State of Louisiana v. Hays Brief Amicus Curiae in Support for Appellants

    No. 94-558, -627

In  T he

Supreme Court of tfje H m teb S>tate£
October Term , 1994

United States, 

and

State of Louisiana, et a l, 

y.
Ray Hays, et al.,

Appellant,

Appellants,

Appellees.

On Appeals from  the United S tates D istrict Court 
fo r the W estern D istrict of Louisiana

BRIEF OF BERNADINE ST. CYR, HAZEL J. FREEMAN, 
DONALD THIBODEAX, PARTICK FONTENONT, 

JANICE FRAZIER, THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AND THE LOUISIANA 
LEGISLATIVE BLACK CAUCUS AS AMICI CURIAE 

IN SUPPORT OF APPELLANTS

Barbara R. Arnwine 
Thomas J. Henderson 
Brenda Wright 
J. Gerald Hebert 
Lawyers’ Committee for 
Civil Rights Under Law 
1450 G Street, NW 
Suite 400 
(202) 662-8600

Robert B. McDuff 
711 North Congress Street 
Jackson, MS 39202 
(601) 969-0802

Attorneys for Amicus Curiae 
the Louisiana Legislative 
Black Caucus

Elaine R. J ones 
Director-Counsel

Theodore M. Shaw 
Norman J. Chachkin 
Charles Stephen Ralston 
* J acqueline A. Berrien 

NAACP Legal Defense and 
Educational Fund, Inc.
99 Hudson Street 
Sixteenth Floor 
New York, NY 10013 
(212) 219-1900

* Counsel o f Record

Attorneys for Amici Curiae 
Bernadine St. Cyr, Donald 
Thihodeax, Patrick Fontenot, 
Janice Frazier, and the NAACP 
Legal Defense and Educational 
Fund, Inc.

PRESS OF BYRON S. AMAMS, Washington, D.C. 1-800-347-8208



1

TABLE OF CONTENTS
Page

Table of Authorities .......................  ii

Interest of Amici Curiae .....................................   1

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

ARGUMENT

Introduction ........................................................... 3

T h e  U n c o n t r o v e r t ib l e  H is t o r y  o f  
D is c r im in a t io n  a g a in s t  A f r ic a n  
A m e r ic a n s  in  Lo u is ia n a , t h e  
R e p e a t e d  D il u t io n  o f  t h e ir  V o t in g  
St r e n g t h , a n d  t h e  P e r s is t e n c e  o f  
W h it e  Bl o c  V o t in g , A m p l y  J u s t if ie d  
t h e  C h a l l e n g e d  D is t r ic t in g  P l a n  . . . . . .  5

A. The History of Egregious 
Discrimination against 
African Americans in
Louisiana .................................................... 6

1. Discrimination in voting.............. 7

2. Discrimination in education
and other areas .................................  12

3. Continuing impact of this
discrimination......... ~ . 14



TABLE OF CONTENTS (continued)
Page

B. The State’s Consistent Dilution 
of African-American Voting 
Strength in the Drawing of
D istricts.................................................  16

C. The Persistence of Racially
Polarized V oting..................................... 22

D. The "Totality' of the Circumstances" . . 25

Conclusion......................... ........................................... 28

Table of Authorities

Cases:

Anderson v. Martin, 375 U.S. 399 (1964) ....................... 9

Brown v. Board of Education, 347 U.S. 483
(1954) ...................................................... 9, 13

Bussie v. Governor of Louisiana, 333 F.
Supp. 452 (E.D. La. 1971), affd and 
modified, 457 F.2d 796 (5th Cir. 1971), 
vacated sub nom. Taylor v. McKeithen,
407 U.S. 191 (1972), on remand, 499 
F.2d 893 (5th Cir. 1974) ................ . 16



Ill

Table of Authorities (continued)
Page

Cases (continued):

Chisom v. Edwards, 690 F. Supp. 1524 (E.D.
La. 1988), vacated, 853 F.2d 1186 
(5th Cir.), cert, denied, 488 U.S.
955 (1988) . ............................................... .. 12

Chisom v. Roemer, 501 U .S.__ , 115 L. Ed.
2d 348 (1991) . ..................... .................... .. 2

Citizens for a Better Gretna v. City of
Gretna, 636 F. Supp. 1113 (E.D. La.
1986) , affd, 834 F.2d 496 (5th Cir.
1987) , cert, denied, 492 U.S. 905 (1989) . . . .  12

City of Richmond v. J.A. Croson Co., 488
U.S. 469 (1989) .......................................... . 5, 26

Clark v. Edwards, 725 F. Supp. 285 (M.D. La.
1988) , vacated sub nom. Clark v. Roemer,
750 F. Supp. 200 (M.D. La. 1990), modified,
777 F. Supp. 445 (M.D. La. 1990), vacated,
501 U.S. 1246 (1991), on remand, 777
F. Supp. 471 (M.D. La. 1991), appeal 
dismissed, 958 F.2d 614 (5th Cir.
1992)  ................... 1 In, 12, 15, 23, 25, 26

Clark v. Roemer, 777 F. Supp. 471 (M.D.
La. 1991), appeal dismissed, 958
F.2d 614 (5th Cir. 1992) ..............................  26n

Guinn v. United States, 238 U.S. 347 (1915)............ 8n



IV

Cases (continued):

Hall v. St. Helena Parish School Bd.,
417 F.2d 801 (5th Cir.), cert, denied,
396 U.S. 904 (1969)....... ........................... .. . 13n

Houston Lawyers Association v. Attorney 
General of Texas, 501 U.S. , 115
L. Ed. 2d 379 (1991) . . . . . . . . . . . . . . . . . . .  2

International Bhd. of Teamsters v. United
States, 431 U.S. 324 (1977) .......................... 24n

Johnson v. DeGrandy,__ U .S.___ , 129 L.
Ed. 2d 775 (1994).....................................  6n, 25

Lane v. Wilson, 307 U.S. 268 (1939) . . . . . . . . . . . .  4n

Louisiana v. United States, 380 U.S. 145
(1965) ........................................ 7, 9, 10

Major v. Treen, 574 F. Supp. 325 (E.D.
La. 1983) ...................................................passim

NAACP v. Button, 371 U.S. 415 (1963) ----- . . . . . .  2

Parnell v. Rapides Parish School Bd.,
425 F. Supp. 399 (W.D. La. 1976), 
affd in part, 563 F.2d 180 (5th 
Cir. 1977), cert, denied, 438 U.S.
915 (1978) ................ .. ................... .. l ln

Table of Authorities (continued)
Page



Cases (continued):

Planned Parenthood v. Casey, 505 U.S.
__ , 120 L. Ed. 2d 674 (1992) ..................... .. 29

Poindexter v. Louisiana Financial Assistance 
Comm’n, 275 F. Supp. 833 (E.D. La.
1967), affd per curiam, 389 U.S. 571
(1968) ...................................................  11-12, 13

Regents of Univ. of Cal. v. Bakke, 438 U.S.
265 (1978) ................     26

Shaw v. Reno, 509 U .S .__ , 125 L. Ed. 2d
511 (1993) .........    29

Smith v. Allwright, 321 U.S. 649 (1944) ..................... 9

Thornburg v. Gingles, 478 U.S. 30 (1986)............ 2, 28

United Jewish Organizations v. Carey,
430 U.S. 144 (1977)............................................... 2

