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

    Nob. 98-405 and 98-406

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

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REPLY BRIEF FOR THE FEDERAL APPELLANT

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Seth P. Waxman 
Solicitor General 

Counsel of Record 
Department of Justice 
Washington, D.C. 20530-0001  

(2 0 2 ) 5 U -2 2 1 7



TABLE OF CONTENTS
Page

1. Justiciability .........................................................................  1

2. The proper scope o f Section 5 ............................................  3

3. The Board’s discriminatory' intent in adopting the

1992 p la n ................................................................................  13

4. A ppellee ’s e ffort to introduce extra-record inform ­

ation ........................................................................................  18

T A B L E  O F A U T H O R IT IE S

Cases:

Beer v. United States, 425 U.S. 130 (1 9 76 )...............  4, 5, 7-8

Busbee v. Smith, 549 F. Supp. 494 (D .D .C. 1982),

a ffd  mem., 459 U.S. 1166 (1983) ........................................  10

Chapman v. Meier, 420 U.S. 1 (1975) ............................... 6

City o f Lockhart v. United States, 460 U.S. 125

(1983 )......................................................................................  5
City o f  Mobile v. Bolden, 446 U.S. 55 (1980) ................... 6

City o f  Pleasant Grove v. United States, 479 U.S.

462(1987 ).........................................................................  4,9,12

City o f Rome v. United States, 446 U.S. 156

(1980 )....................................................................................  9,12

G om illion  v. Lightfoot, 364 U.S. 339 (1 9 60 ).....................  4

Illinois State Bd. o f Elections v. Socialist Workers
Party, 440 U.S. 173 (1979 ).................................................. 11

Lujan  v. Defenders o f  Wildlife, 504 U.S. 555

(1992 )......................................................................................  2

M ille r  v. Johnson, 515 U.S. 900 (1995) ............................. 12
Personnel Adm inistrator v. Feeney, 442 U.S.

256 (1979 )...............................................................................  8

South Carolina  v. Katzenbach, 383 U.S. 301

(1966 )..................................................................................  3 ,5 ,6
Thornburg v. Gingles, 478 U.S. 30 (1986 ).....................  18,19

Trafficante v. Metropolitan Life Ins. Co.,
409 U.S. 205 (1972) ..............................................................  2

(I)



Cases— Continued: Page

United States v. Albertini, 472 U.S. 675 (1985)...............  9

U.S. Bancorp Mortgage Co. v. Bonner M all
Partnership, 513 U.S. 18(1994) .......................................  3

Village o f A rlington Heights v. Metropolitan  
Housing Dev. Corp., 429 U.S. 252 (1977)................. 8, 11, 13

Constitution, statutes and regulation:

U.S. Const.:
Amend. X IV  .........................................................................  12
Amend. X V  .....................................................................  3, 4, 6

V oting R ights Act o f 1965, Pub. L . No. 89-110,
79 Stat. 437 (42 U.S.C. 1973 et seq .)................................... 3

§ 2, 42 U.S.C. 1973 ..............................................  6, 7,12,13
§ 5, 42 U.S.C. 1973c.................................................  passim

La. R ev. Stat. Ann. § 18:425.1 (W est Supp. 1999).............. 16
28 C .F .R . 51.54(b)(4 )...............................................................  9

Miscellaneous:

H .R . Rep. No. 439, 89th Cong., 1st Sess. (1965 )................. 4
S. Rep. No. 162, 89th Cong., 1st Sess., Pt. 3 (1965) ..........  3-4
S. Rep. No. 417, 97th Cong., 2d Sess. (1982 )....................... 7

II

3n  tlje Suprem e Court of tlje ©uiteb IMatetf
O c t o b e r  T e r m , 1998 

No. 98-405

J a n e t  R e n o , A t t o r n e y  G e n e r a l , a p p e l l a n t

V.

B o s s i e r  P a r i s h  S c h o o l  B o a r d

No. 98-406

G e o r g e  P r i c e , e t  a l ., a p p e l l a n t s

v.

B o s s i e r  P a r i s h  S c h o o l  B o a r d

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

REPLY BRIEF FOR THE FEDERAL APPELLANT

1. Justiciability.
Appellee argues (Bd. Br. 8-11)1 * that this case is moot 

because the next regularly scheduled School Board election 
will not be held until 2002, by which time it should have 
adopted a new redistricting plan. As we have explained in 
our brief in opposition to appellee’s motion to dismiss or 
affirm (at 1-3), appellants retain a live interest in the 
outcome of this litigation. In Section 5 of the Voting Rights 
Act of 1965, 42 U.S.C. 1973c, Congress granted voters (and 
the Attorney General) a statutory right against the

1 As used in this reply brief, “Bd. Br.” refers to appellee’s brief on the

merits in this Court.

(1)



2

implementation of voting changes that have not been pro­
perly precleared.2 Thus, if this Court reverses the district 
court’s preclearance judgment, voters in Bossier Parish 
might well be entitled to a special election held under a 
lawful plan that complies fully with Section 5. That lawful 
plan might be developed by the Board and precleared by the 
Attorney General or the district court, or (should the Board 
fail to hold a special election on its own initiative) elections 
might be ordered by a federal court under a plan fashioned 
by that court as a remedy for the Board’s violation of Section 
5.

