Defendant-Intervenor's Answer to Emergency Motion

    a

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION

RALPH GfNGLES, et d1., )
)

Plaintiffs, )
) No. 81-803-CrV-5

v. )
)

RUFUS L. EDMISTEN, €t dI., )
)

Defendants. )
)

APPENDIX TO POST-TRIAL MEMORANDUM
OF PLAINTIFFS RALPH GINGLES, ET AL.

Slip Opinions submitted pursuant to Local Rule 5.03



Srp ?l I :q Pti

L0ti.-, , " I

(aJ CLri'l'r

.rl

i.i.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

BARBARA MAJOR, ET AL., 3

Plaintiffs 1 Z

versus :

DAVID C. TREEN, ETC., ET AL., :

Defendants. :

Before PoIitz, Circuit Judge,
Judges.

Politz, Circuit Judge:

Civil Action No. 82-LL92
Section C

MEMORANDUM OPINION

Cassibry and Collins, District

Individually and on behalf of all black persons residing and

registered to vote in Louisiana, plaintiffs Barbara Major,

Michael Darnell, Bernadine St.Cyr, Brenda Quant and Annie A.

Smart brought suit under the thirteenth, Eourteenth and Fifteenth

Anendments to Ehe Constitution, the Civil Rights Act of 1871, 42

U.S.C. S I983, S 2 uf t,he Voting RighEs Act, as amended, 42

U.S.C. S 1973, and 28 U.S.C. SS 220L and 2202, seeking

declarat,ory and injunctive relief restraining use of the recent,

realignment of the staters congressional districts, Act 20 of the

1981 First Extraordinary Session of the Louisiana Legislature.

Jurisdiction is based on 28 u.s.c. SS 1331 and I343, and 42

U.S.C. S 1973). The gravamen of plaintiffs' claims is that Act

20 was designed and has the effect of cancelling, minimizing or

diluting minority voEing strength by dispersing a black
r:E '

-1,:.lc:3s 
-

-*--'
1Z-'-'iiirG
DCCUr\,{ENI No'-- -,'W%,Rre



Population. majority in Orleans Parish into two congressional
districts. The question posited is whether legislation dividing
a highly concentrated black population existing in one geographic
and poritical unit, a parish, into two districts, rather then
placing them in a single distr ict in which bracks wourd

constitute a majority, deprives Louisianars black voters of the
right to effective participation in the electorar process.

Facts and procedural History
In November 1981, Act 20 of the Louisiana Legislature's

First Extraordinary Session of 1981 apportioned Ehe staEe into
eight single-member congressional districts. Act I of that
session established new state representative districts. Both
enactments erere submitted to the Attorney General of the United
States for preclearance under S 5 of the Voting nights Act, 42

u.s.c. s 1973c. I prior to action by the Attorney Generar,

1. section 5 of the voting Rights Act of 1955, 42 u.s.c. L973c,requires a state or political subdivision covered by Ehe Act E;obEain preclearance from the Attorney General of the unitedStates or through the District court foi the District of Columbiawhenever it adopts or seeks to administer any .t"ng" in itsqgalifications, prerequisites, standards, practi6es or procedureswith respect Eo voting. To receive precrearance, th; p."p"""Jchange must have neither the purpose nor Ehe effect or aeiyi;;-;;abridging the right to vote oo- account of race. The eitoineVGeneral I s preclearance determirration does not lretermit asubsequent action:

Nei ther an aff i rmat ive ind ication by theAttorney Generar thac no objection wirr be(footnote continued)

2



plaintiffs. filed the instant suit attacking both prans on

statutory and constitutional grounds. The case $ras assigned to
the docket of Judge Robert F. corrins. on June l, Lggz, the
Justice Department interposed a S 5 objection to Act l, rendering
that legislation unenforceable. 42 U.S.C. S 1973c.

Judge collins denied as moot praintiffsr motion to
consoridate their complaint with one filed by a prospective
congressional candidate which was later dismissed for want of a

justiciabre case or controversy. Robert E. couhiq Jr. v. James

L. Brown, Secretarv of state, c.A. No. g2-1r35-D (E.D.La. ).
Defendantsr motion seeking a separate trial of the craims of

made, nor the Attorney Generalrs failure Eoobject, . . . shall bar a subsequent action toenjoin enforcement of such qualification,prerequisiter st,andard, prlcticer orprocedure.

42 U.S.C. S I973c.

Private plaint,iffs are free to mount a de nqvo attack upon areapPortionment plan notwi thstanding preclea-ra-anF uni ted statesy, Ea-s!__B.aeon_ Rouqe Barish School Bd., 594 F.2d Se fficir. L977). See Morris v. Gressette, 432 u.s. 49L, 505-07 ttgltl("where lhe Ec@Lr of an enactment is not,detected 
_ upon review of the Attorney General, it can b;charrenged in traditional constitut-ional toi statutorylritigation. But it cannor be questioned in ; suil--;;;ii;;judiciar review of the Attorney Generalrs Idecision].,). sinc6the .s_tatutory standards of review under S 5 ditfei from thoaaestablished by amended S 2, Report on s. Lggz of the senatecommittee on Ehe Judiciary, s.d"p. No. 97-4L7, 97th cong., zdsess. (r982) at 68, r38-39, a giant or deniar of preclelrancepursuant to S 5 is not dispositive of a S 2 claim. Hence weconclude that the Ass istant Attorney General's preclearancedetermination has no probative varue in the instant case.



malaPportionment of congressional and state representaEive
districts was granted. Acting on plaintiffsr uncontested motion
for partial summary judgment, Judge Collins declared the Lgl6
congressional districting plan, Act 697 of the Lg76 Louisiana
Legislature, unconstitutionar because of rarge popuration
variances among districts when viewed in light of data developed

in the 1980 census.

lhis three-judge court tras designated by Chief Judge Charles
crark of the Fifth circuit court of Appears on June 10, r9g2. on

June 18, L982, Act 20 was precleared by the Attorney General.
After Act l, as subsequently modified by the Louisiana
Legislature, was approved by the Attorney Generar, plainEiffs
amended their complaint to withdraw their challenge to Ehe

reapportionment of the Louisiana House of Representatives. rn
addition, Plaintiffs amended their complaint to assert a cause of
action under the 1982 amendments to s 2 of Ehe voting Rights Act
of 1955, 42 U.S.C. S I973.

By order dated March 'r, 1993, this court reaffirmed Judge

CoIIinsr invalidation of Act 697. we granEed plaintiffsr motion
for class certification pursuant to Fed.R.civ.p. 23 (b) (z) ,

designating a class of Persons consisting of a1l black registered
voters residing in the State of Louis iana. F'inally r w€

determined that 28 u.s.c. S 2294 (u) vested in Ehis court
jurisdiction to entertain plaintiffs, staEuEory and



constitutional claims. Trial was held from March 7 through March

10, I983. Decision iras deferred pending briefing and oral

argument. Having considered t,he evidence adduced at tr ial,
together with the pleadings, briefs, and oral argument of

counsel, the court enters the following findings of fact and

conclusions of law in conformity with Fed.R.Civ.P. 52(a).

Findinqs of Fact

Every ten years a reapportionment2 of existing congressional

districts is compelled by Article T, S 2 of the United States

Constitution and by Article 3, S 1 of the Louisiana Constitution

of L974. In L972, Louisiana's eight congressional districts hrere

realigned based on data developed in the 1970 census. At that

2. A technical distinction has been drawn between the terms
"apportionment" and "reapport.ionmentr " on the one hand, and
"districting" and "redisLricting" on the other:

. . . apportionment and reapportionment
involve the allocation tby Congress] of a
finite number of representat.ives among a fixed
number of pre-established areas. Districtinq
and Eed!r!!r_q!!ng- . . . refer to the processes
by which the Iines separating legislative
districts are drawn tby the statesl.

Backstrom, Robins and Eller, Issues in Gerrymandering:
Exploratory lvleasure of ParE isan Gerrymander ing Applied

An
to

Minnesota, 62 Minn.L.Rev. LLZL, 1I2I n.l (1978). See Carstens v
Laqm, 543 F.Supp. 58 (D.col. 1982) (three-jucige;offi
fr67r-il1, Polit,ical RedistricEing and Geographic Theory at
(198I). To facilitate discussion, however, these terms will

R.
2

be
ut i 1i zed int,erchangeably.



time t,he ideal distr ict population $ras 455, 580 persons. While

the state remains entitled to eight representatives following the

I98O census, the ideal district population has increased Eo

525 r 4g7 p"r"orr". 3

The issue before us principally involves the New Orleans

metropolitan area, which encompasses the parishes of Or1eans,

Jefferson, St. Tammany, Plaquemines and St. Bernard. The 1980

census figures reveal pronounced demographic changes in this

area.

3. The following table sets forth the 1980 population,
percentage of black population and percent of deviation in the
eight L972 districts:

touisiana Congressional Districts
1980 Census

L972 PIan

Distr ict PopulaE ion

523,27L
45L,802
571,131
508,593
507, 539
577 .L40
543,235
511, 261

Black t

36. 5
40.7
r4.6
31. 9
32. r
29 .6
20.L
33.2

Dev i at ion

0.42*
-L2.t21
+ 8.58t

3.22*
3.42t

+ 9.83t
+ 3.38t

2.7 Lt

I
2
3
4
5
6
7
8

Given t,he near-absolute mathematical preeision with which
congressional districts must be defined, Karcher v. Daqqet,t, 51
U.S:L.W. 4853 (U.S.Sup.Ct., June 22, ffiicts
delineated in the L972 plan fail to satisfy the equal
representation standard of Article l, S 2. See PreErial
Stipulation aE 4 ("Under the 1980 census, the L972 apport_ionment
plan f or congressional dist,r icts was signif icantly
malapportionedr ds to all districts excePt Ehe First. . . .").



During the decade of the 1970s, orleans parish (coterminous
with the city of New orleans) experienced a marked change and a

slight decline in population.4 While overall population
declined, the black popuration increased. The citylparish now

has a black population of 308r039 persons, which constitutes 55$

of the total population, 49.93$ of the voting age population, and

44.89t of the registered voters. with the exception of affluent
white neighborhoods located in the cityts Garden District and

French Quarter, along the lakefront, and near Tulane and Loyola
universities, the brack populace is largely concentrated in one
contiguous expanse of the inner city.

By contrast, the predominantry white, suburban parishes of
Jefferson and st. Tammany, which frank the central city, have
undergone explosive population growth.5 According to the 19go

4.

Census

198 0
(Eootnote continued)

Or leans

Populat ion

557 ,492
593,47L
627,525
570,445
49 4 ,537
459 ,7 62

Jefferson

Populat ion

Par ish

No. of Ideal Districts

r.06
1. 30
l. 54
1. 70
L.67
1. 75

Par ish

No. of Ideal Districts

1980
1970
1960
19 50
1940
19 30

5.

Census

454,592 0. 87



census, Jef.ferson Parish, with a 13.9t black population, a 13.75t
brack voting age population, and a lo.45t black voter
registration, is nearly 87t the size of the ideal congressional
d istr ict. UnIike Orleans par ish, Jefferson par ish r s black
popuration is diffused throughout the parish. prior to the

recent demographic shifts, New orreans had enough people to form

t'he dominant major ity in two congressional distr icts. Now only
1.06 times the size of the ideal district, as defined by the l9g0
census, New Orleanst traditional dominance of tr{o congressional
districts is no longer supported by its population.

Under the L972 redisEricting plan, the F'irst Congressional
District, presently represented by Robert tivingston, encompassed

st. Bernard, Praquemines and st. Tammany parishes, together with
the lakefront, easE,ern Mid-city, Algiers and New orleans east
sections of Orleans Parish. An overlay of the l98O census data
to thaE district, as configured under the L97z planr reflects a

35.5t black population and 28.4t black voter registration. The

second congressional Distr icE, presently represenEed by Lindy
Boggs, covers those Portions of Jefferson parish to the south
(West bank) and immediately north (East Bank) of the Mississippi
Riverr ES well as New Orleans' central business district, French

1970
1950
t9s0
I940
l9 30

338 ,229
208 ,7 69
103,873

50 ,427
40 ,032

0.7 4
0.51
0. 3l
0. 17
0.15



Quarter, Uptown or Garden Distr ict and western t'lid-City, all
situated within the boundaries of Orleans Parish. Application of

the 1980 census data Eo the L972 boundaries of the Second

District shows that 49.7 t of the population and 34t of the

registered voters are black. See Exhibit nAn attached.

Leqislative Historv of Act 20

Early in 198f, members of the Louisiana House and Senate

research staffs were instructed to collate the 1980 population

data compiled by the United States Bureau of the Census, and to

ascert,ain the extent of malapportionment,, if aDy, under the L972

plan. With the assistance of the Louisiana State Universityrs

Division of Research Services, House and Senate research staffs

converted the data thus obtained from a census tract t,o a

political subdivision, or precinct, basis. These validated data,

referred to as the Weber data, included population and voter

registration figures, and provided the exclusive data base for

congressional redist,ricting in both houses.

Recognizing the need for realignment of the state I s

congressional districts, the legislature established the

Louisiana House and Senate Joint Congressional Reapportionment

Committee. In July, at the close of Ehe regular 1i8I session,

each house appointed legislators Eo ad hoc congressional

reapportionment, subcommittees functioning under t,he jurisdiction



of two standing committees, the Senate CommiEtee on Senate and

Governmental Affairs and the House Committee on House and

Governmental Affairs. Senator Thomas H. Hudson chaired Ehe

Senate Congressional Reapportionment Subcommittee; Representative

John W. Scott chaired its House counterpart. There were four

black legislators on the joint committee. No black legislator

was appointed to either subcommittee.

State-wide public hearings soliciting citizen input were

conducted by the subcommittees from JuIy through October f98I.

One of the principal issues debated in the various fora concerned

the possibility of fashioning a district centered in Orleans

Parish, which, as the 1980 census data reflected, had a black

population of 55t. Representative Richard Turnley, in his

capacity as Chairman of the Louisiana Legislative Black Caucus,

testified before the joint reapportionment committee in support

of the proposiEion that the staters minority constituency would

be best served by the structuring of an Orleans Parish-based

district which maintained the cohesiveness of the metropolitan

black community. ![inutes of several public hearings held in
August 1981 reveal that other legis1at,ors, both white and black,

shared this view.5 Other considerations identified as important

5. Contending that oral or written statements uttered in the
context of public hearings before the joint commiEtee and
subcommittees are hearsay, defendants conEest the admission of
transcriptst ot minutes, of Ehese meetings. We disagree, finding
(footnote continued)

l0



to the reapportionment process were compactness, contiguity,
respect for parish lines, and a recognition of ethnic, cultural
and geographic diEferences.

Based on the recommendations of legislative counsel, the

House subcommittee promulgated several rules for the designing of

congressional distr icts.7 Embodied in these rules $rere the

that the transcripts faII within the public record exception of
the hearsay rule. Fed.R.Evid. 803 (8). Under Rule 803 (8) (A), the
following are not excludable as hearsay, even though the
declarant is available as a witness:

Records, reports, statements, or data
compilations, in any form, of public offices
or agencies, setting forth (A) the activities
of the office or agency.

Plaintiffsr Exhibits I through 9, inclusive, are records of
regularly-conducted sessions of a joint committee and
subcommittees of the Louisiana Legislature and, as such, are
admissible as evidence of the facts to which they relate without
foundational testimony. J. Weinstein and M. Berger, 4
Weinsteinrs Evidence tl 803(8) t01l (1981). lhere is no challenge

of these records. We have not considered
statements presenting double hearsay problems. wi th th is
exception, written and oral statements contained in the minutes
of the various public hearings are admissible as evidence of the
matters assert,ed.

7. In presenting their proposed redistricting guidelines to the
House subcommittee at the JuIy 23,1981 public meeting in Baton
Rouge, counsel advised members that racial considerations mustplay a key role in reapportionment, and that minority voting
strength could not be dissipated through the fragmentation of
significant minority population concentrations. Minutes of JuIy
23, 1981 Public Hearing Before the House and Governmental Affairs
Subcommittee, pp. t59-174. David Poynter, CIerk of the House
Representatives, warned thaE:

Io]ne concern of the courts is the exisEence' of a predominantly black neighborhood or area
wit,h a sufficient amount of population to

(footnote'continued)

II



I
ri

I

principles of strict compliance with the "one-person, one-vote"

axiom, allowing for a maximum deviation of only .5t, and the

unacceptability of any proposal shown to have either the goal or

Ehe effect of diluting minority voting strength. Identical
criteria were endorsed by the Senate subcommittee. During the

first joint meeting on August 21r 1981, these quidelines were

formally adopted. S

justify a district where it becomes apparant
Isic] that the effect was to carve up that
group of people in such a way as to put them
in two or three separate districts and make it
impossible to elect a black representative.
That probably without any question is
impermissible.

Id. at I90.

8. Rule I of the Joint Legislative Committee on ReapporEionment
Proposed Rules for Congressional Reapportionmentr dS approved by
the Joint Committee on August 2L, 1981, stipulates that:

I. Equa I i ty of population of
congressional distr icts insofar as is
pracEicable is the goal of congressional
reapportionment.

l.A. Dev iations from Ehe " ideal
distr ict" population should be justifiable
either as a result of the Iimitations of
census geography, or as a result of the
promoEion of a constitutionalty acceptable
rational state policy.

1.8. In order to meet constitutional
guidelines for congressional disErictsr atry' plan, or proposed amendment thereto should
conform to a relative deviation range of one(It) percentum, or a relative deviation of
+/- L/2 ot one (.5t) percentum.

(footnote conEinued)

L2



Several groups submitted proposals to the joint committee orthe two subcommitteesr drnohg them Governor Dave Treen and theLouisiana congressional delegation.g
three proposed plansr denominated Treen

None of the Governorrs
A, B, and C, contemplatedvvrr LeltpLa CeCa majority black district.l0 During this period the Governor

According to Rure rv, ur"---o approved by the Joint committee:
1.

In:""f;"'ij'?: l,l*, :n-in?.1!v vorins:!::lgt! is conrrary ro "" 
mrnoritv voEing

right -or 
rnl-aninor,rl nn, , ..--1?1i" Porily. The

; i 3: : ; s; ff i I i:ii ; 
T" 

i:" *:!l!' i:. ff.'i;J;, * il il.,i;" ;i:t 
"" 

i . i ; ; ; 
- 

i 
" 
1"':;; ; i I"5 :''i::5 i5 i il ri j3ly proposed 

"pp".ti"n-,n-""#rraeq' 
Accordingly,

ther6to, -- al*o=.r:rorr ,--.-P,l"nf or amenarieit
5 l; : : t ?i" i"J; "".j:i:j,, ^ ^ i:l "T ] 

n 
t, 

o' 
.*Td iiljobjective oi --L!qLsL' tslcJ - to have theu"iing - '-=.rlio.fronl?nu":.c:_,?r i ir"ijng theI;:::3n.u"o.r'"":n tr,'-"ii"";i?, iJ, t"'r'Ji;#" . l:

9 ' on behalf 
- 
of all. 

- "ig.ht of 
19u.is iana ,s congress ional

representativ-ey' congrei-siran wirriam- rauzin prJ""-ntJo a proposedff;!l?::i?:ffi1' #:il",.t :i=;i?i;;.;ffi'11"""'"""ffi" a,ry,"t -iiexceeded the popularion devi;;i;" -1"-iring 
,r"".;-il"rt, ;li:committee's reappbrtionmlnt. .ui""l" ii.q"ir- i,ir'i-iJi .o submir aBl;""J3:"j J"":af;r;;'"t;i:,, a"ii.iI."r,^tn" a.i"g"rf;n as a whore

10. Black ?Td white popuLation percentages in the eight
congressionar disrri;i;-"r:"i"a-bi-;r"Ir 

prans A rhiougn c are:
8 WHITE

-

Distr icE

I
2
3
4
5
6
7
8

(footnote continued)

Proposal A

5s. 8
s4 .6
83.5
57.L
67 .5
70. I
77.7
67 .6

Proposal B

55. 8
54.6
84. 0

t 66.7
t 67.5

70. t
76.7
68. s

Proposal C

5s. 8
s4.6
83.6
67.L
67 .5
70. I
71.0
7 4.3

t3



publicly expressed his opposition to the concept of a majority

black district, stating that districting schemes motivated by

racial considerations, however benign, smacked of racism, and in

any case were not constitutionally required.

Guided by the joint committeers reapportionmenE criteria and

the views articulated at the public hearings held throughout the

summer and fall of 1981, the Senate research staff prepared more

than 50 plans. The staf f tdas directed to formulate a PIan

containing an Orleans Parish-dominated district. Such a district
would necessarily have a black majority population. Michael

Baer, Secretary of the Senate and the official charged with

supervising legislative drafting procedures, ensured compliance

with such well-established reaPportionment guidelines as

one-person, one-vote, compactness, respect for the integrity of

geographic boundaries, preservation of communities of interest,

and non-retrogression. ParEisan political concerns also figured

prominently in the confection of the various plans, among them

T BLACK

Distr ict Proposal A

32.0
43. 5

14.3
3r.5
3r.9
28. 8
2L ,5
3r.8

Proposal B

32.0
43.5
13.8
32 .0
3r.9
28. I
22,7
30. 5

Proposal C

32.0
43. 5
14. 3

3r. 5
31.9
28. I
28 .3
24 .9

I
2
3
4
5
6
7
I

I4



the desires of Jefferson Parish political leaders, including Tax

Assessor Lawrence e. Chehardy, for the creation of a district
composed primarily of that parish.