United States v. Louisiana, 225 F. Supp.
353 (E.D. La. 1963), affd, 380

Table of Authorities (continued)
Page

Zimmer v. McKeithen, 485 F.2d 1297 (5th 
Cir. 1973), affd sub nom. East 
Carroll Parish School Bd. v. Marshall, 
424 U.S. 636 (1976)..................... .. . . 6n, l ln



VI

Other Authorities:

Richard L. Engstrom, Stanley A. Halpin,
Jr., Jean A. Hill, and Victoria 
M. Caridas-Butterworth, Louisiana, 
in Quiet Revolution in the South: The 
Impact of the Voting Rights Act 1965- 
1990 (Chandler Davidson and Bernard 
Grofman, eds., 1994) . ............................... lln , 17

Alcee Fortier, History of Louisiana (1904) ..............  8n

Louisiana Act 538 of 1960 .......................................... . 9

Alice Love, David Duke Wants to Run for New 
Cajun House Seat, 39 Roll Call. August 
4, 1994 ...............................................................  14

1978 Almanac of American Politics .......................  19n

Nomination of William Bradford Reynolds to 
be Associate Attorney General of the 
United States; Hearings Before the 
Senate Committee on the Judiciary,
99th Cong. 1st Sess. (1985) ..................... 20n

Lawrence N. Powell, Read My Liposuction:
The Makeover o f David Duke, 203 New 
Republic 18 (Oct. 15, 1990).......................... 14n

Table of Authorities (continued)
Page



vu

Table of Authorities (continued)
Page

Other Authorities (continued):

Hon. George C. Pratt, Symposium, The Supreme 
Court and Local Government Law, The 
1992 Term, 10 Touro L. Rev. 295 (1994) . . 29n

Bruce A. Ragsdale and Joel D. Treese, Black
Americans in Congress. 1870-1989 (1990) . . . 5n



Nos. 94-558, -627

In  T h e

Supreme Court of tfje Um teb £>tate£
O c t o b e r  T e r m , 1994

U n it e d  St a tes , 

a nd

St a te  o f  L o u isia n a , et al,

v.
R a y  H a ys , et al,

Appellant,

Appellants,

Appellees,

On Appeals from the United States District Court 
for the Western District of Louisiana

BRIEF OF BERNADINE ST. CYR, HAZEL J. 
FREEMAN, DONALD THIBODEAX, PATRICK 

FONTENOT, JANICE FRAZIER, THE LOUISIANA 
LEGISLATIVE BLACK CAUCUS, and THE NAACP 

LEGAL DEFENSE AND EDUCATIONAL FUND, INC., 
as AMICI CURIAE IN SUPPORT OF APPELLANTS

In t e r e st  o f  A m ic i C u riae1

Bemadine St. Cyr, Hazel J. Freeman, Donald 
Thibodeax, Patrick Fontenot, and Janice Frazier are African-

1 Letters consenting to the submission of this brief have been filed 
with the Clerk of this Court.



2

American voters residing in the State of Louisiana. The 
Louisiana Legislative Black Caucus includes the African- 
American members of the Louisiana Legislature, all of 
whom are elected representatives and voters of the State of 
Louisiana, and many of whom reside in the present Fourth 
Congressional District. The Caucus supported the creation 
of the current Fourth Congressional District, a position 
joined by a majority of Louisiana’s elected legislature, 
including both white and African-American legislators. 
These individual voters and the Caucus sought to intervene 
in the District Court to protect the interest of voters in a 
reapportionment plan that complied with the requirements 
of the Voting Rights Act and the Fourteenth and Fifteenth 
Amendments to the Constitution of the United States, but 
that intervention was denied. The NAACP Legal Defense 
and Educational Fund, Inc. ("the Fund") is a non-profit 
corporation that was established for the purpose of assisting 
African Americans in securing their constitutional and civil 
rights. This Court has noted the Fund’s "reputation for 
expertness in presenting and arguing the difficult questions 
of law that frequently arise in civil rights litigation." NAACP 
v. Button, 371 U.S. 415, 422 (1963). The Fund has 
participated in many of the significant constitutional and 
statutory voting rights cases in this Court. See, e.g., United 
Jewish Organizations v. Carey, 430 U.S. 144 (1977); Thornburg 
v. Gingles, 478 U.S. 30 (1986); Chisom v. Roemer, 501 U.S.
__, 115 L. Ed. 2d 348 (1991); Houston Lawyers Association
v. Attorney General of Texas, 501 U.S.__ , 115 L. Ed. 2d 379
(1991).

Su m m a r y  o f  A r g u m e n t

Contrary to the opinion of the court below, there is 
an extensive, indisputable legal and factual basis supporting 
the Louisiana Legislature’s conclusion, following the 1990 
census, that compliance with the Voting Rights Act of 1965 
required it to fashion a Congressional redistricting plan with



3

two African-American-majority districts. Far from being 
pretextual (as the court below suggested), this conclusion is 
compelled in light of (a) the state’s long history of official 
discrimination against its African-American citizens 
(including restrictions upon their exercise of the franchise 
and neutralization of their voting strength); (b) the repeated 
invalidation, by federal courts or as a result of objections 
lodged by the Attorney General of the United States 
pursuant to Section 5 of the Act, of redistricting plans that 
had been adopted by the legislature because those plans 
were found to deny Black voters an equal opportunity to 
participate in the political process and to elect candidates of 
their choice to a variety of offices; and (c) the continued 
existence of white bloc voting against African-American 
candidates in Louisiana elections.

Argum ent

Introduction

Amici Curiae are African-American voters of the 
State of Louisiana, the Louisiana Legislative Black 
Caucus, and the NAACP Legal Defense and Educational 
Fund, Inc., which represents the individual amici here as 
well as voters in North Carolina, Texas, and Georgia2 
who have intervened in suits that seek to attack majority- 
African-American and -Hispanic-American Congressional 
districts in those states. In Louisiana, as in each of these 
states, the purposeful .creation of majority-minority 
districts arises in a specific historical context which the 
court below should have, but did not, adequately take into 
account in its decision.

2See Shaw v. Hunt, Nos. 94-923, -924; Lawson y. Vera, Nos. 94- 
805, -806, -988; and Johnson v. Miller, Nos. 94-631, -797, -929, 
respectively.



4

There are two primary aspects to this context. 
First, each of these states has a long and shameful history 
of denying minority citizens the right to vote through a 
wide variety of devices and means, both "sophisticated and 
simple-minded."3 Second, in each of these states it is still 
true that large numbers of white voters consistently do 
not vote for African-American or other minority 
candidates. Such white bloc voting has made it virtually 
impossible for minority candidates, whatever their 
qualifications or merit, to win an election in a district in 
which minority voters are not a majority of the electorate.

The creation of majority-minority districts was 
necessary to correct these evils and to provide African 
Americans and other minority voters with a fair chance to 
elect officeholders of their choice to the legislative body 
intended by the Constitution to be representative of the 
people as a whole. The post-1990 census Congressional 
redistricting plans enacted by the Louisiana legislature 
and signed by Louisiana Governor Edwin Edwards in 
1992 and 1994 are directly responsible for dismantling the 
barriers to full participation in the election of members of 
Congress that have confronted Louisiana’s African- 
American population since the end of Reconstruction.4

'Lane v. Wilson, 307 U.S. 268, 275 (1939).

