United States v. Hays Brief for Appellees

    Nos. 94-558 and 94-627

In  The

Supreme Court of tfje ®n(teb ^ ta to
October  Term , 1994

U n i t e d  S t a t e s ,

V.

R a y  H a y s , et aL,

S t a t e  o f  L o u i s ia n a , et aL,

Appellant,

Appellees,

Appellants,

R a y  H a y s , et a l.
Appellees.

On Appeal from the United States District Court 
for the Western District of Louisiana

BRIEF FOR APPELLEES RAY HAYS, 
EDWARD ADAMS, SUSAN SHAW SINGLETON 

AND GARY STOKLEY

E d w a r d  W . W a r r e n  
Counsel o f Record 

C h r is t o p h e r  L a n d a u  
J a y  P . L e f k o w it z  
R o b e r t  R . G a s a w a y  
G e r a l d  F . M a s o u d i  
K ir k l a n d  &  E l l is  
655 Fifteenth Street, N.W. 
Suite 1200
Washington, D.C. 20005 
(202) 879-5000

Counsel for Appellees

Dated; March 15, 1995
PRESS OF BYEON S. ADAMS, WASIilNGTON, D.C. 1,800.347.8208



QUESTIONS PRESENTED

1. Whether Louisiana’s intentional segregation of voters 
by race in redistricting is subject to strict scrutiny.

2. Whether (1) Louisiana’s mistaken belief that federal 
law required segregated congressional districts, or 
(2) an amorphous invocation of past discrimination, can 
serve as a compelling interest justifying such districts.

(i)



TABLE OF CONTENTS

Page
QUESTIONS PRESENTED............................................... (i)

TABLE OF AUTHORITIES............................................... iv

STATEMENT OF THE C A S E ...............................................2

A. Appellees’ Challenge to Louisiana’s
Redistricting Plans .......................................... 2

B. Act 1 Replaces Act 42 ................................. 6

C. The Court’s Findings That Act 1
Constitutes an Unconstitutional Racial 
Gerrymander ..........................................  8

D. Louisiana’s Failure to Provide a
Compelling State In te re s t........................... 11

SUMMARY OF ARGUM ENT..........................................  13

ARGUMENT .......................................................................  16

I. ACT 1 IS SUBJECT TO STRICT
SCRUTINY..............................................................  17

A. Where Race Is a “Motivating Factor,”
State Action Must be Subjected to Strict 
Scrutiny Unless the Same Result Would 
Have Obtained Without Regard to 
Racial Considerations............. .................... 18

B. The District Court Properly Determined
That Act 1 Triggered Strict Scrutiny.........26

1. Plaintiffs Established A Prima 
Facie Case That Racial 
Considerations Were The 
“Motivating Factor” Behind
Act 1 .................................................28

2. Appellants Failed to Rebut
Plaintiffs’ C a s e .........30

(ii)



Ill

II. ACT 1 CANNOT SURVIVE STRICT
SCRUTINY.....................................  34

A. A Mistaken Belief That Act 1 Was 
Compelled By The Voting Rights Act Is
Not a Compelling State Interest ..................35

B. Act 1 Was Not Compelled By the
Voting Rights Act ...................... 39

1. Act 1 Was Not Compelled By 
Section 5 of the Voting Rights
A c t ..................................................... 39

2. Act 1 Was Not Compelled By 
Section 2 of the Voting Rights
A c t ..................................................... 44

C. Act 1 Cannot Be Justified By A
Perceived Need To Remedy Historical 
Inequity ..........................................................49

CONCLUSION....................................................................... 50



IV

TABLE OF AUTHORITIES

Page
Cases

Adams Fruit Co. v. Barrett,
494 U.S. 638 (1990) ............................................  43

Allen V. State Bd. o f  Election,
393 U.S. 544 (1969) ........................................  41, 42

American Surety Co. v. Sullivan,
7 F.2d 605 (2d Cir. 1925) ...................................... 38

Anderson v. Martin,
206 F. Supp. 700 (D. La. 1962),
rev’i^375 U.S. 399(1964) ...............................  1,22

Barlow v. United States,
32 U.S. (7 Pet.) 404 (1 8 3 3 ).................................  37

Batson v. Kentucky,
476 U.S. 79(1986) ................................................. 25

Beer v. United States,
425 U.S. 130(1975) .................    43

Browder v. United States,
312 U.S. 335 (1941) ............................................... 38

Brown v. Board o f Education,
347 U S. 483 (1 9 5 4 )........................................  17, 18

Cheek v. United States,
498 U.S. 192(1991) ............................................... 37

Chisom V. Roemer,
501 U.S. 380(1991) ............................................... 43

City o f  Pleasant Grove v. United States,
479 U.S. 462(1987) ............................................... 43

City o f  Richmond v. J.A. Croson Co.,
488 U.S. 469 (1989) ..........................  12, 19, 26, 46

City o f  Rome v. United States,
446 U.S. 156(1980) ........................................  42,43

Colorado v. Connelly,
479 U.S. 157(1986) ............................................... 40



Cooter & Gell v. Hartmarx Corp.,
496 U.S. 384(1990) ..............................................  44

Crandon v. United States,
494 U.S. 152(1990) ..............................................  43

Cunico V. Pueblo School District,
917 F.2d 431 (10th Cir. 1990).................................  38

Davis V. Bandemer,
478 U.S. 109 (1986) ........................................  23, 50

DeBartolo v. Florida Gulf Coast Bldg, 
and Constr. Trades Council,
485 U.S. 568 (1988) ........................................ 36,40

Doe V. Small,
964 F.2d 611 (7th Cir. 1992) {en banc) ............... 38

Dorsey v. State Athletic Comm ’n,
168 F. Supp. 149 (E.D. La. 1958)
a ff’dmem. 359 U.S. 533 (1959)...............................2

Farmers Educ. &Coop. Union o f America v.
WDAY, Inc.,
360 U.S. 525 (1959) ............. ................................  40

Fullilove V. Klutznick,
448 U.S. 448 (1980) ..............................................  34

Gomillion v. Lightfoot,
364 U.S. 339(1960) ..........................  19-21,27,29

Growe v. Emison,
113 S. Ct. 1075 (1993) ...................................  44,48

Hafer v. Melo,
112 S. Ct. 358 (1991) ............................................. 38

Hamm v. Virginia Bd. o f Elections,
230 F. Supp. 1156 (E.D. Va.),
a ffdm em .,319 \J .S . 1 9 (1 9 6 4 )............................. 18

Heckler v. Mathews,
465 U.S. 728 (1984) ..............................................  16

Hernandez v. New York,
500 U.S. 352(1991) ..............................................  25

Hirabayashi v. United States,
320 U.S. 81 (1943) ................................................. 19



VI

Holder v. Hall,
114 S. Ct. 2581 ................................. ............... .. 43

Hunter V. Underwood,
471 U.S. 222 (1 9 8 5 )........................................  19, 25

International Union v. Johnson 
Controls, Inc.,
499 U.S. 187(1991) ............................................... 40

J.E.B. V. Alabama ex rel. T.B.,
114 S. Ct. 1419(1994) ..........................................  16

Johnson v. DeGrandy,
114 S. Ct. 2647 (1994) ............................. 34, 43, 50

Johnson v. Miller,
864 F. Supp. 1354 (S.D. Ga. 1994), 
proh. juris, noted, 115 S. Ct. 713
(Jan. 6, 1995)...................................................... passim

Johnson v. Transportation Agency,
480 U.S. 616(1987) ............................................... 45

Kentucky v. Graham,
473 U.S. 159 (1985) ............................................... 38

Kiryas Joel Village School District v. Grumet,
114 S. Ct. 2481 (1994) ...................................  24, 25

Lambert v. California,
355 U.S. 225 (1957) ............................................... 37

Loving V. Virginia,
388 U.S. 1 (1967) ............................................  18, 19

Lujan V. Defenders o f  Wildlife,
112 S. Ct. 2130(1992) ..........................................  16

Major V. Treen,
574 F. Supp. 325 (E.D. La. 1983) ........................  41

Metro Broadcasting v. FCC,
497 U.S. 547 (1990) .................................  16, 26, 50

Michigan Road Builders Ass ’n, Inc. v.
Milliken,
834F.2d 583 (6th Cir. 1987),
a ff’d.,A%9\].S>. 1061 (1989) .................................  35

Murray v. The Schooner Charming Betsy,
6 U.S. (2 Cranch) 64 (1804)...................................  36



Vll

New York v. United States,
No. 94-2219, 1994 WL 744179
(D.D.C. 1 9 9 4 )............................................    43

Nipper v. Smith,
39 F.3d 1494 (11th Cir. 1 9 9 4 )...............................  50

Plessy V. Ferguson,
163 U.S. 537 (1896) ...................................  2, 19, 50

Powers V. Ohio,
499 U.S. 400(1991) ............................................... 16

Ratzlaf V. United States,
114 S. Ct. 655 (1994) ............................................  37

Reynolds v. Sims,
377 U.S. 533 (1964) ............................................... 17

San Antonio Indep. School Dist. v. Rodriguez,
411 U.S. 1 (1973) ...................................................  17

Shaw V. Hunt,
861 F. Supp. 408 (E.D.N.C. 1994).................. 20, 25

Shaw V. Reno,
113 S. Ct. 2816 (1993) ................................... passim

South Carolina v. Katzenbach,
383 U.S. 301 (1966) ........................................ 42, 43

Thornburg V. Gingles,
478 U.S. 30 (1986) ........................................ .passim

United Jewish Orgs. o f  Williamsburgh,
Inc. V. Carey,
430 U.S. 144 (1977) ........................................passim

United States v. Board o f Comm ’rs,
435 U.S. 110(1978) ..............................................  42

United States v. Carolene Prod.,
304 U.S. 144(1938) ..............................................  17

United States v. Feola,
420 U.S. 671 (1975) ..............................................  38

United States v. International Minerals &
Chem. Corp.,
402 U.S. 558 (1971) ..............................................  38

United States v. Leon,
468 U S. 897 (1984) ..............................................  38



V lll

Vera v. Richards,
861 F. Supp. 1304 (S.D. Tex. 1994) . . . .  20, 25, 46 

Village o f  Arlington Heights v. Metropolitan 
Hous. Dev. Corp.,
429 U. S. 252 (1977) ........................................passim

Voinovich v. Quilter,
113 S. Ct. 1149(1993) ...................................  33,44

Washington v. Davis,
426 U.S. 229(1976) ........................................  19,38

Westwego Citizens fo r  Better 
G ov’t V. Westwego,
906 F.2d 1042 (5th Cir. 1 9 9 0 ) ...............................  46

Whitcomb v. Chavis,
403 U.S. 124(1971) ............................................... 22

White V. Regester,
412 U.S. 755 (1973) ............................................... 22

Widmar v. Vincent,
454 U.S. 263 (1981) ............................................... 37

Wright V. Rockefeller,
376 U.S. 52 (1 9 6 4 )........................................... passim

Wygant v. Jackson Bd. o f  Education,
476 U.S. 267 (1986) .................................  45, 46, 49

Tick Wo V. Hopkins,
118 U.S. 356(1886) ............................................... 18

Statutes

The Voting Rights Act of 1965, 42 U.S.C. 1973 et seq.
Section 2, 42 U.S.C. 1973(a)...........................passim
Section 5, 42 U.S.C. 1973c ..............................passim

Miscellaneous

Alexander M. Bickel, The Morality o f Consent 
(1975) ..................................................... 14



IX

Hall & Seligman, Mistake o f Law and Mens Rea,
8U. Chi. L. Rev. 641,642(1941) ........................  37

A. Kull, The Color-Blind Constitution (1 9 9 2 ) .................. 50
Richard H. Pildes and Richard G. Niemi,

Expressive Harms, “Bizarre 
Districts, ” and Voting Rights:
Evaluating Election-District 
Appearances after Shaw v. Reno,
92 Mich. L. Rev. 483 (1993) .................................  46

Abigail M. Therstrom, Whose Votes Count?
Affirmative Action and Minority Voting
Rights {192,1).............................................................. 42

1 Wharton’s Criminal Law and Procedure § 162 ............. 37
Williams, Criminal Law: The General Part

§§ 52-74 (2d ed. 1 9 6 1 )............................................ 37
Official Journal o f  the House o f Representatives

o f the State o f Louisiana ............................................ 7
Official Journal o f  the Senate o f  the State o f

Louisiana ....................................................................... 7
Random House Dictionary of the English

Language 419 (2d ed. 1987) ........................... 34,35



In  T h e

n̂frfiKf B̂crt sf t|e ̂ nifeir States
O c t o b e r  T e r m , 1 9 9 4

Nos. 94-558 and 94-627

U n it e d  S t a t e s ,

R a y  H a y s , etal..

S t a t e  o f  L o u i s ia n a , ei a l.

V.

R a y  H a y s , e ta l.

Appellant,

Appellees.

Appellants,

Appellees.

On Appeal from the United States District Court 
for the Western District of Louisiana

BRIEF FOR APPELLEES RAY HAYS, 
EDWARD ADAMS, SUSAN SHAW SINGLETON 

AND GARY STOKLEY

“In the eyes of the Constitution, a man is a man. He is 
not a white man. He is not an Indian. He is not a Negro.” 
Anderson v. Martin, 206 F. Supp. 700, 705 (D. La. 1962) 
(Wisdom, L, dissenting), rev’d  375 U.S. 399 (1964). 
Louisiana violated that principle in Anderson by requiring the 
designation of a candidate’s race on the ballot, thus placing the 
State’s “power and prestige behind a policy of racial 
classification inconsistent with the elective processes.” Id.



Judge Wisdom condemned that law by invoking the first 
Justice Harlan’s dissent in Plessy v. Ferguson, 163 U S. 537, 
552 (1896), and noting that “[i]f there is one area above all 
others where the Constitution is color-blind, it is the area of 
state action with respect to the ballot and the voting booth'' 
206 F. Supp. at 705 (emphasis added).

