Post-Trial Memorandum in Support of Proposed Findings of Fact and Conclusions of Law of Plaintiffs Barbara Major, et al and in Response to Defendants Post-Trial Memorandum; Buchanan v. City of Jackson and State of Tennessee Court Opinion

    UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

  

BARBARA MAJOR, et al., 

Plaintiffs, 

Civil Action No. 82-1192 

- against - : 2 
9 : Section C 

ry rv 
DAVID C. TREEN, etc., et al., : THREE JUDGE COURT CASE 

  

Defendants. ; CLASS ACTION 
  

  

POST-TRIAL MEMORANDUM IN SUPPORT OF PROPOSED 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

OF PLAINTIFFS BARBARA MAJOR, ET AL AND IN 

RESPONSE TO DEFENDANTS POST-TRIAL MEMORANDUM 
  

MAY IT PLEASE THE COURT: 

Plaintiffs, black registered voters, challenge the congres- 

gional redistricting plan, Act 20 of the 1981 louisiana Legis- 

lature Special Session (hereinafter Act 20) on two principal 

grounds: 

1. Act 20 1s a discriminatory delineation of district 

boundary - lines. that results in dilution of minority voting 

strength in the New Orleans metropolitan area in violation of 

.S.C. § 1973, as amended June 29, 1982 (hereinafter Sec- 

or Seckion 2 of the Voting Rights Ach). 

2. Under the United States Constitution and 42 U.S.C. 

1983 and Section 2, Act 20 is an intentional fragmentation of 

the large and contiguous black population that exists in  



metropolitan New Orleans area, which splits that population 

between two Congressional districts, in order to minimize the 

possibility of electing a black person or a representative to 

Congress chosen by the black voters in the Second Congressional 

District. 

Plaintiffs also maintain that Act 20 violates Section 2 

and the United States Constitution because it perpetuates 

historical discrimination against black voters by the State of 

Louisiana. 

STATEMENT OF FACTS 

Reapportionment of Congressional districts by the Louisiana 

Legislature is mandated by / i I, 8 220f the United States 

Constitution. and Art. III, § 1 of the Louisiana Constitution 

of 1974. 

Congressional districts were last reapportioned in 1972. 

As a result of the 1980 census, the State had to reapportion 

its .Congressional districts. The State of Louisiana has eight 

Congressional districts. The size of the ideal Congressional 

district under the 1970 Census was 455,580 persons and under 

the 1980 Census, the figure rose to 525,497 persons. 

The Louisiana Legislature recognized in early 1981 that 

there was a need for Congressional reapportionment and began 

1/ 
its proceedings to undertake this legislative responsibility. 

  

37 Under state law, legislative reapportionment is primarily 

the obligation of the Louisiana Legislature, but if that legis- 

lative task is not completed by December 31, 1981, the last day 

in the year after the latest federal decennial census, the re- 

apportionment obligation devolves to the Louisiana Supreme 

Court. Louisiana Constitution, Art. I1I, § 6(B).  



2/ 
A. The Reapportionment Process 

The formal reapportionment process began in mid-July 1981 

at the close of the regular 1981 legislative session with the 

appointment of the members of the Congressional reapportion- 

ment subcommittees in both houses of the legislature. No 

blacks served as members of either subcommittee. 

At the initial meetings of the Congressional reapportion- 

ment subcommittees, held on July 23, 1981, and Augusti Zl, 198] 

rules for Congressional reapportionment were adopted, includ 

ing a rule to avoid dilution of minority voting Stranstii 

Hearings of the Congressional reapportionment subcom- 

mittees were conducted from July through October 1981. Various 

proposals were presented, including those of the Louisiana 

Congressional delegation and, on October 22, of Governor Treen. 

The possibility of drawing a majority black district based in 

Orleans Parish was brought out "very early on in the public 

hearings" and the legislative staff was "directed quite early 

on to come up with such a proposal.”. Findings of Fact, para. 

18, 

  

2/ The process is described in greater detail in Plaintiffs’ 

Proposed Findings of Fact, paragraphs 14-51, and in P. Ex. 49%, 

Robert Kwan's Section 5 Submission Analysis at 3-10. 

3 Dilution was frequently confused with the more narrow 
Section 5 concept of retrogression. Nevertheless, at the 

July 23 meeting, the members were also advised by staff 

attorneys of the dangers of "discriminatorily altering access 

to the voting process”, of "carving up predominantly black 

neighborhoods to make it impossible to elect a black." See 

Finding of Fact, para. 17.  



All of Governor Treen's three proposals, however, divided the 

New Orleans black population concentration and none of Governor 

Treen's plans contained a majority black population district. 

Findings of Fact, para. 22. During this period the Governor 

made known his opposition to congressional reapportionment 

plans containing majority black population districts. Findings 

of: Fact, parag. 22, 23, 31. 

On November 2, 1981, the First Extraordinary Session of 

the Louisiana Legislature of 1981 convened. Senate Bill S 

(the Nunez Plan) was introduced in the Senate. The Nunez Plan 

provided for a Jefferson Parish based district (District 1) 

and an Orleans Parish based district (District 2), that was 

54% black in population. The Nunez Plan was a staff generated 

plan which Senator Samuel B. Nunez, Jr. subsequently adopted. 

The plan was drafted to follow neutral redistricting criteria 

and to address issues that were raised at the public hearings. 

Findings of Fact, pars. 26. 

On the House side, Representative John W. Scott intro- 

duced House Bill 2 (the Scott Plan) which had a 50.2% black 

majority population district in the Second Congressional Dis- 

trict. Both the Nunez Plan and the Scott Plan had majority 

black districts and were the only plans seriously considered 

by the legislature prior to November 6. 

By November 6, both houses of the legislature had adopted 

Congressional reapportionment bills incorporating the Nunez 

Plan, with a majority black population district in District 2. 

Findings of Fact 27, 28 and 29. At this point, Governor Treen  



issued a public statement that "any Dill in that form: is 

unacceptable and without question will be vetoed." The 

Times-Picayune, -November 7, :19281, p. 1. {P:, Ex. 498 at 6); 

Findings of Fact, para. 30. The threat of a veto killed the 

Nunez Plan, and eliminated any opportunity for passing a plan 

with a majority black congressional district. Findings of 

Fact, paras..35, 36. The Nunez Plan had passed both Houses 

by a comfortable margin, but not by enough to override a 

veto. No gubernatorial veto has ever been overridden by the 

Louisiana Legislature and the threat to veto was as powerful 

an instrument as actually vetoing the bill because the legis- 

lature was concerned about enacting some form of reapportion- 

ment within the Special Session. (Id.) See note 'l, at p. 2, 

supra. 

After news of the threatened veto reached the legisla- 

ture, and in response to heavy lobbying by the Governor and 

his aides, on November 9, the House reversed its earlier 

position and adopted an amendment to incorporate the Governor's 

Reconciliation Plan presented only hours earlier. Findings 

of Fact, para. 37; P, Ex. 49E.-at 7... This action necessitated 

appointment of a conference committee since the Senate re- 

jected the new House amendments. 

Appointment of the conference committee was delayed until 

a compromise acceptable to the Governor was reached in a 

private session that took place in the sub-basement of the 

State Capitol. The delay was necessary to avoid compliance  



with the Louisiana Open Meetings Law, L.S.A.R.S. 42:2.1 et seq. 

which requires notice and access to the public for formal 

meetings. Findings of Fact, paras. 38, 39. 

The actual work of hammering cut a settlement took place 

in a private meeting in the Senate Computer Room in the sub- 

basement of the State Capitol. Findings of Fact, para. 39. 

Although the group met for several hours with participants 

coming in and out, no black legislators were invited and no 

representatives of the black community were consulted by any 

of the people involved in negotiating a compromise plan. 

Representatives were present of all interested parties, ex- 

cept blacks. Findings of Fact, para. 39, 41. Blacks were 

deliberately excluded from the negotiations because, in light 

of the Governor's position, the persons involved in the private 

meetings had no intention of considering the interests of black 

voters or of drawing a district that did not fragment the | con- 

centration of black vorers in New Orleans. Findingsiof Pact, 

para. 42, 49. 

The guidelines followed in the sub-basement meeting were 

to draw the Second Congressional District with a population 

majority in Jefferson Parish and with a black population that 

was more than 40% but less than 45% of the district. Pind- 

ings of Fact, para. 40. The 45% black population ceiling was 

dictated by the demographics of the area and the Governor's 

position that a majority black district was unacceptable. (Id.) 

Act 20 was drawn in the sub-basement meeting and was 

approved by Governor Treen, who had stayed late at night to  



review it. Governor Treen had no concern, when he first re- 

viewed Act 20, or.atl any time thereafter, that the Plan carved 

up the black community in New Orleans without regard to 

political, historical or natural boundaries. Findings of Fact, 

para. 43. After the Governor noted his approval, a formal 

conference committee was appointed on Wednesday, November 11. 

No black legislators were named to the conference committee. 

Findings of Fact, para. 44. 

When the conference committee held its public meeting, 

several black legislators delivered impassioned speeches 

against the so-called compromise. Conference committee members, 

legislative staff and witnesses ‘perceived the purpose and the 

result of the new plan as the {elimination of) the existence 

of a black district from the plan.” {P. Bx. 18. aL.5, Scott, 

Barringer). Representative Scott proposed amendments to add 

back a majority black district based in New Orleans, but those 

amendments were rejected. Findings of Fact, para. 44. 

On November 12, the last day of the special session, both 

the full House and Senate passed the conference committee 

Plan. ' Governor Treen signed the bill into law on November 19, 

1981 as "Act 20 of the PFPirst Extraordinary Session-of 1981." 

Discriminatory Results 

1. Act 20 dilutes black voting strength in 

the metropolitan Orleans area 

Dilution of minority voting strength occurs where a re- 

districting plan disperses a large, geographically insular 

concentration of black voters into a number of districts,  



submerging their voting strength in a racially polarized elec- 

corte {Vol. TIT, Tr,ulll-114, Henderson). 

The evidence shows that in the City of New Orleans there 

exists the largest concentration of blacks living in the State of 

Louisiana and in the New Orleans metropolitan area. According 

to the 1980 census, the Parish of Orleans, coterminous with 

the City, has a total population of 557,482 persons, of whom 

55%, Or 308,039, are. black.: Findings of Fact, para. 7, 8. 

Act 20, unlike all of the congressional reapportionment 

Plans seriously considered by the legislature prior to the 

Governor's threat to veto the Nunez Plan, as well as the plan 

prepared by plaintiffs' expert Dr. Gordon Henderson, does not 

respect the integrity of the Orleans Parish black concentra- 

tion. Employing contorted lines, Act 20 divides the concentra- 

tion into two Congressional Districts, so that black registered 

voters are a minority of the voters in each district. {38.79% 

black voters are placed in the Second District; 21.5% black 

voters are in the First District). Pindings of Pact, para. 9, 

10, 11. The lines of Act 20 are most contorted when they cut 

through the heaviest black concentration in the Parish. The 

  

4/ This definition is similar to one offered at their first 

public meeting to members of the congressional reapportionment 

committee by an attorney for the Louisiana Legislature: "One 

concern of the courts is the existence of a predominantly black 

neighborhood or area with a sufficient amount of population to 
justify a district where it becomes apparent that the effect 

was to carve up thati.group of people in such a way as to put 

them in two or three separate districts and make it impossible 

toielect a black representative." (PP. Bx..1 at 120),  



portion of the Second District that cuts into Orleans Parish 

is shaped like a 42-sided drawing of the head of a duck 

splitting majority black wards, and placing half the precincts 

which are 95% Or more: black in population in each district. 

Findings:of Bact, para. 10,11, 71, 7%, 77. 

The testimony at trial, and studies by experts for both 

plaintiffs and defendants, shows that the electoral system in 

the Orleans Parish metropolitan area is racially polarized. 

Findings of Fact, para. 33, Plaintiffs' expert Dr. Henderson 

conducted a specific computer-assisted analysis for elections 

in this area from 1976 to 1982 and found an extremely consis- 

tent pattern of racial bloc voting in all the elections ex- 

amined. Moreover, in 19 of 39 Parish elections, the correla- 

tion coefficient between the race of the voter and the race of 

the candidate was: .9 or higher. Findings of Fact, para. 54. 

Even in those few elections within Orleans Parish in which 

black candidates have been successful, there is still an ex- 

tremely high level of polarization along racial lines. The 

level of polarization has increased over time, especially 

when white voters perceive that a black candidate is credible. 

{(Morial deposition at 52-3); Findings of Fact, para. S56. 

Act 20 results in the dilution of the voting strength.iof 

blacks in the metropolitan Orleans area because it disperses 

the large black population concentration, submerging it in 

two districts where the electorates are racially polarized. 

In light of the high level of polarization, black voters would 

not have a fair chance of electing a congressional  



representative of their choice, Findings of Fact, para. 538, 

59, 60. 

Act 20 denies black voters an equal oppor- 

tunity To participate in the political 

process 

In addition to dilution of the voting strength of blacks 

in Orleans Parish, there are other indicia in the record of 

the discriminatory results of Act 20. 

(a) The State of Louisiana and every jurisdiction within 

the state has a history of official discrimination against 

blacks because of their race. Discriminatory practices were 

utilized to disenfranchise blacks, to segregate blacks in 

separate schools, and to separate physically blacks from whites 

in public accommodations, churches and in "practically every 

form of social contact between whites and blacks." Findings 

of Fact, paras. 64, 65, 66, 67 and 68. These discriminatory 

policies and practices were only abandoned when enjoined by 

the courts or made illegal by federal civil rights legislation. 

