Memo to Hon Bradford Reynolds from Matin Feldman RE Louisiana Reapportionment

    LAW OFFICES OF 

BRONFIN, HELLER, FELDMAN & STEINBERG 

WHITNEY BUILDING 

NEW ORLEANS, LA. 70130 

FRED BRONFIN 

EDWARD M. HELLER ISAAC S. HELLER (1893-1967) 

MARTIN L.C, FELDMAN ROBERT WEINSTEIN (1908-1962) 

SYLVAN J. STEINBERG 
TELEPHONE 

S04/568-1888 
BERNARD MH. BERINS 

ROBERT A, KUTCHER 

JAN M. HAYDEN } May 28, 1982 

KAREN 8, SHER 

MEMORANDUM 

Honorable Wm. Bradford Reynolds 
Assistant Attorney General 
Civil Rights Division 
Department of Justice 

Martin L. C. Feldman 
Special Counsel to the Governor 

Reapportionment 1981, La. Act 20 of 1981 - Congressional 
Redistricting 

I. The Louisiana Reapportionment Plan and Events 
Leading Up to the Passage of Act 20 of 1981 

Introduction 
  

One of the problems in adopting a reapportionment plan 

for Louisiana in 1981 was how to acknowledge the increasing 

black constituency of the Second Congressional District while 

not unfairly diluting the black vote in other districts, and 

while maintaining geographic compactness and contiguity. 

The City of New Orleans is coextensive with Orleans 

Parish, which includes a large portion of the Second Congres- 

sional District. According to the 1980 Census, the City has a 

black population of 55% and a black registered vote of 46.5%. 

Clearly, if Orleans Parish could comprise one congres- 

sional district the potential for electing a black person to 

Congress would be enhanced. But Orleans Parish is too big to  



      

BRONFIN, HELLER, FELDMAN & STEINBERG 

be a separate congressional district; it must form part of two 

districts, as it has since 1843. The task, then, facing the 

Louisiana Legislature and Governor Treen in the Fall of 1981 

was to craft district lines which could reconcile all the con- 

flicting interests of the Congressional delegation, elected 

state officials, public interest groups, civil rights groups, 

and the like, and at the same time structure a new Second Dis- 

trict which as fairly as possible would recognize and reflect 

the growing black population in that area of the State. 

How to Solve the Problem 
  

Before passage of the present reapportionment plan, 

Louisiana's eight congressional districts had a total popula- 

tion of 4,203,972 people of which 69.25% were white and 29.43% 

were black. The Second Congressional District contained 

461,802 people and was 57.3% white and 40.7% black. The 1980 

Census reflected that the Second Congressional District con- 

tained a 12.2% deviation and that the ideal congressional dis- 

trict should contain 525,500 people. The State, therefore, had 

to bring up the population of the District to within 1% devia- 

tion from the ideal without reducing the black population there. 

But the First Congressional District finished the 

decade virtually perfect from the standpoint of one man, one 

vote population equality. It was only 2,226 voters under the  



  
      

BRONFIN, HELLER, FELDMAN & STEINBERG 

ideal or -0.42%. The Third District, the only other congres- 

sional district bordering on the Second District, had an excess 

of voters of 45,635 or + 8.68%, The logical place to find 

additional voters for the Second District was the Third Dis- 

trict. However, the addition of 45,000 to 65,000 voters from 

the Third Congressional District to the Second would have very 

seriously diluted the black share of population in the Second 

because the adjacent portions of the Third District, in 

Jefferson Parish, were largely white. 

The Governor and The Legislature 
  

While the Legislature was finding it difficult to 

agree on any reapportionment plan, Governor Treen submitted his 

proposals (his basic ideas were called Proposal A) to the 

Louisiana Legislature during October of 1981. Proposal A 

sought to increase the Second Congressional District from 40.7% 

black to 43.5%. It would have added 60,852 new people into the 

district, of which 64.01% were black. 

Proposal A was resisted in the political tug of war. 