The Louisiana law at issue here is unconstitutional for 
the same reason. Because State-sponsored racial classification 
“is inherently discriminatory and violative of the Equal 
Protection Clause,” Dorsey v. State Athletic Comm ’n, 168 F. 
Supp. 149, 151 (E.D. La. 1958) (Wisdom, J.), a ff’dmem. 359 
U S. 533 (1959), Louisiana’s attempt to “sculp[t] voting 
districts along racial lines” is no more permissible than would 
be an attempt to divide citizens by race “at schools and lunch 
counters.” Hays II, U.S, J.S. App. (“U.S. App.”) at lla-12a. 
The district court’s judgment invalidating Act 1 should 
therefore be affirmed.

STATEMENT OF THE CASE
Following this Court’s decision in Shaw v. Reno, 113 S. 

Ct. 2816 (1993), the three-judge court below twice invalidated 
legislation segregating Louisiana’s voters by race to achieve 
two predominantly black congressional districts and five 
overwhelmingly white ones. Both decisions involved 
redistricting plans prepared in response to the 1990 census, 
which reduced Louisiana’s congressional delegation from eight 
to seven seats. The first decision invalidated Act 42, which 
contained the notorious Z-shaped District 4 (the so-called 
“Zorro” district), which “[t]he State now concedes . . . was 
bizarre.” Hays II, U.S. App. at 3a n.l. The Louisiana 
legislature responded by passing Act 1, which the district court 
again invalidated and which is at issue here.

A. Appellees’ Challenge to Louisiana’s 
Redistricting Plans.

Appellee Ray Hays grew up in Grrambling, Lincoln 
Parish, site of the historically-black university of the same



name established in 1901. Since childhood. Hays has had 
many friends in the community associated with Grambling 
University and in nearby Ruston and surrounding rural areas. 
Since the early 1970s, he has been more or less continuously 
involved in grass-roots organizing and campaigning for 
Democratic Party candidates. As a local party official, he has 
strived for an integrated electorate, campaigning for both black 
and white candidates among voters of both races. These efforts 
greatly benefitted from the original thrust of the Voting Rights 
Act (“VRA”), 42 U.S.C. § 1973 et seq., which abolished the 
discriminatory voting practices and procedures that had 
characterized Louisiana politics during the Jim Crow era.

This litigation began when Hays and a multi-racial 
group of plaintiffs from Lincoln Parish became concerned that 
the VRA had devolved into the engine of a divisive racial 
spoils system. During the 1991 redistricting for the Louisiana 
legislature and the eight-member Board of Elementary and 
Secondary Education (“BESE”), the VRA was invoked to 
maximize the number of majority-minority districts at all levels 
of state government. In May 1992, “a legislative alliance 
between the Black and the Republican Caucuses” again 
implemented a race-based approach to redistricting in response 
to Louisiana’s loss of one seat in the United States House of 
Representatives. Hays I, U.S. App. at 77an.54. The alliance 
of forces responsible for Act 42 never denied the controlling 
role o f race; to the contrary, they championed race as the 
primary justification for the plan. Id. at 75a-76a.

Opposing Act 42 as a cynical effort at racial 
engineering, plaintiffs filed suit in June 1992, challenging the 
plan on constitutional and statutoiy grounds. See Hays 7, U.S. 
App. at 42a. Joining Hays as plaintiffs were Ed Adams, a 
retired school principal and grandson of the founder of 
Grambling University; Gary Stokley, a tenured sociology 
professor at Louisiana Tech University in Ruston and a 
Democratic Party activist; and Susan Singleton, a working



mother who recently had become involved in Democratic Party 
politics.

A three-judge panel of Louisiana federal judges, Circuit 
Judge Jacques L. Wiener, Jr. (from Shreveport), and District 
Judges John M. Shaw and Donald E. Walter (from Lafayette 
and Shreveport respectively), convened to hear the case. The 
court held a two-day evidentiary hearing in August 1992, 
during which experts and legislators testified on both sides. Id. 
74a-76a. The court denied plaintiffs’ request for a preliminary 
injunction and allowed the 1992 congressional elections to 
proceed as planned under Act 42—including the “Zorro” 
District. Id. at 42a. The district court took plaintiffs’ case on 
the merits under advisement until this Court rendered its 
judgment in Shaw, whereupon the court conducted a second 
two-day hearing in August 1993. On December 28, 1993, the 
court held that Act 42 was a racial gerrymander invalid under 
the Fourteenth Amendment. Hays I, U.S. App. 39a.

The district court opinion invalidating Act 42 relied 
principally on Shaw and this Court’s earlier decisions in 
Wright V. Rockefeller, 376 U.S. 52 (1964), and Village o f  
Arlington Heights \ .  Metropolitan Hous. Dev. Corp., 429 U.S. 
252(1977). See Hays I ,V .S . App. at 48a n. 12; 49a n. 17; 69a 
nn.45 & 46. Specifically, the court held that “a legislature 
creates a racially-gerrymandered districting plan when it 
intentionally draws one or more districts along racial lines or 
otherwise intentionally segregates citizens into voting districts 
based on their race.” Id. at 48a.^

The court explained that the element of intent essential 
to a Fourteenth Amendment claim could be proven either 
circumstantially, as by a district’s bizarre shape as in Shaw, or 
'"a fo r tio r i . . .  by direct evidence that a legislature enacted a 
districting plan with the specific intent of segregating citizens 
into voting districts based on their race.” Id. at 50a. According

' Emphasis in original here and elsewhere unless otherwise indicated.



to the court, evidence relevant to establishing an 
unconstitutional racial gerrymander includes: (1) the shape of 
district boundaries; (2) the extent to which district boundaries 
reflect established political subdivisions, and the values of 
compactness and contiguity; (3) the extent to which parishes 
and cities are split along racial lines; and (4) testimony 
admitting a specific legislative intent to classify citizens by 
race. Id. at 62a-75a.

The court acknowledged at the outset that “[rjace will 
never be literally the only factor” determining district lines. 
Rather, as the court noted, the proper inquiry is whether race 
was “important” or a “motivating” factor. See Hays 7, U.S. 
App. at 69a-70a & n.46 (citing Arlington Heights, 429 U.S. at 
265). When assessing whether discriminatory intent exists, the 
court “as fact finder . . . must determine the credibility of 
witnesses, weigh the evidence, and choose between [the 
competing] inferences.” Id. at 73a.

After nearly four days of evidentiary hearings, the court 
concluded that the Zorro District in Act 42 was “highly 
irregular.” U.S. App. at 62a. That district, the court found, 
violated traditional districting principles and split parishes and 
cities along self-evidently racial lines. Id. at 63a-66a. 
Testimony by witnesses from both sides, moreover, left 
“absolutely no doubt that the immediate intent of the 
Legislature as a whole was to enact a plan containing two black 
majority districts, essentially without regard to any other 
considerations and interests.” Id. at 77a. The court thus 
concluded that “the facts and inferences overwhelmingly favor 
the Plaintiffs,” and that Act 42 “is undeniably a child of racial 
gerrymandering.” Id. at 73a.

The court then proceeded to reject Louisiana’s 
argument that Act 42 was narrowly tailored to comply with the 
Voting Rights Act. Having found that “[n]o one could claim 
that District 4 is compact, at least not with a straight face,” the 
court nonetheless assumed, “[f]or the sake of judicial 
economy,” that Act 42 was justified by compelling



governmental interests. Id. at 65a, 79a. Regardless of the 
state’s interests, however, neither Act 42 nor District 4 could 
be described as “narrowly tailored, either relatively or 
absolutely.” M  at 87a. The Voting Rights Act did not justify 
the plan: “because Louisiana lost a seat in the United States 
House of Representatives, a plan with one black majority 
district would satisfy the Section 5 nonretrogression 
requirement given no more dramatic shift in the statewide ratio 
of white-to-black voters than is demonstrated by a comparison 
of the 1980 and 1990 census figures.” Id. at 82a n.64.

In addition to finding Act 42 non-compact, the court 
also found that “the evidence supported an average, net white 
cross-over vote in non-judicial elections of between 10% and 
25%”—i.e., “black candidates will gain more votes from white 
cross-over voters (whites voting for black candidates) than they 
will lose from black cross-over voters (blacks voting for white 
candidates).” Hays I, id. at 83a-84a & n.65.

B. Act 1 Replaces Act 42.
While the Louisiana Attorney General appealed the 

district court’s invalidation of Act 42 to this Court, the State 
convened a special legislative session to prepare a new 
redistricting plan. Again, racial considerations were overt. 
Many legislators “remain[ed] convinced that the Department of 
Justice would not pre-dear any plan that did not contain two 
majority/minority districts”—a belief that the Department 
“encouraged, if not demanded.” Hays II, U S. App. at 7a n.3. 
The Department’s professed interest in stage-managing the 
legislative debate in Baton Rouge, of course, only encouraged 
those eager to pour Act 42’s old wine into a new bottle.

The tadt alliance between the proponents of Act 42 and 
the Justice Department was very much in evidence during the 
special legislative session. On April 18, 1994, the districting 
committees of both chambers of the Louisiana legislature met 
to consider alternative plans, some with two majority-minority 
districts and some with only one. See, e.g., SB8, HB6 (two 
districts); SB6, HB5 (one district), from Apps. D, E o f Mot.



for Prelim. Inj. On April 19, the Senate passed a bill similar to 
the final Act 1. Official Journal o f  the Senate o f  the State o f  
Louisiana, April 19, 1994, at 14. On the same day, the House 
considered a bill that had a single majority-minority district 
(centered in New Orleans), and defeated a bill similar to the 
one passed in the Senate. Official Journal o f  the House o f  
Representatives o f  the State o f Louisiana, April 19, 1994, at 
3-5.

On April 20, with the two chambers deadlocked. Justice 
Department officials chose to intervene— albeit
indirectly—^through a letter of questionable authority to the 
counsel for the Legislative Black Caucus. Mot. to Affirm at 10 
n.6. That letter, signed by the Honorable Deval L. Patrick, 
Assistant Attorney General for the Civil Rights Division, began 
by noting that “the Louisiana legislature is now in a special 
session . . .  to consider the enactment of a new congressional 
redistricting plan.” J.A. 229. The letter then proceeded to set 
forth an interpretation of VRA Section 5 and to apply the 
criteria in Gingles without addressing the court’s findings in 
Hays I  regarding non-compactness and the existence of a 
substantial net white cross-over vote. U.S. App. at 64a-65a 
83a-84a & n.65. The letter closed by opining that “it remains 
reasonable to conclude that the Voting Rights Act requires the 
state to devise a congressional redistricting plan with two 
black-majority districts.” J.A. 231.

Immediately upon circulation of the Patrick letter, the 
Louisiana House reversed course. On the very next day, 
April 21, it reconsidered and defeated by a 54-50 vote the 
previously-considered bill creating a single majority-minority 
district. Official Journal o f the House o f Representatives o f the 
State o f  Louisiana, April 21, 1994, at 1-3. The House then 
reconsidered and passed by a comfortable (61-43) margin the 
originally-defeated bill with two majority-minority districts. 
Id. at 3. On April 22, the Senate approved the House-passed 
bill (which modified slightly the Senate’s original bill) despite 
an attempted filibuster. Official Journal o f  the Senate o f  the



8

State o f  Louisiana, April 22, 1994, at 3-4. Shortly thereafter. 
Governor Edwin W. Edwards signed Act 1 into law.

C. The Court’s Findings That Act 1 Constitutes 
an Unconstitutional Racial Gerrymander.

After Act 1 became law, this Court dismissed as moot 
Louisiana’s appeal relating to Act 42. 114 S. Ct. 2731 (June 27, 
1994). On July 6, 1994, plaintiffs filed an amended complaint, 
accompanied by voluminous statistical data on Act I ’s seven 
Districts. These data included racial breakdowns and maps of 
Act I ’s many split parishes and cities, plus historical data and 
additional maps of previous Louisiana districting plans. See 
PX 3, 4, 5; Ex. A, Tab 7, Mot. for Prelim. Inj. The court 
handled the case on an expedited basis so that the state could 
finalize its plans in August for the upcoming 1994 
congressional elections.

The district court determined at the outset that 
plaintiffs’ new evidence, coupled with the irregular shape of 
Act I ’s new District 4, once again raised “the inference that the 
Louisiana Legislature classified its citizens along racial lines 
and segregated them into voting districts accordingly.” Hays 
II, U.S. App. at 3a. The court then offered Louisiana and the 
Justice Department the opportunity to rebut plaintiffs’ prima 
facie  case at yet another two-day trial—the third in the 
case—held on July 26 and 27, 1994.

Once again, Louisiana was unable to rebut the inference 
that it had intentionally classified its citizens by race, or to 
justify that classification. Apart from a perfunctory effort at 
explaining Act I ’s boundaries on race-neutral grounds, the 
State’s own witnesses frankly conceded that race had been the 
motivating factor behind the new redistricting plan. “The 
Senators themselves admitted that race played a large if not 
dominant role in the map as it is now drawn,” the court 
explained, and “[tjhose persons involved directly with the 
formation of Act 1 acknowledged that the creation of a second 
majority-minority district was the specific intent of the 
Legislature.” H aysII, U.S. App. at 4a.



The court nonetheless looked beyond these admissions, 
holding that “Act (1) speaks for itself’ on the intentional 
separation of the races. Id. at 3a. Appellants failed to rebut the 
inference of intentional racial classification arising from the 
“bizarre and irregular shape of District Four . . . [which] cuts 
across historical and cultural divides, splits twelve of its fifteen 
parishes and divides four of the seven major cities of the 
State.” Id. at 3a. The plan’s lack of respect for established 
political subdivisions convinced the court that Act 1 was “at 
best a cosmetic makeover” of the ill-fated Act 42. Id. at 3 a n. 1. 
The new District 4 contained even fewer whole parishes than 
did its predecessor in Act 42 (three instead of four), and split 
nearly the same percentage of its parishes (80% instead of 
86%). Compare Hays II, U.S. App. at 3a with Hays I, id. at 
65a.