(Id.) The history of discrimination against blacks in 

Louisiana has contemporary consequences that limit the ability 

of and the opportunity for black voters to participate in the political 

process. Act 20 builds upon these present effects of past 

discrimination by fragmenting a sizeable black population con- 

centration and manipulating boundary lines in ways that submerge 

black voting strength in a racially polarized electorate. 

Findings of Fact, paras. 69, 70, 71. 

(b) The state has a majority vote requirement that en- 

hances the opportunity for discrimination against black voters  



as a result of their fragmentation into two congressional dis- 

tricks under Ack 20. Findings of Fact 57, 59, 

{'c) Blacks in Louisiana in general and Orleans Parish 

in particular pear the effects of discrimination in education, 

employment and housing which hinder their ability to par- 

ticipate effectively in the political process. The "hangover" 

effect is evident in a lower level of education among blacks, 

lower socio-economic status, poorer housing and less income 

as reflected in 1980 census data. Findings of Fact, para. 66. 

(d) No black has ever been elected to statewide office. 

No black has been elected to the United States House of 

Representatives from any of Louisiana's congressional districts 

in this century. Although there are presently 372 black elected 

officials in Louisiana, this is less than 7% of the total 

number of elected officials in a state that 1s 29% black. The 

large majority of black elected officials are elected to minor 

level offices and "the overwhelming preponderance" of these 

officials are elected from black majority districts of 55-65% 

black population. 

In the City and Parish of New Orleans which are over 55% 

black in population, less than 15% of the elected officials 

are black. In. Jefferson, St. Bernard, St. Tammany and 

Plaquemines Parishes, there are no black officials elected at- 

large where they had to run in a contested race against a 

white opponent. Findings of Fact, para 6; also Appendix A. 

(e) The defendant's reasons for fragmenting the concen- 

tration of black voters in New Orleans are tenuous, conflicting  



and are not supported by the record. The defendants claim 

that Act 20 simply continues an historical division of Orleans 

Parish into two congressional’ districts. Defendants ignore 

the fact that prior plans necessarily divided the Parish 

because its population was roughly equivalent to the popula- 

tion of two ideal sized congressional districts. Findings of 

Pact, para. 5. As of the 1980 census, that was no longer true. 

In fact, the population of Orleans Parish had diminished to 

the point that it is now roughly equivalent to the size of 

only. one ideal district. (1Id.) Moreover, the sanctity of 

historical boundary lines was willingly violated in other 

parts of the state, Findings of Fact, paras. 23, 24, 32, 43, 

51, 52, and was embraced most tightly in Orleans Parish where 

the black population concentration had been fragmented. (Id.) 

Defendants also argue that the division under Act 20 of 

blacks in Orleans Parish is beneficial to the black community. 

This notion of "multi-representation'" was not perceived as an 

advantage by other parishes or by officials elected city-wide 

in Orleans. Findings. of Fact, paras. 20, 32, 51, and 52. 

Furthermore, in enacting Act 20, other state policies and 

legislatively adopted reapportionment criteria were violated 

in the New Orleans metropolitan area. In the First and Second 

Congressional Districts under Act 20, at least four state 

policies and reapportionment criteria were ignored: {1) Act 20 

does not create compact districts, (2) Act 20 does not avoid 

dilution of minority voting strength, (3) Act 20 does not re- 

cognize communities of interest and (4) Act 20 crosses indis- 

criminately traditional political boundaries such as wards and  



parish lines. Findings of Fact paras. 10, 12, 17,18, 19, 

26, 61, 62, 63, 72.,..-73, 76, 77. 

Finally, the protection of white incumbents was allowed 

to dominate. all other considerations... Findings of Fact, 

paras. 47, 48, 78, 80, 

C. Discriminatory Intent 

In Village of Arlington Heights v. Metropolitan Housing   

Development Corporation, 429 U.S. 252, 266-68 (1977), the   

Supreme Court set out principles in determining whether an 

illegitimate racial purpose exists behind state action. The 

Supreme Court stated that a racially invidious motive may be 

evidenced by a racially disparate impact, or sometimes by a 

clear pattern, unexplainable on other than racial grounds, 

emerging from state action even though the action appears 

neutral on its face. The historical background of the decision 

may also be an evidentiary source as well as the specific 

sequence of events leading to the challenged decision. Further 

evidence of such a racial purpose may be revealed by departures 

from the normal procedural sequence or in a substantive manner, 

especially if factors usually considered important by the 

decisionmaker strongly favor a contrary decision. 

In the 1981 special legislative session, each house of 

the Louisiana Legislature finally passed the Nunez Plan which 

would have provided for an Orleans Parish based 54% black 

population Congressional district, but that plan was never 

enacted into law. Findings of Pach.porag. 828 ..29,° 33, 35,  



The record shows that the Nunez Plan would have been enacted, 

but for Governor Treen's public threat of a vero. Findings 

of Fact, paras. 30, 31, 35,36, 37. 

The sequence of events in the reapportionment process in- 

dicate that the role of Governor Treen in the process was 

central in the reversal of the legislature from its adoption 

of a plan which would incorporate a majority black Congressional 

district. As he testified at trial, Governor Treen was not 

open to any proposal that created a majority black Congressional 

district, and refused to support any plan with more than 44.7% 

black population in one district. Pinding of Fact, paras. 22, 

2%5:..3%. 

The Louisiana Legislative Black Caucus consisting of the 

two black senators and the ten black representatives unanimously 

opposed Act 20 as a dilution of minority voting strength and 

blame Governor Treen as the one chiefly responsible. See 

remarks of Representatives Alphonse Jackson, Johnny Jackson, 

Jr. and Diana Bajoie, Conference Committee hearing, November 

13, 198%, (P. Ex, 18), Findings of Fact, papas. 31, 51. 

Richard Turnley, Chair, Louisiana legislative Black Caucus 

testified that the Governor was "opposed to having a district 

that would be predominantely black, where the opportunity 

would be available for a black person to be elected." (Id.) 

The analysis of Act 20 prepared by Department of Justice 

attorney Robert Kwan (P. Ex. 49E) concludes that the Governor's 

position was determinative:  



There is no question that Governor Treen 

was heavily involved in the Congressional re- 

apportionment process and that his actions 

determined the outcome of the process. Governor 

Treen presented the legislature with three of 

his own reapportionment proposals and had his 

aides actively promote those plans in the 

legislature. He publicly threatened a veto of 

the Nunez Plan finally passed by both houses 

of the legislature, which in the views of the 

legislators, such as Senators Hudson and Nunez 

and Representative Turnley among others, was 

the same as actually interposing the veto. His 

aides aggressively lobbied the legislators dur- 

ing the floor debates in the legislature and 

significantly over the weekend between the 

adoption of the Nunez Plan in the House and 

that body's reversal on Monday. After that 

weekend, Governor Treen proposed his so-called 

Reconciliation Plan which the House adopted 

hours later, and his assent was required so 

that a compromise could be reached on Congres- 

sional reapportionment before the 1981 special 

session ended. In the views of the Louisiana 

Legislative Black Caucus, the submitted plan 

is basically the Governor's plan as modified. 

It is clear that the Governor was involved in 

the process; to suggest otherwise would be as 

one commenter (sic) said to argue that two 
plus two is not four. 

{P+ Bx. 49% 5t 13) 

The testimony at trial reinforces the conclusion that the 

Governor played a critical role in the. railroading of the Nunez 

Plan and the enactment of a plan that divided through tortured 

lines the concentration of black voters in Orleans Parish. 

Findings of Fact, B85, 36, 37, 38, 40, 465 47; Vol. TIL, Tr. 094; 

Q. (Cassibry): This legislature had done 

it (the textbook plan with a majority 

black district), both sides overwhelm- 

ingly , and then backed away? 

{Baer): Yes, sir. 

What does that tell us, any- 
thing?  



Rei. Yeg "gir, It tells us that the 

Coverncr still has a lot of 

strength in this State. 

Governor Treen has enunciated different reasons, depending 

on the forum, for his opposition to the Nunez Plan and in sup- 

port of Act 20. Directly on the question of race and congres- 

sional reapportionment, Governor Treen testified on cross- 

examination that the idea of drawing a majority black district 

based in Orleans smacks of racism, is ominous, has no consti- 

tutional or policy imperative, and that he was not open to any 

proposal that created a majority black congressional district. 

Findings of Fact 22, 31. On direct examination, however, 

Governor Treen denied that the concentration of black voters 

in the Second Congressional District under Nunez affected his 

perception of the Plan. (Vol. IV, Tr. 26). 

In his Section 5 submission to the Department of Justice, 

(May 25, 1982 memorandum from Special Counsel to the Governor, 

adopted by the Governor in his June 6, 1982 letter, D. Ex. 15; 

see also P. Ex. 49E at 15) the Governor took the position that 

the Nunez Plan was simply an effort by the Louisiana Legislative 

Black Caucus to achieve proportional representation, guarantee- 

ing the election of a black to Congress. At trial, in response 

to a question from the Court, he denied, however, that Nunez 

was ever considered by him "as assuring the election of a black 

candidate in one congressional district,” (Vol. 1V, Tr, 99) 

or that the assurance of the election of a black was the thinking 

or motivation of "proponents of the (Nunez) Plan." {(Id.)  



Governor Treen testified at trial that he opposed the 

Nunez Plan because it was an effort to undermine the power 

base of Representative Robert Livingston, and that the pro- 

tection of incumbents was a legitimate concern. {¥ol. IV, 

Tr. 75-76). Nowhere in his submission to the Department of 

Justice does the Governor mention his concern for the protec- 

tion of incumbents. (1d.; see D. Ex. 1,,15). Moreover, he 

subsequently admitted on cross-examination that Representative 

Livingston would have had no trouble getting re-elected under 

Nunez. (Vol. <IV,.Tr. 83). 

Some of his reasons for opposing Nunez are internally 

inconsistent. The radical change in the First District was 

the reason the Governor gave on direct examination for his 

opposition to Nunez. (Id.). Yet, he also testified that one 

of his goals was to change districts other than the First, to 

make them more compact, (Vol. IV, Tr. 11, 17) and he was will- 

ing to consider reshaping their configuration "in a more ac- 

ceptable way." Findings of Fact, 32. 

The Governor testified that Orleans Parish was better 

served by having influence over two representatives. Yet, 

he conceded that no other parish representative perceived 

their interests best served by splitting the parish's influence 

(Vol. IV, Tr. 13), and in fact, "when a representative or 

senator saw his parish being split he seemed to be in resistance 

ite Ld, DY, 

Governor Treen testified that an important redistricting 

goal "was. not .to disturb traditional political lines. (Vol.  



IV, Tr. 3). Yet he expressed no concern about the way Act 

20 tortured ward lines in the black community in New Orleans, 

and even with regard to white wards that were relocated under 

Act 20 from the Second District to the First, he dismissed 

his concern about historical placement. (Vol. . IV, Tr. 69). 

None of the positions variously advanced by the Governor 

are supported by any credible evidence in the record. Far 

from being an effort To maximize black voting strength or to 

unseat a particular Representative, the Nunez Plan was a text- 

book plan drawn by the legislative staff in conformity with 

their training and with the congressional redistricting criteria 

adopted by the joint committee. Findings of Fact, paras. 17, 

18, 26. Nor was the Governor's notion of "multi-representation" 

embraced by officials elected city wide in New Orleans, Find- 

ings of FacfZ, paras. 20, 31, orisupported.by:theighift in 

population from Orleans to Jefferson Parish. Indeed, under 

Act 20, Orleans Parish dominates only one Congressional Dis- 

trict. Findings of, Fact, paras. 5, 63. 

The Governor's position that blacks were better off in 

two districts was at odds with every piece of evidence pre- 

sented at the legislative hearings, and at trial, including 

testimony by black political and civic leaders, (Lewis, Vol. 

I, . 246-7, Turnley, Vol. 11, Tr. 10-12, Morial deposition 

at 47-8, ‘Cassimere, Vol. I1, Tr. 116) and the evidence inter 

alia, of the high degree of racial polarization in the elec- 

torate. = Findings of Fact, paras. 53, 54, 55, 56, 50 i 60,  



The Governor consulted with no black people in reaching 

his conclusions, (Vol. IV, Tr. 13-14), Findings of Fact, para. 

51, and, contrary to his assertions before the Department of 

Justice (D. Ex. 1, May 28 Memorandum at 17), there was no input 

from blacks in the confection of Act 20. Findings of Fact, 

paras. 39, 41,42, 44, 49. 

In 1960, the Governor was Chair of the Central Committee 

of the States Rights Party of Louisiana. The main platform 

of the Party was preservation of racial segregation and re- 

sistance to any federal effort to curtail segregation. Find- 

ings of Fact, para. 67. Whatever the primary impetus was for 

his threat to veto a plan with a black population majority in 

the Second Congressional District, in view of his black popula- 

tion ceiling of 45% in one district and the opposition of 

some legislators to a plan that would provide an opportunity 

for a black to be elected to Congress (Findings of Fact, para. 

