Reno v. Bossier Parish School Board Brief of Appellee

    %
£

Nos. 95-1455 & 95-1508

In The

Supreme Court of the United States
October Term, 1995

--------------- ♦---------------
JANET RENO, ATTORNEY GENERAL 

OF THE UNITED STATES,
Appellant, and 

GEORGE PRICE, et al,
Appellants,

v.

BOSSIER PARISH SCHOOL BOARD,
Appellee.

--------------- ♦----------------
On Appeal From The

United States District Court 
For The District Of Columbia

--------------- «--------------------------

BRIEF OF APPELLEE BOSSIER PARISH
■----------   ♦------------

Jam es  J, T h o r n t o n  
642 Stoner Avenue 
Shreveport, LA 71101 
(318) 221-6294
M ic h a e l  P. M c D o n a l d  
H a n s  B ader  
C en ter  for

I n d iv id u a l  R ig h t  
1300 19th Street, N.W. 
Washington, D.C. 20036 
(202) 833-8400

M ic h a el  A. C arvin* 
D avid  H . T h o m pso n  
S h a w , P ittm a n , P otts 

&  T row bridge 
2300 N Street, N.W. 
Washington, D.C. 20037 
(202) 663-8000
"Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 
OR CALL COLLECT (402) 342-2831



TABLE OF CONTENTS
Page

TABLE OF CONTENTS................................................... i

STATEMENT.....................................................................  1

INTRODUCTION AND SUMMARY OF ARGUMENT . . .  6
ARGUMENT.......................................................................  8

I. There Is No Legal Basis For Importing The Results 
Standard Of Section 2 Into Section 5 .................. 8

II. The Court Below Considered All Evidence Relevant 
To Section 5 Purpose And Only Rejected Evidence 
Relevant Solely To Section 2 .................................. 27

III. The Court Below’s Factual Finding That The 
School Board Acted Without A Discriminatory Pur­
pose Is Not Clearly Erroneous................................ 39

CONCLUSION.................................................................... 50



*

C ases

Allen v. State Bd. of Elections, 393 U.S. 544 (1969 ).... 14

Anderson v. City o f Bessemer City, 470 U.S. 564
(1985)..................................................................................  40

Ansonia Bd. o f Educ. v. Philbrook, 479 U.S. 60 (1986) . . . .  22

Arizona v. Reno, 887 F. Supp. 318 (D.D.C. 1995)........... 9

Arlington Heights v. Metropolitan Hous. Dev. Corp.,
429 U.S. 252 (1977)....................................  29, 33, 36, 49

Beer v. United States, 425 U.S. 130
(1976).................................................. 9, 10, 13, 19, 20, 21

Blanchett v. Connecticut Gen. Ins. Corp., 419 U.S.
102 (1974)........................................................................... 24

Board o f Curators o f the Univ. o f Missouri v.
Horowitz, 435 U.S. 78 (1978).........................................  38

Burlington N. R.R. Co. v. Oklahoma Tax Comm’n, 481
U.S. 454 (1987).................................................................  14

Burton v. Sheheen, 793 F. Supp. 1329 (D.S.C. 1992)............ 9

Bush v. Vera, __ U.S. ___ , 116 S. Ct. 1941 (1996)
..........................................................................................passim

Chisom v. Roemer, 501 U.S. 380 (1991).....................16, 18

City of Lockhart v. United States, 460 U.S. 125
(1983).............................................................. 11, 13, 14, 25

City of Pleasant Grove v. United States, 479 U.S. 462
(1987)..................................................................................  39

ii

TABLE OF AUTHORITIES
Page

in

TABLE OF AUTHORITIES -  Continued
Page

Coastal States Marketing v. Hunt, 694 F.2d 1358 (5th 
Cir. 1983) ...........................................................................  48

Connecticut Nat’l Bank v. Germain, 503 U.S. 249
(1992)................................................................................... 15

Consumer Prod. Safety Comm'n v. GTE Sylvania,
Inc., 447 U.S. 102 (1980)............................................... 15

Davis v. Michigan Dep’t o f Treasury, 489 U.S. 803
(1989)................................................................................... 14

Edward J. DeBartolo Corp. v. Florida Gulf Coast 
Bldg. & Constr. Trades Council, 485 U.S. 568
(1988)................................................................................... 23

Freeman v. Pitts, 503 U.S. 467 (1992)................................  39

Garcia v. United States, 469 U.S. 70 (1984)...................  14

General Elec. Co. v. Gilbert, 429 U.S. 125 (1976)........ 23

Georgia v. Reno, 881 F. Supp. 7 (D.D.C. 1995).............. 9

Georgia v. United States, 411 U.S. 526 (1973)...............  13

Holder v. Hall, __  U.S. __ , 114 S. Ct. 2581
(1994)........................................................13, 14, 17, 19, 26

Johnson v. DeGrandy, __ U.S. ___ , 114 S. Ct. 2647
(1994).............................................................. 12, 27, 34, 41

Johnson v. Miller, 864 F. Supp. 1354 (S.D. Ga. 1994) . . . .  44

League of United Latin Amer. Citizens v. Clements,
999 F.2d 831 (5th Cir. 1993)...............................................  26

Lemon v. Bossier Parish School Bd., 240 F. Supp. 709 
(W.D. La. 1965), a ff’d, 370 F.2d 847 (5th Cir.
1967)............................................................................. 38



IV

Litton Fin. Printing Div. v. NLRB, 501 U.S. 190
(1991).................................................................................... 22

Magnolia Bar Ass'n v. Lee, 994 F.2d 1143 (5th Cir.),
cert, denied, 510 U.S. 994 (1993) .................................... 4

Miller v. Johnson, __  U.S. __ , 115 S. Ct. 2475
(1995)............................................................................ passim

Milliken v. Bradley, 418 U.S. 717 (1974).........................  38

Mobile v. Bolden, 446 U.S. 55 (1980).........  17, 21, 36, 38

Morris v. Gressette, 432 U.S. 491 (1977).......................... 25

Morse v. Republican Party of Va., __ U.S. ___ , 116
S. Ct. 1186 (1996)...........................................................  19

National Labor Relations Bd. v. Catholic Bishop, 440
U.S. 490 (1979).................................................................  23

New York v. United States, 874 F. Supp. 394 (D.D.C.
1994).........................................................................9, 31, 46

New York v. United States, 505 U.S. 144 (1992)...........  24

Pasadena City Bd. o f Educ. v. Spangler, 427 U.S. 424
(1976)..................................................................................  39

Patterson v. Shuman, 504 U.S. 753 (1992).......................  15

Pennhurst State School <£ Hosp. v. Halderman, 465
U.S. 89 (1984)...................................................................  24

Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989).......  24

Personnel Adm’r v. Feeney, 442 U.S. 256 (1979)...........  33

Pierce v. Underwood, 487 U.S. 552 (1988)............... 22, 24

PPX Enter., Inc. v. Audiofidelity, 746 F.2d 120 (2d 
Cir. 1984) ...................................................................

TABLE OF AUTHORITIES -  Continued
Page

48

v

Presley v. Etowah County Comm’n, 502 U.S. 491
(1992)................................................................................... 24

Public Employees Retirement Sys. v. Betts, 492 U.S.
158 (1989)...........................................................................  14

Puerto Rico Dep’t o f Consumer Affairs v. Isla Petro­
leum Corp., 485 U.S. 495 (1988)......................................  22

Pullman-Standard v. Swint, 456 U.S. 273 (1982)................  39

Reno v. Bossier Parish School Bd., __ U.S. ___ , 116
S. Ct. 1540 (1996)..............................................................5

Rogers v. Lodge, 458 U.S. 613 (1982)................. 29, 34, 35

Shaw v. Hunt, __ U .S .____116 S. Ct. 1894 (1996)
.......................................................................................... passim

Shaw v. Reno, 509 U.S. 630 (1993)........................................14

South Carolina v. Katzenbach, 383 U.S. 301 (1966)....... 25, 37

Southern Christian Leadership Conference v. Ses­
sions, 56 F.3d 1281 (11th Cir. 1995), cert, denied,
__  U.S. __ , 116 S. Ct. 704 (1996)...........................4, 5

Texas v. United States, Civ. A. No. 94-1529 (D.D.C.
Apr. 24, 1995)............................................................. 31, 32

Thornburg v. Gingles, 478 U.S. 30 (1986)...................... passim

United States v. Board of Comm’rs, 435 U.S. 110 
(1978)................................................................................... 13

Wards Cove Packing Co., Inc. v. Antonio, 490 U.S.
642 (1989)...........................................................................  42

Washington v. Davis, 426 U.S. 229 (1976)................. 20, 21

TABLE OF AUTHORITIES -  Continued
Page



VI

Watson v. Fort Worth Bank <£ Trust, 487 U.S. 977
(1988) ................................................................................  42

Westwego Citizens for Better Gov’t v. City o f West­
wego, 906 F.2d 1042 (5th Cir. 1990)..................................... 5

White v. Regester, 412 U.S. 755 (1973)............... 20, 21, 34

Will v. Michigan Dep’t of State Police, 491 U.S. 58
(1989) .................................................................................  24

S tatutes and  R ules

28 C.F.R. §§ 51.53-51.58............................................  1, 2, 23

28 U.S.C. § 2201............................................................. 24, 25

42 U.S.C. § 1971(d)............................................................... 14

42 U.S.C. § 1973b(8)............................................................. 13

42 U.S.C. § 1973c..............................................9, 14, 25, 26

Fed. R. Evid. 201 .....................................................................5

Fed. R. Evid. 401 ...................................................................37

La. Rev. Stat., tit. 18 § 1363(A).............................................45

L egislative M aterials

128 Cong. Rec. 3,841 (1982).................................  15

128 Cong. Rec. S6930 (daily ed. June 17, 1982). 16

128 Cong. Rec. 7,095 (1982).................................  15

128 Cong. Rec. 14,938 (1982)................................  16

H.R. Rep. No. 227, 97th Cong., 1st Sess. 33 (1981).. .. 15, 17

TABLE OF AUTHORITIES -  Continued
Page

vn

TABLE OF AUTHORITIES -  Continued
Page

S. Rep. No. 417, 97th Cong., 2d Sess. 12
(1982)..............................................................15, 16, 20, 21

Voting Rights Act: Hearing Before the Subcommittee 
on the Constitution of the Senate Committee on the 
Judiciary, 97th Cong., 2d Sess. 79 (1982)...................  15

O ther  A uthorities

A. Thernstrom, Whose Votes Count? (1987).....................15

Boyd & Markman, The 1982 Amendments to the Vot­
ing Rights Act: A Legislative History, 40 Wash. &
Lee L. Rev. 1347 (1983).................................................. 15

10A Wright & Miller, Federal Practice and Pro­
cedure § 2759 (1983).......................................................  25



1

STATEMENT
1. Bossier Parish is located in northwestern Louisiana, 

and, according to the 1990 Census, has a voting age popula­
tion that is 17.6% black, and an overall black population of 
20.1%. App. 2a.1 The Parish is governed by a 12-member 
Police Jury. Although no electoral district of the Police Jury 
has ever had a majority of black voters, two black candidates 
have been consistently elected since 1979 to represent a 
37.9% black district, and the current incumbent, Jerome 
Darby, was reelected without opposition in a 26.9% black 
district (District 7) under the new 1991 plan. App. 85a; App. 
2a; J.A. 55-60.

On April 30, 1991, all the members of the Police Jury, 
including the black member serving on its Reapportionment 
Committee, approved a plan containing two districts with 
substantial black populations. App. 3a. Specifically, District 
Four was 45.2% black, and District Seven was 43.9% black. 
App. 85a (1 59). The plan was submitted to the Justice 
Department on May 28, 1991, and on July 29, 1991, the 
Attorney General precleared it. The Police Jury submitted all 
materials required under the Attorney General’s Section 5 
guidelines and in no way misled the Department of Justice. 28 
C.F.R. §§ 51.53-51.58.

Given that the School Board and the Police Jury had 
shared the same district boundaries until 1980, the School 
Board approached the Police Jury to formulate a redistricting 
plan. App. 4a. The Police Jury rejected this overture. App. 
29a. State law expressly prohibited the School Board from 
changing, splitting, or consolidating the precincts established

1 In this brief, citations are to the Appendix (“App.”) filed with the 
jurisdictional statement of Janet Reno, et al., on March 11, 1996, including 
the numerous stipulations of the parties which are designated herein by 
reference to the paragraph number; to the Joint Appendix (“J.A.”) filed on 
August 1, 1996; to the transcript of the hearing of the D.C. District Court 
on April 10 and 11, 1995 (“Tr.”); to the exhibits submitted at that time by 
the appellee (“Plaintiff’s Exh”), and the appellant, Janet Reno (“U.S. 
Exh.”); and to the brief of appellant-intervenors (“A-I”).



2

by the Police Jury for the Police Jury’s 1991 redistricting 
plan. J.A. 265a-266a. It was therefore required to use those 
existing 1991 precincts as redistricting units for its own plan. 
And as the parties stipulated: “[i]t is impossible to draw, on a 
precinct level, a black-majority district in Bossier Parish 
without cutting or splitting existing precinct lines.” App. 115a 
(f 152).

Subsequently, George Price, president of the local chap­
ter of the NAACP and an appellant-intervenor in this case, 
submitted his own plan to the School Board that included two 
majority-black districts, the maximum possible number of 
such districts and roughly proportional (2/12) to the Parish’s 
black population. App. 6a. The plan was drawn by William 
Cooper, of the American Civil Liberties Union, Testimony of 
W. Cooper at 1, for the exclusive purpose of “creating] two 
majority black districts,” J.A. 260, wholly without regard to 
precinct boundaries. The NAACP plan subordinates tradi­
tional redistricting principles, such as compactness and 
respect for the political boundaries of towns, the Police Jury 
districts and precincts. A district court in a related case said 
of a modified, “improved” version of the NAACP plan, that it 
“most nearly resembles an octopus as it stretches out to the 
nooks and crannies of the parish in order to collect enough 
black voting age population to create not one, but two, major­
ity black districts in Bossier.” J.A. 38. Although the Board’s 
plan, like all prior redistricting plans, preserves all town lines 
outside of Bossier City in the Parish, the NAACP plan splits 
the boundaries for all three. Plaintiff’s Trial Exh. 11 (second, 
eighth and twelfth pages of the Exhibit).2

In direct contravention of Louisiana law, the NAACP 
plan split 46 precincts, 65 times. Plaintiff’s Exh. 11, pp. 1-26; 
App. 29a. (Some of the precincts suffered more than a single 
split; thus requiring that they become three or more new 
precincts.) Of these, 17 precincts would have had less than 20 
people in them. Plaintiff’s Exh. 11, pp. 1-26. The Parish’s 
district attorney and cartographer advised the Board, at the

2 This exhibit has been lodged with the Court.

3

September 3, 1992 meeting where the NAACP plan was 
presented that its massive number of precinct splits violated 
state law, and then it was rejected as a viable redistricting 
alternative. App. 6a; App. 99a (1 102). The School Board 
shortly thereafter on September 17, 1992, adopted the Police 
Jury plan that already had been precleared. App. 7a. At the 
September 3, 1992 meeting, the School Board also responded 
to NAACP concerns by granting its request that a black be 
appointed to the vacant seat on the Board. App. 30a.