The court also found that Act I ’s bizarre shape, both 
overall and along the boundaries splitting parishes and cities, 
represented a marked departure from Louisiana’s traditional 
districting practices. The court noted that Act I ’s District 4 “is 
approximately 250 miles long, . . . making it considerably 
longer than any other district in the State.” Hays II, U.S. App. 
at 16a. Marked by irregular lines, it “points fingers out into 
Caddo, Rapides, and Lafayette Parishes, while taking small 
bites out of St. Martin and Iberville Parishes.” Id. The same 
Rorschach appendages that characterized Act 42 reappeared in 
the maps of parishes and cities in Act 1. See App. la-4a 
(cities); Mot. to Affirm at 9a, 12a, 16a-18a (parishes).

While these and other departures from traditional 
districting principles alone triggered strict scrutiny, further 
proof that Act 1 “intentionally segregates citizens into voting 
districts based on their race,” Hays I, U.S. App. at 48a, 
emerged fi'om the “statistical evidence showing the racial 
composition” of the split parishes and cities. Id. at 3a. These 
data revealed that the legislature consistently divided parishes 
by placing most black registered voters (more than 82% of 
blacks in split parishes) in District 4, while placing most white



10

voters (nearly 77% of whites in split parishes) in the 
neighboring predominantly white Districts (3, 5, 6, and 7).  ̂
Registered white voters from these 12 split parishes who were 
shunted into the adjacent white districts outnumbered 
registered black voters from the same areas by more than ten to 
one (about 348,000 to 34,000).

An equally dramatic racial segregation of voters 
occurred in Louisiana’s major cities. Thus, “in its efforts to 
capture sufficient pockets of African-American voters,” the 
new District 4 “spli[t] four of the State’s largest cities, outside 
of New Orleans— Shreveport, Baton Rouge, Lafayette, and 
Alexandria.” Hays II, U.S. App. at 16a-17a. The legislature 
could not have created a second black-majority district 
otherwise since nearly 58% of the black citizens (53% of the 
black registered voters) in District 4 resided in these four cities. 
In each city, areas with large black majorities (73% to 80%) 
were placed into District 4 while areas with even larger white 
majorities (83% to 88%) were placed into in Districts 5, 6 and 
7. See J.A. at 228. In the split cities, thirteen times more 
registered white voters than their black counterparts ended up 
outside of District 4 (about 155,000 to 12,000).

The division of these cities in Act 1, as in Act 42, 
“destroy[ed] the common representation historically enjoyed 
by residents of the same municipality.” Hays I, U.S. App. at 
66a. Moreover, these cities comprised “four separate and 
major media centers,” thereby forcing congressional candidates 
“to spend substantial amounts of money and time” above what 
would be required if city boundaries had been respected. 
Hays II, id. at 169 n. 2.

 ̂ A ll demographic statistics cited in this brief are derived from the parish 
and city demographic data in PX4 and SX4. Split-parish registered voter 
data are available in tabular form in the Motion to Affirm at la-3 a; split-city 
total population and registered voter data are available in similar form at 
J.A. 228. All references to racial percentages refer to total population unless 
the text specifies registered voter data. The calculations are based on 
District 4 ’s total population of 603,000 and black population of 58.4%.



11

In light of these facts, the court readily found that the 
State’s ham-handed attempt to deny the obvious role of race in 
drawing Act 1 was simply not credible. The State put forward 
two race-neutral explanations for its plan: (1) a geographer 
“testified that District 4 was drawn along the Red River Valley 
demonstrating a commonality of interest,” and (2) witnesses 
claimed “that District 4 of the plan was modeled after the old 
eighth district in Louisiana.” Id. at 17a-18a. But the court 
dismissed these explanations, finding that “[t]he Red River 
valley theory is clearly a post hoc rationalization similar to the 
Mississippi River theory offered to support Act 42 and equally 
unbelievable.” Similarly, the court found that “[t]he State’s 
purported reliance on District Four’s similarity to the ‘old 
Eighth’ is mere pretext.” Id. at 4a-5a. Considering the whole 
record, the court found that “Act 1 can only be explained 
credibly as the product of race-conscious decisionmaking,” and 
that “[a]lthough the witnesses highlighted other factors that 
carved the contours of the awkward district, the fundamental 
factor driving Act I  was race.'' Id.

D. Louisiana’s Failure to Provide a Compelling 
State Interest.

The court’s determination that race was the 
“fundamental factor driving Act 1” triggered strict scrutiny, 
thereby requiring Louisiana to show that Act 1 is “narrowly 
tailored to further a compelling governmental interest.” Shaw, 
113 S. Ct. at 2832. As compelling governmental interests, 
Louisiana “contend[ed] that [1] incumbency politics, [2] the 
Voting Rights Act, and [3] remedying past legal and social or 
continuing social discrimination justified the racial segregation 
of voters.” Hays II, U S . App. at 7a. The latter two explicitly 
race-based justifications, of course, belied the State’s primary 
claim that Act 1 was not motivated by race.

The court noted “at the outset that incumbency politics 
cannot justify racial classifications.” Id. The court 
acknowledged, however, that “[ajdhering to federal anti- 
discrimination laws and remedying past or continuing



12

discrimination could constitute compelling governmental 
interests— i f  the State could ‘demonstrate a strong basis in 
evidence for its conclusion that remedial action was 
necessary.’” Id. (quoting City o f Richmond v. J.A. Croson Co., 
488 U.S. 469, 510 (1989) (plurality opinion)) (emphasis 
added). Ultimately, the court found that Louisiana had 
presented no such strong basis in evidence. Id. at 6a-7a.

The court accepted at face value the contention that 
“[t]he State Legislature believed that the Voting Rights Act 
compelled the creation of a second majority-minority district” 
and agreed that the United States Attorney General’s “threat [to 
withhold pre-clearance under VRA Section 5], whether issued 
by her or some middle level bureaucrat, was a matter of real 
concern to the State.” Id  at 7a n.3. While acknowledging that 
“[IJitigation in the District of Columbia, and everywhere else 
is expensive,” the court concluded that this “rea/ concern is not 
a compelling one.” Id. (emphasis added).

The court found, however, that “[njeither the State nor 
the Department of Justice offered any evidence suggesting that 
failure to create a second majority-minority district would 
either be a retrogression of minority strength or have an illegal 
purpose or effect.” Id. at 8a, 19a (Shaw, C.J., concurring). The 
court also rejected the State’s Section 2 defense. After reciting 
the “three conditions to a Section 2 ‘dilution’ claim” set forth 
by this Court in Thornburg v. Gingles, 478 U.S. 30, 50-51 
(1986), the court found that “[t]he evidence convincingly 
proves that the State cannot clear the first Gingles 
hurdle”—compactness. U.S. App. at 8a. Specifically,
“[djespite a minority population of approximately 30%, 
demographic distribution is simply too diffuse to generate a 
majority voting age population in any district outside of the 
Orleans Parish region.” Id. at 8a n.4.

Finally, the court dismissed Louisiana’s contention that 
Act 1 was otherwise necessary to remedy past or present 
discrimination. Both the majority and concurring opinions 
acknowledged the “sordid history of unconstitutional treatment



13

of black citizens in Louisiana” that remains “indelibly 
imprinted in our memories.” Hays II, U.S. App. at 9a-10a, 
20a-21a. Nonetheless, the court concluded that permitting the 
mere invocation of that history to justify Act 1 would “herald 
the demise of equal protection.” Id. at 10a. “Without concrete 
evidence of the lingering effects of past discrimination or 
continuing legal prejudice in voting laws and procedures, 
coupled with specific remedies, we cannot agree that the re­
segregation of Louisiana by racially configured voting districts 
is warranted.” Id. In short, the district court invalidated Act 1 
because “defendants utterly failed to demonstrate how 
gerrymandering could remedy the problems asserted as 
compelling interests.” Id. at 10a&n.6.

SUMMARY OF ARGUMENT

This case is not about the topology of unusually-shaped 
districts, but about the authority of a State to classify its 
citizens by race. In redistricting, as with other forms of state 
action, intentional racial classification triggers strict scrutiny.

Recognizing that Act 1 must fail under traditional 
Fourteenth Amendment analysis, appellants endeavor first to 
avoid strict scrutiny altogether and then to dilute its traditional 
rigor. They argue variously that this Court’s decisions, the 
Fourteenth Amendment itself, and the Voting Rights Act 
exempt redistricting from strict scrutiny and that racial 
gerrymanders are no different than run-of-the-mill political 
gerrymanders. Moreover, even if the traditional equal 
protection analysis applies, they argue, the test must be what 
the State “reasonably” or “legitimately” believed the Voting 
Rights Act required, not what the Act actually required. 
Appellants’ attempts to avoid strict scrutiny altogether and to 
dilute its traditional rigor are neither legally nor factually 
sound.

I. A. Not so many years ago, a respected commentator 
treated as self-evident the proposition that for government to 
classify citizens by race is “illegal, immoral, unconstitutional, 
inherently wrong, and destructive of democratic society.”



14

Alexander M. Bickel, The Morality o f Consent 133 (1975). 
But today, the Solicitor General not only admits that race 
played the overriding role in Act 1; he trumpets that role, 
seeking a blanket redistricting exemption from strict scrutiny 
to allow the Justice Department to continue its racial 
engineering under the cloak of the VRA. This Court in Shaw, 
however, already rejected the Solicitor General’s argument that 
race-based redistricting “does not give rise to an equal 
protection claim, absent proof that it has the intent and effect 
of diluting the majority’s voting strength.” U.S. Br. at 14. And 
neither the Fourteenth Amendment nor the Voting Rights Act, 
properly construed, enshrine group rights over individual 
rights, or carve out an exemption from strict scrutiny for 
intentional racial classification in redistricting.

B. Shaw thus stands in the mainstream of this Court’s 
equal protection jurisprudence. While Act I ’s bizarre District 
4 fails even the Solicitor General’s purely aesthetic test, it is 
Louisiana’s intentional classification of its voters by race—not 
the shape of District 4 per se—that is constitutionally 
proscribed. After three separate trials, the court found that 
Louisiana had violated traditional districting principles by 
splitting parishes and cites along racial lines and that the 
fundamental factor driving Act 1 was race"' Hays II, U.S. 

App. at 3 a. Appellants have not shown that these findings were 
clearly erroneous. Nor have they demonstrated that the court 
erred in dismissing Louisiana’s “old Eighth” justification in 
light o f evidence that District 4 was built by selecting black 
voters and excluding white voters from prior versions of the 
“old Eighth” district and then adding two heavily black areas 
that never were part of any of the former versions of the “old 
Eighth.” Pretext aside. Act 1 represents nothing less than the 
ascendancy of a “separate but better o ff’ policy for both 
Louisiana’s black and  white citizens. Wright v. Rockefeller, 
376 U.S. 52, 62-67 (1964) (Douglas, J., dissenting).

n. A. Appellants’ efforts at diluting the rigor of strict 
scrutiny fare no better. Their claimed need for “some breathing



15

room,” La, Br. at 35, or a “margin of safety,” U.S. Br, at 27, 
between what the Voting Rights Act requires and what the 
Constitution forbids has particularly far-reaching implications. 
Changing the test from what the Voting Rights Act actually 
required to what Louisiana “reasonably” or “legitimately” 
believed it required would create an unprecedented “good 
faith” defense in constitutional cases whenever a State claims 
to have been “reasonably” mistaken about the requirements of 
federal law. The ancient principle that ignorance of the law is 
no defense and this Court’s unbroken practice of adjudicating 
constitutional violations on the merits, without regard to good 
intentions, both preclude any such contention. The asserted 
need for “breathing room” to comply with the Voting Rights 
Act, therefore, cannot justify the constriction of 
constitutionally-guaranteed rights, reversing the traditional 
canon that statutes are construed to avoid conflicting with the 
Constitution, not vice-versa.

B. The court below made findings sufficient to 
encompass even appellants’ unprecedented “reasonable belief’ 
theory by concluding that Louisiana “did not have a basis in 
law or fact to believe that the Voting Rights Act required the 
creation of two majority-minority districts.” U.S. App. at 9a 
(emphasis added). Appellants offer no grounds for disturbing 
the lower court’s conclusions concerning either Sections 5 or 
2 of the Voting Rights Act, or concerning appellants’ 
farfetched demand that the federal courts guarantee a “fair 
allocation of political power between white and nonwhite 
voters.” U.S. Br. at 34; La. Br. at 38. The court below did not 
clearly err in finding no evidence that “the failure to create a 
second majority-minority district would be either a 
retrogression of minority [voting] strength or have an illegal 
purpose or effect.” H aysII, U.S. App. at 8a-9a, The same is 
true of VRA Section 2. The court correctly held that Louisiana 
failed to show that Section 2 required a second 
majority-minority district since “[t]he evidence convincingly 
proves that the State cannot clear the first Gingles hurdle.” Id. 
at 8a. Nor did the court err in refusing to go beyond the



16

Voting Rights Act to find a compelling interest, especially 
absent “concrete evidence of the lingering effects of past 
discrimination or continuing legal prejudice in voting laws and 
procedures.” /(li. at 10a.

ARGUMENT
Before turning to the merits, it is appropriate to respond 

briefly to Louisiana’s contention that plaintiffs lack Article III 
standing. La. Br. at 41-42 (citing Lujan v. Defenders o f  
Wildlife, 112 S. Ct. 2130 (1992)). Louisiana argues that 
plaintiffs suffered no “injury in fact” and have identifed no 
“possible personal benefit they would derive from a favorable 
decision.” Id  at 41. But that argument misperceives the nature 
of the injury alleged. Plaintiffs’ alleged injury derives from 
“the simple command that the Government must treat citizens 
as individuals, not as simply components of a racial [or] 
sexual. . . class.” Metro Broadcasting v. FCC, 497 U.S. 547, 
602 (1990) (O’Connor, J., dissenting). This injury long has 
sufficed for Article III standing, see, e.g., Heckler v. Mathews, 
465 U.S. 728, 739 (1984); J.E.B. v. Alabama ex rel T.B., 
114 S. Ct. 1419 (1994), regardless of the race of the person 
claiming standing, see, e.g.. Powers v. Ohio, 499 U.S. 400 
(1991). As the court below explained, “[wjhen voting districts 
are carefirlly planned like racial wards, an individual injury 
occurs.” HaysII, U.S. App. at 1 la. See also Shaw, 113 S. Ct. 
at 2827-28.

