Reno v. Bossier Parish School Board Reply Brief on Reargument for Federal Appellant

    Nos. 98-405 and 98-406

M  tlje S u p re m e  C o u rt of tlje U rn te ti States!

Jan e t  R eno , A ttorney  Ge n e r a l , a ppellan t

v.

Bossier  Parish  School Board

George  P r ic e , et  a l ., appellan ts

v.

Bossier  P arish  School B oard

ON APPEALS FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

REPLY BRIEF ON REARGUMENT 
FOR THE FEDERAL APPELLANT

Seth  P. W axm an  
Solicitor General 

Counsel o f  Record 
Department o f  Justice 
Washington, D.C. 20530-0001 
(202) 5U-2217

I

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TABLE OF CONTENTS

Page
1. The proper scope of Section 5 ...............................  i
2. Burden of proof...................................................  9

TABLE OF AUTHORITIES
Cases:

Busbee v. Smith, 549 F. Supp. 494 (D.D.C. 1982),
aff’d mem., 459 U.S. 1166 (1983)..................................  5

City of Lockhart v. United States, 460 U.S. 125
(1983)..........................................................................  6

City of Pleasant Grove v. United States:
479 U.S. 462 (1987) ..................................................  5 6
568 F. Supp. 1455 (D.D.C. 1983)............................. . ’ 5

City of Richmond v. United States, 422 U.S. 358
(1975)..........................................................................  5 6

City of Rome v. United States, 446 U.S. 156
(1980)..........................................................................  4

Georgia v. United States, 411 U.S. 526 (1973)..............  10
Gomillion v. Lightfoot, 364 U.S. 339 (1960).................. 2
Holder v. Hall, 512 U.S. 874 (1994).............................. 2
Lopez v. Monterey County, 119 S. Ct. 693 (1999).........  3
Miller v. Johnson, 515 U.S. 900 (1995)......................... 6
South Carolina v. Katzenbach, 383 U.S. 301

<1966>....................................................................... 8,10
Village of Arlington Heights v. Metropolitan Hous.

Dev. Corp., 429 U.S. 252 (1977)..............................  2, 7, 9
Constitution and statute:

U.S. Const. Amend. XV, § 1 ........................................... 2
Voting Rights Act of 1965,42 U.S.C. 1971 et seq :

§ 2, 42 U.S.C. 1973 ............................................  9 10
§ 2(a), 42 U.S.C. 1973(a)...................................... ’ ’ 1
§ 3(c), 42 U.S.C. 1973a(c).............................  .....  1
§ 4, 42 U.S.C. 1973b...............................................™"“ 4
§ 5, 42 U.S.C. 1973c ................................................ passim

(I)



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II

Miscellaneous: Page
H.R. Rep. No. 397,91st Cong., 1st Sess. (1969) ..............  4

3fn tf)t S u p re m e  C o u rt of tfje © m teb

No. 98-405

Jan e t  R eno , A ttorney  Ge n e r a l , a ppellan t

V.

Bossier  Parish  School Board

ON APPEALS FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

REPLY BRIEF ON REARGUMENT 
FOR THE FEDERAL APPELLANT

1. The Proper Scope o f Section 5

a. Appellee contends (Bd. Br. 1-4)' that the purpose 
prong of Section 5 of the Voting Rights Act of 1965, 42 
U.S.C. 1973c, bars only new voting practices with the pur­
pose to worsen the electoral position of minorities, and that 
this limitation is found in the statutory term “abridge.” Con- 
tary to appellee’s contention (Bd. Br. 9), however, this Court 
has never held that “abridge” in Section 5 refers only to ret­
rogression. As we have pointed out (Gov’t Rearg. Br. 3-4), 
such a construction would be untenable, for Sections 2(a) and 
3(c) of the Act also use “abridge,” see 42 U.S.C. 1973(a), 
1973a(c), and yet those provisions are not limited to prohib- 1

1 In this brief, “Bd. Br." refers to appellee’s principal brief filed on re­
argument; Gov t Rearg. Br. refers to the government’s principal brief 
filed on reargument; and “Gov’t Opening Br.” refers to the government’s 
original brief on the merits filed in March 1999.

