National Railroad Passenger Corporation v. Morgan Brief Amicus Curiae

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PLEASE NOTE: MANUAL FOOTER 1st PG, 
SECTION 2No.______________

Supreme Court of the United 
States

October Term, 1997

George Price , etal.,
Appellants,

B o ssier  Parish  S chool B oard ,
Appellee.

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

JURISDICTIONAL STATEMENT

In The

V .

Barbara R. Arnwine 
Thomas J. Henderson 
Edward Still

Patricia A. Brannan* 
J ohn W. Borkowski

L awyers’ Committee for 
Civil Rights Under Law

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

1450 G Street, N .W ., Suite 400
Washington, D.c. 20005 
(202) 662-8600

* Counsel of Record Counsel for  Appellants 
George Price, et al.

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i

QUESTION PRESENTED

Does the purpose prong of Section 5 of the Voting 
Rights Act prohibit the implementation of an 
unconstitutionally racially discriminatory re districting 
plan, even if it is not retrogressive?

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ii
TABLE OF CONTENTS

Page
OPINION BELOW............................................ 1

JURISDICTION................................................ 2

CONSTITUTIONAL AND
STATUTORY PROVISIONS 
INVOLVED................................................. 2

STATEMENT......................................................2

I. INTRODUCTION....................................2

II. STATEMENT OF FACTS.....................4

A. The Effect of the Plan..................5

B. The School Board’s
History...........................................7

C. The Sequence of Events 
Leading Up to Adoption of
the Plan.........................................8

D. The Plan Adopted
Compared to Traditional 
Districting Criteria...................... 12

E. The Board Members’
Contemporaneous
Statements....................................13

F. The Board’s Later 
Explanations of Its
Motives.......................................... 14

III. THE PRIOR PROCEEDINGS.............16

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iii
TABLE OF CONTENTS—Continued

Page
A. Administrative

Preclearance Review...................16

B. The Declaratory Judgment 
Action................................... 16

1. The Initial
Proceedings.......................16

2. This Court’s
Decision.............................18

3. Proceedings on
Remand.............................18

REASONS FOR NOTING PROBABLE
JURISDICTION.........................................19

I. THIS COURT SHOULD
CORRECT THE SUBSTANTIAL 
LEGAL ERROR MADE BY THE 
MAJORITY BELOW IN 
LIMITING THE INQUIRY 
INTO THE EXISTENCE OF 
DISCRIMINATORY PURPOSE 
SOLELY TO A SEARCH FOR 
AN INTENT TO CAUSE A 
RETROGRESSION IN 
MINORITY VOTING 
STRENGTH...........................................19

A. The Court Below
Erroneously Declined to 
Address the Issue 
Squarely Presented to it

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TABLE OF CONTENTS—Continued
Page

by this Court’s Remand:
Whether Bossier Had a 
Discriminatory, But 
Nevertheless Non- 
retrogressive, Purpose in 
Enacting its Redistricting 
Plan............................................20

B. The Statute and the 
Decisions of this Court 
Make Clear that Section 
5 Prohibits a Change in 
Election Procedures 
Adopted with an 
Unconstitutional 
Discriminatory Intent 
Whether or Not the
Change is Retrogressive..........22

C. By Improperly Limiting 
the Section 5 
Discriminatory Purpose 
Inquiry, the Majority 
Below Would Severely 
Undermine Effective 
Administration of Section 
5 in Jurisdictions such as 
Bossier Parish Where 
Such Enforcement is

iv

Most Needed..............................28

CONCLUSION..................................................30

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v
TABLE OF AUTHORITIES

Page
CASES:

Arizona v. Reno, 887 F. Supp. 318 (D.D.C. 1995), 
appeal dismissed, No. 95-299 (Mar. 1, 1996)........  passim

Barnett v. Daley, 32 F.3d 1196 (7th Cir. 1994)...............  18, 26

Beerv. United States, 425 U.S. 130 (1976).........................  2 0 ,2 2

Buchanan v. City o f  Jackson, 708 F.2d 1066 (6th Cir.
1983)..........................................................................................  18

Busbee v. Smith, 549 F. Supp. 494 (D.D.C. 1982,1, 
affd, 459 U.S. 1166 (1983)................................................ 21, 23

City o f Pleasant Grove v. United States, 479 U.S. 462 
(1987)......................................................................................... 2 3 ,2 4

City o f  Port Arthur v. United States, 517 F. Supp. 987 
(D.D.C. 1981). affd, 459 U.S. 159 (1982)......................  23

City o f  Richmond v. United States, 422 U.S. 358 
(1975)......................................................................................... 23

City o f  Rome v. United States, 446 U.S. 156 (1980).......  25

Georgia x. United Slates, 411 U.S. 5 2 6 (1 9 7 3)................ 25

Johnson v. Transportation Agency, 480 U.S. 616 
(1987)........................................................................................  24

Ketchum v. Byrne, 740 F.2d 1398 (7th Cir. 1984), 
cert, denied, 471 U.S. 1135 (1985)...................................  26

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

Miller v. WFLI Radio Inc., 687 F. 2d 136 (6th Cir.
1982).......................................................................................... 26 ,2 7

N.L.RB. v. Great Dane Trailers, Inc., 388 U.S. 26 
(1967)......................................................................................... 26

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

Perkins v. City o f  West Helena, 675 F.2d 201 (8th 
Cir.), affd, 459 U.S. 801 (1982).......................................  18, 26

Rogers v. Lodge, 458 U.S. 613 (1982)................................. passim

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vi
TABLE OF AUTHORITIES—Continued

Page
Shaw v Reno, 113 S. Ct. 2816 (1 9 9 3 ) ...............................  11

South Carolina v. Katzenbach. 383 U.S. 301 (1 9 6 6 )..... 25

Texas Dep t o f Community Affairs v. Burdine, 450 
U.S. 248 (1981).....................................................................  27

United States v. Hinds County Sch. Bd., 417 F.2d 852 
(5th Cir.), opinion supplemented, 423 F.2d 1264 
(5th Cir. 1969), cert, denied, 396 U.S. 1032(1970)... 24

Village o f  Arlington Heights v. Metropolitan Housing 
Dev. Corp., 429 U.S. 252 (1977)...................................... passim

Washington v. Davis, 426 U.S. 229 (1976).......................  22

Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973). 
aff'don other grounds sub nom., East Carroll 
Parish Sch. Bd. v. Marshall, 424 U.S. 636 (1976)...... 20

CONSTITUTIONAL PROVISIONS:
U.S. Const, amend. X I V .........................................................  2, 20

U.S. Const, amend. X V ............................................................  2 ,2 0

STATUTES:
Section 2 of the Voting Rights Act, 42 U.S.C. § 1973 ...passim

Section 5 o f the Voting Rights Act, 42 U.S.C.
§ 1973c......................................................................................passim

RULES AND REGULATIONS:
28 C.F.R. 51.55(b)(2) (1995).................................................  30

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In The

Supreme Court of the United 
States

October Term, 1997

No.

