Memorandum in Support of Motion for Leave to File Amended Complaint

    » 

UNITED STATES 

EASTERN DISTRICT OF LOUISIANA 

BARBARA MAJOR, et al CIVIL ACTION 

Plaintiffs SECTION 

—-against- 

JAVID C. 

MEMORANDUM IN SUPPORT OF MOTION 
FOR LEAVE TO FILE AMENDED COMPLAINT 

This case is currently s for trial on January 

three-judge court. Plaintiffs have sought a stipulation from 

allow the amended complaint to be file but defendants have refuse 

a stipulation. Accordingly, plaintiffs seek leave pursuant to Rule 

the Federal Rules of Civil Procedure, which Rule provides that 

freely given when justice so requires.’ 

NATURE OF THE ORIGINAL ACTION 
The original complaint was filed on March 26, 1982 challenging 

apportionment of the Louisiana House of Representatives and the 

which members of the United States Congress are selected. A three-judge co 

consisting of district Judges Collins and "‘Cassibry and Circuit Judge Politz 

was convened pursuant to 28 U.S.C. §2284(e). declaratory and injunct 

are requested. 

At the time the original complaint was filed, both plans of 

ment had been submitted for preclearance to the United States Department o 

Justice pursuant to Section 5 of the Voting Rights Act, but the Department 

that time had not acted in the submission. The original complaint sought 

junctive relief against the pre-1981 plans for both the State House of Repre- 

sentatives and United States Congress under the principles of one-person, one- 

vote and against the 1981 plans as diluting minority participation in the 

political processes. 

INTERVENING CIRCUMSTANCES 

this sui the United  



of Justice rejected the 1981 State House of Representatives plan. The Louis- 

iana Legislature revised the plan during its 1982 regular session by addressing 

the concerns expressed by Justice and resubmitted the plan to them. The 

amended plan addressed the concerns of plaintiffs in the litigation and was > 

precleared by Justice. 

In the context of this litigation, the pre-1981 congressional plan 

was declared unconstitutional upon plaintiffs' Motion for Summary Judgment. 

The 1981 plan submitted to Justice was approved by them in June. 

[wo other developments are legal in nature. On June 29 

President Reagan signed the Voting Rights Act Amendments of 

97-205, 96 Stat. 131 (1982). The key feature of the new law is the Section 2 

Amendment (96 Stat. at 134, §3, amending 42 U.S.C. §1973) which eliminated the 

2 violarion. he necessity of proving a discriminatory purpose for a Section 

amendment was the congressional response Inited States Supreme Court 

decision in City of Mobile v. Bolden, 446 U.S. 33 (19830) in which a heavily 

divided Supreme Court rejected a challenge to at-large elections in Mobile 

Alabama, holding that only if there is proof of a discriminatory purpose c 

there be a violation of Section 2 of the Voting Rights Act and the Fourteenth 

and Fifteenth Amendments, 446 U at 60-74 (plurality opinion). 

lative history of the amendments is clear that Congress intends the 

apply the analytical framework employed in the pre-Bolden cases of White 

Regester, 412 U.8.: 755, 765-70 (1972) and Zimmer v. McKeithen, 485 F 

(CA-5, 1973) (en banc), aff'd on other grounds sub nom. East Carroll Parish 
  

School Board v. Marshall, 424 U.S. 636 (1975). 

A few days after the signing of the Voting Rights Act Amendments, 

the United States Supreme Court issued the opinion of Rogers v. Lodge, 

> 102 9, 32 The majority opinion in Lodge helc 

discriminatory purpose was still the central question in a constitutional 

challenge (as opposed to a challenge under the Voting Rights Act), but that 

a discriminatory purpose can be inferred from proof of the White and Zimmer 

factors. 

Thus, rather. than focusing upon the subjective intent of individual  



* °. 

party has been guilty of bad faith or is acting for the purposes of 

whether the opposing party will be unduly prejudiced, and whether the 

will be unduly delayed. Plaintiffs assert that none of these factors 

present. 

Plaintiffs first gave notice that they intended to rely on the 1982 

Voting Rights Act Amendments and Rogers v. Lodge at the status conference held 

during the week of July 4, 1982, only days after the signing of the Act and 

the issuance of Lodge. The change in substantive law was the major factor in 

plaintiffs' Motion for Continuance of Trial granted at that conference. 

instant Motion merely seeks to formalize for record purposes allegations 

under those two changes. It can hardly be argued that the changes are a 

product of bad faith or for purpose of delay. 

[t is expected that defendants will argue that they would be preju- 
I 5 J I - 

diced by the grant of leave to file the amended complaint because of the 

adding of an allegation relative the defendants! affirmative obligation to 

I eradicate the current effects of past discrimination. At least since Lodge 

however, the law has been clear that the maintenance of a system which was 

racially neutral when adopted is also within the proscriptions of 

tion and the Voting Rights Act. Zimmer, White and Lodge all make plain 

historical discrimination is not only important but central to determinations 

this type. 

Furthermore, even if we assume arguendo that the allegation 

| affirmative duty is a new one, the issue is a strictly legal one, not a factual 

| one. There simply is no additional discovery that need to be done on the sub- 

Fven if there were, the trial is over seventy-five days away from the 

is Motion was filed and the discovery cutoff date is over a month away. 

There is still plenty of time for discovery, if in fact the defendants need to 
[ ) y 

do any on the issue, and, consequently, there is no prejudice to them. 

CONCLUSION: For the reasons stated above, leave to File Amended Complaint 

should be given. A  



Respectfully submi 

R. JAMES KELLOGG 

WILLIAM P. QUIGLEY 

STEVEN SCHECKMAN 

STANLEY A, HAILPIN 

631 St. Charles Avenue 

New Orleans, Louisiana 

504/524-0016 

Jack Greenberg 

James M. Nabritt, T1171 

Lani Guinier 

Napoleon B. Williams 

NAACP legal Defense and 

Education Fund, Inc. 

10 Columbus Circle, Suite 2030 

New York, New York 10019 

212/586-8397 

BY: /<. pase ley 
ATT 'ORN 7 JR PL IFES XJ 

LS