To achieve these goa1s, the SenaEe staff developed a plan

whichr ES the result of the sponsorship of Senator Samuel B.

Nunez, Jr. of St. Bernard Parish, would subsequently be referred

to as the "Nunez PIan." See Exhibit rrB't attached. As drafted,

this plan envisaged one black and seven white population majority

districts. Nunez's proposed First Congressional District, 72* of

which $ras made up of Jefferson Parish, combined that area of Ehe

parish lying west of t,he Mississippi River with Orleans Parishr s

Ward 15, and the parishes of Plaquemines and St. Bernard. The

proposed Second Congressional District consisted almost entirely
of Orleans Parish (94.9t), together with 25 contiguous precincts

drawn from east Jefferson Parish. SE. Tammany was restored to

the Sixt,h Congressional District, from which it had been excised

during the 1950s. By allocating separate districts to majority

bIack, urban Orleans Parish and virtually aIl-white residential

Jefferson Par ish, Nunez took into account the divergent,

frequently antithetical, concerns of city and suburban dweIlers,

as weII as parish lines and the natural geographic barrier

erected by t,he t'lississippi River. Utilizing 1980 census f igures,

Nunezrs Second District would be 54t black in population and 438

black in voter registration. The First District would have a

15



black population of 17.9t and a black voter registration of

12t. 11

On the the House side, the legislative staff devised a plan

which largely adhered to parish lines and left intact the

concentration of blacks residing in Orleans Parish. Named for

its sponsor, Representative Scott, this plan envisioned a 50.28

black population majority and 44t black registered voter

population in the Second Congressional District, and a 22.5*

black population and 17t black registered voter population in the

First District.
Governor Treen summoned the legislature into extraordinary

session on November 2, f98I for the purpose, inter alia, of

Iegislative and congressional reapportionment. Various bills to

reapportion the eight congressional disEricts hrere filed on the

first day of the session, among them the Nunez Plan, introduced

II. The population deviations and percenEages of
population and voter registration for each of the
congressional districts formed by the Nunez Plan are:

blac k
e ight

Dist.
I
2
3
4
5
6
7
I

Total Pop.

526 ,666
525,135
525, 581
525,067
525 ,656
525 ,07 4
523,847
524,953

t Deviation

0 .22
0. 07
1.02
s.08
0.04
0. 08
0. 3t
0. 1l

t Black Pop.

17.9
54.0
2L.3
31.5
31.1
22.8
20. 0
36. 9

t Black Reg.
Voters

13.0
43. 5
18.8
22.3
24 .5
17.5
15.8
30. 3

I5



in the Senate by Senators Nunez and Tiemann as S.B. 5, and the

Scott Plan, introduced in Ehe House by Representative Scott as

H.B. 2. Of all bills referred to the standing Senate and House

committees on governmental affairs, only S.B.5 and H.B.2
received favorable committee action.

tlembers of the Louisiana Black Caucus united with the

Jefferson Parish forces, Ied by Nunez and Chehardy, in urging

passage of the Nunez PIan. That Nunez and Chehardy grere

principally concerned with establishing a district controlled by

predominantly white Jefferson Parish was of littIe import to

black legislators, who advocated the planrs concomitant formation

of a majority black district in Orleans Parish. On November 4,

1981, S.B. 5 was reported out of committee with minor subsEant,ive

amendments and onto the Senate floor, where it was passed by a

vote of 3I to 6. A move to amend S.B. 5 to substiEute Governor

Treenrs Plan A was defeated, and S.B. 5 was sent to the House for

further action.

H.B. 2 was simultaneously reported out of House committee

and placed on Ehe House calendar on November 4, 198I, along with

an amendment to substitute Governor Treenrs Plan B for the Scott

Plan. The House Committee on House and Governmental Affairs

received S.B. 5 on November 5, 1981, but declined to amend H.B. 2

Eo adopt the Senate bi.l1. RepresenEative Charles Bruneau, a

member of the committee, tesEified that his vote in commiEtee

17



against S.8..5 resulted from the planrs abandonment of urban New

Orleansr 13O-year tradition of electing two congressmen.

fn proceedings before the full House on Friday, November 5,

the representatives declined to amend H.B. 2 Eo substitute Treen

Plan B. Despite the Committee on House and Governmental Affairsl
previous rejection of S.B. 5, the House then voted 51 to 38 to

adopt the Nunez Plan by engrafting it on H.B. 2 and dispatched

the newly-amended H.B. 2 lo the Senate.. Some of the 38 negative

votes stemmed from the perception thaE New Orleans would "lose'
control of a seat under the Nunez PLan.I2 Also cited was the

antagonism of a number of legislators toward the drawing of a

district whose racial composition would facilitate the election

of a black congressman. Representative tt{ary Landrieu testified:
There were people that supported bhat plan
[Nunez Plan], like myself, because we wanted
to be aggressive and pushing for a black
district or a district where minority voting
strength would be encouraged. And so there
were people on the opposite side who didnrt
feel they wanted to have a district that would
be able to elect a black representative.

Record, VoI. III at 49.

L2. Regardless of the sincerity with which it is held, the
IegislaEors' conviction is no longer valid. The population of
Orleans Parish, the region's nodal center, has historically been
Iarge enough to control two congressional disEricts. Given Ehe
loss of approximately 35r000 people over the last decade, and the
concomitant increase in the ideal districE population of
approximately 70r000 people, OEleans Parishrs population is now
only f.05 times larger than the ideal district required by Ehe
1980 census data. See p. 7, supra.

I8



Both houses of the Louisiana Legislature had thus approved

reapportionment bills incorporating the Nunez PIan in i Es

entireEy, although the House Bill inadvertently left out one

precinct. Upon learning of the action of the legislature,

Governor Treen announced his intention to veto the Nunez Plan if
finally passed. l3

Proponents of the Nunez PIan htere keenly ahrare of the

implications of Ehe Governorrs promised veto. Louisianars chief

executive has considerable power and influence, both de iure and

de facto. Test,imony reflects that the Louisiana Legislature has

never overridden a gubernatorial veto. A sufficient number of

legislators changed their position in response to the threatened

veto to assure the demise of the Nunez PIan.

Because of his decisive role in the defeat of t,he Nunez Plan

after it had received the overwhelming support of both houses of

the legislature, Governor Treenrs stated reasons for acting are

relevant. At trial, the Governor outlined the considerations

13. According to Article 3, SS L7 and 18 of the Louisiana
Constitution of L974, a bilt has the force and effect of law only
if passed by both houses of the legislature and delivered Eo the
governor within three days of passage wiEh the signatures of the
presiding officers, and the governor either signs it or fails to
sign or veto it within ten days after delivery if the legislature
is in sess ion, or with in 20 days if adjourned. Hence the
legislature has no authority "to create congressional disEricts
independently of Ehe participation of the Governor as required by
the state constitution with respect Eo the enactment of laws."
smilev v. HoIm, 285 u.S. 355, 373 (1932).

19



which prompted his objection to the Nunez PIan. He described as

unfair the submergence of St. Bernard and Plaquemines Parishes

under Jefferson Parish, albeit acknowledging that the populations

of these two coastal parishes would constitute only a minor

portion of any district. The Governor also wished to maintain

existing district configurations where possible, protect the

incumbent, Livingston, and retain Orleansr traditional influence

in the selection of two representatives.

Another concern of the Governor related to racial
polarization, which he perceived to be an inevitable consequence

of the deliberate sculpting of districts along racial lines. He

denounced any legislative scheme which intentionally drew

boundary lines so as to consolidate a majorit,y of one race within

a single district. He specifically rejected the Nunez Plan,

which would create a 55t black district, for this reason. In the

staters S 5 submission to the Justice Department, prepared by

counsel and approved by the Governor, this plan was charact,erized

as an attempt by the Louisiana Legislature to enact into law the

discredited idea of proportional representation.

These concerns were resEricted to the aggregation of blacks

within one district; the coalescence of whites was not regarded

as ominous so lorrg as Congressman Livingstonrs chances for

re-election were maxlimized. An Orleans-based disErict with a 55t

black populaEion was not acceptable to the Governor. As Iater

20



noted, an Orleans-based district with a 55t white population

encountered no objection.

The court finds that the Governorrs opposition to the Nunez

plan was predicated in significant, part on its delineation of a

majority black district centered in Orleans Parish.

On the morning of November 9, 1981, the Governor announced

his Reconciliation Plan, cognomened Treen Plan X. Substantially

similar to the alternatives previously rejected by the

legislaEure, PIan x provided for eight major ity white

districts.l4 That afternoon t,he House reversed its position on

the Nunez Plan and, by a vote of 79 to 22, substituted the

Reconciliation Plan as t,he text of S.B. 5. As thus amended, S.B.

5 was returned to the Senate and was there soundly re ject,ed,

throwing the matter into conference committee.

Appointment, of a conference committee was deferred until a

compromise acceptable to the Governor could be fashioned. Senate

14. Under
population

Distr ict

Treen Plan x, Eotal population
percentages for each of the eight

Total PopulaEion

525 ,669
525, g8 5
526,7 34
525,057
525,668
524 ,7 38
525,185
525,025

and black and white
districts are:

!{hite t B}ack

1
2
3
4
5
6
7
8

58. 86
53. 35
82.30
67.0s
68.25
73.00
79.L7
5r. 95

28 .87
44.75
Is.53
3r. 5t
31. r5
25.90
20. 09
37 .47

2L



president t'tichael Or Keef e of New Orleans summoned " interested'l

parties to a private meeting in the Senate Computer Room,

situated in the sub-basement of the State Capitol. Present at

varying times were Senators Nunez, OrKeefe and "Ilank" tauricella

of Jefferson Parish, Assessor Chehardy, Jefferson Parish

Representative John AIario, Louisiana A.F.L.-C. I.O. President

Victor Bussie, Congressman Gillis Long, congressional aides to

Boggs, Long and Tauzin, and members of the Senate administrative

st,aff. Black legislators were not invited, those resPonsible for

calling the gathering having decided that the goal of crafting a

district with a high minority profile would have to be abandoned.

A plethora of factors $ras considered at t,he meeting. Nunez

and Chehardy vigorously urged a district dominated by Jefferson

Parish. Treen Plan X, which split the parish three vraysr e{as

discarded at the outset of discussions. Also stressed was the

necessity of fulfilling the Governorrs objective of guaranteeing

the re-election of Congressman Livingston by adding enough white

suburban voters to t,he First Distr ict to of f set the impact of

inner cit,y blacks votes r ES well aS the desire of several

congressmen and state representatives to solidify incumbent

Boggs'electoral base by drawing a district as favorable as

possible for her. An obvious consideration hras the concentration

of blacks in New Orleans and the racial comPosiEion of the Second

District. AIbeit resolved to avert any ret,rogression of Ehe

22



approximately 40t black population in this distr ict, as

configured under Ehe L972 p1an, the goal of fashioning a district
which was at least 55t Jefferson Parish militated against raising

substantially the black population percentage of that district.

Hence the participants determined that the minorityrs interest in
obtaining a predominantly black district would have to be

sacrificed in order to satisfy both the Governor and the

Jefferson Parish group. As Chehardy candidly explained:

... the feeling in the meeting $ras that the
one group, the one contingency group that was
not going to come out of the session satisfied
was going to be the blacks. The reason for
that was that with all of the competing
interests . there was probably going to be
virtually no vray to satisfy the black members
of the Legislature . insofar as creating a
major ity black distr ict Iwas
concernedl. They [minority legislators]
didnrt have enough votes.

Record, Vol. III at 28.

Working Iate into the evening, the sub-basement conferees

ultimately arrived at that synthesis of conflicting interests

incorporated into Act 20. See Exhibit 'Cn attached. Jefferson

Parish constit,utes approximately 55t of the Second District under

the Act; portions of Orleans Parish make up the remainder. St.

Tammany, St. Bernard and Plaquemines parishes, togeEher wit,h the

Iakef ronl.'1 New Orleans east, and Algiers sections of Orleans
I

Parish, are placed within the First DisErict. The jagged Iine

dividing the First and Second Districts commences in Ehe east
I

23



below the west bank of the Mississippi River, casting Ward t5 and

Plaquemines Parish into District One. Traversing the

Mississippi, the line runs north for approximately 15 blocks and

juts sharply to the east to sever the southern extremities of

Wards 8 and 9, gathering predominantly wfite neighborhoods within

District One. Veering north through the midsection of Ward 9,

then west through Wards 9, 7, and 8, the line sweeps the

densely-populated black community of central New Orleans into

District Two, and the adjoining white neighborhoods which border

Lake Ponchartrain into District One. Iloving south and west, the

Iine fractures Wards 51 4,3, and 2 to separate white and black

areas into Dist,r icts One and Two, respectively. Ward L4, which

is 90t white, is aligned within Distr ict one. Tracing a

northwesterly path along the east bank of the t'tississippi, the

line extends north to dissect a discrete black concentration on

Carrolton, joining one part with an expanse of white population

in Jefferson Parish. The toEaI population, percent deviation

from Ehe ideal population, percent black population and percent

black registered voters for each district created by Act 20 are

as follows:

Dist.
I
2
3

0. 03
0. 2I
0.17

21. 5

38.7
L2.7

Total Pop.

525,3L9
526 ,605
526,364

t Deviation
t i;'t ac k Reg .

Vote rst Black Pop.

29 .5
44.5
L5 .2

24



4
5
6
7
8

525,067
525,668
524 ,37 4
525,196
525,389

0. 08
0. 03
0.2L
0. 06
0.02

31. 5
31. 2
25.L
20. I
38. 3

22.3
24.6
18. I
15.9
2L.9

District boundaries fixed by Act 20 are clearly racial in

character, selectively segregating white and black residents of

New Orleans into the majority white First Distriet and the more

heterogeneous Second District. When traced on a map of the city,
that portion of the Second District which cuts into Orleans

Parish resembles the head of a duck, with the bill splintering

Ward 9, a contiguous black community of approximately 94r000

people. Ward 8, which also contains a high concentration of

blacks, was sliced three ways, with the extreme northern

(Iakefront) and sout,hern segments assigned to District One and

the midsection to District Two. Although other black wards are

fragmented, the integrity of predominantly white wards is

assured. Of the 31 metropolitan precincts with a black

population oE 95* or higher, most of which are situated precisely

on the duck bi11, L7 were placed in Dis|rict One and 14 were

placed in District Two. Act 20's racial boundary line separates

cohesive black neighborhoods in the inner city which share conmon

political and socio-economic interests premised on income,

t,ransportation, education and housing. Similar disruption of

white neighborhoods is minimal.

Senate Secretary Baer, who with Senate staff member Nancy

25



Barringer wa: charged with producing a plan reconciling the

disparate interests of the sub-basement conferees' candidly

testified that neutral aPportionment guidelines heretofore

applied in drafting the Nunez PIan were jettisoned in the effort

t,o attain a compromi"".I5 Oistricts One and Two of Act 20' with

their distorted shapes and irregular, indented perimeters' are

not geographically compact. These unusual configurations are not

necessary to ensure adherence to the one-person, one-vote

rubric. In contrast to the Nunez Plan, Act 20 deviates from the

natural geographic barrier formed by the t'tississippi River' which

separates an enclave of inner city blacks from whites residing in

suburban areas.

New Orleansr traditional political sub-unit, the ward,IS has

15. It is important to emphasize that our comparison of the
effects of the Nunez PIan ata Act 20 intimates no view of the
former as the final expression of state redistricting policy.
Both the Governor and the legislature are integral comPonents. of
If,"--f"gisfjtir"'lro"li=; ttu=- uny plan that does not survive this
;;;.;"i- to becoire law must be- ieqarded as "proffered current
;;ii;y; "ni"t, 

- [nougn entitled to thoughEful consideration'
cannot be deemed a clear articulation of established state
;;;ta. S"" Sfiiu-S"u"ntt tlinnesota State Sena!-e---y-' Beens , 406

U.S. I87 (L972l t Carstens 982\ i
Shaver v. Xirffi F.Supp. -922 (W.D.tv{o' f982)

1 510 F'SuPP'- 1200

i;.i;.._i582|iitiiee-tshavenonethe1ess
i""ognized that the tartfrei a bill progresses in the legislature,
Lh;-*"i" probative it is of a disciete state Poligy.- thaver-Y,
Kirkpat,r ick; Skolnrc--6--i-:--lEaEe rjrectrr;rcrr .DecrL'J' :"tN:ri:iifibTi -ob-served we note
that the first arEicle oi the Louisiana Civil Code declares:
iLaw is a solemn expression of legislative wilI."

(fooEnot,e continued)
26



been selectively fragmented by Act 20. BIack population

16. Judge John Minor Wisdom described the origin and political
significance of the ward in Taylor v. McKeithen, 499 F.2d 893
(5th Cir. 1974):

A ward in New Orleans traditionally means
as much to its residents as a parish or county
does to its residents. The City has been
divided into wards since 1805, and most of the
ward boundaries are far more ancient than any
question of Negro voting strength.

The direct ancestor of the present ward
structure $ras adopEed in 1852. Ward
boundaries have been changed since then only
by the addition of nerd wards to accommodate
areas newly incorporated inEo the city, except
for a minor change in 1878 to correct an
anomaly and a major change in 1880 when a
substantial area was taken from the sixth ward
and added to the fourth and fifth. The change
of 1880 was the last change in the ward
boundaries to date. The Home Rule Charter of
the City for 1954 has the same ward boundaries
as its predecessor, the charter of L9L2.

The first function of the wards was to
serve as the districts from which were elected
the aldermen who formed the governing council
of the City. Since then, they have been used
as the basic uniEs of apportionment for
representatives in the United States Congress,
for presidential elecEors t for sEate senators
and representatives, fot judges and Iesser
officials of the city courts, for ciEy
councilmenr' for tax assessors, and for the
members of ,ithe numerous central or regional
committees *hich form the statutory structure
oE Ehe political parties. The wards have
structured working Ievels of political
organizations. Parties and factions have
generally,been organized along ward Iines with

(fooEnoEe contin':ed)
27



concentrations lrithin mosE of Ehe nine Orleans Parish wards split
by the Act have been disrupted, whereas white concentrations

remain essentially inviolate. Not a single ward is divided under

the Nunez P1an.

By disregarding parish lines and uniting populated segments

of Orleans and Jefferson parishes with mutually exclusive, often

discordant needs and concerns, Act 20 effectively ignores both

historic boundaries and obvious communities of interest. Since

Jefferson Par ish compr ises the major ity of Act 20 | s First
District, the interests of the more conservative, suburban white

populace have effectively eclipsed those of the less

conservative, urban blacks who make up only L7.98 of the

districtr s population.

Once completed, the new plan sras submitted to Governor Treen

for review. After the Governor accepted the plan on November 1I,
198I, senators Hudson, Nunez and o'Keefe, and Representatives

ward leaders as major political pourers.

Moreover, the wards are real and
important parts of the cityr s life and
culture. Residents of the City are likely to
speak of themselves as living in the Twelfth
Wardr or the Seventh, oE the Fourteenthr sdy
in contexts quite apart from politics; indeed,
in the same way that one would say that he
lived in Marigny or in the Irish Channel or
the Iower Garden District.

Id. at 904-05 (footnotes omitted). Evidence adduced
conEirmed Judge Wisdomrs assessment of the New Orleans
scene.

!

at tr iaI
poliEical

28



Scott, Bruneau and Alario were appointed to a formal conference

committee. None of these individuals is black.

A public meeting was convened by the committee for the

purpose of preparing a conference report on proposed Act 20.

Representatives Diana Bajoie, John Jackson, Alphonse Jackson and

Ilenry Braden, members of the Legislative Black Caucusr voiced

strenuous objection to the compromise Plan, all arguing that a

majority black district encompassing Orleans Parish was necessary

to enable minority voters to elec! a rePresentative of their.

choice. The testimony of Representative Turnley and New Orleans

Ntayor Ernest N. t'lor ia1, both black, illustrat,es that the

consensus of opinion among the staters minority leaders was that

Act 20 rrras inimical to the interests of Louis iana's black

constituency. Following an abortive attempt by Representative

Scot; Eo amend S.B. 5 to expand the Second Districtrs black

populaEion t,o 50.2t, the compromise provision was adopted by the

committee by a vote of 4 to 2, with Representatives Scott and

Alario dissenting.

On November L2, 1981, the House and Senate adop[ed the

conference comnittee report. Governor Treen signed this bill

inEo law on November 19, 1981, and it became Act 20 of the First

Extraordinary Session of 198f.