G eo rg e  Price , e t a l .,

Appellants,
v.

B o ssier  Parish  Sc h o o l  B o a r d ,

Appellee.

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

JURISDICTIONAL STATEMENT

OPINION BELOW

The decision of the three-judge panel of the United 
States District Court for the District of Columbia
(“D.C. District Court”) is reported at __________
F. Supp.____(D.D.C. 1998). App.____ 1/

1/  In this Jurisdictional Statement, filed on behalf of 
Defendant-Intervenora George Price, et al., citations are to the 
Appendix (“App.”) filed with the Jurisdictional Statement of
Janet Reno, et al., on September__, 1998 in the case of Beno v.
Bossier Parish School Board.

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2

JURISDICTION

The judgment of the three-judge panel of the D.C. 
District Court, which had jurisdiction pursuant to 42 
U.S.C. § 1973c, was entered on May 4, 1998. The 
notice of appeal on behalf of defendant-intervenors 
George Price, et al. (“Defendant-intervenors”), was 
timely filed on July 6, 1998, See Appendix attached 
hereto at la. This Court has jurisdiction over this 
appeal pursuant to 42 U.S.C. § 1973c.

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

Section 1 of the Fourteenth Amendment to the 
United States Constitution provides in pertinent 
part that “[n]o state shall. .. deny any person within 
its jurisdiction the equal protection of the laws.” The 
Fifteenth Amendment provides that “[t]he right of 
citizens of the United States to vote shall not be 
denied or abridged by the United States or by any 
State on account of race, color, or previous condition 
of servitude.” Section 5 of the Voting Rights Act, 42 
U.S.C. § 1973c, is reproduced in the Appendix. App. 
165a-167a.

STATEMENT 

I. INTRODUCTION

This is the second time that the redistricting plan 
for the Bossier Parish School Board (“Bossier” or 
“School Board”) following the 1990 census has come 
before this Court. In 1997, this Court reviewed the

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grant of preclearance under Section 5 of the Voting 
Rights Act by a three-judge panel of the United 
States District Court for the District of Columbia.

The Court remanded this case to the District Court 
to apply the standard of Village of Arlington Heights 
v. Metropolitan Housing Development Corp., 429 U.S. 
252 (1977), to the question of whether the Bossier 
Parish School Board had met its burden under 
Section 5 of the Voting Rights Act to prove that it did 
not adopt its redistricting plan with “the purpose 
. . . of denying or abridging the right to vote on 
account of race or color.” 42 U.S.C. § 1973c. Reno v. 
Bossier Parish School Board, 117 S. Ct. 1491 (1997). 
This Court directed that the existence of a “non- 
retrogressive, but nevertheless discriminatory 
purpose . .. and its relevance to § 5, are issues to be 
decided on remand.” 117 S. Ct. at 1501.

Although two judges on the District Court panel 
on remand, Judges Laurence Silberman and James 
Robertson, concluded that the Board acted with “a 
tenacious determination to maintain the status quo” 
of no elected African-American on the Bossier Parish 
School Board, they, nevertheless, granted 
preclearance. Maj. at 78. See also Dis. at 14. By 
failing to recognize this as a “non-retrogressive, but 
nevertheless discriminatory, purpose” the panel 
majority effectively held that an unconstitutional 
racially discriminatory purpose does not violate 
Section 5 unless it actually worsens the position of 
minority voters.

The third judge on the panel, Judge Gladys 
Kessler, in dissent, concluded as follows, based on 
her reviews of the “extensive record” both in the

3

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original proceedings and again on remand: “Not only- 
does the evidence fail to prove the absence of 
discriminatory purpose, it shows that racial purpose 
fueled the school Board’s decision.” App. 39a. See 
also Dis. at 1. Judge Kessler urged that the panel 
squarely address this Court’s other question on 
remand, since under the Court’s precedents an 
unconstitutional purpose violates Section 5 
regardless of whether it is retrogressive. App. 7.

The panel majority’s radical reworking of the 
standards governing review of discriminatory 
purpose under Section 5 conflicts with the plain 
language of the statute and this Court’s clear 
precedents. It also poses a significant threat to 
effective administration of Section 5 in jurisdictions 
such as Bossier where such enforcement is most 
needed.

II. STATEMENT OF FACTS

The facts in this case are largely undisputed and 
are nearly all either stipulated or unrebutted. The 
majority and the dissenting opinions below reflect 
similar conclusions on the few factual disputes. On 
remand, the parties all agreed that the record should 
not be reopened for the taking of additional evidence. 
Maj. at 1. Thus, the dispute in this case is not about 
the facts but about their legal significance in 
determining whether the Board met its burden to 
show that its redistricting plan was not motivated by 
a discriminatory purpose in violation of Section 5.

This Court’s prior opinion in this case makes clear 
that the relevant factors are those discussed in 
Arlington Heights. Unrebutted evidence of

4

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discriminatory purpose, much of it in the form of 
stipulations, App. 66a-153a 1-285), addressed all
of those factors: (1) “ [t]he impact of the official action 
whether it ‘bears more heavily on one race than 
another;”’ (2) “[t]he historical background of the 
decision;” (3) “ [t]he specific sequence of events 
leading up [to] the challenged decision [including]
. . .  [departures from the normal procedural 
sequence;” (4) “substantive departures . . .  [from] 
factors usually considered important;” and (5) 
“administrative history” and other “contemporary 
statements by members of the decisionmaking body.” 
429 U.S. at 267-68. The facts with respect to each of 
these areas are summarized below.

