Beer v. United States Brief for Appellees Johnny Jackson, Jr. et al.

    I n t h e

&upr?m? (Emtrt nf tlj£ HuitPi* States
O ctober  T e e m , 1974 

No. 73-1869

P eter  H . B e e r , et al.,
Appellants,

v.
U n it e d  S tates op A m erica , et al., 

and
J o h n n y  J a ck so n , J r., et al.,

Appellees.

ON APPEAL PROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OP COLUMBIA

BRIEF FOR APPELLEES 
JOHNNY JACKSON, JR., ET AL.

J ack  G reenberg  
J am es  M. N abrit , III 
C h a rles  E .  W il l ia m s , III 
E ric  S c h n a p f e r

10 Columbus Circle 
New York, New York 10019

S ta n ley  A. H a l p in , J r .
Suite 1212
344 Camp Street
New Orleans, Louisiana 70103

C h a rles  E .  C otton  
D avid D e n n is

301 Executive House
New Orleans, Louisiana 70112

W il e y  B ranton
666 Eleventh Ave., N.W. 
Washington, D.C. 20001

Counsel for Appellees Jackson, et al.



I N D E X

PAGE

Questions Presented .......... ........ -............................ -....  1

Summary of Argument..... -............-..............................  2

Argument .....................   3

I. Plan II  Would Have the Effect of Denying or 
Abridging the Right to Vote on Account of Race 
or Color .........................................................   5
1. The Legal Standards......................................... 5
2. The Effect of Plan II  ....... ...... . - ...............  14

II. Plaintiffs Failed to Prove That Plan II Did Not 
Have the Purpose of Denying or Abridging the 
Right to Vote on Account of Race........................  22

C o n c lu sio n  ............................   27

T able of A u t h o r it ie s  :

Cases:

Allen v. Board of Elections, 393 U.S. 544 (1968) ..........  4
Anderson v. Martin, 375 IJ.S. 399 (1964) .................   20

Burnette v. Davis, 382 U.S. 42 (1965) ........................- 7
Brown v. Board of Education, 347 U.S. 483 (1954) ..... 14

City of Petersburg v. United States, 410 U.S. 962
(1973) ........................................................................13,21

Connor v. Johnson, 11 Race Rel. Rep. 1859 (S.D. Miss. 
1966) 8



11

PAGE

Connor v. Johnson, 265 F. Supp. 492 (S.D. Miss. 1967) 8

Fortson v. Dorsey, 379 TT.S. 433 (1965) ............     7

Gomillion v. Lightfoot, 364 U.S. 339 (1960) ......   7

Katzenbach v. Morgan, 384 U.S. 641 (1966) ............  11
Kilgarlin v. Hill, 386 U.S. 120 (1967) ........ ...................  7

Perkins v. Matthews, 400 U.S. 379 (1971) ________ 8, 9,10

Reynolds v. Sims, 377 U.S. 533 (1964) .........................  19

South Carolina v. Katzenbach, 383 U.S. 301 (1966) ....4,11

Taylor v. McKeithen, 499 F.2d 893 (5th Cir. 1974) ......  12

United States v. Association of Citizens Councils of
Louisiana, 187 F. Supp. 846 (W.D. La. 1960) ..........  15

United States v. Georgia, 411 U.S. 526 (1973) ......... .10, 21
United States v. Louisiana, 380 U.S. 145 (1965) ..........  15
United States v. McElveen, 177 F. Supp. 355 (E.D. La. 

1960)  ........................................................................  15

Whitcomb v. Chavis, 403 U.S. 124 (1974) .....................7, 22
White v. Regester, 412 U.S. 755 (1973) ........ .......... . 11
Wright v. Council of City of Emporia, 407 U.S. 451

(1972) .......................................................... ...............  13
Wright v. Rockefeller, 375 U.S. 52 (1964) ................... 7,12

Statutes and Constitutional Provisions:

United States Constitution, Fourteenth Amendment.... 11 

United States Constitution, Fifteenth Amendment ..3,11, 21



Ill

PAGE

42 U.S.C. § 1973b (Section 4 of the Voting Eights Act) 3

42 U.S.C. § 1973c (Section 5 of the Voting Eights
Act) .................................... ......... -.............. ......... passim

La. Eev. Stat., Art. 18, § 358 ..........................................  20

Legislative Materials:

115 Cong. Eec. (1969) ................................................- 7

116 Cong. Eec. (1970) ................. ........................-.....— 6,7

Hearings Before a Subcommittee of the House Judi­
ciary Committee, 94th Cong., 1st Sess., (1975) ......... 11

Hearings Before the Subcommittee on Constitutional 
Eights of The Senate Committee on the Judiciary on 
Bills to Amend the Voting Eights Act, 91st Cong.,
1st and 2d Sess., (1969-70) -................................ 7, 8, 9, 21

Hearings before Subcommittee No. 5 of the House 
Committee on the Judiciary on H.E. 4249, 91st Cong., 
1st Sess. (1969) .................................. -........................ 6,8

Official Journal of the Constitutional Convention of the 
State of Louisiana, 1898 ....................... .......... -.........  14

Other Authorities:

United States Commission on Civil Eights, The Voting 
Eights Act: Ten Years After (1975) ............9,10,11,15

United States Commission on Civil Eights, Political 
Participation (1968) ........................ .........-....5,6,7,8,15



PAGE

1961 United States Commission on Civil Rights Report: 
Voting .................................. ............................... ......14,15

Hearings in Louisiana Before the U.S. Commission on 
Civil Rights .................................................... ...........  14

David H. Hunter, Federal Review of Voting Charges: 
How to Use Section 5 of the Voting Rights Act, 
(1974) 9



I n  t h e

§>ttpmnp OInurt of tl|p ImtrS i ’tairn
O ctober T e r m , 1974 

No. 73-1869

P eter  H . B e e r , et al.,
Appellants,

v.

U n it e d  S tates of A m erica , et al., 

and

J o h n n y  J a ck so n , J r ., et al.,
Appellees.

o n  a p p e a l  f r o m  t h e  u n it e d  s t a t e s  d is t r ic t  c o u r t
FOR THE DISTRICT OF COLUMBIA

BRIEF FOR APPELLEES 
JOHNNY JACKSON, JR., ET AL.

Questions Presented

1. Did plaintiffs prove that Plan II will not have the 
effect of denying or abridging the right to vote on account 
of race or color?

2. Did plaintiffs prove that Plan II did not have the 
purpose of denying or abridging the right to vote on 
account of race or color?