Meanwhile, the plan the Congressional delegation sent to the 

legislative committee was rejected because of its 1.3% devia- 

tion although the joint legislative committee could not agree 

on its own, or any other plan. Plans, and amendments to plans, 

were debated back and forth by a multitude of legislators and  



        
BRONFIN, HELLER, FELDMAN & STEINBERG 

interested people. Then, the so-called Nunez Plan was intro- 

duced, which did two things: it created a Second District which 

was 56% black; more important to the political agenda of the 

plan's proponents than electing a black, it created a First 

District which was dominated politically by Jefferson Parish at 

the expense of St. Bernard and Plaquemines Parishes. The Nunez 

Plan began to thread its way through the state Senate, while 

versions on tne House side differed materially. The Black 

Caucus wanted a Second Congressional District which would be 

predominantly black. But public opinion among blacks was 

divided. Others questioned the value of concentrating black 

voting strength in one congressional district. For example, 

according to the Baton Rouge Morning Advocate of September 20, 
  

1981, "Rupert Richardson, president of the Louisiana NAACP, 

said a black-majority district isn't necessarily in the inter- 

ests of black citizens. I'm not at all convinced that one 

black congressman is better if it meant losing two of our 

strongest supporters, Mrs. Boggs and Mr. Long, Mrs. Richard 

said." The Governor felt the Nunez Plan was flawed because it 

clearly involved drawing the congressional districts solely 

along racial lines. During the debate the Governor publicly 

acknowledged that race is a valid factor to be used in drawing 

new district lines, but he believed that it should not be the 

only factor. More to the point, the Governor looked upon the  



      
BRONFIN, HELLER, FELDMAN & STEINBERG 

attempt to craft the First District so it would be dominated by 

Jefferson Parish as fundamentally unfair to the citizens of St. 

Bernard and Plaquemines Parishes. 

Since Proposal A did not satisfy everyone, and because 

he would not support the Nunez plan, Governor Treen submitted a 

second plan, called Plan X, in November. He hoped to reconcile 

the Senate and House differences, and still recognize the grow- 

ing black population that is taking place in the New Orleans 

area. According to Plan X, the Second District would contain a 

total population of 525,885 people of which 44.75% would be 

black. After further deliberations by the Legislature, a com- 

promise plan was finally adopted which became Act 20 of 1981 of 

the Louisiana Legislature. Act 20 of 1981 gave the Second Dis- 

trict a total population of 526,605 people of which 44.5% are 

black, only slightly less than what the Governor intended. 

What Act 20 Accomplished 
  

Act 20 of 1981 took into consideration all of the con- 

flicting interests of the parties and it represents a conscien- 

tious effort to address the concerns which were expressed by 

members of the Black Caucus and black citizens in Louisiana. 

It affords blacks the fullest political expression possible in 

an area of the State with a large black population without at 

the same time materially diluting the strength of the black  



        

BRONFIN, HELLER, FELDMAN & STEINBERG 

vote in other congressional districts in the State. It 

increases the black population in the Second District substan- 

tially and thereby avoids retrogression. 

II. Discussion of Constitutional Questions 

The legal issue which this memorandum discusses is 

whether the State of Louisiana has an affirmative duty to con- 

struct congressional districts sO as to insure proportional 

representation of the races? We submit no such duty exists in 

law. We further submit the Louisiana Plan is fair to all races 

and affords them equal access to the election process. 

Background   

Beginning in 1962, the Supreme Court in Baker v. Carr   

held that a challenge to a redistricting plan presented a jus- 

ticiable controversy. 369 U.S. 1856 (1962) The Court 4id not 

establish any guidelines or tests for use in determining the 

constitutionality of redistricting cases, but Justice Douglas 

said in a concurring opinion that, "the traditional test under 

the Equal Protection Clause has been whether a State has made 

an invidious discrimination, as it does when it selects a 

particular race or nationality for oppressive treatment". 369 

U.S. at 244. 