A. The Effect of the Plan.{ TC "A. The Effect of 
the Plan.” \f C \1 "3" } In 1992, in response to the 
need to redistrict for one-person-one-vote purposes 
following the 1990 census, the School Board adopted 
a twelve single-member-district reapportionment 
plan with twelve majority-white districts. The 
Board’s plan during the 1980’s also had no majority 
black districts. By 1990, however, Bossier Parish, 
Louisiana had a population that was 20.1% black, 
App. 67a (t 5), and a voting age population that was 
17.6% black. Id. at 2a. No black candidate, 
however, had ever been elected to the twelve- 
member School Board. Id. at 67a (t 4).

As the parties stipulated below, this is because 
voting in Bossier Parish is racially polarized, Id. at 
122a-27a (tU 181-96).2/ The foreseeable impact of

5

21 The adverse effects of racially polarized voting on the 
ability of black voters to elect candidates of their choice are 
exacerbated in Bossier Parish by the effects of past

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the Board’s adoption of a redistricting plan with all 
majority-white districts, therefore, was to ensure 
that whenever black voters and white voters prefer 
different candidates, white voters’ preferences will 
prevail, App. 41a, to perpetuate a racially 
“discriminatory status quo.” Dis. at 14.

It was clearly possible, however, respecting 
traditional redistricting criteria, to draw a 
reapportionment plan for Bossier Parish that does 
not have all majority-white districts. App. 41a. The 
School Board stipulated that it was “obvious that a 
reasonably compact black-majority district could be 
drawn within Bossier City,” id. at 76a (t 36), and 
that the outlines of a second such district in the 
northern part of the parish were “readily 
discernible.” Id. at 114a (f 148). Admittedly, by 
fragmenting or “fracturing’’ predominantly black 
residential areas, however, the Board avoided 
drawing any majority-black districts. Id, at 111a, 
112a OH[ 137-38, 142). Indeed, on remand, Bossier 
conceded that “[t]he impact of [its] plan does fall 
more heavily on blacks than on whites,” and, more 
specifically, that its election plan “did dilute black 
voting strength.” Plaintiffs Brief on Remand at 12,

6

discrimination. App. 130a-36a (11 213-32) (past history of 
denial of access to political system); id. at I36a-38a (11 234-43) 
(history of discrimination in education). It was undisputed 
below that the depressed socioeconomic and educational levels 
of black citizens of Bossier Parish make it hard for them to 
obtain necessary electoral information, organize, raise funds, 
campaign, register, and turn out to vote; these factors in turn 
cause a depressed level of political participation. Id. at 127a- 
30a (11 197-202, 206-12).

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7

21.

B. The School Board’s History.{ TC "B. The 
School Board’s History." \f C \1 "3" } The School 
Board’s history of discrimination against black 
citizens demonstrates why it wanted twelve majority 
white districts; so long as black voters had no voice, 
the School Board could safely ignore their concerns, 
and for decades this has been the case. As the 
majority below recognized when it examined this 
evidence on remand, “the intent [this history] proves 
. . .  is a tenacious determination to maintain the 
status quo.” Maj. at 7-8.

The dark history of voting discrimination in Bossier 
Parish was undisputed below. App. 130a-36a 
(1ft 213-32); id. at 42a-46a. Likewise, the School 
Board admitted that it segregated its schools, 
actively resisted desegregation, and has never fully 
remedied its constitutional violation. In recent 
years, moreover, the School Board’s student and 
faculty assignment policies have made its schools 
more racially isolated than they were when it 
unsuccessfully applied for unitary status in 1979. 
App. 136a-38a (1f1 231-43); id. at 45a-46a.

Black citizens have tried without success to alter 
these policies and practices. Bossier is required by 
federal court order to maintain a bi-racial committee 
to “recommend to the School Board ways to attain 
and maintain a unitary system and to improve 
education in the parish.” App. 103a (If 111). The 
Board admitted that, for decades, it simply ignored 
this requirement altogether. Id. at 103a-04a (f 112). 
In 1993, the Board established a committee, but 
when black members made substantive suggestions,

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the Board unilaterally disbanded the committee. 
App. 105a (1 116); id. at 46a. As School Board 
members admitted, they did not want this committee 
getting into “policy'’ questions. Id. at 46a. Even in 
the face of a federal court mandate to listen to the 
concerns of the black community, Bossier refused to 
do so. As a result, the black citizens of Bossier Parish 
are effectively cut off from any opportunity to have a 
voice in the operation of their public schools. 
Adopting a redistricting plan with twelve majority- 
white districts continued this pattern of exclusion. 
This history, as the majority found on remand, 
“provides powerful support for the proposition that 
Bossier . . . resisted a redistricting plan that would 
have created majority black districts.” Maj. at 7.

C. The Sequence of Events Leading Up to 
Adoption of the Plan.{ TC "C. The Sequence of 
Events Leading Up to Adoption of the Plan." \f
C \1 "3" } The Board initially ignored requests by 
black leaders to participate in the redistricting effort, 
employing a process characterized by “public silence 
and private decisions.” App. 50a. The redistricting 
process began in May, 1991, when the Board decided 
to develop its own plan rather than adopt the one 
previously accepted by the Police Jury.3/ Given the 
fact that the next School Board election was not 
scheduled until November, 1994, there was no need 
for hasty Board action. Id. at 4a. The Board hired 
Gary Joiner, the cartographer who had drawn the 
Police Jury plan. Id. He was hired to perform

8

3/ The Police Jury is the Parish governing body, 
comparable to a county council or commission in most states. 
App. 2a; id. at 67a (H 3).

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200-250 hours of work, far more time than would be 
needed simply to recreate the Police Jury plan. Id. 
at 94a 86-87).