2

Summary of Argument

1. 1. Section 5 of the Voting Eights Act was adopted to 
prevent states and subdivisions with a history of dis­
crimination in voting from devising new schemes to disen­
franchise minority voters. Section 5 was applied to re­
districting laws because ordinary constitutional challenges 
had proved ineffective in preventing the dilution of black 
voting strength. Congress was concerned in particular to 
forbid through section 5 the implementation of districting 
plans which divided concentrations of black voters among 
several predominantly white districts. Such plans are 
impermissible under section 5 regardless of whether they 
have a “rational basis.”

2. Plan II is precisely the type of districting plan which 
section 5 was intended to prevent. The District Court 
correctly concluded that black voters in New Orleans were 
concentrated in an east-west belt. Plan II systematically 
divided that black concentration among five different city 
council districts with substantial numbers of white voters. 
The adverse effect of this division on black voters was 
aggravated by the pattern of bloc voting along racial lines 
in New Orleans.

II. Plaintiffs failed to establish that Plan II was a good 
faith effort to correct the undisputed defects in Plan I. 
Plan II was prepared before the Attorney G-eneral objected 
to Plan I, and necessarily failed to take into account the 
nature of those objections. Plan II was fashioned to solve 
problems regarding the predominantly white Algiers 
section, and its effect on the fragmentation of the black 
community was both incidental and largely insignificant. 
Since Plan II was enacted by city couneilmen with a vested 
interest in diluting the voting strength of the black com-



3

munity, and since Plan II had precisely that effect, the 
conclusion is inescapable that such dilution was the purpose 
of Plan II.

Argument

In 1965, after extensive hearings and debate, and in the 
face of evidence that less drastic measures had proved 
ineffective, Congress adopted the Federal Voting Rights 
Act. The Act implemented Congress’ firm intention to rid 
the country of racial discrimination in voting, and provided 
stringent new remedies against those practices which had 
most frequently denied citizens the right to vote on the 
basis of race. The Act suspended for five (now ten) years 
the use of certain “tests and devices” which Congress 
believed had been adopted or administered so as to dis­
criminate on the basis of race. 42 IJ.S.O. §1937b. Although 
none of these tests or devices were unconstitutional per se, 
this Court upheld the suspension as within the power of 
Congress under section 2 of the Fifteenth Amendment. 
South Carolina v. Katzenbach, 383 U.S. 301, 333-34 (1966).

Congress was further concerned, however, that the mere 
suspension of existing tests would not prove sufficient to 
end the problems of discrimination that had existed for 
decades in the covered states such as Louisiana. Some of 
those states had in the past shown extraordinary ingenuity 
in contriving new laws and procedures to perpetuate voting 
discrimination, and Congress had reason to fear that those 
states might resort to similar maneuvers in the future. 
Under the compulsion of these unique circumstances, and 
unable to foresee every discriminatory contrivance which 
might in the future be concocted, Congress adopted section 
5 of the Act. Section 5 requires that, prior to implementing 
any “voting qualification or prerequisite to voting, or



4

standard, practice or prooednre with respect to voting 
different from that in force or effect on November 1, 1964,” 
the State or subdivision involved must obtain a declaratory 
judgment in the United States District Court for the Dis­
trict of Columbia that the new practice “does not have 
the purpose and will not have the effect of denying or 
abridging the right to vote on account of race or color.” 
42 U.S.C. §1973c. Section 5 also establishes an alternative 
and more expeditious procedure for obtaining approval of 
the new law; the new law may be enforced if it is sub­
mitted to the Attorney General of the United States and, 
within 60 days of the submission, the Attorney General 
does not formally object to the' new statute or regulation. 
See South Carolina v. Katsenhach, 383 U.S. 301, 335 
(1966); Allen v. Board of Elections, 393 U.S. 544, 548-49 
(1968).

The subject of the instant action is Ordinance No. 5154 
(hereinafter referred to as “Plan II”), which redistricts 
the City Council of the City of New Orleans. Plaintiffs 
submitted Plan II to the Attorney General in May, 1973; 
on July 9, 1973, the Attorney General interposed an ob­
jection to Plan II on the ground that plaintiffs had failed 
to establish that the plan would not have the effect of dis­
criminating on the basis of race.1 Thereafter plaintiffs 
commenced this action in the United States District Court 
for the District of Columbia, seeking a declaratory judg­
ment that Plan II did not have the purpose and would 
not have the effect of denying or abridging the right to 
vote on account of race or color. On March 15, 1974, the 
District Court concluded that Plan II would have such a 
discriminatory effect, and denied the declaratory judg­
ment.2 Having resolved the case on this basis, the Dis-

1 Appendix, pp. 33-35.
2 Jurisdictional Statement, pp. la-74a.



5

trict Court did not reach the question of whether Plan II 
also had a discriminatory purpose.3

I.
Plan II Would Have the Effect of Denying or Abridg­

ing the Right to Vote On Account o f Race or Color.

1. T he Legal S tandards

The legislative history of section 5, particularly in con­
nection with the renewal of the Voting Rights Act in 1970, 
makes clear the type of reapportionment with which Con­
gress was concerned and which Congress adopted section 5 
to stop—the division of a concentration of black voters 
among several districts in which the black voters were 
combined with a larger number of white voters. In 1968 
the United States Civil Rights Commission reported to 
Congress that district lines were being drawn in this way 
in southern states to dilute the newly gained voting- 
strength of Negroes.4 In Alabama state legislative dis- 
stricts had been fashioned so that they “aggregated pre­
dominantly Negro counties with predominantly white 
counties,” thus “preventing election of Negroes to House 
membership.” In Mississippi the congressional district 
lines were drawn to divide the predominantly black Delta 
region among three districts with white majorities.5 Senate 
and House seats were also redrawn in Mississippi.

In several instances, the legislature combined counties 
in which Negroes constituted a majority of the popula­
tion and a majority of the registered voters in legis-

3 Jurisdictional Statement, pp. 40a-42a.
4 United States Commission on Civil Rights, Political Participa­

tion, p. 177 (1968).
6 Id., p. 31.



6

lative districts with counties having white population 
and voting majorities. For example, majority Negro 
Claiborne County was joined in a senatorial district 
with majority white Hinds County. Jefferson County, 
with a 70 percent Negro population and a Negro voting 
majority, was combined with Lincoln County, which 
has a population 69 percent white. In both cases the 
resulting district had a majority white population.6

The results of this 18 month Civil Rights Commission 
study were among the factors that induced Congress in 
1970 to extend the Voting Rights Act. See 116 Cong. Rec. 
5521, 5526 (1970).

Concern with this problem was voiced throughout the 
legislative process in 1970. At the House hearings Mr. 
Glickstein of the Civil Rights Commission testified,

The history of white domination in the South has 
been one of adaptiveness, and the passage of the 
Voting Rights Act and the increased black registra­
tion that followed has resulted in new methods to 
maintain white control of the political process. . . .