Appellee suggests (Bd. Br. 11) that, if the district court’s 
preclearance judgment is reversed and new elections are 
ordered, minority voters in the Parish would receive no 
benefit because its previous 1980s plan was little different 
from the 1992 plan, in terms of its effect on minority voting 
rights. That argument proceeds from the incorrect 
assumption that there would be no objection to holding 
elections under the 1980s plan. In fact, the 1980s plan is 
severely malapportioned. See J.S. App. 171a-172a. It is 
appropriate to assume that, if the district court’s judgment is 
reversed and the Board then chooses or is ordered to hold a 
special election, the Board would not hold the election under 
an unconstitutional plan; and, if the Board attempted to do 
so, use of the 1980s plan would likely be promptly challenged 
in district court. Cf. ,J.A. 41-42 (prior equal-apportionment 
challenge to implementation of 1980s plan).

Even if this case were moot, the appropriate action would 
be for the Court to vacate the lower court’s judgment and to

2 In a related context, this Court has consistently held that “ [t]he . . . 
injury required by Art. I l l  may exist solely by virtue of ‘statutes creating 
legal rights, the invasion of which creates standing.’ ” Lujan v. Defenders 
of Wildlife, 504 U.S. 555, 578 (1992); see Trafficante v. Metropolitan Life 
Ins. Co., 409 U.S. 205,208-212 (1972).

3

remand the case with instructions to dismiss the complaint. 
See Gov’t Br. in Opp. to Mot. to Dism. or Aff. 2-3 n.l. 
Appellee erroneously relies (Bd. Br. 11-12 n.10) on U.S. 
Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 
18, 26 (1994) to argue that the Court should dismiss the 
appeals rather than vacate and remand. In that case, 
however, the controversy became moot because the parties 
had voluntarily settled the case. In such a situation, “the 
losing party has voluntarily forfeited his legal remedy by the 
ordinary processes of appeal or certiorari, thereby sur­
rendering his claim to the equitable remedy of vacatur.” Id. 
at 25. The Court reaffirmed, however, that “ [a] party who 
seeks review of the merits of an adverse ruling, but is 
frustrated by the vagaries of circumstance, ought not in 
fairness be forced to acquiesce in the judgment.” Ibid. That 
is the case here, where the government and the Price 
appellants have appealed twice from the district court’s 
decision to preclear the 1992 plan.

2. The Proper Scope of Section 5.
a. Appellee’s attempt to argue that the purpose prong of 

Section 5 is limited to retrogressive intent leads it to the 
remarkable assertion that there is little if any connection 
between Section 5 and the Fifteenth Amendment. Bd. Br. 
25-28; see Bd. Br. 27 (“there is very little congruence be­
tween the Constitution and § 5”); Bd. Br. 28 n.21 (“nothing in 
the legislative history indicates that § 5 reaches ‘racially 
motivated voting changes’ that violate the Constitution”). 
The Voting Rights Act of 1965 itself, however, stated that its 
principal animating, purpose was “[t]o enforce the fifteenth 
amendment to the Constitution of the United States.” Pub. 
L. No. 89-110, 79 Stat. 437.3

3 See also South Carolina v. Katzenbach, 383 U.S. 301, 324-327 (1966) 
(explaining that Congress enacted Section 5 to enforce the Fifteenth 
Amendment); id. at 337 (upholding Section 5 as “a valid means for carry­



4

The weakness of appellee’s effort to divorce Section 5 
from the Fifteenth Amendment is amply demonstrated by 
the outlandish consequences of its argument. Under appel­
lee’s theory, if in 1965 a town had (by law or practice) 
effectively barred all blacks from voting in town elections, 
and had then, after the enactment of the Voting Rights Act, 
enacted legislation with the purpose of accomplishing the 
same result—for example, by altering the jurisdiction’s 
boundaries to exclude all blacks from residency (cf. Gornil- 
lion v. Lightfoot, 364 U.S. 339 (I960))—the Attorney General 
or the federal courts would have been required to preclear 
that voting change, because it would not have had the 
purpose or effect of making the position of blacks in the town 
worse. Or, if an all-white town enacted legislation prohibit­
ing blacks from voting, that legislation would also have to be 
precleared for the same reason, even though it would flatly 
violate the Fifteenth Amendment (cf. City of Pleasant Grove 
v. United States, 479 U.S. 462 (1987)).4 The Court should

ing out the commands of the Fifteenth Amendment” ); S. Rep. No. 162, 
89th Cong., 1st Sess., Pt. 3, at 17 (1965) (joint statement of 12 members of 
Judiciary Committee) (“The proposed legislation implements the explicit 
command of the 15th amendment.” ); H.R. Rep. No. 439, 89th Cong., 1st 
Sess. 6 (1965) (“The bill, as amended, is designed primarily to enforce the 
15th amendment to the Constitution of the United States and is also 
designed to enforce the 14th amendment.” ).