On July 29, 1991, the Police Jury plan was 
precleared by the Justice Department. App. 3a. The 
parties stipulated, however, that the Police Jury had 
provided incorrect and incomplete information in its 
Section 5 submission. For example, the Police Jury 
and Gary Joiner were “specifically aware that a 
contiguous black-majority district could be drawn 
both in northern Bossier Parish and in Bossier City.” 
Id. at 76a, 82a-83a, 84a ( t l  36, 52-53, 57). However, 
they lied to the public, id. at 83a 54), to the only
black police juror, id. at 81a 47), and to the
Attorney General, id. at 87a flHj 65-66), by claiming 
that drawing any majority-black district was 
impossible. Despite these misrepresentations, some 
black community groups opposed the plan and 
specifically asked that their letter expressing 
concerns about it be included in the Police Jury's 
Section 5 submission. Id. at 69a, 87a OH1 11, 65-66). 
Joiner and the Police Jury did not include it. Id. 
Had the Police Jury made a complete and truthful 
submission, the Attorney General clearly would have 
denied preclearance.

School Board member Thomas Myrick participated 
in several private meetings with Joiner and white 
police jurors during this time. App. 5a; id. at 81a, 
93a-94a 48, 85). After these meetings, Myrick,
who lives in an area that “would likely be included in 
any majority black district to be drawn in the 
northern part of Bossier Parish,” id. at 81a (f 48), 
recommended that the School Board adopt the Police 
Jury plan. Id. at 95a fll 90). On September 5, 1991,

9

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however, the School Board decided not to adopt the 
Police Jury plan, largely because it would pit 
incumbents against each other. App. 47a. Over the 
course of the next year, School Board members 
considered a number of re districting options. Id. 
Mr. Joiner met privately with School Board members 
and demonstrated different possibilities to them on 
his computer. Id. at 97a (f 96). These meetings 
were not open to the public nor were there any 
recorded minutes or published notices of the 
meetings. Id.; App. 47a.

While the School Board was meeting and planning 
in private, the black community was trying, 
unsuccessfully, to participate in pub he. Id. In 
March of 1992, George Price, on behalf of a coalition 
of black community groups, wrote to the School 
Board asking to participate in its redistricting 
process. App. 5a; id. at 96a (f 93). Neither the 
Board nor the Superintendent responded to this 
request. Id. In August of 1992, Mr. Price sent 
another letter asking specifically to be involved in 
every aspect of the redistricting process. Again, the 
School Board made no response. Id. 94).

Frustrated by the School Board’s unresponsiveness, 
Price contacted the NAACP Redistricting Project in 
Baltimore, Maryland. App. 98a (f 98). The Project 
was able to develop a partial plan for Price to discuss 
with the School Board. That illustrative plan 
consisted of two majority-black districts. Id. The 
plan did not show the other ten districts that made 
up the Parish. Id. When Price gave this information 
to a school district official, he was told that it would 
not even be considered because it only showed two 
districts. Id. (f  99). Price went back to the NAACP,

10

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and a complete twelve-district illustrative plan was 
drawn up. Id. Then, on September 3, 1992, when 
Price appeared on behalf of the black community at a 
Board meeting and presented a new plan showing all 
twelve districts, including ten majority-white and 
two majority-black districts, the Board dismissed it 
summarily, claiming incorrectly that it could not 
even consider any plan that split precinct lines. Id. 
at 98a-100a (til 100-02). Until that time, however, 
the School Board had been actively considering 
alternatives to the Police Jury plan, almost all of 
which would have split precincts. See App. 29a; id. 
at 72a ( f  23).

At the School Board's next meeting, on 
September 17, 1992, Mr. Price again presented the 
NAACP’s illustrative plan. App. lOOa-lOla (1j 106). 
Instead of discussing the plan with Mr. Joiner, or 
asking him to further analyze the possibility of 
drawing black-majority districts without splitting 
precincts (the School Board’s purported reason for 
rejecting the plan, but see id. at 72a (1f 23)), the 
Board responded by immediately passing a motion of 
intent to adopt the Police Jury plan. Id. at 48a.

On September 24, 1992, an overflow crowd
attended the state-mandated public hearing on the 
redistricting plan. App. 7a. Fifteen people spoke 
against the School Board’s proposed plan, most of 
whom objected because it would dilute minority 
voting strength. App. 8a; id. at 101a (1f 108). Not a 
single person spoke in favor of the plan. Id. At this 
hearing, Mr. Price also presented the Board with a 
petition signed by more than 500 Bossier Parish

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citizens, asking the Board to consider an alternative 
redistncting plan. Id. at 7a-8a.

Despite the one-sided input from Bossier citizens, 
and despite the fact that the Board was under no 
time pressure to decide the issue, the Board voted, at 
its very next meeting on October 1, 1992, to adopt 
the Police Jury plan. As with the meetings of 
September 3 and September 17, 1992, the minutes of 
this meeting reflect virtually no substantive 
consideration of the Police Jury plan.

Board Member Myrick later testified that the 
Board adopted the plan that evening because it was 
“expedient.” App. 49a. The Police Jury plan only 
became “expedient” when the School Board was 
publicly confronted with an illustration that 
alternatives to twelve white-majority districts were 
possible. Id. Faced with the growing frustration of 
the black community at being excluded from 
educational policy decisions and from the electoral 
process, the only way for the School Board to ensure 
a plan with all majority-white districts was to adopt 
the Police Jury plan quickly, despite its other 
drawbacks. App. 49a; id. at 7a-8a, 28a.

D. The Plan Adopted Compared to 
Traditional Districting Criteria.{ TC "D. The 
Plan Adopted Compared to the Board’s 
Redistricting Criteria. " \f C \1 "3" } The Board, 
without explanation, adopted a plan which departs 
substantively from its earlier districting plans and 
ignores factors that it had previously considered 
paramount. App. 50a. The plan forced incumbents 
to run against one another. Id. at 8a. It also created 
several districts that, according to its own

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cartographer, are not compact, id. at llla -12a 
(11 139), including Thomas Myrick’s district which 
contains almost half of the geographic area of the 
Parish. Id. at 112a (f 140). These districts do not 
track school attendance boundaries. In fact, some of 
them do not even contain a school. App. 8a; id. at 
112a (| 141). However, they do split black 
communities, and all of them have a white majority. 
Id. at llO a-lla  (tH 135-37). The panel majority 
below found that those departures from the Board’s 
traditional districting criteria “establish! ] rather 
clearly that the Board did not welcome improvement 
in the position of racial minorities with respect to 
their effective exercise of the electoral franchise.” 
Maj. at 8.