Ever since Baker v. Carr, "invidious discrimination" 
  

has been the central theme of the redistricting cases; and it  



    
BRONFIN, HELLER, FELDMAN & STEINBERG 

is the overriding standard to which the Louisiana Reapportion- 

ment Plan should be held. 

Congressional Redistricting 
  

The landmark congressional redistricting case is 

Wesberry v. Sanders, 376 U.S. 1 (1964). It is here that "one 
  

man, one vote" surfaces as a fixed doctrine in congressional 

redistricting. The Court did not opt for perfect mathematical 

precision, but held that "as nearly as practicable", one per- 

son's vote in a congressional election any place in the State 

should be worth as much as another's vote. We believe that Act 

20 of 1981, the Louisiana Reapportionment Plan, complies with 

the mandate of Wesberry v. Sanders, and, further, does not 
  

result in any invidious discrimination. The deviation in Act 

20 of 1981 is well under 1%, assuming that the ideal is a dis- 

trict population of 525,500. Thus, the Louisiana plan is well 

within the deviation limits as reflected in the cases subse- 

quent to Wesberry v. Sanders. See Kirkpatrick v. Preisler, 394 
  

  

U.S. 526 (1969); Wells v. Rockefeller, 394 U.S. 542 (1969); 
  

White v. Weiser, 412 U.S. 783 (1973); Exon v. Tiemann, 279 
  

  

F.Supp. 609 (D.C. Neb. 1968). At issue, then, is whether a 

plan must insure proportional representation to overcome the 

constitutional stigma of invidious discrimination.  



    
BRONFIN, HELLER, FELDMAN & STEINBERG 

Dilution of Voting Strength 
  

One person, one vote implicitly prohibits the dilution 

of the vote of an individual or a group in relation to the 

votes of other individuals and groups. The Wesberry Court 

specifically noted: 

"We do not believe that the Framers of the 
Constitution intended to permit the same 
vote-diluting discrimination to be accom- 
plished through the device of districts con- 
taining widely varied numbers of inhabi- 
tants. To say that a vote is worth more in 
one district than in another would ... run 
counter to our fundamental ideas of demo- 
cratic government ..." 376 U.S. 1 at page 8. 

That language would suggest that blacks do not have a 

legal, or for that matter, a constitutional right to elect a 

black congressman if, in so doing, the votes of other blacks in 

the State in other districts would be weakened by virtue of a 

bunching of black votes in one district. In other words, 

"invidious discrimination” is not demonstrated by the fact 

alone that blacks do not elect a black congressman. Rather, 

there is no constitutionally deficient dilution of a vote if 

the political processes leading to an election are "equally 

open to participation by the group in question". White wv. 

Regester, 412 U.S. 755 (1973) at page 765-767. If blacks have 

an equal opportunity to participate in the election process, 

they face no impermissible constitutional obstacle merely by  



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BRONFIN, HELLER, FELDMAN & STEINBERG 

virtue of the fact that they might not elect a black congress- 

man. This is especially important in New Orleans where 

although blacks are only 46.5% of the registered vote a black 

Mayor and a black Civil Sheriff were recently elected even 

though the white registered vote exceeds that of black persons 

(in fact, in the same at-large election, a white person was 

elected judge over a black candidate). For example, in one 

precinct as much as 65% white, Mayor Morial received 44.6% of 

the vote; Valteau, the candidate for Sheriff, as much as 48.4%. 