For example, State legislatures [have redrawn] the 
lines of districts to divide concentrations of Negro 
voting strength.7

Congressman McCulloch expressed a similar concern with 
the alteration of district lines.8 During the Senate hear­
ings Mrs. Freeman testified for the Commission that legis­
latures had done what they could to make black votes 
“worth little” by drawing “lines of legislative districts

6 Id., p. 34-35.
7 Hearings before Subcommittee No. 5 of the House Committee 

on the Judiciary on H.R. 4249, 91st Cong., 1st Sess., p. 17 (1969).
*Id., p. 3.



7

to divide concentrations of Negro voting strength.” 9 Other 
witnesses testified to the use of this device as well as 
related practices such as use of multi-member districts.10 
During the House and Senate debates repeated concern 
was expressed that the value of minority votes would be 
diluted by submerging them in districts with white major­
ities.11

The need to apply section 5 to reapportionment cases was 
particularly great because, as the Civil Eights Commission 
pointed out, constitutional attacks on these efforts to dilute 
black votes had been largely unsuccessful.12 Although this 
Court held open the possibility that multimember districts 
might not be invulnerable to judicial scrutiny, this Court 
rejected all such challenges prior to 1973. See Whitcomb 
v. Chavis, 403 U.S. 124 (1974); Kilgarlin v. Hill, 386 U.S. 
120 (1967); Fortson v. Dorsey, 379 U.S. 433 (1965). A 
silmilar device, the annexation of white suburbs to a city 
with a large minority population, was upheld in Burnette 
v. Davis, 382 U.S. 42 (1965), affirming Mann v. Davis, 245 
F. Supp. 241 (E.D. Va. 1965). The possibility of a judicial 
challenge to gerrymandering of district lines, first raised 
in this Court in Gomillion v. Lightfoot, 364 U.S. 339 (1960), 
was complicated if not dimmed by a later decision laying 
great emphasis on proof of discriminatory motives. Wright 
v. Rockefeller, 376 U.S. 52 (1964).

9 Hearings before the Subcommittee on Constitutional Eights of 
the Senate Committee on the Judiciary on Bills to Amend the 
Voting Eights Act, 91st Cong., 1st and 2d Sess., p. 47 (1969-70).

10 Id., pp. 195-96, 469 (Efforts to frustrate the Act include 
“redistricting to nullify local black majorities.”)

11115 Cong. Eec. 38486 (Eemarks of Eep. McCulloch) ; 116 Cong. 
Eec. 5520-21 (Eemarks of Senator Scott), 5527 (Remarks of Sen­
ator Scott), 6168 (Remarks of Senator Scott), 6358 (Eemarks of 
Senator Bayh) (1970).

12 Political Participation, p. 35, n.63.



8

The Commission noted with particular concern the judi­
cial treatment of constitutional challenges to certain Mis­
sissippi redistricting which the Commission believed was 
adopted for the express purpose of diluting black votes and 
evading the Voting Rights Act. The challenge to the gerry­
mandering of congressional lines was summarily rejected 
on the ground that the black plaintiffs had to prove dis­
criminatory purpose, and could not do so merely by offer­
ing newspaper reports of statements made by the relevant 
legislators. Connor v. Johnson, 11 Race Rel. Rep. 1859, 
1863 (S.D. Miss. 1966). A challenge to the gerrymandered 
legislative districts was summarily rejected when the dis­
trict court refused to even consider the racial composition 
of the new districts. Connor v. Johnson, 265 F. Supp. 492, 
498-99 (S.D. Miss. 1967), aff’d 386 U.S. 483 (1967). Al­
though all of these districting changes had survived con­
stitutional challenges, none had ever been submitted for ap­
proval under section 5. The Commission called on the 
Attorney General to take steps, especially with regard 
to Mississippi, to enforce section 5 as it applied, inter alia, 
to changes in election districts.13 During the 1969-70 hear­
ings on renewal of the Voting Rights Act, the Attorney Gen­
eral repeatedly testified that a ban on any discriminatory 
“purpose or effect” was broader than the unelaborated 
constitutional prohibition.14 The Assistant Attorney Gen­
eral in charge of the Civil Rights Division told the Senate 
Committee, “[T]he real innovation about section 5 . . . 
was that it contained language that changes with discrimi-

13 Political Participation, p. 184. The failure of the Attorney 
General to take steps to enforce section 5 in similar circumstances 
was discussed in Perkins v. Matthews, 400 U.S. 379 (1971).

14 Hearing's before Subcommittee No. 5 of the House Committee 
on the Judiciary on H.R. 4249, 91st Cong., 1st Sess., p. 280 (1969) ; 
Hearings before the Subcommittee on Constitutional Rights of the 
Senate Committee on the Judiciary on Bills to Amend the Voting 
Rights Act, 91st Cong., 1st and 2d Sess., pp. 189-190 (1969-70).



9

natory effect were in violation of the law. Most of us used 
to assume, and the courts, I think, pretty well held, that if 
you were to attack a State law as being in violation of the 
15th Amendment, you would need to prove that there was 
a discriminatory legislative purpose.” 15 Thus the Commis­
sion concluded that the application of section 5 was neces­
sary to stop redistricting practices which could not be 
dealt with effectively through ordinary litigation.

In the years immediately preceding and following the 
enactment of the Voting Eights Act, the principle tactics 
used to prevent black participation in the political process 
were direct obstacles to registration and voting. More 
recently, however, the fashioning of district lines and multi­
member districts to dilute the effectiveness of minority 
votes have become the “prime weapons” of those seeking to 
frustrate the purposes of the Act. Perkins v. Matthews, 
400 U.S. 379 (1971). In January, 1975, the Civil Eights 
Commission reported that

The most serious problem for minority voters now is 
practices which dilute the minority vote. The greatest 
use of section 5 has been in preventing such practices.16

Between 1971 and 1974 the Attorney General interposed 
objections to 51 different redistricting plans in six states 
involving congressional, legislative, county supervisors, 
police jury, school board, parish council, and city council 
districts.17 In objecting to these plans under Section 5 the

15 Hearings before the Subcommittee on Constitutional Rights of 
the Senate Committee on the Judiciary on Bills to Amend the 
Voting Rights Act, 91st Cong., 1st and 2d Sess., p. 507 (1969-70).

18 The Voting Rights Act: Ten Years After, p. 345.
17 Id., pp. 400-409; David H. Hunter, Federal Review of Voting 

Charges: How to Use Section 5 of the Voting Rights Act, pp. 90-97 
(1974).