E. The Board Members’ Contemporaneous 
Statements.{ TC "E. The Board Members’
Contemporaneous Statements." \f C \1 "3"} The 
School Board “left virtually no legislative history” of 
its decision. App. 55a n .ll. Three School Board 
members, however, made contemporaneous
statements revealing the Board’s discriminatory 
purpose. App. 5a-6a n.4. School Board member 
Henry Burns told a black acquaintance that while he 
“personally favors having black representation on 
the board, other school board members oppose the 
idea.” Id. The School Board offered no evidence 
denying or explaining this statement. School Board 
member Barry Musgrove told a prominent black 
leader that “while he sympathized with the concerns 
of the black community, there was nothing more he 
could do . . .  on this issue because the Board was 
‘hostile’ toward the idea of a black-majority district.” 
Id. Finally, School Board member Thomas Myrick, 
who lives in an area that could readily accommodate

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a black-majority district and contains two schools 
(both of which have student enrollments that are 
more than 75% black), told black leaders that he 
would not “let [them] take his seat away from him.” 
App. 5a-6a n.4.

F. The Board’s Later Explanations of Its 
Motives.} TC "F. The Board’s Later 
Explanations of Its Motives." \f C \1 "3" } After 
the fact, the School Board sought to justify its actions 
with a flurry of explanations, including several 
which, even before this Court’s remand, the majority 
below had found “clearly were not real reasons.” 
App. 27a n.15. For example, the School Board 
argued that it adopted the Police Jury plan (on 
October 1, 1992) to comply with Shaw v. Reno, 113 
S. Ct. 2816 (1993) (decided June 28, 1993), even 
though Shaw was decided nine months after the 
Board adopted its plan. Id.

The School Board also reiterated its false claim 
that it could not adopt a plan without twelve 
majority-white districts because any such plan would 
require precinct-splitting, which it erroneously 
claimed violates state law. App. 56a. Throughout 
the redistricting process, however, the School Board 
was willing to split precincts for the protection of 
incumbents. Id. It was only after the black 
community presented its alternative plan that the 
School Board proffered the “no precinct-splitting” 
rationale. Indeed, the majority below found that 
when “the School Board began the redistiicting 
process, it likely anticipated the necessity of splitting 
some precincts.” Id. at 29a. Furthermore, it was 
undisputed that splitting precincts does not violate 
state law; while the School Board itself may not split

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precincts, police juries have the authority to 
establish and modify precinct lines, and many do so 
when requested by a school board. Id. at 69a-73a, 
85a-86a 13-25, 60-61). The School Board did not
request precinct changes from the Police Jury.

Nor did the School Board voice any concern in its 
initial submission to the Attorney General about a 
high number of precinct splits causing higher 
election costs. App. 57a. The Board never estimated 
the cost of splitting precincts before it voted to adopt 
the Police Jury plan. Id. Obviously, “cost” did not 
actually motivate the School Board’s decision at the 
time it was made. Id.

Bossier’s final proffered justification for adopting 
the Police Jury plan was that it guaranteed 
preclearance; that is, the Attorney General would 
approve the School Board’s plan because it was 
identical to the Police Jury plan which already had 
been precleared. App. 57a-58a. However, 
“guaranteed preclearance” was not the School 
Board’s main objective; if the School Board’s 
paramount concern had been preclearance, it would 
not have waited until October 1, 1992 -  almost 14 
months later -  to adopt the Police Jury plan. Id. If 
guaranteed preclearance was so important to the 
Board, it would have acted soon after the Police Jury 
plan was precleared by the Justice Department on 
July 29, 1991. Id. Moreover, adopting a plan with 
one or more majority-black districts certainly would 
not have made preclearance less likely.

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16

III. THE PRIOR PROCEEDINGS

A. Administrative Preclearance Review.{ TC 
"A. Administrative Preclearance Review." \f C 
\1 "3" } While the School Board had acted 
precipitously in approving its redistricting plan on 
October 1, 1992, it was not submitted to the 
Department of Justice for preclearance until January 
4, 1993. App. 103a (If 110). After requesting 
additional information, the Attorney General 
interposed a timely objection to Bossier’s plan. Id. at 
154a, 106a-07a ( f t  118-19). The School Board met 
in closed session and decided to seek reconsideration. 
Id. at 107a ( f f  120-22). The Attorney General 
denied this request on December 20, 1993. Id. at 
159a, 108a (f  125).

B. The Declaratory Judgment Action.{ TC "B.
The Declaratory Judgment Action." \f C \1

"3"}

1- The Initial Proceeding's.I TC "1. The 
Initial Proceedings." \f C \1 "4" } On July 8, 1994, 
Bossier filed this action against the Attorney 
General in the United States District Court for the 
District of Columbia. A group of black voters in 
Bossier Parish, George Price, et al.t intervened as 
defendants in support of the Attorney General. The 
Defendant-Intervenors suggested below that the 
three-judge court decide this case based solely on the 
issue of discriminatory purpose.

The Attorney General agreed that the evidence 
clearly established an unconstitutional 
discriminatory intent, but also argued that much of 
the same evidence also established a clear violation

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of Section 2 and that such a violation constitutes 
independent grounds for denying preclearance. The 
court below ruled that Section 2 analysis may not be 
incorporated into a Section 5 review. Id. at lla-24a.

The majority, then Judges Laurence Silberman and 
Charles Richey, went much further, however, ruling 
that no “evidence of a section 2 violation” may be 
used to establish “discriminatory purpose under 
section 5.” App. 23a (emphasis added). Ignoring the 
fact that much of the same evidence used in 
establishing a Section 2 violation is independently 
probative of discriminatory intent under Arlington 
Heights and other precedents of this Court guiding 
the inquiry into racially discriminatory intent or 
purpose, the majority flatly held that it would “not 
permit section 2 evidence to prove discriminatory 
purpose.” Id. at 24a (emphasis added). As a result, 
the majority excluded from its consideration much of 
the evidence of discriminatory intent in this case.

The majority also erred by concluding that since it 
found that the School Board had “at least two . . . 
‘legitimate, nondiscriminatory motives,”' Bossier had 
met its burden of proof. App. 27a (quoting New York 
v. United States, 874 F. Supp. 394, 400 (D.D.C. 
1994)). The majority thus ignored the School Board’s 
burden of producing some evidence that the proposed 
changes were not also motivated in part by an 
unconstitutional discriminatory purpose.