The demonstrable willingness of white voters in a large area of 

the new Second District to vote for a black candidate, coupled 

with the presence of a large black voter potential (who might 

or might not vote for the black candidate in a given election) 

suggests the reasonable probability that a viable black candi- 

date can be elected to Congress from the area. The election 

process is equally accessible to all who reside there. The 

total voter registration in those Orleans Parish precincts in 

the new Second District is 68.14% black; but Mayor Morial 

received 75.12% of the vote in those same precincts against a 

strong and well-financed white candidate. Under those circum- 

stances it is obvious that the election process is equally open 

to blacks and whites in the Greater New Orleans area, a large 

part of which is in the new Second District. The recent New 

Orleans election results unqualifiedly prove what the Fifth  



  

    
BRONFIN, HELLER, FELDMAN & STEINBERG 

Circuit explicitly recognized in 1974; black candidates can be 

elected in districts in the New Orleans area even with less 

than 50% black population. Taylor v. McKeithen, 499 F.2d 893 
  

{5 Cir. 1974). 

If the election process is equally open to blacks and 

whites, must there nevertheless be something more, proportional 

representation, to overcome a charge of invidious discrimina- 

tion? Recently, the Supreme Court said no. 

Proof - of "invidiousness" has been substantially 

affected by the Court's recent important ruling in City of 

Mobile v. Bolden, 446 U.S, 55 (1980). The Court held that in   

proving voting dilution claims under the Fourteenth Amendment, 

a purposeful discrimination on the part of those drawing the 
  

legislative lines .must be shown. The Court adopted the 

"intent" test; that is, an intent to discriminate must be 

proved. Since the Second District was drawn with an increase 

in black voting potential, no such purposeful or intentional 

discrimination can be said to exist. What about the notion 

that the Second District should have been structured to be pre- 

dominantly black so that the effect would be to guarantee the 

election of a black? The "effect" test was rejected when the 

Supreme Court in City of Mobile v. Bolden said that dispropor- 
  

tional effects alone (failure of a plan to insure the election 

of a black in proportion to their population) do not establish  



      
BRONFIN, HELLER, FELDMAN & STEINBERG 

a claim of unconstitutional racial voter dilution. 446 U.S. 55 

at page 67: 

"Although dicta may be drawn from a few of 
the Court's earlier opinions suggesting that 

disproportional effects alone may establish 
a claim of unconstitutional racial vote 
dilution, the fact is that such a view. is 
not supported by any decision of this Court." 

The mere effect of a plan is not to be considered, said the 

Court. Rather, "only if there is purposeful discrimination can 

there be a violation of the Equal Protection Clause ..." 446 

U.S. 55 at page 66. 

City of Mobile v. Bolden, is not an isolated case. In 
  

  Whitcomb v. Chavis, 403 U.S. 124 (1971), which anticipated City 

of Mobile v. Bolden by nine years, the Supreme Court rejected 
  

the idea that a discriminatory effect alone of a voting plan, 

represented by the fact that minority candidates did not win an 

election, was of itself sufficient to demonstrate a constitu- 

tional infirmity. As in White v. Regester, the Court suggested 
  

that the appropriate question was whether the legislative 

scheme in question afforded minorities the same opportunity as 

other citizens to participate in the political process. In 

other words, failure to win is not proof of discrimination. 

The Chavis Court suggested it would be improper to put all 

blacks in one district because although the black vote would be 

strengthened there, it would be weakened and even isolated 

elsewhere. And Justice Douglas was prophetic when he spoke  



  
  

BRONFIN, HELLER, FELDMAN & STEINBERG 

thusly in his dissent in Wright v. Rockefeller, 376 U.S. 52, 
  

67, (1964): 

"...When racial or regligious lines are 
drawn by the State, the multiracial, multi- 
religious communities that our Constitution 
seeks to weld together as one become separa- 
tist; antagonisms that relate to race or to 
religion rather than to political issues are 
generated; communities seek not the best 
representative but the best racial or reli- 

gious partisan. Since that system is at war 
with the democratic. ideal, it should find no 
footing here." 

Although the color blind test of Justice Douglas has not yet 

been embraced completely, a respectable body of opinion agrees 

with the Chavis Court that black voters' aspirations can be 

better achieved by exerting influence in several districts, 

rather than by laying claim to only one district drawn along 

purely racial lines. See Note, "Proportional Representation By 

Race: The Constitutionality of Benign Racial Redistricting", 74 

Michigan Law Review 820, 838-839 fns. 97, 98 (1976). 