48), the Governor's threat to veto the Nunez Plan was a 

vehicle for discrimination against black voters. Moreover, 

the Governor's intervention at the point that the Nunez Plan 

had passed both houses of the legislature constituted a 

departure from normal procedures. Finally, as a direct result 

of his veto threat, the legislature departed from criteria pre- 

viously adopted for reapportionment, deliberately excluded 

black legislators from the decision-making process, delayed 

appointment of a formal conference committee to circumvent the 

Louisiana Open Meetings Law, and allowed the interests of all  



other parties, except blacks, to dominate. When the conference 

committee was finally appointed, participants, staff members 

and witnesses, recognized that the purpose and result of the 

new plan was to "eliminate the existence of a black district 

from the plan." Findings of Fact, para. 44, The "specific 

sequence of events leading up to the challenged decision,” 

Arlington Heights, supra, 429 U.S. at 267 provides evidence 
  

of an intent. to discriminate, 

An inference of intentional discrimination is reinforced 

by other evidence in the record. The evidence showed unusual 

and tortured lines shaping the Second susie 2 Findings of 

Pact, para. 10, 72, 73, 7%, taking an especially sinuous path 

through the concentration of black voters in New Orleans, 

Findings of Fact, para, 9,10, 11, 71, 73, 77, and combining 

extremely divergent communities of interest in one district, 

Findings of Fact, paras. 12, 61, 62. ‘The evidence 1s uncon- 

tested that the Second District 1s dominated by Jefferson 

Parish, Findings of Fact, para. 63, and that this was inten- 

tional. An inference can therefore be drawn that the result- 

ing submergence of the voting strength of black voters in the 

Second District with the domination by predominantly 

white Jefferson Parish was also intentional. Supporting this 

inference is evidence of the racially polarized electorate, 

  

5/ Even Mayor Mcorial found the sinuous course of the lines 

confusing (Deposition at 38), and the Governor admitted that 
under Act 20 in the First and Second District, "aslo: of 
people don't know who their congressman or woman is now." 

{Voi . IV, Tr. 69).  



the majority vote runoff requirement and the difficulty any 

Second District representative would have representing equally 

the concerns of the white Jefferson Parish voters and the 

black voters in the Orleans Parish portion of the district. 

The totality of circumstances, including the deviations 

from neutral criteria previously adopted, the railroading by 

the Governor of a plan that recognized the concentration of 

black voters in Orleans Parish and the substitution of a plan 

that consciously minimized black voting strength, the exclu- 

sion of blacks from the decision-making and especially from 

the meetings before the formal meetings where the decisions 

were being made, the preoccupation with protecting incumbents, 

the unusual shape of the lines that fragment the minority com- 

munity, historical racial discrimination and The absence of 

a legitimate and consistently applied non-racial reason for 

adoption of the plan at issue mandates the conclusion that 

Act 20 as it pertains to the First and Second Congressional 

Districts has a discriminatory purpose in violation of the 

United States Constitution and Section 2. 

D. Preclearance 

Act 20 is before this Court because the Assistant Attorney 

General, United States Department of Justice failed to inter- 

pose an.objection pursuant to Section 5 of the Voting Rights 

Act. No evidence was presented that the Assistant Attorney 

General, a political appointee, reviewed Act 20 and made his 

decision in a manner that was reliable, trustworthy, or  



sufficiently adversarial to accord the conclusion of that pro- 

cess any evidentiary weight. In fact, the rebuttal evidence 

of plaintiffs tends to show that the professional staff and 

career experts in the Department investigated the facts and 

reached the conclusion that Act 20 was intentionally discrimin- 

atory, that the Department's effort to investigate the facts 

was thwarted when a routine request for more information was 

recalled, that all references in the initial request to state- 

ments made by the Governor regarding congressional reappor- 

tionment were removed although the Governor's role in threaten- 

ing to veto the Nunez Plan was obviously relevant, and that 

the Department's consideration of the discrimiantory effects 

of Act 20 was limited to an examination of retrogression, i.e, 

whether the percentage of blacks in District 2 was reduced 

from the level of black population under the 1972 Plan. The 

decision of the Assistant Attorney General with regard to 

Act 20 was the product of a non-adversary proceeding, was 

inconsistent with the recommendations of his staff, and was 

made in response to a concerted personal lobbying effort by 

the Governor of Louisiana. 

This conclusion was foreshadowed by the Louisiana Legis- 

lative Council in a Memorandum, November 8, 1981, (P. Ex. 25 

at gy, 44-46% black population district in a modification 

of one the Governor's plans would likely receive favorable 

treatment in Reagan's Department of Justice." The June 18, 

1982 decision of the Assistant Attorney General not to object 

is not credible evidence of any of the relevant facts in 

this case. Findings of Faet, parva, 31.  



Defendants' Evidence 

(1) Defendants attempted to rebut plaintiffs evidence 

of the dilutive results of Act 20 by showing that some blacks 

have been elected to public office in Orleans Parish and an 

even smaller percentage have been elected to public offices 

throughout the state (Compare Plaintiffs' Findings of Fact, 

Appendix A, Black Elected Officials in Louisiana); that some 

white elected officials are responsive to black voters; that 

a black could be elected under Act 20 in District 2 because 

of the presence of white cross-over voting in Orleans Parish 

and, based on population trends, a projection as to the growth 

of minority population in the next ten years; and that blacks 

are better off having influence in two districts. 

Defendants' evidence of cross-over voting and popula- 

tion projections are based. on questionable methodology and even 

more questionable expertise and should not be given any weight. 

In particular the studies conducted and presented by defendants’ 

expert Kenneth Selle were based upon projections from precincts 

selected to produce the results sought. Furthermore, they are 

irrelevant ‘since the igsue is (a) the result. of Act 20 now, 

not at some unspecified point in the future, and (b) the sub- 

mergence of black voting strength in a Jefferson Parish 

dominated district. The presence of some white cross-over 

voting in New Orleans is not evidence of white cross-over vot- 

ing in Jefferson Parish. Defendants' expert John Wildgen 

admitted that residents of the French Quarter and the Univer- 

sity District in Orleans Parish were the most likely to 'tross-over"  



20 4 

and vote for a black candidate. Those districts are unique 

to Orleans-Parish. Findings of Fact, para, 55. 

With regard to evidence of the number of black elected 

officials, the evidence that no blacks have been elected 

statewide or to Congress is most probative of this issue. A 

reasonable comparison must be based on a jurisdiction the 

equivalent size of a Congressional district with a black 

registration minority of 39%, and an electorate that is 

racially polarized. Under this standard of comparison, the 

evidence shows that the "extent to which members of the 

minority group have been elected to public office” is de 

minimus or zero. 

Even if the Court chooses to consider evidence of blacks 

elected to public office throughout the State of Louisiana, 

the record shows that the "overwhelming preponderance" of 

those office holders were elected from majority black dis- 

tricts. Moreover, the vast disparity even in Orleans Parish 

between the number of black elected officials and the total 

number of elected officials shows that, even using the measure 

most favorable to defendants, blacks in Louisiana do not 

enjoy equal access to the political process. 

Finally, defendants' evidence of responsiveness is only 

relevant in rebuttal if plaintiff had chosen to offer evidence 

of unresponsiveness. Here, plaintiffs did not attempt to 

prove the unresponsiveness of the incumbent congressional  



representatives. Defendants' evidence of self-serving state- 

ments by elected politicians is not probative of the dis- 

criminatory results of Act 20. 

(2) Defendants attempt to rebut plaintiffs' evidence 

of an intent to discriminate in the enactment of Act 20 by 

relying on self-serving and inconsistent statements of the 

Governor and other elected political figures. The incon- 

sistency of these statements is itself evidence from which 

an inference of intentional discrimination can be drawn. More- 

over, in their post-trial memorandum, defendants concede many 

of the facts on which plaintiffs rely. They agree (Defendants 

Memorandum at 8) that the creation of a majority black dis- 

trict is an easy and proper solution if Orleans Parish is the 

equivalent size of one congressional district. The evidence 

is undisputed that Orleans Parish is 1.06% the size of an 

ideal district. 

They agree that a majority black district based in 

Orleans Parish was not only an easy solution, but a "socially 

redeeming quality which well-intentioned people would want for 
  

District two." (Id. at 12) (emphasis added). 

They concede that Governor Treen had a black popula- 

tion ceiling for the Second District. Under Act 20, they 

state, "District two ended up with 44.5% black population, 

only slightly less than what the Governor intended." 

(Id. at 14).  



(3) In their effort to rebut plaintiffs' evidence, 

defendants rely on much that is outside the record, either 

because it is speculative, (Defendants' Memorandum, at 17, 29, 

42) inadmissible hearsay that was never properly authenticated 

or even introduced into evidence (See Appendix A, B, C and D 

to Defendants' Memorandum), by their own admission, not "directly 

in evidence," (Defendants' Memorandum at 6-7, 10, 29) or 

because it is contrary to the evidence that is. in the record. 

6/ 
(Id, at .26,.29,°37)." 

  

6/ For example defendants state at 16, "Chehardy says 

politics, not the threat of a veto killed Nunez." They cite 

to the transcript of Mr. Chehardy's testimony, Vol. III, Tr. 

23, where the witness is assessing the relative significance 
of the politics of Representative Livingston and the racial 
motivation of the legislature as a whole. The cited portion 

of the transcript contains no testimony by the witness com- 

paring politics to the threat of a veto, or anything else 

that would support defendants' characterization. Indeed 

the witness states to the conteary on that very page of the 

transcript: "And when it became obvious that this plan was 

not going to pass because of the veto threat, you know, that's 

when the meeting took place in the basement and subsequent 

things happened." @ (Vol. IXI, Tr. 23, Chehardy)i  



ee » 
II. LEGAL ARGUMENT 

A... Act 20 is 8 discriminatory delineation of congressionsl 
  

boundary lines that results in unlawful dilution of black vot- 
  

ing strength in the New Orleans metropolitan area. in violation 
  

Of Section 2 of the Voting Rights Act. 
  

The Voting Rights Act applies to claims of discriminatory 

redistricting. Congress intended the Voting Rights Act fo be 

a broad charter against all systems and practices that diminish 

black voting strength. When Congress extended the Voting Rights 

Act in 1975, the Senate observed: 

As registration and voting of minority citizens 

increases, other measures may be resorted to 

which dilute increasing minority voting strength. 
Such measures may include , . . the adoption of 

discriminatory redistricting plans. 

S. Rep. No. 94-295, 94th Cong. lst Sess. 16-17 (1975). 

The Senate Report accompanying the 1982 extension and 

ov 
amendment of the Act echoes the same concern: 

The initial effort to implement the Voting Rights 
Act: focused on registragion . sw . .: It is not 

surprising, therefore, that to many Americans, the 

Act is synonymous with achieving minority registra- 

tion. Buti registration is only the First hurdle 
to effective participation in the political process. 

As the Supreme Court said in its interpretation of 

the Act: 

  

  

  

7/ S. Rep. No. 97-417, 97th Cong., 2d Sess. (1982) (herein- 
after Senate Report). The Senate Report is reprinted in the 

United States Code Cong. and Ad. News., No. 5, July 1982, at 

177 ff. The first 88 pages are the Report of the Committee on the 
Judiciary and contain the view of the co-sponsors of the amend- 
ments which passed the Senate by a vote of 85 to 8. 128 Cong. 
Rec, 85.7139 (daily ed. June 18, 1982).  



oe w 

The right 10 vole can be affected by a 
dilution of voting power as well as by 

gn absolute prohibition on casting a 
ballot. Allen v. Bd. of Elections, 398 
U.S. 544,7569 (1969) 
  

Senate Report, -at 6 (emphasis added). Accordingly: 

[Flor purposes of Section 2, the conclusion 
... that "there were no.inhibitions against 
Negroes becoming candidates, and that in fact 

Negroes had registered and voted without 

hindrance, would not be dispositive. Section 
2, as amended, adopts the functional view of 
"political process’ . . , rather than the 
formalistic view . . ., [Tlhis section without 
question is aimed at discrimination which takes 
the Porm of dilution, ag well 28 outright denisl 
of the right to register or to .voie. 

  

  

  

  

Senate Report, at 30 n. 120 (emphasis added). 

Claims of discriminatory redistricting fall squarely 

within the ambit of the Act. Indeed, "[Tlhe continuing problem 

with reapportionment is one of the major concerns of the Voting 

Rights. Aet .... .". Senate Report, at 12 n. 31. 

Section 2 of the Voting Rights Act specifically pro- 

hibits redistricting plans that result in dilution of minority 

voting strength. Section 2 reaches any "systems or practices 

which operate, designedly or otherwise, to minimize or cancel 

out the voting strength and political effectiveness of minority 

groups.? 8S. Rep. No. 97-417, 97th Cong., 24 Sess., at 28 (1982) 

(hereinafter Senate Report.) 

1. The Section 2 Standard 
  

On June 29, 1982, the  



oe 9 

8/ 
29, 1982, 96 Stat. 131. Amended Section 2, 42 U.S.C. 81973, 

provide 

(a) No voting qualification or prerequisite 

foc voting or standard, practice, Or pro- 

cedure shall 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 United 
States to vote on account of race or color, 

Or in contravention of the guarantees set 

forth in Section 4(f)(2), as provided in 
subsection (b). 

A violation of subsection (a) 1s established, 
if, based on the totality of circums{ances, 

it is shown that the political processes lead- 

ing to nomination or election in the state or 
political subdivision are not equally open to 

participation by members of a class of citi- 

zens protected by subsection (a) in that its 

members have less opportunity than other mem- 

bers 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 3tate or political subdivision 
is one "circumstance" which may be considered, 
provided 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. 