Nor does it matter that plaintiffs reside in District 5, not 
District 4. Act 1 created District 4 by classifying voters by 
race and placing them in District 4 or a neighboring district on 
that basis. Plaintiffs may not have a right to be placed into any 
particular district, but they do have a right not to be placed into 
or excluded from a district because of the color of their skin. 
See Powers, 499 U.S. at 409 (“An individual juror does not 
have a right to sit on any particular petit jury, but he or she 
does possess the right not to be excluded from one on account 
o f race.”). Here, plaintiffs’ goal has always been to cast their 
votes as part o f an electorate not segregated by race; to that



17

end, it matters not whether a particular plaintiff is white (Hays 
and Stokley), black (Adams) or Asian-American (Singleton). 
In short, plaintiffs have been harmed by being classified on the 
basis of their race, just like the plaintiflFs challenging the 
“separate but equal” schools in Brown v. Board o f Education, 
347 U.S. 483 (1954).

I. ACT 1 IS SUBJECT TO STRICT SCRUTINY.
If any constitutional principle of the last half-century is 

firmly established, it is this: state action reflecting a suspect 
classification or infiinging a fundamental right must be 
subjected to strict scrutiny. San Antonio Indep. School Dist. v. 
Rodriguez, 411 U.S. 1, 16-17 (1973); cf. United States v. 
Carolene Prod, 304 U.S. 144, 153 n.4 (1938). This case 
involves both the historically most suspect classification— 
race—and the most important civic right—the right to vote. 
See, e.g, Shaw, 113 S. Ct. at 2824; Reynolds v. Sims, 377 U.S. 
533, 535 (1964). Yet, while openly admitting that Louisiana 
“deliberately used race in a purposeful manner,” U.S. Br. at 14; 
La. Br. at 14, in a context that intimately affects the 
fundamental right to vote, appellants steadfastly resist 
subjecting Act 1 to strict scrutiny.

Having set out to overturn fundamental constitutional 
precepts and enshrine a regime of group entitlement in 
redistricting, appellants find themselves without ground to 
stand on. They offer four arguments for insulating race-based 
districting from strict scrutiny: (1) this Court in United Jewish 
Orgs. o f Williamsburgh, Inc. v. Carey, 430 U.S. 144 (1977) 
supposedly carved out a “redistricting” exception to the 
traditional Fourteenth Amendment analysis, U.S. Br. at 10, 14; 
(2) strict scrutiny would be “inconsistent with the central 
purpose of the Equal Protection Clause” because the traditional 
“principle of equal treatment” cannot be “fully effectuated” by 
“considering each person as an individual,” id. at 15; (3) in 
redistricting. States “must be fi-ee to give the same 
consideration to the claims of racial minority groups . . . [as] 
any other interest group,” id. at 16; and (4) relaxed scrutiny is



18

appropriate in light of the “legal context” of redistricting, 
owing to “Congress’s judgment that States should be conscious 
of the racial consequences of their redistricting decisions.” Id. 
at 18-19.

These arguments have no basis in principle or 
precedent. Indeed, if applied broadly in race-discrimination 
cases, they would turn current jurisprudence upside down. For 
if only group results mattered, the public schools would still be 
segregated under a “separate but equal” regime, which by 
definition (at least in theory) treated “groups” the same. But 
see Brown v. Board o f Education^ 347 U.S. 483 (1954). 
Indeed, appellants’ theory, if applied across the board, would 
mean that intentional segregation claims would fail absent 
proof of disparate results. But see Loving v. F/rgm/a, 388 U.S. 
1 (1967) (prohibition of interracial marriage); Hamm v. 
Virginia Bd. o f Elections, 230 F. Supp. 156 (E.D. Va.), a ff’d  
mem., 379 U.S. 19 (1964) (segregated voting registration and 
tax records). The Fourteenth Amendment guarantees, not 
equality of results among groups, but rather equality of 
treatment for individuals— in redistricting as elsewhere.

A. Where Race Is a “Motivating Factor,” State 
Action Must be Subjected to Strict Scrutiny 
Unless the Same Result Would Have 
Obtained Without Regard to Racial 
Considerations.

This Court’s opinion in Shaw strongly reaffirmed that 
race-based redistricting is like any other form of official racial 
discrimination and subject to the same well-established 
analysis: “a plaintiff challenging a reapportionment statute 
under the Equal Protection Clause may state a claim by 
alleging that the legislation, though race-neutral on its face, 
rationally cannot be understood as anything other than an 
attempt to separate voters into different districts on the basis of 
race, and that the separation lacks sufficient jusitification.” 
113 S. Ct. at 2328. Shaw relied on a long line of cases 
involving racial classifications, fi-om Tick Wo v. Hopkins,



19

118 U S. 356 (1886), through Justice Harlan’s dissent in 
Plessy V. Ferguson, 163 U.S. 537, 539 (1896), to modem 
expressions of race neutrality in Gomillion v. Lightfoot, 364 
U.S. 339 (1960), Wright V. Rockefeller, and Loving v. Virginia. 
These precedents underscore that classifications of citizens 
solely on the basis of race ‘“ are by their very nature odious to 
a free people,’” Shaw, 113 S. Ct. at 2824 (quoting 
Hirabayashi v. United States, 320 U.S. 81 (1943)), and that 
even an ostensibly race-neutral statute may “threaten to 
stigmatize individuals by reason of their membership in a racial 
group and to incite racial hostility.” Id. (citing Croson, 
488 U.S. at 493 (plurality opinion)).

As these cases recognize, “[t]he central purpose of the 
Equal Protection Clause . . .  is the prevention of official 
conduct discriminating on the basis of race.” Shaw, 113 S. Ct. 
at 2824 (quoting Washington v. Davis, 426 U.S. 229, 239 
(1976)) (emphasis added). By noting that only those plans that 
“rationally cannot he understood as anything other than an 
attempt to segregate voters,” 113 S. Ct at 2328 (emphasis 
added), Shaw simply reaffirmed this Court’s traditional 
approach for resolving claims of official racial discrimination.

Arlington Heights, for example, the Court held that an equal 
protection claim exists where state action does not facially 
discriminate along racial lines if that action is ''unexplainable 
on grounds other than race.” Washington, 429 U.S. at 266 
(emphasis added).

Under this traditional analysis, state action is subjected 
to strict scmtiny when a plaintiff establishes that race is “a 
motivating factor” behind the State’s decision and the State 
fails to establish that “the same decision would have resulted 
even had the impermissible purpose not been considered.” 
Arlington Heights, 429 U.S. at 266, 271 n.21. Thus, “[o]nce 
racial discrimination is shown to have been a ‘substantial’ or 
‘motivating’ factor behind enactment of the law, the burden 
shifts to the law’s defenders to demonstrate that the law would 
have been enacted without this factor.” Hunter v. Underwood,



20

471 U S. 222, 228 (1985) (citing Mt. Healthy City School 
District v. Doyle, 429 U.S. 274, 287 (1977)).

Contrary to appellants’ assertions, this Court never has 
suggested that redistricting cases are impervious to this 
traditional equal protection analysis; indeed, that traditional 
analysis was partially derived from  redistricting cases. See 
Arlington Heights, 429 U.S. at 265-266 (relying on Wright v. 
Rockefeller and Gomillion v. Lightfoot). The court below, like 
other courts reviewing redistricting plans after Shaw, thus 
properly applied the established analysis of Arlington Heights 
and subsequent cases. See Hays I, U.S. App. at 44a-57a; 
Shaw V. Hunt, 861 F. Supp. 408, 427-28 (E.D.N.C. 1994); 
Vera v. Richards, 861 F. Supp. 1304, 1332-33 (S.D. Tex. 
1994); Johnson v. Miller, 864 F. Supp. 1354, 1372-73 (S.D. 
Ga. \99A),prob. juris, noted, 115 S. Ct. 713 (Jan. 6, 1995).

1. Appellants never cite Gomillion,
or Wright. The reason for that omission is hardly a 
mystery: they seek to depict this case as no more than a 
redistricting case, not a race case. According to the Solicitor 
General, this Court in UJO exempted redistricting from the 
traditional analysis applicable to racial classifications when 
“[f]ive Justices specifically agreed that the intentional creation 
o f majority-minority districts does not give rise to an equal 
protection claim, absent proof that it has the intent and effect 
of diluting the majority’s voting strength.” U.S. Br. at 14. 
Under this approach, UJO would establish a general rule that 
individual equal protection claims are not cognizable in 
redistricting cases except insofar as a State fails to adhere 
“traditional districting principles.” Id. at 15. 5'/?oh' would thus 
stand as an exceedingly narrow (and anomalous) exception to 
UJO's general rule.

This argument might have more force had it not been 
explicitly rejected by the Court in Shaw. The five Justices in 
UJO cited by the Solicitor General did not address equal 
protection claims generally, but rather those claims brought 
“under the framework the Court previously had adopted for



21

vote-dilution cases.” Shaw, 113 S. Ct. at 2829. UJO “did not 
purport to overrule Gomillion or W righf nor did it limit “non­
vote-dilution” equal protection claims to cases where 
“traditional districting principles” have been ignored. Id. at 
2830. Rather, it preserved claims that a reapportionment plan 
may be “so irrational on its face that it immediately offends 
principles of racial equality.” Id. at 2829.

Far from carving out an exception, therefore, Shaw 
simply applied the general rule that race-based classifications 
are subject to strict scrutiny, even in redistricting cases. 
113 S. Ct. at 2830-32. While Shaw did not address all possible 
ways of proving such a claim, nothing in the Court’s opinion 
suggests that the traditional analytical framework o f Arlington 
Heights was rejected.

2. The Solicitor General next makes an even broader 
argument based explicitly on an unprecedented theory of 
“group rights” under the Fourteenth Amendment. Treating the 
intentional creation of majority-minority districts as suspect, he 
argues, “would be inconsistent with the central purpose of the 
Equal Protection Clause.” U.S. Br. at 15. The usual “principle 
of equal treatment” for individuals thus must give way because 
“[rjedistricting . . . presents a different situation” in which 
“States do not treat people as individuals, but as members of 
groups.” Id  Under this view, Shaw is limited to those districts 
“much more unusual in shape” than politics normally permits 
since only such “highly irregular majority-minority districts 
may convey the message to the public that race has submerged 
all other redistricting values.” Id. at 18, 21 (emphasis added).

No authority is cited for this theory that only 
aesthetically-challenged districts “convey messages” that 
produce constitutional injury.^ The injury here flows not from

 ̂ One may question how often voters form their perceptions about whether 
the State has been even-handed by analyzing district shapes per se. Voters 
are much more likely to know when their city or parish has been split in 

(continued...)



22

district maps themselves, but from the intentional segregation 
of citizens into different districts based on their race.

Nor does the Fourteenth Amendment guarantee equal 
results for racial or other groups, to the contrary, it explicitly 
guarantees “equal protection of the laws” to individuals (“any 
person”). To say that redistricting is a special exception where 
only group rights apply is to ignore—indeed, to turn upside 
down—Judge Wisdom’s observation that “the ballot and the 
voting booth” is the “one area above all others where the 
Constitution [must be] color-blind.” Anderson v. Martin, 
206 F. Supp. at 705. Far from dismissing individual rights in 
this context, this Court has long recognized racial vote-dilution 
claims as an extension of individual rights, see, e.g., 
Whitcomb v. Chavis, 403 U.S. 124 (1971); White v. Regester, 
412 U.S. 755 (1973), without abandoning the “Lincoln 
tradition” that it is “the individual [who] is important, not his 
race, his creed, or his color.” Shaw, 113 S. Ct. at 2827 {quoting 
Wright, 376 U.S. at 66 (Douglas, J., dissenting)).

The Solicitor General’s group-rights theory strikes at 
the heart of the “Lincoln tradition.” Not only redistricting, but 
all race-based classification can readily be deemed ^'group- 
based.” Racial classifications offend basic constitutional 
values precisely because they treat citizens as members of 
groups, not as individuals. Any suggestion, therefore, that 
intentional racial segregation in redistricting is constitutionally 
permissible (indeed, possibly constitutionally required) would 
turn the Fourteenth Amendment on its head.

 ̂ (...continued)
two, with most black voters in one district and most white voters in another. 
And, whether black or white, voters also are likely to be suspicious of 
otFicials who say, or imply, that they are better off when separated along 
racial lines. That is particularly true of persons like plaintiffs who are 
engaged in grass-roots political activity and who recognize immediately the 
diminished opportunity for coalition-building across racial lines as the 
electorate is divided by race.



23

3. Appellants nonetheless argue that a “group rights” 
approach here is compelled by Davis v. Bandemer, 478 U S. 
109 (1986). When engaged in redistricting, they contend, 
States invariably must “reconcile the competing claims” made 
by a whole range of interests including “racial, ethnic, and 
religious groups.” U.S. Br. at 16; La. Br. at 17 (citing Z)av/5, 
478 U.S. at 147 (O’Connor, J., concurring in judgment)). 
Consequently, appellants argue contend that States must 
remain “free to give the same consideration to the claims of 
racial minority groups . . . [as] any other interest group.” U.S. 
Br. at 16.