10

Attorney General used the same standard applied in the 
instant case—that district lines must not he drawn in such 
a way as to divide up a concentration of minority voters 
and submerge the fragments of that concentration in dis­
tricts with larger numbers of white voters.18

This construction of Section 5, fashioned by the Attorney 
General in a series of cases to assure that districting plans 
would not have a discriminatory effect, should be accorded 
the deference due “to the interpretation given the statute 
by the officers or agency charged with its administration.” 
Perkins v. Matthews, 400 U.S. 379, 391 (1971). Such defer­
ence is particularly appropriate in the instant case, since 
Congress is at this very moment considering a ten year 
extension of the Voting Eights Act so as to apply the estab-

18 United States Commission on Civil Rights, the Voting Rights 
Act: Ten Years After, pp. 204-327 (1975).

In opposing the district lines which were the subject of United 
States v. Georgia, 411 U.S. 526 (1973), the Attorney General noted 
that eight Georgia counties “form a contiguous group—of 89,626 
persons, of whom 57.2 percent are nonwhite—enough to form at 
least three new majority-nonwhite single-member districts. Yet the 
submitted plan has only one district in the area with a slight non­
white population majority (50.56 percent)—new District 59. The 
other new districts (60, 63, 64, 76 and 78) are ‘border districts’ 
partly inside and partly outside the majority-nonwhite area and 
have significant, but minority, nonwhite population percentages. 
These demographic facts . . .  do not permit us to conclude, as we 
must under the Voting Rights Act, that this plan does not have a 
discriminatory racial effect on voting”. Appendix, No. 72-75, pp. 
11-12.

In 1971 the Attorney General opposed the lines defining the 
supervisors’ districts in Yazoo County, Mississippi because “the 
district boundary lines within the City of Yazoo unnecessarily 
divide the black residential areas into each of the five districts.” 
Letter of David Norman to Griffin Norquist, July 19, 1971, annexed 
to Brief Amicus Curiae of the NAACP in United States v .Georgia, 
No. 72-75, p. A-3. See also Letter of David Norman to Jack P. F. 
Gremillion, August 20, 1971, pp. A-5 to A-10; Letter of David 
Norman to Thomas Watkins, July 14, 1971, pp. A-13 to A-15.



11

lished standards to the redistricting that will follow the 
1980 census.19

Plaintiffs suggest that the District Court was obligated 
to uphold Plan II unless it affirmatively concluded that that 
plan violated the Fourteenth or Fifteenth Amendment. But 
Section 5 neither requires nor entails such a constitutional 
inquiry. In adopting Section 5 Congress chose to establish 
what it believed to be a clear and effective test by which 
new election laws would be measured, in order to insure 
that the right to vote was not denied or abridged on account 
of race. Whether that test is characterized as merely man­
dating an inference of unconstitutional gerrymandering 
from a plaintiff’s failure to prove the absence of dis­
criminatory purpose and effect, or as establishing a new 
substantive rule forbidding district plans otherwise per­
missible under the Constitution, Congress’ power to enact 
Section 5 is beyond dispute. South Carolina v. Katzenbach, 
383 U.S. 301 (1966); Katzenbach v. Morgan, 384 U.S. 641 
(1966). Whatever may be the functional or substantive 
relationship between the standards applied in section 5 
case and in an ordinary challenge to the constitutionality of 
a statute, it is the former which apply in the instant case.20

19 United States Commission on Civil Rights, The Voting Rights
Act: Ten Years After, p. 345 (1975); Hearings on H.R. 939 Be­
fore a Subcommittee of the House Judiciary Committee, 94th 
Cong., 1st Sess., p . -----  (1975) (Remarks of Rep. Rodino).

20 The resolution of this case does not require a delineation of 
the precise differences and similarities between these standards. 
Were this a constitutional challenge to the creation of a multi­
member district, judicial inquiry might be appropriate into such 
diverse and troublesome questions as whether blacks had sufficiently 
distinct interests as to make separate representation important, 
whether white councilmen had in the past been indifferent to those 
interests and whether blacks would be better off as a majority of 
a few districts or a substantial minority of a larger number of 
districts. White v. Regester, 412 U.S. 755 (1973). As to minority 
voters in the states and subdivisions covered by Section 5, Congress, 
drawing on its unique expertise and experience, has resolved these



12

Appellants ask this Court to overturn the established 
construction of Section 5, claiming that it requires “maxi­
mization” of black voting strength21 and urging that the 
District Court was obligated to approve any districting 
plan with a “rational basis”.22 The District Court opinion, 
like section 5, does not require the creation of the maximum 
feasible number of majority black districts;23 they merely 
forbid the systematic dismemberment of black concentra­
tions. Doubtless adherence to this statutory standard will, 
in the instant case, result in at least two districts with 
substantial majorities of black voters,24 but such a conse­
quence is neither undesirable nor unforseen. Insofar as re­
districting is concerned, Congress enacted section 5, not to 
improve the geometric aesthetics of districting maps, but 
because Congress knew—as did the draftsmen of Plan II— 
that the consolidation or division of a concentration of black 
voters would directly effect whether blacks from a majority 
of one or more districts and whether black candidates can 
be elected.25

questions in favor of creating districts in which black majorities 
can elect black candidates. Although circumstances will at times 
require the courts to determine such difficult political and socio­
logical questions, a congressional resolution is certainly to be wel­
comed. Compare Wright v. Rockefeller, 376 U.S. 52, 57-58 (1964), 
with Taylor v. McKeithen, 499 F.2d 893 (5th Cir. 1974).

21 Brief for Appellants, p. 31.
22 Brief for Appellants, pp. 19-26.
23 Since blacks are now 38.2% of the voters in New Orleans, it 

would probably be possible to draw district lines such that 3 out 
of 5, or 4 out of 7, districts would have black majorities.

24 See Appendix, p. 626.
26 Consolidation will also affect the number of votes “diluted.” 

Under Plan II, even treating District B as predominantly black, 
there are 62,612 black voters in overwhelmingly white districts, 
compared to only 18,694 white voters in a single marginal black 
district. Appendix, p. 524. Under the Republican proposal there 
would be 34,376 black voters in predominantly white districts and 
28,384 white voters in predominantly black districts. Appendix, 
p. 626.



13

Nothing in Section 5 or its legislative history would 
require, or even permit, the Attorney General or a district 
court to approve a voting change merely because it had 
a “rational” or even “compelling” basis. The statute con­
tains no express or tacit suggestion that the discriminatory 
purpose or effect of a proposed change can be overcome 
by a showing of some additional basis or effect of the 
change, rational, compelling, or otherwise. Nor does the 
statute distinguish between reapportionment and other 
voting changes. Few* alterations in election laws and pro­
cedure, particularly in the area of reapportionment,26 are 
so bizarre that some rational basis for them cannot be 
conjured up by a competent attorney; to require approval 
of a discriminatory change because there was such a 
rational basis would render section 5 a dead letter.27 See 
Wright v. Council of City of Emporia, 407 U.S. 451, 462, 
467-68 (1972). Once it found that Plan II had the pro­
scribed discriminatory effect, the District Court’s inquiry 
properly came to an end.