Judge Kessler, alone among the panel, considered 
the entire “extensive record” below and applied the 
Arlington Heights standard. She concluded that 
Bossier had failed to carry its burden of proving that 
it acted solely with “legitimate, nondiscriminatory

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motives.” App. 37a (quoting New York, 874 F. Supp. 
at 400). Indeed, Judge Kessler, looking at all the 
evidence, found that it “demonstrates 
overwhelmingly” that “racial purpose fueled the 
School Board’s decision.” Id. at 63a, 39a.

2. This Court’s Decision.! TC "2. This 
Court’s Decision." \f C \1 "4" } This Court upheld 
the District Court’s unanimous conclusion that a 
Section 2 violation did not provide an independent 
basis for a denial of preclearance under Section 5, 
but vacated the majority’s decision and remanded for 
the lower court to apply the Arlington. Heights 
standard to all of the probative evidence of 
discriminatory purpose. 117 S.Ct. 1491. The Court 
also directed the lower court to “decide on remand” 
whether there was any merit to the argument that 
Section 5’s discriminatory purpose prong only 
reaches voting changes enacted with an intent to 
retrogress. Id. at 1501.

3. Proceedings on Remand.! TC "3.
Proceedings on Remand. " \f C \1 "4" } On

remand, the majority (now Judges Silberman and 
James Robertson, who joined the panel after Judge 
Richey’s death) “declined” to address the scope of 
Section 5’s purpose prong, Maj. at 3, but then applied 
the Arlington Heights standard only to the question 
of whether the Board intended retrogression. 
Applying the Arlington Heights standard to this 
question the majority concluded that Bossier had no 
retrogressive intent.

Judge Kessler in dissent found that the majority 
erred in restricting “their § 5 purpose inquiry to a 
search for intent to retrogress.” Dis. at 2. She

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concluded that this “far too limited and narrow an 
inquiry” was not supported by the statute, its 
legislative history or the decisions of this Court. Dis 
at 3, 5-7.

19

Judge Kessler also again analyzed the voluminous 
evidence of the plan’s impact and concluded that “it 
overwhelmingly demonstrates” that the plan dilutes 
black voting strength. Dis. at 11. Therefore, she 
found that the "majority’s conclusion (that the School 
Board acted with an intent to maintain the 
discriminatory status quo) leads to denial of 
preclearance -  under the purpose prong of § 5.” Dis. 
at 15.

REASONS FOR NOTING PROBABLE 
JURISDICTION

I. THIS COURT SHOULD CORRECT THE 
SUBSTANTIAL LEGAL ERROR MADE BY 
THE MAJORITY BELOW IN LIMITING THE 
INQUIRY INTO THE EXISTENCE OF 
DISCRIMINATORY PURPOSE SOLELY TO 
A SEARCH FOR AN INTENT TO CAUSE A 
RETROGRESSION IN MINORITY VOTING 
STRENGTH.

The majority below erroneously limited its Section 
5 discriminatory purpose inquiry to a search for an 
intent to retrogress. This unprecedented ruling 
(1) evades a central issue presented by this Court’s 
remand; (2) departs from the controlling precedents 
of the Court; and (3) impairs Section 5 enforcement 
in jurisdictions like Bossier Parish in which its 
application is most vital.

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A. The Court Below Erroneously Declined 
to Address the Issue Squarely Presented 
to it by this Court’s Remand: Whether 
Bossier Had a Discriminatory, But 
Nevertheless Non-retrogressive, Purpose 
in Enacting its Redistricting Plan.

As Judge Kessler pointed out in dissent, this Court 
stated that, while it did not assume “that the Board 
enacted the Jury plan with some non-retrogressive 
but nevertheless discriminatory ‘purpose’, the 
existence of such a purpose, and its relevance to § 5, 
are issues to be decided on remand.” Dis. at 2 
(quoting 117 S. Ct. at 1501). This instruction 
required the court below (1) to address the relevance 
of a “non-retrogressive, but nevertheless 
discriminatory purpose” to Section 5, and (2) to 
inquire into existence of such a discriminatory 
purpose in this case. The majority, however, erred in 
expressly “declining” to carry out the first mandate 
from this Court and, as a result, failed to conduct the 
second inquiry either. Maj. at 3.

This is plainly error, for this case has never been 
about retrogression. As the majority acknowledged, 
before trial, the parties stipulated that the 
retrogression caused by the Board’s Plan was de 
minimus, Maj. at 6, and, at trial, neither the 
Attorney General nor the Defendant-Intervenors 
sought to prove an intent to retrogress. Rather, the 
parties having stipulated to facts showing the 
dilutive impact of the plan on minority voting 
strength; the Defendant-Intervenors and the 
Attorney General focused at trial on rebutting

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Bossier’s weak effort to show that this vote dilution 
was not intentional.

Instead, the majority misapplied Arlington Heights 
by analyzing each factor tending to show 
discriminatory intent solely for the purpose of 
determining whether it showed an intent to 
retrogress. For example, the majority found that 
while “the historical background of the school board’s 
adoption" of the plan “provides powerful support for 
the proposition that the . . . Board in fact resisted a 
redistricting plan that would have created majority 
black districts” and showed a “tenacious 
determination to maintain the status quo,” it does 
not show the Board intended “retrogression." Maj. at 
7-8 (emphasis added). Likewise, while the majority 
recognized that the “sequence of events . .  . does tend 
to demonstrate the school board’s resistance to the 
“NAACP plan; it does not demonstrate retrogressive 
intent.” Id. at 8 (emphasis added). While the
Board’s departure from traditional districting 
criteria also “establishes rather clearly that [it] did 
not welcome improvement in the position of racial 
minorities with respect to their effective exercise of 
the electoral franchise,” according to the majority, “it 
is not evidence of retrogressive intent.” Id. 
(emphasis added). Finally, the majority disregarded 
the statements of board members indicating 
discriminatory purpose because “ [t]hey do not 
establish retrogressive intent." Id. (emphasis added). 
Thus, with respect to each type of evidence in this 
case, the panel majority erroneously failed even to 
undertake the central task on remand: determining 
under the Arlington Heights standard whether the 
Board had met its burden of proving that it did not 
adopt its dilutive, but non-retrogressive, plan in part

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for an unconstitutional racially discriminatory 
purpose. As Judge Kessler observes, it was error for 
the majority to “have limited their § 5 purpose 
inquiry to a search for intent to retrogress.” Dis. at 
2.