29



Votinq Patterns and Polariza|ion

There is a substantial degree of racial polarization

exhibited in the voting patterns of Orleans Parish. BY inserting

the 1980 census data in a comPuterized, steP-wise regression

program, Dr. Gordon Henderson, plaintiffsr expert, empirically

measured the extent of racial bloc voting in 39 Orleans Parish

elections between the years L976-82. This program first employed

a regression equation to predict the number of votes cast for a

black candidate by registered black voters in a sPecific

precinct. Another statistical tool, a Pearson correlation

coefficient, was then used to examine aII conceivable

relationships between a single dependent variable, votes in favor

of a black candidate, and several independent variables, inter

alia, the number of black registered voters and total population

per precinct, in order to isolate the one variable which most

accurately explained why those votes were received. The

coefficients derived by plaintiffs' expert demonstrate an almost

perfect, correlation between a candidaters race and that of the

voters who manifested a preference for his or her candidacy at

the ballot box.17

L7. For each of the 39 elections studied, the correlation
coefficient t ot statist,ical measure of the sErength of Ehe
relationship between the votes received by black candidates and
Ehe number of black registered voEers, whiEe registered voters or
white persons, coupled with the number of precincts from which
data were obtained, were listed by Dr. Henderson aS follows:
(footnote continued)

30



Plaintiffs I quant i tative showing of polarization was

Date

8/3/7e
4/7 /7e
L0/27 /7e
L0/27 /79
L2/8/7e
L2/8/7e
4/ 4/8L
5/L6/8r
L0/L7 /sL
L0/L/77
Lo/L/77
L0/L/77
Lo/L/77
4/ 30/77
4/5/80
5/L7 /80
e/L3/80
e/L3/80
8/ 4/78
e/L6/78
e/L6/78
LL/l /78
8/L4/7 6
8/L4/7 5
Lo/ 2/7 6
L0/2/7 6
LL/2/7 6
LL/ 4/80
4/L/78
LL/ 4/80

office
Judge, District H

Judge, District H
Judge, Section E
Judge, Section C
State Senate, 6th Dist.
Judge, Section E
Councilman rDn

Councilman nD'
Judge, Section C

Mayor
Counc ilman-at-Large
Councilman uB'
Clerk, Crim. Dist. Ct.
Assessor, 4th Dist.
B.E.S.E., Znd Dist.
B.E.S.E., Znd Dist.
Schoo1 Board
Judge, Section A
State Senate, 4th Dist.
t'tagistrate Judge
Judge, Section B
School Board
Judge, Section C

School Board
Counc ilman-at-Large
Councilman 'B'
School Board
School Board
StaEe Senate, 4th Dist.
Judge, Section A

Black
Req. Voters

.87

.89

.94

.65

.94

.84

.92

.90

.87

.95

.93

.80

.67

.94

.5r

.62

.89

.91

.82

.90

.90

.90

.90

.88

.87

.88

.80

.65

.95

.97

.83

.90

.97

.98

.92

.96

.80

Wh ite
Pop.

-.40
-.44
-. 41
-. 04
-.73
-.22
-.69
-. 68
-. 40
-. 45
-.42
-. 45

.00
-.72
-.L7
-. 31
-. 31
-.45
-.53
-. 39
_.46
-. 40
-. 51
-. 50
-.44
-. s5
- .27

.10
-.7 4

-. 39

White
Req. Voters

- .28
-.32
-.54
-.54
-. 56
_. 48
-.14

No. of
Pcts.

426
426
426
392
5l

426
85
85

392
426
426

78
426

31
r94
194
426
392

60
426
426
426
426
426
425

78
426
426

50
392

428
428
428
428
428
428
428

2/ 6/82
3/20/8 \
2/5/sz t
3/20/82
2/ 5/82
3/20/82
2/ 6i82
( footnqte

Civil Sheriff
Civil Sheriff
Mayor
Itlayor
Judge, Section I
Judge, Section I
Counc i lman-at-Lar ge
cont i nued )

3l



buttressed by the testimony of trained political observers.

Mayor !,torial, now in his second term, has been actively involved

in politics at the state and local levels since his election to

the legislature in L967. He has been elected to positions in all
three branches of government. Mayor t'loriaI opined that racial

bloc voting is prevalent in Orleans Parish. On the basis of a

study of the literature relative to 18 elections conducted in

Orleans Par ish from 1950 to L976, DE. Richard Engstrom, a

professor of political science at the University of New Orleans,

found substantial evidence of voting along racial Iines. with

reference to the L977 mayoral contest in which Mayor Morial

prevailed, DE. Engstrom opined that the New Orleans metropolitan

2/6/82 Councilman 'B'
2/6/82 Councilman rrDrr

.85

.74
-. 45
-. 35

90
91

According to Dr. Henderson, the range of a Pearson
correlation coefficient, also known as a Pearsonian product
moment, correlation coefficient, is from -I.O through 0 to +1.0.
Coefficients of -I.0 and +1.0 indicaEe a perfect relationship
between two variables. In other words, a value of -1.0 or +1.0
enables a statistician to perfectly predict one variable if he or
she knows the value of Ehe other. Coefficients of +.5 and higher
are deemed statisticatly significant. Values of .7-or higher are
extremely rare, and attest to a strong correlation between two
variables. A coefficient with a value at or near 0, on the other
handr evidences a weak relationship. See -Elerallv., D. Baldus
and J. Cole, Statistical Proof of Discrimination S 5.32f (1980);
N. Nie, C. Hul1, J. Jenkins, K. Steinbrenner and D. Bent, SPSS:
Statistical Package for SociaI Sciences at 279"90 (2d. 1975).

The 39 coefficienEs calculated by Dr. plar"on range from
+.51 to +.95, indicating' t,hat a candidate's race was the single
variable most predictive of the number of votes received by Ehat
candidate. '

32



area was gradually becoming more polarized. Defense exPert Dr.

John Wildgen postulated, in a published study, that racial

polarization determined the outcome in New Orleans school board

elections.

One explanation for the perceptible growth of racial
polarization over the last 15 years, proffered by plaintiffs'

expert Dr. Ralph Cassimere, a professor of history at the

University of New Orleans, is that as blacks have begun to gain

access to elective office, white voters have rallied in

increasing numbers to vote for candidates of their race. A lower

margin of victory for black incumbents evinces a greater

reluctance on the part of white voters to vote for a black. As

Dr. Cassimere observed:

. . . polariEy is much more pronounced among
whites in voting for black candidates. Black
Ivoters] . traditionally have voted for
white candidates. I think there is some
feeling of illegitimacy about black
cand idates .

Record, VoI. II at 1I9.

In an effort to rebut plaintiffs' evidence of polarization,

defendants introduced a statistical analys-is of white cross-over

voting in three recent New Orleans elections. This analysis,

prepared by demographics expert Kenneth SeIle, sampled returns

from 37 all-white or black precincts and purported to demonsErate

that race had no effect on the results of city-wide elections.

t'lr. Sellers use of an arbitrary, rather than the preferred random

33



method to select test precincts severery biases the resurts ofhis analysis'' The units chosen are not representative of the 400or more precincts in New orleans, and hence are not sufficientlypredictive of voting patterns in the city at large. some of theprecincts culled $rere racially heterogeneous. Since it isimpossible to ascertain, sorery from the returns of a mixedprecinct, whether individuals who voted for a particular
candidate are black or white, data drawn from such precincts areof scant probative value. For these reasons, the court attacheslittle weight to defendantsr cross-over analysis.

Assuming, ar!,uendo, that defendants had established theexistence of a significant white cross-over vote in orreansParish' the court remains persuaded that raciar polarizationplays a significant role in the electoral process. The evidence
shows that onry those affluent, better-educated whites residingin the city's French Quarter and university districts areinclined to vote for a black candidate. This Iibera1, whiteconstituency is unique to Orleans parish. Similarly eclecticvoting preferences cannot be anticipated in the adjacent suburbanparishesr whose recentry enhanced populabions can be partially

ascribed to the exodus from New orleans of white famiries seekingEo avoid court-ordered desegregation of the city,s public
schools.

Nor does Ehe fact that severar blacks have gained erective

34



office in Orleans Parish detract from plainEiffsr showing of an

overall pattern of polarization. To the contrary, Mayor Morial

attributes his victory in the 1982 mayoral race to his success in

marshalling the black vote. Of the approximately 70 Orleans

Parish officials elected throughout the parish, only 15t are

black. A greater number of minority officeholders would be

expected in a parish with a black population of 55t.

According Eo the expert testimony, Louisiana's majority vote

requirement, which ordains that a winning candidate must receive

more than half the votes cast in an election, inhibits political
participation by black candidates and voters in a racially
polarized environment. Racial bloc voting, in the context of an

electoral structure wherein the number of votes needed for

election exceeds the number of black voters, substantially

diminishes the opportunity for black voters to elect the

candidate of their choice. !1r. Selle testified that in Louisiana

a threshold black/white population ratio of 62/38 is a

prerequisite to the creaEion of a "safe" minority district, or

one in which the election of the candidate preferred by black

voters is guarant,eed. Conversely, a 50/50 ratio of black to
white population gives rise to a safe white district.IS

18. Demographic studies prepared by Mr. Selle were offered to
show projected racial populaEion growEh between the 1980 and 1990
censuses. Through these studies, defendants soughE Eo prove a
future increase in the black population percentage in Act 20's
(footnote continued)

35



Discrimination: Past and Present

Louisianars history of racial discrimination, both de iure

and de ..1[gg!g, continues to have an adverse effect on the ability

of its black residents to participate fully in the electoral

process. Dr. Ralph Cassimere t,raced that history to its genesis

during the era of slavery, when the franchise rdas conferred

exclusively upon white males. With the advent of post-Civil War

Reconstruction, black males were permitted to register. Between

1868 and 1896 many black state legislators were elecEed. Two

blacks rrere elected Lieutenant Governor and one, P.B.S.

Pinchback, was selected by the state Senate to fill a vacancy in

that position and later served as Acting Governor. Pinchback

subsequently was selected to serve in the United States Senate

but was noE seated. Three blacks claimed seats in the United

States House of Represent,atives but only one, Charles E. Nash,

was seat,ed. Charles VincenE, Black Legislators in Louisiana

Second Congressional District of close to 5.7t and, in the First
District, of 1.5t. Given t'lr. Sellers failure to distinguish
blacks from a significant number of ethnic and racial grouPs
subsumed within the Census Bureaurs non-white category, and to
apply his methodology in a consistent manner to all parishes
within the targeted districts, the court finds these data highly
suspect and inadequate to prove that the Second DisErict's black
population percentage wiIl increase significantly under the
present Act. See Kirkpatrick v. Preisle[, 394 U.S. 525, 535
(1969) (nIf]indlngs as to population trends must be thoroughly
documented and applied throughouE the State in a systematic, not
an ad hoc, manner.").

36



Durinq Reconltruction. Although black suffrage flourished from

1867 to 1898, a gradual return to white supremacy culminated in

the Louisiana Constitution of 1898. At that time, the state

succeeded in imposing a "grandfather" clause, as well as

educational and property qualifications for registration. These

requirements combined to reduce black voter registration from

approximately 1351000 in 1895 to less than 11000 in 1907.

Following the Supreme Court I s invalidation of the

grandfather cLause in 1915, Guinn v. United States, 238 U.S. 347

(1915), voters were subject to an 'runderstanding" clause which

hindered black registration. Poll taxes $rere levied, and

registration rolls purged. In L923, the state authorized an

aII-white Democratic primary which functioned to deny blacks

access to the determinative elections, inasmuch as Republican

opposition to the Democratic parEy in the general elections was

nonexistent. This strategem persisted until its condemnation in

Smith v. Allwriqht, 32L U.S. 649 (1944). Citizenship tests and a

prohibition against anti-single shot voting were instituted in

the 1950s. As a further obstacle to minority access, the

Iegislature established a majority-vote requirement for election

to party committees in 1959. For a quarter of a centuEy, from

1940 to 1954, the SEates Rights Party spearheaded a strong

movement against black enfranchisement and judicially-directed

desegregation. But for those declared unconstitutional by the

37



Supreme Court, the various disenfranchisement techniques

implernented by the state and its white majority parties

suppressed black political involvement until banned by Congress

in I955.19

tike other southern states, Louisiana enforced a policy of

racial segregation in public education, transportation and

accommodations. Despite the Supreme Courtts ruling in Brown v.

Board of Education , 347 u.S. 483 (1954), Iocal school boards

refused to desegregate in the absence of a federal court order.

19. Statistics demonstrating the extent of black
disenfranchisement between IgfO and October I954, inclusive, have
ffi; -ompiled in Louisiana Politics at 299 (Bolner, €d. 1980):

Black Voter Registration in Louisiana,
1910-1964

Dates Black Reg.

Est. Black
Adu1t PoP.

(Most Recent Census)

t Black
Adult Pop.

Reg. to Vote

Oct. ,
Oct. ,
Oct. ,
Oct. ,
Oct. ,
July,
Oct. ,
Dec. ,
Dec. ,
Oct. ,

1910
19 20
19 28
L932
19 36
1940
19 44
19 48
L952
1954
19 55
1960
L962
1964

730
3, 533
2,054
l, 591
1r981

885
Lt672

28,L77
t07,844
LL2,789
L52 ,578
158,755
150 r 878
L54,7L7

L7 4,2LL (t'tales)
359,25r
359,25L
415, 047
415 , 047
47 3 ,562
413,562
47 3,562
481,284
481,284
48L,284
514, 589
514,589
514, 589

.4

.9

.5

.3

.4

.I

.3
5

22
23
3t
30
29
32

38



Even today, the federal courts are compelled to monitor schoors
around the state for compliance with Brownrs teachings. A duar
university system lras operated by the state untir r9g1, when it
was dismantred pursuant to a consent decree. public facilities
were noE open to members of both races until the late 1g50s.

As a consequence of Ehis history, separate white and black
societies devel0ped in orreans parish. segregation was the norm
in the private sectorr ES reflected in the parishrs monochromatic
neighborhoods, churches, businesses and clubs. Discrimination in
employment was widespread.

whire direct impediments to brack registration in voting
have been eradicated, the residual effects of past discrimination
sti11 impede blacks from registering, voting or seeking erective
office in orleans Parish. No brack has been elected to statewide
office in Louisiana in Ehis century, nor has any served in
congress since the days of Reconstruction. Notwithstanding a
black population of 29.4*, onry 7t of Louisiana, s elected
officiars are black. current census figures disclose that bracks
on the average earn less than whites; g5t of alr persons with an
income of ress than $5r000 are brack. Blacks in contemporary
Louisiana have less education, subsist under poorer living
conditions and

Ehan whites.

in general occupy a lower socio-economic status
Though frequently more subtler €mploymenE

These factors are the legacy of

39

d iscr iminat ion endures.



historical discrimination in the areas of educaEion, employment

and housing. Such influences, in conjunction with past election

practices excluding blacks from the political process, account

for the present disparity between black voEer registration and

black population in Orleans Parish. From the evidence adduced,

we are persuaded that they account for the lower black turnout at

election time. A sense of futility engendered by the

pervasiveness of prior discrimination, both public and private,

is perceived as discouraging blacks from entering into the

governmental process.

Conclusions of Law

Invoking its authority to enforce the substantive provisions

of t,he fburteenth and Eif teenth &mendments, Congress recently

amended S 2 of the Voting Rights Act of 1955, 42 U.S.C. S f973

(f982 ) .20 Specifically des igned to reach claims of voting

20 . H. R. 31I2, amending S 2 to incorporate a " results " t,est and
extend Ehe I965 Voting Rights Act, $ras passed by Ehe House on
October 15, 1981. The Senate adopted the version of S 2 reported
out of the Senate Committee on Ehe Judiciary, S. L992r on June
18 , I98 2 . On June 23 , L982, t,he House unan imous Iy adopted t,he
Senate bill. As signed into law by the President on June 29,
1982, amended S 2 of the Voting RighEs Act of 1965, 42 U.S.C.
S 1973, provides:

(a)NovotingquaIifrcationorPrerequisit,etc
voting or st,andard, pracEice r oE procedure Ishall be imposed or applied by any State or
political subdivision in a manner which
results in a denial or abridgement, of the
right of any citizen of the UniEed SEates to '

(footnote continued)

40



dilution heretofore deemed beyond the ambit of S 2, Report on S.

vote on accoun_t of race or color r or incontravention of !-n"_ guarlntees set forth ins 4(Er-.,-r t12 g:s.6. -i-rgi: trl rzl'il-' aaprovided in subsection (U).-
(b) A violation of subsection (a) isestablished if , based on-- tn"---tot"r,iiy ofcircumstances, it is shown- that the politicalprocesses leading, to nomination or election inthe state or o6riticar--s-uutivision are norequalry 

-op9n . td participaiiJn by members of acrass of citizens prote-ted by lubse.tion (a)in that its memberi tarJ r"""- opportunity thanorher members of tte "iecEJII." ro parrici.patein the poriticar pio"L"" and to erectrepresentatives of their choicJ. - ft," "ii"ntto which members of--1-piot".t"a crass havebeen elected to. office i; the State orpolitical subdivision --i, -on" 
circumstancewh ich may be cons idere-il - 

. 
p.rovided , ThatnoEhing in this section estaurlshes a riqht tohave members of a protected class electled innumbers. equal to -theii - p.oportion in thepopulat ion.

we are persuaded that congress intended the Lggz amendmentsto Eake ef f ect irunediateiy, an-d thus--io apply to pending cases.see 128 cons' Rec' H38ai- ia"ilt ;; *lq 23, tssl) (remarks orRep' sensenbrenner); ic- aE .SiOgs (dairy--da.--;;;" 18, Lg82)(remar ks of sen ' xennEiv r ,3]?. ti{ 
. -ti::. manager of s . Lggz) .Accord, HartEord, nacilr vote birrtion and' separation ofpowers: An Exproration-.of ttr; con?ii"t gJrr""n- the Judiciar"rntent" and tha lggisiitive ;R;";r-t;''i standards, 50 Geo. wash.L'Rev' 689 ' 725 (1992). several dilution- actions'initiated priorro June 29, Lgg2, the effectivi-air"-Ji the 

"rn"nar"nt", have beendisposed of oursuant to anended S-r: -i,
, 
- ii;ir-- ri".-' ffi,.tf;., ffiffifii.iffi; yl"]i*i;:;",;" "&J[t : 

-.";,J 
""T:l round r harappricatioi of - S 

-i-l;, 
a 

- 
di"t.iffi: pl?n did nor presenE a:;t[fr:";i# tI" trTJ;."0"""rX:."r"i:: 

"ilivi i; rocusea ;; rh; ertet rs-

4I



L992 of, the Senate Committee on the Judiciary, S.Rep. No. 97-4L'l ,

97th Cong., 2d Sess. 28 (1982), Rvbicki v. SEate Board of

Elections, Civil No. 81-C-6030 (N.D. I11. I983) (Ehree-judge

court), 2L the 1982 amendmenE dispenses with the requirement that

a plaintiff demonstrate intentional discrimination in the

imposition or maintenance of the disputed electoral structure.

S.Rep. No. 97-4L7 at 16. See Buchanan v. Citv of Jackson, No.

8t-5333 (6th Cir., filed June 7,1983); Campbell v. Gadsen Countv

School Board, 691 F.2d 978 (llth Cir. L982li Mcttillan v. Escambia

2L. In Citv of MobiIe v. Bolden, 446 U.S. 55 (1980), four
Justices of the Supreme Court opined that vote dilution claims
are cognizable solely under the Eourteenth Amendment. Under the
pluraliEy's narror, construction, t,he Fif teenth Arnendment bars
only a direct, purposeful denial or abridgment of t,he right of a
black person to vote. Since former S 2 of the Voting Rights Act
of 1965 nwas intended to have an effect no differenE from thaE of
the Fif t,eenth Amendment itself , n id. at 61, it Iikewise was not
deemed to support a dilution cause of action. Though the Fourth,
F ifth and EighEh Circuits have concluded t,hat Ehe five-Justice
majority subscribes to the view that, the EifEeenth Anendment
gives r ise to a dilution cIaim, !8, €.e. r Perhins v. CiEv of
West Helena, 67 5 F.2d 201 (8th Cir.), aEf'd mem.West Helena, 67 5 F.2d 20I (Eth Cir.), aff'd mem. U.S.
T0r-s.ct. 33 (1982); washinqeon vIFffi55trF;2d 9t3
f,,[EE-Cir. I98I); Lodqe v. Buxron, 639 F.2dl35€--(5en Cir. l9B1),
aff fd sub nom,. @, _ U.S. _, 102 S.Ct. 3272
ffiupffierffi-llies ETi-noritv of Ehree.ffiupffiei llies a minority of Ehree.
Rogers v. Lodqe, U.S. , I02 S.Ct. 3272, 3276 n.5#(I982) ("Three Justices lJustice Stevens, concurr ing, and
Justices White and MarshalI, dissent,ingl disagreed with the
pluralityr s basis for putting aside the E'if teent,h AmendmenE. " ) .
The Roqers court expressed no opinion on Ehis issue, Ieaving
undisturbed t,he plurality's decision with respect to the
applicability of Ehe Fif teenth A'nendment and the or iginal version
of S 2 to dilution claims. See Campbel
Board; t'tcttillan v. EscambiaGui'ffii:weffi.