( 1 )



2

iting retrogression. Further, Section 5 was phrased to echo 
the Fifteenth Amendment, which provides that the right to 
vote “shall not be denied or abridged” on account of race, 
U.S. Const. Amend. XV, § 1, but it could not be seriously 
maintained that the Fifteenth Amendment prohibits only 
retrogressive practices.2

2 To avoid the problem that “abridge” in the Fifteenth Amendment is 
not limited to retrogression, appellee suggests that “abridge” as used in 
the Amendment necessarily requires another kind of comparison, namely, 
a comparison of a racially discriminatory voting practice to a specific, hy­
pothetical state of enhanced minority voting strength (Bd. Br. 4). That 
argument is incorrect. Although the specific concept of vote dilution re­
quires comparison to an undiluted state, see Holder v. Hall, 512 U.S. 874, 
880 (1994) (opinion of Kennedy, J.), it is quite possible to find an unconsti­
tutional impairment of voting rights on account of race without pointing to 
a specific, alternative, nondiscriminatory state. For example, if a State 
were to create a new political entity with boundaries similar to those in 
Gomillion v. Lightfoot, 364 U.S. 339 (1960), those boundaries would dem­
onstrate the existence of a racially discriminatory purpose, even if it was 
not certain what lines the State would have drawn if it had acted without a 
discriminatory purpose.

Under Village o f Arlington Heights v. Metropolitan Housing Devel­
opment Corp., 429 U.S. 252 (1977), the relative impact of any decision on 
minority and white voters is an “important starting point” for determining 
the existence of discriminatory intent, id. at 266-267, but it is not the 
entirety of the analysis, and Arlington Heights does not require a com­
parison with an ideal, nondiscriminatory state as a predicate to a finding of 
discriminatory intent. Of course, the presence of a readily apparent non­
discriminatory alternative might be important evidence that the State had 
engaged in racial discrimination, but it is the infection of the jurisdiction’s 
decisionmaking by a racially discriminatory purpose, rather than a con­
trast with an ideal state, that supplies the constitutional violation. Indeed, 
it is well established that an unconstitutional impairment of the right to 
vote on account of race may be found even when it would be permissible 
for the jurisdiction to accomplish precisely the same result for racially 
neutral reasons. See Gov’t Rearg. Br. 8. Conversely, discriminatory in­
tent is not established by the mere fact that a voting plan has a relatively 
adverse impact on minorities (much less by the fact that the plan fails to

3

Appellee also suggests (Bd. Br. 4-6) that Section 5 could 
not have been intended to prevent the perpetuation of un­
constitutional discrimination because it is reactive to 
changes proposed by a covered jurisdiction. Appellee rea­
sons that, if preclearance were denied on the ground that the 
new voting practice would perpetuate discrimination, the 
denial would simply leave the prior discrimination in place. 
That argument ignores the reality of most changes to elec­
tion laws, which are set in motion by a need to address some 
change in circumstances. Redistricting (as in this case) pro­
vides a useful example. Appellee was under a constitutional 
obligation to redistrict because its 1980s plan was malappor- 
tioned. Section 5 prevented it from adopting a plan with a 
racially discriminatory purpose. The constitutional impera­
tive of reapportionment, however, prevented it from doing 
nothing.3

b. Appellee’s effort to distance Section 5 from the Consti­
tution leads it to decidedly odd assertions about the function

maximize the voting strength of minorities). There may be many nondis­
criminatory reasons why a jurisdiction might fail to adopt a voting prac­
tice that would enhance minority voting strength. The jurisdiction might 
be pursuing traditional, nondiscriminatory priorities, or the possibility for 
minority enhancement might not be readily apparent because minority 
citizens might not draw attention to it. Appellee therefore seriously errs 
in arguing (Bd. Br. 11) that effect counts for everything, and purpose for 
little if anything, in voting rights.

3 In many situations, a covered jurisdiction may be determined or may 
find itself compelled to change its voting practices because of some new 
priority or objective, or some change in circumstances. In Lopez v. Mon­
terey County, 119 S. Ct. 693 (1999), for example, the changes in Monterey 
County’s system of electing judges requiring preclearance were under­
taken pursuant to a statewide policy of court consolidation. The option of 
remaining in place, i.e., retaining a bifurcated court system, was neither 
realistic nor desired by either the State or the County. Section 5, how­
ever, was enacted to ensure that the consolidation (and similar changes to 
election laws) could not be used to further discrimination.



