Reno v Bossier Parish School Board Brief Reargument of Appellants

    Nos. 98-405 & 98-406

In The

S u p re m e  C o u rt of tfje ®nfteb S ta te s;

Janet Reno, Attorney General of 
the United States,

Appellant, and
George Price, etal.,

v.
Appellants,

Bossier Parish School Board,
Appellee.

On Appeal from the 
United States District Court 
for the District of Columbia

REPLY BRIEF ON REARGUMENT OF 
APPELLANTS GEORGE PRICE, ET AL.

Barbara R. Arnwine 
Thomas J. Henderson 
Edward Still 

Lawyers’ Committee For 
Civil Rights Under Law 
1401 New York Ave., N.W. 
Suite 400
Washington, D.C. 20005 
(202) 662-8600

* Counsel of Record

Patricia A. Brannan* 
John W. Borkowski 

Hogan & Hartson l.l .p. 
555 Thirteenth Street, NW. 
Washington, D.C. 20004 
(202)637-8686

Counsel for Appellants 
George Price, et al.



T A B LE O F CONTENTS

I. THE COVERED JURISDICTION HAS THE 
BURDEN OF PROVING THAT ANY 
PROPOSED VOTING CHANGE LACKS A 
RACIALLY DISCRIMINATORY PURPOSE..............1

H. SECTION 5 PRECLEARANCE SHOULD 
NOT BE GRANTED TO A PROPOSED 
VOTING CHANGE ADOPTED WITH A 
RACIALLY INVIDIOUS, BUT NON- 
RETROGRESSIVE, PURPOSE................................... 2

CONCLUSION................................................................... .

Page

(i)



11

CASES:
Beer v. United States, 425 U.S. 130 (1976).................. 2, 7
Busbee v. Smith, 549 F. Supp. 494 

(D.D.C. 1982), aff’d, 459 U.S. 1166 (1983)..............  7
Cannon v. University of Chicago, 441 U.S. 677 

(1979)............... .......................................................  10
City o f Pleasant Grove v. United States,

479 U.S. 462 (1987)..................................................  7
City o f Richmond v. United States, 422 U.S. 358 

(1975).......................................................................  6-7
Gomillion v. Lightfoot, 364 U.S. 339 (1960).................  4
Holder v. 512 U.S. 874 (1994)............................. 5
Lane v. Wilson, 307 U.S. 268 (1939)............................ 4
Miller v. Johnson, 515 U.S. 900 (1995)........................ 1, 4
Personnel Adm ’r o f Massachusetts v. Feeney,

442 U.S. 256 (1979)..................................................  4-5
Reno v. Bossier Parish School Board,

520 U.S. 471 (1997)..................................................  passim
Rogers v. Lodge, 458 U.S. 613 (1982).......................... 4
Steffel v. Thompson, 415 U.S. 452 (1974).....................  10
Thornburg v. Gingles, 478 U.S. 30 (1986).................... 5, 6
Village of Arlington Heights v. Metropolitan 

Housing Dev. Corp., 429 U.S. 252 (1977).................  passim
Washington v. Davis, 426 U.S. 229 (1976)................... 4

CONSTITUTIONAL PROVISIONS:
U.S. Const, amend. XV................................................  passim

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



Ill

STATUTORY PROVISIONS-.
Voting Rights Act of 1965,
42 U.S.C. § 1973 (§ 2)................................................  passim
42 U.S.C. § 1973b(c) (§ 4 ) .......................................... 3
42 U.S.C. § 1973c (§ 5)..............................................  passim
42 U.S.C. § 1973d....................................................... 4
42 U.S.C. § 1973h....................................................... 3

T A B L E  OF AUTH ORITIES— C ontinued

Page

OTHER AUTHORITY-.
F. Frankfurter & J. Landis, The Business of the 

Supreme Court (1928)................................. 10



I. THE COVERED JURISDICTION HAS THE 
BURDEN OF PROVING THAT ANY PROPOSED 
VOTING CHANGE LACKS A RACIALLY 
DISCRIMINATORY PURPOSE.