42



counrv, 688 .1.2d 950 (5th Cir. 1982), jsg. postponed, 

-
U.S. _, 103 S.Ct. 1766 (1983). Guided by Ehe axiom that

cases should be resolved, where Possibler ort statutory rather

than constitutional grounds, we shall analyze PlaintiEfsl

dilution claim under Ehe amended S 2.22

ZZ. Dilution jurisprudence has evolved primarily in the context
of constitutional challenges to state at-Iarge or multimember
districts. Though the Supreme Court, has noE directly addressed
the issue, this circuit has recognized'Ehat the sEandards for
aecision developed in the multimember or at-large districting
cases govern t,he ad j udication of claims involving _the
const,itutionality of single-member districts. t'levett==Y.,?i99F,
571 F.2d 209 (5th Cir. 1978), cert. denied, 446 U.S. 951 (1980);
Kirksey v. Board of SupervisorP r- 554 F.2d I39 (5t'h Cit^. ) , . ceE!:

s

ff'Otq (5tfr Cir. f974). See R. Dixon, Democratic
i"pi"."ntation: ReapporEionment Tn Law and Politics 484
(f!eet. With regard Eo Ehe applicability of the dilution
rationale to congressional districEing casesr w€ believe the
better view is that irrespective of whether a state legislative
or congressional dist,r icting Plan is Ehe subject oE dispute, "'we
are required to determine the same q\restion, whet or not there
EEs SEen an uncoq;t,itutional manipulat on of the electoral

ffiles so as to miniqize or ilute the votrn
st':enqt a minority class or interesE. Nevett v. Sides, 571
Er

llgvggg v. vrvsg,

iffi , 505
I (emohasis in oriqinal). See, e.q,, In re:F.2d at 678) (emPhasis in original) . 9gg,See, €.9, r In re:

1973) (en banc), aff-d on other qrounds sub nom. East CarroII

pennsvlvania Conqressiofri]_ Dist_r icts _B,qapportigrlment= =C,a=sesr, 
CiviI

age court), aff'd-su!' -ggln'(u.s.s.ct.'rffi;
ffi i sTonq r e s s i o n a t p i F Ei i c !s 

= 

Reappo r q ionme!! = 9as e s,
:j,qdge court), aff'd mem.

ffiv. otto, 454 u.s. l13o (1982).

SimiIarIy, the "toEality of circumstances" anaIySis, derived
f rom the multimember dilution cases of Whit,e v. Req ister , 4L2
U.S. 755 r1973), and Zimmer v. YcKeit,hen, 485 F.2d L297 (5th Cir.

Par ish School Board v. t'la r s naII r
cur iam) ,
congressional dist,ricting schemes. According to Ehe SenaEe
( f oot:roEe . cont inued )

;t-'Boa -TWTFer
to staEe leg islative or

13



A. Constitulionalitv of Amended Section 2.

Before proceeding Eo the merits of plaintiffsr dilution
I

claim, we must address defendantsrchallenge to the 1982 amendment

to S 2. Defendants take the position that in codifying a test

which relieves complainants of the burden of proving invidious

intentT Congress has sought Eo overrule the Supreme Court's

holding that such intent must be established as a prerequisite to

recovery under either the Eourteenth or Eifteenth amendments.

Citv of Mobile v. Bolden, 446 U.S. 55 (1980). Given the

congruence of S 2 and the Pifteenth amendment, defendants argue,

the separat,ion of powers doctr ine precludes Congress from

expanding the sEatute to reach claims founded on discriminaEory

impact alone. By amending S 2 to accomplish this impermissible

aim, the legislature has, in defendanEsr estimation, usurped t,he

judiciary's exclusive prerogative to define the Iimits of t,he

Const i tut i on .

In amending S 2, Congress reaffirmed "the right, of minority

Judiciary Committee:

Whitcomb Iv. Chavis, 403 U.S. L24 (I971) J,
l{h:1!gr 3;!mmeg, and their progeny dealt with
electoral system features such as at-large
elections, major i ey voEe requi rements and
Istate legislative] districEing plar,:.
However, Section 2 ren:ins Ehe major sEatuicxy
prohibition o.f
discrimination.

rlI voting

S.Rep. No. 97-4L7 at 30 (emphasis added).

14

r iehts



voters to be..free fron election practices, procedures or methods

thag deny t,hem the same opportunity to participate in the

political processes other citizens enjoy.n S. ReP. No. 97-4L7 at

28. Two principal objectives of the stat,utory nresults'test

were posited: Eo reach discr iminatory conduct which rnight

otherwise evade liability under the more stringent intent assay,

and to eradicate the contemporary effects of past

discrimination. .]!1|. at 40; [I.R. Rep. No. 97-227, 97th Cong., Ist
Sess. 3 (1981). To this end, amended S 2 resurrected the

principles applied in voting registration cases prior to

go1den.23 According to the Report of the Senate Comrnitt,ee on the

23. In White v. Regester , 4L2 U.S. 755 (1973), the Supreme Court
identifi@facEorsreIevanttothedet,ermination
whether a multimember or at-large dist,ricting system denied
blacks and Hispanic voters full access to the political
process. Focusing on whether the districEs operated to dilute
Ehe voting strength of racial and ethnic minorities, the Court
held that "t,he impact of the distr ict . constiEuted invidious
discriminat,on. " Id. at, 767. The Former FiEth organized Ehe
White crit,eria inE-o-a coherent Eest which permitted Ehe facE of
E-iffiion to be established upon proof of the aggregate of Ehese
criteria. Zimmer v. McKeithen, 485 F.2d L297 (5Eh Cir. 1973) (en
banc), aff tffisub nom. East Carroll School Board
v. ui'rs
ETiEuIt reconsidered the impact.-oriented Zimmer analysis in tight
of Washinqton v. Davis , 425 U.S. 229 (1976), and Villaqe of
Ar linqto v. Metr Iitan Housing Development Corp., 429

, plaintiffs asserting diluEion claims in this
circuit could prevail by demonstraEing either discr iminatory
results or intent. See auEhor i t ies ciEed in Nevet,t v. Sides , 57L
F.2dat232(9{isdomr.7.,SPecral1yconcurrin@the
court ruled Ehat while a showing of invidious inEent is essential
t,o recovery under the Fourteenth and Fifteenth Amendments, such
intenE could be inferred from proof of an aggregate of the Zimmer
factors.
(footnote cont,inued)

45



Jud iciarY:
In pre-Eolden cases plaintiffs could prevail
by showi-ng that a challenged election law or
piocedure, in the context of the total
circumstances of the loca1 electoral Process,
had the result of denying a racial or language
minority an equal chance to participate in the
electoril proiess. Under this results test,,
it was not necessary to demonstrate that the
challenged election law or procedure was
designed or maintained for a discriminatory
purpose.

In Ecl(lgg, a plurality of the Supreme Court
Urofe wLtfr precedent and substantially
increased the burden on plaintiffs in voting
discrimination cases by requiring proof of
discriminatory purPose. The Committee has
concluded that this intent Eest places an
unacceptably difficult burden on plaintiffs.
It diverts the j udicial inquiry from the

A plurality of the Supreme Court subsequently rejected the
Eifth Circuitrs effort, in @!!, to reconcile Zimmer with
Washinston and Arlinq'ton IIET6'ETE- by injecting. --ai-intenE+ .roiffitt 'sed on arequi rement, opining that Nevqtq (rras premi
miJapprehension that proof of discriminatory impact permitEed an
inference oE discriminatory inEent. Acknowledging Ehat Zimmer's
circumst,ant,ial f actors ,iignt 'af f ord some 

- evidence-E a
discriminatory purposer" the plurality stated t,hat such factors
would not, alone furnish sufficient evidence thereoE. 446 U.S. at
73. With respect, to t,he significance of Bolden, t,his court laEer
opined t,hat '. o . it aPPearS t,hat, the Supreme Court has somewhat
increased Ehe proof on plaintiffs in Ivote dilutionJ cases. n

Accplll, Lodqe v. Buxton, 639 F.2d 1358, L373 (5Eh- Cir. I98l)l
a?ftfLuffi Lodse, u.s. , lo2 s.ct. 3272, t02 s.cr. 3272
ffin@ofE-of in ffi?ge vore Dirurion
Discrimination Cases After City of Mobile v. Bolden, l0 Fordham
Urb. t.J. 103 (198f). A marority of the Supreme Court Justices
evidently concurred in this j udgment. See f ootnote 22, i.nf ta.

For an exhaustive survey of vote dilution jurisprudence,
from iEs origins in the seminal case of Revnolds v. Sims' 377
U.S. 533 (I964), to Bolden, see Ehe Report on S. 1992 of the
Senate Judiciary Committee, S.Rep. No. 97-4L7 at L9-27.

15



crucial question of whether minorities have
equal access to Ehe electoral Process to a

lsicl historical question of individual
motiveg.

S.Rep. No. g7-4L7 at L6.24

Regardless of whether former S 2 purported to track the

Fifteenth Amendment, and thus mandated proof of invidious inEent,

Congress has since elected to broaden the statutory proscription

to embrace conduct which is discriminatory in either purpose or

effect. Assuming that amended S 2 constitutes a valid exercise

24. While reaffirming the Bolden purposeful discrimination
requirement, the Supreme Court has itself alleviated to some
degree t,he complainant's burden of proof in Rogers v. Lodqe,

U.S. _, 102 S.Ct. 3272 (1982). In Rogers, six Justices
E!@ved cnfrTttn Circuit I s reliance upon pEoT-of the factors
set forth in Zimmer v. McKeithen,485 F.2d L297 (5th Cir. f973)
(en banc)r af s sub nom. East Carroll Parish
Schqol Board v. ttarshall, 424 U.S. 535 (I975) (per curiam), to

cr iminatory int,ent in a vote dilution
case. By approving j udicial resort Eo the Z immer cr iter ia,
heretof ore ad judged - inldequate in Bolden, to eEE[Tsh intent,
and evincing greater deEerence t,o the factual findings of Ehe
trial couri, the Roqers opinion "signals a significanE reereat
from the BoI@ plurality's racial vote dilution analysis and a
revitalizaEffi-ot the zimmer factors in t,he context of an
Iintent] o . . inquiry. 

-Hartford, 

Racial Vote Dilution, 50
Geo.Wash.L.Rev. at 716-17. See Buchanan v. Citv of Jackson, No.
8I-5333 (6th Cir., filed .fun-Z ared
to require direct evidence of discr iminatory intent, whereas
Rooers restores the significance of circumstantial evidence in
ascertaining the existence of such inEent,, Ehe latter represents
a marked departUre from the plurality's opinion in BoIden);
t'tcMiIlan v. Esc:,mbia County; CardwelI, Vot,er DiluEion and the
ffirl-fffiffi-r,aw 853 (1982). DissenEing Justices
PoweIl and Rehnquist maint,ain that the holdings in Bolden and
Roqers cannot, be -reconciled, suggesting that Ehe Bofdtf!-T;TT6naIe
Ea-Tn effect been repudiaEed bf the majoriEy. Effi v. Lodqe,
102 S.Ct. at 3281 (Rehnquist and Powell, JJ., dissenEing).

47



of legislative Power, Eherefore, the Bo1den courtrs

interpretation of Ehe original S 2 is no longer controlling.

Accordinglyr er€ turn for guidance to a long line of Supreme Court

casee wherein other key provisions of the 1965 Voting Rights Act

have passed const,itutional muster, such provisions having been

deemed to f all within t...e purview of Congress I enf orcement,

author i Ey.

section 4 (a) of Act, 42 u.S.c. s 1973b(a), abolishing

literacy tests in any jurisdiction where less than 50t of the

voting age residents had voted in prior elections, was considered

a necessary and proper means of implementing the Eifteenth

amendment in South Carolina v. Katzenbach, 383 U.S. 301 (I955).

Addressing the st,ate's contention Ehat Congress had exceeded its
enforcement poerers under S 2 of the Eif teenth A.mendment, the

Katzenbach court, proclaimed that "Congress has full remedial

powers to effectuate the constitutional prohibition against

racial d iscr imination in vot i ng. " Id. at 326. The Court has

since ciEed Katzenbach for the proposition "that congressional

authority Iembodied in S 2 of Ehe Eifteenth emendment] extends

beyond the prohibition of purposeful discrimination to encompass

state action that has discr iminat,ory impact perpet,uating the

eEf ects of past, discrimination. " FulI:llpve V- !{!!Ltaq:ck , 448

u.S. 448, 477 (1980) (dicta).25

Later in the I955 termr r11 Katzenbach v. I'{orqan,384 U.S.

18



o

541 (1966), ..the Supreme Court sustained S 4 (e) of the Voting

Rights Act of 1955, 42 U.S.C. S 1973b(e), againsE an attack

founded on S 5 of the Fourteenth Amendment. Section 4(e) forbade

the use of English Iiteracy tests to deny the right to vote t,o

any person who had attained a sixth grade education in an

"American FIag" school, in which t,he Ianguage of instrucEion vras

other than English. This provision was aimed at New York's

disenfranchisement of Puerto Rican residents. Writing for the

majority, Justice Brennan analogized Congressr $ 5 authority to,

25. In Klutznick, a pluralit,y of Ehe Supreme Court upheld the
constitutEfrELiE[-of the 'minoiity businesi enterpr ise" provision
of the Public Works Employment, Act of L977, 42 U.S.C,
S 5705 (f\ (21 , which dictates Ehat fOt of federal grants for local
public works projects be set aside for minor ity business
enterprises. Chief Justice Burger's plurality opinion displays a
deferential at,titude toward Congressr exercise of its remedial
POwers:

Here we deal . noE wiEh the Iimited
remedial powers of a federal court, . but
with t,he broad remedial powers of Congress.
It is fundamental t,hat in no organ of
government, state or federal, does Ehere
repose a more comprehensive remedial power
than in the Congress, expressly charged by the
Constitution with competence and authority to
enforce equal prot,ection guarant,ees. Congress
not only may induce voluntary acl.ion to assure
compliance with existing federal statutory or
constitutional antidiscrimination provisions,
but, also, where Congress has .author ity Eo
declare certain conduct unlawfurl it may
author ize and induce state action Eo avoid
such conducE. ,

448 U.S. at 483-84 (citation omirred).

49



inter alia, the plenary grant of the necessary and ProPer clause,

Article l, S 8, cl. 18. Thus, the critical question was rwhether

S 4 (e) may be regarded as an enactment to enforce the Equal

Protection C1ause, . . . whether it is rplainly adapted Eo that

end, I and whether it is not prohibited by but is consistent with
I the leEter and spir it of the constitution. r' fd. at 551

(quoting from McCullock v. Marv1and, L7 U.S. (4 Wheat.) 159, 42L

(1819) ). Notwithstanding t,he absence of a record of actual

discrimination, the Court endorsed Congresst passage of a measure

which remedied historical discrimination, and enabled the Puerto

Rican community to combat, prospective state violations of the

FourteenEh Amendment. As Chief Justice Burger subsequently

observed, in discussing the import of Morgan:

To uphold this exercise of congressional
authority, the Court found no prerequisite
that application of a literacy requirement
violated the Equal ProEecEion Clause. . . .
I t was enough that, t,he Cour t could per ce i ve a
basis upon which Congress could reasonably
predicate a j udgment, that application of
Iiteracy qualifications within the compass of
S 4 (e) would discr iminaEe in terms of access
to the ballot and consequently in terms of
access to the provision or administration of
governmental programs .

FuIlilove v. Klutznick, 448 U.S. at 477 (dicta) (citations

omiEted).

Congress I enactment, of I five-year national ban on the

utilization of qualificaEion tesEs and devices in Eederal, sEate

and local elections, which took the form of S 2(d) of the Voting

50



Rights Act imendments of 1970, current version codified at 42

U.S.C. S I973b, was sanctioned by the Court in Oreqon v.

ttitchelt, 400 U.S. 112 (19701.26 Although the Justices authored

five separate opinions, all nine stressed that Congress is

endowed wi th substanE ial d iscret ion in enf orc ing t,he

The [t'litcheII] Court, was unanimous, albeit in
separate opinions, in concluding that Congress
was within its authority to prohlbit the use
of such voter qualifications; Congress could
reasonably determine that its legislation was
an appropr iate method of I foreclosing the
possibility that purposefully discriminatory
administ,ration of liEeracy Eests would escape
undeEected andl attacking the perpetuation of
prior purposeful discrimination, eeen though
the use of these t,ests or dev ices might have
d iscr iminatory e f f ec t,s only.

FuIlilove v. ](1!tznis!, 448 U.S. at 477 (dicta) (citation

Reconstruction amendments. Once again, the

commentary is instructive:

omitted).

In an opinion issued contemporaneously

Rome v. Unit,ed States, 446 U.S. 156 (1980)

FuIIilove court I s

with Bolden, Citv of

, the Supreme Court

rejected a constit,utional assault on S 5 of the Voting Rights

26. At issue in Mitchgll, were provisions of t,he Voting Rights
Act Amendments of I9m;Tt. No. 91-285, which: (1) reduced the
minimum vot ing age in st,ate and f ederal elections t.he latter
was upheld by the Court, and Ehe former sEr icken as
unconst,iEutionali (2) eliminateC literacy Eests or devices for a
five-year Lerm in st,ate and Eederal elections throughout the
counEry upheld; and ( 3 ) erection of a bar to staEe
requiremenEs disqualifying vot,ers in presidential elections
also upheld.

5L



Act, 42 u.S:9. S I973c. Under S 5, any change in voting or

elecEion lawE proposed by a covered jurisdiction wilI not be

approvedt oc npreclearedr' by the United States Attorney General

unless it "does not have Ehe purpose and will not have Ehe effect

of denying or abridging the right to vote on account of race or

color. . . .n Though fully cognizanE that Ehe E ifteenth

Amendment prohibits only intentional discrimination, the Court

stated that S 2 of that amendment permitted Congress to interdict
election procedures which were not in and of Ehemselves motivaEed

by racial animus, but which created the risk of purposeful

discrimination or

discriminat,ion. f;|. at

lies this finding:

perpetuated the effects of past

L76, L77. At the heart of the decision

Congress could rationally have concluded that,
because electoral changes by j ur isdictions
with a demonstrable history of intenEional
racial discr imination in voting creaEe the
r isk of purposeful discr imination, iE was
proper to prchibit changes Ehat have a
discr iminatory irnpact. . We f ind no
reason, then, to disturb Congress' considered
judgment, thaE banning electoral changes thaE
have a discriminatory impact is an effective
method of preventing States from "rundoIing1
or defeattingl the righEs recently wonrby
Negroes. n

Id. at 177-78 (quoting from Beer v. United States, 425 U.S. 130,

I40 (f976) ) (cit,ations and f -.>Enotes omiEted). Such remedial

measures need only be !'appropriater" within Ehe meaning of

McCulloch v. !{arvland, in order to ef f ectuate substant,ive r ights

52



secured by S..1 of the Fif t'eenth Amendment.

Similarly, Congress here deEermined, after extensive

hearings and the taking of experE and lay testimony, that the

intent test inordinately burdened plaintiffs in vote dilution

cases, was unnecessarily divisive due to the charges of racism

which must inevitably be leveled against individual officials or

entire communities, and, most importantly, compelled protracted,

ofEen futile inquirils into the motives of officials who acted

many years ago. S.Rep. No. 97-4L7 at 36-37. Ultimately, the

staEe defendants could all too easily advance racially neutral

justifications in rebuttal. In Congressr judgment, the danger

that a defendant official would seek to rebut the plainEiff's

circumstantial evidence of purposefuI discrimination "by planting

a false trail of direct evidence in the form of official
resolutions, sponsorship statements and other legislative history

eschewing any racial motive . ser iously clouds t,he ProsPects

of eradicating the remaining instances of racial

discriminaEion." Id. at 37. See Extension of the Voting Rights

Act: Ilearings Before the Subcommit,tee on Civil and

Constitutional Rights of the House Committee on the Judiciary,

97th Cong., lst Sess. 1189 (f982) (testimony of Joaquin Avila,

counsel f or t,he Mexican-Ame; ican Legal Def ense Fund)

(contemporary official discrinination more subtle; smoking

evidence of racial animus can no longer be rliscerned in

9un

the

--l3



public record.) .

Congress thus sought to enact a legislative prophylaxis,

calculated to forestalL the institution of potentially

discriminatory electoral systems and ext,irpate facially neutral

devices or procedures which continue to expose minority voters to
harmful consequences rooted in historical discrimination. S.Rep.

No. 97-4L7 at 40. Summarizing t,he bases for their conclusions

that proper enforcemenE of the Fourteenth and Fifteenth

Amendments required a ban on election procedures and practices

which culminate in a denial or abridgement of Ehe right to vote,

the drafters found:

(1) that t,he difficulties faced by plaintiffs
forced t,o prove discr iminatory intent
through case-by-case adjudication create
a substantial risk that inEentional
discr imination barred by the Fourteent,h
and FifEeenth Amendments go undetected,
uncorrected and undeterred unless the
results Eest proposed for section 2 is
adopted; and (2) that, voting practices
and procedures that have discriminatory
results perpeEuaLe the effecEs of past
purposef uI discr iminat,ion.

rd.

We concur in Professor Archibald Coxrs interpreEaEion of

Supreme Court precedent as vesting Congress wiEh broad

discret,ion, under Ehe Fourteent'.h and Fif Eeenth Amendments,

. Eo outlaw alI voting arrangements thaE
result in deniaL or abridgement of the righE
to voEe even t,hough not all such arrangement,s
are unconsEiEutional, because this is a means
of preventing the ir use as engines of

54



purposive and therefore unconstitutional
raci'Al discr imination.