As the legislative history in both houses makes clear, 

Section 2 was amended primarily in response to the decision in the 

City of Mobile v. Bolden, 446 U.S. 55 (1980), to provide that 
  

proof of discriminatory purpose is not required to establish a 

  

8 / The House passed its version of a bill amending and extendi 
the Voting Rights Act of 1965 on Oetober 5, 1981. "127 Cong. R 
H. 7011. The Senate thereafter adopted its version of the bill 

on June 18, 1982. 128 Cong. Rec. S.7139. Subsequently, on June 
23, 1982, the House unanimousely adopted the final Senate version 
of the Act with the understanding that the effect of the Section 
2 amendment was identical under either the original House bill 
or the Senate bill. 128 Cong. Rec. H.3840.  



oO w 

violation of the statute, regardless of the standard of proof 

applicable in constitutional challenges. See Senate Report 

af 231 

the specific intent of this amendment is 

that the plaintiffs may choose fo establish 

discriminatory results withcut proving any 

kind of discriminatory purpose. 

House Rep. No. 97-227, 97th Cong., 1st Sess., 29 (1981) (here- 

inafter "House Rep."): 

Section 2 of H.R. 3112 will amend Section 2 
of the Act to make clear that proof of dis- 

criminatory purpose or lntent is not required 

in cases brought under that provision. 

The amendment of Section 2 was intended by Congress to 

restore its original understanding of the standard governing 

challenges to discriminatory election practices and procedures 

which had been applied by the courts prior to City of Mobile v. 
  

Bolden. Both houses indicated that the statute, when enacted 

in 1965, did not require proof of intentional discrimination for 

8 violation, despite indications to the contrary in the plurality 

opinion in City of Mobile v. Bolden, supra, 446 U.S. at 61 
  

("this statutory provision (Section 2) adds nothing to the 

appellee's Fifteenth Amendment claim"). See House Rep., 29: 

"The purpose of this amendment to Section 2 is to restate Congress’ 

earlier intent that violations of the Voting Rights Act, in- 

cluding Section 2, be established by showing the discriminatory 

effect of the challenged practice." (Footnote omitted); Senate 

"The Committee amendment 

y purpose be proved 

ully consistent with 

30 -  



0 EW w 

understanding of Section 2 when the Act was passed in 1945," 

Section 2 embodies language taken directly from White 

v. Regester, 412 U.S. 755, 766 (1973), which Congress indicated 
  

correctly stated its understanding of the results standard: 

The plaintiffs! burden 1s to produce evidence 
to support findings that the political pro- 

cesses leading to nomination and election were 

not equally open to participation by the groups 

in question--that its members had less opportunity 
than did other residents in the district to par- 
ticipate in the political processes and fo elsct 

legislators of thelr cholce. 

In adopting the 'resulis standard! as articulated 
in White v. Regester, the Committee has codified 
the basic principle in that case as it was ap- 

plied prior to the Moblle litigation. 

  

House Report, 29-30: 

By amending Section 2 of the Act, Congress intends 

to restore the pre-Bolden understanding of the 

proper legal standard which focuses on the results 

and consequences of an allegedly discriminatory 

voting or electoral practice rather than the intent 

or motivation behind it. 

But, of course, regardless whether Congress was correct in its under- 

standing of the proof requirements of White y. Regesielr, or any   

other pre-Bolden voting rights cases, what is relevant is that 

Congress enacted a statute which dispensed with the requirement 

of proving any kind of discriminatory purpose £o establish a 

voting rights violation. Senate Report, 28; House Report, 28-9. 

understanding of the standard of proof 

1 
supra, Congre plicitly provided that 

  

violation  



(a) As previously noted, proof of discriminatory 

purpose is not required te establish a violation of the 

statute, regardless of the standard applicable in constitu- 

tional challenges. Cf. City of Mobile v., Bolden, supra, 
  

446 U.S. at 69, quoting Washington v. Davis, 426 U.S. 229, 240 
  

(1976), that "the invidious quality of a law claimed to be 

racially discriminatory must ultimately be traced to a racially 

discriminatory purpose." 

(b) Unresponsiveness 1s not an element of a statu- 

tory violation, whatever its relevance in constitutional cases. 

Indeed, Congress provided that the use of responsiveness is 

to be avoided, because it is a highly subjective factor which 

creates inconsistent results in cases presenting similar facts. 

Senate Report 29, n. 116 ("The amendment rejects the ruling in 

Lodge v. Buxton and companion cases that unresponsiveness 
  

is a requisite element."); House Report 29, n. oY, :30 ("The 

proposed amendment avoids highly subjective factors such as 

responsiveness of elected officials to the minority community.") 

In fact, responsiveness is of no relevance even in rebuttal, 

if plaintiff chooses not to offer evidence of unresponsiveness. 

Senate Report at 29, n. 116. 

(c¢) Foreseeablility of consequences, while of 

parently doubtful relevance to a constitutional violatil 

of Mobile v. Bolden, sup $46 U.S, ‘at 
  

levant evidence of a statutory violation." 

s ibe LOD,  



(d) Whatever limitations may exist on the scope 

of the constitutional bar against indirect interference with 

the right to vote, zee, .Z., City of Moblle v. Bolden, 
  

Q 446 U.S. at 65; and Rogers VY. .l : U.5. » 1102:8.0t. 
  

3272, 3276, n. 6 (1982), Section 2 embodies a functional view 

of the political process and prohibits a very broad range of 

impediments to minority participation in the electorate. Senate 

BO, nn. 129: 

the conclusion in the Mobile plurality 

opinion that 'there were no inhibitions 

against Negroes becoming candidates, and 
that, in fact, Negroes had registered 

and voted without hinderance,' would 
not be dispositive. Section 2, as amend- 
ed, adopts the functional view of 

'political process used in White rather 

than the formalistic view espoused by 

the plurality in Mobile. Likewise, 

although the plurality suggested that 
the Fifteenth Amendment may be limited 

to the pightt to cast a ballot and may 
not extend to claims of voting dilution, 
this section without question is almed 

at discrimination which takes the form 
of dilution, a8 well as outright denial 
of the right to register or to vote. 

The legislative history provides that fo establish a 

Section 2 violation plaintiffs can show a variety of factors, 

including those derived from the analytical framework used 

the Supreme Court in White v. Regester, and as articulated   

subsequent decisions such as Zimmer v. 
  

v5» 1973), 2f£'d on other grounds     

rrish School Board v. Marshal, 424 
  

follows:  



(1) The extent of any history of 

official discrimination in the siate 

or political subdivision that touched 

the rights of the members of the minority 

group to register, to vote, or otherwise 

to participate in the democratic process; 

(2) The extent fo whieh voting in the 

elections of the state or political sub- 

division 18 racially polarized; 

{3) The extent to which the state or 

political subdivision has used unusually 

large election districts, majority vote 

requirements, anti-single shot provisions, 

or other voting practices or procedures that 

may enhance the opportunity for discrimination 

against a minority group; 

(4) If there is a candidate slating 

process, whether the members of the minorit; 

group have been denied Oo. that process; 

(5) The extent to whicl nbers of the 

minority group in or political sub- 

division bear the discrimination in 

such areas as education, employment and health, 

which hinder thelr ability to participa 

effectively in the political proces 

(6) Whether political campal 

characterized by overt or  



(7) The extent to whlch members of the 

minority group have been elected to public 

office in the jurisdiction. 

Senate Report, 28-9. These factors are the most important ones in 

evaluating whether or not black voters "have less opportuni 

other members of the electorate to participate in the political 

process and to elect representatives of their choice," within the 

meaning of Section 2. 

There is no requirement under the statute that any 

particular number of factors, however, be proved or that they 

point one way or the other. "The courts ordinarily have not used 

these factors, nor does the committee intend them to be used, as a 

mechanical 'point counting' device." Senate Report, 29, n. 118. 

Instead, application of Section 2 requires the trial court's over-~ 

all judgment, based on a totality of the relevant facts and circum- 

stances of the particular case, whether minority voters enjoy the 

opportunity to participate in the political process and 

representatives of their choice. 

In amending Section 2, Congress thus infended to 

establish a reliable and objective standard for adjudicating voting 

rights violations. It indicated That in determining an overall 

"result" of discrimination, based on the totality of cilrcumstiances, 

certain types Objective, verifiable evidence should be emphasized 

(such as an official history of discrimination in 

bloe votin use of a majority vote requirement or  



in such areas as education, employment and h 

of subjective and impressionistic evidence were not regarded as 

relevant or weighty (such as unresponsiveness), and no inference 

of discriminatory purpose -- no matter how circumstantial -- 1s 

required. Recent cases applying the analysis of amended Section 

S/ 
2 to strike down dilutive voting procedures include Jones v. 

ubbock, 'C 48. No. 5-76-34 (N.D: Tex., .Jan. 20, 1983), slip op., 

14 ("Under the findings of the court with respect to the 

which the Congress deemed to have been relevant to the determina- 

tion of this question, and under the totality of all of the cir 

cumstances and evidence in this case, it is inescapable that the 

at-large system in Lubbock abridges and dilutes mincorities' oppor- 

tunities t members of their own choice."); Thomasville   

Branch oF N Thomas County, Georgia, Civ. No. T75-34-THOM 
  

6, 1983); Perkins v. City of West Helena, Arkansas, 675 
  

F.24 201 (8th Cir. 1982), aff'd, 31 LU.8.1.4. 1982); 

Taylor v. Haywood County, Tenn., 544 F.Supp. | (W.D. 
  

Tenn. 1982) (applying the Section 2 factors and preliminary 

injunction against use of at-large voting for the Haywood County 

Act 20 results in the denial or abridgement of 
plaintiffs! right to vote in violation of Section 2 
  

The record in this case clearly supports the conclusion 

riminatory result in violation of 

  

® the cases cited by defend- 

amendment to Section 2 

Section 2. In Roge 
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Section 2. The relevant record evidence has not been 

seriously contested. 

(a) There has been a long history of official 

discrimination against blacks in Louisiana and the New 

Orleans metropolitan area involving registration and voting, 

including grandfather clauses, the white primary and under- 

standing tests. 

(b) There is a clear pattern of racial bloc voting 

in Orleans Parish elections, in which correlations between the 

race of the voter and the race of the candidate are extremely 

high. There is evidence to suggest a similar pattern of 

tion in the Jefferson Parish electorate. 

(c) The evidence that blacks in the New Orleans 

area are a distinct socio-economic group and bear the present 

effects of discrimination in such areas as education and em- 

loyment, was not contested, nor can the effect of these 

1 
conditions as inhiblting blacks equal participation in the 

10/ 
political process be seriously contested. 

  

10/ The legislative history provides where there is evidence 
of disproportionate educational, employment, income level and 

living conditions, plaintiffs need not prove any causal nexus 

between their disparate socio-economic status and their inability 
to participate effectively in local politics. Senate Rep., 29, 

n. 114. See White v. Regester, supra, 412 U.S. at 768-69: "The 
residual impact of This history reflected itself in the fact that 

... only five Mexican-Americans since 1880 have served in the 
Texas legislature from Bejar County." ; and Eirksey VY. Board of 
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(d) No black has ever been elected to a statewide 

position in Louisiana. No black in this Century 

elected to Congress from the State of Louisiana. 

blacks are over 557 of the population in Orleans Parish, less 

than 15% of the elected officials are black. No black has 

been elected to any office from a multiparish district with 

size, population and percentage of black registered voters 

comparable to the Second Congressional District under Act 20. 

(e) It is undisputed that Louisiana presently uses 

a majority vote requirement and has in the past employed voting 

practices and procedures that enhance the opportunity 

crimination against minorities. See Rogers v. Lodge, 
  

73 L.Ed.2d at 1023, 1024; White v. Regester, supra, 
  

766 (majority vote requirements "enhance the opportunity 

racial discrimination." ); City of Port Arthur v. United 
  

inl 8, 0 10% 8.06%: 530, 535" (1982) "In the context of 

racial bloc voting . . . the [majority vote] rule would permanently 

foreclose a black candidate from being elected . . . "). 

(f) Previously adopted legislative reapportionment 

criteria may fairly be said to favor a majority black 

district that respected Orleans Parish (political) and 

River (natural) boundaries, that placed divergent 

districts. and that was 

the policy favoring the fractt 

tion concentration i  



The defendants appear to take the view that simply 

because blacks can register and vote in Louisiana without 

hindrance, and have been elected to a few offices in Orleans 

Parish, there can be no dilution of minority voting strength. 

Consequently, they virtually ignore the rich evidence in the 

record of racial bloc voting, the depressed socio-economic 

status of blacks, the continuing effects of past discrimination 

and the other factors indicated by Congress which show that an 

election practice results in the denial or abridgment of the 

equal right to vote. This limited view has no basis Jn the 

law, the legislative history or prior cases. Congress speci- 

Fically rejected the view urged by defendants when it amended 

and extended the Voting Rights Act in 1982. Senate Report, 30, 

nh. 120. 

The discriminatory "results' test focuses on whether 

the political process, as it has worked, and as if now promises 

TO work, has made it equally possible for minority voters to 

participate in the political process and elect representatives 

choice to office. In a sense, the process by which 

legislature enacted Act 20, rejecting the textbook plan with a 

majority black district, is a microcosm of the way the political 

Process has worked to limit the opportunity of blacks to par- 

ticipate: fracturing 

epresentatives from 

and inhibiting  



Section 2, as amended, is a proper exercise of 
congressional power to enforce, by appropriate 
legislation, rights protected by the Fourteenth 
and Fifteenth Amendments 
  

In their post-trial memorandum, defendants contend for 

the first time that Section 2 oversteps congressional 

authority by modifying a constitutional standard. Defen- 

dants are wrong. In view of the broad power that Congress 

enjoys to enforce the substantive rights protected by the 

fourteenth and fifteenth amendments, the legislative history 

of Section 2 makes it clear that the result standard of 

proof of Section 2 does not overturn the Supreme Court's 

decision in Mobile v. Bolden, but is an expression of 
  

Congress' enforcement power to end the perceived risk of 

purposeful discrimination. 