4 In suggesting that such results would be unexceptionable, appellee 
argues (Bd. Br. 20) that Beerv. United States, 425 U.S. 130 (1976), held 
that “ (d]eliberate maintenance of an at-large system for purely dis­
criminatory reasons does not offend § 5.” See also Bd. Br. 23 n.17 (noting 
that Beer held that New Orleans’ maintenance of two at-large seats did 
not implicate Section 5). The discussion in Beer to which appellee refers 
concerned the distinct principle, unrelated to this case, that voting prac­
tices that are not changed are not subject to Section 5 at all. See 425 U.S. 
at 138-139. That argument is unavailing in this case; the 1992 School
Board plan at issue here is, of course, a voting change. For the same 
reason, appellee errs in arguing (Bd. Br. 38) that the Attorney General

5

reject a construction of Section 5 that leads to results so 
demonstrably at odds with Congress’s intent.5

We have also pointed out (Gov’t Opening Br. 20-23) that 
appellee’s theory is inconsistent with the specific purpose 
behind the preclearance requirement of Section 5, to elimi­
nate the pattern by which jurisdictions simply replaced one 
unconstitutional voting practice, struck down by the courts, 
with another one designed to accomplish the same result, 
requiring further litigation by the Attorney General and 
private parties to enjoin the replacement plan. Appellee 
argues (Bd. Br. 40 n.30) that a district court would not 
permit a covered jurisdiction to substitute one discrimina­
tory plan for another. A jurisdiction might well try to 
accomplish just such substitution, however. Under standard

and this Court were “ forced to preclear the two at-large seats retained in 
the Beer reapportionment plan.” The Attorney General and the Court 
were not forced to preclear those seats; rather, they were not subject to 
preclearance at all, because their retention did not constitute a voting 
change. See 425 U.S. at 139. It is true, of course, that because Section 5 is 
limited to voting changes, it cannot be used to root out all unconstitutional 
voting discrimination. Congress’s decision to tailor the powerful remedy 
of preclearance to voting changes, however, reflects its particular purpose 
in Section 5 to prevent covered jurisdictions from avoiding the dictates of 
the Constitution by replacing one unconstitutional voting plan with 
another. See Gov’t Opening Br. 20-23.

s Appellee erroneously contends that Beer and City o f Lockhart v. 
United States, 460 U.S. 125 (1983), concluded that Section 5 “did not in any 
way prohibit” the perpetuation of existing discrimination (see Bd. Br. 22- 
23 & n.17). Both cases evaluated the plans at issue only under the effect 
prong of Section 5, and not the purpose prong, and found no retrogressive 
effect. While it is true that a voting change may be denied preclearance 
under the effect prong of Section 5 only if it makes the position of 
minorities worse than before, no decision of this Court suggests that a 
voting change should he precleared if it has the purpose of reinforcing 
existing racial discrimination in official voting practices. See South 
Carolina, 383 U.S. at 315-316 (noting that purpose of Section 5 was to pre­
vent covered jurisdictions from “perpetuat(ingl” voting discrimination).



6

rules governing constitutional litigation, if a district court 
strikes down one voting plan as unconstitutional, it is up to 
the covered jurisdiction in the first instance to develop a new 
plan. See Chapman v. Meier, 420 U.S. 1, 27 (1975). The 
government and voters would then be required to go back to 
the district court, and would bear the burden to prove that 
the substitute plan was unconstitutional in order to prevent 
its implementation—exactly the unsatisfactory situation 
before Section 5 was enacted. Even if the jurisdiction s 
effort was eventually stymied by the district court, it would 
have successfully delayed minority voters’ enjoyment of the 
full exercise of their right to vote. That prospect is 
impossible to square with Congress’s specific objective in 
Section 5, “to shift the advantage of time and inertia from 
the perpetrators of the evil to its victims.” South Carolina 
v. Katzenbach, 383 U.S. 301,328 (1966).

b. The plain language of Section 5 prohibits enforcement 
of a voting change enacted with the “purpose” of “denying or 
abridging the right to vote on account of race” (42 U.S.C. 
1973c)—language that straightforwardly reaches a voting 
change enacted with the purpose to discriminate against 
black voters. Appellee presents several unpersuasive argu­
ments to avoid the thrust of this language. It argues (Bd. 
Br. 26), for example, that “on account of race,” as used in 
Section 5, cannot refer to unconstitutional, purposeful racial 
discrimination because Congress used the same language in 
amended Section 2 of the Act, 42 U.S.C. 1973, which does not 
contain a purpose requirement. But Section 2 does reach 
purposeful racial discrimination in official voting practices, 
see City of Mobile v. Bolden, 446 U.S. 55, 60-61 (1980) (plu­
rality opinion) (emphasizing close connection between Sec­
tion 2 and Fifteenth Amendment), even though, like Section 
5, it reaches more broadly as well. The fact that neither stat­

7

ute reaches only purposeful discrimination hardly suggests 
that purposeful discrimination is outside either one.6 *

Appellee also argues (Bd. Br. 19-20) that, because Beer v. 
United States, 425 U.S. 130, 141 (1976), held that the effect 
prong of Section 5 reaches only voting changes having a 
retrogressive effect, the purpose prong must also be limited 
to changes enacted with the intent to retrogress. We have 
explained, however, that Beer’s construction of the effect 
prong of Section 5 reflects concerns about that statute’s 
reach beyond the moorings of the Constitution. See Gov’t 
Opening Br. 29-32. Beer does not suggest that the separate 
purpose prong of Section 5 fails to reach all voting changes 
enacted with an unconstitutional, racially discriminatory 
purpose. To the contrary, the Court observed in Beer that a 
voting change “could be a substantial improvement over its 
predecessor in terms of lessening racial discrimination, and 
yet nonetheless continue so to discriminate on the basis of 
race or color as to be unconstitutional.” 425 U.S. at 142 n.14.