Hearings on the Voting Rights Extension Before the SubcommiEtee

on the Constitution of the Senate Judiciary Commit,teer 9TEh

Cong., 2d Sess. (Feb. 25, 1982) (prepared staEement of Professor

Archibald Cox at 14). Empirical findings by Congress of

persistent abuses of the electoral Process, and the apparent

failure of the intent test to rectify those abuses, were

meticulously documented and borne out by ample testimony. Based

on these findings, Ehe legislators reasonably concluded that

substanEial amelioration of a dilution plaintiff's statutory

burden of proof was warranted. Although ost,ensibty cont,radicEory

of the Supreme Court's holding in Boldenr2T we perceive S 2 as

27. Recognizing that it
one which might be turned
as school prayer, busing
Comrni t,tee reasoned:

wielded a f igurat,ive two-edged sword,
against it in such controversial areas

and aborEion, the Senate Judiciary

It has been suggested thaE the Committee bill
tS. L9921 would overEurn a constit,utional
decision by the Supreme Court IBolden], in
spite of Ehe strenuous opposition of some of
the bill I s proponents to unrelated
Congressional efforts to override Supreme
Court decis io'rs in other areas by statute
rather than by constitutional amendment.

This argument simply misconstrues the
nature of the proposed amendmenE t.o secEion
.cwo. Certainlyr Congress cannot overturn a
subsEantive i.nt,erpretation of the ConsEiEution
by the Supreme Court. Such rulings can only
be alEered under our Eorm of government by, constitutional amendment or by a subsequent

(footnote continued)
f)



merely prescribing a potion to remove the vestiges of past

official discrimination and to ward off such discrimination in

Ehe future. Congress has not expanded the Constitutionr s

substantive guarant,ees but, has simply redefined and strengthened

the statutory proEections around core constitutional values, thus

exercising its author ity within the confines of the

Constitution.2S or, as the president of the American Bar

decision by the Court.

Thus, Congress cannot alEer the judicial
interpretations in Bolden of the Fourteenth
and Fifteenth Amendments by simple statute.
But the . o . amendment to section two does
not seek to reverse the Courtrs constitutional
interpretationo. tandl is a proper
exercise of Congressr enEorcement power.

S.Rep. No. 97-4L7 at 41.

28. One commentator postulates:

Because the Iresults] test is designed to
reach those electoral schemes Ehat are most
Iikely to permit purposeful discrinination to
escape detection, Eo perpetuate the effects of
past discr iminat ion, or to fac i1 i taEe
purposeful discrimination in Ehe provision ofpublic services, amended section 2 must be
regarded as within Ehe scope of congressional
power under the enforcement clauses of the
Fourteenth and FifEeenEh Amendments. To hold
otherwise the Supreme Court would have to
depart sharply from precedent and adopt
Justice Rehnquist's view Ioutlined in his
dissenting opinion in City of Rome v, U:'; ited
Statqgl that t,he congress ional enf orcereent
i6lilfs Iimited to pr rviding remedies Ehat do
not reach beyond tne prohibitions of the
amendmenEs themselves as interpreEed by the
Supreme Court

(footnote continued)

55



Association lPined before the Senate Judiciary Committee,

Under this Amendmentr the Supreme Courtrs
interpretatlon of the Proper constitutional
standlrd . . . I is] teft intact. Only the
section 2 statutorY standard Iis]
changed. . . .

Eearings on the Voting Rights

Subcommittee on the Constitution

Committee, 97th Cong., 2d Sess.

statement of David R. Brink at 71.

Senate critics of S 2, led by Senator Orrin Hatchr E€tised

the specter of overbreadth, arguing that the exceptional

conditions justifying unequal application of S 5 Eo jurisdictions

wigh a history of intentional discrimination did not support the

extension of a nationwide ban encompassing noncovered

jurisdictions. Subcommittee on the Constitution of the Senate

Committee on the Judiciary, 97th Cong., 2d Sess., Voting Rights

Act, Report on S. L992, reprinted in S.Rep. No- 97-4L7 at

170-71. Absent a record suggesting that voting discrimination

permeates t,he entire nation, Ehe Senate Subcommi t,tee on the

Constitution maintained that t,he sweeping reforms conEemplated by

S 2 could not be described as remedial in character, and were

consequently beyond the scope of congressional enforcement

powers. Id. at f71. Accord, Note, Amending Sect.ion 2 of the

llartford, Racial Vote
(footnotes omiEted).

Dilution,

Act Extension Before the

of the Senate Judiciary

(Feb. 25, 1982) (prepared

57

50 Geo.Wash.L.Rev. at 748



Voting Rights Act of 1955, 32

Rogers v. Lodge, 102 S.Ct.

Case W.Res.L.Rev. 500 (1982). Cf.

at 3283 (Stevens, J., dissenting)

(emphasis added) ("Nor, in my opinion, could there be any doubt

about the constitutionality of an amendment to the Voting Rights

Act that would require . . . covered jurisdictions to abandon Ehe

specific kinds of at-Iarge voting schemes that perpetuate Past

discrimination.n).

As the Senate Judiciary Committee point,ed out, however, Ehe

S 5 analogy noverlooks t,he fundamental difference in the degree

of jurisdiction needed Eo sustain the extraordinary nature of

preclearancer on the one hand, and Ehe use of a particular legal

standard Eo prove discrimination in court suits on the other."

S.Rep. No. 97-4L7 at 42. See Vance v. Terrazas t 444 U.S. 252,

265-66 (1980). Nor do Ehe critics take into consideration the

t'titche11 court's declaraEion of the constitutionality of S 2 of

the Voting Rights Act amendments of f970, striking down Iiteracy

tests and devices in both covered and noncovered jurisdictions.

Whatever their disagreement on other issues, Ehe members of the

Court unanimously endorsed the Iiteracy Eest Provision.29

29. Oregon v. {ilchelI, 400 U.S. at l3l-34 (majority opinion,-1autnor . at Lq4-47 (Douglas, J., concuriing in
part and dissenting in part); id. at 2L6-L7 (Harlan, J.,
concurring in part and d issenting in Part) ; id. aE 233-35
(Brennan, White and MarshalI, J.J., dissenEing in part and
concurring in part) ; id. at. 23I-84 (Stewart, J. , concurring in
part and dissenting in part). Justice Harlan remarked:

(footnote continued)

s8



In t,he -f inal analysis, the self -limiting character of S 2

effectively refutes the overbreadth argument. Since this statuEe

does not impose an absolute ban on specific election pract,ices,

or allow liability to attach without a finding of dilution under

the totality of circumstances in a given case, the fear that S 2

will precipiEate a nationwide revision oE state election laws is

groundless. Only a state law shown to discriminatorily impact

against minority voters will run afoul of S 2.

Federalism concerns expounded by S 2 opPonents, see, €.Q.1

L28 Cong. Ree. S5786 (daily €d., June I5, 1982, remarks of

Senator Harry Byrd) ; id. at S5517 (daily ed., June 9, 1982)

(remarks of Senator Hatch), and reiterated by defendants herein,

are closely related to Ehe separation of powerS question.

Defendant,s suggest that S 2 contravenes the principle of state

sovereignty enshrined in the Tenth Amendment, which Precludes

DespiEe the lack of evidence of speciEic
instances of d iscr iminatory apPlication or
effect, Congress could have determined Ehat
racial prejudice is prevalent, throughout the
Nation, and t,hat Iiteracy tests unduly lend
themselves to discr iminatory aPplication,
either conscious or unconscious. This danger
of violation of S 2 eras sufficient to
authorize the exercise of congressional
power. The danger of violation of S f oE Ehe
Fifteenth Amendment was sufficient to
auEhorize the exercise of congressional power
under S 2,

Id. at 2L6 (HarIan, J., concurr ing in part and dissenting in
parE) (EooEnot,es omit,ted) .



Congress ft?T wielding its legislative power to impair the

States, freedom to structure integral operations in areas of

traditional governmental funcEions. National League of Cities v.

Usery, 426 U.S. 833 (1976) (Fair Labor SEandards Act, a Commerce

C1ause enactment, held unconst,itutional as applied to state

employees). Userv explicitly declined to entertain the question

of whether d if f erent, results might obta in erere Cong ress to

encroach upon integral operations of state governments through

the exercise of authority conferred by S 5 of the fourteenth

amendment. See Citv of Rome v. United St,ates, 446 U.S. at

L18-79.

In South Carolina v. Katzenbach, the Court ruled t,hat

Congress hdy, as against the reserved powers of the staEe,

utilize any rational means to implement the Fifteenth

Amendment. Justice t'larshaIl subsequently re j ected a f ederal ism

argument predicated on Usery, explaining that:

. pr inciples of federalism that mighE
otherwise be an obstacle to congressional
auEhor ity are necessar ily overr idden by the
poeJer to enforce Ehe Civil War Amendments "by
appropriate legislation. " Those Amendments
were specifically designed as an expansion of
federal Porrer and an intrusion on staEe
sovereignty. Applying this principler w€ hold
that Congress had the authority to regulate
sEate and local voting through the Provisions
of the Vot,ing Rights Act National Leaque cf
Cities, then, Provides rro reason Eo depart
from our decision rn South Carolina v.
Katzenbach that "the F.

superseaes contrary exertions of state powerr"
. . . and that Ehe Act rs an appropriate means

50



for carrying out Congress I constit'utional
resPonsiblities. - . .

City of Bgme v. United States, 446 U.S. at 179-80 (citations and

footnotes omitted). Accord, Fitzpatrick v. BiEker , 427 U.S. 445

(L976) (S 5 of the FourteenEh Amendment overcomes state Eleventh

Amendment immunity). City of Rome therefore teaches that the

T.enth A.mendment does not constrict congressional power to enforce

the Reconst,ruction amendments by apPropriate legislation. See

264, 287 n.28 (f981) (dicta). Given our conclusion that S 2 is

an appropriate expression of congressional enforcement authority,

we are persuaded Ehat this measure does not work an

unconstitutionaL abrogation of powers allocated to the stat,es by

the Tenth emendment.

B. Application of Act 20

Congressional disEr icts may be equal oE r as here,

subst,antially equal in population, yet fail t,o secure fair and

effective representation for all voters. Through the

cartographic technique known as gerrymanderingr 30 a politically

30. "Gerrymander ing" refers to "d iscr iminatory disEr icting wh ich
opera':.:s unfairly to inflat.e the political sErength of one group
and oe,f late that oE anot,her . " R. Dixon, The Court, Ehe People
and "One t'lan, One Voter" in R.eaPportionment in the I970s 7 (N.
Polsby, €d. I97I). Dr. Engstrom defines Ehe "equipopulous
gerrymandern as "disEricEing that satisfies the one person, one
votd requirement yet is discr iminatory toward an idenEifiable
(Eootnote continued)

HodeI v. Virqinia Surface Min & Reclamation Assrn, 452 U.S.

5I



dominant grolp is able to manipulate district lines wichin Ehe

constraints of Artlcle l, S 2, so as "to minimize or cancel out,

the voting strength of racial or political elements of the voting

population.' Fortson v. Dorsev, 379 U.S. 433' 439 (I965). See

Gaffnev v. Cumminqs, 412 U.S. 735 (1973); White v. Reqester , ALz

U.S. 755 (1973). lhe amended S 2, Congressr response to Ehe

continuing concern over the extent of minority participation in

the electoral process, provides a formidable vehicle for

redressing vote dilution claims.

Pursuant to amended S 2, a complainant has the option of

either proving a discriminatory purpose in the adoption or

mainEenance of an electoral structure or practice, or

demonstrating, "based on the totality of circumstancesr' thaE Ehe

structure or practice results in a dilution oE minority voEing

power. 42 U.S.C. S I973b. See Citv of Lockhart v. Unit,ed

St,ates, U.S. _, f03 S.Ct. 998, 1004 (1983) (l'tarshaIl,

J., concurring); Buchanan v. Citv oE Jackson; Rybicki v. St,ate

Board oE Elections. Listed in the SenaEe ReporE, are several

group of voters.' Engstrom, The Supreme Court and Equipopulous
Gerrymandering: A Remaining Obstacle in the Quest for Fair and
Effective RepresenEation, L975 Ariz. SEate L.J. 277, 278 n.5.
Justice Stevens recently warned that slavish judicial adherence
to the goal of perfect population equality is "'perfectly
comPatible with gerrymandering of the worst s.:(t.r" Karcher v.
DaqqeEt, _ U;S. ,103 S.Ct. 2653, 26rt (1983).@
J., concurring) (quoEinq f fpm wel_IE__y. Rockefeller , 394 U.S. 342,
55i (1959) (H;;Iiffi, J., dTSG-n r 2863 (l.IhiEe;
J., dissenting, joined by Burger, C.;.TFneFnquist and PoweII,
J.J. ); id. at 2869 (Powe11 , J., dissenting).

62



objective factors, drawn from

McKeithen, 485 E'.2d L297 (5th

White v. ReqesEer and Zimmer v.

Cir. I973) (en banc), affrd on

other grounds sub nom. East Carroll Parish School Board v.

MarshaIl , 424 u.S. 536 (1975) (per curidrn) r which a court may

evaluaEe in applying S 2's ntoEality of circumstancesn test:

I. the extent of any history of official
discrimination in the state or political
subdivision that touched the right of the
members oE the minority group to register, to
vote t ot otherwise to participate in the
democratic process;

2. the extent to which voting in the
elections of Ehe state or political
subdivision is racially polarized;

3. the extent to which the sEate or
political subdivision has used unusually large
election d istr icts 1 rna jor ity vote
requirements, anti-single shot provisionsr oE
other voting pracEices or procedures Ehat may
enhance that oppor t,unit,y f or discr imination
against the minority groupi

4. if there is a candidate slaEing
process, whet,her the members of the minor ity
group have been denied access to t.hat process;

5. the exEenE Eo which members of the
minor ity group in the state or political
subdivision bear the effects of discrimination
in such areas as education, employment and
health, which hinder their ability to
participate effectively in the pofitical
process i

6. whether political campaigns have been
characterized by overt or subtle racial
appeals;

7. the ext,ent to which members of Ehe
minorit,y group have been elected to public
office in the jurisdiction.

63



'. Additional factors that, in some cases
have had probative value as Part of
plaintiffsr evidence to establish a violation
are:

whether there is a significant lack
of responsiveness on the part of elected
officials to the particularized needs of
the members of the minority group.

whether the policy underlying the
state or political subdivisionrs use of
such voting qualification, prerequisite
to voting t ot standard, practice or
procedure is tenuous.

While these enumerated factors will often
be the most relevant ones, in some cases other
facEors will be indicative of the alleged
dilution.

S.Rep. No. 97-4L7 at 28-29 (footnotes omitted).

No particular number or arrangement, oE factors

proved as a prerequisite to recovery, nor is a plaintiff
to evidence that, fits within the Zimmer-White

need be

limi ted

analyt ic

Eramework. To the extent EhaE the enumerated facEors are not

Eactually relevant, they

more meaningful factors.

may be replaced or substituEed by other,

Mindful of Zimmerrs command EhaE these

indicia of discrimination are neither exclusive nor controlling,
the Senate Judiciary Commit,tee cautioned:

The courEs ordinarily have not used these
factors, nor does the Committee intend Ehem to
be usedr ds a mechanical "point counting"
device. The failure of plaintiff to establish
any particular factor, is not, rebuttal
evidence of non-dilution. Rather, the
provision tS 2l requires the courtrs overall
j udgment, based on the totali t,y of

64



circumstances and guided by Ehose relevant
factors in the particular case, of whet'her the
voting strength of minority voters is, in the
languige of Fortson and Burns, minimized or
canceled out.

Id. at 29 n.II8.
Upon review of the totality of circumstances in the instant

case, the court is satisfied that the plaintiEfs have made out a

prima facie case of vote dilution under S 2. Evidence of "past

discrimination cannot, in the manner ol.otiginal sin, condemn

action that is not in itself unlawfulrn Citv of t'tobile v. Bol9en,

446 U.S. at 74, but is relevant insofar as it impacts adversely

on a minority group's present oPPortunities to participate in

government. We are persuaded Ehat t,he deleterious rePercussions

of historical discrimination persist in hindering the political

access of minorities in Orleans Parish.3I

As the Supreme Court commented in Roqers v. Lodse, 102 S.Ct.

aE 3279, "Iv]oting along racial ]ines aIlows Ehose elected to

ignore black inEerests wit,hout fear of political conseguences,

31. A causal nexus between the disparate socio-economic stat,us
of blacks arising from pasE discrimination and a depressed level
of minority political participation need not be established.
S.Rep. No. 91-4L7 at 29 n.lI4 (citinq White v. Re,gester and
Kirksev v. Board of .Quperv j,:ors , 5?.4 F.2d I39 (5Eh Cir. ) , .Sg4-."Inequalit'Y of access is an
Tiffince wh ich f lows f rom the existence of econornic and
educaEional inequalities." Kirksev v. Board of Supervisors, 554
F.2d at 145. Plaintiffs have nevertheless succeeded in
demonstrating t,hat, Ehe ccntemporary effecEs of past
discrimination furnish at Ieast a partiat explanation for the Iow
black registration and voting apParent in Orleans Parish.

55



o

and without bloc voting the

elections soiety because of
polarized voting cannot be

minority candidates would not lose
their race.' The imporEance of

underestimated, for if it does not
exist, the minority voEer "has little reason to
complain...."UnitedJ,430U.S.
L44' 166 n'24 (L9771 ' seg @, 639 F.2d r35B (5trr
Cir. 1981), affrd sub nom. Rogers v. Lodqq,5-- u esv rrv'l . rl,get.' v. IJooqg, _ u.s. _ ,I02
s.ct. 3272 (1991). A consistentry high degree of erectoral
polarization in orreans parish was proven through both
statistical and anecdotal evidence. particularly as enhanced by
Louisiana, s majority vote requirementr 32 racial bloc voting
substantially impairs the ability of brack voters in this parish
to become Eully involved in the democratic process. That several

32' severery criticized for its tendency to submerge raciarminoriEies, zir.er ,.-lacieitnJn, -tr," mI]oritv vote requirement:

i,,;' "::.ti;:::"' .it?-" :l" "t;;"'i"","1""?"i? .::
erection. The run-of f ariows -*r,ite 

uot"ri-rrnoscattered their votes among various whitecandidates in the fiis[ election toconsolidate their vote in the second to defeata minority candidate who r""eivea a pluralityof the vote in the firsr 
"fi"tl"n.Note, Raciar vote Dirution in Murtimember DisEricts: TheconstiEutional sEandard afEer ,oashinqton v. Davis , 76 Mich.L.Rev.694, 697 (1978). roi "urffi inabiliry ofminoriEies ro form ""iiitions-;;- to-ltn"rwise infruence orher

?:;l?;".11.,i.tt polarization is .*""eroatea bv- rn" 
"r":oriry 

vore

65



black candidates, anong them Mayor ltorial, have won office in

Orleans Parish does not foreclose a finding of dilution. See

S.Rep. No. 97-lL7 at 29 n.115; Campbell v. Gadsen Countv School

Board; Zimner v. Iu{cKeithen. Considering the par ish I s 55t black

populaEion, the 15t success rate of black candidates at the polls

is substantially lower than might be anticipated absent such

impediments to black voting and registration as the lingering

ramifications of historic disenfranchisement conjoined with past,

and present disparities in education, income, emPloyment and

housing. Professor Hendersonrs analysis of voting Patte.rns in

Orleans Parish shows that the victories of blacks in municipal,

par ish and stat,e rePresentative or senate contests can be

ascribed in major parE to racial bloc voting and some cross-over

voting by a unique enclave of liberal whites. If Act 20rs

sundering of the black populace of New Orleans were allowed to

stand, the effective independent impact of black voters would be

unfairly and illegally minimized.

A tenuous state policy supPortive of a Particular
districting scheme ls probative of the question of the fairness

or the unfairness of that schemers impact on minority voters.

S.Rep. No. 97-4L7 at 29. Departures from the normal procedural

sequence t ot the specific chain of events leading up to a

particular legislative decision, bear on Ehe weight Eo be

accorded t,he state policy underlying a particular voEing sysEem

57



or practice.. See id. See also Karcher v. Daqqett, _ U.S.

