluting or abridging the right , dinarily have the 'effect’ of 
Beer Court concluded that \  te ° n account of race,” the 
an effect if  it were unlawfully Change W°uld have such
White v. Regis J  votS S t t m  .  " V " ? "  tte " - P ^ e - b a s e d
1982 Congress reinstated in am ended^ r  6 standard that the 
141, 142 n.14. amended Section 2. Beer, 425 U.S.

39

ards for § 2 and § 5 violations are the same, so long as 
the challenged practice represents a change from 1965 
conditions” such that Section 5 is triggered. Morse, 116 
S. Ct. at 1201 n. 25 (opinion of Stevens, J .). That result 
makes sense because, “fi]f § 5 were narrower than § 2, 
then a covered jurisdiction would not need to preclear 
changes in voting practices known to be illegal.” Id. at 
1201. Because Congress approved of this existing reading 
of Section 5, there was no reason to amend Section 5 
in 1982.19

The legislative background thus establishes that changes 
that violate Section 2 are not entitled to preclearance. 
As this Court has ruled in interpreting the Voting Rights 
Act, “fwjhen a Congress that re-enacts a statute voices 
its approval of an administrative or other interpretation 
thereof, Congress is treated as having adopted that inter­
pretation, and this Court is bound thereby.” United 
States v. Board of Comm’rs, 435 U.S. 110, 134 (1978). 
The district court erred in ruling to the contrary.

d. Administrative and legislative actions after enact­
ment of the 1982 amendments confirm that voting 
changes that dilute minority voting strength under Sec­
tion 2 are not entitled to preclearance. In 1985, the 
Department of Justice issued the first set of proposed 
Section 5 regulations following the Act’s amendment. 
See 50 Fed. Reg. 19,122. One of the proposed regulations 
(28 C.F.R. 5 1 .5 6 (c )(1 )) required the Attorney General 
to withhold preclearance “based upon violation of Sec­
tion 2.” 50 Fed. Reg. at 19,131. As finally adopted, 
the Department’s regulation requires that preclearance 
be withheld where “a bar to implementaton of the change 10

10 The Court has reserved the specific question whether a viola­
tion of amended Section 2 requires the denial of preclearance. 
City of Lockhart V. United States, 460 U.S. 125, 133 n.9 (1983) 
(referring to appellee Cano’s argument) ; see also 81-802 Brief 
for Appellee Cano at 48-52, Lockhart, supra.



40

is necessary to prevent a clear violation of amended sec­
tion 2.” 28 C.F.R. 5 1 .5 5 (b )(2 ).20

Congress held oversight hearings on the proposed reg­
ulations, in which the Assistant Attorney General for 
Givil R,ghts testified in detail that Section 5 objections 
might be based on clear Section 2 violations. See Pro- 
P°sed Changes to Regulations Governing Section 5 of 
the Voting Rights Act: Oversight Hearings Before the 
Subcomm. on Civil and Constitutional Rights of the House

Z ^ e^ dldary' " th Cong ’ lst Sess- 149> 151- 
n « ( Oversight Hearings) (statement of Wm.
Bradford Reynolds). Witnesses noted that, not only had 
Congress in 1982 intended that Section 5 preclearance 
be denied on the basis of violation of Section 2, but that 
concerns of judicial and administrative economy also sup­
ported that construction. The facts relevant to vote di­
lution in violation of Section 2 are usually also relevant 
^  purpose under Section 5. See, e.g., Johnson v. De 
Grandy, 114 S. Ct. 2647, 2656-2657 & n.9 (1994) (Sen 
a ^ r e p o r t2- or “Z , W -  factors relevant to Section 2

J  The r e la t io n  authorizes the Attorney General to deny pre-
5 1 r i T ni  a “Clear” vioIation of Section 2. 28 C.F.R. 
51.55(b)(2) (J.S. App. 168a). The undisputed evidence in this 
case established such a clear Section 2 violation. The Court thus 
need not reach the question whether the “clear violation” standard 
aPPhieS+ Ju4lclal Proceedings. We note, however, that the pre-

“dear v i d a G o n ^ ^ ' f  SeCti°n 5 regU'ati°n statea the clear violation standard was incorporated to account for the
clud n g T eo  dav't ' r administrative preclearance process, in- 
th . I  J0;day t™ e limit for making preclearance determinations 
the lack of hearing procedures or subpoena power, and the absence 
of a formal record. 52 Fed. Reg. 487 (1987). Under such pro­
cedural limitations it might not be possible to detect a violation 
unless it was clear from the submission.