22

By so limiting its inquiry, the majority misapplied 
Arlington Heights and, as a result, misinterpreted 
the facts. Judge Kessler, who has now twice applied 
Arlington Heights to those established facts has 
twice found that they “overwhelmingly demonstrate” 
that Bossier acted with an unconstitutional racially - 
discriminatory purpose that was not retrogressive. 
App. 63a; Dis. 11.

B. The Statute and the Decisions of this 
Court Make Clear that Section 5
Prohibits a Change in Election 
Procedures Adopted with an
Unconstitutional Discriminatory Intent 
Whether or Not the Change is
Retrogressive.

Section 5’s discriminatory purpose inquiry clearly 
extends beyond the search for retrogressive intent. 
Section 5 prohibits any unconstitutional 
discriminatory intent. Such an intent may take the 
form of an intent to retrogress, but on the facts of 
particular cases, such as this case, it can take other 
forms. The plain language of the statute and the 
consistent caselaw interpreting it leave no doubt that 
the “purpose” inquiry under Section 5 should be co­
extensive with the Arlington Heights analysis. 
Indeed, there is no support for the proposition that 
Section 5 was intended to provide less protection

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against racial discrimination than does the 
Constitution.

By its terms, Section 5 forbids any voting change 
unless the covered jurisdiction establishes that the 
change “does not have the purpose and will not have 
the effect of denying or abridging the right to vote on 
account of race or color.” 42 U.S.C. § 1973c. These 
words echo the language of the 15th Amendment: 
“The right of citizens . . .  to vote shall not be denied 
or abridged . . .  on account of race or color . . . . ” 
Congress’ use of constitutional language indicates 
that one purpose forbidden by Section 5 is the 
purpose of unconstitutionally diluting minority 
voting strength. See Bossier, 117 S. Ct at 1505 
(Breyer, J., concurring). There is nothing in the 
plain and unambiguous language of Section 5 to 
suggest that Congress intended a Section 5 court or 
the Attorney General to preclear a dilutive plan 
adopted with an unconstitutional purpose.

Given that the “starting point” for assessing 
discriminatory purpose under Arlington Heights is 
the impact of the proposed action, 429 U.S. at 266 
(citing Washington v. Davis, 426 U.S. 229, 242 
(1976)), limiting the Section 5 discriminatory 
purpose inquiry to the existence of “retrogressive 
intent” would make that analysis redundant. What 
jurisdiction intending to retrogress would adopt a 
non-retrogressive plan? Likewise, since any plan 
with a retrogressive impact also would violate the 
effect prong of Section 5, the purpose prong would be 
superfluous.

This Court also has held repeatedly that 
intentional minority vote dilution is a harm against

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which Section 5 guards and that a prohibited 
discriminatory purpose need not be retrogressive. As 
Justice Breyer wrote, in his concurrence in this case, 
“the ‘purpose’ inquiry does extend beyond the search 
for retrogressive intent.” 117 S. Ct. at 1505.

While the majority opinion purported to “leave 
open for another day” that question, the Court has 
answered already, repeatedly and consistently. In 
1966, the Court upheld the constitutionality of the 
Voting Rights Act in South Carolina v. Katzenbach, 
383 U.S. 301, and recognized that Section 5 and the 
Fifteenth Amendment were coextensive. Id. at 334 
(Section 5 requires a determination whether voting 
changes “would violate the Fifteenth Amendment”). 
See also Allen v. State Bd. of Elections, 393 U.S. 544, 
556 (1969). Subsequently, in cases like City of 
Pleasant Grove v. United States, 479 U.S. 462, 469- 
72 (1987), Busbee v. Smith, 459 U.S. 1166 (1983), 
and City of Richmond v. United States, 422 U.S. 358 
(1975), the Court has been presented directly with 
and rejected the argument that Section 5 does not 
prohibit nonretrogressive voting changes enacted 
with an unconstitutional discriminatory intent.

In the first of these cases, City of Richmond v. 
United States, 422 U.S. 358 (1975), the Court 
remanded for a determination of discriminatory 
purpose where the election change had 
discriminatory effect. In rejecting the argument that 
such a remand was unnecessary, the Court explained 
the obvious logical implication of its prior 
observations in Katzenbach and Allen:

The answer is plain, and we need not labor it. An
official action, whether an annexation or otherwise,

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taken for the purpose of discriminating against 
Negroes on account of their race has no legitimacy 
at all under our Constitution or under the statute. 
Section 5 forbids voting changes taken with the 
purpose of denying the vote on the grounds of race 
or color. . . .  An annexation proved to be of this 
kind and not proved to have a justifiable basis is 
forbidden by § 5, whatever its actual effect may have 
been or may be.

422 U.S. at 378-79 (emphasis added).

Later in Busbee u, Smith, 959 U.S. 1166 (1983), the 
Court summarily affirmed a three-judge court’s 
denial of Section 5 preclearance to a redistricting 
plan that was not merely nonretrogressive but 
actually ameliorative, in that it increased black 
voting strength. 549 F. Supp 494, 516 (D.D.C. 1982). 
The district court explained that “ [s] imply 
demonstrating that a plan increases black voting 
strength does not entitle the state of Georgia to the 
declaratory relief it seeks; the state must also 
demonstrate the absence of discriminatory purpose.” 
Id. In its appeal to this Court, the state claimed that 
this was legal error,4/ but this Court rejected that 
argument and summarily affirmed the district court.

25

4/ The questions presented in Busbee were:

A. Whether a Congressional reapportionment plan that has 
no discriminatory effect, that enhances black voting strength, 
and that provides blacks with equal access to the political 
process can be deemed to violate Section 5 of the Voting Rights 
Act.