In an effort to avoid the force of that language in Beer, 
appellee suggests (Bd. Br. 35) that Beer merely observed 
that “a reapportionment which satisfies § 5 may nonetheless 
violate the Constitution.” But the Court in Beer, immedi­
ately after the language quoted above, proceeded to observe 
that the government had “made no claim” that the districts 
at issue in that case were unconstitutional. See 425 U.S. at

6 Moreover, when the 1982 Senate Report to which appellee cites 
explained that the phrase “on account of race" does not refer to purposeful 
discrimination, it stressed that Section 5 expressly covers voting changes 
enacted with the purpose to discriminate on account of race, by its use of 
the separate term “purpose.” The point made by the Senate Report was 
that enactments having the "effect" (or “result” ) of denying or abridging 
the right to vote “on account of race” should be covered in Section 2, and 
that, in the context of effects as well, the phrase “ on account of race” does
not refer to purposeful discrimination. See S. Rep. No. 417, 97th Cong., 2d 

Sess. 27-28 n. 109 (1982).



8

142 n.14. The Court discussed the Constitution precisely 
because of its relevance to the standards for preclearance 
under Section 5. The Court also stated in Beer that an 
ameliorative plan “cannot violate § 5 unless [it] so discrimi­
nates on the basis of race or color as to violate the Con­
stitution.” Id. at 141 (emphasis added). Thus, the Court’s 
discussion about unconstitutional voting changes related 
directly to its construction of Section 5. Congress, moreover, 
codified that precise discussion in Beer when it subsequently 
reenacted Section 5 in 1982. See Gov’t Opening Br. 29.

Furthermore, if appellee’s exceedingly narrow construc­
tion of Section 5’s purpose prong were correct, it is difficult 
to see why Congress would have adopted it.7 As a practical 
matter, the purpose prong as so construed would add little if 
anything to the retrogression analysis required under the 
effect prong. In almost every case, the Section 5 inquiry 
would be effectively exhausted by an analysis of the effects 
of a voting change to determine whether the change was 
retrogressive. I f  the change was retrogressive, then 
preclearance would be denied without any consideration of

7 In a particularly unpersuasive example designed to show that its 
construction of Section 5’s purpose prong is not more narrow than the 
Constitution, appellee argues (Bd. Br. 27) that, if a jurisdiction decided to 
eliminate a majority-black district “ for purely race-neutral reasons,”  such 
an action would have a retrogressive purpose, but not a discriminatory 
purpose in violation of the Constitution. It is difficult to see, however, 
that the jurisdiction’s purpose in enacting such a provision, i f  “ race- 
neutral,” would be retrogressive (even though the effect might be). As 
this Court explained in Personnel Administrator v. Feeney, 442 U.S. 256, 
279 & n.24 (1979), under the analytical framework of Village of Arlington 
Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265- 
266 (1977), a prohibited “purpose” implies that the decisionmaker took 
action “at least in part ‘because of,’ not merely ‘in spite of,’ its adverse 
effects upon an identifiable group.” If, therefore, appellee’s hypothetical 
jurisdiction indeed acted for “ race-neutral reasons," it would not have 
acted “because o f ’ the plan’s retrogressive effect.

9

the change’s purpose; but if the change did not have a 
retrogressive effect, then (in appellee’s view) preclearance 
could be denied only if the covered jurisdiction had enacted 
the voting change in an unsuccessful effort to achieve 
retrogression. Nothing in the text, legislative history, or 
decisions of this Court construing Section 5 suggests that the 
purpose prong has such a trivial reach, limited to the case 
of the incompetent retrogressor.8 Cf. United States v. 
Albertini, 472 U.S. 675, 682-683 (1985) (rejecting construc­
tion of statute that would render clause “almost super­
fluous”).

c. Appellee’s effort to wave away this Court’s precedents 
fares no better. On this point we refer the Court to our 
opening brief (at 24-29), but we note that appellee’s effort 
(Bd. Br. 28-29) to recharacterize City o f Pleasant Grove, 
supra, is particularly strained. In that case, the Court 
denied preclearance to annexations by an all-white town of 
vacant land and land populated only by whites for the 
purpose of “providing] for the growth of a monolithic white 
voting block, thereby effectively diluting the black vote in 
advance.” 479 U.S. at 472. The Court could not have decided 
the case on the basis, suggested by appellee (Bd. Br. 29), that

8 To the contrary, the design of the statute suggests that the purpose 
prong was intended to reach unconstitutional, racially discriminatory 
enactments, and that the effect prong was designed to reach in addition 
those enactments that, because of their retrogressive effect on minorities’ 
position, would impede their ability to overcome the remaining effects of 
past discrimination. See City of Rome v. United States, 446 U.S. 156, 175- 
178 (1980). In addition, some voting changes are more readily susceptible 
to analysis under the purpose prong than under the effect prong. For 
example, when a jurisdiction creates a new elected office or position, or 
chooses an election method for a new governing body, it may be difficult to 
determine whether the change is retrogressive, and a purpose analysis 
may be more fruitful to determine whether the change implicates Con­
gress’s concerns in Section 5. See 28 C.F.R. 51.54(b)(4).