Although it had precleared the identical Police Jury plan 
in 1991, and although there was no retrogression of minority 
voting strength of the School Board plan precleared in the 
1980’s, the Justice Department objected under Section 5 to 
the School Board plan on August 30, 1993. The Attorney 
General found a discriminatory “purpose” because, although 
“state law prohibits” the NAACP “alternative plan” from 
legally being adopted, this did not “necessarily” foreclose 
adoption of the maximization alternative. App. 156a. (School 
Board “is not free to adopt a plan that unnecessarily limits the 
opportunity for minority voters. . . . ”) (emphasis added).

The NAACP plan’s subordination of basic districting 
principles was done solely in order to replace a plan with two 
districts having a black population of 44% and 47%, with a 
plan that had two black majority districts. Yet this creation of 
such “safe” black districts was wholly unnecessary to provide 
black voters with a “viable” opportunity to elect their prefer­
red candidates. There is no competent evidence of racial bloc 
voting in any, local Bossier Parish elections, and the “foresee­
able impact” (and actual result) of the Board’s plan was that 
two black candidates would be elected to the Board. Speci­
fically, the Justice Department’s own expert was concededly 
unable to find any racial bloc voting in any election for any 
Bossier Parish office, pursuant to either the “extreme case 
analysis [or] bivariate ecological regression analysis” 
endorsed by the Gingles plurality opinion. Thornburg v. Gin- 
gles, 478 U.S. 30, 52-53 (1986); J.A. at 115-21. The only 
election where racial bloc voting was found was one “exog­
enous” state judicial race (held not just in Bossier Parish), 
which obviously reflects different voting patterns than those



4

for local representative office. J.A. 113-15.3 Even in this 
single race, the “racial polarization” led to the black candi­
date receiving 35.7% of the vote in a parish with a 17.6% 
black voting age population, a difference of 18.1%. J.A. 57.

Moreover, even absent such sophisticated evidence, the 
raw election results themselves demonstrate that white bloc 
voting, assuming it exists at all, is not sufficient to “usually” 
defeat black preferred candidates. Gingles, 478 U.S. at 49. 
Two different black candidates have been consistently elected 
in a 37.9% (and 27.9% in 1991) black Police Jury district 
since 1979, a black candidate defeated a white opponent in a 
run-off in a 25.6% district for the Bossier City Council and 
black aldermen have been elected in three of the Parish’s 
towns, one of whom was elected at-large in a town (Haugh- 
ton) with a 30.1% black population. J.A. 55-59. In total, of 
the 14 “black against white” elections held in Bossier Parish 
jurisdictions with black populations of between 18% and 43% 
before the School Board adopted its plan, black candidates 
who even arguably had black voter support won six, or 43%, 
of the elections. J.A. 55-59. Of the two School Board races 
analyzed, the black candidates running against a long-stand­
ing white incumbent in a 30.1% black district lost by 59 and 
65 votes, respectively, and the United States expert found no 
statistically significant racial bloc voting in these races. J.A. 
57, 59, 116-17; direct Testimony of Jeff Darby at 3; direct 
Testimony of Johnny Gipson at 2. Since black candidates 
were elected in districts and towns ranging from 25.6% to 
37.9% black populations, two different School Board candi­
dates received approximately 50% of the vote against the 
white incumbent in a 30.1% black district, and the one 
“racially polarized” exogenous election provided the black 
candidate with 18.1% higher vote tally than the black voting 
age population, it is clear, even without the concessions of the

3 See, e.g., Southern Christian Leadership Conference v. Sessions, 56
F.3d 1281,1293 (11th Cir. 1995), cert, denied___ U.S.___ 116 S. Ct. 704
(1996); Magnolia Bar Ass'n v. Lee, 994 F.2d 1143, 1149 (5th Cir.), cert, 
denied, 510 U.S. 994 (1993).

5

United States voting rights expert, that a plan with two 
districts with black percentages in the mid-40s would provide 
black voters with a viable opportunity to elect black candi­
dates of their choice. The Court need not speculate about this, 
however, because, as the appellant-intervenors admit, when 
elections were held under the Board’s “intentionally discrimi­
natory” plan in 1994, two black candidates were elected to the 
Board, one of them from a 26.7% black district.4

Bossier Parish successfully brought a declaratory judg­
ment action in the three-judge District of Columbia court to 
obtain preclearance under Section 5. The district court 
rejected the appellants’ argument that a Section 2 violation 
affords grounds for denying preclearance under Section 5.

4 Appellant-intervenors concede that the elections resulted in two 
black candidates being placed on the School Board, but argue, relying on 
this Court’s denial of the Motion to Supplement the Record, that such 
“evidence of events that occurred after the Board’s decision cannot 
illuminate its intent at the time it made the decision.” Intervenor-
Appellants’ Br. 6 n.2. See Reno v. Bossier Parish School Bd.,___U.S.
___i 116 S. Ct. 1540 (1996). This is an odd contention since both
appellants relied heavily on 1993 elections and events (the disbanding of 
the new “bi-racial committee”) which occurred “after the Board’s 
decision.” However that may be, the most recent elections are relevant to 
show the absence of any racial bloc voting or potential “results,” and to 
refute the appellants’ erroneous assertion that “the School Board adopted a 
plan ‘which guarantees that blacks would remain underrepresented on the 
Board.’ ” U.S. Br. 19 (quoting App. 41a (quoting City of Port Arthur v. 
United States, 517 F. Supp. 987, 1022 (D.D.C. 1981)) (emphasis added)). 
Moreover, it is well established that a court may take judicial notice of any 
fact that is not subject to reasonable dispute and is capable of accurate and 
ready determination. See, e.g., Fed. R. Evid. 201. Accordingly, appellate 
courts have routinely taken judicial notice of post-trial elections in voting 
rights cases given their clear relevance to the proceedings. See, e.g., 
Southern Christian Leadership Conference v. Sessions, 56 F.3d at 1288 
n. 13; Westwego Citizens for Better Gov’t v. City of Westwego, 906 F.2d 
1042, 1045 (5th Cir. 1990) (noting that “given the long term nature and 
extreme costs necessarily associated with voting rights cases, it is 
appropriate to take into account elections occurring subsequent to trial.”) 
(footnote omitted).



6

App. 11 a-12a. In two sentences of its 61-page post-trial brief, 
the United States (but not the intervenor-appellants) argued 
that, even if Section 2 is not properly before the court, the 
court should nevertheless consider and rule upon “all the 
evidence . . . demonstrating how clear the Section 2 violation 
is.” U.S. Post-Trial Br. 36. The court was to engage in this 
inquiry because, if the court found a Section 2 violation, it 
could use the “School Board’s . . . awareness that the pro­
posed plan might violate Section 2” to conclude that the 
Board had a “discriminatory purpose in adopting the proposed 
plan.” The district court refused to conduct “full-blown Sec­
tion 2 litigation” in a Section 5 purpose case and thus refused 
to consider “evidence relevant only to the section 2 viola­
tion.” App. 23a; App. 9a n.6 (emphasis added). The court then 
found an absence of discriminatory purpose. Although the 
district court discounted some of the reasons advanced by the 
Parish, because they were not the “real reasons,” it was 
“satisfied” that two reasons were, in fact, “legitimate” -  
“guaranteed preclearance” and “the absence of precinct 
splits.” App. 27a-28a. The dissenting opinion, although agree­
ing that Section 2 could not be imported into Section 5, 
disagreed with the lower court’s discriminatory purpose anal­
ysis, for essentially the reasons outlined by appellants in this 
Court.

INTRODUCTION AND SUMMARY OF ARGUMENT
Throughout the 1990’s redistricting cycle, the Justice 

Department extended and distorted its uniquely intrusive Sec­
tion 5 powers to invalidate ameliorative redistricting plans, if 
they were chosen in preference to alternative plans that con­
sciously subordinated traditional districting principles for the 
avowed purpose of maximizing the number of majority- 
minority districts. The Department has done this principally 
by finding a failure to adopt the maximizing alternative 
reflected a racial purpose, even though such alternatives were 
objectively inferior pursuant to nonracial districting princi­
ples, or by invoking Section 2 “results,” which the Depart­
ment interprets to require selection of the maximizing

7

alternative regardless of its adherence to traditional district­
ing principles. In short, the Department has sought to convert 
the benchmark for measuring Section 5 “effect” -  the preex­
isting system -  into the benchmark for initially assessing 
Section 2 “result” -  the race-conscious maximizing alterna­
tive — and found Section 5 violations for failure to adopt the 
maximizing alternative, either directly by holding that the 
failure to maximize constitutes a proscribed Section 2 
“result,” or indirectly by finding that such a “failure” reflects 
a discriminatory purpose, as supplemented by Section 2 evi­
dence of racial bloc voting and historical discrimination.

In its racial gerrymander cases of the past two Terms, the 
Court has expressly rejected any such understanding of Sec­
tion 5 or Section 2, and otherwise prohibited interpreting 
federal law to require the unconstitutional action of adopting 
a race-conscious maximization plan that subordinates tradi­
tional districting principles. Specifically, the Court has 
explicitly rejected the notion that a Section 5 “purpose” may 
be inferred from adopting a plan that more closely adheres to 
traditional districting principles than the proposed maximiz­
ing alternative and rejected the notion that Section 5 pre­
clearance can be premised on a finding that the state’s 
redistricting plan violates Section 2, particularly if the pur­
ported Section 2 violation is the failure to adopt a maximizing 
alternative. Moreover, in keeping with its decision that a 
Section 2 violation cannot establish Section 5 purpose, this 
Court has expressly held the Justice Department’s “purpose” 
findings “insupportable,” without examining any of the Sec­
tion 2 evidence concerning racial bloc voting and historical 
discrimination that the Department urged upon it as relevant 
to this issue.

Notwithstanding appellants’ efforts to wholly distort the 
opinion below, the district court here articulated and engaged 
in precisely the same analysis employed in those cases. The 
court found no proscribed purpose, which is plainly correct 
because all the Board did here was choose a nonretrogressive 
plan identical to one that had been precleared by the Justice 
Department a year earlier and rejected a race-conscious maxi­
mizing alternative that is demonstrably inferior with respect



8

to a host of traditional districting principles, primarily 
because it split 46 of 56 existing precincts, blit also with 
respect to compactness and maintenance of existing municipal 
and district boundaries. The court also correctly concluded 
that, since Congress did not amend Section 5 in 1982 and 
since the 1982 legislative history also uniformly makes clear 
that Congress universally understood that Section 5 prohibits 
only purposeful or retrogressive changes, preclearance cannot 
be denied to a benign, nonretrogressive change regardless of 
any unintended Section 2 “result” on minority voters. Having 
so ruled, the court necessarily also rejected the Justice 
Department’s fail-back argument that it should consider all 
Section 2 evidence, such as racial bloc voting, that is 
expressly designed to show that rejection of the maximizing 
alternative has such a “result,” but inherently can say nothing 
about the reason for rejecting such alternatives. Although 
appellants desperately attempt to mislead the Court into 
believing otherwise, this was the only such “Section 2 evi­
dence” rejected by the district court; it manifestly did not 
reject evidence that was actually probative of the Board’s 
purpose simply because that evidence might also be relevant 
to a Section 2 inquiry. This is made crystal clear by the 
court’s explicit description of “Section 2 evidence” as that 
“evidence relevant only to the section 2 inquiry” and further 
confirmed by every statement and citation in the opinion 
below.

ARGUMENT
I. There Is No Legal Basis For Importing The Results 

Standard Of Section 2 Into Section 5
Section 5 of the Voting Rights Act imposes a uniquely 

severe burden on states seeking to operate their electoral sys­
tems and enforce their laws. In a reversal of all basic principles 
of federalism, and all normal presumptions of civil litigation, 
Section 5 invalidates all otherwise proper local voting laws and 
practices “unless and until” the submitting jurisdiction proves 
that it has satisfied the substantive requirements of Section 5 to 
either a District of Columbia three-judge court or the Attorney

9

General. Section 5, however, does at least set forth with some 
specificity the substantive standard that covered jurisdictions 
must satisfy to lift this burden, and the scope of the declaratory 
judgments the three-judge court is authorized to issue; i.e., a 
“declaratory judgment that such [changed voting] qualifica­
tion . . . 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. It is well-established that the 
effect’ prong of the Section 5 reaches only changes causing 

retrogression in minority voting strength from what existed 
under the status quo ante. Beer v. United States, 425 US 130 
141 (1976).

Notwithstanding this plain and unequivocal language, 
appellants seek to erect yet another obstacle under Section 5 to 
implementing a voting change: a declaratory judgment that the 
change does not violate Section 2 of the Act by creating a 
discriminatory “result.” Although the United States does not 
dispute that Section 5 itself proscribes only voting changes 
with a discriminatory purpose or retrogressive effect, they 
argue that the three-judge court (and the Attorney General) 
nevertheless has the equitable authority -  indeed, duty -  to 
enjoin changes free from such defects, but violative of Section 
2, because Beer and Section 2’s legislative history “authorize” 
such objections. This argument is simply lawless in the most 
literal sense — it seeks to have the judiciary erect a substantive 
prohibition on state governments that can be found nowhere in 
the laws passed by Congress. This Court, of course, is not free 
to draft its own statutes, and no amount of legislative history or 
administrative interpretation can so empower it. It is little 
wonder that the United States’ argument has been rejected out 
of hand by every lower federal court to pass on it5 and is 
irreconcilable with this Court’s binding precedent.

5 Arizona v. Reno, 887 F. Supp. 318, 320-21 (D.D.C. 1995); Georgia 
v. Reno, 881 F. Supp. 7, 12 (D.D.C. 1995); New York v. United States, 874 
R Supp. 394, 397-98 (D.D.C. 1994); Burton v. Sheheen, 793 F. Supp 1329 
1351-52 (D.S.C. 1992).