Davis, however, will not bear appellants’ sweeping 
interpretation. Indeed, far from compelling a “group rights” 
approach, Justice O’Connor’s opinion rejected “any group 
right outside the context of racial discrimination.” 478 U.S. at 
151. And even there, her opinion carefully noted that it is the 
individual rather than the group who is protected because of 
the “stronger nexus between individual rights and group 
interests” in that context. Id. at 151-152. Dav/^thus actually 
underscores that the State’s ordinarily wide latitude in 
redistricting does not extend to race-based redistricting. 
Instead, racial classifications remain inherently suspect in the 
redistricting context because, while “[pjolitical affiliation is the 
keystone of the political trade . . . [r]ace, ideally, is not.” UJO, 
430 U.S. at 171 n. 1 (Brennan, J., concurring); see also Shaw, 
113 S. Ct. at 2828 (“[Njothing in our case law compels the 
conclusion that racial and political gerrymanders are subject to 
precisely the same constitutional scrutiny. In fact, [the case 
law] would seem to compel the opposite conclusion” ).

Shaw’s reaffirmation of individual rights in 
redistricting, of course, does not proscribe any and all 
consideration of race in that context. Indeed, Shaw emphasized 
that “this Court never has held that race-conscious state 
decisionmaking is impermissible in all circumstances.” 
113 S. Ct. 2824. “[A] legislature always is aware of race when 
it draws district lines”; “when members of a racial group live



24

together in a community,” a plan taking that into account may 
reflect wholly legitimate purposes.” Id. at 2826. Members of 
one race can but do not necessarily form a cohesive and 
compact community. As Shaw emphasized, while race may be 
a legitimate consideration in helping to detenmne the 
boundaries of a particular community, the Constitution 
emphatically rejects the notion that the races per se constitute 
different communities;

A reapportionment plan that includes in one district 
individuals who belong to the same race, but who are 
otherwise widely separated by geographical and 
political boundaries, and who may have little in 
common with one another but the color of their skin, 
bears an uncomfortable resemblance to political 
apartheid. It reinforces the perception that members of 
the same racial group—regardless of their age, 
education, economic status, or the community in which 
they live—think alike, share the same political 
interests, and will prefer the same candidates at the 
polls.

113 S. Ct. at 2827.
The presence of concentrated black (or white) 

populations, therefore, may be relevant just like the “traditional 
north-south, ethno-religious, economic and historical 
distinctions in Louisiana.” U.S. App. at 17a. (Shaw, C.J., 
concurring). But States may not make a suspect classification 
the touchstone for an electoral district—for example, if 
Louisiana were deliberately to set out to create a predominantly 
Roman Catholic district.

KiryasJoel Village School District v. Grumet, 114 S. 
Ct. 2481 (1994), although decided under the Religion Clauses 
o f the First Amendment, is instructive on this point. The 
Satmar Hasidic sect of Judaism incorporated the Village of 
Kiryas Joel under a general New York law permitting “almost 
any group of residents” to form their own municipal 
government. Id. at 2485. But the special legislation that



25

created the Kiryas Joel School District was, by the very fact 
that it applied only to the village of Kiryas Joel, considered to 
have been “purposely drawn to separate Satmars from non- 
Satmars.” Id. 2494. It was the State’s action in endorsing this 
pre-existing religious division that violated the First 
Amendment. Id. at 2504 (Kennedy, J., concurring in the 
judgment). Were New York to “allow all villages to operate 
their own school districts”—and thus remove religion as the 
force driving the legislative classification— state support for 
educating Kiryas Joel’s handicapped students would have been 
constitutionally permissible. Id. at 2498 (O’Connor, J., 
concurring in part).

Kiryas Joel and traditional Fourteenth Amendment 
cases like Arlington Heights and Hunter v. Underwood thus 
answer Louisiana’s hyberbolic claim that “[a] blanket 
application of strict scrutiny [to redistricting would] render 
presumptively unconstitutional countless white-majority 
districts as well as black majority districts.” La. Br. at 16. 
Most districts nationwide comprised of a majority of one race 
simply reflect existing communities, and were not “motivated” 
by race. Thus, under Shaw, strict scrutiny is the exception, not 
the rule—just as it has proven to be the exception, not the rule 
injuiy-selection cases. See, e.g, Batson v. Kentucky, 476 U.S. 
79 (1986); Hernandez v. New York, 500 U.S. 352 (1991). Most 
post-iS'/joH' decisions, thus, have applied strict scrutiny only to 
a single district, not to all districts.'*

4. Appellants finally argue that applying traditional 
equal protection analysis to redistricting would “give 
[jinsufficient weight to Congress’s judgment that States should 
be conscious of the racial consequences of their redistricting

■' In three of the four cases applying strict scrutiny, the test was applied to 
only one district. Hays; Shaw v. Hunt, 861 F. Supp. 408,427-28 (E.D.N.C. 
1994); Johnson v. Miller, 864 F. Supp. 1354, 1372-73 (S.D. Ga. 1994), 
prob. juris, noted, 115 S. Ct. 713 (Jan. 6, 1995). Even in Texas, only three 
of that State’s thiily' districts were subjected to strict scrutiny. Vera v. 
Richards, 861 F. Supp. 1304, 1332-33 (S.D. Tex. 1994).



26

decisions.” U.S. Br. at 18-19. The Voting Rights Act, they 
suggest, sets the “legal context” in which such state action is to 
be evaluated. Applying strict scmtiny to race-based 
redistricting, on this view, would “place States in a legal 
straightjacket,” or make “compliance with a valid act of 
Congress immediately . . . suspect under the Fourteenth 
Amendment.” Id. at 19; La. Br. at 18. But no penumbra 
emanating from the Voting Rights Act, or any other federal 
legislation, can be invoked to justify state discrimination on the 
basis of race.

It is misleading to conflate Congress’ authority to 
remedy perceived racial discrimination (power expressly 
conferred by Section 5 of the Fourteenth Amendment) with 
state authority to impose race-based classifications (power 
expresslywfrfejfr'ovi'n by the Fourteenth Amendment). See, e.g., 
Metro Broadcasting, 497 U.S. at 565-566; UJO, 430 U.S. at 
169 (Brennan, J., concurring). As this Court only recently 
emphasized in Shaw, the VRA does not give States “carte 
Z»/owc/ie to engage in racial gerrymandering.” Shaw, 113 S. Ct. 
at 2831 (emphasis added). When a State classifies its citizens 
by race, only the most “searching judicial inquiry” is 
appropriate because otherwise “there is simply no way of 
determining what classifications are ‘benign’ or ‘remedial’ and 
what classifications are in fact motivated by illegitimate 
notions of racial inferiority or simple racial politics.” Shaw, 
113 S. Ct. at 2824 (quoting Croson, 488 U.S. at 493 (plurality 
opinion)),

B. The District Court Properly Determined 
That Act 1 Triggered Strict Scrutiny.

Even if appellants’ reading of Shaw were correct and 
the traditional Fourteenth Amendment analysis did not apply 
in redistricting, this case would still call for strict scrutiny. The 
Solicitor General suggests that the constitutional violation at 
issue in Shaw and here is based entirely on a district’s shape. 
Under this view, four considerations are relevant in identifying 
a district that triggers strict scrutiny: (1) the district must be



27

visually bizarre—“much more unusual in shape than districts 
drawn by the State to accommodate other political interests”; 
(2) it must be “extremely irregular” (as opposed to “somewhat 
irregular”), i.e ., it must “depar[t] dramatically from the State’s 
traditional redistricting practices”; (3) the district must be 
irregular “on its face,” i.e., without regard to “a subjective 
inquiry into the legislature’s intent”; and (4) it is the district as 
a whole—and not “isolated segments”—that must be bizarre. 
U.S. Br. at 21-22. Louisiana suggests a similar “map only” 
test. La. Br. at 19-20.

Appellants never explain precisely what constitutional 
principles underlie these tests nor how they would work in 
practice. Their wholly-aesthetic approach, indeed, would 
apparently exclude previously-relevant considerations such as 
statistical data on the racial composition underlying district 
lines, see, e.g., Gomillion, 364 U.S. at 341; Wright, 376 U.S. at 
54-55, as well as “frank concession[s]” of a specific intent to 
segregate voters by race under a “separate but better off” 
theory. Wright, 376 U.S. at 61-62 (Douglas J., dissenting). 
Appellants’ fixation on district topology also appears to 
contradict this Court’s observation in Shaw that a claim can be 
based on evidence that “a State concentrated a dispersed 
minority population in a single district by disregarding 
traditional districting principles,” including “respect for 
political subdivisions,” 113 S. Ct. at 2827—a determination 
that often requires consideration of facts besides a district’s 
shape.’

The closest appellants come to addressing these 
contradictions is the Solicitor General’s statement that ''Shaw 
mandates an objective inquiry into whether a district conveys

’ For example, it may be that none of the districts depicted in the maps 
appended to Louisiana’s brief would require strict scrutiny under appellants’ 
reading of Shaw. La. Br. at 26 n.31. But this is true only because Louisiana 
has provided sparse demographic data; whether these districts conform to 
the State’s historic districting practices is not apparent from the maps 
themselves. Id.



28

the impression that racial considerations have been pursued to 
the exclusion of other redistricting values, not a subjective 
inquiry into the legislature’s intent.” U.S. Br. at 23. Yet the 
court below undertook precisely such an objective inquiry. If 
the court had deemed “[t]he State’s acknowledgement that it 
intended to create a majority-minority district,” id. at 24, to be 
dispositive in and of itself, the three evidentiary hearings and 
the extensive discussion of facts in court’s two opinions would 
have been entirely superfluous.

The district court’s comprehensive inquiry led it to 
conclude that the “bizarre and irregular shape of District Four 
raised an inference Louisiana Legislature classified its citizens 
along racial lines and segregated them into voting districts 
accordingly”—an inference confirmed by “[t]he statistical 
evidence showing the racial composition of the districts.” U.S. 
App. at 3 a. Under Gingles, such determinations are 
“particularly dependent upon the facts of each case,” and call 
for “an intensely local appraisal” benefitting from the “trial 
court’s particular familiarity with the indigenous political 
reality.” 478 U.S. at 78-79. The court below did not clearly err 
either in appraising plaintiffs’ prima facie case, or in finding 
that appellants failed to rebut it.

1. Plaintiffs Established A P rim a  F acie  
Case That Racial Considerations 
Were The “Motivating Factor” 
Behind Act 1.

Contrary to appellants’ assertion, plaintiffs did not carry 
their burden below “merely [by] the presentation of a map 
depicting the congressional district boundaries.” La. Br. at 40 
n.47.® Rather, plaintiffs showed, among other things, that

* Plaintiffs presented the following types of evidence before the trial on 
Act 1: (1) maps of congressional districts in Louisiana since 1963 (PX 3); 
(2) statistical evidence showing the racial composition of each of Act 1 ’s 
seven districts and of each of its many split parishes and cities (PX 4); (3) 

(continued...)



29

Act I ’s District 4 divided twelve of its fifteen parishes— the 
most “fundamental unit[s] of societal organization in the 
history of Louisiana.” Hays I, U.S. App. at 65a. District 4’s 
twelve split parishes constituted: (1) three times more split 
parishes (previous maximum—four) than any single previous 
congressional district; see PX 3; USX 8 Table 1; and (2) almost 
twice as many split parishes (previous maximum— seven) as 
any entire congressional districting plan  in Louisiana history. 
U.S. Br. 25. While the United States may not consider this “an 
extraordinary departure from the State’s usual redistricting 
practices,” U.S. Br. at 26, the court below did not clearly err in 
deciding otherwise. H aysII, U.S. App. at 3a.

Appellants insist that “parish . . . lines have never been 
sacrosanct in congressional redistricting” and that Louisiana 
has “split parishes and cities for a variety of purposes.” U.S. 
Br. at 25; La. Br. at 27-28. But “the statistical evidence 
showing the racial composition of the districts,” Hays II, U.S. 
App. at 3a, plainly reveals why these particular parishes were 
split. Without exception, each time the boundary of District 4 
split a parish, blacks fell disproportionately into District 4, and 
whites disproportionately into neighboring districts. See Mot. 
to Affirm at la-3a. This parish-splitting often assumed 
Gomillion-\ke. proportions. In Iberville Parish, for example, an 
uncouth multi-sided figure fences all but 59 of that parish’s 
more than 9000 black registered voters into District 4. Id. at 
3a, 18a.

The role that race played in dividing the District 4 ’s 
cities is even more blatant. Of the seventeen cities and towns 
divided by Act 1, fourteen were strung along District 4 ’s 
borders. J.A. 228. Without exception, each of these fourteen 
split municipalities placed predominantly black areas into

‘ (...continued)
maps of the split cities (PX 5); (4) maps of the split parishes (App. A, Mot. 
for Prelim. Inj.); (5) the record of the Act 1 legislative proeeedings (App. B- 
E, to Mot. for Prelim. Inj ); and (6) the full record from the two previous 
evidentiary hearings.



30

District 4; Districts 3, 5, 6 and 7 absorbed the remaining white 
neighborhoods. Id. Only 22 of the 1756 voters in District 4 
from the town of New Roads (in Pointe Couple Parish) are 
white, but voters from the same town placed in District 6 are 
almost 89% white (1510 white compared to 193 black).

The same four geographically-dispersed, major cities 
that anchored the “Zorro” district in Act 42—Alexandria, 
Baton Rouge, Lafayette and Shreveport—again provided the 
lion’s share (nearly 58%) of District 4’s black population. 
Three of these cities—Alexandria, Lafayette and
Shreveport—had never been split in any previous 
congressional redistricting plan. PX 3. In each of these four 
cities, the neighborhoods assigned to District 4 were 
overwhelmingly (73-80%) black, while the nearby areas placed 
in Districts 5, 6, and 7 were overwhelmingly (83-88%) white. 
See J.A. at 228.”' Again, the Solicitor General may not believe 
that these facts reveal “an extraordinary departure from the 
State’s usual redistricting practices,” U.S. Br. at 25-26, but the 
court below did not clearly err in finding otherwise. Hays II, 
U.S. App. at 3a.

2. Appellants FaUed to Rebut Plaintiffs’ 
P rim a  F acie  Case.

The departures from Louisiana’s traditional districting 
principles described above established a prima facie  case of 
racial discrimination (even under the Solicitor General’s test), 
which appellants failed to rebut at trial. HaysII, U.S. App. at 
3a. Far from providing a credible race-neutral justification for 
District 4’s boundaries, appellants’ evidence only confirmed 
that race controlled Act I ’s creation.