4United States Representative William J. Jefferson of New 
Orleans, who has represented Louisiana’s Second Congressional 
District since 1991, was elected from a majority-Black Congressional 
district created following a federal district court’s finding that the 
construction of the New Orleans area districts in the state’s post-1980 
census Congressional redistricting plan violated Black voters’ rights 
to participate equally in the electoral process and to enjoy an equal 
opportunity to elect candidates of their choice to Congress. Major v. 
Treen, 574 F. Supp. 325 (E.D. La. 1983) (three-judge court). Before 
Jefferson’s election in 1990, the last African-American member of 
Congress from Louisiana was Charles Edmund Nash, who was elected



5

The present case, and others that are now pending 
and that will surely follow if this Court permits the result 
below to stand, have as their purpose the undoing of our 
society’s hard-won progress toward democratic electoral 
processes open to all citizens. If successful, the inevitable 
effect of these cases would be to turn the clock back to a 
day when the voices of minority citizens were unheard in 
legislative halls, and when the only avenue open to them 
was that of protest and demonstration. That would be the 
antithesis of the truly color-blind society to which this 
Court has repeatedly and consistently committed itself.

The Uncontrovertible History of 
Discrimination Against African Americans in 

Louisiana, the Repeated Dilution of their 
Voting Strength, and the Persistence of 
White Bloc Voting, Amply Justified the 

Challenged Districting Plan

The district court properly held that "[ajdhering to 
federal anti-discrimination laws and remedying past or 
continuing discrimination could constitute compelling 
governmental interests [for the adoption of Louisiana’s 
post-1990 census Congressional redistricting plans] if the 
State could ‘demonstrate a strong basis in evidence for its 
conclusion that remedial action was necessary.’" Hays v. 
Louisiana, US J.S. App. at 7a (quoting City o f Richmond 
v. J.A. Croson Co., 488 U.S. 469, 510 (1989)). The district 
court erred, however, in finding that the adoption of Act

in 1874 and served one term. Bruce A. Ragsdale and Joel D. Treese, 
Black Americans in Congress, 1870-1989 101-02 (1990). 
Congressman Cleo Fields of Baton Rouge, United States 
Representative for Louisiana’s Fourth Congressional District, which 
was invalidated by the court below, was initially elected in 1992.



6

1 was unjustified under these standards. Instead, in 
complete disregard of the record before it and in 
contravention of this Court’s decisions,5 the district court 
characterized the adoption of Act 1 as "[ujsing the disease 
as a cure" and struck down Louisiana’s remedial efforts. 
Id. at 124-25.

There was ample justification for the Louisiana 
Legislature’s decision to enact a Congressional 
apportionment plan with two majority-African-American 
districts, in light of the historical and current factual 
context in which it acted: pervasive discrimination against 
African Americans in Louisiana,6 the state’s repeated 
practice of drawing electoral districts that diluted African- 
American voting strength, and the continued existence of 
bloc voting by whites against African-American 
candidates.

A. The History of Egregious Discrimination against
African Americans in Louisiana

For centuries, the African-American population of 
Louisiana was subjected to the most blatant, pervasive,

5See, e.g., Johnson v. DeGrandy,___U .S.___ , __ , 129 L. Ed. 2d
775, 796 (1994) (”[T]he lesson of Gingles is that society’s racial and 
ethnic cleavages sometimes necessitate majority-minority districts to 
ensure equal political and electoral opportunity").

6Cf Major v. Treen, 574 F. Supp. at 351 ("Evidence of ‘past 
discrimination’ . . .  is relevant insofar as it impacts adversely on a 
minority group’s present opportunities to participate in government"); 
Zimmer v. McKeithen, 485 F.2d 1297, 1306 (5th Cir. 1973) (en banc) 
( The district court concluded that . . . removal [of impediments to 
registration and the elimination of de jure school segregation] vitiated 
the significance of the showing of past discrimination. This 
conclusion is untenable, however, precisely because the debilitating 
effects of these impediments do persist"), affd sub nom. East Carroll 
Parish School Bd. v. Marshall, 424 U.S. 636 (1976).



7

and debilitating forms of discrimination, including a 
complete denial of voting rights, solely on the basis of 
race.7

1. Discrimination in voting

Neither enslaved nor free persons of color were 
allowed to vote in Louisiana until after the Civil War.8 
Following the Civil War, African Americans in Louisiana 
were afforded their first opportunity to participate in the 
electoral process. By 1898, "approximately 44% of all the 
registered voters in the State were Negroes," Louisiana v. 
United States, 380 U.S. 145, 147 (1965). Inclusion of 
African Americans in the political process in Louisiana 
was only temporary, however, and by the turn of the 
century, they were almost completely excluded from 
political participation in the state.9 *

7Even before Louisiana became a state in 1812, racially-based 
exclusion from the political process was in place. "[T]he Codes Noir, 
from the 1724 Code to Act 83 of the Territorial Legislature of 1806, 
disfranchised Negroes." United States v. Louisiana, 225 F. Supp. 353, 
363 (E.D. La. 1963) (three-judge court), ajfd, 380 U.S. 145 (1965). 
"The Louisiana Constitution of 1868 [adopted during Reconstruction] 
for the first time permitted Negroes to vote. La. Const. 1868, Art. 
98." Louisiana v. United States, 380 U.S. 145, 148 n.5 (1965).

’’See Article II, Section 8 of Louisiana Constitution of 1812, 
restricting right to vote to "free white male" members of the 
population. ”[D]uring the era of slavery . . . the franchise was 
conferred exclusively upon white males." Major v. Treen, 574 F. Supp. 
at 340; see United States v. Louisiana, 225 F. Supp. at 363.

’Between 1896 and 1907 the number of Black registered voters in 
Louisiana plummeted from approximately 135,000 to fewer than 1,000 
statewide. Major v. Treen, 574 F. Supp. at 340. In an address to the 
Legislature following the 1898 Louisiana Constitutional Convention, 
Governor Murphy J. Foster stated:

The white supremacy for which we have so long struggled 
. . .  is now crystallized into the Constitution as a fundamental



8

Without exception, Louisiana employed every 
electoral device ultimately condemned by this Court as 
violative of African Americans5 right to equal political 
participation. These included the "grandfather" clause,10 
the white primary,11 and the "interpretation" test.12 * 12

part and parcel of that organic instrument . . . With this 
great principle thus firmly imbedded in the Constitution, and 
honestly enforced, there need be no longer any fear as to the 
honesty and purity of our future elections.

United States v. Louisiana, 225 F. Supp. at 374.

‘“According to a contemporaneous publication, Louisiana’s 
"grandfather" clause was adopted "‘to allow many honorable and 
intelligent but illiterate white men to retain the right of suffrage, and 
the purpose of the educational or property qualifications] was to 
disfranchise the ignorant negroes who had been a menace to the 
civilization of the State.”’ United States v. Louisiana, 225 F. Supp. at 
373 (iquoting 4 Alcee Fortier, History of Louisiana 235 (1904)).

“ Soon after this Court invalidated Oklahoma’s (and, necessarily, 
Louisiana’s) "grandfather" clause in Guinn v. United States, 238 U.S. 
347 (1915), Louisiana responded to the decision by, inter alia, 
authorizing political parties to conduct racially exclusive primary 
elections. Louisiana’s white primary, "which functioned to deny 
blacks access to the determinative elections . . . persisted until its 
condemnation in Smith v. Allwright, 321 U.S. 649 (1944)." Major v. 
Treen, 574 F. Supp. at 340.