21 S- ReP- No- 417, 97th Cong., 2d Sess. 28-30 (1982).

y in im e r  v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) aff’d

(1975)W EaSt Carr°U PariSh Sch°°l B<1- V' Marshal1’ 424 U.S. 636

41

vote dilution); Rogers, 458 U.S. at 620-622 (Zimmer 
factors relevant to purpose under Section 5); see also 52 
Fed. Reg. at 487 (“the analysis used in the Section 5 
preclearance process requires evaluation of precisely the 
same factors that Congress specified as being relevant to 
a determination under Section 2” ). “To hold that sec­
tion 2 is not fully applicable would mean that the sec­
tion 2 issues would invariably have to be tried in another 
forum”— “a prescription for more litigation and a waste 
of the resources of the parties, the Department of Justice, 
and the courts.” Oversight Hearings at 47 (testimony 
of Laughlin McDonald).

Following the oversight hearings, the House Judiciary 
Subcommittee on Civil and Constitutional Rights issued 
a report. The report expressly endorsed the Department’s 
construction of Section 5 as authorizing objections on the 
basis of Section 2 violations:

[T]he Subcommittee concludes that it is a proper 
interpretation of the legislative history of the 1982 
amendments to use Section 2 standards in the course 
of making Section 5 determinations.

Subcomm. on Civil and Constitutional Rights of the House 
Comm, on the Judiciary, 99th Cong., 2d Sess., Ser. No. 9, 
Voting Rights Act: Proposed Section 5 Regulations 5 
(Comm. Print 1986). Congress’s failure to alter the en­
forcing agency’s policy, after full review of that policy, 
“makefs] out an unusually strong case of legislative ac­
quiescence in and ratification by implication of” the 
agency’s position. Bob Jones Univ. v. United States, 461 
U.S. 574, 599, 601-602 (1983).

e. Particularly in light of the close congressional over­
sight, the Department’s regulation is entitled to “great 
deference.” United States v. Board of Comm'rs, 435 
U.S. at 131-132. The district court, however, incor­
rectly refused to accord any deference to the Department’s 
interpretation of the Act. It reasoned that deference is



42

inappropriate where the federal courts have concurrent 
authority to interpret a statute in the first instance, as 
they do under Section 5. J.S. App. 18a-19a (citing Lit­
ton Fin. Printing Div. v. NLRB,  501 U.S. 190, 203 
(1 991)). That reasoning is squarely contrary to this 
Courts long and consistent practice of deferring to the 
Attorney General’s reasonable constructions of Section 5. 
See e.g., Presley v. Etowah County Comm’n, 502 U.S. 
4 9 5 0 8  (1992); City of Pleasant Grove, 479 U.S. at 
468; N A A C P  v. Hampton County Election Comm’n 470 
U.S. 166, 178-179 (1985); United States v. Board of 
Comm'rs, 435 U.S. at 131-132“

2. None of the reasons the district court gave supports 
its rejection of the clear congressional intent and consis­
tent administrative construction establishing that changes 
violating Section 2 are not entitled to preclearance under 
Section 5.
,, d 'stl"ict court relied on the use of different terms— 
results in Section 2 and “effect” in Section 5— to con­

clude that the statutory text “unambiguous[ly]” rejected 
the principle that Section 5 preclearance can be denied 
based on a Section 2 violation. J.S. App. 17a-18a. Con­
gress s use of different terms in the two sections is best 
explained, however, not as expressing a decision that Sec­
tion 5 must tolerate unlawful vote dilution, but as indi­
cating that retrogression is a discriminatory effect under 
Section 5, see Beer, 425 U.S. at 141, whereas retrogres-

“ Litton did not hold otherwise. It held that it is inappropriate 
to defer to an agency s decision on a non-statutory matter that 
the courts normally have the primary power to determine, and that

‘f SonotS!de the agency’8 area of special competence. 
501 U.S at 202 (noting that the NLRB’s decision was “not 
grounded m terms of any need * * * ‘to effectuate the policies of 
the Act, but rather was based on construction of a contract for 
whose interpretation “ ‘[arbitrators and courts are still the princi­
pal sources”). The Court reaffirmed in Litton that the NLRB’s 
interpretations of statutory language were entitled to “substantial 
deference.” Id. at 201-202.