10

the annexation of land then populated only by whites could 
have made “minority voters worse off than they were prior 
to the annexation,” for there were no minority voters in the 
City of Pleasant Grove to be made “worse off.”9

Appellee appears to acknowledge (Bd. Br. 30 & n.23) that 
Busbee v. Smith, 549 F. Supp. 494 (D.D.C. 1982), aff’d mem., 
459 U.S. 1166 (1983), rejected the position it is now ad­
vancing, but it suggests that the Court should disregard that 
decision because the Court mistakenly overlooked the pos­
sibility that the voting change considered there caused 
minor retrogression in one of the two districts at issue. We 
have explained (Gov’t Opening Br. 27-28), however, that the 
appeal in Busbee was presented to this Court on precisely 
the opposite assumption, viz., that the plan at issue had no 
retrogressive purpose or effect.10 Nor did the government

9 Appellee suggests (Bd. Br. 30) that the lower court echoed City of 
Pleasant Grove when, in evaluating retrogressive purpose, it considered 
and rejected the possibility that the Board might have been motivated to 
break up black “voting blocks before they could be established” (emphasis 
omitted). This argument, we note, is impossible to square with appellee’s 
other argument— based on the same language in the district court’s 
opinion— that the district court was considering discriminatory, and not 
just retrogressive, intent when evaluating the evidence (see Bd. Br. I l ­
ls ). Moreover, the district court was expressing the view that a purpose 
to “divide and conquer the black vote” (J.S. App. 6a) might actually be a 
retrogressive purpose i f  there were evidence that other aspects o f the 
Board’s earlier voting plan permitted black political gains; but of course 
that was not so, because the previous plan was also dilutive of black votes.

10 See 549 F. Supp. at 516 (district court’s finding that “there is no 
retrogression” and thus, “technically, the voting plan does not have a 
discriminatory effect, as that term has been construed under the Voting
Rights Act” ) (citing Beer); see also Busbee, J.S. at i (question presented 
assumes no retrogressive purpose or effect); id. at 7 (arguing that the plan 
“ significantly enhanced black voting strength” in one district while “main­
taining an influential level of black voters” in the other); id. at 22 (citing 
district court finding of no retrogression).

11

argue in that case that the lower court’s decision should be 
affirmed on the alterrtAte basis that the plan ih fact had a 
retrogressive effect. Appellee’s reading of Busbee shbuld be 
rejected because “ [questions which merely lurk in the 
record are not resolved” by summary affirmances, and “no 
resolution of them may be inferred.” Illinois State Bd. of 
Elections v. Socialist Workers Party, 440 U.S. 173, 183 
(1979) (citations and internal quotation marks omitted).

d. Finally, to avoid the conclusion that Section 5 reaches 
unconstitutional, intentional vote dilution, appellee argues 
(Bd. Br. 19) that vote dilution is an inherently relative con­
cept, and so suggests that the Department of Justice, in 
concluding that the 1992 plan was dilutive, must have been 
comparing that plan to the NAACP plan.11 In determining 
whether a plan has an unconstitutional, racially discrimina­
tory purpose, however, the Justice Department does not 
simply compare it to other, possible plans; indeed, in this 
case, the Department informed the Board that it “is not 
required by Section 5 to adopt any particular plan.” J.S. 
App. 235a. Rather, the Department undertakes a fact­
intensive, case-specific analysis based on Village o f Arling­
ton Heights v. Metropolitan Housing Development Corp., 
429 U.S. 252, 265-266 (1977), of the circumstances under 
which district boundary choices have been made, to deter­
mine whether or not those choices reflect an intent to 
minimize or cancel out minority voting strength within 
particular communities. That analysis takes into account 
whether legitimate, nondiscriminatory governmental pur­
poses support the jurisdiction’s asserted reasons for select­
ing those boundary lines. And while Section 5 does place the 
burden on the covered jurisdiction to show that its plan lacks

11 In its discussion of this point, appellee introduces the novel concept 
of “ § 5 dilution,” by which it apparently means retrogression in the context 
of redistricting. See Bd. Br. 19-20.