4

that Congress intended for the preclearance remedy. Ap­
pellee suggests (Bd. Br. 7) that Congress intended the elimi­
nation of discrimination to be accomplished entirely by the 
suspension of tests and devices in Section 4 of the Act, 42 
U.S.C. 1973b, and designed Section 5 preclearance merely as 
a backstop against any retrogression from the new and im­
proved, nondiscriminatory state. That argument is miscon­
ceived. As we have explained (Gov’t Rearg. Br. 10-13), Con­
gress has always understood Section 5 as preventing both 
retrogression and conscious attempts to perpetuate dis­
crimination by new means. Thus, when Congress reenacted 
Section 5 in 1970, it was well aware that Section 4 had not by 
itself eliminated all racially discriminatory infringements of 
the right to vote, and the House Judiciary Committee stated 
that extension of Section 5 was “essential” both to safeguard 
gains achieved and “to prevent future infringements of vot­
ing rights based on race or color.” H.R. Rep. No. 397, 91st 
Cong., 1st Sess. 5 (1969); see also City o f Rome v. United 
States, 446 U.S. 156,182 (1980).

Appellee further argues (Bd. Br. 12 n.6) that, although 
there were jurisdictions that had successfully prevented any 
black citizens from registering or voting in their elections 
before Section 5 was enacted, it would nonetheless have 
been theoretically possible for those jurisdictions to bring 
about retrogression. According to appellee, in sum, no 
matter how bad things were in 1965, they could always have 
been worse. But even if we assume arguendo that a 
jurisdiction that had for years successfully prevented a 
single black citizen from registering to vote might somehow 
have brought about a further erosion of blacks’ right to vote, 
it is scarcely conceivable that Congress intended Section 5 to 
have only the minuscule function of barring such 
“retrogression.” By that hypothesis, Section 5 would have 
been least significant in the jurisdictions with the worst 
history of official racial discrimination in voting.

5

c. Appellee also strains to avoid the import of this 
Court’s precedents. Concerning City o f Pleasant Grove v. 
United States, 479 U.S. 462 (1987), appellee speculates that 
Pleasant Grove’s annexation of an all-white enclave might 
have been intended to cause retrogression because, appellee 
asserts (Bd. Br. 20), Pleasant Grove had 32 black residents. 
But every Justice on this Court, as well as the district court, 
decided Pleasant Grove on the assumption that the town was 
all-white at the time of the annexation, and that assumption 
was shared by the parties litigating the case. See 479 U.S. at 
465 n.2 (opinion of the Court); id. at 475 (Powell, J., dissent­
ing); City o f Pleasant Grove v. United States, 568 F. Supp. 
1455, 1456 n.3 (D.D.C. 1983). Pleasant Grove’s officials had 
been unaware of the presence of any black residents of the 
town, see 479 U.S. at 465 n.2, and so they could not have 
acted with the purpose to worsen the existing voting 
strength of those residents. The officials’ objective was to 
maintain the status quo. See id. at 472.4

Appellee also misapprehends the holding of City o f Rich­
mond v. United States, 422 U.S. 358 (1975). Appellee ob­
serves (Bd. Br. 10-11) that the alleged discriminatory pur­
pose behind the annexation at issue in that case was a pur­
pose to reduce the voting strength of blacks in Richmond 
from its pre-annexation level; indeed, the Court held that, if 
the annexation was in fact designed for that purpose, then it 
should be denied preclearance—even though the very same 
reduction in the voting strength of blacks in Richmond was 
permissible under Section 5’s effect prong, as applied in the 
annexation context. See 422 U.S. at 378. That holding of 
City o f Richmond, however, conclusively demonstrates that 
appellee’s reading of Section 5 is wrong. If appellee were

4 See also Gov’t Opening Br. 27-28 (explaining that Busbee v. Smith, 
549 F. Supp. 494 (D.D.C. 1982), affd mem., 459 U.S. 1166 (1983), involved 
redistricting where retrogression was neither caused nor intended).



