State of Louisiana v. Hays Brief for the United States in Opposition to Appellees' Motion to Dismiss or Affirm

    Nos. 95-1681, 95-1682 and 95-1710

31 it tlje Supreme Court of tf)t (Elmtrb States?
October Term, 1995

State of Louisiana, et al., appellants
V.

Ray Hays , etal.

Louisiana Legislative Black Caucus, etal., 
appellants 

v.

Ray Hays, etal .

United States of A merica, appellant
v.

Ray Hays, etal.

APPEALS FROM THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF LOUISIANA

BRIEF FOR THE UNITED STATES IN OPPOSITION 
TO APPELLEES’ MOTION TO DISMISS OR AFFIRM

Dr e w S. Da y s , III 
Solicitor General 
Department o f Justice 
Washington, D.C. 20530 
(202) 5U-2217



TABLE OF AUTHORITIES

Cases: Page
Church o f Scientology o f California v. United

States, 506 U.S. 9 (1992) .............................................. 3
Clark v. Roemer, 500 U.S. 646 (1991)................ ........ 2
Department o f Treasury v. Galioto, 447 U.S. 556

(1986) ......................................    4
McDaniel v. Sanchez, 452 U.S. 130 (1981) ...............  2, 3
Miller v. Johnson, 115 S. Ct. 2475 (1995)................... 5
Shaw v. Reno, 509 U.S. 630 (1993).............................  5
Thornburg v. Gingles, 478 U.S. 30 (1986) .................. 4
United States v. Munsingwear, Inc., 340 U.S. 36

(1950) ................................................................................. 4
U.S. Bancorp Mortgage Co. v. Bonner Mall 

Partnership, 115 S. Ct. 386 (1994).............................  4

Statute and regulation:
Voting Rights Act of 1965, § 5, 42 U.S.C. 1973c .........  2, 3
28 C.F.R. 51.2 .....................................................................  2

Miscellaneous:
S. Rep. No. 295, 94th Cong., 1st Sess. (1975) ................ 3

(I)



I n  tfje Supreme Court of tfjr SHmteb States;
October Term. 1995

No. 95-1681
State of Louisiana, et al., appellants

v.
Ray Hays, et al.

No. 95-1682
Louisiana Legislative Black Caucus, etal., 

appellants
v.

R ay Hays, et al.

No. 95-1710
United States of America, appellant

v.
R ay Hays, et al.

APPEALS FROM THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF LOUISIANA

BRIEF FOR THE UNITED STATES IN OPPOSITION 
TO APPELLEES’ MOTION TO DISMISS OR AFFIRM

1. Appellees contend (Mot. to Dis. 11-13) that the 
appeals in this case are moot because Louisiana has 
recently enacted legislation (Act 96) that repeals Act

(1)



2

1 and adopts the district court’s remedial redistrict­
ing plan. Act 96, however, has not been precleared 
under Section 5 of the Voting Rights Act of 1965, 42 
U.S.C. 1973c. Unless and until it is precleared, Act 
96 is not effective as law. Clark v. Roemer, 500 U.S. 
646, 652-653 (1991). As the Court explained in Clark:

Section 5 requires States to obtain either judi­
cial or administrative preclearance before imple­
menting a voting change. A voting change in a 
covered jurisdiction “will not be effective as la[w] 
until and unless cleared” pursuant to one of these 
two methods.

Ibid. Because Act 96 is not effective as law, it cannot 
affect the viability of the present appeals.

Appellees contend (Mot. to Dis. 12) that Act 96 is 
not subject to Section 5 preclearance because it does 
not constitute a “change” in the State’s voting prac­
tices. As the text of Section 5 makes clear, however, 
an unprecleared voting practice is a “change” subject 
to preclearance when the practice is “different from 
that in force or effect on November 1, 1964.” 42
U.S.C. 1973c. See 28 C.F.R. 51.2. Since Act 96’s re­
districting plan is different from the redistricting 
plan that was in effect on November 1, 1964, Act 96 
must be precleared under Section 5.

Appellees contend (Mot. to Dis. 12-13) that pre­
clearance may be avoided because court-ordered plans 
are not subject to preclearance under Section 5 
and Act 96 adopts a court-ordered plan. That conten­
tion is incorrect. Under this Court’s decision in 
McDaniel v. Sanchez, 452 U.S. 130, 153 (1981), the 
preclearance requirement applies whenever a redis­
tricting plan “reflect[s] the policy choices of the 
elected representatives of the people-—no matter what



3

constraints have limited the choices available to 
them.” Act 96 clearly reflects the policy choices 
of Louisiana’s elected representatives. It is there­
fore subject to the preclearance requirement under 
McDaniel, even though the same redistricting plan 
was not subject to preclearance when the district 
court ordered it into effect.