12See generally United States v. Louisiana, supra note 7. Circuit 
Judge John Minor Wisdom, writing for the majority of the three- 
judge court that originally invalidated Louisiana’s "interpretation" test, 
wrote:

A wall stands in Louisiana between registered voters and 
unregistered, eligible Negro voters. The wall is the State 
constitutional requirement that an applicant for registration 
‘understand and give a reasonable interpretation of any 
section’ of the Constitutions of Louisiana or of the United 
States. It is not the only wall of its kind, but since the 
Supreme Court’s demolishment of the white primary, the 
interpretation test has been the highest, best-guarded, most



9

A series of other "disenfranchisement techniques 
implemented by the state," including poll taxes, 
registration purges, literacy tests, citizenship tests, and 
laws prohibiting "single shot" voting, "suppressed black 
political involvement [in Louisiana] until banned by 
Congress in 1965," Major v. Treen, 574 F. Supp. at 340, or 
invalidated by federal courts, see, e.g., Anderson v. Martin, 
375 U.S. 399 (1964) (invalidating La. Act 538 of 1960, 
which required the race of candidates to be included on 
ballots).

In Louisiana v. United States, 380 U.S. 145 (1965), 
this Court unanimously affirmed the decision of a 
Louisiana federal court invalidating many of the racially 
discriminatory barriers to voter registration that had been 
erected by the state. There, the Court noted that an 
increase in Black voter registration (following the demise 
of the white primary after the Smith v. Allwright decision), 
coupled with the advent of school desegregation 
(following this Court’s decision in Brown v. Board of 
Education, 347 U.S. 483 (1954)), prompted the Louisiana 
Legislature to create "a committee which became known 
as the ‘Segregation Committee.’" 380 U.S. at 149. The 
Louisiana Legislature’s Segregation Committee was 
responsible for developing and implementing efforts "to 
preserve white supremacy." Id. Among the more 
effective means of achieving the goal of "preserv[ation of] 
white supremacy" in the political process was the 
"interpretation" test, United States v. Louisiana, 225 F. 
Supp. at 380-81.13

effective barrier to Negro voting in Louisiana." United 
States v. Louisiana, 225 F. Supp. at 355.

13The "interpretation" test "required that an applicant for 
registration be able to ‘give a reasonable interpretation’ of any clause



10

In the two decades following this Court’s 
invalidation of the white primary, the renewed 
administration of the "interpretation" test transformed 
Louisiana’s voter registration offices into "‘the front line 
of the battle’ to retain a segregated society." United States 
v. Louisiana, 225 F. Supp. at 387. Registrars in 21 of 
Louisiana’s 64 parishes discriminated against African- 
Americans who attempted to register to vote "not as 
isolated or accidental or unpredictable acts of unfairness 
by particular individuals, but as a matter o f state policy in 
a pattern based on the regular, consistent, predictable 
unequal application of the [interpretation] test.” Id. at 
381 (emphasis supplied).14

After this Court’s affirmance of the decision 
invalidating Louisiana’s racially discriminatory 
"interpretation" test and other voter registration practices 
in Louisiana v. United States,15 and Congress’ adoption

in the Louisiana Constitution or the Constitution of the United 
States." Louisiana v. United States, 380 U.S. at 148.

14Red River, DeSoto and Rapides Parishes, which are wholly or 
partially within District 4 of Act 1, were among the parishes where 
the interpretation test was used to thwart Black voter registration 
efforts; indeed, Red River Parish was specially identified by the three- 
judge court as one of the areas where "[t]he evidence of 
discriminatory application of the interpretation test [wa]s especially 
well documented and supported by testimony," United States v. 
Louisiana, 225 F. Supp. at 381 and n.77; see also, id. at 385 (table 
listing Black and white voting age population and registration in those 
parishes in 1956 and 1960).

“ Louisiana’s "citizenship test," which required applicants for 
registration to pass an "‘objective test of citizenship’" and demonstrate 
that they were "‘of good character and . . . [aware of] the duties and 
obligations of citizenship," was also challenged in United States v. 
Louisiana. The court entered a more limited injunction against use 
of the citizenship test than the complete statewide prohibition it 
imposed against further use of the interpretation test. See 225 F. 
Supp. at 392-98.



11

of the Voting Rights Act of 1965, increasingly subtle, but 
nevertheless effective, mechanisms for diluting African- 
American voting strength and counteracting African 
Americans’ increasing access to the ballot surfaced 
throughout the state. The use of at-large or multimember 
district elections,16 the majority-vote requirement,17 and 
other election procedures and devices18 combined with 
pervasive racially polarized voting throughout Louisiana 
to minimize the voting strength of the recently registered 
African-American population in the state.

16See, e.g., Zimmer v. McKeithen, supra note 6 (invalidating 
multimember election districts in East Carroll Parish); Parnell v. 
Rapides Parish School Bd., 425 F. Supp. 399 (W.D. La. 1976), ajfd in 
relevant part, 563 F.2d 180 (5th Cir. 1977), cert, denied, 438 U.S. 915 
(1978) (same for Rapides Parish). See generally, Richard L. 
Engstrom, Stanley A. Halpin, Jr., Jean A. Hill, and Victoria M. 
Caridas-Butterworth, Louisiana, in Quiet Revolution in the 
South: The Impact of the Voting Rights Act 1965-1990 109-17 
(Chandler Davidson and Bernard Grofman, eds., 1994)("Engstrom, 
et al.”); U. S. Exh. 9, Hays v. Louisiana, at 10-13 (listing court 
decisions and numerous Justice Department Section 5 objections to 
changes from single-member to multimember election districts in 
Louisiana, as well as to racially discriminatory single-member 
redistricting plans adopted by Louisiana jurisdictions in the 1970’s).

llSee Zimmer, 485 F.2d at 1306 (noting that the majority-vote 
requirement "has been severely criticized as tending to submerge a 
political or racial minority," and holding that it in fact had that result 
in East Carroll Parish).

lsSee, e.g., Clark v. Edwards, 725 F. Supp. 285, 301 (M.D. La. 
1988) (noting that "[t]he requirement that each judicial candidate 
qualify to a specific post or division . . . limitjs] the ability of black 
voters to select candidates of their choice. . . . [T]he run-by division 
requirement in judicial elections is a functional equivalent [to an anti­
single shot voting provision]"), vacated on other grounds sub nom. 
Clark v. Roemer, 750 F. Supp. 200 (M.D. La. 1990), modified , 111 F. 
Supp. 445 (M.D. La. 1990), vacated, 501 U.S. 1246 (1991), on remand, 
111 F. Supp. 471 (M.D. La. 1991), appeal dismissed, 958 F.2d 614 (5th 
Cir. 1992).



12

Louisiana’s "long history of de jure and de facto 
restrictions on the right of black citizens to register, to 
vote, and otherwise participate in the democratic process" 
is so notorious that within the past decade, Louisiana 
federal courts have "taken judicial notice of that history," 
Clark v. Edwards, supra note 18; see also Chisom v. 
Edwards, 690 F. Supp. 1524, 1534 (E.D. La. 1988) (same), 
vacated on other grounds, 853 F.2d 1186 (5th Cir.), cert, 
denied, 488 U.S. 955 (1988); Citizens for a Better Gretna v. 
City of Gretna, 636 F. Supp. 1113, 1116 (E.D. La. 1986) 
("The historical record of discrimination in the State of 
Louisiana and the Parish of Jefferson is undeniably clear, 
and the record suggests it has not ended even now"), affd, 
834 F.2d 496 (5th Cir. 1987), cert, denied, 492 U.S. 905 
(1989).

2. Discrimination in education and other areas

One federal district court observed in a 1983 case 
that the discrimination African-American residents of 
Louisiana encountered outside the political arena was as 
pervasive and severe as that encountered within the 
political realm:

Like other southern states, Louisiana enforced a 
policy of racial segregation in public education, 
transportation and accommodations. Despite the 
Supreme Court’s ruling in Brown v. Board of 
Education . . . local school boards refused to 
desegregate in the absence of a federal court 
order. . . .  A dual university was operated by the 
state until 1981, when it was dismantled pursuant 
to a consent decree. . . .  [and pjublic facilities were 
not open to members of both races until the late 
1960s.