6

correct that the purpose and effect prongs of Section 5 must 
be coterminous, then City of Richmond could not have been 
correctly decided. That case stands for the proposition that 
a jurisdiction’s “purpose” to achieve a particular outcome 
(there, a particular reduction in minority voting strength) 
may require denial of preclearance under the purpose prong, 
even when nonpurposeful official action with exactly the 
same “effect” does not require denial of preclearance under 
the effect prong. Thus, while appellee argues that, “|i]f the 
result is legitimate, it is difficult to understand why it be­
comes illegitimate simply because it is intended,” Bd. Br. 12, 
the Court rejected that very position when it explained in 
City o f  Richmond that “it could be forbidden by § 5 to have 
the purpose and intent of achieving only what is a perfectly 
legal result under that section.” 422 U.S. at 378.5

d. Appellee persistently accuses the Department of Jus­
tice of pursuing a “maximization” policy requiring covered 
jurisdictions to create as many majority-black districts as 
possible.6 This case, however, has nothing to do with maxi­
mization. When the Department interposed an objection to 
appellee’s 1992 plan, it made clear that appellee was “not re­
quired by Section 5 to adopt any particular plan.” J.S. App. 
235a. The Department detected a discriminatory purpose in 
the plan, not just because it provided for no majority-black

5 Appellee also relies (Bd. Br. 5) on City of Lockhart v. United states, 
460 U.S. 125 (1983), for the proposition that Section 5 is concerned only 
with retrogression, but the Court in that case applied only the effect prong 
of Section 5, and not the purpose prong, see id. at 130 & n.4, and the 
Court’s subsequent decision in City of Pleasant Grove, supra, made clear 
that the purpose prong reaches beyond a purpose to cause retrogression.

6 Although little would be gained by recapitulating here the dispute in 
other cases and other records about whether the Department had engaged
in such a maximization policy, we do note that this Court has made quite 
clear that such a policy could not be justified as a means to enforce Section 
5. See Miller v. Johnson, 515 U.S. 900,923-927 (1995).

7

districts (much less any “maximum” possible number), but 
also because appellee had manipulated the redistricting 
process to override the concerns of the black community, and 
had failed even to consider whether blacks would be repre­
sented fairly under the 1992 plan when (as appellee later 
stipulated) it was “obvious” that at least one reasonably 
compact, majority-black district could be drawn using tradi­
tional districting criteria. Id. at 154a-155a.

The Department of Justice analyzed appellee’s plan under 
the purpose prong as it analyzes all voting changes submit­
ted for preclearance, by applying the factors set forth in Vil­
lage o f Arlington Heights v. Metropolitan Housing Devel­
opment Corp., 429 U.S. 252, 265-266 (1977). The “impact” of 
the plan is an “important starting point” for determining 
whether there is a constitutional violation, see id. at 266, but 
it is never the entirety of the purpose analysis, and in this 
case, other Arlington Heights factors are especially 
compelling, particularly the “sequence of events leading up 
to the challenged decision,” see id. at 267. That sequence 
included appellee’s sudden decision to sacrifice its traditional 
districting priorities, including incumbency protection, for a 
plan it had previously found ill-suited for school board elec­
tions, when it was presented with evidence that a majority- 
black district was feasible' and desired by the black commu­
nity.7

7 Appellee also argues (Bd. Br. 13) that “[t]he status quo for any redis­
tricting plan henceforth submitted for preclearance” is “necessarily non- 
discriminatory” because the Department of Justice or the preclearance 
court has “affirmatively found” its redistricting plans to be nondiscrimina- 
tory. That argument is flawed in several respects. First, when the Attor­
ney General declines to interpose an objection, she does not “affirmatively 
find” a plan to be nondiscriminatory. She may decline to object because 
the evidence submitted to her does not provide a basis for suspicion of 
discrimination, but that may be because relevant evidence is withheld. 
For that reason, and others, Section 5 permits the Attorney General to



8

e. In the end, appellee is reduced to making arguments 
against Section 5 itself. Appellee argues that local federal 
district courts hearing conventional constitutional challenges 
to voting practices are better suited than the preclearance 
district court in the District of Columbia to evaluate the 
issue of a covered jurisdiction’s discriminatory intent (Bd. 
Br. 2, 14); that authority to evaluate new voting practices for 
their discriminatory purpose should not be lodged with the 
Attorney General at all (id. at 17); that, by requiring the 
covered jurisdiction to obtain preclearance before 
implementing a new voting practice, Section 5 effects an 
unprecedented intrusion on state sovereignty (ibid.); and 
that covered jurisdictions should not be “second-class citi­
zens who must affirmatively disprove their guilt” (id. at 24). 
These were, of course, the arguments raised against Section 
5 by its opponents in Congress, but they were rejected by 
Congress in 1965, 1970, 1975, and 1982. They were also 
raised against Section 5’s constitutionality in South Carolina 
v. Katzenbach, 383 U.S. 301, 334-335 (1966), and were re­
jected in that case.

sue to enjoin a plan even if she has previously precleared it. See 42 U.S.C. 
1973c.