The Senate Report accompanying the 1975 exten­
sion of Section 5, which was cited by the Court in 
McDaniel, 452 U.S. at 148-149, leaves no doubt that 
Congress intended to require preclearance of legisla­
tion that adopts a court-ordered plan. It states that:

The one exception where Section 5 review would 
not ordinarily be available is where the court, 
because of exigent circumstances, actually fash­
ions the plan itself instead of relying on a plan 
presented by a litigant. This is the limited mean­
ing of the “court decree” exception recognized in 
Connor v. Johnson, 402 U.S. 690 (1971). Even in 
these cases, however, if the governmental body 
subsequently adopts a plan patterned after the 
court’s plan, Section 5 review would be required.

S. Rep. No. 295, 94th Cong., 1st Sess. 18-19 (1975) 
(citation omitted).

Because Act 96 has not been precleared and is not 
legally effective, the appeals from the district court’s 
judgment invalidating Act 1 are not moot. For pur­
poses of deciding whether an appeal is moot, the rele­
vant inquiry is whether the Court can grant effective 
relief. Church o f Scientology o f California v. United 
States, 506 U.S. 9, 12-14 (1992). Effective relief can be 
granted here. If the Court reverses the district court 
judgment, Act 1 would become the State’s legally ef­
fective redistricting plan and future elections would



4

be held in accordance with that plan. The appeals in 
this case are therefore not moot.*

2. As we argue in our Jurisdictional Statement, in 
holding that District 4 in Act 1 is unconstitutional, 
the district court failed to give sufficient weight 
to Louisiana’s traditional redistricting practices. In 
particular, the district court failed to evaluate the 
constitutionality of District 4 in light of the similar­
ity of that district to old District 8. That legal error 
Infected both the court’s determination that strict 
scrutiny was applicable and its determination that 
District 4 does not satisfy the compactness require­
ment set forth in Thornburg v. Gingles, 478 U.S. 30 
(1986). See J.S. 13-14, 16-17. The district court also 
made several clearly erroneous findings concerning 
the role that race played in the redistricting process. 
J.S. 14-16. Those legal and factual errors warrant 
this Court’s plenary review.

If the Court were to conclude that the appeals are moot, 
the correct course would be to vacate the district court’s 
judgment. Department o f Treasury v. Galioto, 477 U.S. 556 
(1986); United States v. Munsingwear, Inc,, 340 U.S. 36, 39-40 
(1950). Otherwise, parties in future litigation would be free to 
argue that the United States and defendant-intervenors are 
bound by determinations made by the district court in this case. 
The United States and the defendant-intervenors “ought not in 
fairness” be subject to such consequences. U.S. Bancorp M ort­
gage Co. v. Bonner Mall Partnership, 115 S. Ct. 386, 391 (1994). 
In arguing that a determination of mootness should not lead to 
vacation of the judgment below, appellees rely (Mot. to Dis. 14) 
on the Court’s holding in U.S. Bancorp, 115 S. Ct. at 393, that 
a party who voluntarily moots an appeal is not entitled to the 
equitable remedy of vacatur. That holding may be applicable 
to the State of Louisiana; it has no application to either the 
United States or the defendant-intervenors.



5

Appellees nonetheless argue that, if the Court 
reaches the merits, it should summarily affirm the 
district court’s judgment. Mot to Dis. 15-25. Our Ju­
risdictional Statement addresses most of the argu­
ments made by appellees in support of the judgment 
below. We limit our response here to the arguments 
made by appellees that we have not previously ad­
dressed.

a. Appellees contend (Mot. to Dis. 16, 23) that 
Ronald Weber’s testimony on mathematical measures 
of compactness supports the district court’s finding 
that District 4 is not geographically compact. The 
Constitution, however, does not require a State to 
construct its districts in accordance with mathemati­
cal models of compactness. See Shaw v. Reno, 509 
U.S. 630, 647 (1993). The relevant inquiry is whether 
the State concluded in “good faith” that District 4 
was reasonably compact when compared with old 
District 8. Miller v. Johnson, 115 S. Ct. 2475, 2488 
(1995). Since District 4 is only ten miles longer than 
one version of old District 8, and is similar in appear­
ance to various versions of it, the State acted in good 
faith when it concluded that District 4 is reasonably 
compact.