10

1. The short, and complete, answer to appellants’ argu­
ment is that this Court, in just the past two Terms, has already 
squarely rejected the notion that a Section 5 objection can be 
premised on any grounds other than an invidious purpose or 
retrogressive effect. Indeed, these cases resolve the precise 
question here by holding that Section 5 affords no basis for 
objecting to a redistricting plan because it failed to create 
additional “safe” minority districts, unless that failure was
motivated by an invidious purpose. In Miller v. Johnson,__
U.S. __ , 115 S. Ct. 2475 (1995), the United States argued
that race-conscious redistricting was warranted to prevent a 
violation of Section 5. 115 S. Ct. at 2491-92. There, as here, 
the alleged Section 5 violation was that a political jurisdiction 
with racially polarized voting and historical discrimination 
had failed to create a sufficient number of “reasonably” com­
pact majority-minority districts. Id. In response, the Miller 
Court squarely rejected this possible Section 5 defense 
because “[ajmeliorative changes, even if they fall short of 
what might be accomplished in terms of increasing minority 
representation, cannot be found to violate section 5 unless 
they so discriminate on the basis of race or color as to violate 
the Constitution.” Id. at 2492 (quoting Days, Section 5 and 
the Role o f the Justice Department, and B. Grofman & C.P. 
Davidson, Controversies in Minority Voting 56 (1992)). The 
“State’s policy of adhering to other districting principles 
instead of creating as many majority-minority districts as 
possible does not support an inference that the plan ‘so 
discriminates on the basis of race or color as to violate the 
Constitution,’ and thus cannot provide any basis under § 5 for 
the Justice Department’s objection.” Id. at 2492 (quoting 
Beer, 425 U.S. at 141) (emphasis added). The Court rejected 
the Justice Department’s contrary interpretation as an “insup­
portable” expansion of “its authority under the statute beyond 
what Congress intended” that raised “troubling and difficult 
constitutional questions.” Miller, 115 S. Ct. at 2492-93. 
Accordingly, the Miller Court squarely held that a Section 5 
objection was warranted only if a redistricting change is 
retrogressive or has a discriminatory purpose sufficient to 
violate the Constitution.

11

The Court reaffirmed this holding just last Term in 
another case remarkably similar to the instant one, Shaw v.
Hunt, __ U .S .____116 S. Ct. 1894 (1996) (“Shaw II’’). In
that case, the district court and Justice Department argued that 
race-conscious redistricting was appropriate because it was 
necessary to avoid both a Section 2 and a Section 5 violation. 
This Court again found that the Justice Department’s “maxim­
ization policy” of requiring an additional black majority dis­
trict “is not properly grounded in § 5 and the Department’s 
authority thereunder.” 116 S. Ct. at 1904. “Here once again 
we . . . find that creating an additional majority-black district 
was not required under a correct reading of § 5” because the 
nonretrogressive redistricting plan did not violate “the pur­
pose prong of § 5” and thus “cannot violate § 5.” Id. at 1903.

Of particular relevance, in Shaw II, the “United States 
attempted] to distinguish this case from Miller” by pointing 
to the North Carolina State “legislature’s determination that it 
may be susceptible to a § 2 challenge” -  an issue that had not 
been directly addressed in Miller. Shaw II, 116 S. Ct. at 1904 
n.6. The Court rejected this understanding of Section 5 and 
Miller because “we doubt that a showing of discriminatory 
effect under § 2, alone, could support a claim of discrimina­
tory purpose under § 5.” Id. Accord Bush v. Vera, __  U.S.
__ , 116 S. Ct. 1941, 1963 (1996) (race-conscious redistrict­
ing not justified by “state[’s] interest in complying with VRA 
§ 5” because the “State went beyond what was reasonably 
necessary to avoid retrogression”); City o f Lockhart v. United 
States, 460 U.S. 125, 134 (1983) (“Since the new plan did not 
increase the degree of discrimination against blacks, it was 
entitled to § 5 preclearance.”) (emphasis added).

In this case, the United States again seeks to distinguish 
Miller (although not Shaw II) on the ground that “Miller did 
not address the issue whether preclearance should be withheld 
on the basis of a Section 2 violation. . . . ” U.S. Br. 43-44. But 
this is indistinguishable from the argument -  squarely 
rejected in Shaw -  that a Section 2 “results” violation could 
justify finding a Section 5 violation. Moreover, even if the 
Court had not already specifically rejected this particular 
variation on the United States’ consistent “maximization”



12

theme, it eertainly has squarely held that there is not “any 
basis under § 5 for [an] . . . objection” except discriminatory 
purpose or retrogressive effect. Miller, 115 S. Ct. at 2492. See 
Shaw II, 116 S. Ct. at 1904 (voting change “cannot violate § 5 
unless [there is discriminatory purpose]”) (quoting Miller, 
115 at 2492).

Moreover, the United States defines a “§ 2 violation,” as a 
situation “where racially-polarized voting deprives minority 
voters of an equal opportunity to elect their chosen candidates, 
and it is possible to create ‘more than the existing number of 
reasonably compact districts with a sufficiently large minority 
population to elect candidates of their choice.’ ” U.S. Br. 44
(quoting Johnson v. De Grandy,__ U .S.___ , 114 S. Ct. 2647,
2655 (1994)). The United States boldly asserts that “Miller 
did not hold that preclearance must be granted in the face of 
[such a § 2 violation].” Id. But, of course, Miller did precisely 
and unequivocally hold that “§ 5 cannot be violated” simply 
by showing that a racially polarized political jurisdiction did 
not “create” a “possible” majority-minority district: “In utiliz­
ing § 5 to require States to create majority-minority districts 
wherever possible, the Department of Justice expanded its 
authority under the Statute beyond what Congress intended 
and we have upheld.” 115 S. Ct. at 2493. To be sure, in 
Miller, as here, the United States specific argument was that 
the failure to maximize constituted discriminatory purpose, 
rather than a § 2 discriminatory result. See Department of 
Justice Letter of Aug. 30, 1993, App. 154a, App. 156a-157a. 
Nevertheless, Miller rejected any such maximization policy as 
“far removed” from any proper (and constitutional) under­
standing of Section 5. Id. at 2493. If it is an unjustified 
distortion of Section 5 to interpret its language as requiring 
maximization, it is obviously an even greater distortion to 
require such maximization by importing Section 2 into Sec­
tion 5, without any basis for doing so in the statutory text. 
And, as noted, Shaw II rejected any such misinterpretation of 
Miller's holding. See also Shaw II, 116 S. Ct. at 1904 (“Fail­
ure to maximize cannot be the measure of § 2.”) (quoting 
Johnson, 114 S. Ct. at 2660).

13

But even assuming that the lower court’s understanding 
of Section 5’s scope is not mandated by "stare decisis, espe­
cially in such sensitive political contexts as the present,” 
Vera, 116 S. Ct. at 1964, it is, as we presently show, certainly 
required by any rational principle of statutory construction.

2. When Section 2 was amended in 1982 to incorporate 
the “results” standard, the life of Section 5 was also extended 
for another 25 years. 42 U.S.C. § 1973b(8). Other than this 
extension, however, neither the substantive language nor any 
other provision of Section 5 was amended in any way. As 
noted, it was well established in 1982, pursuant to this Court’s 
1976 decision in Beer, that Section 5 “effects” reached only 
changes which caused a retrogression of minority voting 
strength. Beer v. United States, 425 U.S. at 141 (“[TJhe 
purpose of § 5 has always been to insure that no voting- 
procedure changes would be made that would lead to a retro­
gression in the position of racial minorities with respect to 
their effective exercise of the electoral franchise.”); City of 
Lockhart v. United States, 460 U.S. at 134 (quoting Beer). As 
the United States correctly notes, it is a well-established 
canon of statutory construction, particularly for the Voting 
Rights Act, that congressional reenactment of a statute with­
out change incorporates this Court’s prior interpretations of 
the statute. United States v. Board of Comm'rs, 435 U.S. 110, 
134 (1978); Georgia v. United States, 411 U.S. 526, 533 
(1973) (“After extensive deliberations in 1970 on bills to 
extend the Voting Rights Act, during which the Allen case was 
repeatedly discussed, the Act was extended for five years, 
without any substantive modification of § 5.”)

Moreover, since 1982 this Court has repeatedly recog­
nized that the substantive scope of Section 5 and Section 2 are 
markedly different, because Section 5 has a much more “lim­
ited substantive goal.” Bush v. Vera, 116 S. Ct. at 1963. See
Holder v. Hall, __  U.S. __ , 114 S. Ct. 2581, 2587 (1994)
(“[T]he two sections differ in structure, purpose and applica­
tion.”); Miller, 115 S. Ct. at 2493 (Section 5’s goal is 
“ ‘freezing election procedures in the covered areas unless the 
changes can be shown to be non-discriminatory.’ ”) (quoting 
Beer v. United States, 425 U.S. at 140). Specifically, the



14

Court has consistently ruled that “effect” means only “retro­
gression.”6 Accordingly, it is even clearer now than it was in 
1982 that the effect prong of Section 5 invalidates only new 
voting changes that “increase the degree of discrimination 
against blacks [or other minorities].” City of Lockhart, 460 
U.S. at 134. Plainly it does not reach changes that simply fail 
to improve minority voting strength or otherwise embody the 
“results” standard of Section 2.

Moreover, no language in Section 5 cross-references Sec­
tion 2, no language anywhere in the Voting Rights Act incor­
porates Section 2 into Section 5 or otherwise implies that 
Section 2’s substantive standards govern Section 5 determina­
tions. Nor are Section 5 courts granted jurisdiction to address 
Section 2 challenges. To the contrary, the authority and juris­
diction of the three-judge court in the District of Columbia is 
strictly limited to issuing a declaratory judgment on whether 
the voting change has a discriminatory purpose or retrogres­
sive effect. 42 U.S.C. § 1973c.7 Conversely, the three-judge 
district court simply has no subject matter jurisdiction over 
Section 2 claims; that jurisdiction is vested exclusively in the 
typical “district courts of the United States.” 42 U.S.C. 
§ 1971(d). Accordingly, regardless of what the legislative 
history contains, there is no basis for distorting or amending 
the “plain meaning” of the language enacted into law.8

6 Miller, 115 S. Ct. at 2493; Shaw II, 116 S. Ct. at 1904; Shaw v. 
Reno, 509 U.S. 630, 654 (1993). See also Holder, 114 S. Ct. at 2587 
(opinion of Kennedy, J.) (benchmark for measuring § 5 effect, but not § 2 
result, is the “existing voting practice”); id. at 2589 (O’Connor, J., 
concurring) (same); City of Lockhart, 460 U.S. at 134 (The aim of “Section 
5 was to prohibit only retrogressive changes.”).

7 City of Lockhart, 460 U.S. at 129 n.3. (Under Section 5, the issues 
to be decided by a three-judge court are strictly limited.); Allen v. State Bd. 
of Elections, 393 U.S. 544, 561-62 (1969).

8 “Legislative history is irrelevant to the interpretation of an 
unambiguous statute.” Davis v. Michigan Dep't of Treasury, 489 U.S. 803,
808 n.3 (1989). Public Employees Retirement Sys. v. Betts, 492 U.S. 158,
172 (1989); Burlington N. R.R. Co. v. Oklahoma Tax Comm’n, 481 U.S. 
454, 461 (1987); Garcia v. United States, 469 U.S. 70, 76 n.3 (1984);

15

We nevertheless note that the legislative history uni­
formly reflects a universal understanding that the language of 
Section 5 prohibits only changes with a discriminatory pur­
pose or retrogressive effect. First, every expression of con­
gressional intent confirms that Congress understood that it 
was simply “extend[ingj the present coverage” of Section 5. 
S. Rep. No. 417, 97th Cong., 2d Sess. 2 (1982) (“S. Rep.”) 
(emphasis added). See id. at 7 (“Congress has decided to 
retain Section 5.”). See also H.R. Rep. No. 227, 97th Cong., 
1st Sess. 1 (objective of 1982 Act is “to extend continuously 
[Section 5]”) (1981) (“House Rep.”). Indeed, as the commen­
tators have noted, not one witness at the Senate or House 
Subcommittee Hearings in 1982 discussed changing Section 5 
or otherwise suggested that changes to Section 5’s pre­
clearance standard were needed.9 Even the two representa­
tives who desired that a Section 5 objection be premised on a 
Section 2 violation clearly stated their understanding that the 
“effect” prong of Section 5 reached only “retrogression” and 
that it differed from Section 2 “results.”10 The legislative 
history otherwise confirms congressional awareness of the

Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 119 
(1980); Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-254 (1992); 
Patterson v. Shuman, 504 U.S. 753, 760 (1992).

9 See A. Thernstrom, Whose Votes Count? 300-01 n.10 (1987); Boyd 
& Markman, The 1982 Amendments to the Voting Rights Act: A Legislative 
History, 40 Wash. & Lee L. Rev. 1347, 1420-21 n.365 (1983). Voting 
Rights Act: Hearings Before the Subcommittee on the Constitution of the 
Senate Comm, on the Judiciary, 97th Cong., 2d Sess. 79-80 (1982).

10 Senator Kennedy: “As mentioned in this report, the section 2
standard is not the same as the section 5 standard. This means not only that 
section 2 is governed by the totality of the circumstances factors, but it also 
means that the retrogression requirement of Beer against United States 
does not apply to section 2 cases -  although of course, such a retrogression 
would be relevant evidence in section 2 case.” 128 Cong. Rec. 7,095 
(1982) (emphasis added). 128 Cong. Rec. 3,841 (statement of 
Representative Sensenbrenner) (same).



16

obvious differences between the Section 2 “results” standard 
and the Section 5 “effects” standard.11

Thus, even assuming a statute can be amended while its 
language remains wholly unaltered, Congress’ deliberate and 
conscious preservation of an existing preclearance process 
that unequivocally did not reach nonretrogressive discrimina­
tory results is irreconcilable with the conclusion that the 1982 
Amendments were intended to inject such a results standard 
into the Section 5 preclearance process. This truism was made 
explicit in colloquies between one of the principal sponsors of 
the Act, Representative Edwards, and two of his colleagues, 
after the Senate Report had been written.12 Accordingly, 
under any theory of statutory interpretation, there is no basis 
for interpreting Section 5 to reach Section 2 results.13

11 2 Senate Hearings 80 (Sen. Dole) (“The Section 5 effects test is 
different from the results test of White v. Regester.")-, S. Rep. at 68; 128 
Cong. Rec. S6930-31 (daily cd. June 17, 1982) (remarks of Sen. 
DeConcini); 1 Senate Hearings 89 (Attorney General Smith); 1 Senate 
Hearings 671 (Sen. Hatch); 1 Senate Hearings 1689 (W. B. Reynolds).