The Supreme Court, in an unbroken line of cases over 

the past seventeen years, has affirmed that section 5 of the 

fourteenth Amendment and section 2 of the fifteenth Amend- 

ment invest Congress with broad powers to enforce the 

substantive rights those amendments secure. South Carolina   

v. Katzenbach, 383 U.8. 301 (1966); Ratzenbach v, Morgan, 
    

3840.5. 64) (1966); Oregon v,'Mitchell, 400 U.S. 156 
  

(1980); City of Rome v, U.8. , 446. 0.5. 156 (1980). 
  

In South Carolina v. Katzenbach the Supreme Court 
  

confronted squarely the constitutionality of major provi- 

sions of the Voting Rights Act. The Court reviewed the 

legislative history, noting that Congress had adopted the  



Act because "sterner and more elaborate measures" were 

necessary to combat the "unremitting and ingenious defiance 

of the Constitution" by States which perpetuated the "insidious 

and pervasive evil" of racial discrimination in voting. 383 

U.8. at 309. Those "sterner" measures of the Act, the Court 

held, were an appropriate vehicle to enforce Congress' respon- 

sibility as articulated in the fifteenth amendment. Section 

2 of the fifteenth amendment conferred upon Congress "full 

remedial powers to effectuate the constitutional prohibition 

against racial discrimination in voting." Id. at 326. 

Shortly thereafter, in Katzenbach v. Morgan, supra, the 
  

Court addressed the scope of Congress' power to enforce the 

fourteenth amendment. Rejecting a challenge to section 4(e) 

of the Act on the ground that it exceeded Congress' fourteenth 

amendment enforcement power, the Court held that such power 

parallelled the power conferred upon Congress by the fifteenth 

amendment, as delineated in South Carolina v. Katzenbach. 
  

The Court stated that: 

Correctly viewed, §5 is a positive grant of 
legislative power authorizing Congress to exercise 
its discretion in determining whether and what 
legislation is needed to secure the guarantees of 
the Fourteenth Amendment. 384 U.S. at 651. 

Congress' sweeping power to enforce the fourteenth and 

fifteenth amendments, as articulated in South Carolina wv. 
  

Katzenbach and Katzenbach v. Morgan, was most recently 
  

reaffirmed in City of Rome v. United States, supra. In City 
  

of Rome plaintiffs challenged, inter alia, the constitutionality  



of Congress' power to enforce the fifteenth amendment by 

enacting the preclearance provisions of the Act. Reiterating 

its analysis of congressional power in South Carolina wv.   

Katzenbach and Katzenbach v. Morgan, the Court upheld the 
  

Act based on "Congress' broad power to enforce the Civil War 

Amendments." 446 U.S. at 176. The Court surveyed the 

analytical development of federalism doctrine in the context 

of Congress' passage of the Voting Rights Act and concluded 

that: 

principles of federalism that might otherwise be 
an obstacle to congressional authority are neces- 
sarily overridden by the power to enforce the 
Civil War Amendments "by appropriate legislation." 
Those Amendments were specifically designed as an 
expansion of federal power and an intrusion of 
state sovereignty. 446 U.S. at 179 (emphasis 
added). 

  

In amending section 2 to prohibit voting practices that 

result in racial discrimination without requiring a showing 

of intent, Congress concluded that to enforce fully the 

fourteenth and fifteenth amendments such a standard was 

necessary and "appropriate legislation" to prevent purposeful 

discrimination. In reaching this conclusion, Congress found 

(1) that the difficulties faced by plaintiffs forced 
to prove discriminatory intent create a substan- 
tial risk that intentional discrimination will go 
undetected, uncorrected and undeterred 

that voting practices and procedures that have 
discriminatory results perpetuate the effects of 
past purposeful discrimination. 

Senate Report at 40.  



Congress noted specifically in the legislative record 

the fundamental defect in the intent standard of proof for 

challenges to recent discriminatory enactments such as 

reapportionment plans, Senate Report at 37. Congress was 

concerned that plaintiffs challenging a redistricting plan 

would be unable to overcome the ability of defendants to 

create a documentary trail and to offer a non-racial 

rationalization for a law which, in fact, purposefully 

discriminates. As long as the Court must make an ultimate 

finding of intent, even based on the circumstantial and 

inferential factors of White v. Regester, the problem of   

fabrication remains real. Senate Report at 37. 

The legislative record provided a concrete basis for 

Congress to conclude generally that purposeful discrimina- 

tion is difficult and costly to prove, and that purposeful 

discrimination will continue unabated as long as the intent 

standard of proof remains the law. Therefore, in order to 

enforce effectively the guarantees of the fourteenth and 

fifteenth amendments, Congress rationally concluded that it 

was necessary to prohibit voting practices with discrimina- 

tory results. Senate Report at 17-39; H.R. Rep. No. 97-227, 

97th Cong. lst Sess. 29 (1981); see also Hearings on 

Extension of the Voting Rights Act, Subcommittee on Civil 

and Constitutional Rights, House of Representatives, Serial 

No. 24, Part 3 at 1999-2055, June 24, 1981; Hearingsion S.  



1992 before the Subcommittee on the Constitution of the 

Senate Committee on the Judiciary, 97th Cong. 24 Sess., 

Serial No. 3-97-92, Vol. 1 at 952-973. 

Nevertheless, defendants argue that because a plurality 

of the Court held in Mobile that section 2 is co-extensive 

with the Fifteenth Amendment, Congress' amendment of section 

2 to provide for a result standard of proof is outside the 

limits of the Constitution, and effectively overturns the 

Supreme Court's substantive interpretation of the fifteenth 

amendment. Close scrutiny of the relevant legislative 

history and the governing case law, however, reveals that 

Congress was not seeking to overturn Mobile's holding 

concerning the scope of the fifteenth amendment, but merely 

attempting to exercise properly its broad powers to 

guarantee the enforcement of constitutional rights under the 

fourteenth and fifteenth amendments. 

The legislative history of section 2 explicitly states 

that the amendment of section 2 is not an attempt to 

override the Supreme Court's decision in Mobile v. Bolden by   

statute; the Senate Judiciary Committee Report readily 

acknowledges Congress' lack of power to overturn the Supreme 

Court's substantive interpretation of the Constitution. 

Senate Report at 41. The effort of Congress in enacting 

section 2 was not to redefine the scope of constitutional 

provisions, but to detach section 2 from its prior coexten-  



sive status with the fifteenth amendment, and invest it with 

the broad power Congress enjoys to enforce constitutional 

rights beyond the minimum safeguards the Constitution itself 

1v/ 
provides. 

In Lassiter v. Northampton County Board of Elections, 
  

360 U.S. 45 (1959) the Supreme Court held that literacy 

tests, if not employed in a discriminatory manner, did not 

violate the fourteenth and fifteenth amendments. But in 

South Carolina v. Katzenbach, supra and Katzenbach v. Morgan, 
    

supra the Court rejected constitutional challenges to 

Congress' ban on literacy tests in the Act, upholding 

Congress' prohibition of literacy tests despite their facial 

constitutionality. The Court was, therefore, permitting 

Congress to enforce constitutional rights by enacting 

legislation which exceeded the direct requirements of the 

Constitution. In response to the argument advanced by New 

York State in Morgan, that the prohibition of literacy tests 

could not be "appropriate" to enforce the fourteenth 

amendment until the judiciary ruled that the statute was 

prohibited by the fourteenth amendment the Court stated: 

  

1l/ The results standard of proof in section 2 is based on 
the fourteenth amendment as well as the fifteenth amend- 

ment. It is also an effort to return to the standard of 
proof pre-Mobile, which reflects Congress' original intent 
in enacting section 2. See Senate Report at 15-27, discussed, 
supra.  



We disagree. Neither the language nor history of 
§5 supports such a construction. As we said with 
regard to §5 in Ex parte Virginia, 100 U.S. 339, 
345, "It is the power of Congress which has been 
enlarged. Congress is authorized to enforce the 
prohibitions by appropriate legislation. Some 
legislation is contemplated to make the amendments 
fully effective.” A construction of $5 that would 
require a judicial determination that the enforce- 
ment of the state law precluded by Congress vio- 
lated the Amendment, as a condition of sustaining 
the congressional enactment, would depreciate both 
congressional resourcefulness and congressional 
responsibility for implementing the Amendment. It 
would confine the legislative power in this context 
to the insignificant role of abrogating only those 
state laws that the judicial branch was prepared 
to adjudge uncenstitutional.... 384 U.S. at 648-9. 

  

To the same effect is City of Rome, in which the Court held   

that despite the fifteenth amendment's prohibition of only 

purposeful discrimination, Congress had power to prohibit 

electoral changes in a jurisdiction subject to Section 5 of 

the Voting Rights Act on the basis of discriminatory effect, 

alone. 

Moreover, the Supreme Court has upheld Congress' power 

to enact enforcing legislation beyond the boundaries of 

constitutional safeguards in areas outside the voting 

discrimination context. Despite the constitutional require- 

ment under the fourteenth amendment of proof of purposeful 

discrimination, the Court has upheld Congress' power to use 

an effects standard in Titles VI (Lau v. Nichols, 414 U.S. 
  

563, 567-69, .1974) and VII (Griggs 'v, Duke Power , 40) U.S. 
  

424 1971) of the Civil Rights Act of 1964, and under the 

Emergency School Aid Act. Bee Board of Education v. Harris, 
  

444 U.S. 130 (19729),  



B. Act 20 is an intentional fragmentation of the 
  

concentration of black voters in the New Orleans metropolitan 
  

area in violation of the United States Constitution and 
  

Section 2 of the Voting Rights Act. 
  

Although not necessary to plaintiffs' claims under 

Section 2 of the Voting Rights Act, evidence that defendant's 

redistricting plan purposefully dilutes the voting strength 

of blacks supports those claims. As explained in the Report 

of the Senate Committee on the Judiciary, p. 27: 

The amendment to the language of Section 2 is 
designed to make clear that plaintiffs need not 
prove a discriminatory purpose in the adoption or 
maintenance of the challenged system or practice 
in order to establish a violation. Plaintiffs 
must either prove such intent, or, alternatively, 

must show that the challenged system or practice, 
in the context of all the circumstances in the 
jurisdiction in question, results in minorities 
being denied equal access to the political 
process. 

Evidence that the redistricting plan was motivated, 

under the totality of circumstances by an intention to 

minimize or dilute black voting strength is also an element 

of plaintiffs' claims under the Fourteenth Amendment. Rogers 

V. Lodge, 102 s.Ct. 3272, 3275-76" (1982). 

The Supreme Court has articulated two principles to 

guide the lower courts in determining the existence of 

discriminatory purpose. The first principle is that the 

plaintiffs need not prove that the challenged redistricting 

plan was motivated solely by a discriminatory purpose. Once 

it has been shown that discriminatory considerations were  



one factor, plaintiffs have established their prima facie 
  

case. The burden then shifts to the defendants to establish 

that precisely the same district boundaries would have been 

drawn even in the absence of discriminatory considerations. 

Village of Arlington Heights v. Metropolitan Housing Develop- 
  

ment Corp., 429 0.85, 252, 265-55, 270-71 n.21 (1977).. Accord- 

ing to the court in Rybicki v. State of Board of Elections, 
  

No. 81 C. 6030 at 57-62 (N.D. 111, Jan 12, 1982), the burden 

this places on the defendant is a very heavy one. 

The second principle is that discriminatory intent can 

be proven by circumstantial evidence: 

[Dliscriminatory intent need not be proven by 
direct evidence. "Necessarily, an invidious 

discriminatory purpose may often be inferred from 
the totality of the relevant facts, including the 
fact, if it is true, that the law bears more 

heavily on one race than another." 

Rogers v. Lodge, 102 S.Ct. 3272, 3276 (1982), quoting   

Washington v. Davis, 426 U.S. 229, 242 (1976).   

This principle has been squarely accepted by the 

Congress as explained in the legislative history to the 1982 

Section 2 amendments: 

Plaintiff may establish discriminatory intent for 
purposes of this Section [Section 2], through 
direct or indirect circumstantial evidence, 

including the normal inferences to be drawn from 
the foreseeability of defendant's actions which 
"is one type of quite relevant evidence of 
racially discriminatory purpose." Dayton v. Bd. 
of Bduc,.,.v. Brinkman, 443 U.8. 526, 536. 1n.S 

{1979}, 

  

   



Senate Report No. 97-417, 97th Cong., 28 Sess., at 27 n.l108 

(1982). See also, Rogers v. Lodge, supra. In Rogers, the 
  

Supreme Court rejected the plurality's suggestion in Mobile 

that plaintiffs must prove that a discriminatory intent was 

the motivating factor of the decision-makers. Buchanan v.   

The City of Jackson, st... al, No. 51-5333, 6th Cir. (June 7,   

1983) slip opinion at 6. Copy attached. In Rogers the 

Court held that a violation of the Fourteenth Amendment need 

not be proven by direct evidence but may be inferred from 

"the totality of the relevant facts, including the fact 

that the law bears more heavily on one race than another." 

73 L.E4.24 at 1018, Buchanan v. The City of Jackson, ek.   

al, supra at 8. Consequently, discerning discriminatory 

purpose "demands a sensitive inquiry into such circumstantial 

and direct evidence of intent as may be available." Arlington 

Heights, supra 429 U.S. at 266.   