Appellants continue to maintain that the (supposed) 
resemblance of District 4 to prior configurations of Louisiana’s

’ And as the city maps of Shreveport and Alexandria reveal, App. 1 a, 4a, 
the shadow cast by racial gerrymandering along the boundaries o f these 
cities again flouted the requirement of contiguity. See Hays I, U.S. App. 
64a-65a (“Such tokenism mocks the traditional criterion of contiguity.”).



31

Eighth congressional district is “[t]he most salient fact in this 
case.” U.S. Br. at 22; La. Br. at 21-23. But there can be no 
doubt on this record that from start to finish, District 4 was 
based on race. The State’s witness, Mr. Koepp, “was asked to 
look at the old Eighth District” because it had “the highest 
minority population district in the state other than the minority 
district number two.” 7/21/94 Trial Vol. 2 at 11. From that 
point on, parishes and parish parts were added or subtracted, 
always with the apparent aim of blackening District 4 and 
whitening adjacent districts.

The end result departed dramatically from any of the 
many versions of the “old Eighth.” No previous configuration 
of the “old Eighth” ever split more than four parishes; District 
4 split twelve. See PX3. Likewise, no version of the “old 
Eighth” ever included fewer than twelve fu ll  parishes; District 
4 included only three. Id. The notion that District 4 bears any 
meaningful resemblance to the “old Eighth” falls apart entirely 
upon consideration of District 4’s constituent building blocks.*

At one time or another, 23 of Louisiana’s 64 parishes 
were included in one or more versions of the “old Eighth.” See 
maps at PX3. Only five whole parishes—^Rapides, Avoyelles, 
Pointe Coupe, West Baton Rouge, and Iberville—were always

* The Solicitor General asserts that District 4 “most closely resembles 
District 8 in the congressional plans used in 1967-70 and 1971-72.” U.S. 
Br. at 22. But six entire parishes included in those versions of the “old 
Eighth” appear nowhere in District 4. Those parishes and their respective 
white populations are as follows: Avoyelles (72%), Allen (77%), 
Beauregard (84%), Grant (85%), LaSalle (90%), and Vernon (74%). More 
revealing still is the proportion of District 4 ’s population that falls outside 
the boundaries o f these versions o f the “old E i^ th .” For example, nine of 
District 4 ’s fifteen parishes fall outside the boundaries o f District 8 from the 
late 1960s (these nine parishes are Caddo, Red River, De Soto, St. Martin, 
St. Landry, Lafayette, Ascension, East Baton Rouge, and Evangeline). 
These parishes— f̂ully outside the “old Eighth” of the late 1960s— are home 
to 72% o f District 4 ’s total population and 80% of District 4 ’s black 
population. The figures are similar for the “old Eighth” from the early 
1970s.



32

included entirely within the “old Eighth.” If District 4 truly 
were intended to resemble the “old Eighth,” then surely it 
would have retained these five core parishes. But in fact, it 
retained only one: West Baton Rouge. Another parish, 
Avoyelles (72% white) was excluded altogether. The 
remaining three parishes were only partially included, with 
their populations predictably divided along stark racial lines. 
The portions of these three parishes included in District 4 are 
majority-black, while the excluded portions are 86% white.

The same pattern emerges in the parishes added to the 
“old Eighth.” Five of District 4’s fifteen parishes—Caddo, 
DeSoto, and Red River at the northwest tip, and St. Martin and 
Lafayette in the south-central part—^were never included in any 
configuration of the “old Eighth.” DeSoto and those parts of 
Caddo and Red River parishes that allow District 4 to reach to 
Shreveport have mostly (53 %) black voters, while voters in the 
excluded parts are predominantly (88%) white. Likewise, the 
portions of St. Martin and Lafayette included in District 4 are 
about 57% black, while the fenced-out portions of these 
parishes are about 85% white. Overall, the areas added from 
these five parishes—never part of any version of the old 
Eighth—contain approximately 36% of District 4 ’s black 
population.

The State’s “Red River valley theory” was similarly 
unavailing, as it cannot conceivably be deemed the unifying 
force behind District 4. Hays II, U S. App. at 5a. Rather than 
cutting a wide swath stretching miles on both sides of the Red 
River, District 4 jumps from one side to the other as necessary 
to grab black voters or to jettison white ones. See Mot. to 
AflBrm at 9a (Caddo), 11a (Natchitoches), 12a (Rapides). Nor 
can the State’s theory justify District 4 ’s extension to East 
Baton Rouge and Lafayette, which are nowhere near the Red 
River but together supply more than 35% of District 4’s black 
population. These points, obvious to the three district-court 
judges familiar with Louisiana geography, as well as its 
cultural and political history, only underscored the lack of any



33

credible justification for District 4. Not surprisingly, then, the 
court dismissed Louisiana’s ostensible race-neutral 
justifications as nothing but ''post hoc rationalization” and 
“mere pretext.” Hays II, U.S. App. at 5a,

Louisiana complains that Act 1 should have been 
considered “presumptively valid” under Voinovich v. Quilter, 
113 S. Ct. 1149 (1993), and that the district court unfairly 
treated the “old Eighth” justification as “irrelevant.” La, Br. at 
20-22. But Voinovich did not involve an equal protection 
challenge. 113 S. Ct. at 1157. Plaintiffs’ case 
shifted to Louisiana the burden of rebutting the inference that 
it had “segregate[d] the races for purposes of voting.” Hays II, 
U.S. App. at 3 a. Having heard six days of trial on Act 42 and 
Act 1, the district court fully appreciated the record differences 
between District 4 and the “old Eighth,” id. n.2, and considered 
them before finding that the "fundamental factor driving Act 1 
was race.” Id.

Appellants’ desperation to avoid strict scrutiny leads 
them to dwell obsessively on the very next sentence in the 
district court’s opinion: “Race-conscious redistricting, while 
not always unconstitutional, is always subject to strict 
scrutiny.” HaysII, U.S. App. at 5a. See U.S. Br. at 9, 10, 11, 
12, 14, 18, 20; La. Br. at 9, 13, 15 n.l6. On appellants’ view, 
that sentence establishes that the district court ignored Shaw's 
observation that “[tjhis Court has never held that race­
conscious state decisionmaking is impermissible in all 
circumstances.” 113 S. Ct. at 2824. But that interpretation of 
the district court’s opinion is untenable. The quoted sentence 
immediately follows the court’s finding that "the fundamental 
factor driving Act I  was race”; that finding would have been 
quite gratuitous if the district court decided to subject District 
4 to strict scrutiny simply because Louisiana was “aware” of 
race in drafting Act 1. To the contrary, the district court 
properly set forth and applied the legal standard developed in 
Shaw, Wright, m d Arlington Heights, see Hays I, U.S. App. at 
48a n.l2; 49a n.l7; 69a nn.45 & 46; Hays II, U.S. App, at



34

3a-5a, under which state action is subject to strict scrutiny if 
“motivated” by race.

What exactly the district court meant by “[rjace- 
conscious” in the oft-quoted sentence is not entirely clear; it 
could well have used the term as a synonym for “race-based.” 
See, e.g.. Random House Dictionary of the English Language 
432 (2d ed. 1987) (defining “conscious” as, among other 
things, “deliberate; intentional” and “acutely aware of or 
concerned about”). In any event, there is no need to parse the 
term’s fine shades of meaning, as “[tjhis Court reviews 
judgments, not statements in opinions.” Johnson v. DeGrandy, 
114 S. Ct. 2647, 2653 n.5 (1994) (internal quotation omitted). 
Here, the district court expressly found that “the fimdamental 
factor driving Act 1 was race,” and that finding is not clearly 
erroneous. Gingles, 478 U.S. at 79. Based on that finding, the 
district court was entirely justified in applying strict scrutiny.

n . ACT 1 CANNOT SURVIVE STRICT SCRUTINY.

Strict scrutiny is the most demanding form of judicial 
review—only state laws “narrowly tailored” to serve a 
“compelling governmental interest” can survive. See, e.g., 
Shaw, 113 S. Ct. at 2825. “Indeed, the failure of legislative 
action to survive strict scrutiny has led some to wonder 
whether our review of racial classifications has been strict in 
theory, but fatal in fact.” Fullilove v. Klutznick, 448 U.S. 448, 
507 (1980) (Powell, J., concurring). Louisiana and the United 
States proffer two “compelling interests” to justify 
District 4: (1) the need to comply with Sections 2 and 5 of the 
Voting Rights Act, and (2) the need to “ameliorat[e] the effects 
o f severely racially polarized voting and overcom[e] past 
discrimination.” La. Br. at 38, 32-39; see also U.S. Br. at 27- 
34. Neither of these asserted interests, however, can withstand



35

even casual scrutiny—^which may explain why appellants labor 
so mightily to avoid strict scrutiny in the first place.®

A, A Mistaken Belief That Act 1 Was 
Compelled By The Voting Rights Act Is Not 
a Compelling State Interest.

Appellants start, plausibly enough, with the proposition 
that compliance with federal law qualifies as a compelling state 
interest for purposes of strict scrutiny. While uncontroversial 
in the abstract, that proposition is irrelevant in this case. To 
“comply” with a law is “to act or be in accordance with [the 
law’s] wishes, requests, demands, requirements, conditions, 
etc.” Random House Dictionary of the English Language 419 
(2d ed. 1987). As a matter of language and logic, Louisiana 
has no interest—much less a compelling one—in “complying” 
with requirements of federal law that do not, in fact, exist. A 
State’s interest in complying with a federal law necessarily 
derives fi'om the federal law itself, and cannot derive from an 
invalid requirement or a requirement of the State’s own 
imagining. See, e.g., Shaw, 113 S. Ct. at 2830 (“States 
certainly have a very strong interest in complying with federal 
antidiscrimination laws that are constitutionally valid as 
interpreted and as applied:') (emphasis added); UJO, 430 U S. 
at 162-163 (plurality opinion) (State has no valid interest in 
doing more than “the Attorney General was authorized to 
require it to do”) (emphasis added).

Appellants attempt to sidestep this point by asserting 
that the relevant question is whether Louisiana “legitimately 
believed” or “reasonably concluded” that the Voting Rights 
Act required the creation of a second majority-minority district, 
U S. Br. at 30 (emphasis added)—not whether the Act actually

’ Because appellants cannot establish any “compelling interest to justify 
District 4 ,” there is no way to ascertain whether the district is “narrowly 
tailored” to serve such an interest. See, e.g., Michigan Road Builders .4^5 ’n, 
Inc. V. Milliken, 834 F.2d 583, 595 n .l5  (6th Cir. 1987), aff’d, 489 U.S. 
1061 (1989).



36

required the creation of such a district. See also La. Br. at 33 
(test is whether State ''reasonably believes that its failure to 
take such measures would support a prima facie case of a 
constitutional or statutory violation”). This “legitimate belief’ 
test, appellants contend, is necessary to afford States “a margin 
o f safety that will encourage . . . compliance with the Voting 
Rights Act.” U.S. Br. at 27. See also La. Br. at 35 (arguing for 
“some breathing room for states . . . permitting them to take 
remedial action without awaiting the final convergence of all 
facts constituting unassailable proof of a Section 2 violation”).

Appellants’ “margin of safety” or “breathing room” 
argument is not without superficial appeal. It is certainly 
desirable, where possible, to construe federal law to afford 
some leeway between what one provision requires and what 
another forbids; a regulated party would face perpetual peril if 
a mistake with respect to one provision necessarily amounted 
to a violation of another. Indeed, this Court consistently has 
adhered to a maxim that creates “breathing room” where a 
statute arguably requires what the Constitution forbids: “where 
an otherwise acceptable construction of a statute would raise 
serious constitutional problems, the Court will construe the 
statute to avoid such problems unless such construction is 
plainly contrary to the intent of Congress.” DeBartolo v. 
Florida Gulf Coast Bldg, and Constr. Trades Council, 485 U.S. 
568, 575 (1988) (emphasis added); see also Murray v. The 
Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) 
(Marshall, C.J.).

Appellants, of course, would turn this canon upside 
down—rather than construing the Voting Rights Act narrowly 
to avoid a serious constitutional problem, they want to construe 
the Constitution narrowly to avoid a conflict with their own 
remarkably expansive interpretation of the statute. In effect, 
they ask this Court to recognize an unprecedented 
constitutional defense: state action can not violate the 
Constitution if based on a “legitimate” or “reasonable”—albeit 
mistaken—belief about what a federal statute requires. So long



37

as a State’s heart is pure, the argument goes, it cannot deny a 
citizen equal protection of the laws. Although appellants 
apparently miss the irony, their argument boils down to the 
proposition that Louisiana’s heartfelt desire to comply with the 
Voting Rights Act (a statute passed to implement the 
Constitution’s Civil War Amendments) necessarily immunizes 
the State from alleged violations o f those very Amendments.

Our law has never granted States any “good faith” or 
“breathing room” defense to constitutional violations, and there 
is no reason to introduce one now. Indeed, no principle is more 
basic in Anglo-American law than that ignorance of the law is 
no excuse. See, e.g., Lambertv. California, 355 U.S. 225, 228 
(1957); cf. 1 Wharton’s Criminal Law and Procedure § 162; 
Williams, Criminal Law: The General Part §§ 52-74 (2d ed. 
1961); Hall & Seligman, Mistake o f  Law and Mens Rea, 8 
U, Chi. L. Rev. 641, 642 (1941). Except in exceptional 
circumstances, see, e.g., Ratzlaf v. United States, 114 S. Ct. 
655, 663 (1994) (statutory requirement of “wilfulness”); 
Cheek V. United States, 498 U.S. 192, 199-200 (1991) (same), 
parties are held legally responsible for their conduct regardless 
o f whether they knew their conduct was unlawful or 
affirmatively sought to comply with the law. See, e.g., 
Barlow v. United States, 32 U.S. (7 Pet.) 404 (1833). A 
mistaken attempt to comply with the law may absolve a party 
of moral culpability, but it provides no legal defense.