In any event, appellees have not fairly char­
acterized Weber’s testimony. Weber calculated three 
“mathematical” measures of compactness: a popula­
tion test, a dispersion test, and a “max aspect” test. 
Weber Test., 10/30/95 p.m., Tr. 161. Weber testified 
that District 4 scored approximately as well or better 
on the population test as all five versions of old 
District 8 in place since 1970. Id. at 162-163. He 
testified that District 4 in Act 1 scored worse on the 
dispersion test than the 600 mile-long Z-shaped 
District 4 in Act 42. Id. at 103-104. That testimony



6

raises serious questions about the validity of the 
dispersion test as a measure of compactness. And 
Weber admitted that the max aspect test was unreli­
able. Id. at 161. Accordingly, to the extent that 
Weber’s testimony is relevant, it reinforces the con­
clusion that the State acted in good faith when it 
determined that District 4 in Act 1 is reasonably 
compact when compared to old District 8.

b. Appellees also err in relying (Mot. to Dis. 21) on 
Weber’s testimony that District 4 in Act 1 more 
closely resembles the 600 mile-long Z-shaped District 
4 in Act 42 than old District 8. Weber focused exclu­
sively on the overlap in population among the dis­
tricts. Ibid. The State, in contrast, reasonably 
focused on the size, geographic location, and appear­
ance of the districts as well. When assessed against 
all the relevant criteria, District 4 resembles old 
District 8 far more than the Z-shaped district.

c. Appellees contend (Mot. to Dis. 18-19) that 
Glenn Koepp testified that he used only racial infor­
mation in constructing the boundaries of District 4. 
The testimony cited by appellees, however, shows 
only that Koepp’s computer contained racial data, and 
that it did not contain certain other data, such as 
socioeconomic data. The testimony does not remotely 
suggest that Koepp used only racial data in 
constructing the districts. Indeed, in a passage in his 
testimony omitted by appellees, Koepp made clear 
that the computer program he was using allowed him 
to compare the district he was drawing with districts 
in other plans. Koepp Dep. at 79. Koepp also testified 
that he considered other factors in devising District 
4, including compactness and contiguity. Id. at 45-46, 
146-148; Koepp Test., 7/21/94 a.m., Tr. 13-14, 25. Ap­
pellees’ assertion that Koepp testified that he relied



7

exclusively on race in drawing District 4 is therefore 
incorrect.

d. Appellees contend (Mot. to Dis. 19) that a letter 
written by the head of the Civil Rights Division of the 
Department of Justice to counsel for the defendant- 
intervenors “loudly proclaimed DOJ’s maximization 
policy” and “foreordained” that race would predomi­
nate in the redistricting process. Appellees are mis­
taken. The letter cited by appellees responded to an 
inquiry by counsel for the defendant-intervenors 
concerning whether the decision in Hays I invalidat­
ing Act 42 had affected the views expressed by the 
Department of Justice in the Hays I litigation. In 
that litigation, the Department had argued that the 
State had a strong basis in evidence for its conclusion 
that the Voting Rights Act required the drawing of a 
second majority-black district. The letter made clear 
that the Department had not changed its view. It 
stated that:

Evidence in the record [of the Hays I proceeding] 
demonstrates that the three preconditions under 
Thornburg v. Gingles, 478 U.S. 30 (1986), are satis­
fied, giving Louisiana a strong basis for taking 
action to avoid a Section 2 violation. The plain­
tiffs’ own plans, developed and presented at trial by 
Dr. Weber, demonstrate that the black population 
is sufficiently numerous and geographically com­
pact such that two reasonably compact districts 
with black voting age population majorities can be 
drawn. In addition, there is uncontradicted evi­
dence that voting is racially polarized in congres­
sional elections, sufficient to satisfy the second 
and third Gingles preconditions.



8

PX 21, at 2. That discussion reflects a straight­
forward application of the standards set forth by this 
Court in Gingles for determining whether the pre­
conditions for a Section 2 violation have been estab­
lished. It is not evidence of a “maximization policy.”

Appellees’ assertion that the Department of Justice 
letter “foreordained” the State’s policy choices is also 
unsupported by the record. Glenn Koepp devised his 
plan without having had any communication with the 
Department of Justice concerning that plan. Koepp 
Dep. at 134. The State Senate passed Koepp’s plan, 
containing two majority-black districts, before the 
Department of Justice sent the letter to counsel for 
defendant-intervenors. And not a single state legisla­
tor testified that the letter affected his vote on Act 1.

For the foregoing reasons, as well as those in our 
jurisdictional statement, the Court should note pro­
bable jurisdiction.

Respectfully submitted.

Drew  S. Da y s , III 
Solicitor General

June 1996