In light of the purpose and legislative history of section 
5, plaintiffs were required to establish either that there 
was no concentration of black voters in New Orleans or 
that any such concentration or concentrations had not been 
divided among predominantly white districts.

26 The various considerations bearing on reapportionment are so 
diverse, and often inconsistent, as to afford a “basis” for virtually 
any plan: compactness, continuity, respecting natural and man 
made banners (which usually run in all directions), creating hetero­
geneous district to avoid legislators favoring special interests (or 
creating homogenous districts to achieve the opposite effect), divid­
ing up black communities so they can influence several legislators 
(or consolidating those communities so they have more control 
over a smaller number of officials), avoiding “inadequate”' repre­
sentation for a particular group (the choice of group controlling 
the districting pattern), etc.

27 This Court rejected a similar contention in City of Petersburg, 
Virginia V. United States, 4l0 U.S. 562 (1973); Jurisdictional 
Statement in No. 74-865, p. 12.



14

2. T he Effect of P lan  II

The District Court correctly concluded that the plaintiffs 
had failed to establish that Plan II would not dilute the 
votes of black voters. The court found that black voters 
were concentrated in a east-west belt running through New 
Orleans, that that concentration was divided among five dif­
ferent districts and combined with large numbers of white 
voters, and that bloc voting by whites rendered unlikely 
if not impossible the election of black candidates from at 
least four of the districts. These findings of fact were sup­
ported by the record, and plaintiffs do not challenge their 
correctness on appeal.

Racial discrimination in voting was for years prior to 
the Voting Rights Act a serious problem in Louisiana.28 
When Reconstruction ended in Louisiana there were sub­
stantially more blacks registered to vote than whites, but 
by 1910 blacks accounted for less than the 1% of the state 
registration.29 The principle device for limiting the fran­
chise to whites was a literacy test adopted in 1898 for the 
express purpose of discriminating against blacks.30 After 
the Second World War black registration began to rise, a 
pattern accelerated by this Court’s decision in Brown v. 
Board of Education, 347 U.S. 483 (1954). In the late 1950’s 
a program of concerted activities was undertaken by the 
Louisiana Legislature, the State Board of Registration, the 
State Attorney General and the Association of Citizens 
Councils of Louisiana to prevent further minority registra­
tion and to remove blacks from the existing rolls.31 A series

28 See generally Hearings in Louisiana Before the U.S. Commis­
sion on Civil Rights (48).

29 1961 United States Commission on Civil Rights Report: Vot­
ing, pp. 40-41.

30 See Official Journal of the Constitutional Convention of the 
State of Louisiana 1898, passim.

311961 United States Commission on Civil Rights Report: Vot­
ing, 48-48.



15

of civil actions prosecuted by the United States failed to 
bring an end to this active discrimination. See e.g. United 
States v. McElveen, 177 F. Supp. 355, 180 F. Supp. 10, 11 
(E.D. La. 1960), aff’d sub nom., United States v. Thomas, 
362 U.S. 58 (1960); United States v. Association of Citizens 
Councils of Louisiana, 187 F. Supp. 846 (W.D. La. 1960); 
United States v. Louisiana, 380 U.S. 145, 148-49 (1965).

The passage of the Voting Eights Act brought a dramatic 
change in black registration. In 1964 only 28.4% of eligible 
blacks were registered in New Orleans, accounting for 
barely 17% of the registered voters.82 During the following 
three years over 24,000 blacks registered to vote, raising 
black registration to 25.1% of the total.33 By May 1973 
34.5% of the registered voters were black.34 In the year 
between May 1972 and May 1973 minority registration rose 
by 2,512, while white registration actually declined by 
4,895.86 As of October, 1974, 38.2% of those voters were 
black.36 New Orleans thus presents precisely the situation 
in which Congress feared district lines would be drawn so 
as to divide concentrations of black voters and thus dilute 
the value of their vote.

The District Court correctly determined that the black 
community wTas concentrated in the manner with which 
Congress was concerned.

Although some black families are to be found in 
most of the principal areas of New Orleans, there is no

32 1961 United States Commission on Civil Rights Report: Vot­
ing, p. 267.

33 Political Participation, A Report of the United States Com­
mission on Civil Rights (1968), p. 241.

34 Appendix, p. 623.
35 Compare id. 622 with id. 623.
36 United States Commission on Civil Rights, The Voting Rights 

Act: Ten Years After, p. 368.



16

general geographical blending of black and white resi­
dences. The black population is heavily concentrated 
in a series of neighborhoods extending eastwardly and 
westwardly through the central part of the City; the 
areas lying north and south of this belt, with minor 
exceptions, are overwhelmingly white.87

Plaintiffs do not question the correctness of this finding, 
which is fully supported by the record. The vast majority 
of black voters live in a belt approximately a mile wide 
running the length of the city from east to west; one can 
traverse the city from St. Jefferson Parish eight miles to 
St. Bernard Parish without crossing more than one or two 
white precincts.38 This black concentration is separated 
from the predominantly white parts of New Orleans by a 
variety of man made barriers, including interstate high­
ways,39 limited access highways,40 divided multi-lane main

37 Jurisdictional Statement, p. 4a.
38 See Appendix, p. 620. This map, based on 1971 figures sub­

stantially understates the. size of the minority vote, Blacks consti­
tuted approximately 31% of the registered voters in 1971, compared 
to 38.2% of the voters in October, 1974.

39 Interstate 10 separates the black Desire section (Ward 9, 
precincts 28, 28-A, 28-B, 28-C) from, the white neighborhood to 
the north (Ward 9, precincts 29, 29-A, 30, 30-A, 31, 31-A), and 
the black portions of the central city (Ward 2, precincts 6, 6-A, 7; 
Ward 17, precincts 14 and 16) from the white neighborhood to the 
north (Ward 3, precincts 12, 15, 16, 18, 19, 20) ; Interstate 610 
separates the black community east of Dillard University (Ward 
7, precincts 27, 27-A, 27-B) from the white neighborhood north of 
the Fairgrounds Race Track (Ward 7, precincts 18 and 19).

40 The Pontchartrain Parkway, U.S. 9, separates the black central 
city (Ward 2, precincts 1, 2, 3, 4) from the downtown business 
area (Ward 3, precinct 1).