This fundamental principle applies to governments as 
well as individuals. The Court has never accepted—nor, as far 
as appellees are aware, seriously entertained— t̂he proposition 
that the mere desire to comply with a statutory or constitutional 
provision immunizes state action from constitutional challenge. 
Where state action is alleged to have violated the Constitution, 
the question is not whether the State’s action was motivated by 
a desire to violate or comply with the law, but only whether it 
actually did so. See, e.g., Widmarv. Vincent, 454 U.S, at 271 
(state interest in avoiding violation of Establishment Clause 
cannot justify violation of Free Exercise Clause); see also



38

Doe V. Small, 964 F.2d 611, 618 (7th Cir. 1992) {en banc) 
(same); Cunico v. Pueblo School District, 917 F.2d 431, 438 
(10th Cir. 1990) (school board’s desire to comply with federal 
statute does not justify violation of Fourteenth Amendment, 
even where school board’s interpretation of federal law derived 
from federal agency).^® To be sure, individual state actors may 
be entitled to invoke an immunity defense where they 
reasonably believed their conduct to be lawful, but that defense 
does not negate—indeed, it presupposes—the underlying 
constitutional violation. See, e.g., Hafer v. Melo, 112 S. Ct. 
358, 361-62 (1991); Kentucky v. Graham, 473 U.S. 159, 
166-67(1985).

Nor does the purity of a State’s motives become 
relevant where, as here, the constitutional provision at issue 
contains an intent requirement. To establish a violation of the 
Equal Protection Clause, a plaintiff cannot simply point to state 
action causing a disparate effect on different racial groups; 
rather, the plaintiff must either directly or inferentially 
establish that the action was “motivated by race.” Arlington 
Heights, 429 U.S. at 266; Washington v. Davis, 426 U.S. at 
238-48. As in other areas, however, the relevant intent is not 
a specific intent to violate the law, but a specific intent to carry 
out the act in question. C f United States v. Feola, 420 U.S. 
671, 684-86 (1975); United States v. International Minerals & 
Chem. Corp., 402 U.S. 558, 563-65 (1971); Browder v. United 
States, 312 U.S. 335, 341 (1941); American Surety Co. v. 
Sullivan, 7 F.2d 605, 606 (2d Cir. 1925) (Hand, J.). State 
action motivated by race, therefore, is simply not the same as

This Court has, o f course, held that the exclusionary' rale of the Fourth 
Amendment does not apply where the police cany out a search in good-faith 
rehance on an invalid warrant. See United States v. Leon, 468 U.S. 897, 913 
(1984). That holding, however, is based on the proposition that the 
exclusionary rale is a judge-made prophylaxis not itself mandated by the 
Constitution, This exception, indeed, proves the general rale: if  “good 
faith” negated the underlying Fourth Amendment violation in the first place, 
the Court would have had no need to devise a “good faith” exception to the 
exclusionary rale.



39

state action motivated by a desire to violate the Fourteenth 
Amendment.

In short, while Louisiana’s desire for “breathing room” 
to comply with the Voting Rights Act is understandable, it is 
no defense to a constitutional violation. In assessing the 
validity of Louisiana’s asserted “compelling interest” in 
complying with the Voting Rights Act, the issue is not the 
reasonableness of the State’s asserted “belief’ about the Act’s 
requirements, but the Act’s requirements themselves.

B. Act 1 Was Not Compelled By the Voting 
Rights Act.

Even if appellants’ “reasonable belief’ argument were 
correct, it would not help them in this case. Under this Court’s 
precedents, the interpretation of the Voting Rights Act now 
advanced by Louisiana and the Solicitor General can most 
charitably be described as farfetched. Neither Section 5 nor 
Section 2 of the Voting Rights Act required Louisiana to create 
a second majority-minority district on this record.

1. Act 1 Was Not Compelled By Section 
5 of the Voting Rights Act.

The requirements of Section 5 of the Voting Rights Act 
are entirely procedural: before a covered jurisdiction may make 
a districting change, it must seek either (1) a declaratory 
judgment from the District Court for the District of Columbia, 
or (2) preclearance from the Attorney General of the United 
States. See 42 U.S.C. § 1973c (1988). Section 5 thus imposes 
no substantive requirements—a covered jurisdiction fulfills its 
statutory obligations by seeking the requisite approval, and 
may implement its plan absent an objection.

The most obvious flaw in the argument that Section 5 
compelled Lousiana to create a second majority-minority 
district, therefore, is that the State never sought approval of a 
plan with only one such district from either the Attorney 
General or the District Court. This case might be different if 
the federal authorities had compelled Louisiana to create two



40

majority-black districts, but any compulsion here was entirely 
self-imposed. Compare International Union v. Johnson 
Controls, Inc., 499 U.S. 187, 209 (1991) (manufacturer’s self- 
imposed desire to avoid potential state tort liability no defense 
to violation of federal statute); and Colorado v. Connelly, 479 
U.S. 157, 165-67 (1986) (self-imposed “compulsion” to 
confess does not render confession inadmissibly coerced) with 
Farmers Educ. &Coop. Union o f America v. WDAY, Inc., 360 
US. 525, 530-35 (1959) (federal statute co/n/?e//;«g broadcaster 
to provide uncensored “equal time” to rival political candidates 
necessarily immunizes broadcaster from liability under state 
defamation law).

While the absence of federal compulsion here disposes 
o f appellants’ Section 5 argument, even if the Justice 
Department had rejected a plan with only one majority- 
minority district. Act 1 would remain vulnerable if Louisiana 
“did more than the Attorney General was authorized to require 
it to do under the nonretrogression principle of Beer.'' Shaw, 
113 S. Ct. at 2831 (quoting UJO, 430 U.S. at 162-163 
(plurality opinion)). And even if the Attorney General had 
interpreted the Voting Rights Act to require a second majority- 
minority district in Louisiana, that interpretation would not be 
entitled to deference to the extent it raised serious 
constitutional problems. DeBartolo, 485 U.S. at 575.

Appellants maintain that the absence of federal 
complusion is immaterial; instead, they effectively insist that 
Louisiana could have “reasonably predicted” that it would be 
required to create a second majority-black district. The need 
to defer to “reasonable predictions” about what the federal 
authorities might require, we are told, follows from (1) the 
Attorney General’s “primary responsibility” under the Act, 
(2) the deference owed to “the Attorney General’s judgment,” 
and (3) the need to prevent States from “display[ing] the 
maximum possible defiance of the federal executive branch.” 
U.S. Br. at 31, 33; La. Br. at 37.



41

Louisiana’s “prediction” that a second majority-black 
district was necessary, in turn, is said to be reasonable in light 
o f three considerations; (1) a 1983 case requiring the State’s 
first majority-minority district in New Orleans, Major v. Treen, 
574 F. Supp. 325 (E.D. La. 1988); (2) the Attorney General’s 
previous objection to the BESE redistricting plan; and (3) the 
existence of previous Louisiana districts resembling District 4. 
U.S.Br, a t31 ;L a.B r, at36-37.

But any such open-ended “prediction” theory truly 
would give States "'carte hlanche to engage in [the] racial 
gerrymandering” expressly rejected in Shaw (emphasis added). 
113 S. Ct. at 2831 (emphasis added). The facts o f this case 
illustrate the absence of any real limits on race-based 
districting under that approach. Major v. Treen, a Section 2 
action, required a majority-minority district in New Orleans 
only after a trial at which the three-judge court found that a 
Section 2 case had been established. 574 F. Supp. at 351. It 
simply does not follow that Louisiana must create a second 
majority-minority district somewhere else without similar 
proof. Likewise, the Department’s action on the BESE 
redistricting has no bearing on Act 1: the BESE plan contained 
eight, not seven, districts, each with a correspondingly lower 
population (530,000 vs. 600,000), thus making it easier to 
combine “fragmented minority concentrations” into a second 
majority district. Finally, the fact that versions of “Old Eighth” 
district might have had an odd shape in no way gives rise to an 
inference that any refusal to create a new oddly-shaped district 
is attributable to racial discrimination.

The deference that appellants would afford to a State’s 
“prediction” about the Attorney General’s enforcement policy 
is especially breathtaking when considered in light of the 
Section 5 review process as it exists today. Since the days of 
Allen V. State Bd. o f  Election, 393 U.S. 544 (1969), 
preclearance requests have mushroomed, from 255 in 1970 to



42

some 23,000 in 1992.“  The decisive work in most cases is left 
to junior attorneys, paralegals, and even “by employees without 
legal training.” ’̂  Not surprisingly, that review process is 
hardly conducive to “[ojbjection letters [that] cite other 
objection letters or make any apparent effort to create an 
independent body of section 5 law based on precedent.”*̂ 
Under appellants’ approach, the Voting Rights Act would be 
diverted further oflFits original course, as it would be driven not 
only by what zealous enforcers in Washington actually do,“  
but by predictions about what zealous enforcers in Washington 
might do.

This Court originally upheld Section 5 as “an 
uncommon exercise of congressional power” that would not be 
“otherwise appropriate” absent the exceptional conditions of 
the time. South Carolina v. Katzenbach, 383 U.S. 301, 334 
(1966). Both in Katzenbach and subsequently, individual 
Justices have noted that Section 5’s “encroachment on state 
sovereignty is significant and undeniable,” and reiterated the 
delicate constitutional questions involved. United States v. 
Board o f Comm’rs, 435 U.S. 110, 141 (1978) (Stevens, J., 
joined by Burger, C.J., and Rehnquist, J., dissenting); 
Katzenbach, 383 U.S. at 355 (Black, J., concurring in part and 
dissenting in part). Allen, 393 U.S. at 586 & n.4 (Harlan, J., 
concurring in part and dissenting in part); City o f Rome v. 
United States, 446 U.S. 156, 201-202 (1980) (Powell, J.,

" Department of Justice, Civil Rights Division, Record of Number of 
Changes by State and Calendar Year, 1965-1995 (dated Jan. 4, 1995).

Abigail M. Therstrom, Whose Votes Count? Affirmative Action and 
Minority Voting Rights 159 (1987).

Id. at 161 (quoting Hiroshi Motomura, Preclearance under Section Five 
o f the Voting Rights Act, 61 N.C. L. Rev. 189, 192 (1983)).

It is perhaps a euphemism to call the Justice Department’s enforcement 
o f Section 5 “zealous.” In Johnson v. Miller, 864 F.Supp. at 1368, the 
district court termed the Department’s practices “disturbing,” observing that 
“in a notable faux pas, DOJ’s second objection letter arrived at the Office 
of the Attorney General o f Georgia only after members of the Georgia Black 
Caucus were aheady discussing it with the press.”



43

dissenting); id. at 209-21 (Rehnquist, J., joined by Stewart, J., 
dissenting); Chisom v. Roemer, 501 U.S. 380, 418 (1991) 
(Kennedy, J., dissenting); City o f  Pleasant Grove v. United 
States, 479 U.S. 462, 479 (1987) (Powell, J., joined by 
Rehnquist, C.J., and O’Connor, J., dissenting); Holder v. Hall, 
114 S. Ct. 2581, 2611 (Thomas, J., joined by Scalia, J., 
concurring in judgment). But when Katzenbach was decided, 
surely no one envisioned that State officials would resort to 
reading “tea leaves” from the Justice Department, or worse 
still, acting on a nudge and a wink from “middle level 
bureaucrat[s]” in the Civil Rights Division. Hays II, U.S. App. 
at 7a n.3.

In any event, the district court made findings broad 
enough to encompass appellants’ “reasonable prediction” 
theory when concluding that Louisiana “did not have a basis in 
law or fac t to believe that the Voting Rights Act required the 
creation of two majority-minority districts.” Hays II, U.S. 
App. at 9a (emphasis added) .Appel lan ts  now accept the 
court’s finding that the failure to create a second such district

Had the District Court not rejected the contention that Louisiana 
reasonably believed that Section 5 compelled its redistricting plan, this case 
might raise significant questions regarding the entire Section 5 enforcement 
scheme. Examples include: (1) the statutory basis, if any, for the Justice 
Departmenfs claimed authority to enforce Section 2 via Section 5 
preclearance, see, e.g., New Yorkv. United States, No. 94-2219, 1994 WL 
744179 (D. D.C. 1994); (2) the validity of the Departmenfs policy requiring 
States to “maximize” the number of majority-miority districts in order to 
avoid a finding of discriminatory purpose, notwithstanding Johnson v. 
DeGrandy, 114 S. Ct. 2647, 2660 (1994); Beerv. United States, 425 IJ.S. 
130 (1976); (3) the appropriate deference, if  any, due the Departmenfs 
substantive interpretations of Section 5 in light of its enforcement role and 
Congress’ primary delegation of decisional authority to the D.C. District 
Court, see e.g., Adams Fruit Co. v. Barrett, 494 U.S. 638, 649-50 (1990); 
Crandon v. United States, 494 U.S. 152, 177 (1990) (Scalia, J., joined by 
O ’Connor, J., and Kennedy, J., concurring in the judgment); and (4) the 
Departmenfs authority to override state redistricting plans beyond the 
extent necessary to remedy violation of the Civil 'War Amendments. See 
City o f  Rome, 446 U.S. at 209-221 (Rehnquist, J., dissenting).



44

would not result in “a retrogression of minority [voting] 
strength.” Id. at 8a (emphasis added). And even, applying an 
unduly generous test comprehending the State’s beliefs, the 
court below found that “[n] either the State nor the Department 
of Justice oflFered any evidence suggesting that failure to create 
a second majority-minority district would . . . have an illegal 
purpose or effect.” Id. Because the court applied the legal test 
appellants now advocate, there is no basis to disturb its 
conclusion. See, e.g., Cooter & Cell v. Hartmarx Corp., 496 
U.S. 384, 401 (1990).