Courts have found evidence of fracturing to be probative 

of racial purpose. As the D.C. Circuit concluded in Busbee 

VY. Smith, 549 P., Supp. 3517 «D.D.C. 1982), aff'd, . "B.S. 

1038.01, 809 (1983): 

In this case, the state fragmented the large and 
contiguous black population that exists in the 
metropolitan area of Atlanta by splitting that 
population between two Congressional districts, 
thus minimizing the possibility of electing a 
black to Congress in the Fifth Congressional 
District. The impact of this state action is 
probative of racial purpose. 

An inference of racial purpose becomes even more compelling 

when there is no "legitimate, non-racial reason" for  



splitting a cohesive minority community "particularly if the 

factors usually considered by the decision makers strongly 

favors a decision contrary to the one reached." 1Id., citing 

Arlington Heights, 429 U.S. at 267. 
  

Fracturing is a classic device for diluting the voting 

strength of a geographically cohesive black community: 

The most crucial and precise instrument of the 
denial of the black minority's equal access to 
political participation, however, remains the 
gerrymander of precinct lines so as to fragment 
what could otherwise be a cohesive voting bloc. 
This dismemberment of the black voting community 

[has] the predictable effect of debilitating 
the organization and decreasing the participation 
of black voters, 

Kirksey v. Supervisors of Hinds County, Mississippi, 554 
  

F.24 139, 149 (5th Cir. 1977), cert. denied, 434 U.S. 968   

(1977) (footnote omitted); Robinson v. Commissioners Court, 
  

505 7.24 674, 679 (5th. Cir. 1974); Busbee v, Smith, supra. 
  

In enacting and then extending the Voting Rights Act 

Congress was well aware that minority voting strength can be 

dissipated by fracturing black communities. For this 

reason, fracturing was one of the principal evils at which 

the Voting Rights Act was directed: 

In its 1970 extension Congress relied on findings 
by the United States Commission on Civil Rights 
that the newly gained voting strength of 
minorities was in danger of being diluted by 
redistricting plans that divided minority 
communities among predominantly white districts. 

United Jewish Organizations, supra 430 U.S. at 158. 
  

The evidence in this case provided a textbook example 

of how the intentional fracturing of a black population 

- 50  



concentration into two Congressional districts consciously 

minimized black voting strength because of the racially 

polarized nature of the electorate. Where it is obvious 

that a significant number of whites refuse to vote for any 

black candidate in a contested election, blacks must either 

support the candidate preferred by the white electorate, or 

they must support the Yosen ad! Racially polarized voting 

greatly exacerbates the dilutive result of splitting a 

concentration of minority voters, especially where a 

majority-vote requirement is in effect. "In the context of 

racial bloc voting ... the (majority-vote) rule would 

permanently foreclose a black candidate from being elected. 

Port Arthur v. United States, supra, 74 L.E4.24 at 342. 
  

Thus, the dilution of black voting strength was a natural 

and foreseeable consequence of the fracturing of the black 

voting concentration in the New Orleans metropolitan area. 

The tortured shape of the district lines also exacer- 

bates the discriminatory impact of Act 20 and supports the 

  

12/ "Where blacks constitute only 40% of the total population 
and 35% of the voting age population, they cannot defeat 
candidates proferred by their white opponents in a racially 
polarized atmosphere." City of Port Arthur v. United States, 
Civil Action No. 80-0648, at 45 (D.D.C. June 12, 1981), 
aff'd, 103 8.Ct. 530, 74 L.B4.24 334, 342 (1982). "The 
Supreme Court had earlier reached this conclusion: 

  

"Where it occurs, voting for or against a candidate 
because of his race is an unfortunate practice. 
But it is not rare; and in any district where it 

regularly happens, it is unlikely that any candidate 
will be elected who is a member of the race that 
is in the minority in that district." United Jewish 
Organizations v. Carey, 430 US. 144, at 166-67 

(1977Y. 

  

  

i  



inference of purposeful discrimination. Even Mayor Morial 

could not state in which Congressional District he now 

resided, "since they just redesigned those lines, they 

jagged them in such a way, I don't know which one I live 

in," (Deposition at 38). 

Defendants' course of conduct during the redistricting 

process strongly supports the inference that the jagged 

lines of Act 20 fractured the black population in New 

Orleans and minimized their voting strength intentionally. 

The defendants enacted the redistricting plan in a manner 

calculated to minimize the input of the black community and 

to exclude members of the Legislative Black Caucus. The 

Supreme Court has recognized that evidence of purposeful 

discrimination can be found in "the specific sequence of 

events leading up to the challenged decision." Arlington 

Heights, supra, 429 U.S. at 267.   

A discriminatory purpose such as to render Act 20 

invalid need not be directly expressed, but may be inferred 

from the totality of relevant facts, including a history of 

racial discrimination, a racially polarized electorate, the 

use of a majority vote requirement, the deviation from 

normal procedures and a disproportionately adverse impact on 

members of the minority voting community. Rogers v. Lodge,   

supra, 73 L.Ed.24 at 1017, 1024; Busbee v. Smith, supra.   

See State of Mississippi v. U.S., 490 PF. supp. 569 (D.D.C.   

1979) aff'q. "444 U.5, 1050 (1980); City of Port Arthur,    



Texas v. United States, Civil Action No. 80-0648, at 58   

{D,D.c. June 12, 1981), aff'd U.8. +-403:8.Ct.; 530 

(1982). 

 



Cc. Defendants' arguments are insufficient to rebut 
any of plaintiffs' allegations 
  

  

(1) Defendants argue that plaintiffs must prove intent 

under all causes of action; they concede that under Act 20 

they fracture a concentration of minority voters but claim 

that their motives for the split were political and therefore, 

plaintiffs cannot show the necessary discriminatory intent. 

Defendants are wrong. Plaintiffs need not prove any 

aspect of defendants' intent in order to prevail under 

Section 2 of the Voting Rights Act as amended June 29, 1982. 

Pub. L, 97-205, 96 Stat. 131 (1982). FEven under $1983 and 

the Constitution, plaintiffs can prevail if we show that 

defendants' allegedly benign motives are pretextual or a 

vehicle for discrimination and that a discriminatory purpose 

infected some part of the decision-making process. Plaintiffs 

have in fact shown that under the totality of circumstances 

an inference of discriminatory purpose is appropriate. 

Plaintiffs claim, for example, that defendants' alleged 

reliance on the historical boundaries of Congressional 

Districts One and Two is a tenuous state policy no longer 

supported by population figures. Defendants' other 

purported reason for fracturing the concentration of black 

voters in the New Orleans metropolitan area, i.e., that 

blacks are better off under Act 20 because within ten years 

-- just in time for 1992 reapportionment -- blacks will be 

able to elect two congresspersons, is also without merit.  



Not a single representative of the black community or black 

public official took this position during the reapportionment 

debates or in testimony at trial. Nor do defendants claim 

to have spoken privately with any black representatives who 

advocated this position. 

Moreover, the facts simply are not consistent with 

defendants' assertedly benign enhancement theory. While 

defendants point to the fact that a black mayor was elected 

in New Orleans with only 55% black population and slightly 

less than a majority in registered voters, Act 20 creates at 

most a 44.5% black population district with considerably 

less black registered voters. In addition, there is no 

evidence that outside of New Orleans and particularly in 

Jefferson Parish, which constitutes 55% of Act 20's Second 

Congressional District, a black could get elected. Even if 

the black population of the district were 55% black in ten 

years with 46% black registered voters, if 45% of the 

district population and 54% of the registered voters consist 

of whites from Jefferson Parish, the record is clear that 

the electorate would be racially polarized and the black 

candidate would still always lose. The shallow quality of 

defendants' evidence of population growth trends further 

undermines this theory. 

Finally, defendants claim that politics was the 

dominant motive behind the railroading of the Nunez Plan and  



the enactment of Act 20. Plaintiffs claim in response that 

political considerations, such as the protection of incumbents, 

tend to insure the creation of "safe white districts" where 

all the incumbents are and have been white, where the input 

of black leaders is deliberately suppressed, and where in 

order to insure the re-election of incumbents the number of 

black voters in each district must be minimized. Where 

political considerations are allowed to dominate neutral 

redistricting objectives and constitutional imperatives, a 

"politically balanced" plan that nevertheless consciously 

minimizes minority voting strength cannot be sustained. 

Robinson v, Commissioners . Court, supra, 505 F.2d at 674. 
  

(b) Defendants concede that there is a difference in 

the standards governing Section 5 and 2 of the Voting Rights 

Act, but they argue that preclearance under Section 5, while 

not binding, is entitled to some weight. They also rely on 

the de minimus increase in the percentage black population 

in the Second District to show that there is no retrogression. 

Retrogression may be relevant to the standard governing 

preclearance under Section 5, but it has no probative value 

to a claim under Section 2 that the strength of the minority 

voters in the New Orleans metropolitan area was diluted. 

Dilution is a much broader concept than the narrow standard 

of diminution or retrogression under Section 5. City of 

Yockhart v. U.8., 5) USILW 4189, 4194, 4195 n.8 (Peb. 22,   

1982); Beer v, . United States, 425 U.S. 130:(1975).    



Under the circumstances of this case, and given the 

unreliability of the preclearance process here, plaintiffs 

contend that the Assistant Attorney General's decision is 

entitled to no weight whatsoever. 

The Voting Rights Act expressly states that the 

preclearance determination of the Department of Justice of a 

voting law change submitted pursuant to Section 5, 42 U.S.C. 

§1973b&c, does not bar and is not binding on any subsequent 

judicial action to enjoin the enforcement of the change. 

The statute states: 

Neither an affirmative indication by the Attorney 
General that no objection will be made, nor the 
Attorney General's failure to object, ... shall 
bar a subsequent action to enjoin enforcement of 
such qualification, prerequisite, standard, 
practice, or procedure. 

The courts have interpreted this provision as 

precluding all judicial review of the Attorney General's 

13/ 
discretion and entitling litigants to a de novo proceeding. 

City of Bome v, United States, 450 ¥., Supp. 378:{(D.D.C. 
  

1978), aff'd on other grounds, 446 U.S, 156 (1980); Morris 
  

v. Cressette, 432 U.8. 491, 507 n.24 (1977).   

In a de novo proceeding under the United States 

Constitution and Section 2, the failure of the Assistant 

General to object is neither "conclusive with respect to the 

  

13/ Pursuant to 28 CFR §51.3, the Attorney General has 
delegated his authority to enforce Section 5 to the 
Assistant Attorney General, Civil Rights Division.  



constitutionality of the submitted states legislation," 

Morris v. Gressette, supra at 505, nor probative since no   

inquiry is permitted into his reasons or the decision-making 

process. As Justice Marshall stated in dissent in Morris v. 

Gressette, at 507-8: 

The Court holds today that an Attorney 
General's failure to object within 60 days to the 
implementation of a voting law that has been 
submitted to him under §5 of the Voting Rights 
Act, as amended, 42 USC $§1973c, cannot be 

questioned in any court. Under the Court's 
ruling, it matters not whether the Attorney 
General fails to object because he misunderstands 
his legal duty, as in this case; because he loses 
the submission; or because he seeks to subvert the 
Voting Rights Act. Indeed, the Court today grants 
unreviewable discretion to a future Attorney 
General to bargain acquiescence in a discriminatory 
change in a covered State's voting laws in return 
for. that State's electoral votes, Cf. J. Randall 
& D. Donald, The Civil War and Reconstruction 678- 

701 (24 ed 1961) (settlement of the election of 
1876). (footnote omitted) 

Second, the decision of the Assistant Attorney General 

not to object is irrelevant because the statutory standard 

of review under Section 5 is different than the standards of 

review under the Constitution and Section 2. See Report on 

S. 1992 of the Senate Committee on the Judiciary, S. Rep. 

No. 417, 97th Cong. 24 Session (1982) at 68, 138-139. See 

also discussion of retrogression, supra, page 57. Moreover, 

since judicial inquiry into the application by the Assistant 

Attorney General of the Section 5 standard is precluded, 

Morris v. Gressette, supra, at 507 n.24, plaintiffs contend   

that even if the Court were to discern similarities between  



Section 5 and Section 2 for example, such similarities in 

the statutory standards of review would still not be 

enlightening as to the actual standard applied in this case. 

The fundamental defect in relying on the Assistant Attorney 

General's decision is that neither the court nor plaintiffs 

are, or can be, in the normal course of this litigation, 

privy to the decision-making process. Where all judicial 

review of the agency exercise of discretion or failure to 

act is precluded, a decision cloaked in such mystery is of 

no probative valoas and should not be given any weight. 

It is immaterial and unnecessary to the disposition of 

this case, and contrary to the law as set forth in Morris v. 

Gressette, supra; City of Rome v. United States, supra; and 
  

Harris v. Bell, 362 7.24 772 (D.C. Cir, 1977) to give any   

weight to the exercise of the Assistant Attorney General's 

discretion under Section 5. As stated by the Supreme Court 

in Morris v. Gressette, supra at 506-07: 
  

Where the discriminatory charcter of an enactment 
is not detected upon review of the Attorney General, 
it can be challenged in traditional constitutional 

  

3 This is particularly true since the Court in Morris v. 
Gressette, supra at 503-504, interpreted the statute to 
preclude all judicial review based on the potential severity 
of the preclearance process for covered jurisdictions in 
that review would defeat the congressional purpose of 
providing a speedy way for states to gain permission to 
implement new voting laws, and not because the Court assumed 
that the Attorney General's discretion had been exercised 
properly. See City of Rome v. United States, 450 F. Supp. 
at 383%. 