12

a discriminatory purpose, Congress plainly did not intend 
that burden to be impossible for a covered jurisdiction to 
meet.12 I f  the covered jurisdiction puts forward evidence 
showing that its voting change is not retrogressive and 
raising no concerns under the Arlington Heights framework 
for analyzing discriminatory purpose, the voting change is 
likely to be precleared, either by the Attorney General or 
the court, at least absent other evidence.13

*2 There is no basis for appellee’s suggestion (Bd. Br. 39) that, if 
Section 5 does require the Attorney General and the preclearance court to 
consider unconstitutional purpose, then the burden should be on the 
government to show a constitutional violation. The statute places the 
burden of demonstrating the absence of discriminatory purpose on the 
jurisdiction. See City of Pleasant Grove, 479 U.S. at 479; City of Rome, 
446 U.S. at 183. Appellee’s reliance on Miller v. Johnson, 515 U.S. 900, 
916-917 (1995), is misplaced, for that case arose in the context of litigation 
by private parties challenging a districting plan as unconstitutional under 
the Fourteenth Amendment. In such constitutional litigation— as gener­
ally in civil litigation— the burden is on the plaintiff to establish all the 
elements of the cause of action to prevail. The fact that the Department of 
Justice—during the time in which it maintained that a “ clear violation” of 
Section 2 also required denial of preclearance under Section 5 (see J.S. 
App. 32a)— assumed the burden of proving a Section 2 violation (see Bd. 
Br. 39) does not suggest that the statute places on the Department the 
burden of proving a constitutional violation, and the Department has not 
previously taken the position that it has that burden. While the Depart­
ment previously believed that Beer placed on it the burden of proving a 
Section 2 violation in the Section 5 preclearance context, this Court’s 
decisions, especially City of Pleasant Grove and City of Rome, make clear 
that Section 5 places the burden of proving the absence of discriminatory 

intent on the covered jurisdiction.

13 Appellee also suggests (Bd. Br. 36-37) that Congress could not have 
authorized the Attorney General or the preclearance court to decide con­
stitutional questions in the Section 5 context and then also authorize a 
subsequent constitutional challenge to a precleared voting change. The 
Attorney General might, however, not interpose an objection for a variety 
of reasons, including the possibility that the covered jurisdiction had not 
submitted all the relevant evidence to her (as was the case with the Police

13

3. The B oard ’s D iscrim inatory In tent In  Adopting 
The 1992 Plan.

Appellee argues (Bd. Br. 12-13) that the district court did 
not rule that the purpose prong of Section 5 is limited to 
retrogressive intent, but also considered whether the Board 
had a discriminatory (but not retrogressive) intent in 
adopting the 1992 plan, and found (Bd. Br. 43-50) that no 
such discriminatory intent was present. We have explained 
that the district court’s opinion, although unclear, is better 
understood as limiting the scope of its inquiry to retro­
gressive intent. Gov’t Opening Br. 41-42. Even if the dis­
trict court did consider the question of discriminatory (but 
not retrogressive) intent, any findings that it may have made 
on that question cannot be sustained, because they were not 
made pursuant to the appropriate legal analysis, and are 
clearly erroneous in any event.

a. As we have explained (Gov’t Opening Br. 42-43), the 
district court failed to apply the analytical framework estab­
lished in Arlington Heights, 429 U.S. at 265-266, to deter­
mine whether the Board acted with a discriminatory (but not 
retrogressive) purpose. The court’s discussion of the evi­
dence under Arlington Heights related only to retrogressive 
intent, and it made only summary reference to the question 
of an otherwise discriminatory intent. Moreover, any finding

Jury’s submission of its plan, see Gov’t Opening Br. 6); the government or 
private parties might later discover evidence showing that the plan had 
been enacted with a discriminatory purpose, and pursue Section 2 or 
constitutional litigation on that basis. Further, although private parties 
are often allowed to intervene in Section 5 litigation, there is no necessity 
that they be present, and preclearance cases in the courts are often liti­
gated only against the government. By allowing a subsequent constitu­
tional challenge to be brought, even by private parties, and even after a 
voting change has been precleared, Section 5 balances the interest of the 
covered jurisdiction in implementing its voting change promptly with the 
interest of voters in being free of unconstitutional voting changes.



14

that the Board acted without a discriminatory intent is 
impossible to square with other findings of the district court, 
such as its acknowledgment that the Board was motivated 
by a “tenacious determination to maintain the status quo,” 
that the Board “departed from its normal practices,” and 
that the Board “did not welcome improvement in the posi­
tion of racial minorities.” J.S. App. 7a. At a minimum, 
therefore, a remand would be required for the district court 
to evaluate the evidence under the correct legal standard.14

b. In any event, appellee’s effort to defend the district 
court’s “ finding” falls well wide of the mark. Appellee makes 
essentially three arguments. First, it contends that the 
Board was required to adopt the Police Jury plan, and to 
reject any other plan, because of its supposed obligation to 
adopt a plan before December 31, 1992, without splitting any 
precincts. Bd. Br. 44-46. Second, it argues that the Board 
properly rejected the NAACP plan because that plan would 
have required the creation of an inordinate number of new 
precincts in order to develop majority-black districts. Bd. 
Br. 47-48. Third, it maintains that the 1992 plan did not 
dilute black voting strength. Bd. Br. 3-4 n.3, 6 n.5, 44. All 
three arguments fail.

First, the supposed need to develop a plan that would 
avoid any precinct splits could not have motivated the Board 
to adopt the Police Jury plan. The Board initially had little 
interest in adopting the Police Jury plan because that plan 
failed to respect its traditional priorities in redistricting— 
incumbency protection and location of schools in districts.

14 Appellee again suggests (Bd. Br. 14) that, when the district court 
discussed the 1992 plan’s “dilutive impact,” it must have been addressing 
discriminatory intent generally, and not just retrogressive intent, because 
it understood that this Court had used the term “dilutive impact” to refer 
to a discriminatory plan, rather than a retrogressive plan. That sugges­
tion is plainly wrong, for the reason explained in our brief in opposition to 
appellee’s motion to dismiss or affirm (at 5 n.3).