12 Mr. LEVITAS. . . . I . . . inquire of the gentlemen from 
California whether there is any portion of this legislation that 
changes section 5 of the act, of the Voting Rights Act, or 
changes the tests contained therein. Does it or does it not affect 
section 5?
Mr. EDWARDS of California. If the gentleman will yield, I 
believe the gentleman is referring to pre-clearance, section 5.
Mr. LEVITAS. That is right.
Mr. EDWARDS of California. No change was made.
Mr. FOWLER. .. . [IIs it true that the proposed amendments 
sent over by the other body [Senate] do not change in any way 
section 4 of the current Voting Rights Act?
Mr. EDWARDS of California. That is correct; the 
preclearance provisions are not changed.

128 Cong. Rec. 14,938 (1982) (emphasis in original).

13 See Chisom v. Roemer, 501 U.S. 380, 396 (1991) (“[W]e are 
convinced that if Congress had such an intent, Congress would have made
it explicit in the statute, or at least some of the Members would have

17

Incredibly, neither appellant takes issue with any of the 
foregoing. Neither appellant seriously argues that the effects 
(or purpose) prong of Section 5 can be interpreted to prohibit 
(benign) nonretrogressive changes. They do not seek to have 
this Court overturn its consistent holdings, before and after 
1982, that “effect” means only “retrogression.” They do not 
and cannot cite any legislative history or any administrative 
interpretations suggesting that Section 5’s “effect” or “pur­
pose” invalidate an “ameliorative” change because of a pro­
scribed Section 2 “result.”14

identified or mentioned it at some point in the unusually extensive 
legislative history of the 1982 amendment.”); Holder, 114 S. Ct. at 2629 
(Stevens, J. dissenting) (“When a statute has been authoritatively, 
repeatedly, and consistently construed for more than a quarter century, and 
when Congress has reenacted and extended the statute several times with 
full awareness of that construction, judges have an especially clear 
obligation to obey settled law.”).

14 According to the United States, a statement in the House 
Committee Report articulating the rationale for amending Section 2 to 
remove the “purpose” requirement, indicates that a Section 2 violation 
should result in the denial of preclearance under Section 5. U.S. Br. 38 
(quoting House Rep.). Even when taken out of context, however, that 
passage does not say anything about Section 5, about Section 5 courts or 
about those courts’ ability to entertain Section 2 claims. Of course, if the 
passage did say that Congress was amending Section 2 to make its 
prohibitions coextensive with Section 5, then Section 2 would prohibit only 
“retrogression.” We doubt the United States would accept this result, even 
though they elsewhere insist that it would be “anomalous” for Section 5 
and Section 2 to have different standards. When restored to its context, the 
quoted passage simply advances the primary rationale for why Congress 
should overturn Mobile v. Bolden, 446 U.S. 55 (1980) and adopt a non- 
“purpose” standard for Section 2, as the immediately following paragraphs 
make clear. See, e.g., House Rep. at 29 (“applying a ‘purpose’ standard 
under Section 2 while applying a ‘purpose or effect’ standard under the 
other sections of the Act would frustrate the basic policies of the Act.”). 
But this does not suggest that the non-“intent” standard adopted for Section 
2 would be identical to the Section 5 “effect” standard and, much more 
important, there is absolutely no suggestion that Congress was modifying 
in any way the Section 5 “effect” standard to track Section 2. In this regard,



18

Rather, they make the astonishing argument that a change 
can be denied preclearance under Section 5 even if it satisfies 
Section 5. In support of this non sequitur, they point to 
legislative history and administrative interpretations which, 
they claim, “authorize” Section 5 objections for actions which 
Section 5 does not prohibit, but Section 2 does. While we deal 
with the specifics of those arguments below, the dispositive, 
and seemingly obvious, point is that a court cannot object 
under Section 5 unless it can interpret Section 5 to prohibit 
the proposed voting change.

the most that can be gleaned from the House Report is that Congress 
thought that there would be gap in the Voting Rights Act’s protections if 
Section 5 imposed a more difficult legal standard on states that Section 2 
imposes. If that were the case, then discriminatory voting procedures 
would be illegal only if they were changed and triggered Section 5 
coverage, but precisely the same practices would be immune from Section 
5 or Section 2 challenge if they were “either [unchanged since] 1965 or 
because they arise in jurisdictions not covered by Section 5.” Id. at 28. Cf. 
Chisom v. Roemer, 501 U.S. at 401. But there is no such gap if Section 5 
imposes a less onerous standard than Section 2, because voting procedures 
which satisfy Section 5 can nonetheless be challenged under the generally 
applicable Section 2. Finally, as this Court has already carefully described, 
the House Report was describing a predecessor version of the Section 2 law 
rather than that ultimately enacted, which contained only a subsection (a) 
simply “provid[ing] that proof of discriminatory intent is no longer 
necessary.” Chisom, 501 U.S. at 395. It was only in the Senate, after 
“Senator Robert Dole’s compromise,” that a subsection (b) was added to 
“provide guidance about how the results test is to be applied.” Id. at 399 
n.26, 395. As Senator Dole made clear, “an added benefit of the 
compromise is that it makes clear that the White approach should apply by 
directly codifying language from that decision in Section 2,” which helped 
because the “House report. . . was ambiguous as to whether to the White 
test or the Section 5 effects test should apply.” 2 Senate Hearings 80. 
Again, while there may have been ambiguity about how closely the new 
Section 2 results test would follow the existing Section 5 effects standard, 
no one suggested that the Section 5 standard was being modified or 
expanded to encompass Section 2 results. As noted, this point was made 
explicit by the Edwards-Levitas colloquy when the Senate Bill, with the 
new subsection (b), was returned to the House.

19

If no federal law invalidates Bossier Parish’s redistricting 
system, there is simply no bar to enforcing this ordinance and 
holding elections under it. And if the three-judge court finds 
that the redistricting plan is free from invidious purpose and 
retrogression, the preemptive constraints of Section 5 have 
been lifted and no federal law trumps the Board’s plan. If the 
three-judge court decides to also issue an advisory opinion on 
Section 2, this can be of no legal consequence because noth­
ing in the Voting Rights Act makes such a Section 2 deter­
mination a prerequisite to implementing a jurisdiction’s 
voting changes and, in any event, the three-judge court has no 
subject matter jurisdiction to rule on any Section 2 violation. 
Accordingly, even if every Member of Congress clearly said 
they wanted the three-judge court to deny preclearance to 
laws that satisfied Section 5’s substantive precepts, there is 
simply no law which would provide the court with the author­
ity to do so and, indeed, any such action would be entirely 
contrary to the statutory language Congress did enact.15

3. According to the Solicitor General, a Congress which 
engaged in one of its most extensive and divisive debates over 
whether Section 2 should be amended to incorporate the 
ambiguous “results” test, nonetheless “intended” to broadly 
expand the substantive scope of Section 5 beyond the “retro­
gression” standard in Beer by incorporating the controversial 
“results” standard into the Section 5 preclearance process. 
Congress manifested this “intent,” albeit unaccompanied by 
any statutory amendment implementing that intent, in two 
ways.

First, Congress conveyed its understanding that Beer, of 
all cases, had already “authorized” Section 5 objections for

15 Two Justices in Morse v. Republican Party ofVa.,__U.S.___ ,
116 S. Ct. 1186, 1201 (1996) (Opinion of Stevens, J.) opined that any 
voting “practices and procedures [that] fall within the scope of 
§ 2, . . . must also be subject to Section 5.” Of course, the question of 
whether “for threshold coverage, §§ 2 and 5 have parallel scope” is an 
entirely separate issue from whether the substantive legality of those 
procedures need be adjudged by the same standards. Holder, 114 S. Ct. at 
2589 (O’Connor, J., concurring).



20

violations of the White v. Regester, 412 U.S. 755 (1973), 
“results standard” embodied in Section 2. See U.S. Br. 37-38. 
Beer purportedly authorized Section 5 “results” objections in 
the following sentence: “[A]n ameliorative new legislative 
apportionment cannot violate § 5 unless the new apportion­
ment itself so discriminates on the basis of race or color as to 
violate the Constitution." Beer, 425 U.S. at 141 (emphasis 
added). Perhaps realizing that this sentence did not clearly 
convey that ameliorative redistricting plans were impermissi­
ble if they had a negative “result," Justice Stewart eliminated 
any ambiguity by citing White v. Regester at the end of a 
string cite in a footnote explaining, in dicta, why the plaintiffs 
“could [not] rationally” argue that a Louisiana redistricting 
plan’s failure to create compact black-majority districts 
“remotely approach[ed]” establishing a constitutional viola­
tion. Id. at 142 n.14. One sentence in a 1982 Senate Report 
footnote stated that Beer held that an ameliorative change “is 
not objectionable” unless the “change ‘itself so discriminates 
on the basis o f race or color as to violate the Constitution,' ” 
thus somehow suggesting that Section 5 authorized a “results” 
objection under Beer. S. Rep. 12 n.31 (1982) (quoting Beer, 
425 U.S. at 141) (emphasis added).

This is not a remotely plausible interpretation of Beer or 
the sentence citing it in the Senate Report footnote. Beer's 
explicit holding and rationale was that Section 5 “effect” 
reached only retrogressive changes and therefore did not, 
contrary to the holding of the lower court and the reasoning of 
Justice Marshall’s vigorous dissent, reach White v. Regester 
results. See Beer, 425 U.S. at 157-63 (Marshall, J., dissent­
ing). The sentence in Beer cited by the United States does not 
reverse that holding, but simply makes the obvious point that 
intentionally discriminatory action is prohibited by Section 5. 
Actions taken “on the basis o f race" are purposefully discrim­
inatory and the Constitution only forbids purposeful discrimi­
nation. Washington v. Davis, 426 U.S. 229, 239-41 (1976). 
Moreover, the Beer court stated that such unconstitutional 
discrimination would “violate § 5." Id. at 141 (emphasis

21

added). And, after Beer established the retrogression stan­
dard, the only way an ameliorative voting change could vio­
late Section 5 would be if it was motivated by the 
discriminatory “purpose” outlawed by that statute.

More to the point, even if Justice Stewart (the author of 
Bolden) was confused about whether the Constitution reached 
unintentional discrimination in 1976, Congress well under­
stood in 1982 that the Constitution embraced the purpose 
standard in voting cases and elsewhere. The whole point of 
amending Section 2 was, of course, to establish a statutory 
“results” test that was different from the “exceedingly diffi­
cult” and “subjective” purpose standard that Washington v. 
Davis and Bolden had established for the Constitution. See 
Thornburg v. Gingles, 478 U.S. at 35, 71-74; S. Rep. at 28. 
Thus, in 1982, it was impossible to have understood Beer's 
reference to the constitutional standard, or the Senate 
Report’s quotation of that reference, as denoting anything 
other than the purpose test enunciated in Bolden and Davis, 
which differed so markedly from the White v. Regester 
“results” showing. Even if this were at all ambiguous, the 
Senate Report itself states as clearly as possible that Congress 
was deliberately differentiating the White “results” standard 
of Section 2 from the Section 5 “effects” standard.16 Thus, no 
one thought that “purpose” meant “results”; no one thought 
“effect” meant anything other than retrogression and no one 
thought Beer held that “purpose” or “effect” meant “results.”

To be sure, the Committee staffers who authored the 
Senate Report then went on to express their desire that the 
Attorney General (and perhaps three-judge Section 5 courts) 
object not only to laws which violate the substantive scope of 
Section 5, but “also” to those that “violate Section 2.” S. Rep. 
at 12 n.31. But the relevant point is that neither this sentence, 
nor any other in the legislative history, purports to suggest

16 “By referring to the ‘results’ of a challenged practice and by 
explicitly codifying the White standard, the amendment distinguishes the 
standard for proving a violation under Section 2 from the standard for 
determining whether a proposed change has a discriminatory ‘effect’ under 
Section 5 of the Act.” S. Rep. at 68.



22

that Section 5 outlawed the “results” proscribed by Section 2. 
To the contrary, if Section 5’s substantive requirements did 
mirror those of Section 2, then there could be no such thing as 
a change which satisfied Section 5 but nonetheless violated 
Section 2. That being so, the desires expressed in the Senate 
Report concerning how Section 5 was to be enforced are 
meaningless -  it is neither law nor even legislative history. 
“[U]nenacted approvals, beliefs, and desires are not laws.” 
Puerto Rico Dep’t o f Consumer Affairs v. Isla Petroleum 
Corp., 485 U.S. 495, 501 (1988). As in Isla Petroleum, 
“[t]here is no text here . . .  to which expressions of . . . intent 
in legislative history might attach.” Id. at 501.17 The only 
purpose of legislative history is to illuminate the meaning of 
ambiguous statutory language, and the Senate Report does not 
purport to relate to any statutory language, even assuming 
there was some ambiguity in Section 5.

For essentially the same reason, the fact that the Justice 
Department has issued administrative guidelines saying the 
Attorney General will enter a Section 5 objection when “nec­
essary to prevent a clear violation of amended section 2” is of 
no consequence. 28 C.F.R. § 51.55(b)(2). Assuming arguendo 
that the Attorney General’s interpretation of the Voting Rights 
Act is entitled to any deference in these circumstances,18 the

17 Even if the Senate Report did purport to interpret the meaning of 
Section 5, it could not affect the construction of that provision because 
Section 5’s language was not changed in 1982. In Pierce v. Underwood, 
487 U.S. 552, 567 (1988), this Court held that a Committee Report setting 
forth a very definite view of a 1980 civil rights attorneys’ fee statute, at the 
time the statute was reenacted in 1985 without change to its language, was 
irrelevant to interpreting the statute’s meaning because, “[q]uite obviously, 
reenacting precisely the same language would be a strange way to make a 
change.”

18 As the district court correctly noted, such deference is not 
appropriate given that an action seeking preclearance may be brought in 
court in the first instance. Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 
203 (1991). Furthermore, the Department’s guidelines are just that and are 
not entitled to the deference afforded regulations. See, e.g., General Elec.
Co. v. Gilbert, 429 U.S. 125, 141 (1976); Ansonia Bd. of Educ. v.