17

thoroughfares,41 cemeteries,42 the Inner Harbor Canal43 and 
City Park.44 There are virtually no black voters in certain 
white parts of the city, including the northern third of the 
city45 and the neighborhoods surrounding Loyola and Tu- 
lane Universities.46

The effect of Plan. II, as Plan I before it, was to system­
atically dismember this concentration of black votes and to 
place fragments in each of 5 separate districts with larger

41 St. Claude Avenue separates the black areas to the north 
(Ward 9, precincts 2, 3, 3-A, 3-B, 4, 5, 5-A, 6, 6-A, 6-B, 8, 22, 23, 
24, 25, 25-A, 26, 27) from the white river front (Ward 9, precincts 
1, 1-A, 7, 9, 11, 12, 13, 14, 15, 16); Florida Avenue separates those 
same black areas from the white community north of the Avenue 
and east of the Intercoastal Waterway (Ward 9, precinct 32), 
and falls between the black southern portions of Wards 7 and 8 
(Ward 7, precinct 8; 9, 9-A, 20, 20-A, 21; Ward 8, precincts 11 
and 12) and the white portions of those wards to the north ; St. 
Charles Avenue separates the black central city (Ward 1, precincts 
5, 6, 7; Ward 10, precincts 10-H; Ward 11, precincts 10-19; Ward 
12, precincts 11, 12, 13) from the white riverfront area to the 
south (Ward 1, precincts 1-4; Ward 10, precincts 1-9; Ward 11, 
precincts 1-9, Ward 12, precincts 1-8.)

42 The Metairie and Greenwood Cemeteries separate the black 
neighborhood to the south (Ward 17, precincts 13, 13-A, 14, 15, 
16) from the white neighborhoods to the north (Ward 17, pre­
cincts 18-21).

43 The Canal separates the black Desire section (Ward 9, pre­
cincts 28, 28-A, 28-B, 28-C) from the white area to the east (Ward 
9, precinct 32) and separates the black development at Pontchar- 
train Park (Ward 9, precincts 31-B, 31-C, 31-D and 31-E) from 
the white area to the east (Ward 9, precincts 33, 42, 42.)

44 The Park separates the black community near Dillard Uni­
versity (Ward 7, precincts 27-A, 27-B, 26-A, 27, 28, 28-A) from the 
white portions of Ward 5 across the Park.

46 Excepting small black communities near Dillard University, 
a predominantly black college, and near Pontchartrain Park, until 
recent times the park used by blacks who were excluded because 
of their race from City Park.

46 The Director of the City Council Staff which prepared Plan II 
acknowledged the existence of these black and white concentrations. 
Appendix, p. 238.



18

numbers of whites. The black neighborhood north west 
of the French Quarter immediately adjoins even larger 
black areas to the east and west; in District C, however, 
that neighborhood is paired with the all-white neighbor­
hoods of Lake Vista, 5 miles to the north across City Park, 
and Aurora Gardens, 5 miles to the south across the Mis­
sissippi River. The black voters in the southern portions 
of wards 7 and 8 are combined, not with their black neigh­
bors in Wards 6 and 9, but with the white residential area 
on the shore of Lake Pontchartrain 3 miles to the north. 
The black community concentrated between Florida and St. 
Claude Avenues is divided betwen Districts D and E, each 
of which has a larger number of white voters. The black 
community along the Jefferson Parish line is separated 
from the nearby central city neighborhoods, and combined 
instead with white West End area miles to the north and 
the Tulane area miles to the south.47 With one exception, 
the districts are long and thin, crossing natural and man­
made boundaries to pair fragments of black concentration 
with larger but distant white areas; District C is a mile 
wide and 12 miles long.

Had the district lines been drawn to reflect the natural 
and man-made boundaries which separate the black con­
centration from the rest of the city, or had the districts 
merely been reasonably compact, two or more districts with 
a substantial majority of black voters would have resulted. 
The Republican plan, for example, resulted in two districts 
with black majorities in excess of 60%.48 Instead, Plan II 
carefully divided that black community among the five city 
council districts, none receiving more than 21,000 or less 
than 11,000 minority voters. Thus, the 83,588 black voters 
concentrated in the center of New Orleans were divided so

47 See Appendix, p. 638.
48 Appendix, p. 626,



19

that—at the time Plan II was drawn up—every district 
had a white majority. After the preparation of Plan II, 
and before the decision below, a significant rise in black 
registration raised the number of black voters in District 
B to 52.6%.49 The next largest concentration of black voters 
is in District E, which not coincidentally has the fastest 
growing white population in the city.50 Given the obstacles 
posed by the high concentration of black voters and the 
geography of New Orleans, it would be difficult to design a 
districting plan better suited to avoiding a substantial black 
majority in any one district and thus preventing the election 
of a black candidate.61

The District Court correctly concluded that the diluting 
effect of Plan II was aggravated by a history of bloc voting 
substantially along* racial lines.52 Three of the plaintiff 
counoilmen conceded there was such bloc voting in New 
Orleans,68 and two of defendants’ witnesses confirmed the 
existence of this problem.64 Although a black candidate

49 Appendix, p. 624. Plan II was prepared in 1972 while Plan I 
was still under consideration by the Attorney General. Id., pp. 
350-51. Between May, 1972 and May, 1973, black registration rose 
from 79,213 to 83,588, an increase of 5.5%. But for this increase 
blacks would have constituted only 49.8% of District B.

60 Appendix, p. 187.
61 The effect of Plan I may have been slightly worse, but this 

was accomplished by making 3 of the 5 districts non-eontinuous. 
Appendix, p. 623.

Plaintiffs do not deny that it would he entirely feasible to fashion 
a compact, districting plan that did not divide the black community 
among white districts. Nor does such a claim appear to have 
been raised in any of the other 50 cases in which the Attorney 
General objected to a redistricting plan. The existence of a con­
centration of black voters guarantees ipso facto that a non-dilutive 
districting plan can be drawn which is compact, contiguous, and 
consistent with Reynolds v. Sims, 377 U.S. 533 (1964).

62 Jurisdictional Statement, pp. 18a-19a.
53 Appendix, pp. 260, 506-07, 545-46, 548.
64 Id., pp. 414, 547; see also Exhibits 29, 30, 33.



20

running against several whites in a primary might obtain 
a plurality in a majority white district, state law requires 
that the nominee obtain a majority and mandates a second 
primary where necessary. La. Eev. Stat., Art. 18, § 358 
(1966 Supp.). On several occasions blacks have won such 
pluralities, only to lose the runoff election to a white 
candidate due to white bloc voting.55 Although the Demo­
cratic nomination is usually tantamount to election, on at 
least one occasion a black Democratic candidate so nom­
inated was defeated when white traditionally Democratic 
wards voted in favor of a white Republican. Until 
restrained from doing so by this Court, Louisiana in the 
past encouraged such bloc voting by printing on the ballot 
the race of each candidate. Anderson v. Martin, 375 U.S. 
399 (1964).