-, 

r03 s.ct . 2gG3 (1983) (stevens, J., concurring). Af ter

extensive public hearings and consultations wiEh staff counsel,

commit,tees oE both houses of the legislature formulated a

reapportionment policy tailored Eo maximize black voting strengEh

within one of Louisianars eight congressional districts. To

implement this benign, race-conscious policy, the legislature,

Ehrough its joint committee, promulgated a set of neutral

reapportionment criteria which culminated in the preparat,ion and

bicameral approval of the Nunez PIan.33

33. It is well-estabLished that a legislative body may consider
race in drawing distr ict lines r so long as it does not
discriminate invidiously or contravene Ehe one person/one vote
precept. See Fullilove v. Klutznick, 448 U.S. at 483 ('. . . a
staEe may empl.oy racial crit,eria that are reasonably necessary to
assure compliance wi t,h f ederal voting r ights leg islation, even
though Ehe staEe acEion does not entail the remedy of a
constitutional violaEion" ) ; United Jewish Orqanizations of
Williamsburqh, Inc. v. Carey; Wyche v. Madison Parish PoIice

.

e.Td gZt (5th Cir. 1978), cert. denied, 442 u.S. 909 (f979). In
Carey, the Court made iE clear thaE legislat,ures may engage in
racially proporEionate redistr icting:

" IC]ourts have Inol constitutional warrant t,o
invalidate a state plan, otherwise within
tolerable population Iimits, because it
undertakes, not Eo minimize or eliminate the
political strength of any grouP or party, but
to recognize it and, through disEr ict,ing,

r E€presentaEion in the legislative halls oE Ehe
State. "

430 U;S. at 158 (quot,inq f rom Caffnev v. Cumminqs, 4L2 U.S. at
752). See Nott Group Representation and Race-Conscious
iEootnote 6-ntinued)

58



The Louisiana Legislature's policy, which would have

maint,ained New Orleans' bLack community within one district, and

virtually all neutral apportionment guidelines, were abruptly

discarded in Ehe face of the Governorrs veto Ehreat. No cohesive

goals replaced the abandoned policy. Further, rather than

utilizing t,he routine mechanism of t,he conf erence commi t,tee

f ollowing the House I s withdrawal of its approval of t,he Nunez

PIan, the legislative leaders convened a private meeting to seek

a solution which would satisfy the Governor and the Jefferson

par ish f orces. Because all rdere aware thaE the conf licting

objectives of Ehe Governor and black legislators with respect to

a black majority district could not be harmonized, the latter

were deliberaEely excluded from the final decision-making

process.

Phys i ca I
furnish strong,

State Board of

evidence of racial gerrymander ing may itself

objecEive prooE of vote diluEion. Rvbicki v.

Elections; Adams, a l'lodeI SEate Reapportionment

Process: The

Representat, ion ,

st,rength may

gerrymandering

of members cti

Continuing QuesE for "Fair and Effect ive

' 14 Harv.J.Leg. 825 (1977). Minority voting

be dissipated through one of two familiar

techniques: "sEackingr" or the overconcentration

a specific aroug in numbers greatly in excess of

Apportionment,: The Roles of S t.aEes and the Federal Courts, 9l
Harv.L.Rev.' I847 (f978).

69



the percentage required to exercise a meaningful choice at the

ballot box, or "crackingr" the divislon of a cohesive population

concentrat,ion. Karcher v. Daqqett, 103 S.Ct. at 2672 n.I3

(Stevens, J., concurring); Nevett v. Sides, 57L F.2d at 2L9i R.

MorriII, Political Redistricting and Geographic Theory at I4-15,

Ig-20 (1981). See also United Jewish orqanizations, Inc. v.

Carevr 430 U.S. at I58. When a redistricting plan employs the

Iatter technique in a racially polarized environment, the result

is predictable:

Like a multimember plan, Ia single-member
district plan which fractures a geographically
concentrated minoriuy voEing populationJ . . .
tends to dilute the voting strength of the
minority. In Robinson v. Commissionef I s
Court, supra, a panel of this court noted Ehat*'

-"T'6ffist 

crucial and precise instrument
of the o . denial of the black
minorityr s equal access to political
participationr- however, remains the
gerrymander of Precinct lines so as to
fragment what could otherwise be a
cohes ive minority voEing
community. This dismemberment of
t,he btaik voting community Imay
havel tne ef f ect of debili t'at ing
the organization and decreasing t,he
participation of black voters.n

xirksey v. Board of supervisors, 554 F.2d 139, r49 (5th Cir.),

cert. denied, 434 u.s. 958 (L977) (quotinq from Robertson v'

Commissioner's Coq!,t, 505 F.2d 674, 679 (5th Cir. I974). See

also Car s t,ens Lamm, 543 F.Supp. 68, 62 (D.Colo. 1982)

(Ehree-judge court)

fracture a nat,ural

(n.

racial
. a redistricting plan . should not

or ethnic community. . . .").

70



Act 20,1_ jagged line dissects a large concentrated community

of black voters residing in Orleans Parish, dispersing that

comnunity into Ehe First and Second Congressional Districts.34

With unerring precision, this Iine slices through the Cityr s

traditional political subunit, the ward, in a racially selective

manner, Ieaving intact predominantly white wards while carving uP

those densely populated by blacks. Homogeneous black precincts

are separated; white precincEs are not. Racial divisions have

been preserved at the expense of parish boundaries35 and respect

34. Expert testimony of Dr. Henderson establishes Ehat these
distr icts do not comply with the generaIly accepted
reapportionment requirement of compactness. Shape, a

sub-omponent of that requirement, see Karcher v. Daqoet!, I03
S.Ct. lt 2872-73 (Stevens, J., concurring), is one criterion by
which district contours may be judged in a gerrymandering case.
Id; Engstrom, The Supreme Court and Equipopulous Gerrymander
Ele, Atiz.St.L.J. at 280i Reock, Measuring Compactness as a
Requirement of tegislaEive Apportionment, 5 I'tidwest J.Poli.Sci.
7O; 7L (I97f). Justice Stevens nonetheless cautions against
exclusive reliance upon odd or tortured configurat,ions. 5I
U.S.L.W. at 4863 n.15. As Dr. Engstrom PoinEs out,
"preoccupation with shapes may simply 'confuse form with
functionr' as relatively symmetrical, compact, district,s may
effectively dilute a group' s voting strength. . " L97 6
Ariz.St.L.J. at 280 (quotinq from R. Dixon, Democratic
nepresentation: Reappo?ET6iirm?nt -Tt- Law and Politics 459
(I958) ) . While acknowledging this concern, Professor MorriIl is
of the opinion that, a compactness measure provides an efficacious
defense against gerrymandering. R. Morrill, Political
Redistricting and Geographic Theory at 2L. It is important to
note, however, that comPacEness is not demanded by federal law.
Carstens v. Lamm; Skolnick v. St,ate ,Electoral Bd. , 335 F.Supp.
ffi'r)@or..icF
35. Another non-const i tutional restraint imposed on
cartographers is the principle that disErict Iines must be drawn
to coincide with governmenEal unit's such as Ehe parish, ward or
(fooEnote continued)

7L



for Ehe ln-tegrit,y of a natural geographic barr ier , the

Mississippi River.36 Dlscordant communities of interest, those

of New Orleansr o}der, urban core and its surrounding suburban

neighborhoods, are joined.37 Drs. Ilenderson and Engstrom both

precinct,. See R. l.lorr111, Political Redistricting and Geographic
tfreory at 2F(n. . . uge of polit,ical entities Ierectsl . . . a

signif lcant barr ier to gerrymander ing whet,her for racial or
paitisan political reasons, since it prevents stringing toget,her
precincts of a particular character out of disparate political
unitso). nlndiscriminate districting, without any regard for
political subdivision . . . 1ines, may be little more than an
6pen invitation to partisan gerrlrmandering. " Revrlol9s v.- silnsr
317 u.S. 533, 578-79 (1964) I American Bar Association special
CommiEtee on Election Law and Voter ParticiPation, Congressional
Redistricting at L2 (1981) (Unnecessary disruption of these uniEs
not only nundermines the ability of constituencies to organize
effectively but also . . . increases the likelihood of voter
confusion regarding ot,her elections based on Political
subdivision geographics. n ) .

36. A planrs divergence from natural physical features, which
tend to inject some regularity in district configurationsr IIldYr
absent a legitimate justification such as adherence Eo the one
person/one vote concept, violaEe the compactness requirement.
See testimony of Dr. Gordon llenderson, Record, VoI. I at
T6-l-06. Here, t,he ttississippi is significant insofar as it
affects persons residing on eiEher bank. Orleans Parish's inner
city blacks, seParaEed from Jefferson Par ish by Ehe r iver ,
possess far different, concerns from Ehe suburban whites who dwell
in t,he Iatter.
37. By way of exPlanation of the significance of this
apEprtlonnent criterion, MorriIl observes:

Citizens vote, in Part, according to
their identification wi th var ious
inEerests, for example, religious values,
occupat ion,
or ientation.

class, oE rural or urban
There is a strong basis in

arguing that "effect ive represenEation" or
influence on the outcome is enhanced by
grouping of like interests togeEher. .
This is constitutionally required only with

(footnote continued)
72



testified algt when coupled with the phenomenon of racially
polarized voting, this combination of factors operaEed to

minimize, cancel or dilute black voEing strength.

In the course of our analysis, we are not unmindful of the

legitimate debate among academics and courts about the relative

merits of concentrating a minority population within one district

or dividing that population into two or more districts so thaE it

exerts a subsEantial influence in each.38 We are convinced that

respect to race. The geographer will also
observe that distr icts which correspond
somewhat to nodal regions, a core urban area
and its economic or cultural hinderland united
by transportion and communications, will have
a greater sense oE unity, awareness of common
problems, and, perhaps, participation Ehan
distr icts which arbitrar ily combine disparat,e
areas and ignore patterns of regional identity
and loyalty.

R. llorriII, Political Redistricting and Geographic Theory at
23. See also Busbee v. 1$4ith, 549 F.Supp. 494 (D.D.C. 1982)
(t,hreeTudg" "ouffiB., , 103 s.cr.809(t,hree:Iudge cou-t)-aff 'd mem., _ U.S.
(I983) ; CarsEqnE--_yr_-Lg8!q., (three-j udge corcourt) (preservation of
entirec@ctfaciI|tatedvot,eridentity);again,
this criterion is not Prescribed by federal statutory or
constitutional lair. See id.

38. See, €.e.1 Seamon v. Upham, 536 F.S
(Ehree-=fudgE Courtl rev I d on other qrou

. 93I, 949 (E.D.Tex. )
456 U.S. 37 (r982)

(". . . Itlhere is no agreement on ether Ehe political
interests of a minority grouP are best maximized by an
overwhelrning majority in a single district, are majoriEies in
more than one disErict or a substantial proportion of the voters
in a number of district,s"); United Stateg Vr Eeald @
rE Forrest Countv , 57L F'.2d (of fqf rqq! Cglg-ry., 57L F'.2d 951,
@ommentators) . -Compa.re Jo,r4an v. Winter, 541
F.Supp. 1I35, II43 (N:D.Miss. I-9821 . (three-jgd.ge courE) , _v?cetedand c furEher consideration in Iiqht oE amend
I 983) (where Iegislative preference for two
(footnote cont,inued)

73



in the present case, the division of the black population was not

designed to enhance the effectiveness of the black electorate,

nor is it likely to occasion such.

Application of amended S 2's "results" test to t,he aggregate

of the facts adduced at trial, including Louisianars history of

discr imination and the impact, of that hisEory on t,he present,

ability of blacks in Orleans Parish to join in the political
process, the vestiges of discrimination which take the form of a

marked disparity in the socio-economic conditions under which

blacks and whites currently subsist, the parishrs racially
polarized voting, as exacerbated by the staters majority vote

requirement, Ehe tenuousness of Ehe state policy underlying Act

20 and the history of its enactment, and the manipulation of

district boundary lines so as to fracture a cohesive minority

minority dist,ricts with at least 40t population expressed, court
found no consEitutional or Eederal sEatutory bar thereto) with
Kirksev v. Board of Supervisors, 554 F.2d at 150 (emphasis in the
or iginal) ("!{here Ehe cohesive black voting strengt,h is
fragmented among districEs, IevenJ the presence of disEricts with
bare black populaEion maiorities not only does not necessarily
preclude dilution but . . . may actually enhance the possibirit,y
of continued minority political impotenc€."); Hartford, Racial
Vote Dilution and Separation of Powers, 50 Geo.Wash.L.Rev. at 595(". . . the argument that the position of the minority is
necessarily enhanced by an opportunity for "coalition building',
It,hrough a districting plan that disperses their votes among
several districEsl is disingenuous, to say Ehe least, when made
in reEerence Eo a locale wit,h well-established patterns of racial
division and racial bloc voting where Ehe minor ity has
sysEematically been submerged and ignored.") i Note,
Constitutional Challenges Eo Gerrymanders, 45 U.Chi.L.Rev. 845,
846 (1978) (splitting a voEing group among several disEricts may
have the effect oE diluting the political power of Ehat group).

74



voting bloc., preponderates in favor of the plaintiffs.

CircumsEantial evidence that race played a role in the confection

of Act 20 also figures in the courtrs ca1cu1us, although we have

not engaged in the intent analysis permitted by S 2.39 Based on

the totality oE relevant circumstances, therefore, the court

concludes that, t,he contours of Ehe First and Second Congressional

Oistrictsr ES established by Act 20, operate to deny or abridge

the rights of minority voters, who are accorded less opportunity

than other members of the electorate to participate in the

political process and to elect representatives of their choice.

Defendantsr showing that political motlvatlons were the

primary impetus behind the configurat,ion of the First and Second

oistr icts does noE provide persuasive rebuttal evidence of

nondilution. !{e agree that legislators do not operate in a

vacuum; hence, pdrtisan politics cannot realistically be divorced

from any redisEricting effort. See Gaffnev v. Cumminqs, 4L2 U.S.

at 753i In re: Pennsylvania Conqress ional Distr icts

Reapportionment Cases, CiviI Action No. 82-0L97, slip op. at

23a-2la (!.l.D.Pa. 1982), af f 'd mem. sub nom. Simon v. Davis, 51

39. Given our conclusion that Act 20 results in a dilution of
black voting strengthr w€ need not draw the ult,imate inference of
purposeful discrimination from I the composiEe of factors
heretofore outlined. The courc r has nevertheless taken inEo
accounE r ds but one aspect of the Eotali t,y of circumstances, the
evidence that opposition to the creation of major ity black
district vras responsible, to a significant extent, for the defeaE
of the Nunez PIan and Ehe substitution of Act 20.

1'



u.s.L.W. 3917 (U.s.s.Ct., July 7, 1983) . The protecEion of

exlsting relatlonshlps anong incumbents and their constituents,

and the benefits accruing Eo the state from the seniority its
delegation may have achieved ln Congress, are pragmatic

considerations whlch often figure prominent,Iy in the drawing of

congressional distrlcts. These consideraEions are not

tallsnanic, however, and may not serve to protect incumbents by

imposing an electoral scheme which spllnters a geographically

concentrated black populace within a raclally lnlarized parish,

thus ninimizing the black citizenryrs electoral participation.

Nor do other factors invoked by defendants overcome

plaintiffs' !g!g facie showing. Reliance on New Orleans'

tradition of dual congressional representation can no longer be

justified in light of the Cityrs substantial decline in

population. Nor is there credible demographic evidence that the

black population of either Ehe First or Second Districts will
increase t,o a signif icant degree over the next decade.

Accordingly, t,he court is of Ehe opinion Ehat plaintiffs are

entitled to judgnent on their voting dilution claim.

C. Remedv

Having determined that Act, 20 does not, in respect Eo Ehe

First and Second Congressional Districts, comply wiEh t,he mandate

of amended S 2 of the Voting Rights Act of 1965, judgment will be

76



entered decla.ring Act 20 violative of federal law and enjoining

the defendants from conducting elections pursuant to its terms.

RecognizLng that istate legislatures have rprimary jurisdictionr

over legislative reaPportionmentr' White v. Weiser, 4L2 U.S. 783,

195 (1973), we shall temporarily defer further action in order to

provide the Loulsiana Legislature with a reasonable opportunity

to act wiEhin federal statuEory and constitutional limits and

enact a valid new plan for the election of members to the United

States llouse of RePresentatives.40 Once a court declares an

existing legislative reaPPortionment scheme unlawfu1, it is

"appropriate, whenever practicable, to afford a reasonable

opportunity for the legislature to meeE constitutional Ior

federal statutoryl requirements by adopting a substitute measurb

rather than Eor the federal court to devise and order into effect

its own plan.' Wise v. Lioscomb, 437 U.S. 535, 540 (1978). See

also McDanieI v. Sanchez, 452 U.S. 130 (f98I); Connor v. Finch,

431 U.S. 407 lL977l t Flateau v. Anderson, 537 F.Supp. 257

(S.D.N.Y. f 982) (three-judge court), cert. dism., I03 S.CE. 5

(I983). The flling period for congressional candidates will be

during the summer of 1984. Thus, Ehere is ample time for Ehe

Iegislature to meet and consider a new redistricting scheme.

40. DefendanEs urged this alternat,ive during oral argument,
requesting that in Ehe event of Act,20's invalidation, the court
forego Ehe imposition of a judicially-consEructed plan and permit
the legislature to at,tempE Ehe confection oE a new plan.

77



Should 
_the 

legislature, or the Governor, choose not to act,

we shaII acquit our resPonsibillty to develop and implement a

remedial plan. Accordingly, defendants are invited to present to

Ehis courtr oo or before January 31, 1984, a duly-enacted

Iegislative p1an. This court will reconvene on Eebruary 6, 1984

to entertain the partiesr suggestions for congressional

districting. In the absence of an acceptable legislative
solution, the court will fashion an aPProPriate plan.

ConsideraEion of plaintiffsr request for attorneysr fees and

costs shall be deferred until adoption of an appropriate remedy.

Counsel shall promptly prepare and present to the court a

judgment consistent with Ehis memorandum opinion.

IT IS SO ORDERED.

18



:l :

''1.--1.

PRIOR DISTRICTS

DrsrRtcT 1 @
DISTRICT 2A



I

\SI

MnEz s.B. No 5

IISTRICT T I
rxsrRrcr zA

'i:;t t',tt irrr)
,., |/

r l'
I
I

I



t- I

I

ACT 20

TXSTRICT 1 I
DNSTRICT 2-



*

t

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION

RALPH GINGLES, et BI. r

Plaintiffs r

vs.

RUFUS EDMISTENI €t 8I. I

iDefendants.

-and-

ALAN V. PUGHI €t a1.,

Plainti ffs,
JA[{ES B. HUNT, JR. r €t rtl. r

Defendants.

-and-

JOHN J. CAVANAGIIT €t dl.r
plalntlffs r

vs.

ALEX K. BROCKT €t 81. r

Defendants.

No.81-803-CIV-5

No. 81-1 06 6-CIV-5

No. 82-545-CIv-5

)
)
)

)
)

)

)
)

)

)

)

)
)
)
)
)
)
)

DEFENDANTSI PRE-TRIAL BRIEF



't rABLE oF CoNTENTS

. page

Tablg of Authoriti€s...... ....... .. o ...... ..................... iii
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . o . . . . . . . . . . . . . . . . . . . . . . . . I
Argument. . . . . . . . . . . . . o . . . . . . . . o . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I. Thre Legislature is the proper forum in which to 3
resolve the question of multimember versus single
member districts which in this case is essentially
a political dispute

II. Insofar as the 1982 reapportionment plans do not 4
result in unequal access to the political process,
they are not violative of Section 2 of the Voting
Rights Act

III. Insofar as the General Assembly constructed 19
multi-member districts so as to maintain county
boundaries wherever feasible, it did not intend to
dilute black voting strength or individual voting
pohter in derogation of the Fourteenth Amendment.

IV. Insofar as the State fras proven that the appor- 2L
tionment of the covered counties has neither a
discriminatory purpose nor effect, the plaintiffs
are precludedr Ers a matter of law, from challenging
the validity of the districts in the 40 covered
counties

V. Evidence of discrimination which is extremely
remote in time or which does not touch the right
of minorities to register, vote and othervrise
participate in the democratic process is irrele-
vant and consequently inadmissible

Conclusion

25

30

Lr



TABLE OF AUTHORITIES

CASES

Bradas v. Rapides Parish Policy Jurv, 508 F'.2d 1109
(5th Cir. 197 s) ...

Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286,
16 L.Ed. 2d 376 (1968)

Chapman v. t"leier, 420 U.S. 1, 97 S.Ct. 656,
30 L.Ed. 2d 704 (t972) . . . .

City of Mobile v. Bolden, 446
100 s.ct. 1490, 64 L.Ed. 2d

u.s. 55,
47 (1981)

97 S.Ct.Connor v. Finch, 431 U.S. 407 ,ffiaos 0s77).....
1828,

Connor v. Williams, 404 U.S. 549, 97 S.Ct. 656,

Dove v. Moore, 539 F.2d 1152 (8tn Cir. 1976)

704 (w.o. Tex.Graves v. Barneq, 343 F.Supp. L97 2l

Morris v. Gressette, 432 U.S. 491, 97 S.Ct. 24L1,
53 L.Ed. 2d 506 (L9771

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

Cir. L9761

Board, 535 F.2d 101

Page

4,5

3

3

l2

7

24

11

11

11

24-25

1I

3

L6, Lg-20

II

11

Paiqe v. Grav, 538 F.2d 1108 (5tn

Panior v. Iberville Parish School
(5th Cir. L976)

Parklane Hosiery v. Shore, 439 U.S. 322, 99 S.Ct. 645,

Perrv v. City of Opelousas, 515 F.2d 539 (5th Cir. 1975)....
Reynolds v. Sims, 377 U.S. 533, 87 S.Ct. L362,

L2 L.Ed. 2d 506 (1965) ....
Roqers v. Lodqe U.S. 102 S.Ct. 3722, (1982).......

Turner v. McKeithen, 490 F.2d 191 (5th Cir. 1973) ....