23

relevant guidelines do not purport to “interpret” anything in 
the Voting Rights Act or Section 5. Rather, in stark contrast to 
the argument the Justice Department advances in this Court, 
its guidelines clearly state that a “change affecting voting is 
considered to have a discriminatory effect under Section 5 if 
it will lead to a retrogression in the position of members of a 
racial or language minority group. . . . ” 28 C.F.R. § 51.54(a). 
Thus, the Justice Department concedes that effect encom­
passes only retrogression, but not Section 2’s “result.” The 
guidelines then go on to simply announce that even if a 
change satisfies Section 5, the Department will withhold 
preclearance if the change clearly violates Section 2. 28 
C.F.R. § 51.55(b)(2). Thus, the guidelines nowhere contend 
that Section 5 reaches changes with discriminatory results, 
but quite candidly acknowledge that they must rely on Section 
2 to invalidate such nonretrogressive changes. Since the Court 
will not defer to an agency interpretation of unambiguous 
statutory language, it obviously cannot defer to agency poli­
cies that concededly rest on no statutory language.19 See

Philbrook, 479 U.S. 60, 69 n.6 (1986) (noting that administrative 
“guidelines are properly accorded less weight than administrative 
regulations declared by Congress to have the force of law.”). More 
important, as in Miller, deference should not be accorded the Department’s 
interpretation given the serious constitutional concerns it raises. 115 S. Ct. 
at 2491 (citing Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & 
Constr. Trades Council, 485 U.S. 568, 574-75 (1988)). See also National 
Labor Relations Bd. v. Catholic Bishop, 440 U.S. 490 (1979). Not only is 
the Equal Protection Clause implicated by the Department’s maximization 
policy, but also this expansion of Section 5 would cause serious concerns 
under the Tenth Amendment and federalism principles given the additional 
burdens on States. Miller, 115 S. Ct. at 2493.

19 Perhaps the United States’ silliest argument is that this Court 
should give weight to the fact that a House Subcommittee in 1987 
“endorsed” an Attorney General’s Guideline that resembled the Justice 
Department’s current guideline on the interaction of Section 2 and Section 
5. U.S. Br. 40-41. The fact that a handful of Representatives from a 
different Congress, who were not amending the Voting Rights Act, viewed 
favorably an Executive Branch enforcement policy says nothing about



24

Presley v. Etowah County Comm'n, 502 U.S. 491, 509 (1992) 
(refusing deference to the Attorney General because Section 5 
“unambiguous[ly]” does not cover changes to decisionmaking 
authority).

Moreover, it is a cardinal “rule of statutory construction 
that if Congress intends to alter the 'usual constitutional 
balance between the States and the Federal Government,’ it 
must make its intention to do so ‘unmistakably clear in the 
language of the statute.’ ” Will v. Michigan Dep’t of State 
Police, 491 U.S. 58, 65 (1989). See New York v. United States, 
505 U.S. 144, 171 (1992); Pennsylvania v. Union Gas Co., 
491 U.S. 1, 7 (1989); Pennhurst State School & Hosp. v. 
Halderman, 465 U.S. 89, 99 (1984). The United States’ 
attempt to increase Section 5’s burden on the states emphat­
ically flunks this stringent test since there is no “language of 
the statute” suggesting that Section 2 is incorporated into 
Section 5, much less unmistakably clear language to this 
effect.20

congressional intent five years earlier. Blanchette v. Connecticut Gen. Ins. 
Corp., 419 U.S. 102, 132 (1974); Pierce, 487 U.S. at 566 (“[I]t is the 
function of the courts and not the Legislature, much less a Committee of 
one House of the Legislature, to say what an enacted statute means.’’) If we 
are wrong in this, however, we respectfully submit that the Court is obliged 
to solicit the views of the current House Subcommittee on Civil and 
Constitutional Rights, who are entitled to similar deference and might well 
have a very different view of the Justice Department’s Section 2 and 
“maximization” policies.

20 Abandoning any pretense that their argument is supported by any
federal law, the United States makes the shocking suggestion that, even if 
the Voting Rights Act does not authorize any such objection, Section 5 
courts may, in the exercise of their “equitable discretion,” enjoin state law 
practices merely because they offend the Court’s view of the “public 
interest.” U.S. Br. 34-35. While district courts exercising the equitable 
authority granted by 28 U.S.C. § 2201 obviously “may,” pursuant to 
virtually unreviewable “discretion,” refuse to adjudicate declaratory 
judgment actions brought before them, this plainly has no application to the 
duties of courts exercising the extraordinary and unique powers under 
Section 5. As the correlative responsibility of the Attorney General reflects,

25

We note finally that the appellants determined twisting of 
Section 5 is wholly unnecessary to protect any voting rights 
of minorities guaranteed by the 1982 Voting Rights Act. 
Obviously, if any jurisdiction violates any Section 2 rights, 
much less commits a “clear” violation, the Justice Department 
and private intervenors can promptly bring a Section 2 law­
suit to swiftly end any such deprivation.21 Here, the Board’s

Section 5 courts are not permitted to issue a declaratory judgment under 
Section 2201, they must “expeditious[ly],” Morris v. Gressette, 432 U.S. 
491, 504 (1977), issue such a declaratory judgment under the duties 
imposed by 42 U.S.C. 1973c, because submitting jurisdictions are “entitled 
to preclcarance,” Lockhart, 460 U.S. at 134, to relieve the temporary 
“suspension of] new voting regulations pending scrutiny by federal 
authorities,” South Carolina v. Katzenbach, 383 U.S. 301, 334 (1966), 
unless the court finds that the change has the prescribed “purpose or 
effect.” Cf. 42 U.S.C. § 1973c (Attorney General has 60 days to object). If 
the Section 5 courts truly did enjoy the discretion granted by § 2201, they 
could permissibly refuse to relieve Section 5’s preemption of state laws for 
virtually any reason, including “inconvenience,” even if the changes 
plainly did not violate either Section 5 or Section 2. 10A Wright & Miller, 
Federal Practice and Procedure § 2759. Needless to say, this would be 
blatantly unconstitutional. South Carolina v. Katzenbach, 383 U.S. at 
335-36. But even if the specious analogy to Section 2201 is accepted, the 
United States argument is still unavailing because § 2201 only authorizes 
district courts to refrain from resolving the potential controversy and thus 
maintaining the status quo where the presumptively valid state law remains 
in effect. It obviously does not empower district courts to issue a 
declaratory judgment that the state law satisfies the federal commands with 
which it allegedly conflicts, but then nonetheless enjoin the state law 
because it allegedly offends another law over which the court has no 
jurisdiction, in order to serve the “public interest.” Yet the Justice 
Department seeks just such an expansion of Section 5 courts’ substantive 
powers (and necessarily, then, its own power) by arguing that a court may 
declare compliance with Section 5’s purpose and effect, but then enjoin the 
practice due to a perceived Section 2 violation, all in the name of the 
Court’s inherent “discretion" to vindicate the public interest.

21 In this regard, the United States suggests that it would be 
“anomalous” if courts resolving Section 5 questions could not also 
adjudicate Section 2 disputes. But any such “anomaly" is, of course,



26

redistricting plan plainly did not violate Section 2 because 
there was no “reasonable alternative” benchmark plan that 
was either “compact” or did not subordinate traditional dis­
tricting principles. Holder, 114 S. Ct. at 2589 (O’Connor, J., 
concurring); Gingles, 478 U.S. at 50. More important, as 
shown above (infra p. 3-5), appellants would be utterly 
unable to prove any racial bloc voting by white or black 
citizens in local Bossier Parish elections and the one “exog­
enous” state judicial race (held not just in Bossier Parish), 
where racial bloc voting was found, obviously cannot show 
that whites “usually” defeat black-preferred candidates. Gin­
gles, -478 U.S. at 51. Thus, the Justice Department could 
never have mounted a successful Section 2 suit, particularly 
since the Fifth Circuit uses a more stringent test for bloc 
voting than the Gingles plurality, which is precisely why the 
Department has never challenged the Police Jury plan identi­
cal to the “intentionally discriminatory” School Board plan 
that so “clearly” violates Section 2. See, e.g., League of 
United Latin Amer. Citizens v. Clements, 999 F.2d 831,

inherent in the fact that, as this Court has repeatedly confirmed, the two 
statutes have different substantive standards. (See infra p. 13) The entities 
covered by Section 2 and Section 5 are different, the burdens of proof are 
different, the benchmarks for measuring racial impact are necessarily 
different, the courts which adjudicate such disputes are different, the 
triggering mechanisms (“change”) for coverage are different, and most 
important, Section 5 imposes unique burdens on sovereign state 
governments. Therefore, it would be quite “anomalous” indeed if Section 5 
did not have a more “limited substantive goal” than the generally 
applicable Section 2. Vera, 116 S. Ct. at 1963. Moreover, it is only by 
accepting appellants’ argument that this Court would authorize 
“relitigation” and potentially conflicting judgments. See U.S. Br. 24. If a 
Section 5 court were, after a full trial, to affirmatively find no Section 2 
violation and grant preclearance, the jurisdiction would have no res 
judicata defense to a subsequent Section 2 suit because Section 5 clearly 
states that neither the Attorney General’s preclearance “nor a declaratory 
judgment entered under this section shall bar subsequent action to enjoin 
enforcement of [the voting change].” 42 U.S.C. § 1973c.

27

850-55 (5th Cir. 1993) (requiring consideration of nonracial 
causes of racial bloc voting).22

II. The Court Below Considered All Evidence Relevant 
To Section 5 Purpose And Only Rejected Evidence 
Relevant Solely To Section 2
The district court opinion clearly states, “[b]ecause we 

hold . . . that section 2 of the Voting Rights Act . . . has no 
place in this section 5 action, much of the evidence relevant 
only to the section 2 inquiry is not discussed in this opinion.” 
App. 9a n.6 (emphasis added). So far as we can discern, 
appellants do not maintain that this constituted legal error if 
Section 2 was not properly before the court below. Neither 
appellant argues in this Court that all evidence relevant to 
establishing a Section 2 “results” violation is relevant to the 
Section 5 purpose inquiry, nor do they advance the non

22 Appellant’s Procrustean attempt to force Section 2 litigation into 
the Section 5 proceeding is also wholly unworkable because of the two 
statutes’ differing evidentiary burdens. And even if this Court were 
inclined to rewrite Section 5’s plain requirements and place the Section 2 
burden on the United States, this would merely complicate the submitting 
jurisdiction’s task because they would have to await the United States’ 
discovery and presentation of complex evidence concerning racial bloc 
voting, and all the voluminous “Senate Report factors” before it could 
“rebut” this enormous evidentiary showing. See Gingles, 478 U.S. at 44-45 
(listing “nonexclusive” Senate Report factors and “stressing]” that “other 
factors may also be relevant.”). Moreover, the three-judge court “must” 
examine all such “evidence in the totality of circumstances,” because 
Section 2 violations were “intended by Congress to be judgments resting 
on comprehensive, not limited, canvassing of relevant facts.” Johnson, 114 
S. Ct. at 2657. Consequently, the extraordinary confusion and delay 
engendered by injecting Section 2 issues into Section 5 cases would, as a 
practical matter, preclude any jurisdiction from seeking preclearance from 
the Section 5 courts, since timely resolution is essential under Section 5, 
particularly in the redistricting context. This is, of course, the Justice 
Department’s intended result, since it would then become the sole 
practicable gateway for all Section 5 submissions and would have to 
“prove” a Section 2 violation only to itself.



28

sequitur that the court should have considered that subset of 
Section 2 evidence that is “irrelevant” to Section 5 purpose.

Consequently, in order to manufacture a “legal error” in 
this straightforward “clearly erroneous” case, appellants dis­
tort beyond recognition the legal principle actually announced 
by the district court and devote the bulk of their briefs to 
attacking the straw man thus created. Specifically, they argue 
that some evidence is relevant to both Section 2 and Section 5 
violations and that the court below excluded probative Sec­
tion 5 purpose evidence solely because it was also relevant to 
establishing a Section 2 violation. Appellants provide two 
examples of evidence which was allegedly so excluded: the 
racial impact of the Bossier Parish’s redistricting plan and the 
official history of racial discrimination in Louisiana.

While we certainly agree that courts -  in Section 5 
proceedings or elsewhere -  should not exclude evidence pro­
bative of the legal question being resolved simply because it 
is also relevant to another legal issue, the district court did 
not in word or deed so exclude any such evidence probative 
of the Section 5 purpose inquiry because it also shed light on 
the Section 2 question. Any suggestion that the court did 
reject evidence relevant to both Section 2 and Section 5 is, of 
course, irreconcilable with the court’s plain statement that it 
was not considering “evidence relevant only to the Section 2 
inquiry.” App. 9a n.6 (emphasis added). Moreover, in apply­
ing this standard, the court did consider the impact of the 
Board’s redistricting plan and, indeed, devoted most of its 
opinion to explaining why that alleged impact did not reflect 
the racially discriminatory purpose. To be sure, the court 
below did not yet again recite the familiar litany of the 
Louisiana state legislature’s shameful prior discrimination 
against black voters, for the very good reason that this history 
sheds absolutely no light on the Bossier Parish School 
Board’s purpose in adopting its redistricting plan. Indeed, the 
court below’s method of analyzing the Section 5 discrimina­
tory purpose issue mirrors precisely the analysis employed by 
this Court to resolve the same issue in Miller and Shaw 11.

1. In Miller, as here, the Justice Department strenu­
ously argued that its Section 5 “purpose” objection to the

29

initial Georgia redistricting plan was well-founded because 
there was a “history of discrimination in voting” continuing 
“into the 1980’s,” as well as substantial “racial bloc voting” 
and the fact that “black candidates had in the past virtually 
never been successful.” Brief of United States filed in Miller 
v. Johnson, at 32-33. As here, the Justice Department argued 
that such evidence was probative under Rogers v. Lodge, 458 
U.S. 613 (1982) and the Arlington Heights factors for “racial 
impact” and the “historical background of the decision.” Id. 
See Village of Arlington Heights v. Metropolitan Hous. Dev. 
Corp., 429 U.S. 252, 266-67 (1977). As noted, without any 
reference or inquiry into these factors, the Court found the 
Justice Department had “no reasonable basis” to infer a dis­
criminatory purpose. Miller, 115 S. Ct. 2492. Rather, the 
Court found no such purpose solely on the grounds that the 
district court had “accepted” the Attorney General’s “detailed 
explanation [that] the initial decision not to enact the max- 
black plan” was due to its “policy of adhering to other 
districting principles.” Id. Similarly, in Shaw II, the Court 
found the Justice Department’s “purpose” argument “insup­
portable” because North Carolina initially rejected the “sec­
ond minority district” in order “to keep precincts whole, to 
avoid dividing counties into more than two districts . . . ” and 
other neutral redistricting principles. 116 S. Ct. at 1904 
(emphasis added). Again, in reaching this determination, the 
Court viewed as irrelevant North Carolina’s well-documented 
history of racial discrimination and racially polarized voting. 
See, e.g., Gingles, 478 U.S. at 38, 59.