The cursory argument of the Bossier Parish School Board 
(“School Board” or “Appellee”) that the defendants bear the 
burden of proving in a § 5 declaratory judgment action that a 
covered jurisdiction has a non-retrogressive discriminatory 
purpose (Appellee’s Br. at 21-25)1 js contrary to the lan­
guage o f the Voting Rights Act, its history, and this Court’s 
decisions. See Miller v. Johnson, 515 U.S. 900, 924 (1995) 
(“the State [the covered jurisdiction] has the burden to prove 
a nondiscriminatory purpose under § 5”). Appellee’s effort 
to shift the burden of proof is based principally on the incor­
rect premise that the Attorney General conceded the point in 
Bossier I, Reno v. Bossier Parish School Board, 520 U.S. 
471 (1997), App. 29a. Appellee does not claim that the Price 
Appellants ever made any such “concession”; in any event 
Appellee’s argument is incorrect because the Attorney Gen­
eral’s brief in Bossier I  addressed who would bear the burden 
of proof if a violation of § 2 established independent cause 
for denial of preclearance under § 5. See App. 29a-30a.

The School Board also mischaracterizes the dissenting 
opinion in Bossier I  when it argues that the United States 
“has the burden to prove unconstitutional purpose in a 
Section 5 court, just as it would in ‘any [constitutional] 
challenge’ in district court.” Appellee’s Br. at 2-3, quoting 
Bossier I, App. 69a (Stevens, J.; dissenting in part and 
concurring in part). The quoted statement from Justice 
Stevens’ opinion actually refers to § 2; the same sentence 
expressly recognizes that the burden to prove 
nondiscriminatory purpose is on the covered jurisdiction:

While the burden o f disproving discriminatory purpose or 
retrogressive effect is on the submitting jurisdiction, if

1 “Appellee’s Br.” refers to the Brief of Appellee on 
Reargument; “App.” refers to the Appendix to the Jurisdictional 
Statement in No. 98-405.



2

the Attorney General’s conclusion that the change would 
clearly violate § 2 is challenged, the burden on that issue, 
as in any §2  challenge, should rest on the Attorney 
General. [App. 69a, Stevens, J., dissenting in part and 
concurring in part (emphases added).]

II. SECTION 5 PRECLEARANCE SHOULD NOT BE 
GRANTED TO A PROPOSED VOTING CHANGE 
ADOPTED WITH A RACIALLY INVIDIOUS,
BUT NON-RETROGRESSIVE, PURPOSE.

The School Board is incorrect that “no one argues that the 
statutory language can be consistently construed to prohibit 
only a retrogressive effect but simultaneously prohibit a 
nonretrogressive purpose.” Appellee’s Br. at 22 n.10. That 
is precisely what the United States and the Price Appellants 
argue, because it is the word “effect” in § 5 that has been 
construed to encompass only retrogressive voting changes. 
Beery. United States, 425 U.S. 130, 141 (1976).

In its effort to limit the coverage o f § 5 only to 
retrogression, Appellee distorts the language and legislative 
history of the statute, twists the straightforward purpose 
inquiry into speculation concerning other hypothetical voting 
plans, expands the concept of retrogression beyond 
recognition, and ignores the interest o f minority voters in 
procedural fairness. The statute and this Court’s decisions 
call for a purpose inquiry that provides a full evidentiary 
examination of the proof relevant to racially discriminatory 
intent, unfettered by a restriction to retrogression. The Price 
Appellants urge the Court to reject the proposition that § 5 
preclearance must be granted to a non-retrogressive voting 
change even if it was adopted with an invidious racially 
discriminatory purpose.

A. Appellants’ arguments are not based on a “policy 
reason to stretch Section 5 to reach nonretrogressive changes 
motivated by a discriminatory purpose.” Appellee’s Br. at 2. 
This purpose inquiry is mandated by the statute: Section 5 
requires that a covered jurisdiction demonstrate that each



3

voting change “does not have the purpose” of denying or 
abridging the right to vote on account o f race.