15

See Gov’t Opening Br. 36.15 But the Board’s cartographer 
Gary Joiner predicted at trial that, as a practical matter, any 
plan other than the Police Jury plan that would be, as he put 
it, “as strong as this one” (meaning the Police Jury plan) 
would require splitting precincts. See J.A. 271.16 And 
indeed, when Joiner met with the Board in September 1991, 
after the’ Police Jury had adopted its plan, he distributed 
precinct maps because, he explained, the Board would have 
to “work with the Police Jury to alter precinct lines.” J.S. 
App. 174a. Nothing in the record suggests that Joiner and 
the Board believed that they could not ask the Police Jury to 
alter precincts after December 31, 1992, or that at the time 
they believed themselves under an obligation to redistrict 
before that date (since the next Board election was not until 
1994). See id. at 172a, 173a.

Second, in criticizing the NAACP plan for requiring the 
creation of too many new precincts, appellee mistakenly

16 In an effort to avoid the effect of its stipulations that the Board was
traditionally concerned with incumbency protection (J.S. App. 171a, 172a), 
appellee suggests (Bd. Br. 48) that one member of each pair of incumbents 
placed in the same district under the Police Jury plan had “already” de­
cided not to run for reelection. The parts of the record on which appellee 
relies, however, establish only that tfne member of each pair had decided 
not to run for reelection by the time discovery was taken in 199J,— not 
when the plan was adopted in 1992. It is hardly surprising that one of 
each pair thrown together in a new district eventually decided not to 
challenge the other incumbent; but that only shows that the Police Jury 
plan in fact disserved incumbency protection, which the record as a whole 
demonstrates was one of the Board’s traditional priorities.

16 Indeed, given that there was great variation among the size of the 
precincts under the Police Jury plan, and that some of them were quite 
large (one had 5440 people) while others were quite small (one had 
72 people), it would have been very difficult, i f  not impossible, to draw 
any plan other than the Police Jury plan that would meet equal- 
apportionment requirements without breaking at least some of the 
precincts that formed the building blocks of that plan. See J.A. 497-499.



16

assumes that the relevant question is why it rejected the 
N AAC P  plan; but the pertinent question is whether it acted 
with discriminatory intent when it adopted the Police Jury 
plan, instead of (for example) exploring some other option 
that would not have minimized blacks’ electoral opportunity. 
In fact, the Board could have drawn a plan containing two 
majority-black districts with as few as 46 total precincts— 
only 3 precincts more than the number in 1990, and 10 
precincts fewer than in the Police Jury plan. J.A. 236-237. 
Furthermore, appellee significantly exaggerates both the 
number and the cost of additional precincts that would have 
been required by the NAACP plan. Appellee asserts (Bd. 
Br. 4) that the NAACP plan would have split existing pre­
cincts 65 times, but it is important to understand that this 
does not mean that 65 new precincts would have been 
created, for many areas cut out of existing precincts could 
have been consolidated with each other or with other 
precincts—an option that Louisiana law permits. J.A. 380 
(La. Rev. Stat. § 18:425.1 (West Supp. 1999)).17 * Such consoli­
dations could have addressed any significant concern about 
increased costs. The record gives no indication, moreover, 
that the Board explored the costs that would be occasioned 
by such precinct splits, or ways to alleviate them.

Finally, in an effort to wriggle out of its concession and 
stipulations to the' effect that the 1992 plan did dilute blacks’ 
voting strength in the Parish (see Gov’t Opening Br. 38-39), 
appellee argues that the record does not establish either that 
it was obvious that a reasonably compact majority-black dis­

17 For the figure of 65 precincts, appellee relies on its Exhibit 11 (J.A. 
455-496), a table that was not the subject of testimony or other explana­
tion below. On its face, the exhibit does not suggest that 65 new precincts 
would need to be created under the N A A C P  plan. The exhibit identifies 
65 precinct “cuts,” but 13 of those “cuts” contain no population, and many
others contain very small population totals. The “cuts” therefore could 
readily have been remedied by consolidation with other precincts.

r

trict could be drawn in the Parish, or that the Parish experi­
enced racially polarized voting. Both suggestions are wrong, 
even aside from the stipulations. Contrary to appellee’s 
assertion (Bd. Br. 3-4 & n.3), Board members were aware 
that blacks were concentrated in certain areas, and most 
members also knew where those areas were. J.A. 94-100, 
104-105,109-110,113-114,116-124.