Thus, in both cases, this Court resolved the Section 5 
purpose inquiry solely by determining whether there were 
legitimate and credible reasons for rejecting the plan with the 
additional minority district and eschewed as irrelevant the 
Section 2 evidence concerning prior voting discrimination 
and racial bloc voting. As noted, the Shaw II opinion also 
explicitly expressed its disagreement with the notion “that a 
showing of discriminatory effect under § 2, alone, could 
support a claim of discriminatory purpose under § 5.” 116 S. 
Ct. at 1904 n.6. Since this is precisely the analysis articulated 
and followed by the district court (albeit in far greater detail),



30

it is impossible to conclude that it erroneously excluded 
probative Section 5 evidence.23

2. Apparently recognizing this, appellants seek to mis- 
characterize the district court opinion as holding that other­
wise probative evidence of discriminatory purpose somehow 
becomes incompetent because it also is relevant to Section 2. 
The district court said no such thing, as is made particularly 
clear by analyzing the argument that the Justice Department 
actually advanced below.

As part of its ongoing effort to have Section 5 courts 
convert their analysis of the purpose of a voting change into a 
full-blown Section 2 trial of the underlying system being 
changed, the United States argued that, even if Section 2 is 
not properly an issue before the Court, the Court should 
nevertheless consider and rule upon “all the evidence . . . 
demonstrating how clear the Section 2 violation is.” U.S. 
Post-Trial Br. 36. See infra note 5. The Court was supposed to 
engage in this seemingly pointless inquiry because, if the 
Court found a Section 2 violation, it could use the “School 
Board’s . . . awareness that the proposed plan might violate 
Section 2” to conclude that the Board had a “discriminatory 
purpose in adopting the proposed plan.” Id. It also identified

23 In a truly pathetic attempt to suggest that the district court did not 
follow Miller's analysis, and that Miller considered Section 2 “results” 
evidence, the Solicitor General maintains that Miller did consider such 
results because “the Court considered the [redistricting] plan’s ameliorative 
impact.” U.S. Br. 22 (citing 115 S. Ct. at 2492). To be sure, the Miller 
Court, like the court below, did point out that the initial Georgia 
redistricting “plans were ‘ameliorative’ and could not have violated § 5’s 
non-retrogression principle.” Miller, 115 S. Ct. at 2492. App. 10a (“And, 
all parties agree that the School Board's proposed redistricting will not 
have a retrogressive effect.”). Both courts then considered whether the 
choice of the redistricting plan with a greater adverse impact (less “safe” 
black seats) reflected a discriminatory purpose. Neither court, however, 
examined the Section 2 results evidence concerning racial bloc voting or 
prior historical discrimination that the Justice Department urged upon both 
courts.

31

one subset of Section 2 evidence -  “the history of discrimina­
tion in Bossier Parish, especially discrimination affecting the 
right to vote” -  as “independently relevant to the purpose 
issue.” Id. Thus, the Justice Department drew a clear distinc­
tion between that subset of Section 2 evidence that was 
“independently relevant” on its own terms to Section 5 pur­
pose and the other “Section 2 evidence” that should be con­
sidered to resolve whether there was a Section 2 violation.

The court below quite properly rejected the Justice 
Department’s effort “to do indirectly what it cannot do 
directly” by refusing to conduct “full-blown section 2 litiga­
tion” on an issue not properly before it. App. 23a (quoting 
New York v. U.S., 874 F. Supp. at 399). This in no way implies 
the very different proposition that the court rejected evidence 
that is “independently relevant” to the Section 5 purpose 
inquiry simply because it might also be relevant to a Section 2 
violation. As noted, the court’s explicit characterization of 
“section 2 evidence” as “evidence relevant only to a Section 2 
violation” eliminates any potential ambiguity on this point. 
Moreover, every statement by the district court further dem­
onstrates that it was rejecting only the Justice Department’s 
back-door effort to introduce all Section 2 evidence by equat­
ing the Section 2 violation with discriminatory purpose, but 
was not making the indefensible ruling that otherwise mate­
rial evidence of purpose somehow should be excluded 
because it was also relevant to Section 2.24 Appellants can

24 The court stated that it would not resolve “alleged section 2 
violations” even if advanced by appellants “under the guise of ‘purpose’ 
evidence.” App. 23a. (emphasis added). It did not say it refused to consider 
legitimate evidence of Section 5 purpose because it also might be relevant 
to establishing a Section 2 violation. Quoting Miller, Texas, and New York, 
it noted that resolving whether a “voting-procedure change[ ] . . , ” was 
motivated by a discriminatory purpose is a much narrower and different 
inquiry than “full-blown section 2 litigation” challenging “the existence of 
an allegedly discriminatory system.” App. 23a. In light of these “differing 
standards,” the court, like this Court in Shaw, would not permit inapposite 
“section 2 evidence to prove discriminatory purpose under Section 5.” 
App. 23a-24a.



32

point to nothing in the opinion which suggests the district 
court’s exclusion of the “section 2 evidence” urged upon it by 
the U.S. was accompanied by an additional, sub silentio 
exclusion of evidence relating to both “section 2” and Section 
5.25 Thus, like the Section 5 courts in the New York and Texas 
cases, the court below simply rejected the United States’ 
facially implausible argument that the existence of a Section 2 
violation in the underlying system, or the submitting jurisdic­
tion’s “awareness o f ’ that potential violation, somehow estab­
lished discriminatory purpose in their choice of competing 
redistricting plans; thus requiring consideration of “all” Sec­
tion 2 evidence. Indeed, appellants now concede that Miller, 
New York and Texas did not purport to exclude relevant 
purpose evidence because it might come under the rubric of 
Section 2 proof. U.S. Br. 21; A-I Br. 24. They therefore 
cannot explain how the court below’s direct quotation of these 
holdings somehow was intended to adopt a different rule.

3. Moreover, the district court’s consideration of the 
evidence before it plainly shows it discussed all probative 
evidence and did not erect some prophylactic ban against 
evidence potentially relevant in a Section 2 case. Appellants 
repeatedly maintain that the “court specifically refused to 
consider the discriminatory effect of the challenged redistrict­
ing plan on minority voters” because of its purportedly reflex­
ive aversion to anything that looked like Section 2 evidence. 
U.S. Br. 17; see A-I Br. 24. Appellants cannot cite any 
passage in the district court containing this “specific refusal,” 
however, because it is wholly a figment of their imaginations.

To the contrary, the district court quite clearly, thor­
oughly and directly considered the adopted redistricting

25 The district court twice used the phrase, “section 2 evidence” 
without explaining again that this referred to evidence “relevant only” to 
the Section 2 violation. But the court had already provided this explanation 
and, even when ripped from its context, the phrase “section 2 evidence” 
does not connote evidence relevant to both Section 2 and Section 5. 
Moreover, as noted, this discussion was in a context where the Justice 
Department had drawn a clear distinction between “section 2 evidence” 
and evidence “independently relevant” to Section 5 purpose.

33

plan’s effect on minority voters. Indeed, it devoted virtually 
all of the relevant part of the opinion to resolving precisely 
this question. To be sure, the court did not engage in the 
ritualistic formula of independently listing “impact” as a 
“important starting point” for analysis under Arlington 
Heights. Rather, like Miller, Shaw II, and virtually all other 
discriminatory purpose opinions, the court cut directly to the 
dispositive question “started” by the existence of impact: did 
the Board have “legitimate, nondiscriminatory motives” for 
adopting its plan over the maximization plan offered by the 
NAACP, i.e., a plan with less adverse impact. App. 27a n.14. 
It would, of course, have been irrational and meaningless to 
compare the relative merits of the NAACP plan and the 
Board’s plan unless the court was considering the alleged 
negative impact of the Board’s plan (as compared to the 
NAACP plan) in resolving whether it was adopted “because 
o f’ that impact. Personnel Adm’r v. Feeney, 442 U.S. 256, 
279 (1979) (“Discriminatory purpose . . . implies that a 
decisionmaker” selected a course of action “ ‘because of,’ not 
merely ‘in spite of,’ its adverse effects upon an identifiable 
group.”). The court assumed that fewer safe black districts 
negatively affected black voters’ electoral opportunities, but 
found that such an impact was not violative of Section 5 
because the failure to create such safe districts was done “in 
spite of” that impact. Id. Thus, the court below engaged in 
precisely the sort of inquiry this Court has used to resolve all 
questions of discriminatory purpose, in the voting rights con­
text and elsewhere.

To be sure, in assessing whether the racial impact was 
justified because it was free of invidious purpose, the court 
below did simply assume that fewer “safe” black seats nega­
tively affected black voters. Accordingly, like Miller and 
Shaw II, the court did not trudge through the antecedent 
evidence of racial bloc voting, the depressed socio-economic 
status of blacks in the Parish, Louisiana’s familiar history of 
racial discrimination, or any of the similar Section 2 evidence 
appellants urged upon it. But all such evidence is relevant 
only to the question of whether the Board’s redistricting plan 
had an adverse impact or “result,” which the district court



34

assumed it did, and says nothing about the Board’s purpose in 
choosing that plan.

As the Gingles preconditions reflect, the probative value 
of racial bloc voting and minority electoral success is to 
“prove that the challenged electoral mechanism [an at-large 
plan or single-member plan with majority white districts] 
impairs the [minorities’] ability ‘to elect.’ ” Gingles, 478 U.S. 
at 48-49 n.15. Similarly, the primary relevance of “historical 
discrimination” is to show that such state action contributed 
to “restrict[ing] the present opportunity of blacks effectively 
to participate in the political process.” Rogers v. Lodge, 458 
U.S. at 625. See Gingles, 478 U.S. at 69 (“Voting Rights Act 
[is intended] to eradicate inequalities in political oppor­
tunities that exist due to the vestigial effects of past purpose­
ful discrimination.”).26 Accordingly, such evidence is 
designed to show that, in light of “past and present reality,” 
the electoral processes are not “equally open” to minority 
voters, and thus seemingly neutral devices, such as at-large 
systems, actually have a negative impact on minority voters. 
Rogers, 458 U.S. at 622 (quoting White v. Regester, 412 U.S. 
at 769-70). Moreover, in keeping with the avowed purpose of 
amending Section 2 to replace the subjective “intent” inquiry 
with the objective “results” analysis, virtually all other Sec­
tion 2 evidence is also intended to show that a “certain 
electoral law, practice or structure interacts with social and 
historical conditions to cause an inequality in the oppor­
tunities enjoyed by black and white voters. . . . ” Gingles, 478 
U.S. at 47. See id. at 44-45 (listing Senate Report factors). 
However, if a community is free of racial bloc voting and 
historical suppression of minorities, “minority citizens are 
able to form coalitions with voters from other racial and 
ethnic groups, having no need to be a majority within a single 
district.” Johnson, 114 S. Ct. at 2661 (emphasis added). Put 
simply, then, the Section 2 evidence tells us why a black 
majority district is needed to elect black candidates, but it

26 See also Rogers, 458 U.S. at 624-26.

says nothing about why a black majority district was not 
created.

The district court was thus properly indifferent to 
whether this Section 2 evidence might show that Bossier 
Parish was an electoral community where white majority 
districts actually had the “result” of diluting minority voting 
strength, since it presumed that white majority districts had 
such an effect in resolving the only relevant purpose question. 
Consequently, the evidence establishing that white majority 
districts had a negative impact was utterly superfluous or, 
more accurately, could only harm appellants’ case by opening 
up the question of negative impact that the court was prepared 
to presume existed.

For this reason, the fact that Rogers found evidence of 
racial bloc voting and socio-economic disparities attributable 
to historical discrimination “relevant” in constitutional chal­
lenges to existing at-large systems plainly does not suggest 
that the courts must analyze such evidence in a Section 5 
purpose case. In Rogers, in order to meet their burden, plain­
tiffs needed to establish both that the at-large system pre­
vented electoral success and that it had been “maintained for 
the purpose of denying blacks equal opportunity to the politi­
cal process in the county.” 458 U.S. at 627. Accordingly, the 
presence of racially polarized voting, depressed black turnout, 
as well as the causative effect historical discrimination played 
in such phenomena, was not only “relevant,” but essential to 
establishing state-sanctioned minority vote dilution. Such evi­
dence was necessary to show that the facially neutral at-large 
system had the foreseeable impact of perpetuating and exacer­
bating “the lingering effects of past discrimination,” a prereq­
uisite to finding discriminatory purpose. Id. at 626.

In a Section 5 case, however, there is no need to consider 
this antecedent evidence establishing the-foreseeable negative 
impact of majority white districts if the Court presumes such 
foreseeable negative impact, in determining whether such 
impact was the government’s purpose. In a typical constitu­
tional challenge brought against a political jurisdiction such 
as the Rogers case, plaintiffs must establish that the existing

35



36

electoral conditions render facially neutral, majoritarian elec­
toral systems dilutive of minority voting strength, as a prereq­
uisite to establishing that dilution was the government’s 
deliberate purpose. In a Section 5 case where the submitting 
jurisdiction has the burden, it is assumed, due to the racial 
polarization and prior discrimination that renders the jurisdic­
tion subject to Section 5 preclearance, that such racially- 
charged electoral conditions exist and white majority districts 
will thus have a foreseeable impact. Thus, courts proceed 
directly to the only relevant question of whether such impact 
is motivated by a discriminatory purpose. Consequently, the 
district court was entirely correct that evidence concerning 
current electoral conditions, and prior historical discrimina­
tion, was superfluous (unless, of course, the submitting juris­
diction put impact at issue by arguing that white majority 
districts would have no negative impact because voting is 
race-blind and minorities had overcome prior discrimination). 
Thus, we cannot understand how the appellants can complain 
that the district court relieved them of the obligation to 
establish the Gingles preconditions and the ongoing effects of 
prior official discrimination.

2. This is not to say, of course, that a “series of official 
actions taken for invidious purposes” by the particular gov­
ernmental actor is irrelevant to the question whether this 
specific voting change was motivated by the same invidious 
purposes. Arlington Heights, 429 U.S. at 267. Such “prior bad 
acts” evidence is generally relevant to show that the decision 
at issue was part of an intentionally discriminatory pattern. 
However, none of the “historical discrimination” canvassed 
by appellants or the dissenting opinion, and eschewed by the 
district court, is remotely related to, or demonstrative of, 
prior discrimination by the School Board in this case. Rather, 
it is simply the familiar recitation of reprehensible actions by 
the Louisiana state legislature “dating back to the Civil War,” 
which are wholly unrelated to any action specifically under­
taken by Bossier Parish, much less the current School Board. 
U.S. Br. 4-5; A-I Br. 7. Even in a typical case, such “past 
discrimination cannot, in the manner of original sin, condemn 
government action that is not itself unlawful.” Mobile, 446

37

U.S. at 74. This is particularly true where, as here, the 
condemned action is performed by “unrelated government 
officials” such as the state legislature. Id. at 74 n.20.