The discourse in Appellee’s Brief on the differences 
between a direct challenge to voting discrimination under the 
Fifteenth Amendment and the operation of § 5 thus is 
irrelevant. The School Board’s citation to Bossier I  for the 
proposition that “Section 5 is not and cannot be coextensive 
with the Constitution,” Appellee’s Br. at 6, citing Bossier I, 
App. 33a, is especially puzzling because, at the page cited, 
Bossier I  discusses the differences between the coverage of 
§ 2 and § 5 of the Voting Rights Act, with no reference to 
how § 5 corresponds with any constitutional provision.

The School Board claims that § 5 must now be 
reinterpreted because Congress’ goal in adopting § 5 was 
only to prevent “‘backsliding’ from the improvements to the 
discriminatory status quo that would be caused by the Act’s 
other provisions.” Appellee’s Br. at 7. This reading of § 5 
effectively deletes the “purpose” prong. Appellants have 
presented in previous briefs the legislative history 
demonstrating that this was not intended, because Congress 
well knew that the status quo was rife with many kinds of 
discrimination that successfully prevented black voter 
registration and that would not be uprooted simply with the 
passage of these other provisions.2 The “tests and devices” 
suspended by § 4 of the Act are very specifically defined: 
Prerequisites to registration or voting based on literacy or 
educational achievement, good moral character, or voucher 
by other voters. 42 U.S.C. § 1973b(c). The Act does not 
invalidate the poll tax outright, but gives the Attorney 
General power to bring actions challenging poll taxes where 
they have the purpose or effect of denying or abridging the 
right to vote on account of race or color. 42 U.S.C. § 1973h.

The Voting Rights Act did not, at the moment of its 
adoption, automatically halt discriminatory districting plans,

2 See Brief for the Federal Appellant at 18-24; Brief of 
Appellants George Price, et al., at 22-25 (“Price Opening Brief’); 
Brief on Reargument for the Federal Appellant at 9-13.



4

registration procedures, or other mechanisms that already 
were known to exclude or impair black voter participation. 
See, e.g, Lane v. Wilson, 307 U.S. 268 (1939) (12-day limit 
on registration for voters not previously eligible to vote under 
grandfather clause); Gomillion v. Lightfoot, 364 U.S. 339 
(1960) (racially gerrymandered municipal boundary). 
Congress clearly recognized that, after it invalidated tests and 
devices, there would be continued and renewed efforts to 
keep black voters from the polls. Congress included in the 
Voting Rights Act such extraordinary remedies as permitting 
the appointment by the Attorney General of federal 
examiners to monitor elections, 42 U.S.C. § 1973d, because 
it concluded that the full panoply o f discrimination aimed at 
keeping black citizens from voting only could be rooted out, 
on a case-by-case basis, by the operation over time of § 5 as 
well as § 2 and other provisions o f the Act.

B. The analysis of discriminatory purpose is not a “free- 
floating” inquiry that requires jurisdictions to “disprove the 
validity of hypothetical alternatives.” Appellee’s Br. at 4, 3. 
Far from floating free, the inquiry is firmly tethered to the 
framework adopted in Village o f  Arlington Heights v. 
Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977). See 
App. 48a. This Court’s holding in Bossier I  that a covered 
jurisdiction’s “purpose” should be measured in a § 5 
declaratory judgment action using the Arlington Heights 
framework drew on one of the most fundamental principles 
the Court has articulated in civil rights cases in the last 
quarter century. When a federal court is called upon to 
inquire about whether a governmental body has acted with an 
invidious racial intent, it cannot limit its inquiry to the effects 
of the action alone, because ‘“ the invidious quality of a law 
claimed to be racially discriminatory must ultimately be 
traced to a racially discriminatory purpose.’” Rogers v. 
Lodge, 458 U.S. 613, 617 (1982), quoting Washington v. 
Davis, 426 U.S. 229, 240 (1976). Accord Miller, 515 U.S. at 
913 (“the presumed racial purpose of state action, not its 
stark manifestation” violates the Constitution); Personnel 
Adm V o f Massachusetts v. Feeney, 442 U.S. 256, 279 (1979). 
Under Arlington Heights, more than a “deliberate



5

perpetuation of the status quo,” Appellee’s Br. at 4, is 
required to violate the purpose prong of § 5; it must be a 
racially motivated perpetuation of the status quo.