Plaintiffs object that, in considering whether Plan II had 
a discriminatory effect, the District Court was obligated 
to ignore the fact that 2 of the 7 Council members were to 
be chosen through an at-large election which, particularly 
in view of the majority runoff and anti-single shot laws, 
guaranteed the defeat of any black candidate.66 They also 
suggest that, in assessing the impact of Plan II, the District 
Court should have disregarded the “social, economic and 
political context” in which it operated.57 The effect of a 
proposed statute, however, cannot be assessed in the 
abstract; it depends on the particular circumstances, legal 
and otherwise, in which it is applied. The Assistant At­
torney General advised Congress in 1970 that any judgment 
on boundary changes would require demographic or other

55 Appendix, pp. 501, 564-6, 569; Jurisdictional Statement, pp. 
19a, 64a; see also Anderson v. Martin, 375 U.S. 399, 401 (1964).

56 Brief for Appellants, pp. 10-12.
57 Brief for Appellants, p. 16.



21

information.58 A similar argument was rejected by this 
Court in City of Petersburg v. United States, 410 U.S. 962 
(1973)69 and United States v. Georgia, 411 U.S. 526 (1973).60 
The Attorney General’s regulations regarding Section 5 
submissions have long required the submission of extensive 
information on the background and impact of any submis­
sion, especially when redistricting is involved. 28 C.F.R. 
§ 51.10. The District Court, by detailing the legal and 
factual context which led it to reject Plan II, provided 
guidance to the City Council in fashioning a method of 
electing the Council which would be consistent with sec­
tion 5.61

The Fifteenth Amendment does not require that every 
racial minority must in all cases be represented by a pro­
portionate number of couneilmen or legislators. But 
neither does the Constitution afford any protection to a 
districting plan well calculated to prevent minority repre-

68 Hearings before the Subcommittee on Constitutional Eights 
of the Senate Committee on the Judiciary on Bills to Amend the 
Voting Rights Act, 91st Cong., 1st and 2nd Sess., p. 507 (1969-70).

59 The City, which wished to annex a predominantly white suburb, 
unsuccessfully urged that the District Court which disapproved 
that annexation under seetion 5 had erred when it took into con­
sideration the fact that the Petersburg City Council was chosen 
at large. Jurisdictional Statement, No. 74-865, pp. 13 et seq.

60 Georgia urged that the Attorney General had erred when, in 
assessing the effect of its reapportionment plan, he considered the 
impact of the state’s multimember district and majority runoff laws. 
See Brief for Appellants, No. 72-75, pp. 25-30. This Court held 
that the Attorney General’s inquiry was so limited, “Seetion 5 is 
not concerned with a simple inventory of voting procedures, but 
rather with the realty of changed practices as thev affect Negro 
voters.” 411 U.S. at 531.

61 In City of Petersburg, supra, the District Court advised the 
plaintiffs that the annexation, though discriminatory under the 
then existing circumstances, would pass muster under section 5 if 
the at-large method of election were replaced by districts. 354 
F.Supp. 1021, 1031 (D.D.C., 1972), a f  d 410 U.S. 962 (1973).



22

sentation, or to insure no more than token representation 
in a city where blacks are close to a majority of the popula­
tion. In the instant case, although blacks constituted 
45.0% of the population and 38.2% of the registered voters, 
section 5 could not assure that ordinary “political defeat 
at the polls” would not prevent the election of a substantial 
number of blacks to the New Orleans City Council. Whit­
comb v. Chavis, 403 IPS. 124, 153 (1971). Plan II, however, 
as the District Court noted, did more than subject black 
candidates to the everyday risks of the political process; it 
harnessed the established pattern of white bloc voting to 
create an insurmountable obstacle to the election of more 
than a single black.

II.

Plaintiffs Failed to Prove That Plan II Did Not Have 
the Purpose of Denying or Abridging the Right to 
Vote on Account of Race.

Section 5 requires plaintiffs to establish not only that 
Plan II would not have a discriminatory effect, but also 
that it did not have a discriminatory purpose. In the in­
stant case the District Court did not reach the latter issue, 
since it ruled for defendants on the former.62 It is clear, 
however, that plaintiffs failed to meet their burden of 
proof with regard to the purpose of Plan II. This failure 
affords an alternative ground for affirming the decision of 
the District Court.

Plan II was not the first districting proposal submitted 
by the City Council. On March 2, 1972 the Council adopted 
Ordinance 4796, (hereinafter referred to as “Plan I”), 
providing for the redistricting of the New Orleans City

62 Jurisdictional Statement, pp. 40a-42a.



23

Council. On January 15, 1973, the Attorney General ob­
jected to Plan I. In Ms letter of that date, the Assistant 
Attorney General spelled out the basis for the objection 
so as to make clear what steps were needed to fashion a 
non-discriminatory plan:

Our analysis shows that the district boundary lines 
in the submitted plan are drawn in a manner which ap­
pears to dilute black voting strength by combining a 
number of black voters with a larger number of white 
voters in each of the five districts.68

Plaintiffs do not question the correctness of the Attorney 
General’s decision regarding Plan I. Four months after 
the rejection of Plan I the City Council, on May 13, 1973, 
adopted Plan II. The controlling question is whether, as 
plaintiffs claim, Plan II represented a good faith attempt 
to remedy the defects in Plan I.

The most striking evidence in this regard is that Plan II 
did not alter in any significant way the defects in Plan I, 
The boundaries of Districts D and E were identical in 
both plans.64 The total number of black voters in District B 
rose from 20,012 to 20,976, an increase of 964, but much of 
this change was attributable to the increase in minority 
registration between 1972 and 1973.66 White registration 
in District B fell, but this too was due in large measure to 
a decline in white registration in City as a whole. The 
only significant effect of Plan II, outside of the Algiers 
area, was to move District B to the northeast, adding to it 
several thousand black voters in Wards 2 and 3 and re­
moving from it an almost equal number in Ward 13. This

63 Appendix, p. 29.
64 Compare Appendix, p. 27 with p. 31,
65 Appendix, pp. 623-624. The total number of registered blacks 

in Districts A, B and C rose from 44,253 on May 4, 1972 to 45,546 
on May 9,1973, an increase of 1,023.



24

worked a net transfer of approximately 1,000 black voters 
from District C to District A, a change of no practical sig­
nificance since both districts remained at least 75% white. 
In Plan II blacks continued to be divided among the five 
districts, and in virtually the same proportions as before.66 
The dilution worked by Plan I was carried forward virtu­
ally unchanged by Plan II.