Major v. Treen, 574 F. Supp. at 341 (citation omitted); see 
also Poindexter v. Louisiana Financial Assistance Comm’n,



13

275 F. Supp. 833 (E.D. La. 1967), affd per curiam, 389 
U.S. 571 (1968) (detailing widespread resistance to school 
desegregation throughout Louisiana for more than a 
decade following the Brown decision, largely facilitated by 
a series of legislative enactments designed to evade the 
effect of that ruling).19

Testimony before the court below underscores the 
Major v. Treen panel’s assessment of the pervasiveness of 
state-enforced segregation in Louisiana. One of the more 
telling examples of this was the testimony of a white state 
Senator about the leadership role that African-American 
members of the legislature played in the effort to repeal 
state laws that required human blood to be identified 
according to the race of the donor, and kept segregated. 
Armand J. Brinkhaus (a member of the legislature since 
1968) testified that Ernest "Dutch" Morial, who was then 
the lone African-American member of the entire 
Louisiana legislature, "fought a battle on a bill . . .  to 
mandate a discontinuance of [racial] labeling [of] blood." 
June 22, 1994 Tr., Vol. 4, at 24, 25. According to Senator 
Brinkhaus, the bill introduced by then-Representative

19As the Poindexter court summarized:
[F]or a hundred years, the Louisiana legislature has not 
deviated from its objective of maintaining segregated schools 
for white children. . . . Open legislative defiance of 
desegregation orders shifted to subtle forms of circumvention 
. . . [b]ut the changes in means reflect no change in legislative 
ends.

275 F. Supp. at 845 (emphasis supplied). See also Hall v. St. Helena 
Parish School Bd., 417 F.2d 801 (5th Cir.) (holding that 37 Louisiana 
school boards, including those for the present Fourth Congressional 
District parishes of Ascension, Desoto, Natchitoches, Pointe Coupee, 
Rapides, St. Landry, St. Martin and West Baton Rouge were required 
to eliminate continued school segregation through some means other 
than ineffective "freedom of choice” policies), cert, denied, 396 U.S. 
904 (1969).



14

Morial was not enacted in 1968 and did not pass until 
"the numbers [of African-American legislators] increased," 
id. at 25.20

In the 1993 evidentiary hearing before the court 
below on the constitutionality of Louisiana Act 42 (the 
first post-1990 census Congressional redistricting plan 
invalidated by the court below), Tulane University history 
professor Lawrence Powell testified that "Louisiana was 
the only state in which Black illiteracy remained above 70 
percent throughout the 19th Century . . . [and] from the 
late 1880s until the mid-1920s Louisiana was second only 
to Mississippi in lynching." Aug. 19, 1993 Tr. at 55.

3. Continuing impact o f this discrimination

While the enactment and enforcement of civil 
rights laws has afforded African Americans some relief 
from racial discrimination in Louisiana and elsewhere, as 
the district court found in the 1983 Major v. Treen 
decision, Louisiana’s long-lived discriminatory practices 
have had, unfortunately, similarly long-lived effects:

[T]he residual effects of past discrimination still 
impede blacks from registering, voting or seeking 
elective office. . . . Blacks in contemporary 
Louisiana have less education, subsist under poorer 
living conditions and in general occupy a lower 
socio-economic status than whites. Though

10Cf Lawrence N. Powell, Read My Liposuction: The Makeover of 
David Duke, 203 Ne w  REPUBLIC 18 (Oct. 15, 1990) (in a 1990 debate 
with United States senatorial campaign opponent Ben Bagert, David 
Duke "admitted that he still believes that the blood supply should be 
racially segregated"). After the court below invalidated Act 1 and 
imposed its own districting plan, David Duke announced his intention 
to run for the United States Congress from Louisiana. See Alice 
Love, David Duke Wants to Run for New Cajun House Seat, 39 Roll 
Call, August 4, 1994, at 1.



15

frequently more subtle, employment discrimination 
endures. These factors are the legacy of historical 
discrimination in the areas of education, 
employment and housing. . . .  A sense of futility 
engendered by the pervasiveness of prior 
discrimination, both public and private, is 
perceived as discouraging blacks from entering into 
the governmental process.

574 F. Supp. at 341. More recently, Chief Judge John V. 
Parker of the Middle District of Louisiana reached a 
similar conclusion and rejected the state defendants’ 
argument that official acts of discrimination which 
occurred before the enactment of the Voting Rights Act 
in 1965 are irrelevant to determining whether a 
challenged electoral practice discriminates against 
African-American voters. Chief Judge Parker held that 
"[t]he entire history of discrimination must be considered 
although . . . there have been improvements made by 
virtue of the Voting Rights Act of 1965." Clark v. 
Edwards, 725 F. Supp. at 296 (emphasis supplied). Judge 
Parker found that Louisiana’s "‘history of racial 
discrimination, both de jure and de facto, continues to 
have an adverse effect of the abilities of its black residents 
to participate fully in the electoral process.’" Id. (quoting 
Major v. Treen).

The court below concluded that the Louisiana 
Legislature lacked any basis for believing that if it failed 
to adopt a Congressional districting plan containing two 
districts that would afford African Americans an equal 
opportunity to elect candidates of their choice, the 
Attorney General would interpose a Section 5 objection 
or African-American voters would bring a successful 
Section 2 suit challenging the plan. The court’s 
conclusion is simply untenable in light of the extensive 
history and continuing adverse impact of decades of state-



16

sponsored discrimination against the African-American 
citizens of the State of Louisiana.

B. The State’s Consistent Dilution of African-American
Voting Strength in the Drawing o f Districts

In every post-census redistricting undertaken by the 
Louisiana Legislature since the adoption of the Voting 
Rights Act, either the federal courts (acting to enforce the 
provisions of the United States Constitution or of the 
Voting Rights Act), or the Justice Department (acting 
pursuant to Section 5 of the Voting Rights Act), have 
rejected at least one statewide redistricting plan adopted 
by the legislature on the ground that the proposed plan 
diluted African-American voting strength.

In 1971, for example, a Louisiana federal court 
"whole-heartedly concurred with the findings of the 
Attorney General [under Section 5]" that the statewide 
legislative redistricting plan adopted by the Louisiana 
Legislature was racially discriminatory and held that it 
would have invalidated the plan for similar reasons, even 
if the Attorney General had not objected to its 
implementation. Bussie v. Governor of Louisiana, 333 F. 
Supp. 452, 454 (E.D. La. 1971), aff’d and modified, 457 
F.2d 796 (5th Cir. 1971) (per curiam), vacated sub nom. 
Taylor v. McKeithen, 407 U.S. 191 (1972), on remand, 499 
F.2d 893 (5th Cir. 1974). The Bussie court noted that 
"[djuring the Twentieth Century only two [Njegroes . . . 
sat in the Louisiana Legislature, and even they did not sit 
at the same time. One succeeded the other." 333 F. 
Supp. at 457; see also Hays 1994 Tr., Vol. 4, at 24-25 
(Brinkhaus testimony discussing presence of only one 
African-American in state legislature in 1968). Aiter a 
decade of elections under the redistricting plan adopted 
by the legislature after the Bussie decision, 10 Louisiana



17

House districts and 2 Louisiana Senate districts had 
elected African-American candidates. Engstrom, et al., at 
111; see also U.S. Exh. 9 at 12-13 11 19.