43

sion, standing alone, is not a discriminatory “result” under 
Section 2, see Johnson v. De Grandy, 114 S. Ct. 2647, 
2654-2657 (1994).24

The district court also noted that the allocation of the 
burden of proof differs under Section 5 and Section 2, 
and concluded that “[t]hat crucial procedural difference 
strongly suggests the inappropriateness of importing sec­
tion 2 standards into section 5.” J.S. App. 16a. The 
Court’s language in Beer, however, suggests that the bur­
den to show dilution as a bar to preclearance remains 
with the Attorney General. In noting that vote dilution 
can be a basis for denying preclearance, the Court 
stated that l'[t]he United States has made no claim 
that [the disputed plan] suffers from any such disability, 
nor could it rationally do so.” 425 U.S. at 142 n.14 
(emphasis added). Thus, in ratifying Beer’s approach in 
the 1982 Voting Rights Act amendments, Congress likely 
contemplated that the United States bears the burden to 
make out a Section 2 claim as a basis for defeating pre­
clearance, just as it ordinarily \yould as a plaintiff in Sec­
tion 2 litigation. In addition, to the extent that the rule 
requiring denial of preclearance to unlawfully dilutive 
changes derives from the equitable public interest defense 
to a declaratory judgment action, that reasoning also 
would place the burden of proof of a Section 2 violation 
on the United States. The United States has, in practice, 
therefore assumed the burden to prove a Section 2 vio­
lation as a basis for denial of Section 5 preclearance.

Finally, the district court read this Court’s decision in 
Miller as “repudiaffing] the Department’s interpretation 
of section 5,” and as establishing that “section 5 and its 
standards have no place in a section 5 preclearance ac­
tion.” J.S. App. 21a, 23a. But Miller did not address

-* Moreover, even if Section 5’s “effect” language does not encom­
pass nonretrogressive dilution, established equitable principles sup­
port denial of preclearance to unlawfully dilutive redistricting 
plans. See pages 34-35, supra.



44

the issue whether preclearance should be withheld on the 
basis of a Section 2 violation, for the Section 5 objection 
at issue there was based exclusively “on the ground that 
the submitted plans violated § 5’s purpose element.” Mil- 
ler, 115 S. Ct. at 2492. As noted, Miller held that for­
bidden purpose could not be inferred from the jurisdic­
tion’s decision not to subordinate traditional districting 
principles so as to maximize the number of majority- 
minority districts. Id. at 2489-2490, 2492. But Miller 
did not hold that preclearance must be granted in the face 
of a Section 2 violation, i.e., where racially polarized vot­
ing deprives minority voters of an equal opportunity to 
elect their chosen candidates, and it is possible to create 
“more than the existing number of reasonably compact 
districts with a sufficiently large minority population to 
elect candidates of their choice.” De Grandy, 114 S. Ct. 
at 2655. Congress plainly did not intend that “anomalous 
result. Moise, 116 S. Ct. at 1201 & n.25 (opinion of 
Stevens, J.).

CONCLUSION

The judgment of the district court should be reversed 
and the case remanded for entry of a declaratory judgment 
that the redistricting plan at issue is not entitled to pre­
clearance under Section 5. In the alternative, the judg­
ment should be reversed and the case remanded for fur­
ther proceedings to consider, under proper legal stan-

45

dards, the evidence concerning discriminatory purpose 
and dilutive effect.

Respectfully submitted.

August 1996

Walter Dellinger 
Acting Solicitor General

Deval L. Patrick 
Assistant Attorney General

Paul Bender 
Deputy Solicitor General

Cornelia T.L. Pillard 
Assistant to the Solicitor General

David K. Flynn 
Steven H. Rosenbaum 
Samuel R. Bagenstos 

Attorneys

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