Appellee is simply wrong that preserving the prohibition in 
§5 of voting changes motivated by invidious racial 
discrimination would expand the § 5 inquiry to require 
comparisons with hypothetical, undiluted plans, or force 
covered jurisdictions to “maximize” minority representation 
in districting plans. See Appellee’s Br. at 4, 12-17. What the 
School Board characterizes as the Department of Justice’s 
“maximization policy” of the 1990s sheds no light on the 
intent of Congress in 1965. Moreover, the authorities the 
School Board tries to muster do not support its conclusion 
that demonstrating a legitimate non-racial purpose requires 
maximization. For example, Appellee states: “Under 
appellants’ free-floating ‘purpose’ inquiry, . . .  Justice 
Department lawyers or Section 5 ‘courts must choose an 
objectively reasonable alternative practice as a benchmark for 
the [dilutive purpose] comparison.’” Appellee’s Br. at 17, 
quoting Holder v. Hall, 512 U.S. 874, 888 (1994) 
(O’Connor, J., concurring in part and concurring in the 
judgment) (emphasis supplied by Appellee). In fact, Justice 
O’Connor stated that in a § 2  vote dilution case a “court must 
choose an objectively reasonable alternative practice as a 
benchmark for the dilution comparison.” Her analysis had 
nothing to do with “purpose.”3

3 Appellee asserts that § 2 prohibits “a dilutive purpose,” and 
cites Thornburg v. Gingles, 478 U.S. 30, 43-44 (1986), for the 
proposition that “Section 2 prohibits both an unintentional dilutive 
effect (‘result’) and a purposeful dilutive effect.” Appellee’s Br. 
at 11. To the contrary, §2 provides no support for Appellee’s 
hypothesis that since retrogressive effects are reached by § 5, it is 
unnecessary to reach non-retrogressive but racially hostile 
purposes. The Court held in Bossier I  that “[w]hen Congress 
amended § 2 in 1982, it clearly expressed its desire that § 2 not 
have an intent component.” App. 40a (emphasis in original) 
(citations omitted). Thornburg described the legislative history 
demonstrating that discriminatory intent or purpose is not required 
to establish a violation of § 2. Thornburg, 478 U.S. at 43-44.



6

Appellee argues that a prohibition of discriminatory 
purpose “fails to significantly expand a corresponding 
prohibition against an impermissible effect.” Appellee’s Br. 
at 11. By conceding that the purpose prong reaches some 
racially discriminatory voting changes not barred from 
preclearance by the effect test, Appellee identifies an 
important category of cases that should be covered by § 5, 
even if the number of such cases is not significant. The 
prohibition of discriminatory purpose bars some voting 
changes without a retrogressive effect because, in a 
discriminatory purpose analysis under Arlington Heights, 
“effect” is relevant but not dispositive. See App. 45a. The 
key to a covered jurisdiction’s presentation of a prima facie 
case on “purpose” in a § 5 declaratory judgment action is its 
ability to state and support race-neutral, objectively verifiable 
reasons for its proposed voting change. Defendants then 
must point to evidence o f racial intent. A neutral or 
ameliorative plan may be shown to be racially discriminatory 
under this analysis. On the other hand, a neutral or 
ameliorative plan that fails to “maximize” minority voting 
strength should be precleared if  the evidence overall shows 
that the plan was not the product o f racial discrimination but 
was adopted for sound and appropriate reasons.

C. In an effort to assure the Court that racist and 
insidious voting changes will not have to be precleared if 
“purpose” is limited to retrogressive intent, Appellee is 
forced to expand the concept o f retrogression beyond recog­
nizable bounds. See, e.g., Appellee’s Br. at 13 n.6 (suggest­
ing that a voting change making black voter participation “lit­
erally impossible” would be retrogressive if the status quo 
makes it “nearly impossible”). This effort is based on a mis­
reading o f the § 5 cases and misunderstanding of the role of 
§ 5 .