Moreover, the irrelevance of such historical discrimina­
tion is particularly obvious in the Section 5 context. All 
covered jurisdictions, particularly Southern jurisdictions, 
share the same sorry racial history and that, of course, is why 
they are subject to Section 5’s extraordinary requirements in 
the first place. See South Carolina v. Katzenbach, 383 U.S. at 
310-13. More particularly, this history is the reason that these 
governments are stripped of the normally strong presumption 
of legitimacy and forced to carry the burden of disproving 
discriminatory purpose. To add to that already onerous burden 
by also using that history as a basis for finding a particular 
governmental unit’s discrete decision discriminatory, even 
when supported by credible nonracial reasons that would be 
credited if undertaken by Northern jurisdiction, is indeed 
impermissible “double counting.” App. 24a n.12. The fact 
that the Bossier Parish School Board, like all other Section 5 
jurisdictions, is situated in a State with a discriminatory 
history which the Board is not responsible for and cannot 
change, simply does not make it “more probable” that it 
selected a redistricting plan for discriminatory purposes. Fed. 
R. Evid. 401. This Court therefore properly ignored the exis­
tence of such evidence in Georgia and North Carolina when it 
resolved the discrete Section 5 purpose issue in Miller and 
Shaw.

We are left, then, with one species of evidence that 
appellants maintain does reflect on this School Board’s dis­
criminatory animus: the fact that Louisiana schools were de 
jure segregated and the Bossier Parish school system has not 
yet been declared unitary. A-I Br. 7-8; U.S. Br. 5-6. Appel­
lants maintain that this is directly probative evidence of the 
Board’s racist actions and that the district court ignored such 
evidence of “responsiveness” and “historical discrimination” 
pursuant to its generalized exclusion of all evidence touching 
on Section 2. Appellants are manifestly wrong on both counts. 
First, the district court did independently consider the School 
Board’s desegregation activities. App. 34a n.18. While the



38

court, quite properly, peremptorily dismissed such evidence 
as reflecting any racial animus here, the relevant point is that 
it did consider such evidence. It would not have done so had 
it already, as appellants erroneously maintain, categorically 
excluded all probative purpose evidence because such evi­
dence was also relevant to the Section 2 “results” test. On the 
merits, the fact that the Parish’s schools are not perfectly 
racially balanced due to demographic changes and that an 
advisory desegregation committee lapsed into disuse 20 years 
ago is clearly not, as the district court properly found, “in any 
way related to the School Board’s purpose in adopting the 
Police Jury plan.”27 App. 34a n.18. Cf. Bolden, 446 U.S. at

27 The initial biracial committee last met twenty years ago in 1976,, 
when perhaps one current Board member was serving. This committee was 
established pursuant to a consent decree and was charged with 
“recommend[ing] to the School Board ways to attain and maintain a 
unitary system and to improve education. . . . ” App. 103a (I 111). This 
plainly implies that it was intended merely to ease the transition to a unitary 
system, not serve as a permanent governmental bureaucracy. Given this 
limited role, it is entirely understandable that the interest of the volunteer 
citizens who served on the committee waned over time. There is nothing in 
the record suggesting that the Department of Justice, the other Lemon 
plaintiffs or the black community ever complained about its dormancy. The 
appellants’ attempt to draw a discriminatory inference from the 
establishment and disbandment of a newly constituted biracial committee 
is equally misguided. In fact, the School Board demonstrated its 
responsiveness to the black community by voluntarily establishing this 
committee in 1993 at the request of the NAACP. App. 104a (1 113). As the 
district court found, the committee was dismissed when it exceeded its 
advisory role in achieving a unitary system and instead began to involve 
itself in matters relating to educational, rather than desegregation, policy. 
As the Court has often recognized, such policy “is committed to the control 
of state and local authorities.” See, e.g., Board of Curators of the Univ. of 
Missouri v. Horowitz, 435 U.S. 78, 91 (1978); Milliken v. Bradley , 418 
U.S. 717, 741-742 (1974). Nor is there any evidence suggesting that any of 
the School Board’s attendance lines violate the court’s orders. Therefore, 
the racial imbalance in five schools complained of by the appellants is 
necessarily attributable to demographic factors over which the School 
Board has no control and against which it has no duty to countervail. See

39

73-74 (Even purposeful discrimination against blacks in 
employment and public services by the current defendant 
government is “relevant only as the most tenuous and circum­
stantial evidence of the constitutional invalidity of the elec­
toral system. . . . ”). While the Justice Department was 
apparently intent on litigating their ongoing desegregation 
case with the Parish, as well as the Section 2 case, in this 
Section 5 proceeding, the district court’s discounting of such 
desegregation evidence was proper, and certainly not “clearly 
erroneous.”

In sum, the Justice Department has unsuccessfully 
mounted a sustained campaign to have Section 5 courts strike 
down legitimate changes to underlying electoral systems on 
the grounds that the underlying electoral system is racially 
polarized and has a discriminatory lineage. Since the submit­
ting jurisdictions are not responsible for private citizens’ 
voting patterns or for prior historical discrimination, and 
since neither those patterns nor that history would be altered 
regardless of which voting change is selected, this evidence is 
clearly irrelevant to the focused inquiry on why the submitting 
jurisdiction chose the nonretrogressive plan it did.

III. The Court Below’s Factual Finding That The School 
Board Acted Without A Discriminatory Purpose Is 
Not Clearly Erroneous

Findings of fact, particularly those relating to motive or 
intent, may “not be set aside unless clearly erroneous.” Pull­
man-Standard v. Swint, 456 U.S. 273, 287 (1982).28 Given

Pasadena City Bd. of Educ. v. Spangler, All U.S. 424, 436-37 (1976) 
(holding that a district court is “not entitled to require [a school board] to 
rearrange its attendance zones each year so as to ensure that the racial mix 
desired by the court was maintained in perpetuity”); Freeman v. Pitts, 503 
U.S. 467, 494 (1992).

28 See id. at 288 (“[Findings] as to the design, motive and intent with 
which men act are peculiarly factual issues for the trier of fact” (quoting 
United States v. Yellow Cab Co., 338 U.S. 338, 341 (1949)); City of



40

that the district court’s factual findings are amply supported 
by the record, there is no plausible basis for characterizing its 
findings as clearly erroneous.

Indeed, once again, there is “no reasonable basis” for 
appellants’ argument that the Board selected the Policy Jury 
plan in preference to the NAACP alternative because of a 
discriminatory purpose. Miller, 115 S. Ct. at 2492. The Board 
was offered a choice between two alternative redistricting 
plans. As the undisputed facts establish, one plan had been 
precleared by the Justice Department, supported by the black 
member of the Police Jury’s Reapportionment Committee, 
enhanced minority voting strength and clearly complied with 
state law and traditional districting principles, such as com­
pactness and maintaining the integrity of municipal, district 
and precinct boundaries. J.A. 47; J.A. 42. The other alterna­
tive concededly constituted a facial violation of state law 
which the School Board was without power to change, 
required more than doubling the number of existing precincts, 
split every municipal boundary in the Parish, grossly departed 
from the Police Jury districts and created black majority 
districts that were plainly not compact under any normal 
definition of that term. J.A. 48-49; plaintiff’s Exh. 11. It was 
further conceded that the sole, not only “predominant,” rea­
son for so “subordinat[ing] [traditional] districting principles” 
was to racially discriminate in favor of black voters. J.A. 260; 
Shaw II, 116 S. Ct. at 1901 (quoting Miller, 115 S. Ct. at 
2488).

Indeed, so far as we can discern, this case is unique in the 
annals of discriminatory purpose jurisprudence in that the 
minority proponents cannot offer a single nonracial reason 
for adopting the minority-enhancing alternative. Appellants 
cannot cite one traditional districting principle in which the

Pleasant Grove v. United States, 479 U.S. 462, 469 (1987) (holding that 
under Section 5, “findings, both as to the purpose [of adopting a voting 
change] and with respect to the weight of evidence regarding the purpose 
of the [changes] at issue, are findings of fact that we must accept unless 
clearly erroneous”). Anderson v. City o f Bessemer City, 470 U.S. 564, 573 
(1985).

41

proposed NAACP alternative is superior to the Police Jury 
plan. Conversely, in several key respects -  compliance with 
political boundaries, maintaining precincts, compactness, 
compliance with state law -  the NAACP maximization alter­
native is both obviously inferior to the Police Jury plan and, 
in fact, materially indistinguishable in purpose and effect 
from the racial gerrymanders this Court has repeatedly struck 
down as unconstitutional. Indeed, the deficiencies in the 
NAACP alternative are so apparent that even appellants aban­
doned it as a viable plan at trial, seeking to substitute the post 
hoc alternative “Cooper” plans (which nevertheless retained 
all of the deficiencies outlined above).

Moreover, there is no assertion or showing that the Police 
Jury plan in any way “packs” or “fragments” any concentra­
tion of minority voters or otherwise “split (or lumped) minor­
ity neighborhoods that would have been grouped into a single 
district (or spread among several) if the [Board] had 
employed the same line-drawing standards in minority neigh­
borhoods as it used elsewhere in the jurisdiction.” Johnson, 
114 S. Ct. at 2659. To the contrary, as is demonstrated by the 
fact that the Police Jury plan was precleared after careful 
scrutiny by the Justice Department, the plan kept intact any 
reasonable concentration of minority voters that was feasible 
under neutral principles and state law. In a Parish with a 
20.1% black population, this resulted in the creation of two 
districts with 45% and 43.7% black populations, respectively, 
and four districts with black populations of between 21 and 
29%. J.A. 47. It merely did not seek, as the NAACP plan 
concededly did, to unite through a conscious gerrymander 
widely dispersed black concentrations that never would have 
been united were their racial composition different.

As even this brief review demonstrates, appellants’ real 
complaint is not that the Board subordinated neutral princi­
ples in order to discriminate against minority voters, but that 
they failed to subordinate such principles in order to discrimi­
nate in favor of minority voters. The Justice Department 
candidly said as much to the district court, when it explicitly 
argued that if “the Bossier Parish School Board declined to 
take race into account [to prefer minorities this] would indeed



42

violate Section 5.” App. 24a n.12. As in Miller and Shaw II, 
then, the Justice Department expressly equates a failure to 
maximize with a discriminatory purpose, at least absent some 
absolutely compelling reason that necessarily forecloses max­
imization. See, e.g., DOJ Objection Letter, App. 156a (School 
Board “is not free to adopt a plan that unnecessarily limits the 
opportunity for minority voters to elect their candidates of 
choice.”) (emphasis added).

The Court should again reject the Justice Department’s 
attempt to equate racial discrimination with the failure to 
engage in racially preferential treatment for minorities. Most 
fundamentally, this is because the assertion that race-blind 
actions constitute intentional racial discrimination is a classic 
oxymoron. Somewhat less directly, but no less significantly, 
basing a “purpose” finding on the failure to engage in race- 
based redistricting creates an inexorable hydraulic pressure 
on governments to adopt an unconstitutional racial gerry­
mander that subordinates traditional districting principles. Cf. 
Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 993 
(1988); Wards Cove Packing Co., Inc. v. Antonio, 490 U.S. 
642, 653 (1989). As this Court has noted, local governments 
must be given leeway to reconcile the potential tension 
between the “results” demands of Section 2 with the Constitu­
tion’s command to avoid race-conscious redistricting that 
subordinates neutral principles. Vera, 116 S. Ct. at 1961; id. 
at 1969 (O’Connor, J., concurring). If this Court were now to 
require district courts, notwithstanding Rule 52, to infer dis­
criminatory purpose when the government simply rejects a 
concededly race-conscious gerrymander that violates state 
law and traditional principles, it will have destroyed that 
leeway by forcing governments to engage in such gerry­
manders. This would be particularly ill-advised because, even 
assuming there is some inevitable potential tension between 
Section 2 and the Equal Protection Clause, there is obviously 
no such tension between the “purpose” requirement of Section 
5 and the “purpose” requirement of the Fourteenth Amend­
ment: both are plainly satisfied by racial neutrality towards 
all groups. Indeed, this Court has already held that such a 
“race-neutral” plan is the only constitutionally permissible

43

remedy for violating Section 5’s purpose requirement. Shaw 
II, 116 S. Ct. at 1904 n.6 (“Even if discriminatory purpose 
could be shown, the means of avoiding such a violation could 
be race-neutral, and so we also doubt that the prospect of 
violating the purpose prong of § 5 could justify a race-based 
redistricting plan. . . . ”). Since race neutrality is the touch­
stone of any liability or remedy, it is virtually, if not theo­
retically, impossible that a redistricting plan which more 
directly adheres to neutral redistricting standards than the 
maximizing alternative reflects racial animus, and it is quite 
impossible to hold a contrary finding “clearly erroneous.” As 
we now show, the plan selected by Bossier Parish was just 
such a redistricting plan, which cannot be found to violate 
Section 5 without both redefining discriminatory “purpose” 
and compelling the adoption of an unconstitutional racial 
gerrymander.

1. The short, and dispositive, explanation for why the 
Board had a completely legitimate, nondiscriminatory reason 
for rejecting the proposed NAACP alternative is that this 
alternative (or even any variant thereof)29 * facially violated a 
state law that the Board was powerless to evade. The Board 
was required to use the precincts created by the Police Jury 
(and used by the Police Jury for its districts) as the “building 
blocks” for the Board’s districts. Louisiana law is quite 
unequivocal on this point: “[t]he boundaries of any election 
district for a new apportionment plan from which members of 
a school board are elected shall contain whole precincts 
established by the parish governing authority [i.e., the 
Police Jury]. . . . ” J.A. 265-66. The failure to abide by this

29 Given that the Cooper plans were not even formulated until after
the School Board had adopted its plan, they are clearly irrelevant to this 
proceeding. In any event, these plans clearly subordinate traditional 
rcdistricting principles to racial considerations. Even the “best” of these 
plans splits all but one of the Parish’s towns, results in 31 precinct splits 
and is not compact. J.A. 51. See Plaintiff’s Exh. 10 (lodged with the Court).



44

mandatory requirement renders the School Board’s redistrict- 
ing plan “null and void.”30 J.A. 266.