  

   



litigation. But if cannot be questioned in a suit 
seeking judicial review of the Attorney General's 
exercise of discretion under §5, or his failure to 

object within the statutory period. 

Evidence of the June 18, 1982 decision not to object 

is, therefore, not probative since it cannot be fully 

examined and since it reflects the application of different 

and possibly no legal standards. 

Such evidence is also irrelevant because it is based on 

an unreliable nonadversary proceeding, from which plaintiffs 

were, at significant points, excluded. 

{c) By way of closing this section of the brief, 

plaintiffs wish to make it clear that we are not advocating 

that plaintiffs are entitled to proportional representation. 

However, plaintiffs do assert that where the number of black 

majority districts is not "reasonably equivalent to their 

voting strength" (City of Port Arthur v. U,.,S., supra at 50),   

this is a circumstance supporting an inference that the plan 

is racially discriminatory in violation of Section 2 and the 

Constitution. Where there is a sizeable concentration of 

black population, sufficient to comprise a population 

majority in a district, and that concentration is intentionally 

divided and submerged in racially polarized districts with a 

white voter registration majority of over 61% in one and 79% 

in the other, and a majority of the vote is required for 

election, that conclusion becomes inescapable.  



This Court should order the parties to submit 
plans that respect the integrity of the concen- 
tration of black voters in Orleans Parish and that 
fully remedy the discriminatory results and intent 

  

  

  

  

of “Act 70, 

The Supreme Court has cautioned that "the court has not 

merely the power but the duty to render a decree which will 

so far as possible eliminate the discriminatory effects of 

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

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

added). In exercising equitable powers, the "remedy is to 

be determined by the nature and scope of the constitutional 

violation.” Milliken v. Bradley, 433 U.8. 267, 280 (1977), 
  

citing Swann v. Charlotte-Mecklenburg Board of Education, 
  

402 U.S. 1, 16 (1971); cited with approval in Rogers v. 

Lodge, 73 L.E4.24 at 1024. As importantly, "the decree 

must indeed be remedial in nature, that is, it must be 

designed as nearly as possible 'to restore the victims of 

discriminatory conduct to the position they would have 

' occupied in the absence of such conduct.'" 1Ibid., quoting 

from Milliken v. Bradley, 418 U.S. 717, 746 (1974) (Milliken 
  

I) (emphasis in original). And once a violation is proved, 

the power "to remedy past wrongs is broad, for breadth and 

flexibility are inherent in equitable remedies." Ibid., 433 

U.S. at 281, quoting Swann, supra, 402 U.S. at 15,   

This Court should invite the parties to submit plans to 

remedy fully any findings the Court may make that Act 20 

violates plaintiffs' constitutional and/or statutory rights. 

In view of the need to eliminate confusion well in advance  



of the next election as well as to provide potential non- 

incumbent candidates sufficient time to prepare for a 

meaningful election compaign, plaintiffs propose an 

expedited schedule as follows: 

x. Proposed plans should be submitted to the Court 
within fifteen days of its decision 

A remedy hearing should be scheduled within twenty 
days thereafter, with any discovery to be completed 
in the interim and with the Court entering such 
expedition orders as necessary 

Any deviation from this schedule would necessitate 
the Court to enter its own plan. 

Any plan defendants may propose, if adopted by the 

Court, will have to be submitted to the Attorney General for 

scrutiny under Section 5 of the Voting Rights Act. Since the 

burden of proof under Section 5 is on the defendant to 

establish the nondiscriminatory purpose and effect of the 

redistricting plan, the defendants, in submitting a plan to 

the court to remedy the violations alleged by plaintiffs, 

should retain the affirmative burden of proving that their 

plan is nondiscriminatory. McDaniel v. Sanchez, 452 U.S. 
  

130 (1981); Sims v. Amos; 365 F. Supp. 215, 220 {3 Judge   

court, Ala. 1973) afflda 415 u.8. 902. Moreover, even if the 

explicit mandate of Section 5 is not applicable, the history 

of discrimination by defendants, especially if the Court 

finds they acted with a discriminatory purpose in enacting 

Act 20, should create the presumption that defendants' plan 

is discriminatory, Sims v, Amos, 355 P.. Supp. at 220 n.2, 
   



and defendants should therefore be prepared to bear the 

burden of proving that their porposed plan, unlike Act 20, 

does not dilute the voting strength of black voters. CE. 

Keyes v, School District No, 1, 413 U.S. 189 (1973).   

In that the Nunez Plan passed both houses of the 

Louisiana legislative, if defendants submit any plan that 

treats the concentration of black voters in Orleans Parish 

with less respect than the Nunez Plan, such plan should be 

considered a per se violation of Section 2 and the 

Constitution, and should necessarily lead to a finding in 

favor of plaintiffs' proposed remedy. See, Sims v. Amos,   

supra. 

CONCLUSION 

Contrary to defendants' assertion, proportional 

representation and maximizing black voting strength is not 

central to any of plaintiffs theories of this case. The 

issue is whether blacks in the New Orleans metropolitan area 

are able to participate equally in the political process to 

elect representatives of their choice. 

That blacks in New Orleans may now, to a large extent, 

register, vote and even run for office is simply not what 

this case is about. The question before this Court is 

whether there is unlawful dilution of minority voting 

strength when a redistricting plan fractures a discrete 

concentration of urban black voters, and submerges one  



fragment in a suburban dominated district with a white 

voting registration majority of 61% and places another 

smaller fraction of black voters in a district with a white 

voting registration majority of 79%. Under the totality of 

circumstances, especially the existence of racial polarization 

in the electorate, the history of racial discrimination, the 

depressed socio-economic status of blacks in the New Orleans 

metropolitan area, the fact that no black in this Century 

has ever been elected to Congress or to a statewide office, 

the limited success of black candidates even in Orleans 

Parish and elsewhere in the state in other majority black 

districts and the use of a majority vote requirement, 

plaintiffs contend that such a redistricting plan has a 

discriminatory result. Because of this result, Act 20 

should be enjoined. In addition, plaintiffs have shown that 

an inference of deliberate and intentional discrimination 

should be drawn, and that the totality of circumstances 

demonstrates a violation of Section 2, Section 1983 and the 

Constitution. 

Respectfully submitted, 

R. JAMES KELLOGG 

WILLIAM QUIGLEY 

STEVEN SCHECKMAN 

STANLEY HALPIN 

631 St. Charles Avenue 
New Orleans, Louisiana 70130 

Telephone: 504/524-0016 

JACK GREENBERG 

LANI GUINIER 

10 Columbus Circle 
Suite 2030 
New York, New York 10019 

Dated: June 9, 
  

ATTORNEY FOR PLAINTIFFS  



CERTIFICATE OF SERVICE   

I certify that a copy of the foregoing document has 

been served upon counsel for all parties to this proceeding, 

by mailing the same to each by first class United States 

Mail, properly addressed and postage prepaid, on this 9th 

day of June, 1983, 

  

ATTORNEY FOR PLAINTIFFS 

 



RECOMMENDED FOR FULL-TEXT PUBLICATION 

See, Sixth Circuit Rule 24 

No. 81-5333 

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

  

JamEs L. BUCHANAN, et al, 
N h 

Plaintiffs-Appellants, OF Avra, from the 
District Court of the 

Vv. United States for the 

Western District of 

Tennessee, Eastern 

Division. 

THE CITY OF JACKSON AND THE STATE 
OF TENNESSEE, et al., 

Defendants-Appellees.   
  

Decided and Filed June 7, 1983 

  

Before: LiveLy and Marti, Circuit Judges and RusiN, 
District Judge®. 

Rus, District Judge. Plaintiffs filed this action in March, 
1977 challenging the at-large voting procedure for electing 
Jackson, Tennessee's three-member Board of Commissioner's. 

In their Complaint, plaintiffs alleged that the at-large sys- 
tem violates the Thirteenth, Fourteenth and Fifteenth Amend- 
ments to the Constitution and various federal statutes by 
diluting the voting strength of Jacksons black citizens and 
depriving them of meaningful participation in the political 
processes of that city. Four years after this suit was filed, the 

* The Honorable Carl B. Rubin, Chief Judge of the United States 
District Court for the Southern District of Ohio, sitting by designation.  



2 Buchanan, et al. v. City of Jackson No. 81-5333 

District Court granted defendants’ Motion for Summary Judg- 
ment based upon the United States Supreme Court’s decision 
in Mobile v. Bolden, 446 U.S. 55 (1980). On appeal, plain- 
tiffs contend that summary judgment on the disputed question 
of discriminatory intent was improper. Plaintiffs also seek 
reversal of the District Court on the ground that Rogers v. 
Lodge, 102 S.Ct. 3272 (1982), a second voting dilution case, 
and the recent amendment to the Voting Rights Act of 1965, 
42 U.S.C. § 1973 et seq., after the legal standards upon which 
the District Court based its decision. 

The City of Jackson, Tennessee is governed by a three- 
member Board of Commissioners. Each Commissioner is 
elected at large and runs for one of three designated posi- 
tions: (1) the Mayor, who serves as Commissioner of Public 
Affairs, Public Safety, Revenue and F inance; (2) the Com- 
missioner of Streets, Health, and Sanitation and Public Im- 
provements; and (3) the Commissioner of Education, Parks, 
Recreation & Public Property. An individual must designate 
which of these positions he is a candidate for and must 
receive a majority of the votes cast in ordrer to be elected. In 
the even no candidate receives a majority, a run-off election 
is held between the two candidates receiving the most votes. 
Jackson has utilized the Commission form of government 
since 1915, when the General Assembly of the State of Ten- 
nessee enacted Chapter 168 of The Private Acts. Prior to 
that time, Jackson was governed by a Mayor and alderman 
elected by geographic district. 

Plaintiffs in their Complaint made the following specific 
allegations in support of their contention that the at-large 
system for electing Jacksons Board of Commissioners results 
in unconstitutional vote dilution. First, plaintiffs claimed 
that the political processes leading to nomination and elec- 
tion in Jackson were not equally open to participation by 
blacks. In this regard, plaintiffs cited the fact that no black 
has ever been elected to the office of Commissioner or any 
other city-wide elective office, the lower registration rate of  



No. 81-5333 Buchanan, et al. v. City of Jackson 3 

black voters alleged to be attributable to official action prior 
to 1950, racially polarized voting in instances where blacks 
had run for city-wide office, the few blacks who serve on 
various city boards, alleged discrimination against blacks in 
municipal employment, and the exclusion of blacks from the 
leadership of political party organizations within the city. 
Plaintiffs also claimed that historically based discrimination 
and segregation in housing, education, public facilities and 
employment, and an alleged disparity in the provision of 
municipal services between black and white neighborhoods, 
support their general allegations of unlawful vote dilution. 

The District Court granted summary judgment on all of 
plaintiffs’ statutory and constitutional claims based primarily 
on the Supreme Courts decision in Mobile v. Bolden, 446 U.S. 
55 (1980). In Bolden, a case strikingly similar to that now 
before us,! the Supreme Court set forth the standard for 
determining the constitutionality of an at-large electoral 
system. 

The Court in Bolden first held that in order to establish 
a violation of the Fifteenth Amendment, a plaintiff must show 
both a discriminatory motivation and an interference with 
the actual registration or voting process. 446 U.S. at 65. 
Because it was undisputed that blacks in Mobile “registered 
and voted without hindrance,” the plaintiff's Fifteenth Amend- 
ment and Voting Rights Act claims were summarily rejected.? 

A majority of the Court in Bolden also agreed that an at- 
large voting system violates the Equal Protection Clause of 
the Fourteenth Amendment only if it is shown that the 

1 Bolden involved a challenge to the City of Mobile, Alabama’s at- 
large system of electing its three-member Board of Commissioners. 
Mobile had utilized this system since 1911 and although blacks 
represented approximately 35.4% of the population, no black had 
ever been elected to the Commission. 423 F.Supp. at 386, 388 (S.D. 
Ala. 1976). 

2 The Supreme Court held that Section 2 of the Voting Rights Act 
of 1965 “was intended to have an effect no different from that of the 
Fifteenth Amendment itself.” 446 U.S. at 61.  



4 Buchanan, et al. v. City of Jackson No. 81-5333 

system “was conceived or operated as a purposeful device to 

further racial discrimination.” 446 U.S. 124, 149 (1971). The 

disproportionate effects of an electral system do not alone 

establish a discriminatory purpose. 446 U.S. at 66. In applying 

this standard to the evidence relied upon by-the lower courts 

in the case before it, however, no view commanded a ma- 

jority of the Court. 

Justice Stewart, writing for the plurality, rejected the 

District Court’s primary reliance upon certain of the so- 

called Zimmer factors, derived from the decision of The 

United States Court of Appeals for the Fifth Circuit in 

Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973).3 Al- 

though conceding that the circumstantial factors derived 

from Zimmer “may afford some evidence of a discriminatory 

purpose,” the plurality stated that Zimmer criteria were not 

alone sufficient proof of such a purpose, and specifically re- 

jected those relied upon by the District Court as “most 

assuredly insufficient.” 446 U.S. at 73.4 

Four members of the Court in Bolden argued that assum- 

ing proof of a discriminatory intent was required, the evi- 

dence below established such intent. Justice White claimed 

that the plurality’s piecemeal rejection of the circumstantial 

3 The Court in Zimmer identified the folowing factors as bearing 

upon a claim of unconstitutional vote dilution: (1) lack of minority 

access to the process of slating candidates; (2) unresponsiveness of 

legislators to the particularized interests of the black community; 

(3) the strength of the state policy “underlying the preference for 

multi-member or at-large districting; and (4) the existence of past 

racial discrimination in the community. The Court also considered 

the existence of large districts, majority vote requirements, anti- 

single shot voting provisions and the lack of provision for at-large 

candidates to run from particular geographic subdistricts, as addition] 

factors “enhancing” a claim of unconstitutional vote dilution. 485 

F.2d at 1305. 