In addition, even if a redistricting plan was adopted for nondiscrimina- 
tory reasons in 1970, 1980, or 1990, that does not mean that it is automati­
cally nondiscriminatory to adopt a similar plan ten years later. Racial 
demographics in the jurisdiction may change significantly during the in­
tervening ten years, and a jurisdiction intent on discrimination may find 
that minor modifications to existing district lines are sufficient to prevent 
any improvement in minority voting strength. In other situations, espe­
cially where the number of districts changes (for example, as a result of 
reapportionment following the decennial census), a jurisdiction may have 
ample opportunity to manipulate its boundary lines in order to prevent 
improvement in minority electoral opportunity, without causing retro­
gression. Appellee therefore errs in arguing (Bd. Br. 13-14) that, because 
of the anti-retrogression rule, it will be impossible for a jurisdiction to 
engage in intentional vote dilution after the 2000 Census.

9

Finally, it simply is not the case that, in 34 years of 
evaluating preclearance submissions for discriminatory in­
tent, the preclearance court and the Attorney General have 
exercised a “standardless power” (Bd. Br. 17). Rather, the 
court and the Attorney General have evaluated discrimina­
tory purpose under standards consistent with the Arlington 
Heights framework. In Section 5 declaratory judgment ac­
tions, the preclearance court has never limited its purpose 
analysis to a search for retrogressive purpose (other than in 
this case). The Attorney General’s approach to the statute 
has been the same. See Gov’t Rearg. Br. 13. Appellee has 
failed to show that this consistent approach over 34 years 
has rendered the statutory scheme unworkable or damaged 
the Nation’s constitutional structure.

2. Burden o f Proof
Appellee has made no argument based on the text or leg­

islative history of Section 5 that the burden of proof on the 
question of purpose should rest with the government. In­
deed, appellee acknowledges (Bd. Br. 24) that a covered ju­
risdiction has the burden of proof on the question of retro­
gressive purpose, as well as effect, and that the text of the 
statute requires that conclusion. But if we are correct that 
Section 5 forbids implementation of a new practice with a 
discriminatory but nonretrogressive purpose (as well as a 
retrogressive purpose), then it is impossible to read the 
statute as requiring the government to bear the burden of 
proof on the nonretrogressive purpose, while requiring the 
jurisdiction to prove the absence of a retrogressive purpose.

Appellee argues only (Bd. Br. 22-24) that, because the 
government previously assumed the burden to prove a 
“clear violation” of the “results” standard of Section 2 as a 
basis for denial of preclearance under Section 5, the govern­
ment should be deemed to have assumed the burden of proof 
on the question of purpose as well. As we have explained



10

(Gov’t Rearg. Br. 19 n.ll), the government’s assumption of 
the burden of proof on the Section 2 results issue was inter­
twined with its position that a clear violation of Section 2’s 
results standard required denial of preclearance, which this 
Court held to be erroneous. That the government erred in 
one aspect of its construction of Section 5 once is hardly a 
basis for creating new error in the different context here. 
The government has always taken the position that the 
covered jurisdiction bears the burden of proof on purpose in 
Section 5 preclearance actions, and the Attorney General has 
consistently applied that burden of proof in administrative 
preclearance proceedings as well. See Georgia v. United 
States, 411 U.S. 526 (1973).8 And although appellee suggests 
(Bd. Br. 25) that placing the burden of proof on the 
government is necessary to avoid constitutional doubts 
about Section 5, the Court long ago turned aside the 
argument that placement of the burden of proof on the 
covered jurisdictions creates any constitutional difficulty. 
See South Carolina v. Katzenbach, 383 U.S. at 335.

* * * * *

For the foregoing reasons, as well as those set forth in our 
earlier briefs, the judgment of the district court should be 
reversed.

Respectfully submitted.

8 Contrary to appellee’s suggestion (Bd. Br. 25), there is nothing ab­
surd or impractical about placing the burden of proof on the covered juris­
diction to prove both a lawful purpose and a lawful effect in administrative 
proceedings. As we have explained (Gov’t Rearg. Br. 14-25), a burden of 
proof is in effect a rule of decision governing the result when the deci­
sionmaker is in doubt or the evidence is in equipoise. A decisionmaker 
may use such a rule of decision even when the proceedings are less formal 
and adversarial than judicial proceedings.

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Seth P. W axm an  
Solicitor General

A ugust 1999