The state legislative redistricting plan adopted after 
the 1980 census reduced the number of Black-majority 
House districts from 17 to 14. The plan could not be 
implemented because of the Section 5 objection 
interposed by the Attorney General to the 
implementation of this retrogressive plan. Id. at 14-15, 11 
23.

The New Orleans area districts in the 
Congressional redistricting plan adopted by the Louisiana 
legislature following the 1980 census were successfully 
challenged by African-American voters in Major v. 
Treen21 and was replaced ultimately by a plan containing 
one majority-Black Congressional district. As set forth 
fully in the district court opinion in that case, the plan 
afforded African Americans less opportunity than whites 
to participate in the electoral process and to elect 
candidates of their choice, in violation of Section 2 of the 
Voting Rights Act of 1965, as amended. In reaching its 
conclusion that the construction of the First and Second 
Districts in the plan violated Section 2, the court 
considered "as . . . one aspect of the totality of 
circumstances, the evidence that opposition to the 
creation of a majority black district was responsible, to a 
significant extent," for the adoption of the plan. 574 F. 
Supp. at 355 n.39.22

21Bemadine St. Cyr (amicus herein) was one of the plaintiffs in 
the Major v. Treen case.

22The district court found that Governor Treen opposed the 
adoption of the plan originally supported by the legislature at least 
partially for racial reasons: "He denounced any legislative scheme 
which intentionally drew boundary lines so as to consolidate a



18

The Major court also noted the extremely irregular 
procedure used to adopt the plan:

Both houses of the Louisiana Legislature . . . 
approved reapportionment bills [that provided for 
the creation of a majority-Black district in New 
Orleans and its environs]. . . .  Upon learning of the 
action of the legislature, Governor Treen 
announced his intention to veto the . . . [plan] if 
finally passed. . . .  A sufficient number of 
legislators changed their position in response to 
the threatened veto to assure the demise of the 
. . . [plan].

574 F. Supp. at 333. The Legislature then delayed 
appointment of a conference committee to consider 
alternatives to the abandoned reapportionment bill and 
instead, an all-white group of legislators and other 
"‘interested’ parties" met privately "in the sub-basement of 
the State Capitol" to develop a new redistricting plan. Id. 
at 334. The predictable outcome of the legislators’ secret 
meeting was the abandonment of the concept of 
developing a redistricting plan containing a majority-Black 
district, and the substitution of the plan ultimately

majority of one race within a single district. He . . . characterized 
[the creation of a majority-Black New Orleans-based district] as an 
attempt by the Louisiana Legislature to enact into law the discredited 
idea of proportional representation. . . . [However, the Governor’s] 
concerns were restricted to the aggregation of blacks within one 
district; the coalescence of whites was not regarded as ominous so 
long as [the white incumbent congressman’s] chances for re-election 
were maximized. . . .  [Consequently, an Orleans Parish-based] district 
with 55% white population encountered no objection [from the 
Governor].” 574 F.Supp. at 333 (emphasis supplied). Cf US J.S. 
App. at lOa-lla (objecting to creation of 55%-Black District 4 of Act 
1, while adopting court-ordered plan with far more heavily 
concentrated white populations in every district except the Major v. 
Treen remedial district).



19

adopted by the Louisiana legislature ("Act 20"), which did 
not contain a single majority-Black district. Id. at 334-35. 
After Governor Treen expressed his approval of Act 20, 
an all-white conference committee, consisting of 3 state 
Senators (Hudson, Nunez and O’Keefe) and 3 state 
Representatives (Alario, Bruneau and Scott) voted 4 to 2 
in favor of referring Act 20 to the full legislature for 
approval. Id. at 336-37.23 Assessing the procedure 
which yielded the adoption of Act 20, the district court 
wrote:

[R]ather than utilizing the routine mechanism of 
the conference committee following the House’s 
withdrawal of its approval of the . . . [original 
redistricting] plan, the legislative leaders convened 
a private meeting. . . .  Because all were aware that 
the conflicting objectives of the Governor and 
black legislators with respect to a black majority 
district could not be harmonized, the latter were 
deliberately excluded from the final decision-making 
process.

574 F. Supp. at 352 (emphasis supplied).* 24

“ The district court found that Governor Treen’s opposition to the 
first legislatively supported plan was "predicated in significant part on 
[the plan’s] delineation of a majority black district centered in 
Orleans Parish." 574 F. Supp. at 334. See also infra p. 20, text at 
n.25.

24While Governor Treen explained his opposition to the creation 
of a majority-Black congressional district as the product, inter alia, of 
his "concern . . .  [about] racial polarization," 574 F. Supp. at 333, and 
his belief that African-American voting strength is actually enhanced 
in so-called influence districts, rather than in majority-Black districts, 
his early political record evinced minimal "concern" about fostering 
racial polarization in the electorate or enhancing African-American 
voting strength. The 1978 Almanac of American Politics stated 
that in 1964 and 1968 campaigns against New Orleans Congressman



20

It is striking that contemporary opposition to Act 
1 (and its second majority-African-American 
Congressional district) sounded the same themes as in 
1980. For example, state Representative Charles 
Bruneau, who criticized the creation of Louisiana’s first 
majority-Black Congressional district in the 1980’s on the 
ground that New Orleans "already ha[d] a nigger mayor, 
and [it] d[id]n’t need another nigger bigshot,"25 also 
opposed the adoption of Act 1. Apr. 18, 1994 Louisiana 
House of Representatives and Governmental Affairs 
Committee Hearing Minutes at 37. In response to 
Speaker Pro Tern Copelin’s argument that District 4 of 
Act 1 essentially replicated the former Eighth 
Congressional District, once represented by (white) 
Congressman Gillis Long, Representative Bruneau 
replied, "Of course, Mr. Copelin, as we say, that was then 
and this is now." Id. at 46. Cf. US J.S. App. at 4a 
("[VJarious witnesses asserted that District Four was 
inspired by ‘the old Eighth’ district thereby satisfying the 
concept of ‘traditional’ districting principles. . . . The ‘old 
Eighth’ . . . was crafted for the purpose of ensuring the 
reelection of Congressman Gillis Long . . .  [whereas n]ew 
District Four was drafted with the specific intent of 
ensuring a second majority-minority Congressional 
district").

Hale Boggs, "Treen’s big issue was Civil Rights: in 1964 he charged 
that Boggs secretly favored the Civil Rights Act of that year; in 1968 
he used Boggs’ support of the Civil Rights Acts of 1965 and 1966 [as 
campaign issues]."

25See Nomination of William Bradford Reynolds to be Associate 
Attorney General o f the United States; Hearings Before the Senate 
Committee on the Judiciary, 99th Cong., 1st Sess. 440 (1985) (reprinting 
analysis of Section 5 submission prepared by Robert N. Kwan, 
Attorney, Voting Section, Civil Rights Division, United States 
Department of Justice).