4 The lower courts in Bolden found the following aggregate of 
Zimmer factors present in Mobile: (1) the absence of any black 
elected to the Board of Commissioners; (2) discrimination against 

blacks in municipal employment and the dispnsing of municipal 

services; (3) a history of official discrimination against blacks in 
Alabama; and (4) the mechanics of the at-large system, including a 
majority vote requirement.  



No. 81-3333 Buchanan, et al. v. City of Jackson 5 

evidence relied upon by the courts below was inconsistent 
with the “totality of the circumstances” approach endorsed 
by the Court in White v. Register, 412 U.S. 755. (1973). 

The District Court in this case summarily dismissed plain- 
tiffs’ statutory and Thirteenth Amendment claims for failure 
to state a claim upon which relief can be granted. Appellants 
have not pressed these claims on appeal. The District Court 
also rejected plaintiffs’ Fifteenth Amendment claims based 
upon Bolden because the record established that blacks in 
Jackson registered and voted without interference. Although 
appellants take exception to this ruling, we find the appli- 
cation of Bolden to plaintiffs’ Fifteenth Amendment claims 
appropriate. Absent any allegation of actual interference in 
the voting or registration processes, plaintiffs have failed to 
state a claim under the Fifteenth Amendment. 

With respect to plaintiffs’ claims under the Fourteenth 
Amendment, the District Court concluded that plaintiffs had 
“failed to offer any proof of discriminatory intent on the 
part of defendants,” and that the additional allegations offered 
by the plaintiffs in opposition to defendants’ Motion for Sum- 
mary Judgment were insufficient to support a finding of pur- 
poseful discrimination under the standard established by 
Bolden.’ The District Court also stated that plaintiffs had 
“failed to prove that the disputed plan was conceived fo 
operate as a purposeful device to further racial discrimina- 

tion.® 

5 In addition to the allegations in its Complaint, see text at p. 3, 
supra, plaintiff relied upon the recent rejection of a preferential 
referendum to change the Commission form of government, annexa- 
tions which increased the numbers of white voters, and an alleged 
Jirgeriy in municipal services afforded to black and white neigh- 
orhoods. 

6 The Supreme Court’s language in Bolden, upon which the District 
Court relied, condemns a system “conceived or operated as a pur- 
poseful device to further discrimination.” Thus, even if an electoral 
system is enacted innocently, it may be maintained invidiously result- 
ing in racial discrimination.  



Buchanan, et al. v. City of Jackson No. 81-5333 

The appellant argues that the District Court's decision 
should be overturned and the case remanded in light of 
Congress’ recent amendment of the Voting Rights Act of 
1965, 42 U.S.C. § 1973 et seq. and the recent Supreme Court 
decision in Rogers v. Lodge, 102 S.Ct. 3272, (1982). For 
reasons which will become apparent we will consider these 
developments in the reverse order from which they were 
raised. 

Rogers v. Lodge, supra involved yet another challenge to 
an at-large procedure for electing a county Board of Com- 
missioners under the Fourteenth Amendment.” Although 
Justice. White, writing for the majority, did not overrul 
Bolden, the Court's decision in Rogers clearly represents a 
retreat from the plurality’s views in that case. 

The Supreme Court in Rogers first noted that the lower 
courts had correctly anticipated the intent standard set forth 
in Bolden. 102 S.Ct. at 3277-78. The courts below concluded 
that although the at-large system was racially neutral when 
it was adopted, it was being maintained for invidious pur- 
poses.” Lodge v. Buxton, No. 78-3241, slip op. at 4 (S.D. Ga. 
1978). Emphasizing the deference to be accorded the District 
Court's findings of fact, particularly regarding issues of intent, 
the majority held that the District Judge's determination that 
the electoral system in Burke County was being maintained 
for discriminatory purposes was not clearly erroneous. 102 S.Ct. 
at 3278-79. 

In marked contrast to the plurality opinion in Bolden where 
the various Zimmer factors relied upon by the lower courts 
were singled out and discredited, the Court in Rogers enumer- 
ated the lower courts’ findings consisting largely of Zimmer 
factors, and endorsed a “totality of the circumstances” ap- 

7 Although the Complaint in Rogers was also brought under the 
Voting Rights Act of 1965 and the Thirteenth and Fifteenth Amend- 
ments, the Supreme Court in Rogers did not address these claims, 
presumably because its decision in Bolden foreclosed such avenues 
absent an allegation of actual interference with the registration or 
voting processes.  



No. 81-5333 Buchanan, et al. v. City of Jackson J 

proach to the question of discriminatory intent. Id. at 3279-81. 
The Court concluded that the District Court had based its 
finding of discriminatory intent primarily on the existence of 
Zimmer factors, but found this acceptable because the Court 
had not limited its inquiry to such factors. Id. at 3278. The ma- 
jority then upheld the combined significance of the following 
evidence relied upon by the courts below as evincing a discrimi- 
natory purpose in the maintenance of an at-large system: (1) 
although blacks constituted a substantial majority of the coun- 
ty’s population, they were a distinct minority of the registered 
voters; (2) the existence of bloc voting along racial lines 
coupled with the fact that no black candidate had ever been 
elected to the Board of Commissioners; (3) low black voter 
registration, attributable to pre-Voting Rights Act discrimina- 
tion in the form of literacy tests, poll taxes, white primaries, 

and educational discrimination; (4) exclusion from the political 
processes generally as evidenced by past discrimination in 
democratic party affairs and primaries, selection of grand 
juries, hiring of county employees, and appointments to county- 

wide boards and committees; (5) unresponsiveness and in- 
sensivity on the part of elected officials toward the needs of the 
black community, as evidenced by discriminatory paving of 
roads, a reluctance to remedy complaints of school segregation 
and grand jury segregation, and the Commissioner’s role in the 
incorporation of an all-white private school; and (6) the 
depressed socio-economic status of blacks in Burke County 
attributable at least in part to inferior education, and employ- 
ment and housing discrimination. Id. at 3279-81. 

The Court in Rogers also approved the evidentiary value of 
various characteristics of an at-large system which may en- 
hance the denial of access to the political process, specifically, 
the large geographic size of the county, the majority vote 
provision, the requirement that candidates run for a specific 
seat, and the lack of any residency restrictions on candidates. 

Id. at 3280-81.  



Buchanan, et al. v. City of Jackson No. 81-5333 

Rogers v. Lodge restores the significance of circumstantial 

evidence in determining whether a discriminatory purpose 

underlies the maintenance of an at-large system. Whereas 

Bolden appeared to require some direct evidence of discrimina- 

tory intent, 446 U.S. at 74, fn. 21, Rogers recognizes that cir- 

cumstantial evidence may, in some cases, be insufficient. Pro- 

vided a court considers the existence of Zimmer criteria as 

merely evidence of discriminatory intent, rather than the ulti- 

mate issue to be determined, it may properly base a finding of 

discriminatory purpose upon such factors. Also, a court clearly 

should not limit its inquiry to such evidence. Finally, Rogers 

indicates that the trier of fact is to be afforded broad discretion 

in applying this “totality of the relevant facts” approach to the 

question of discriminatory intent. 

As we have indicated above, the District Court relied 

heavily on the plurality opinion on Bolden and its rejection of 

Zimmer factors in granting the appellee’s Motion for Sum- 
mary Judgment. It is also apparent that in opposing the 

Motion, the appellants sought to satisfy Bolden’s ostensible 

requirement that a plaintiff furnish direct evidence of dis- 
criminatory intent. At the time of the District Court's de- 
cision, the plurality’s decision in Bolden was the controlling 

authority in this area. The trial court's reliance upon it was 

entirely proper. No court is charged with an obligation to an- 
ticipate a subsequent retreat from existing decisions. This 

Court, however, has had the benefit of the Supreme Court's 

decision in Rogers v. Lodge, supra. Because we believe that 
the majority's decision in Rogers represents a significant de- 
parture from the plurality’s opinion in Bolden as to the ap- 
propriate inquiry in a vote dilution case, we conclude that this 

case should be returned to the District Court for consideration 

in light of Rogers v. Lodge, supra. In doing so, however, 

we intimate no opinion whatsoever on the sufficiency of the 
allegations in the Complaint if proven, the evidence now 
present in the record, or the decision the District Court should  



No. 81-5333 Buchanan, et al. v. City of Jackson 9 

reach. The question of whether an electoral system is being 
maintained for a discriminatory purpose “demands a sensi- 
tive inquiry into such circumstantial direct evidence as may 
be available,” and it best left in the first instance to the trier af 
fact. Rogers v. Lodge, supra at 3276, quoting Village of 
Arlington Heights v. Metropolitan Housing Development 
Corp., 429 U.S. 252 (1977). 

On June 29, 1982, Congress amended Section 2 of the Voting 

Rights Act of 1965. Prior to its amendment, the Supreme Court 
had held that Section 2 merely tracked the Fifteenth Amend- 
ment. City of Mobile v. Bolden, 446, U.S. at 61 (1980). 
Accordingly, in order to establish a violation of the statute, a 
plaintiff was formerly required to show both discriminatory in- 
tent and a direct interference with the right to register or 
vote. Id. at 61-65. Amended Section 2, however, now provides 

as follows: 

(a) No voting qualification or prerequisite to voting 
or standard, practice, or procedure shall be imposed or 
applied by an State or political subdivision in a manner 
which results in a denial or abridgement of the right of 
any citizen of the United States to vote on account of 
race or color, or in contravention of the guarantees set 
forth in section 1973 b(f)(2) of this title, as provided 
in subsection (b) of this section. (emphasis added). 

(b) A violation of subsection (a) of this section is es- 
tablished if, based on the totality of circumstances, it is 
shown that the political processes leading to nomination 
or election in the State or political subdivision are not 
equally open to participation by members of a class of 
citizens protection by subsection (a) of this section in 
that its members have less opportunity than other mem- 
bers 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 cir- 
cumstance which may be considered. Provided, that  



10 Buchanan, et al. v. City of Jackson No. 81-5333 

nothing in this section establishes a right to have mem- 

bers of a protected class elected in numbers equal to 

their proportion in the population. (emphasis in original). 

The Senate Report makes it clear that the amendment to 

Section 2 of the Voting Rights Act is intended “to restore 

the legal standard that governed voting discrimination cases 

prior to the Supreme Court's decision in Bolden.” Sen. Rep. 

No. 97-417 at p. 2, 15. The report goes on to summarize that 

state of the law as follows: 

In pre-Bolden cases plaintiffs could prevail by showing 

that a challenged election law or procedure, in the 

context of the total circumstances of the local electoral 

process, had the result of denying a racial or language 

minority an equal chance to participate in the electroal 

process. Under this results test, it was not necessary 

to demonstrate that the challenged election law or pro- 

cedure was designed or maintained for a discriminatory 

purpose. 

Finally, the legislative history lists “typical factors” which 

Congress contemplated a court might properly consider in de- 

termining whether there is a violation of the amended Act. 

These factors are: 

(1) The extent of any history of official discrimination 

in the state or political subdivision that touched the right 

of the members of the minority group to register, to vote, 

or otherwise to participate in the democratic process; 

(2) The extent to which voting in the elections of the 

state or political subdivision is racially polarized; 

(3) The extent to which the state or political subdi- 

vision has used unusually large election districts, majori- 

ty vote requirements, anti-single shot provisions, or other 

voting practices or procedures that may enhance the op- 

portunity for discrimination against the minority group; 

(4) If there is a candidate slating process, whether the  



No. 81-3333 Buchanan, et al. v. City of Jackson 11 

members of the minority group have been denied access 
to that process. 

(5) The extent to which members of the minority group 
in the state or political subdivision bear the effects of 
discrimination in such area as education, employment and 
health, which hinder their ability to participate effec- 
tively in the political process; 

(6) Whether political campaigns have been character- 
ized by overt or subtle racial appeals; 

(7) The extent to which members of the minority group 
have been elected to public office in the jurisdiction. 

Clearly, the amended Voting Rights Act shifts the focus of 
a vote dilution claim under the statute to a discriminatory 
“effect” or “result” as opposed to motive or intent. Although. 
examination of the plaintiffs’ Complaint in this case reveals that 
the plaintiffs have never proceeded under the Voting Rights 
Act of 1965, 42 U.S.C. § 1973 et seq., our prior decision to 
remand this case on constitutional grounds suggests that plain- 
tiffs should also be given the opportunity to amend their Com- 
plaint to state a claim under the amended Voting Rights Act. 
Appellees’ contention that the Voting Rights Act of 1965 is 
inapplicable because Tennessee has never been subject to the 
provisions of Section 4 of the Act, 42 U.S.C. § 1973b, is simply 
incorrect. Although the provisions of Section 4 apply only to 
states which had previously utilized discriminatory tests and 
devices, Section 2 of the Act contains a general prohibition of 
discriminatory practices which operates nationwide. Plaintiffs 
are therefore entitled to proceed under Section 2 of the Act. 
Again, however, we express no view as to the merits of any 
claim plaintiffs may assert under the amended Voting Rights 
Act. 

The judgment of the District Court is hereby VACATED 
and REMANDED for consideration in light of Rogers v. Lodge 
and the Voting Rights Act of 1965, 42 U.S.C. § 1973. et seq.