Even if the effects test was viable today, and it is 

not, it would not hinder approval of the Louisiana Plan. Prior 

to City of Mobile v. Bolden, the Fifth Circuit developed a list 
  

of standards in testing equal protection claims under the 

"effect" test. Those factors were established in Zimmer v. 

McReithen, 485 PFP.24 1297 (5 Cir. 1973). In Zimmer, these pri- 

mary factors were set forth as establishing a measure of the 

"effect" test:  



    

BRONFIN, HELLER, FELDMAN & STEINBERG 

1. Lack of access to the process of slating candi- 

dates (equal access to the election process); 

2. The unresponsiveness of legislators to their par- 

ticularized interests; 

3. A tenuous state policy underlying the preference 

for the district as drawn; and, 

4. The existence of past discrimination which pre- 

cluded the effective participation in the election system. 

The Louisiana Plan, Act 20 of 1981, would satisfy all 

of the Zimmer tests. (Zimmer was rejected in City of Mobile v. 

Bolden and is of doubtful value as precedent today. See 446 

U.S. 55, 71-77). Blacks have full access in the political pro- 

cess and, indeed, have just elected a black Mayor in an area 

which includes the new Second Congressional District. It can- 

not be said that the legislators have been unresponsive in the 

creation of the new Second District; in fact, black population 

and potential registered voters have been increased substan- 

tially. A tenuous state policy is not in question and has not 

been the subject of inquiry in prior redistricting matters. 

Finally, although Louisiana has been the subject of some scru- 

tiny in connection with public higher education in the State, 

(which was never satisfactorily addressed until Governor Treen 

took office), the State in recent years has not had a question 

-13 =  



  
BRONFIN, HELLER, FELDMAN & STEINBERG 

raised about its conduct regarding the treatment of blacks 

connection with the election process. 

Does Section 5 of the Voting Rights Act change any 

what has been said? We think not. 

On the surface, Section 5 seems to place the burden 

proof on the Plan's proponent. Although the burden of proof is 

different in a Section 5 case, City of Mobile v. Bolden still 
  

requires proof of specific intent or purpose of discrimination 

in order to prove equal protection voter dilution claims. See 

also Nevett v. Sides, 571 F.2d 209 (5 Cir. 1978). Admittedly,   

the test in a Section 5 pre-clearance context shifts the burden 

to the proponent of the plan. But, it is nevertheless instruc- 

tive to note, the burden of proof set forth by the Supreme 

Court should be noted by the Attorney General because a plain- 

tiff suing to set aside the Louisiana Plan would not be suc- 

cessful in view of the burden of proof which would have to be 

met under the law of the Mobile case. That case bears a close 

look because the Court specifically held that proportional rep- 

resentation is not a proper constitutional consideration: 

"The Fifteenth Amendment does not entail the 
right to have Negro candidates elected ... 
That Amendment prohibits only purposefully 
discriminatory denial or abridgement by 
government of the freedom to vote on account 
of race, color, or previous condition of 
servitude." 446 U.S. 55 at 65. 

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BRONFIN, HELLER, FELDMAN & STEINBERG 

Thus, it is respectfully suggested that the Supreme Court has 

clearly said to the Attorney General that the failure to elect 

a black congressman is not presumptive justification for 

objecting to a redistricting plan. The Court has rejected the 

idea that the Constitution somehow guarantees proportional rep- 

resentation. The mere drawing of boundaries which do not 

include a predominantly black population is not presumptive 

evidence of a purposeful or discriminatory effect, and it does 

not presume a black cannot be elected. "Safe" seats for a 

minority are not required. Proportional representation is sim- 

ply not a constitutional imperative. See Marshall v. Edwards, 
  

582 F.24 927 (5 Cir. 1978). City of Mobile v. Bolden, nakes 
  

that clear, 446 U.S. 55, 79. See also Caserta v. Village of 
  

Dickenson, 491 F.Supp. 500 (S.D. Tex. 1980). While recent 

elections teach a black most certainly could be elected in the 

Second District, and blacks have full access to the election 

process, the State has no legal duty to insure the election of 

a black as long as what was done was fair and equitable without 

an intent to discriminate. 