21

The United States Attorney General objected 
under Section 5 of the Voting Rights Act to the 
implementation of both the Louisiana House and 
Louisiana Senate redistricting plans adopted by the 
Legislature after the 1990 census, U.S. Exh. 9, at 19, If 
29. Also in 1991, shortly before undertaking 
Congressional redistricting, the legislature reapportioned 
the statewide Board of Elementary and Secondaiy 
Education ("BESE") based on the 1990 census. There are 
eight elected members of the BESE. The legislature 
initially devised a plan which had only one majority- 
African-American BESE district, which prompted an 
objection under Section 5 by the Attorney General. Id.26

In sum, after this Court affirmed orders striking 
down direct and indirect restrictions upon African- 
American suffrage in Louisiana, as described in the 
preceding section, the Legislature repeatedly acted to 
fashion state and national legislative districts that would 
eliminate or minimize African-American voting strength. 
In a consistent pattern that continued virtually up to the 
very moment that the Legislature redrew the state’s 
Congressional districts after the 1990 census, those 
dilutive plans were struck down by the federal courts or 
were denied preclearance under Section 5 of the Voting 
Rights Act by the Attorney General of the United States. 
The Legislature thus had more than enough evidence to 
support its conclusion that drawing yet another plan which 
diluted minority voting strength would be rejected by the 
Justice Department and/or challenged successfully in 
court.

26Ultimately, an eight-member redistricting plan for the BESE 
which included two Black-majority districts was adopted by the 
Louisiana Legislature and precleared under Section 5.



22

The Legislature also knew that in each instance, 
the remedy for its dilutive districting had involved the 
creation of majority-Black electoral districts to afford 
African-Americans the opportunity to elect candidates of 
their choice, and that implementation of the remedies had 
mitigated the persistent underrepresentation of African 
Americans in Louisiana’s state legislative delegations and 
on the BESE.

On these facts there is simply no support 
whatsoever for the "finding" by the court below that "the 
State did not have a basis in law or fact to believe that 
the Voting Rights Act required the creation of two 
majority-minority districts," US J.S. App. at 9a. 
Moreover, the evidence demonstrates that the Legislature 
was well aware that a "Red River" Congressional district 
markedly similar to the ultimate Fourth District in Act 1 
had been maintained through the 1970’s and 1980’s. 
Refusal to follow the same districting principles after the 
1990 census so as to create a second majority-Black 
district would almost certainly have resulted in either a 
Section 5 objection or a court challenge by the state’s 
African-American voters. For these reasons, the holding 
by the court below that reference to the "old eighth" 
district was either a "pretext" for the Legislature’s "specific 
[and unlawful] intent of ensuring a second majority- 
minority Congressional district," US J.S. App. at 5a, or 
was irrelevant because "the old eighth district was never 
challenged on constitutionality," id. at 18a (Shaw, J., 
concurring), is baseless.

C. The Persistence of Racially Polarized Voting

There is extensive evidence in the record of the 
persistent phenomenon of racially polarized voting in 
Louisiana elections, and of the degree to which white bloc



23

voting, combined with other features of Louisiana’s 
election system, continues to impede African-American 
political participation and limit the opportunity for 
African Americans to elect candidates of their choice in 
the state.

Within the past decade, there have been repeated 
judicial findings that racially polarized voting continues to 
occur with regularity in Louisiana. For example, in a 
recent Section 2 case challenging some of Louisiana’s 
judicial election districts, the district court observed that 
"[t]he expert witnesses of both sides . . . agreed that there 
is widespread racial polarization in voting in Louisiana," 
Clark v. Edwards, 725 F. Supp. at 296 (emphasis 
supplied). The Clark court also noted that "the fact that 
in 54 [elections analyzed] . . . white voters never voted 
even a plurality for the black candidate strongly indicates 
racial polarization of white voters." Id. at 297.27 28 As a 
result of the compelling evidence of racially polarized 
voting, as well as other evidence presented by plaintiffs, 
the district court

conclude[d] that across Louisiana . . . there is 
consistent racial polarization in voting . . . .  [and 
the court is] convinced . .  . that the white majority 
has . . . repeatedly [voted sufficiently as a bloc to 
enable it, in the absence of special circumstances, 
usually to defeat the minority’s preferred 
candidate] in Louisiana judicial elections.

Id. at 298-99.?s

21See also id. at 304 (finding a "state-wide pattern of racially 
polarized voting which . . .  is ‘pronounced and persistent’") (quoting 
plaintiffs’ expert Dr. Richard Engstrom).

28The court also held that "both subtle and overt racial appeals 
. . . still do appear in some white-black campaigns." 725 F. Supp. at 
299.



24

The State of Louisiana and the United States 
proffered similar evidence to the court below in defense 
of Louisiana Act 1. In his 1993 testimony before the 
lower court, Dr. Richard Engstrom stated: "[Ajcross
Louisiana, voting is racially polarized. . . . [I]t does not 
begin at one parish line and end at another parish line. 
It’s a pervasive phenomenon within the State." Aug. 19, 
1993 Tr. 73. Dr. Engstrom also testified concerning the 
many "inexorable zero[es]"29 among the elected branches 
of government in Louisiana: "[Tjhere are no Black
statewide elected officials in Louisiana . . . [ejected from 
a statewide majority white electorate. . . . There have 
been no Blacks elected to Congress from Louisiana in this 
century in a district with a majority white voter 
registration . . . [and tjhere have been no African 
Americans elected to the state legislature in Louisiana 
. . . this century from a district. . .  in which a majority of 
the registered voters were white." Id. at 79-80.

The decision below does not address any of this 
evidence and instead fast-forwards to a color-blind society 
which unfortunately is far from the present-day reality of 
Louisiana.30

29See International Bhd. o f Teamsters v. United States, 431 U.S. 324, 
342 n.23 (1977).

30For example, the court below wrote: ”[W]e refuse to accept the 
explanation [for the configuration of District 4 in Act 1] that citizen 
response to issues such as education, crime and health care is driven 
by skin pigmentation." US J.S. App. at 10a. The difficulty with this 
analysis is that it permits no consideration in the redistricting process 
of common political interests which many African Americans share 
-- including because they have had the common experience of 
suffering from official Louisiana policies of racial discrimination -  
even while recognizing that members of numerous other racial, 
ethnic, and religious groups may share common interests. Incredibly, 
the court suggests, as one basis for its conclusion that Act 1 is 
constitutionally deficient, that it breaks down barriers between such



25

D. The "Totality o f the Circumstances"

This Court recently emphasized the importance, in 
deciding claims under Section 2 of the Voting Rights Act, 
of comprehensively assessing all of the facts. "In 
modifying § 2 [in 1982], Congress . . . endorsed our view 
in White v. Regester that ‘whether the political processes 
are "equally open" [to minority voters] depends upon a 
searching practical evaluation of the "past and present 
reality,"’" Johnson v. DeGrandy, supra note 5, 129 L. Ed. 
2d at 795 (citations omitted). Unlike the thorough 
analysis of the proof required by this Court’s previous 
decisions and reflected in the Clark decisions, the ruling 
below cavalierly dismisses the evidence and misapplies the 
decisions of this Court in an effort to avoid careful 
consideration of what the record shows. The court below 
wrote:

Defendants elicited testimony that the sordid 
history of unconstitutional treatment of black 
citizens in Louisiana prompted the State to tinker 
with district lines in order to ensure minority 
control at the polls.. . . What the defense failed to 
establish is where the Civil Rights Act of 1964 and 
the Voting Rights Act of 1965 have failed to 
accomplish what the State now sets out to do. 
Without concrete evidence of the lingering effects 
of past discrimination or continuing legal prejudice 
in voting laws and procedures, coupled with 
specific remedies, we cannot agree th a t. . .  racially

groups. See US J.S. App. at 17a ("District 4 includes North Louisiana 
English-Scotch-Irish, mainline Protestants, South Louisiana French- 
Spanish-German Roman Catholics, traditional rural black Protestants 
and Creoles. The district encompasses North, Central and South 
Louisiana, each of which has its own unique identity, interests, 
culture, and history") (Shaw, J., concurring).