The reason why Plan II failed to remedy the defects 
noted by the Attorney General is also clear from the 
record. The member of the Council staff who prepared 
Plan II conceded that plan had been drawn up before 
Plan I was rejected,67 and the Director of the Council 
staff testified that in. preparing Plan II it was the staff’s 
desire to leave “undisturbed the general racial composi­
tion of the districts”.68 The bill containing Plan II recites 
that it was introduced by one of the councilmen on De­
cember 7, 1972, a month prior to the Attorney General’s 
decision. Plan II was drawn up by the Council staff, not 
as a result of the Attorney General’s decision, but because 
of complaints from the residents of the predominantly 
white Algiers section, who objected to being divided among 
three different council districts and paired in part with 
District A, whose residents had a conflicting attitude re­
garding proposals for a neve bridge across the Missis-

66 The proportion of New Orleans’ black voters in each of the 
districts under Plans I and II  was as follows:

Plan I Plan II
District A 14.59% 15.50%
District B 25.26% 25.09%
District C 16.01% 13.88%
District D 21.24% 21.89%
District B 22.89% 23.71%

67 Appendix, pp. 3,50-51, 354.
68 Id., p. 213.



25

sippi.69 The changes worked by Plan II on the borders of 
Districts A, B and C were “a result of” the decision to 
consolidate the fragments of Algiers and place them in 
District C,70 not of any desire to remedy the defects of 
Plan I.

The reasons why the Council put forward Plan II, which 
it must have known to be inadequate, rather than attempt­
ing to draw up a new non-discriminatory plan, are not hard 
to devine. The councilmen who voted for Plan II had more 
than a casual interest in preventing the election of blacks, 
for any such election would cost one of the incumbents his 
seat. The potential for abuse inherent in this situation was 
compounded by the fact that each councilman drew the lines 
of his own district in consultation with the incumbent in 
the neighboring district.71 Although at-large Council­
man Moreau, the ostensible author of both plans, insisted 
he took no interest in the racial composition of the dis­
tricts,72 the councilmen wdiose districts were at stake asked 
for and were given racial breakdowns on the various options 
before the plans were finally drafted.73

Over and above the danger of defeat by a black candidate, 
there was another reason why the Council was unwilling to 
take the steps necessary to remedy the defects in Plan I. 
With a single exception, all the members of the Council 
lived in the white lake-front area in the north end of the 
city.74 Any meaningful solution to the failings of Plan I 
would have required the council districts to run from east

69 Id , pp. 112, 197.
70 Id., p. 223.
71 Id., p. 339.
72 Id., pp. 269-279.
73 Id , pp. 144-45, 208, 339.
74 Id , pp. 125, 232, 235.



26

to west rather than north to south, which would have placed 
several incumbent councilmen in the same lake-front dis­
trict. Despite some equivocation by plaintiffs’ witnesses, it 
was clear that the Council had no intention of considering a 
plan that placed incumbents in the same district, and that 
th Council staff so understood.76

Nor is there any suggestion in the record that the Coun­
cil or its staff did not understand that federal law forbade 
fragmentation of the black community so as to dilute 
minority voting strength. The record is replete with 
evidence that they fully comprehended what was required 
of them.76 The lame excuses offered for their failure to 
do so are unpersuasive.77 The conclusion is inescapable 
that the members of the City Council failed to remedy the 
defects in Plan I, not through inadvertance, nor through 
blind adherence to any lofty neutral principles, but be­
cause they were unwilling to give up the practical political 
benefits conferred on them by continued dilution of black 
voting strength.

76 Id., pp. 120-21, 146, 148-50, 152, 192, 214, 229, 230, 232, 235, 
297, 337, 344, 547, 571, 575, 580.

76 Id., pp. 176, 195, 206, 245, 263, 265, 333, 352, 541.
77 One witness said the north-south districts were fashioned to 

conform to the natural boundaries of the city, but virtually all the 
boundaries he listed served not as the boundaries of the districts 
but as internal barriers. Id. p. 185-87. Several witnesses insisted 
it would be impossible to draw east-west districts without dis­
rupting existing precincts, id. pp. 187, 200, 326, 514, but in view 
of the fact there were over 400 precincts it was conceded that the 
only east-west plan proposed had not had this effect. Id. pp. 
199, 575.



27

CONCLUSION

For the above reasons the judgment of the District 
Court should be affirmed.

Respectfully submitted,

J ack  G reenberg  
J am es M. N a brit , III 
C h a rles  E. W il l ia m s , III 
E ric  S c h n a p p e r

10 Columbus Circle 
New York, New York 10019

S ta n ley  A. H a l p in , J r .
Suite 1212
344 Camp Street
New Orleans, Louisiana 70103

C h a rles  E. C otton  
D avid D e n n is

301 Executive House
New Orleans, Louisiana 70112

W il e y  B ranton
666 Eleventh Ave., N.W. 
Washington, D.C. 20001

Counsel for Appellees Jackson, et al.



ME11EN PRESS IN C  —  N. Y. C. 219



IN THE UNITED STATES 
COURT OF APPEALS FOR 

THE FOURTH CIRCUIT

Nos. 9 9 -2 3 8 9 , 9 9 -2 3 9 1 , 0 0 -1 0 9 8  and  0 0 -1 4 3 2

TERRY BELK, e t ah,
P lain tiffs-A p p ellan ts,

and
WILLIAM CAPACCHIONE, MICHAEL P. GRANT, e t ah, 

P la in tiff-In terven ors-A p p ellees, 
v.

THE CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, e t ah,
D efen d an ts-A p p ellan ts.

WILLIAM CAPACCHIONE, MICHAEL GRANT, e t ah, 
P la in tiff-In terven ors-A p p ellees, 

and
TERRY BELK, e t  ah,
P la in tiffs-A ppellan ts,

v.
THE CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, e t  ah,

D efen dants-A ppellants.

A ppeal From  th e  U n ited  S ta te s  D istr ic t Court 
for th e  W estern D istr ic t o f  N orth C arolina

REPLY BRIEF IN FINAL FORM OF APPELLANTS 
CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, ET AL.

Allen R. Snyder 
Maree Sneed 
Jo h n  W. Borkowski 
HOGAN & HARTSON L.L.P. 
555 T hirteenth  Street, N.W. 
W ashington, DC 20004 
(202) 637-5741

Dated: May 19, 2000

Jam es  G. Middlebrooks 
Irving M. B renner 
Amy Rickner Langdon 
SMITH HELMS MULLISS 
& MOORE, L.L.P.
201 N. Try on S treet 
Charlotte, NC 28202 
(704) 343-2051

Leslie W inner 
G eneral Counsel 
C harlotte-M ecklenburg 
Board
of Education 
Post Office Box 30035 
C harlotte, NC 28230-0035 
(704) 343-6275

C ounsel for A ppellants 
C harlotte - M ecklenburg 
Board of Education, et al.



MEILEN PRESS INC. —- N. Y. C. «̂ ggis*> 219