The School Board suggests that the annexation at issue in 
City o f  Richmond v. United States, 422 U.S. 358 (1975), had 
a “retrogressive effect” but was “permissible under Section 5 
unless the purpose of the annexation [was] to cause such 
retrogression, rather than to further a legitimate goal.”



7

Appellee’s Br. at 11 (emphasis added). Contrary to 
Appellee’s suggestion, the annexation in City o f  Richmond 
was held by the Court not to be retrogressive within the 
meaning of the term “effect.” See Beer, 425 U.S. at 139 n .l l  
(“City o f Richmond .. . thus decided when a change with an 
adverse impact on previous Negro voting power met the 
‘effect’ standard of § 5”). The remand in City o f Richmond 
was not tied to “retrogressive purpose,” but to the broader 
question of discriminatory purpose, i.e., whether the annexa­
tion was “taken for the purpose of discriminating against 
Negroes on account of their race” because such a discrimina­
tory enactment “has no legitimacy at all under our Constitu­
tion or under the statute.” 422 U.S. at 378 (emphasis added).

Appellee attempts to distinguish City o f  Pleasant Grove v. 
United States, 479 U.S. 462 (1987), by arguing that the 
Court’s decision is best explained on the basis that the annex­
ation could have a retrogressive effect on hypothetical future 
black voters, and so could be characterized as being infected 
with a retrogressive purpose. Appellee’s Br. at 20. The text 
does not support such a reading. Coupled with Appellee’s 
effort to turn Busbee v. Smith, 549 F. Supp. 494 (D.D.C. 
1982), a ff’d, 459 U.S. 1166 (1983), into a holding on retro­
gressive effect or retrogressive purpose even though the 
district court specifically found no retrogression, 549 F. 
Supp. at 516, Appellee is sowing seeds of confusion that will 
confound future § 5 cases. If hypothetical future black voters 
become part of the retrogression analysis, it has no logical 
boundary. Indeed, under Appellee’s expansive retrogression 
theory, every § 5 declaratory judgment trial in a redistricting 
case could involve days of testimony by competing demogra­
phic experts hypothesizing different scenarios on the poten­
tial growth of black voting populations. Moreover, Appellee 
does not limit its theory to districting cases, but would 
consider hypothetical future retrogressive effects of a myriad 
of voting changes, even a decision to reduce polling place 
hours. See Appellee’s Br. at 20-21. If  a covered jurisdiction 
really curtailed polling hours the day before the first black 
voter moves in, and application of the Arlington Heights 
framework reveals an effort to keep that one black citizen



8

from voting, the issue should be analyzed as straightforward, 
racially invidious discrimination rather than as hypothetical, 
future retrogression based on the impact on a single voter.

D. The School Board’s argument that preclearance of 
voting changes adopted with racially invidious intent is 
harmless as long as the effect is not retrogressive leads it to 
some strange conclusions. Appellee argues that because the 
§ 5 declaratory judgment court has power only to preclear or 
to reject proposed voting changes, § 5 should not bar 
purposefully discriminatory neutral or ameliorative changes, 
lest denial of preclearance harm minority voters. Appellee’s 
Br. at 4-5. It should not be assumed that the status quo will 
be maintained upon rejection of a voting change that is the 
product o f racial animus, but neutral or ameliorative in effect. 
Covered jurisdictions often proffer changes because 
maintaining the status quo is not an option. Redistricting, for 
example, must be done after the census to comply with one- 
person one-vote requirements. Maintaining a maladjusted 
plan is not an option when the court denies preclearance to a 
neutral plan adopted with a racially hostile intent.

Giving black citizens the opportunity to advocate locally 
for fairness and non-discriminatory treatment upon rejection 
o f such a proposal does justice to them and furthers the 
principles of democracy and fair play that benefit all citizens. 
Even where a proposed voting change is unmasked in a § 5 
proceeding as the product of invidious racial animus, the 
federalism considerations that underlie § 5 require that the 
covered jurisdiction go back to the community, through its 
ordinary processes, to consider alternatives. Such a return to 
local processes, so they can operate free of racial bias, is a 
fairer result than building into the interpretation of the statute 
an assumption that black and other minority voters benefit by 
a federal court’s preclearance of a non-retrogressive voting 
change adopted with racial animus against them.