26

configured voting districts [are] warranted. Croson
and Bakke dictate this result.

US J.S. App. at 10a. The court below does not explain 
how the continued debilitating effects of prior 
discrimination that were identified by the Clark court just 
four years ago,31 long after passage of the 1964 and 1965 
federal laws to which it refers, have been eliminated in a 
state whose redistricting efforts immediately prior to the 
measure attacked in this litigation prompted objections 
from the Attorney General. Nor does it identify any 
evidence presented by the appellees indicating that racial 
disparities attributable to prior discrimination have 
vanished from Louisiana. (There was none.) Contrary to 
the suggestion in the opinion below, the decisions of this 
Court do not "dictate" the result reached in this case. 
Unlike in City of Richmond v. J.A. Croson Co., 488 U.S. 
469 (1989) and Regents of Univ. of Cal. v. Bakke, 438 U.S. 
265 (1978), the federal courts have made repeated 
findings of racial discrimination, and of its continuing 
effects, that fully support the Louisiana legislature’s 
action.

Writing just two years before the last decennial 
census, Chief Judge Parker observed: "If all of us voted 
without regard to race, the problem would be solved and 
there would be no claim of a . . . [Voting Rights Act] 
violation. That day does not yet seem to have arrived [in 
Louisiana]." Clark, 725 F. Supp. at 300. The Louisiana

31,'[H]istorical de jure and de facto restrictions on minority voting 
. . . [and] socio-economic factors" which reflected historic 
discrimination and the disparate economic and educational status of 
Black and white residents of Louisiana "have not been shown to have 
dissipated . . . [and] "still operate to discourage more blacks than 
whites from full [political] participation." Clark v. Roemer, 111 F. 
Supp. 471, 478 (M.D. La. 1991), appeal dismissed, 958 F.2d 614 (5th 
Cir. 1992).



27

legislature embarked on the task of developing a 
Congressional redistricting plan for the state only a few 
years later. It defies common sense and conflicts with the 
extensive evidence presented by the State and the United 
States below to conclude, as the district court did, that 
race has so quickly become an inconsequential factor or 
irrelevant matter to Louisiana’s body politic.

Moreover, in light of the repeated violations of the 
voting rights of the State’s minority citizens, it is patently 
unfair to assign responsibility for the race-consciousness 
of the post-1990 census Congressional redistricting to the 
state’s very recent efforts to comply with the demands of 
the Voting Rights Act by enacting a Congressional 
redistricting plan that would fairly recognize African- 
American voting strength in the state and would not 
operate to minimize or cancel out the votes of nearly one- 
third of the population of the state. Finally, as we have 
earlier noted, the conclusion of the court below (that the 
Louisiana Legislature lacked any basis for believing that 
if it failed to adopt a Congressional districting plan 
containing two districts that would afford African 
Americans an equal opportunity to elect candidates of 
their choice, the Attorney General would interpose a 
Section 5 objection or African-American voters would 
bring a successful Section 2 suit challenging the plan) is 
simply untenable in light of the extensive history and 
continuing adverse impact of decades of state-sponsored 
discrimination against the African-American citizens of 
the State of Louisiana.

The decision below is particularly troubling 
because, as Dr. Richard Engstrom said to the lower court, 
the Louisiana Legislature’s efforts to adopt a 
Congressional redistricting plan that complied fully with 
the Voting Rights Act of 1965 and to take a prophylactic 
approach to congressional redistricting, attempting to



28

accommodate the concerns of the state’s African- 
American as well as its white citizens, "was a real 
aberration. . . . We have a history of not complying with 
the Voting Rights Act until forced to either by the Justice 
Department or by federal courts such as in Major versus 
Treen." Aug. 19, 1993 Tr. 100. The state of Louisiana 
should not be stymied in this earnest and long overdue 
overture towards remedying "the sordid history of 
unconstitutional treatment of black citizens in Louisiana," 
US J.S. App. at 9a.

C o n c l u s io n

The history of Louisiana is duplicated in most of 
the states that have had a background of discrimination in 
voting. In redistricting after the 1990 census, public 
officials in many instances made good faith efforts to 
comply with the interpretations of the statutory and 
constitutional requirements for reapportionment 
announced by this Court and the lower federal courts. In 
jurisdictions with a history of discrimination in voting and 
other areas, where minority voters were politically 
cohesive, and where there were established patterns of 
racially polarized voting that made it almost impossible 
for a submerged minority to be represented, officials 
shouldered their legal obligation to create districts that 
gave minority voters equal access to the political process 
and a fair opportunity to elect representatives of their 
choice.

The results of this effort were of great benefit not 
only to minority communities, but to the body politic as 
a whole. For the first time since the end of 
Reconstruction the delegations to the United States 
House of Representatives (from the affected states) were 
indeed representative. Legislative bodies at the local and



29

state levels similarly encompassed the interests of all of 
the electorate.

In short, governmental officials and their 
constituents relied on the holdings of this Court when 
they made the difficult decisions inherent in the 
redistricting process. They sought to follow the law as 
expressed in those decisions and the innumerable 
decisions of the lower courts enforcing them.32 
Unfortunately, in a number of instances litigants and 
lower federal courts have misread this Court’s decision in
Shaw v. Reno, 509 U .S.__ , 125 L. Ed. 2d 511 (1993) as
somehow undermining or even overruling sub silentio 
decisions such as Thornburg v. Gingles, 478 U.S. 30 (1986) 
that have given meaning and substance to the Voting 
Rights Act. This Court should make clear that the 
obligations of that Act as interpreted by the courts remain 
as clear as before. To do otherwise would result in:

. . .  serious inequity to those who have relied upon 
them [and] significant damage to the stability of 
the society governed by [their] rule . . . .

Planned Parenthood v. Casey, 505 U .S.__ , 120 L. Ed. 2d
674, 700 (1992).

For the foregoing reasons, the decision of the court 
below should be reversed.

32Cf. Hon. George C. Pratt, Symposium, The Supreme Court and 
Local Government Law, The 1992 Term, 10 TOURO L. Rev. 295, 454- 
55 (1994) (discussing general acceptance of legal framework in New 
York City and New York state redistricting after the 1990 census, 
based upon Judge Pratt’s experience on panels hearing such cases).



30

Respectfully submitted,

Ba r b a r a  R . A r n w in e  
T h o m a s  J. H e n d e r so n  
B r e n d a  W r ig h t  
J. G e r a l d  H e b e r t  
La w y e r s’ C o m m it t e e  
f o r  C iv il  R ig h ts  
u n d e r  La w  

1450 G Street, NW,
Suite 400

Washington, DC 20005 
(202) 662-8600

R o b e r t  B. M cD u f f  
771 North Congress Street 
Jackson, MS 39202 
(601) 969-0802

Attorneys for Amicus 
Curiae the Louisiana 
Legislative Black Caucus

E l a in e  R . J o n es  
D ir e c t o r -C o u n sel

Th e o d o r e  M. Sh a w  
N o r m a n  J. Ch a c h k in  
Ch a r l es  St e p h e n  R a lst o n  

"■Ja c q u e l in e  A. B e r r ie n  
N a a cp  L e g a l  D e f e n s e  a n d  
E d u c a t io n a l  F u n d , In c . 

99 Hudson Street,
16th floor

New York, NY 10013 
(212) 219-1900

* Counsel of Record

Attorneys for Amici Curiae 
Bemadine St. Cyr, Donald 
Thibodeax, Patrick Fontenot, 
Janice Frazier, and the NAACP 
Legal Defense and Educational 
Fund, Inc.

January 30, 1995