LLL



TABLE OF AUTHORITIES (Cont.)

paqe

United States v. Da1las Co@,
15

Velasquez v. City of Abilene
(N.D. Tex. Oct. 22, 19821

, No. C.A. 1-80-57

Village of Arlinqton Hej.ghts v. Metropolitan Housinq
Development Corp., 429 U.S. 252t 97 S.Ct. 555,
429 L.Ed. 2d 450 (L9771

I5

20

Vo1lin v. Kimbel, 519 F.2d 790 (4th Cir.), cert. denied,
W ga s.ct. 2s5, 46 L.Ed. 2d %E-@T;
Washinqton v. Davis, 425 U.S. 229, 96 S.Ct. 2040,

48 L.Ed. 597 (L976) . . . .

Whitcomb v. Chavis, 403 U.S. L24, 91 S.Ct. 1858,ffi(re71)....
White v. Register, 412 U.S. 755, 93 S.Ct. 2332,

37 L.Ed. 2d 314 (1973) . ...
White v. Weiser , 412 U.S. 783 (19731 . . . .

20

11

l7

6,'l ,8,9
3

9- 10Z j-mmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973)

OTHERS

Brief of the United States in City of Lockhart v. Unj.ted
States, No. 81-802, Supreme Court of the United States,
October Term L982 6

Federal Rules of Evidence. . 27,28,?9

H. Rep. No. 97-227 (97th Cong. Ist Sess) 1981... 6,22

S. Rep. No. 97-4L7 (97th Cong. 2d Sess.) L982 6,14,23

av



IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION

RALPH GINGLES, et aI.,
Plainti ffs,

vs.

RUFUS EDMISTEN, €t dl. r

Defendants.

-and-

ALAN V. PUGH, €t dI.,

Plaintiffs,

JAMES B. HUNT, JR. r €t d1.,

Defendants.

-and-

JOHN J. CAVANAGH, €t a1.,

Plainti ffs,
vs.

ALEX K. BROCKT €t EI. r

Defendants.

No. 8I-803-CIV-5

No. 81-1066-CIV-5

No. 82-545-CIV-5

DEFENDANTS I PRE-TRIAL BRIEF

Introduction

This case comes to trial with two groups of plaintiffs
challenging the 1982 reapportionment of the North Carolina

General AssembIy. Ttle Gingles plaintiffs, representing the

class of all bLack voters in the state contend that the present

districting scheme dilutes black voting strength in violation
of the 13th, 14th, and 15th Amendments, and Section 2 of the

)

)

)

)-)
)

)
)

)



-2-

Voting Rights Act. The Pugh plaintiffs, a group of individual

voters, also claim that the configuration of House and Senate

districts dilutes the voting strength of blacks. They further

al1ege that the coexistence of single member and multimember

districts is per se unconstitutional based on the Banzhof

theory of individual vote diminution.

The State defends the redistricting on the grounds that

it was not enacted with an intent to discriminate against any

racial minority groupr and that in the context of the Staters

total political circumstances it does not operate to afford

any minority less opportunity than other members of the elec-

torate to participate in the political process. Insofar as

the plaintiffs cannot prove that either the Senate or the House

plan violates federal constitutional or statutory standards,

they have merely asked this Court to substitute their personal

reapportionment preferences for those of the legislature.

Section 2 of the Voting Rights Act as amended on June

29, 1982r prohibits any voting standard, practice or procedure

which results in a denial or abridgement of the right to vote

on account of race or color. 42 U.S.C. 1973. Tttus, the coverage

of Section 2 extends to racial groups only. Because Section 2,

in contrast to the 14th Amendment, does not require direct proof

of discriminatory intent, it is expected that this provision of

the Voting Rights Act will be the focus of the plaintiffs'case.



I. The legislature is the
question of multimember
which in this instance

-3-
proper forum in
versus single

which to resolve the
member districts,

is essentiall a political dispute

Over the past 18 years the Supreme Court has consistently
reaffirmed its Pronouncement that "legislative reapportionment

is primarily a matter for legislative consideration and deter-
mination." Reynolds v; Si,ms; 377 U.S. 533, 596, g7 S.Ct. 1362,

L2 L.Ed.2d 506 (1965). See also, Connor v. Finch, 431 U.S. 407,

97 s.ct. L828, 52 L.Ed.2d 4G5 (L977)i chapman v; Meier.420 u.s.
1, 97 s.ct. 751 , 42 L.Ed.2d 766 (1975); connor v. willi,ams, 404

u.s. 549,97 s.ct. 656r 30 L.Ed.2d 704 (l972li Burns v. Richardson

384 u.s. 73,85 s.ct. 1286, 15 L.Ed.2d 376 (1968). Because the

legislature is the body best situated to make reapportionment

decisions which are by nature polit-i.cal, judicial intervention
"becomes aPPropriate only when a legislature fails to reapportion
according to federal constitutional [and statutory] requisites. n

White v. Weiser, 412 U.S. 7A3, 795 (1923).

Nothing in the language of the amended Section 2 ot
in its legisrative history invites the federal judiciary to
broader or more active participation in the "political thicket',
of reapportionment., Thus plaintiffs in vote dirution cases

brought pursuant to section 2 must come forward with specific
proof of statutory violations which necessitate judicial relief.
Litigants cannot nerely request that a federal court substitute
the plaintiffrs reapportionment preferences for those of the
leg isla ture.

It



-4-

The issue of multimember versus single member districts

was vigorously discussed in the General Assembly. The Defend-

ants' evidence will show that some blacks favored single member

districts while others argued forcefully against them. A.J.

Howard Clement, Vernon Flalone and Malachi Greene, three promi-

nent black leaders will testify that single member districts

would have a deleterious effect on black electoral power. The

import of this testimony goes beyond the merits of single member

versus multimember districts. It demonstrates that the question

is essentially political, not racial and that the plaintiffs in

this action do not represent the unanimous agreement of black

voters. The General AssembIy, after weighing and evaluating

aI1 the competing opinions and concerns, made a legislative

judgment. ?he fact that the plaintiffs' preference for single

member districts was not the solution enacted by the legislature

does not by itself rise to the level of a violat,ion of Section

2 of the Voting Rights Act or the Fourteenth Amendment.

II. Insofar as the 1982 reapportionment plans do not result
in unequal access to the political process, they are not
violative of Section 2 of the Voting Rights Act.

On June 29, 1982 Congress enacted extensions of and

amendments to various provisions of the Voting Rights Act,

42 LJ.S.C. 1973. Among the changes made in the statute was an

amendment which substantially altered Section 2 of the Act.

Since its original enactment in 1965, Section 2 has been viewed

as the statutory irnplementation of the Fifteenth Amendment.

City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed



-5-

2d 47 (1981). Consistent $rith the purposes of the Act generally,

Section 2 protected the eLectoral rights of racial minorities,

but it operated nationeride without the geographical linitations

or the preclearance requirements of Section 5.

Section Z(al as amended provides that no voting law

shall be inposed or apptied in a manner which results in a

denial or abridgment of the right to vote on account of color.

Subsection (b) in its entirety reads:

(b) A violation of subsection (a) is estab-
lished if, based on the totalitY of
circumstances, it is shown that the
political Processes leading to nomi-
nation or election in the state or
political subdivision are not equally
oPen to participation by members of a
ctass of citizens protecled by sub-
section (a) in that its-members have
less opportunity than other members
of the electorate to Participate in
the Political Process and to elect
representatives of their choice. The
extent to which members of a protected
class have been elected to office in
the state or political subdivision is
one "circumstance" which nay be consid-
eredr PEovided that nothing in this
section establishes a right to have
members of a protected class elected
in numbers equal to their proportion
in the population. (emphasis added ).

Prior to the Lg82 amendmentr the Supreme Court held that since

Section 2 was coterminous with the Fifteenth Amendment, a vio-

lation of Section 2 required proof of discriminatory intent.

City of Mobite v. Bolden, suPra. By the new language, Congress

specifically relieves a plaintiff from the burden of proving a

legislative bodyrs state of nind. Rather, under the new Section



?-5-

2, a plaintiff must show that the challenged law or practice

"results" in unequal access to the political process.

A. The analysis identified in the white v. Register line
of cases as applied to the l,Iorth Carolina system of
electing state legislators, does not yield an aggregate
of factors which are indicative of racial dilution.

The legislative history of the 1982 amendments to the

voting Rights Act is in many ways internally inconsistent and

self-contradictory. This is in part, because no conference

committee report was produced, and the manner in which divergent

views of the House and Senate Committee members were Compromised
t/

vras not recorded.'- One theme, however, is echoed by both

committees and in fact by nearry everyone who commented during

the floor debates: Congress intend'etl to codify the standard

established by the Supreme Court in White v;'Register, 412

U.S. 755,93 S.Ct.2332r 37 L.Ed 2d 314 (1973). See S. Rep.

No. 97-417 (97th Cong. 2d. Sess. ) at 32-34i H. Rep. No. 97-227

(97th Cong. Ist Sess.) 19Bl at 30. In regard to the language

ultimately adoptedr the Senate Report states that ,.the substitute
amendment codifies the holding in White, thus making clear the

legislative intent to incorporate that precedent and the exten-

sive case law which developed around itr into the application

of Section 2." t:1.p. ."! 32._

L/ See, .gg-, the Brief of the United States in City of Lock-
hart v; United States; No. 81-802, Supreme Court of the
IIn-ft]6d-ffi Term 1982, wherein the Solicitor
General cautions against use of the legislative history
of Section 2.



-7-

In White v. Registef the Court upheld the lower courtrs

order to dismantle multimember districts in Dallas and Bexar

Counties in Texas. The Court recognized that rnultimember dis-

tricts might be used invidiously to minimize the electoral

strength of racial minorities. The White Court notedr howeverr

that to sustain such a claim "it is not enough that the racial

group aIlegedIy discriminated against has not had legislative

seats in proportion to its voting Potential.n 412 U.S. at 766.

Rather, the Court wrote:

The plaintiff's burden is to produce evidence
to support findings that the political Processes
Ieading to nomination and election were not
equally open to participation by the group in
question--that its members had less opportunity
than did other residents in lbe district to Par-
ticipate in the political processes and to elect
legislators of their choice. 412 U.S. at 766.

I{ith these standards in mind the Supreme Court reviewed the

evidence considered by the district court. E the district

courtrs opinion at Graves v; Barnesr 343 F.Supp.704 (9I.D. Tex.

l.g72l . Dallas County r ) had a history of official racial dis-

crimination, which touched the right of blacks to register,

vote and to participate i 2) used a majority vote requirement

in party primaries; 3) had a place rule which reduced multi-

member elections to a head-to-head contest for each position;

4) had elected only 2 blacks to the Texas legislature since

Reconstruction; 5) had a slating system; 6) had a white

dominated organization which controlled the Democratic party

and which did not need or solicit black support. In addition,



-8-

the Democratic organization had widely used racial compaign

tactics. Based on this evidence,

the district court concluded that "the black
community has been effectively excluded from
participation in the Democratic primary selec-
tion process, " and was therefore generally
not pernnitted to enter into the politica]
process in a reliable and meaningful manner.
4L2 U.s. at 767. (citation omitted).

Accordingly, the Supreme Court determined that the

record was sufficient to support the lower courtrs finding of

vote dilution.

The facts of the case at bar are far removed from the

situation in @. The plaintiffs wi]I prof fer

evidence of past discrimination. This evidence is barely pro-

bative of the specific circumstan"ei- in l{orth Caro1ina, insofar

as past discrimination could be shown, not just throughout the

South, but in any jurisdiction in the nation where blacks have

ever comprised any significant percentage of the population.
z/

Like Texas, North carolina has a majority vote requirement.

There the similarity between the cases abruptly ends. In the

November 1982 elections, 11 blacks v,,ere elected to the General

Assembly. In additionr blacks hold many municipal and county-

wide offices throughout the State. North Carolina has no

slating system--any citizen may be a candidate for legislative

office. The Democratic party organizations in the state include

Unlike Texas, howeverr the North Carolina statute implies
only in primary and not in general elections. Moreover,
the najority vole requirement in North Carolina is invoked
almost-exclusively in single rnember districts'

2/



-9-

blacks at every level including several Past and current county

chairmen. The Staters evidence will show that in counties in

which blacks comprise a significant portion of the population

(e.g., Mecklenburg, Forsyth, Wake, Durham) the black vote is

crucial to the success of both black and white candidates.

FinalIy, incidents of racial campaign appeals are rare, isolated,

and clearly abberational r and certainly certainly without the

suPport or approval of any party organization'

In White v; Registerr the court found that the blacks

were excluded from the slating Process and consequently were

denied any meaningful political particiPation. No matter how

one weights and weighs the factors in the present caser they

simply do not add up to a denial of- meaningful Participation

in the political Process. Black citizens of North Carolina

have elected at least one black legislator from each major

urban area in which they comprise a sizeable Portion of the

community. This is not a case of "white-interest" black cand-

idates being slated by the vrhite organization. B1acks in

North Carolina have elected candidates of their choice and

this fact alone is entirely inconsistent with a finding that

black voters are denied access to the political Processes of

the State.

Congress was exPlicit that in revising Section 2 it was

codifying not only lfhite v. Register but also the "extensive

case law which developed around it." Ziruner v.'McKeithen, 485



-10-

F.2d 1297 (5th Cir. 1973) was the seminal post-White case

decided by the Fifth Circuit. In that action, black residents

of East Carroll Parish, Louisiana challenged the at-1arge plan

for parish elections. The Court noted at the outset that it
was "not enough to prove a mere disparity between the number of

minority residents and the number of minority representatives."

485 F.2d at 1105. Moreover the Court of Appeals made this
observation.

Where it is apparent that a minority is afforded
the opportunity to participate in the slating of
candidates to represent its area, that represent-
atives slated and elected provide representation
responsive to minority needs, and that the use of
a multi-member districting scheme is rooted in a
strong state policy divorced from the maintenance
of racial discrimination, Whitcomb v. Chavis would
require a holding of no diffit 1105.

Although North Carolina has no slating process for legis-

lative elections, the primaries are open to all candidates. The

representatives elected, both black and white, are responsive to

minority needs. Defendantsr witnesses Louise Brennan, AIan Adams,

and others will testify to the responsiveness and accountability

of elected officials to the black community. Finally, John Sanders

and Joseph Eerrell of the Institute of Government will testify to

the legitimate and long-standing North Carolina policy of preserving

county boundaries in fashioning electoral districts for the General

Assembly. Under the standards expressed in Zimmer, the present

apportionment of the North Carolina General Assembly is not

dilutive of black voting strength.



McKeithen, 490 F.2d 191, 197 (5th Cir. 1973)

-1 1-

fn other cases which followed White the Court of Appeals

for the Fifth Circuit continued to evaluate the factors enunciated

in White and to find dilution only upon proof of an aggregate

of these factors. AII the while, the court emphasized that a

minority group is not entitled "to an apportionment scheme

designed to maximize its political advantage" or to "one or

more safe or majority districts simply because an apportion-

ment scheme could be drawn to reach this result.r' Turner v.
2/. See also Perry

v. City of Opelousas; 515 F.2d 639 (sth Cir. 1975); Paige v.

Gray,538 F.2d 1108 (5th Cir. 1976); Nevett v. Sides, 57I F.2d

209 (5th Cir. 1978).

In Bradas v. Rapides Parish Police Jury, 508 F.2d 1109

(sth Cir. 1975), the Court declined to make a finding of dilu-

tion desPite the fact that no black had ever been elected to a

parish office. The court determined that blacks freely regis-

tered to vote and freely chose the political party they wished

to support. They encountered no difficulty in meaningfully

participating in party activitiesr candidate selectionr or in

any other facet of the political Process. Moreover, the policy

behind the at-large system lvas valid and racially neutral. The

factors in favor of the defendants in the instant case are even

3/ For other post-White cases in which the defending state or
subdivision preGTIEd see, Vollin.v;'Kimbel; 519 F.2d 790
(4th Cir.), cert. denied, 423 U.S. 936,95 S.ct. 295, 46
L.Ed 2d 268 TI9751
536 F.2d 101 (5th Cit; 1976); Nevett v. Sides, 57L F.2d 209
( 5th Cir. 1978 ).



-L2-

more compelling than in

confirmed in the case at

candidates at the po1Is.

Bradas. Participation by blacks is

bar by the success of qualified black

Finally, among the progeny of White v. Registerr Err

Eighth Circuit case, Dove v. Moore, 539 F.2d 1152 (8th Cir. L976)

is instructive. In Dove, black residents, who comprised 40t of

the population of Pine Bluff, Arkansas, challenged the at-large

method of electing city councilmen. Prior to the filing of

the lawsuit, 8 blacks had run for the city council and all
were defeated by white incumbents. Nonetheless, the court

found that any individual could run in the primary since there

was no group or organization whose gndorsement controlled

primary outcomes. Moreover, blacks held office in the Pine

B1uff Democratic party. And the court found probative, evidence

that in a recent mayorial race between 4 whites and I black

candidate, the whites received between 251 and 44t of the vote

in precincts which were 90-100t black. Similarly in an election

for alderman, a successful black candidate received 44t of the

vote in a 99.6t white precinct.

The defendants' testimony will establish that voting

which transcends racial lines occurs frequently in North

Carolina elections. The other positive factors noted in Dove--

openness of primary to all candidates, and black leadership in

the Democratic party--are also part of the present political

landscape of North Caro1ina. Insofar as blacks "p1ay an



-1 3-

ro1e" in State politicsr rIO dilution of

as defined in Dove results from the 1982

active and significant

black voting strength

reapport ionment.

In summary, the llhite v. Registel line of cases requires

a finding of impermissible dilution whenever a plaintiff proves

an "aggregate" of the Whit,e factors. Of the seven items consid-

ered in !-Ihite only 2 can be said to exist in North Carolina.

Positive factors identified in the White line of cases which

weigh in favor of the defendant, such as frequent cross-over

voting, black officials in the 1ocal Democratic party structure,

a legitimate and nondiscriminatory policy behind the multi-

member system, exist, in the Present case. Evaluated against

White v. Register and the case law -whicn it engendered, the

current apportionment of the North Carolina legislature is not

dilutive of black voting strength.

B. The analysis identified in the legislative history
of section 2 as applied to the North carolina system
of electing state legislators, does not yield an
aggregate of factors indicative of racial diLution.

Since the amendment of Section 2, several district courts

have had occasion to adjudicate the validity of an election law

or system under the new standards. In applying the Section 2

results test, the courts have variously applied the factor-

analysis used in White; or the slightly different restatement

of them in Zimmerr oE the list of nine factors in the Senate

Report which exPansively duplicates White, Sen. Rep. at 28.



-1 4-

The Senate Report criteria are as follows:

1. the extent of any history of officia] discrim-
ination in the state or political subdivision that
touched the right of the members of the minority
group to register, to voter or otherwise to parti-
cipate in the democratic process;

2. the extent to which voting in the elections of
the state or political subdivision is racially
polari zed ;

3. the extent to which the state or political
subdivision has used unusually large election
districts, majority vote requirements, anti-single
shot provisions r or other voting practices or
procedures that may enhance the opportunity for
discrimination against the minority groupi

4. if there is a candidate slating process,
whether the members of the minority group have
been denied access to that processi

5. the extent to which membLrs of the minority
group in the state or political subdivision bear
the effects of discrimination in such areas as
education, employment and health, which hinder
their ability to participate effectively in the
political processi

6. whether political campaigns have been charac-
terized by overt or subtle racial appeals;

7. the extent to which
group have been elected
j uri sdict ion.

Additional factors that
probative value as part
to establish a violat,ion

members of the minority
to public office in the

in some cases have had
of plaintiffs I evidence

are 3

whether there is a significant lack of respon-
siveness on the part of elected officials to
the particularized needs of the members of the
minority group.

whether the policy underlying the state or
political subdivisionrs use of such voting
qualification, prerequisite to voting, or
standardr practice or procedure is tenuous.



-1 5-

In Velasquez v. City of Abilene, No. CAI-80-57 (N.D. Tex.

Oct. 22, 1982), in which plaintiffs claimed that the at-large
city council system in Abirene, Texas violated section 2, the

district court emphasized the paramount importance of factor
number 7--election resuLts. The Abilene city council had

brack members nearry in proportion to the percentage of brack

residents of the city. Thus, although the court found a history
of discrimination, polarized voting, and a slating procedure,

it also founcl that the actual success of blacks in electing
black candidates barred the conclusion that there was a burden

on the voting rights of blacks t oE that they lacked access to

the political process.