The Louisiana Plan sought to reconcile the interests 

of all parties while acknowledging to the maximum extent possi- 

ble the interests of black voters in the Second Congressional 

District and elsewhere.  



    
BRONFIN, HELLER, FELDMAN & STEINBERG 

It is incorrect to say, as some have, that the Second 

District was structured to keep it from becoming predominantly 

black. The growth of the black population in those parts of 

Jefferson Parish now in the Second District proves the District 

will likely be predominantly black in the future. 

Between 1970 and 1980 the total population in those 

precincts grew by 9.1% while the black population grew by 

42.2%. As a result blacks, who had formerly accounted for 

15.5% of the District's population, now constitute 20.2%. 

Blacks now constitute 44.5% of the total population of 

the Second Congressional District. It would thus take only 

28,875 more blacks for the ideal Congressional district of 

525,000 to be 50% black. 

If the Jefferson Parish portion of the Second District 

continues to experience a 42.2% growth rate in black popula- 

tion, it will gain 25,050 blacks over the next ten years. 1f 

this occurred, there would only have to be a gain of 3,325 

blacks in Orleans Parish to tip the Second District over the 

50% mark. 

Conclusion 
  

What does all this come down to? Simply stated, 

racial minorities do not have the constitutional right to elect 

a member of their racial minority, as long as they have an 

equal opportunity to participate in the political process.  



    

BRONFIN, HELLER, FELDMAN & STEINBERG 

Whites don't necessarily always vote for whites and blacks 

don't necessarily always vote for blacks (as the recent elec- 

tion in New Orleans vividly emphasizes). In a concurring opin- 

ion in City of Mobile v. Bolden, Justice Stevens noted that: 
  

“Neither Gomillion nor any other case decid- 
ed by this Court establishes a constitu- 
tional right to proportional representation 
for racial minorities." 446 U.S. 86 

Mobile and other cases teach: 

l. Action by the State that is racially neutral on 

its face violates the Constitution only if moti- 

vated by a discriminatory purpose; 

If blacks register and vote without hindrance, and 

the political process is otherwise equally open to 

them, failure to elect a black will not by virtue 

of that fact alone work a constitutional depriva- 

tion: and, finally, 

Proportional representation is not a permissble 

constitutional test because blacks have no right 

to demand that the election of a member of their 

minority be guaranteed. 

Clearly the Black Caucus did not get its way; 

Louisiana did not adopt a plan which guaranteed a black con- 
  

gressman. But Louisiana did not adopt a plan which would keep 

a black out of Congress. The views of minorities were solic- 

ited and their input was extensive. The increase of blacks  



      
BRONFIN, HELLER, FELDMAN & STEINBERG 

from 40.7% to 44.5% in the Second District as well as recent 

voting patterns make the election of a black possible. 

In view of all the above, we submit that the Justice 

Department ought to conclude that the plan does not have a dis- 

criminatory racial intent (or effect) on voting when one con- 

siders that the new Second District and the City of New 

Orleans, which has just re-elected a black Mayor, are so 

closely tied. If anything, in the words of Beer v. United 
  

States, 425 U.S. 130, 141, (1976) the ability of blacks "to 

participate in the political process and to elect their choices 

to office is augmented ... by the change affecting voting ... 

It is thus apparent that ,a legislative reapportionment that 

enhances the position of racial minorities with respect to 

their effective exercise of the electoral franchise can hardly 

have the 'effect' of diluting or abridging the right to vote on 

account of race within the meaning of §5." 

Respectfully submitted, 

Building 
New Orleans, Louisiana 70130 
504/568-1888 
Special Counsel to the Governor