The Police Jury established 56 precincts for this decade in 
1991, which the School Board was thus obliged to use to build 
its own districts. The district lines in the NAACP plan, how­
ever, cut 46 of those precincts, some of them more than once, 
for a total of 65 different precinct splits. App. 29a; Plaintiff’s 
Exh. 11. The appellants seek to portray this as a mere inconve­
nience. To the contrary, these 65 separate violations of state 
law rendered the NAACP plan a nullity and did indeed “legally 
preclude the Board from considering the plan.” U.S. Br. 9.

Appellants maintain that another entity, the Police Jury, 
could have helped the School Board evade this state law. What 
they mean by this is that the School Board would have been in 
technical compliance with the requirement that their precincts 
be coextensive with the Police Jury’s, if the Police Jury had 
voluntarily decided to create 65 additional precincts to track 
the School Board’s precincts under the NAACP plan. What 
appellants cannot provide is any rational, nonracial reason why 
the Police Jury (or the Board) would ever engage in such a 
bizarre, costly and confusing exercise.

Every objective reason strongly counseled against more 
than doubling the existing number of precincts in this poor 
rural parish. This Court has already vividly described the 
“electoral nightmare” and “multiplied” costs caused by 
racially-motivated line drawings which required Harris County, 
Texas to almost double its existing precincts and “thrust voters 
into new and unfamiliar precinct alignments, a few with popu­
lations as low as 20 voters.” Vera, 116 S. Ct. at 1959. See Shaw 
II, 116 S. Ct. at 1904 (traditional districting principles fur­
thered by “keep[ing] precincts whole”); Johnson v. Miller, 864 
F. Supp. 1354, 1367, 1376 (S.D. Ga. 1994) (criticizing precinct

30 In an attempt to confuse this issue, appellants state that the Police 
Jury had modified the precincts used in the 1980’s when it adopted its 1991 
redistricting plan. This is quite true, but entirely beside the point. No state 
law prohibits the Police Jury from changing its prior precincts to reflect 
population shifts and conform with its new districts, but once it has done 
so, the Board must use those precincts to build its districts.

45

splits). The situation in Bossier Parish was even worse than 
that envisioned for Texas and Harris County. The number of 
precincts would have increased 115%, from 56 to 121, and 17 
of those 65 new precincts would have had less than 20 people 
in them. Plaintiff’s Exh. 11, pp. 1-26. In addition to producing 
the problems noted in Vera, the cost of each new precinct was 
approximately $850 or, in the aggregate, $55,250, for every 
state, federal and local election.31 J.A. 171. Finally, but per­
haps most important, “cutting across pre-existing precinct lines 
and other natural or traditional divisions, is not merely eviden­
tially significant; it is part of the constitutional problem insofar 
as it disrupts nonracial bases of political identity, and thus 
intensifies the emphasis on race.” Vera, 116 S. Ct. at 1962.

On a subjective level, of course, the Police Jury (and the 
Board) never would have believed that such massive, racially- 
motivated addition of precincts was necessary to secure the 
Justice Department’s Section 5 approval since the Department 
had just precleared the Police Jury’s districts and precincts a 
year before. Moreover, as the district court noted, the Police 
Jury had previously “rebuffed the School Board’s earlier over­
tures” for “joint rcdistricting,” and, after the Justice Depart­
ment objected to the Board’s plan, “[ojnce the idea of 
redistricting the police jury districts was presented, the Police 
Jury dismissed it real quickly.” App. 29a; App. 91a, (j[ 79). 
After the Justice Department’s objection, it is hardly surprising 
that the Police Jury wanted to maintain the status quo since a 
massive alteration of precinct boundaries, predicated on the 
need to depart from intentionally discriminatory Police Jury 
district lines, would have been a damaging admission of the 
Police Jury’s own liability. The School Board therefore had 
every objective and subjective reason not to quixotically 
request that the Police Jury conspire with it to wreak costly

31 Appellants suggest that such costs could have been potentially 
reduced through joint polling places for a number of precincts. This would 
have saved little, however, because the law expressly requires that each 
precinct have at least one voting machine, even if it is in a shared polling 
place (in order to be able to accurately tally the votes cast in each precinct). 
La. Rev. Stat., tit. 18 § 1363(A).



46

havoc on the electoral system, and the Police Jury had every 
such reason to refuse.

Though appellants must concede that there is no legiti­
mate, nonracial reason for destroying the existing precinct 
system, they apparently claim that such reasons were post hoc 
pretexts invented by the Board.32 * But the undisputed facts 
establish that the contemporaneous explanation for rejecting 
the NAACP alternative was that the district attorney and the 
Board’s cartographer both correctly informed the Board that 
the NAACP’s massive precinct splitting was a facial violation 
of state law. App. 6a; App. 99a (1 102). Moreover, although the 
Police Jury and School Board used different district lines for 
the first time in the 1980’s, they had never split precinct lines 
and there is no evidence that any of the redistricting plans 
submitted for the Board’s consideration by its cartographer 
created such splits. The United States says that precinct split­
ting in Louisiana is “quite common,” but this is a deliberate 
distortion of the record. While, as the stipulation cited by the 
Justice Department reflects, differing district lines may be 
“common,” appellants’ own witness was able to cite only 3 
such examples, and all of those apparently were done to

32 They further argue that the district court did not believe this
pretextual explanation, but erroneously found an absence of discriminatory 
purpose because the Board “could have” not wanted to destroy precincts. 
U.S. Br. 30; App. 38. This is plainly untrue. The Court’s opinion noted that 
the contemporaneous explanation for rejecting the NAACP plan was the 
precinct splits. App. 6a. It further noted that the School Board had “offered 
a host of non-discriminatory reasons for adopting the Police Jury plan.” 
App. 27a. It rejected some offered explanations because they were not “the 
real reasons,” but was “satisfied that at least two of these are ‘legitimate’ ” 
-  “guaranteed preclearance” and “no precinct lines would need redrawing.” 
App. 27a-28a (quoting New York, 874 F. Supp. at 400). This plainly 
demonstrates that the Court was clearly accepting only the “real reasons” 
motivating the Board at the time of the decision, not manufacturing or 
crediting untrue post hoc rationalizations. When the opinion later said, after 
canvassing the merits of avoiding precinct splits, that the Board “entirely 
reasonably could have” desired no precinct splits, it was obviously 
concluding that the Board’s subjective motivation was also objectively 
credible and important. App. 29a.

47

accommodate Justice Department objections. J.A. 240; J.A. 
137-138. None remotely approached the massive 65 precinct 
splits of the NAACP plan; the greatest number of splits in 
other jurisdictions was eight. J.A. 238. Even assuming prac­
tices in other parishes somehow undermines Bossier Parish’s 
longstanding, uniform practice of preserving Police Jury pre­
cincts, the fact that a handful of other parishes buckled to the 
Justice Department’s demands to split a few  precincts hardly 
casts doubt on the legitimacy of the Board’s adherence to state 
law or its refusal to engage in futile, costly and irrational 
efforts to have the Police Jury help it evade this important 
requirement.

Since it is impossible to create a black majority district 
without splitting a very significant number of precincts, and 
since there was neither any rational reason to, nor reasonable 
hope of, evading the state law prohibition against such precinct 
splits, this reason alone sufficed for the Board to reject the plan 
and for the district court to find no purpose. App. 115a (<][ 152);
J.A. 167. We nevertheless note that the Police Jury plan had a 
host of other legitimate nondiscriminatory advantages over the 
NAACP’s proposed racial gerrymandering. In the past two 
Terms, the Court has accepted adherence to each such tradi­
tional redistricting principle as a refutation of any discrimina­
tory purpose finding and found departures from each such 
principle sufficient to condemn racial gerrymanders.

First, the NAACP’s proposed lines were at war with every 
other political boundary in the Parish. Most obviously, while 
the School Board plan tracked precisely the Police Jury’s 
districts, the maximization alternative used completely differ­
ent district lines. Plaintiff’s Exh. 11 (first page). Such complete 
divergence between district lines greatly compounded the 
“voter confusion” caused by the precinct splits because it 
prevented “[communities] [from] sharing] . . . representatives” 
with common interests. Vera, 116 S. Ct. at 1959; see Shaw II, 
116 S. Ct. at 1904 (a legitimate nondiscriminatory principle is 
to “avoid dividing counties into more than two districts.”). 
Similarly, while the Police Jury plan and all prior redistricting 
plans scrupulously maintained the integrity of municipal



48

boundaries within the Parish, the maximizing alternative exhib­
ited “utter disregard of city limits” by splitting all three towns 
in the Parish. Vera, 116 S. Ct. 1959; Miller, 115 S. Ct. at 2484. 
A black majority district in the northern part of the Parish was 
not possible unless these small towns were split “in order to 
capture pockets of [black] residents” living within municipal 
limits. Vera, 116 S. Ct. at 1959.

With respect to compactness, while the School Board’s 
northern district (District 4) is a square, regularly shaped 
district, the NAACP creates two long, narrow jagged districts 
(Districts 2 and 12) that are “somewhat hooked-shaped 
. . . with finger-like extensions” that “wind in a snake-like 
fashion . . . until it gobbles in enough enclaves of black 
neighborhoods.” Shaw II, 116 S. Ct. at 1899; Vera, 116 S. Ct. 
at 1954-55. Similarly, in Bossier City, the NAACP’s black- 
majority and adjacent districts (Districts 1 and 6) are even 
skinnier, more distended and less compact than the northern 
districts.33 This is in contrast, again, to the School Board’s

33 Appellants cite to a stipulation that purports to demonstrate the 
compactness of their proposals for the black-majority district in Bossier 
City. App. 1, |  36. This stipulation, however, has no bearing on and makes 
no reference to the plans proposed by the appellants. Instead, when placed 
in context, it suggests that it was obvious, apparently to some unnamed 
members of the Police Jury in 1991, that one “reasonably compact” 
majority-black district could be established within Bossier City. This 
subjective assessment of some of the Police Jurors has no reference to the 
objective feasibility of creating a “reasonably compact” black-majority 
district in Bossier City. Furthermore, even if the Court were inclined to 
adopt a broad construction of the stipulation at issue, the facts relating to 
the stipulation were contested at trial. The parties introduced substantial 
evidence reflecting on the feasibility of creating a “reasonably compact" 
majority-black district in Bossier City. See, e.g., Plaintiff’s Exh. 11; J.A. 
48-49, J.A. 51-52, J.A. 260-61. Thus, the stipulation should be disregarded. 
PPX Enter., Inc. v. Audiofidelity, 746 F.2d 120, 123 (2d Cir. 1984) (a court 
is entitled to disregard a stipulated fact where “substantial” evidence is 
presented to contradict such stipulation); Coastal States Marketing v. Hunt, 
694 F.2d 1358, 1369 (5th Cir. 1983) (asserting that a court has “not only the 
right but the duty” to relieve a party from a pretrial stipulation where 
“substantial evidence” is presented to contradict the stipulation).

49

districts that are quite compact, especially given population 
concentrations, the bordering river and Parish boundaries. The 
Plan’s departures from compactness are inherently required to 
create both black majority districts. This is evidenced by the 
fact that the best version of any such plan, (“Cooper I”) was 
condemned by a federal district court, “as resembling] an 
octopus, as it stretches out to the nooks and crannies of the 
parish in order to collect enough black voting age population to 
create not one, but two majority-black districts in Bossier.” 
J.A. 38. Even a cursory glance at the maps reveals that both 
black majority districts are far less compact, and more 
unwieldy, than the Georgia district struck down in Miller. Cf. 
Miller, 115 S. Ct. at 2477, 2495.

The only “flaw” appellants seek to identify in the Police 
Jury plan is that it did not sufficiently provide for “incumbency 
protection” because it “paired” incumbents in two districts.34 
While the Board may have initially perceived this as a “flaw” 
in the Police Jury plan, it is certainly not a “flaw” in relative 
terms. As appellants elsewhere argue when it fits their pur­
poses, and as is evident from the NAACP plan’s dramatic 
departure from the 1980’s district configurations, that plan 
would have disrupted incumbents’ desired and existing dis­
tricts more substantially than the Police Jury plan. U.S. Br. 26 
n.15. Thus, even if the desire of “representatives [to] select 
[their] people” should be elevated to the status of a beneficial 
redistricting principle serving the public interest, the NAACP’s 
plan is worse in this regard as well. Vera, 116 S. Ct. at 1954. 
Thus, contrary to appellants’ argument, if incumbency was a 
“factor usually considered important by the decisionmaker [it 
did] not strongly favor a decision contrary to the one 
reached . . . ” and thus provides no basis for an “inference of 
discrimination.” U.S. Br. 27 (quoting Arlington Heights, 429 
U.S. at 267 & n. 17). To be sure, some Board members probably 
did initially resist the Police Jury plan because of the “pairs” 
and desired a plan that better “protected” everyone. This

34 There is no evidence that the appellants newly-discovered “a 
school building in every district” rule was ever a redistricting principle in 
the Parish, or that the NAACP plan adhered to it at all. U.S. Br. at 26-27.



50

potential defect, from a self-interested perspective, of the 
Police Jury plan, however, was outweighed by the fact that, 
among any of the plans arguably consistent with state law and 
districting principles, the Police Jury plan alone “guaranteed 
preclearance” in the face of the NAACP’s opposition. App. 
28a. Such accommodation of competing interests hardly sug­
gests a discriminatory purpose, but simply reflects the normal 
selection process among imperfect alternatives that typifies all 
redistricting decisions.35

CONCLUSION
For the foregoing reasons, the judgment below should be 

affirmed.

J am es J . T hornton  
642 Stoner Avenue 
Shreveport, LA 71101 
(318) 221-6294
M ichael  P. M cD onald  
H ans B ader

Center for Individual Rights 
1300 19th Street, N.W. 
Washington, D.C. 20036 
(202) 833-8400

Respectfully submitted,
M ichael A. C arvin* 
D avid H . T hompson 
S haw, P ittm an , P otts & 

T row bridge 
2300 N Street, N.W. 
Washington, D.C. 20037 
(202) 663-8000
*Counsel of Record

35 The sum total of appellants’ purpose case thus reduces to the 
complaint that the district court failed to sufficiently discount the Board’s 
appointment of a black member for the only vacancy available and did not 
put the most nefarious possible spin on certain hearsay statements that 
Board members allegedly conveyed to the appellant-intervenor and other 
civil rights advocates in the community. App. 30a-31a. This quibbling over 
the import (or existence) of, at worst, ambiguous acts and statements is of 
no consequence because “such questions of credibility are matters for the 
District Court” and this Court will not “second-guess the district court’s 
assessment of the witness’s testimony.” Vera, 116 S. Ct. at 1957. In any 
event, as even the dissenting opinion conceded, the Board members’ 
alleged “statements standing alone would certainly be insufficient to show 
discriminatory purpose.” App. 53a.