The DaIlas County, Alabama Cbunty Commission withstood a

Section 2 challenge in United States v. Dallas County Commission,

548 F.Supp. 875 (S.D. Ala. 1982). The Court acknowledgecl the long

history of official discrimination in Dallas County. It examined

the past presence of federal registrars and the past use of dis-
criminatory voting tests. Nevertheless, the court found that the

effects of the past had been overcome. Specifically, it pointed

to the increases in black voter registration. To a growing degree,

white candidates sought out black support and considered such sup-

Port essential to success. IVhile polarized voting was the general

rule, there hrere major exceptions. Furthermore the court found

that the failure of blacks at the polls owed more to voter apathy

than to polarizationi even with polarization blacks could have



-15 -

vron elections if the black comrnunity had in fact voted. At the
time of the suit, however, no black had ever served on the county

commission. Finallyr the court noted that there vrere no recent
uses of racial campaign appeals, that the size of the county was

not a factorr dnd that the policy favoring at-large elections was

long standing and legitimate.
Especially interestinq is the Dallas'County courtrs deci-

sion to look at potential voting strength within the present

system. Low voter turnout, not past discrimination or the at-
large method was determinative of election outcomes in Dal1as

county. Based primarily on this finding, the court ruled that
the method of election of Dallas County Commissioners did not

violate Section 2.

helpful in applying theDallas County and AbiLene are

Senate factors to the case at bar. Past discrimination cannot

be denied, but the defendantsr evidence will show that the pro-
gress made by the state towards alleviating the lingering effects
of discrimination is astounding. voting in some elections has

been racially polarized but the clear trend is toward voting
by both blacks and whites without regard to race. In Rogers

v. Lodge, -- U.S. --t 102 S.Ct.37221 3279 (1992), a vote

dilution case decided on 14th Amendment grounds, the Supreme

Court described bloc voting in these terms:

Voting along racial lines allows those elected
to ignore black interests without fear of polit-
ical consequencesr and without bloc voting the
minority candidates would not Lose elections
solely because of their race.



-17 -

It is clear that the Supreme Court views bloc voting or polarized

voting as probative of the issue of vote dilution only insofar as

it is outcome determinative. If whites vote for black candidates

in numbers so as to elect blacks in districts or counties which

are less than majority black, then polarized voting is not a factor.

Conversely, where whites depend on black votes in order to win

elections and then are held accountable by the black community,

then the undesirable circumstance, i.e., that those elected

can ignore black interests with impunity, does not result.
The defendants I expert witness will demonstrate a high

4/
degree of cross-over voting in llorth Carolina elections.- White

representatives and politically active black citizens will testify

that elected officials are responsi-ve to the needs of black voters.

Although voting along racial lines occurs in North Carolina, it is

neither pervasive nor determinative of election outcomes.

None of the election districts in question are unusually

Iarge. This consideration was culled by White v; Register from

Whitcomb v. Chavisi 403 U.S. L24, 91 S.Ct. 1858, 29 L.Ed.2d 363

(1971). In Vlhi.tcomb the Supreme Court af firmed the lower courtrs

decision to subdivide the challenged 18-member legislative

district. The largest district at issue here is Mecklenburg

County with 8 house members. This is not "unusually" large as

compared to the Whitcomb district, nor is it unusual in the

historical context of North Carolina apportionment.

4/ In the 198I Winston-Sa1en city council elections, for
example r a black candidate unseated a white incumbent
in a majority white ward.



-18 -

The other Senate factors are applied to the instant case in
the preceding discussion of White v. Register. None of the

factors uniquely stated by the Senate Report €.9.7 polarized

voting, add weight to the plaintiff's case. Based on the

totality of circumstances described in the legislative history.

of Section 2, the present apportionment of the General Assembly

does not result in unequal access to the political processes

of North Carolina.

Finally, the State urges the court to consider, as did

the Dallas County court, the voting potential of black citizens
within the existing multimember structure. In the last election,
Forsyth County elected 2 blacks among a 5 member delegation to

the House of Representatives. The -biack population of Forsyth

County is 24.4t yet it controls 40t of the representation. If
Forsyth vrere single-member districted, one black seat could be

virtually guaranteed, but the potential for more representation

would be effectively destroyed.

Similarly in Mecklenburg County, one black candidate for

the House succeeded in the November election. However, out of

an 8 member delegation, the ninth runner was also black and he

was running for his first elected office. The potential to

elect more than 2 representatives from the Mecklenburg multi-

member House district is very real. Again, this potential for

competitive control of more than a proportional number of

seats would be defeated by single member districts.



-19-

Single rnember districts under the circumstances which

exist today in North Carolina wilJ. not serve to enhance minority

access to the political process or maximize their abitity to

elect candidates. Precisely because blacks can both count on

a percentage of the white vote and are free to single shot, they

can aspire to win more than their "fair share" of seats in

nulti-member districts. In a state in which blacks have demon-

strated access to the denocratic process by winning elections,

guaranteed black seats are counterproductive and counterprogres-

sive. They sophomorically treat black political interests as

monolithic and will almost certainly reverse the trend towards

coalition politics, create electoral ghettosr and effectively

resegregate the political turf

III. Insofar as the General Assembly constructed multimember
districts so as to maintian county boundaries wherever
feasible, it did not intend to dilute black voting
strength or individual voting power in derogation of
the 14th Amendment;

Both the Pugh and Gingles plaintiffs claim that the 1982

reapportionment plans dilute black voting strength in violation

of the 14th Arnendment. In addition, the Pugh plaintiffs allege

dilution of the individual vote arising from the use of multi-

member districts. To prevail on either of these claims, the

plaintiffs must demonstrate an invidious intent to discriminate.

The Supreme Court has recently reviewed the concept of

dilution of minority voting strength as a violation of the Equal

Protection C1ause. In Rogers v. Lodger u.s. , 102 s.ct.
3272 (1983) the Court unequivocally ruled that the principles



-20-

underlying !{ashington v; Davisr 426 U.S. 229,96 S.Ct.2040,
48 L.Ed.2d 597 (1975) and Village of Arlington Heights v.

Metropolitan Housing'Development Corp;, 429 U.S. 252, 97 S.Ct.

555, 429 L.Ed.2d 450 11977 ) apply to voting dilution cases.

In Washington v. Davis and Arlington Heights the Court rejected

the notion that a law is invalid under the Equal Protection

Clause simply because it may affect a greater portion of one

race than another. Washington, supra, at 242i Arlington Heights,

supra, at 265. Thus the Rogers court held that intent to discrim-

inate is a necessary element of a vote dilution claim brought

pursuant to the 14th Amendment.

In the present case, the Reapportionment Committees worked

openly and actively sought input an-d'participation by the

community. Three members of the House Committee and one member

of the Senate committee were black. The decision to continue

to use multi-member districts stemmed from the state policy of

maintaining county boundaries in fashioning House and Senate

districts. The State has honored this policy of county integrity

in legislative districting since the 17th century. The defend-

antsr evidence will show that this has been a consistent policy

for over 300 years and that the unique political structure of

llorth Carolina justifies its continuation. Nearly half of the

legislation enacted by the General Assembly are local act,s

which apply to specific counties. Adequate representation

then, requires, to the extent possible, representation of

counties qua counties in the state legislature.



-2L-

ft was the desire to follow these stricures regarding

county-based representation that 1ed to the continuation of an

apportionment containing multi-member districts. Nothing in
the transcripts or minutes of the legislative proceedings is
indicative of an intent to use nulti-member districts in order

to minimize black electoral power.

The Pugh plaintiffs contend that t,he use of nultimember

districts dilutes the value of the individual'vote. While they

plead that residents of both multimember districts and single

member districts have their vote devalued by the present appor-

tionmentr the theory invoked to substantiate their claim, the

Banzhof theory, attempts to demonstrate mathematically that a

resident of a multimember district iras more voting po$rer than a

resident of a single-member district. The 'defendants have

argued in pre-triaL motions that the plaintiffs have failed to

state a cause for which relief can be granted. If the court

determines that a cause of action exists, the defendants contend

that the plaintiffs cannot prove the requisite invidious intent
necessary to a 14th Amendment claim.

IV. Insofar as the State has proven that the apportionment
of the covered counties has neither a discriminatory
purpose nor effect, the plaintiffs are precludedr is
a matter of law, from challenging the validity of the
districts'in the 40 covered'counties.

Pursuant to Section 5 of the Voting Rights Act, 42 U.S.C.

1973c, North Carolina must submit any change in its voting laws

or prerctice prior to implementation, to federal authorities.
The scope of federal review, however, is limited to those 40



-22-

counties which are specifically covered by application of the

formula in section 4(a) of the Act. Accordingly, the state
of North Carolina submitted to the Attorney General Chapters I
and 2 of the session Lavrs of the second Extra session (the

final amended House and Senate redistricting plans).

Under Section 5, the covered State or subdivision has

the burden of proving, either by a submission to the Attorney

General or by an action for decraratory judgment, that the pro-

posed enactrnent does not have the purpose and will not have the

effect of <lenying or abridging the right to vote on account of

race. The revised Section 2 places the burden on the plaintiff
to prove that the challenged law has a discriminatory result.
rnsofar as section 5 requires the state to meet the burden of
proving the absence of both discriminatory purpose and effect,
Section 5 necessarily presents a nore stringent test for the

covered State than Section 2.

The legislative history of the recent amendment of

Section 2 bears this out. In its Reportr the House Committee

on the Judiciary expressed its concern that the then-current

version of Section 2 required proof of discriminatory purpose

while a violation of Section 5 required only discriminatory

effect. H. Rep. No. 97-227 (97th Cong. lst Sess. ) at 28. In
the Committeers viewr Section 2 had to be revised so as to apply

essentially the same "effects" standard to non-covered jurisdic-

tions. The lawfulness of a voting law should not depend, the



-23-

Committee stated, on whether the jurisdiction which implements

it, is covered or non-covered.

Similarly, in the Senate Report, the point was also made

that Section 5 preclearance would preclude a subsequent finding

of violation under Section 2. Rep. No. 97-417 al 35. The

Committee set out to refute the findings of the Subcommittee

that icientified many cities including Savannah, Georgia, as

vulnerable under the nev, standard. The Senate Judiciary Com-

mittee, determined that this finding of the Subcommittee was

obviously inaccurate. Savannah had completed an annexation in

1978 which had required preclearance. "After subjecting the

proposed annexation to the rigorous- requirements of Section

5r" the Department of Justice decided that the. election system

provided black voters with adequate opportunity for participa-

tion and election. S. ReP. No. 97-4L7 at 35. The Senate

Report concluded that insofar as Savannahts city council system

had passed muster under Section 5, it would necessarily also

meet the requirements of the proposed amendment.

It was apparently the intent of Congress that Section 2

make applicable nationwide the "effects" test contained in

Section 5. While uncovered jurisdictions renain unaffected by

the Section 5 preclearance requirementr they would be subject

to the same test of discrimination when sued by individuals or

the Attorney General. In view of the legislative intent,

Section 5 has already ac'complished the purPose of Section 2 in

the covered counties.



-24-

By letter dated April 30, L982 the Attorney General in-

formed the State of North Carolina that he had determined that

the reapportionment plans for the North Carolina General Assembly

"did not have the purpose and would not have the effect of deny-

ing or abridging the right to vote" in the 40 counties covered

by Section 5 of the Voting Rights Act. Thus, the issue of the

discriminatory purpose and effect of the reapportionment has

been authoritatively and conclusively determined in the covered

counties, the plaintiffs claim in this action to the contrary r

notlrithstanding.

Since an administrative preclearance and a declaratory
judgment are equal alternatives under Section 5, Morris v.

Gressette, 432 U.S. 4gL, 97 S.Ct . ifit, 53 L.Ed.2d 506 (1977) ,

the State contends that insofar as the Attorney General I s

approval has the same legaI force as a judgnent rendered by

the District of Columbia federal court, the granted preclearance
s/

has a collateral estoppel effect in this case. nUnder the

doctrine of collateral estoppel ... the judgrment in the prior

suit precludes relitigation of issues actually litigated and

necessary to the outcome of the first action. " Parklane Hosiery

2/ We suggest, however, that it is not necessary to take the
argument that far. Rather, the Attorney General painstak-
ingly reviewed and re-reviewed a series of reapportionment
plans for the tilorth Carolina General Assembly over a period
of eight months. The expertise of the entire Voting Rights
Section and the Assistant Attorney General for Civil Rights
were engaged in the preclearance process. Once the State
has proved to the satisfaction of the Justice Department
that the plans will produce no discriminatory effect, it
should not be burdened again with defending against the
plaintiffsr proof of the same issue.



-25-

v;'Shorer 439 U.S. 322,326i 99 S.Ct. 645,5491 58 L.Bd.2d 552,

559, D. 5 (1979r. AlI facts necessary to a finding of discrim-

ination under Section 2 were at issue and necessarily determined
6/

by the Section 5 procedure. Thus, the Attorney Generalrs

decision as to the 40 counties precludes relitigation of the

same issue by the plaintiffs.

Evidence of discrimination nhich is extremely remote in

time or which does not touch on the right of minorities to

register, vote and otherwise participate in the democratic

process is irrelevant and consequently inadmissibLe.

Section 2 of the Voting Rights Act allows a plaintiff to

attempt to establish the discriminatory "result" of a voting law

or practice by adducing evidence of tt" totality of circumstances

surrounding the political process in the state or subdivision.

Section 2' however, does not expand the boundaries of relevance

nor does it aLter the general inadmissibility of hearsay under

the Federal Rules of Evidence. The legislative history of the

l9BZ Amendrnent to Section 2 and the case 1aw beginning with l{hite

v; Register are quite specific as to what constitutes relevant

evidence in vote dilution cases. Based on the factors listed in
the Senate Report, many of the Gingles exhibits are sinply

irrelevant. Several others are hearsay and/or stat,ements of

??ili?i. without adequate foundation.

9/ Section 5 specifically reserves the Constitutional rights
of private plaintiffs, i;e., they are not bound in consti-
tutional challenges by EFettorney Ge,neralrs or the District
Court's decisions on Section 5. Ttrereforer the plaintiffs
can pursue their dilution claim under the 14th Anendment if
they can produce evidence of invidious intent.



-26-

ging_kg exhibits 22-26 1 27(bl t 27(c), 29, 30, 33, 34,

37(a)-(d), 44 and 47 are various political cartoons and campaign

advertisements printed in newsPaPers between 1898 and 1976.

22. Raleiqh News and Observer , l/30/1898, Cartoon

23. Raleiqh lilevrs and 'observer , l0/15/L898 , Cartoon*
24, Raleigh News and Observer, 7/4/1900, Cartoon

25. "White People Wake UPr" Leaflet, 1950

26. (a) Raleigh News and Qbsegvsr, 5/26/54,
(Alril- tisement)

( b ) Raleigh llew? ?nd. ObPerveT , 5/27 /54 ,
(xerr Scott Political Advertisement)

(c) Raleigh NewP and.Obgervef, 5/28/54,
(rerr Scott potltical Advertisement)

(d) Raleigh News and oPsqqYer, 5/28/54,
"A1ton Lennon Forces Flodd'

(e ) Raleigh News. ?n9 oPsgfver , .5/29/54 |
( ertffiical Adverti sement )

27. (b) Raleigh News-and olserver, 5/26/60,
(take Pofitical Advertisement)

(c) R3leigh News qnd'OPserver, 5/26/60l
( LakE-FofiEi Cal Adverti sement )

29. Charlotte Ne\^'s , 5/21/64, Political
fa-vsrTfGfmffi( Moore )

30^ Raleiqh News and'Observer , 6/2L/64,
F'ofiElcaf -EAffifsement tPreYe r )

33. Raleiqh News and Observer, 10/20/68,
- +--FoTiEiaaffiBob scott)

34- Rateiqh News and Observer, lI/2/68,
im Gardner)

37. (a) Rateigh News 9nd obserYef, 5/5/72,
( PolffiEl-Elvertisement, United
Concerned Citizens of Raleigh)



-27 -

37. (b) Raleigh News and Observg, L0/L8/22,
(Political Advertisement Democrats for
Helms )

(c) Raleigh lilews and Observer, L0/27/72,
( Pol ocrats for
HeIns )

(d) Raleigh News and Observer, ll/L0/72,
( Pol ocrats for
Helms )

44. Durham Morning Herald, 9/10/76, Political

47. Charlotte Observer , 9/2L/79, PoIitical
ffix)

A11 of these except 22 through 25 are political advertisements

uhich are proferred to show that campaigns have been character-

ized by racial appeals. (Senate facJor 6). These ads, however,

are too remote in time to prove "the existence of any fact that

is of consequence to the determination of the action." Fed. R.

Evid.401.
Three additional campaign ads should be excluded as

irrelevant because too remote and on other grounds as well--

Exhibits 31, 35, 35.

31. Raleigh News and ObserveE, IO/LA/64'
6rITI c aT-Eavffis ffiTPreye r )

35. Raleiqh News and Observer, 10/25/65,
atlace )

35. Charlotte News, I0/29/68, Political
ffi(wal1ace)

These advertisements are not relevant to racial campaign appeals

in the state of North Carolina. The ads were Part of national

campaigns and are entirely irrelevant to the political'pto..""""

in the state at issue in this action.



-28-

Gingles exhibits 22 through 25 are netrspaper cartoons

and one leaflet variously dated 1898, 1898, 1900 and 1950.

These articles are intended to show the "history of official

discrimination" that touched the rights of the minority group

to register, to vote or to participate in the democratic

process." (Senate Factor I at 14 supra.) Insofar as they are

offered for the truth of the matter asserted they are hearsay

and therefore inadmissible under Rules 80I(c) and 802. In

addition, by virtue of thelr extreme remoteness in time and the

lack of nexus to the rights of the minority to particiPate in

the dernocratic processr they are irrelevant.

Other exhibits listed in the Gingles pre-tria1 order are

ne$rs articles which are hear""y .nd'consequently inadmissible:

Exhibits numbered 2'l .(al , 28t 32, 45, 46, 49 through 52, and 54.

27. (a) Raleigh llevrs_and Observer, 5/19/60,
"Lak@ns on TEsegregation
f ssuest'

28. Raleigh News and Observer , 6/2/64, 'Moore
Seeks Runoff"

32. Raleigh News a{rd Observer, LL/l/66, "Jones
C-harges East With Smear Tactics"

45. Charlotte Observer, 9/12/79, Letter to the
ffi

46. Charlotte Observer, 9/L8/79, Editorial

49. eharlotte Observer, 9/26/79, News Analysis

50. Durham Morning'Herald, 4/ /80, Article

51. (a) Raleigh News and Observg, 10/28/80,
'Morgan Charges OPPonent"

(b) North Carolina AnviI, 5/L5/8L, "Durham
oemo Slaten



-29-

52. Letters from Tim Valentine Campaign

54. Durham Morning Hera1d , 7/25/AZ, re:
Second primary

These articles are offered for the truth of the matter asserted
and as such constitute inadmissible hearsay evidence under

Ruels 801(c) and 802. Ttre veracity of the contents cannot be

tested by the defendants unl.ess the writer is avairable for
cross-examination. As the praintiffs intend to offer the

articles without Producing the reporters the newspaper articles
must be excluded.

Several Gingles exhibits are reportsr studies or policy
recommendations produced by the defendants to the plaintiffs
in the course of discovery.

71. rrPatterns of Pay in North Carolina State
Governmentr,' Off ice of State personnel,
Executive Summary

72. "Institutional Racism/Sexism in North
Carolina State Government.,, pp. L-24a
and 48-55.

73. "Housing for North Carolinians: policy
and Action Recommendationsr, North
Carolina Department of Natural Resources
and Community Development

74. "North Carolina Housing Elenentr, L972,
North Carolina Department of Natural
Resources and Community Developnentr pp.
I 0-17

The defendants have informed the praintiffs that the accuracy

of these docurnents is questionable and that they are objectionable
as opinion testimony offered without proper foundation. Similarly



-30-

the fotlowing exhibits, not produced during discovery, are

objectionable on the same grounds: 38, 40, 41, 85'

38. White and Black Voter Registration in
11 Southern States

40. Voter Registration by Race: North
Carolina v. Statewide, I960-1982 (graph)

41. Black Elected Officials in North
Carolinar 1970-I981

35.AppointmentsofWomen,Blacksandlndians
(a)Comparisonofnineexecutiveofficials
(Table 5)

(b)ComparisonofGovernorHuntandformer
Governor Holshouser

(c) Boards and Commissions with no B1acks

(d) ExPlanation of Criteria

These reports are unsubstantiated and fraught with opinion

testimony. Insofar as the plaintiffs do not intend to call

the authors of these documents at trial, the exhibits should

be excluded from evidence.

gonclusion
plaintiff,s exhibits which are irrelevant and hearsay

and those for which the plaintiffs do not have a witness to

lay the proper foundationr 8s well as all evidence relevant

to issues previously determined by the Attorney General should



-31-

be excluded from trial and for the reasons stated herein,

judgrment should be entered in favor of the defendants.

Respectfully submitted, this the 3l day of

19 83.

Attorney Generalts Office
N.C. Department of Justice
Post Office Box 629
Raleigh, North Carolina 27602
Telephone: (919) 733-3377

Horma Harrell
Tiare Smiley
Assistant AttorneY General

Attorneys for Defendants

of Counsel:

**,/.
qu:'re

McGuan, Esquire
and Associates
Street, N.W.

Washington, D.C. 20006
(202) 872-1095

RUFUS L.
ATTORNEY

ED}lTSTEN
GEI'IERAL

Attorney General
Legal Affairsv

t

erris Leohard,
Kathleen Heenan
Jerris Leonard
900 Seventeenth
Suite 1020



CERTIFICATE OT SERVICE

I hereby certify that I have this day served the fore-
going Defendantst Pre-Trial Brief by placing a copy of same

personally to:

Ms. Leslie Winner
Chambers, F'erguson, Watt, Wallas,

Adkins & Fu1ler, P.A.
951 South Independence Boulevard
Charlotte, North CaroLina 28202

This tne ll day of Ju1y, 1983.