In addition, while Dr. Engstrom’s report (J.A. 163-174) 
acknowledged the data limitations for doing ecological re­
gression and extreme-case analyses for most of the elections 
he analyzed (almost all of the elections involved too few pre­
cincts for a reliable ecological regression analysis and no 
precinct that was homogeneously black), that does not 
suggest that his report could not validly conclude that 
racially polarized voting exists in the Parish. A  regression 
analysis of the only interracial parish-wide race for local 
office in recent years (the 1988 primary election for the 26th 
Judicial District Court) revealed a high degree of racial 
polarization: 79.2% of black voters supported the unsuccess­
ful black candidate, while only 28.9% of white voters did so. 
J.S. App. 202a-203a; J.A. 166-167. Dr. Engstrom explained 
(J.A. 165-167) that it is appropriate to consider the results of 
parish-wide elections where, as here, many districts contain 
too few precincts to obtain reliable estimates using ecological 
regression analysis of elections held in individual districts, 
and appellee introduced no expert testimony to the contrary, 
even on remand. Moreover, Dr. Engstrom was able to con- 

- elude, by examining results in homogeneously white pre­
cincts, that, in several School Board and other elections, 
white voters did not support black candidates. J.A. 168-170, 
172-174. In fact, “ [o]f the 14 elections since 1980 in which 
black candidates [ran] against white candidates for a single­
member district or for mayor, only two candidates 
won,” and those successes were affected by a unique

17



18

circumstance, the presence of Barksdale Air Force Base. 
See J.S. App. 206a-207a; Gov’t Opening Br. 4-5 n.2.

4. Appellee’s Effort To Introduce Extra-Record 
Information.

Appellee continues to attempt to rely on extra-record 
information showing that, since the enactment of the 1992 
plan, blacks have been elected to the School Board (Bd. Br. 
5-6). Appellee was expressly offered the opportunity to 
reopen the record on remand to introduce evidence about the 
1996 elections, but expressly declined to do so. J.S. App. la. 
It should not now be allowed to avoid the consequences of 
that decision.

As the district court concluded (J.S. App. la-2a & n.l), 
without being subjected to adversary testing and placed in 
context, those election results have no probative value.18 
They have not been subjected to the expert analysis of racial 
polarization and voter turnout that was conducted regarding 
previous elections. See id. at 201a-210a. Without such close 
analysis, it is impossible to draw reliable conclusions about 
the 1996 and 1998 election results. As this Court has previ­
ously cautioned, the fact that some blacks have been elected 
does not mean that either racially polarized voting or vote 
dilution has suddenly disappeared. See Thornburg v. 
Gingles, 478 U.S. 30, 75-76 (1986). Also, “the fact that ra­
cially polarized voting is not present in one or a few individ­
ual elections does not necessarily negate the conclusion that 
the district experiences legally significant bloc voting.” Id. 
at 57. Success of a minority candidate may be attributable to 
“special circumstances, such as the absence of an opponent

18 The fundamental question is what the Board in 1992 expected and 
desired to be the consequences, for minority voting rights, of its redistrict­
ing plan. If, as the record otherwise establishes, the Board adopted that 
plan with a discriminatory purpose, the fact that its purpose may not have 
been entirely successful does not entitle it to preclearance of the plan.

19

[or] incumbency,” ibid.-, it may also be attributable to an 
effort to influence the outcome of ongoing voting-rights liti­
gation, see id. at 76 n.37.

Indeed, there is reason to believe that a full analysis 
would lead to the conclusion that such “special circum­
stances” were present in the 1998 elections of all three black 
Board Members. Our limited review of the 1998 election 
results shows that one of the successful candidates, Kenneth 
Wiggins, was first appointed by the Board in 1997 to fill a 
vacant seat (which might have been an effort to influence 
this litigation), and then won election as an incumbent in 
1998. Julian Darby and Vassie Richardson ran unopposed as 
incumbents in 1998. Darby was previously elected in 1996 
from a district that, we have explained, has historically been 
somewhat less influenced by racial polarization because of 
the presence of Barksdale Air Force Base, and his only 
opponent in the 1996 election was also black, a situation that 
is of limited utility in analysis of racially polarized voting 
patterns. In 1996, Richardson won election, in a district with 
the highest percentage of black voting-age population in the 
Parish, by only 35 votes, out of 1683 votes cast. Also, in 
three other Board elections held in 1996 and 1998, black 
candidates were defeated by white candidates.19 20 This Court

19 See Gov’t Opening Br. 4-5 n.2. The Board’s District 10 has the same 
lines as the district represented by Julian Darby’s brother, Jerome, on the 

Police Jury. See J.S. App. 196a-198a.
20 In 1996, black candidates were defeated by white candidates in run­

off elections for Districts 1 and 7 (the latter has the second-highest per­
centage of black voting age population in the Parish). In 1998, a black 
candidate was defeated by a white candidate in District 3. Also, Jerome 
Blunt, appointed by the Board in 1992 to fill a vacant seat while the Board 
was considering redistricting plans and sworn in on the day that the Board 
voted its intent to adopt the Police Jury plan, was shortly thereafter 
defeated by a white challenger in a special election. J.S. App. 179a; see id. 
at 133a-134a n.9 (Kessler, J., dissenting) (observing that Board ‘‘appointed



20

should therefore decline to draw any conclusions about 
racially polarized voting or vote dilution from the 1996 and 
1998 elections.

* * * * *

For the foregoing reasons, and for those set forth in our 
opening brief, the judgment of the district court should be 
reversed.

Respectfully submitted.

Se t h  P. W a x m a n  
Solicitor General

A p r il  1999

[Blunt] to fill a seat that they knew he would be unable to hold, hoping to 
quell the political furor over adoption of the Police Jury plan”).