The proof in this case demonstrates that Mr. Price and the 
other private Appellants were denied this basic opportunity to 
have their ideas and issues considered, free of racial bias, in 
the School Board’s redistricting process. The School Board



9

persistently and consistently rejected the efforts of 
representatives of the black community to be involved in the 
districting process, instead making critical decisions behind 
closed doors. Price Opening Brief at 33-37. The School 
Board did an about-face regarding the Police Jury plan, App. 
30a-31a, as soon as it realized that it could draw two 
compact, contiguous majority-black election districts in a 12- 
member single-district election plan while complying with 
one-person, one-vote principles. Price Opening Brief at 33- 
37. The Police Jury plan flew in the face of the School 
Board s traditional districting goals and faced strong public 
opposition expressed in a petition and public hearing. Id. at 
36. The plan wreaked havoc with incumbencies, contained 
districts that were not compact, distributed schools unevenly 
across the election districts, and had one district that was not 
contiguous. Id. at 29. The plan violated a state law 
requirement that no election district deviate from the one- 
person, one-vote ideal by more than 5%. Id. The plan 
avoided the obvious opportunity to create a majority-black 
district in Bossier City and a readily discernible majority- 
black district in the northern part o f the parish. Id. at 28-29.

The district court summarized its findings as “tending to 
establish that the board departed from its normal practices,” 
and found that this “establishes rather clearly that the board 
did not welcome improvement in the position of racial min­
orities with respect to their effective exercise of the electoral 
franchise. App. 6a, 7a. The School Board’s motive was 
clear: With an unresolved federal court school desegregation 
case and a history of shunting aside concerns of black parents 
about the education of their children, Price Opening Brief at 
30-33, election of candidates chosen by the black community 
to the School Board would require attention to that 
community’s concerns. The district court found: “The intent 
[this school desegregation history] proves . . .  is a tenacious 
determination to maintain the status quo.” App. 7a.

It is absurd to suggest, in a case in which there never has 
been a black majority election district, and no black School 
Board member ever had been elected at the time the plan was



10

adopted, that the evil the Court needs to fear is “maximiza­
tion” of minority voting strength. The School Board’s pro­
posed plan fails the § 5 purpose prong not because it rejected 
any particular district lines, but because it denied the Price 
Appellants and other black citizens the simple justice of an 
opportunity to have their voices heard free of discriminatory 
intent against them in the process of redistricting the school 
district in which they live and pay taxes, and where their 
children and grandchildren attend school.

Indeed, the important principles of federalism that Appellee 
invokes, see Appellee’s Br. at 17, are consistent with a 
holding that any voting change should be denied § 5 
preclearance if the covered jurisdiction cannot show that it 
lacks a racially discriminatory purpose:

No such problem [of whether a federal remedy intrudes in 
subjects basically of concern to the States] is raised by a 
prohibition against invidious discrimination of any 
sor t . . . .  Since the Civil War, the Federal Government 
and the federal courts have been the “‘primary and 
powerful reliances’” in protecting citizens against such 
discrimination. Steffel v. Thompson, 415 U.S. 452, 464 
[(1974)], quoting F. Frankfurter & J. Landis, The 
Business o f  the Supreme Court 65 (1928). [Cannon v. 
University o f Chicago, 441 U.S. 677, 708 (1979) 
(emphasis in original).]

CONCLUSION

For these reasons and those set forth in the earlier briefs in 
this matter, the Court should reverse the judgment below.



11

Barbara R. Arnwine 
Thomas J. Henderson 
Edward Still 

Lawyers’ Committee For 
Civil Rights Under Law 
1401 New York Ave., N.W. 
Suite 400
Washington, D.C. 20005 
(202) 662-8600

* Counsel of Record

Respectfully submitted,

Patricia A. Brannan* 
John W. Borkowski 

Hogan & Hartson l.l .p . 
555 Thirteenth Street, N.W. 
Washington, D.C. 20004 
(202) 637-8686

Counsel fo r Appellants 
George Price, et al.