2. Act 1 Was Not Compelled By Section 
2 of the Voting Rights Act.

The framework for deciding whether a redistricting plan 
is compelled by Section 2 of the Voting Rights Act is not in 
dispute. The “Constitution leaves with the States primary 
responsibility for apportionment of their federal congressional 
and state legislative districts.” Growe v. Emison, 113 S. Ct. 
1075, 1081 (1993). Because States’ redistricting authority does 
not flow from the Voting Rights Act, “[fjederal courts are 
barred from intervening in state apportionment in the absence 
of a violation of federal law.” Voinovich, 113 S. Ct. at 1156. 
The principal sources of federal limitations on state 
redistricting authority, then, are the Fourteenth and Fifteenth 
Amendments see, e.g., Voinovich, 113 S. Ct. at 1157, 
1159—although, as noted above. States certainly have “a very 
strong interest” in complying with the Voting Rights Act to the 
extent its provisions “are constitutionally valid as interpreted 
and as applied." Shaw, 113 S. Ct. at 2830 (emphasis added).

This Court first addressed the need to balance state 
sovereignty against federal limitations in the redistricting 
context in UJO. There, even though New York “adhered to 
traditional districting principles,” Shaw 113 S. Ct. at 2829, it 
mustered the votes of only three Justices when it “deliberately 
used race in a purposeful manner.” UJO, 430 U.S. at 165. 
Justice Brennan’s concurring opinion eloquently expresses the 
concerns arising from a State “policy of benign racial sorting” :



45

it may (1) “disguise . . . illicit objectives” and “frustrate 
successful efforts at coalition building across racial lines”; 
(2) “stimulate our society’s latent race consciousness” and 
“stigmatize recipient groups”; and (3) “[b]e viewed as 
unjust . . . especially by thse individuals who are adversely 
affected.” Id. at 172-175. Just as eloquently, this Court 
reaffirmed Justice Brennan’s concerns in Shaw. racial 
gerrymandering “reinforces racial sterotypes and threatens to 
undermine our system of representative democracy by 
signalling to elected officials that they represent a particular 
racial group rather than their constituency as a whole.” 113 S. 
Ct. at 2827.

The Solicitor General would brush these concerns aside 
and allow a State to engage in explicitly race-conscious 
redistricting whenever it “legitimately believes that each of the 
three Gingles preconditions could be established against it and 
when, without [creating a new majority-minority] district, the 
minority group remains substantially underrepresented when 
compared to the group’s proportion of the population.” U.S. 
Br. at 28-29. Appellants thus dilute a “strong basis in 
evidence” down to a “sound basis for believing.” Id. at 22 
(citing Wygant v. Jackson Bd. o f Education, 476 U.S. 267 
(1986) (plurality opinion) and Johnson v. Transportation 
Agency, 480 U.S. 616 (1987) (O’Connor, J., concurring in the 
judgment). Then, they baldly assert that “overwhelming 
evidence” establishes that blacks in Louisiana are politically 
cohesive and the State’s whites usually vote as a bloc; 
appellants pause only on “the question whether the minority 
population is sufficiently large and compact”—an issue on 
which they argue the adverse finding below was “erroneous.” 
U.S. Br. at 29; La. Br. at 33-34.

Once again, appellants conflate what Louisiana 
allegedly “believed” the Voting Rights Act to require and what 
the Act actually does require. See pp. 35-38, supra. While it 
is true that “a contemporaneous or antecedent finding o f past 
discrimination by a court or other competent body is not a



46

constitutional prerequisite,” that in no way excuses a State 
from providing “statistical proof’ and eventually providing the 
necessary “evidence of its remedial purpose.” Wygant, 476 
U S. at 293 (O’Connor, J., concurring in part and concurring in 
judgment).^® “[SJimple. legislative assurances of good 
intentions cannot suffice”; rather, the State must provide “a 
strong basis in evidence for its conclusion that remedial action 
was necessary."" Croson, 488 U.S. at 510 (plurality opinion) 
(emphasis added).

Louisiana has simply failed to provide the requisite 
“strong basis in evidence” to justify “remedial action” as 
“necessary” under Section 2 of the Voting Rights Act. The 
district court found that “[t]he evidence convincingly proves 
that the State cannot clear the first Gingles hurdle,” 
compactness. U.S. App. at 8a. There is no dispute that 
“compactness” under Gingles is a question of fact. See 
Gingles, 478 U.S. at 11-1% Westwego Citizens fo r  Better 
G ov’t V. Westwego, 906 F.2d 1042, 1046-47 (5th Cir. 1990) 
(“The appropriate method of establishing the first Gingles 
factor is a ‘matter of fact’”). Moreover, in contrast to other 
cases, Louisiana here offered no statistical evidence 
whatsoever to show that District 4 was compact. See 
Johnson v. Miller, 864 F. Supp. at 1388 (statistical data offered 
by Georgia); Vera v. Richards, 861 F. Supp. at 1328 (statistical 
data offered by plaintiffs).^’

The court below did not hold that “there must be ‘findings of . . . 
statutory violations.’” U.S. Br. 27 (emphasis added). Instead, it held that 
the State must ‘“ demonstrate a strong basis in evidence for its conclusion 
that remedial action was necessary.’ Such a basis may be drawn from 
judicial, legislative, or administrative findings of constitutional or statutoiy' 
violations.” Hays II, U.S. App. 7a (citation to Croson omitted) (emphasis 
added).

The omission of statistical data is striking since compactness, whether 
measured by either or both of two statistical techniques, showed District 4 
in Act 42 to be one of the least compact districts in the Nation. See Richard 
H. Pildes and Richard G. Niemi, Expressive Harms, “Bizarre Districts, ” 

(continued...)



47

Appellants instead rely almost exclusively on the 
opinion of “the state’s demographer, Glenn Koepp, [who] 
testified that District 4 is reasonably compact.” La. Br. at 34.^* 
His testimony, however, only underscores the weakness of 
appellants’ Section 2 claim: “I truly believe that this is the most 
compact—the Fourth District in this plan is the most compact 
second minority district in the state that has 55 percent 
registered to vote minority"' J.A. 125. (emphasis added). The 
following exchange ensued:

JUDGE WALTER: Why is it reasonably compact? I 
mean it’s obviously not compact. Now how is it 
reasonably compact?

THE WITNESS: Your Honor, my opinion of that, and 
I think it’s even in the decision by the Supreme Court, 
compactness is in the eye of the beholder. You know 
it when you see it.

JUDGE WALTER: It’s not compact to the eye of this 
beholder.

J.A. 127. The district court did not clearly err in finding that 
this and similar evidence “confirmed that Louisiana’s minority 
poulation is simply not sufficiently concentrated to meet

(...continued)
and Voting Rights: Evaluating Election-District Appearances after Shaw 
V. Reno, 92 Mich. L. Rev. 483, 553-575 (1993). IfDistrict 4 in Act 1 were 
really more compact than its counterpart in Act 42, Louisiana presumably 
would have presented statistical evidence to prove the point.

** Koepp, an assistant secretary of the Louisiana Senate and the official 
responsible for drawing Act 1 ’s boundaries, did not testify as an expert at 
trial. The court’s reference to “the State’s own expert” presumably means 
the State’s expert geographer. Dr. Hilliard, who introduced data and maps 
on Louisiana congressional districts since 1912. These data confirm that 
Act 1 ’s District 4 is not compact since it spans a greater distance than any 
congressional district in Louisiana history. Castille & Hilliard Decl USX  
8, Table 1.



48

Gingles minimum requirements.” Hays II, U.S. App. at 8a 
n . 4 . ‘"

Appellants also err in claiming that the evidence on 
bloc voting “leav[es] no doubt whatsoever concerning the other 
two Gingles factors.” La. Br. at 35; U.S. Br. at 29. But the law 
is well-established that neither the parties nor the court 
“may . . . presume bloc voting.” Growe, 113 S. Ct. at 1085. 
Because appellants failed to clear Gingles ’ first hurdle, Hays II 
made no conclusive findings regarding either black political 
cohesion or white bloc voting. In considering Act 42, however. 
Hays I  found that “the evidence supported an average, net 
white cross-over vote in non-judicial elections of between 10% 
and 25%.” Hays I, U.S. App. at 83a-84a.

Appellants ignore this factual finding entirely, 
preferring to rely instead on evidence from an expert 
(Engstrom) whose testimony the Hays I  court expressly 
rejected. La. Br. at 30-31; U.S. Br. at 29. Engstrom’s 
presentation on bloc voting dealt only with elections in which 
a black candidate opposed a white candidate. Engstrom 
Declaration, J.A. 181-93. The Voting Rights Act, of course, 
protects mmonty-preferred candidates, not minority-mce 
candidates. Gingles, 478 U.S. at 68 (“[I]t is the status of the 
candidate as the chosen representative of a particular racial 
group, not the race of the candidate, that is important ”)

The court also expressly relied on the United States’ Exhibit 2. Id. That 
Exhibit, a schematic map of Louisiana with an overlay of District 4, 
demonstrates that District 4 ’s black population resides overwhelmingly in 
four widely-separated cities, anchored by Shreveport and Baton Rouge at 
the District’s north and south ends respectively. On closely similar facts, 
the district court in Johnson v. Miller, 864 F.S upp. at 1389, found that 
“[t]he populations o f the Eleventh are centered around four discrete, widely 
spaced urban centers that have absolutely nothing to do with each other, and 
stretch the district hundreds of miles across rural counties . . .” There, as 
here, “DOJ’s insistence that they are ‘compact’ renders the term 
meaningless.” Id. Ultimately, appellants claim only that District 4 is “not 
materially stranger in shape” than other districts elsewhere— but that is 
hardly the test aimounced in Gingles. La. Br. at 35.



49

(plurality opinion). The district court, therefore, was free to 
credit the testimony of plaintiffs’ expert. Dr. Ronald Weber, 
who presented a far broader range of data, including the results 
of dozens of single and mixed-race elections for the Louisiana 
House and Senate, as well as recent races for Governor and 
United States Senator in which the black-preferred candidate 
was elected. PX 8.

C. Act 1 Cannot Be Justified By A Perceived 
Need To Remedy Historical Inequity.

Appellants ultimately deploy their most sweeping 
justification for District 4: “Louisiana’s history of racial 
discrimination and the patterns of racially polarized voting” 
independently warrant a second majority-minority district. La. 
Br. at 38; U.S. at 34. It is elementary, however, that a State 
cannot insulate discriminatory action from review simply “by 
conceding that [it] discriminated in the past, now that it is in 
[its] interest to make such a concession.” Wygant, 476 U.S. at 
278 n.5 (plurality opinion). And as for racially-polarized 
voting, not only was there no finding below, but there was no 
reason to reach the issue in light of the court’s dispositive 
finding that Act 1 failed Gingles’ first precondition. See 
pp. 46-47, supra. Moreover, the district court flatly rejected 
the suggestion that there was any “concrete evidence of the 
lingering effects of past discrimination or continuing legal 
prejudice in voting laws and procedures.” HaysII, U.S. App. 
at 10a.

Even if this factual finding were erroneous, appellants’ 
invocation of past discrimination to justify present 
discrimination would still fail as a mater of law. Appellants 
seize upon an apparently approving reference in the UJO 
plurality opinion to a potential remedy that would assure the 
“fair allocation of political power between white and nonwhite 
voters.” 430 U.S. at 167 (plurality opinon). The Solicitor 
General claims that “[n]o other Justices in UJO addressed that 
issue.” U.S. Br. at 34. But as this Court noted in Shaw, Justice 
Brennan did indeed address the point by rejecting “benign



50

racial sorting” for the reasons noted previously. See p. 44, 
supra. Subsequent decisions, moreover, have condemned 
racial group remedies under the Voting Rights Act except 
where a minority is “essentially shut out of the political 
process.” Davis v. Bandemer, 478 U.S. 109, 152 (1986) 
(O’Connor, J., concurring). And far from creating remedies 
beyond the Act, recent decisions hold that a Section 2 claim 
may not exist even where all three Gingles criteria are satisfied. 
DeGrandy, 114 S. Ct. at 2663; Nipper v. Smith, 39 F.3d 1494, 
1512 (11th Cir. 1994) (en hanc). By contrast, appellants’ 
expansive additional remedy would make Gingles ’ 
requirements superfluous.

These precedents are enough to reject appellants’ “fair 
allocation” argument without reaching the more far-reaching 
issues it might present.^® Any remedy that portends a “fair 
allocation of political power between white and nonwhite 
voters,” UJO, 430 U.S. at 167 (plurality opinion), would 
involve courts even more deeply than now in deciding which 
racial classifications are “benign” and which are not. See 
Shaw, 113 S. Ct. ?ii 223 A, Metro Broadcasting, 497 U.S. at 609 
(O’Connor, J., dissenting). Judicial scrutiny of that sort is at 
best a hazardous undertaking that would return this Court to the 
days of Plessy—albeit characterizing the inquiry not as 
“separate but equal” but instead “unequal but benign,” id. at 
638 (Kennedy, J., dissenting).

CONCLUSION

For the foregoing reasons, the judgment below should 
be afifirmed.

“  Some have suggested, for example, that “[A] constitutional rule capable 
of constraining political results, not merely subjecting them to judicial 
oversight, must either require the government to classify its citizens by race 
or else forbid the practice: there is no middle ground.” A. Kull, The 
Color-Blind Comtitution 223 (1992).



Respectfully submitted.

E d w a r d  W . W a r r e n  
Counsel o f  Record 

C h r is t o p h e r  L a n d a u  
Ja y  p . L e f k o w it z  
R o b e r t  R. G a s a w a y  
G e r a l d  F . M a s o u d i  
KIRKLAND & ELLIS 
655 Fifteenth Street, N.W. 
Suite 1200
Washington, D.C. 20005 
(202) 879-5000

Counsel fo r  Appellees 

Dated: March 15, 1995



APPENDIX



Louisiana Act 1 Congressional Districts. Split Cities: SHREVEPORT



Louisiana Act 1 Congressional Districts. Split Cities: LAFAYETTE



V iT '* •

Louisiana Act 1 Congressional Districts. Split Cities: BATON ROUGE



Louisiana Act 1 Congressional Districts. Split Cities: ALEXANDRIA



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