B. Whether a Congressional reapportionment plan that does 
not have the purpose of diminishing the existing level of black

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Yet again in Pleasant Grove, the Court rejected the 
argument that a nonretrogressive change could not 
violate the purpose prong of Section 5. The Court 
found that the city had failed to prove that its 
annexation of certain white areas lacked a 
discriminatory purpose. Despite the fact that the 
annexation lacked a retrogressive effect, the Court 
denied Section 5 preclearance. Id.; see also id. at 
474-75. (Powell, Jj, dissenting)(contending that the 
majority erred in holding that a discriminatory 
purpose could be found even though there was no 
intent “to have a retrogressive effect”). Thus, the 
limitation that the panel below set for itself of 
reviewing the evidence only for intent to retrogress is 
contrary to this Court’s decisions rejecting the 
argument that Section 5 does not prohibit a 
nonretrogressive voting change enacted with an 
unconstitutional, discriminatory intent.

This Court’s more recent decision in Miller v. 
Johnson, 515 U.S. 900 (1975), confirms this long­
standing view of the purpose prong of Section 5. In 
Miller, the Court expressly acknowledged its 
previous decisions, see e.g. Pleasant Grove, 479 U.S. 
at 469, which recognize discriminatory purpose as a 
distinct basis for the denial of preclearance under 
Section 5. See also Busbee, 549 F. Supp. at 516-17;

26

voting strength can be deemed to have the purpose of denying 
or abridging the right to vote on account of race within the 
meaning of Section 5 of the Voting Rights Act.

Jurisdictional Statement at i, Busbee v. Smith, 459 U.S. 1166 
(1983).

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City of Port Arthur v. United States, 517 F. Supp. 987 
(D.D.C. 1981), aff’d, 459 U.S. 159 (1982).

While the Court in Miller also quotes Beer v. 
United States, 425 U.S. 130, 141 (1975), for the 
proposition that “the purpose of § 5 always has been 
to insure that no voting-procedure changes would be 
made that would lead to a retrogression in the 
position of racial minorities with respect to their 
effective exercise of the electoral franchise,” 515 U.S. 
at 926, the Court’s decision in Beer addresses only 
the meaning of “discriminatory effect” under Section 
5.

27

In both Beer and Miller, moreover, the Court 
expressly reaffirmed that purposeful racial 
discrimination remains an independent basis for a 
Section 5 objection. In Beer, the Court held that “a 
legislative reapportionment could be a substantial 
improvement on its predecessor in terms of lessening 
racial discrimination, and yet nonetheless continue 
so to discriminate on the basis of race or color as to 
be unconstitutional.” 42 U.S. 142 n.14. The Court in 
Miller reiterated that even an “ameliorative” plan 
can violated Section 5 if “the new apportionment 
itself so discriminates on the basis or race or color as 
to violate the Constitution.” Id. at 923 (citations 
omitted). By now, therefore, it is well-settled that in 
analyzing discriminatory purpose under Section 5 
the question is whether the jurisdiction has 
established the absence of any unconstitutional 
discriminatory intent, not merely an intent to 
retrogress.

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C. By Improperly Limiting the Section 5 
Discriminatory Purpose Inquiry the 
Majority Below Would Severely 
Undermine Effective Administration of 
Section 5 in Jurisdictions Such as 
Bossier Parish Where Such Enforcement 
is Most Needed.

In jurisdictions, like Bossier Parish, with poor 
disenfranchised minority communities, neither 
Section 2 nor the effect prong of Section 5 
consistently provides an effective remedy against 
discrimination in voting. Therefore, to limit Section 
5’s purpose inquiry only to cases already involving 
retrogression would insulate the intransigent and 
damaging racial discrimination of Bossier Parish.

Congress’ fundamental purpose in enacting Section 
5 was to keep jurisdictions, like Bossier, with a long 
history of voting discrimination from finding new 
ways to perpetuate their discriminatory ways. H.R. 
Rep. No. 89-439, at 8-9 (1965; S. Rep. No. 89-162, pt. 
3, at 13-15 (1965). To accomplish this Congress 
shifted to covered jurisdictions the burden of proving 
the absence of discriminatory purpose or effect.

During the course of the hearings and debate on 
the Act, Congress found that prosecuting cases to 
enforce constitutional prohibitions against voting 
discrimination was lengthy and time-consuming. 
H.R. Rep. No. 89-439, at 9-11 (1965); S. Rep. No. 89- 
162, pt. 3, at 6-9 (1965). Moreover, even when cases 
were successfully prosecuted, effective relief was 
difficult to obtain; when discriminatory voting 
devices were eliminated, many of the jurisdictions 
found new ways to discriminate. H.R. Rep. No. 89-

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439, at 10-11 (1965); S. Rep. No. 89-162, pt. 3, at 8, 
12 (1965).

Bossier Parish is precisely such a jurisdiction in 
which discriminatory patterns have been
successfully perpetuated in voting, as in other areas, 
in part because of the inability of the local minority 
community to bring and maintain successful legal 
challenges. In such jurisdictions Section 2 does not 
provide a remedy that most victims of voting 
discrimination can use effectively. As Congress
recognized, the process is lengthy, time consuming 
and expensive, and the burden of proof rests on the 
plaintiffs, who like the Defendant - Intervenors here 
are often excluded from the redistricting process and 
denied accurate information. See supra Statement 
II.C.

Moreover, in Bossier Parish, such complex civil 
rights litigation has proven prohibitively expensive. 
The record here shows, for example, that the local 
black community was unable to maintain counsel to 
force the Board to comply with outstanding 
desegregation orders. [Direct Testimony of S.P. 
Davis]. As a result, the Board was able to ignore and 
to violate its court-ordered desegregation obligations. 
J.A. at 90-91 (Davis). Likewise the Bossier Parish 
Police Jury was able to enact a discriminatory 
redistricting plan and falsely claim that it was 
impossible to draw any election districts containing a 
majority of black voters; no one in the local black 
community had the resources to unmask this lie. See 
supra Statement II.C. In a poor, rural, racially- 
divided community like Bossier Parish, Section 5 is 
our best hope for electoral justice, and fair elections

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are our only real hope for racial justice and equal 
educational opportunity.

In Bossier Parish, moreover, it would be virtually 
impossible to oppose preclearance if such opposition 
required a demonstration of a retrogressive effect. 
Most obviously, in terms of the number of majority- 
minority election districts or successful minority 
candidates, it is impossible to retrogress from zero.

Moreover, for elected officials bent on 
discrimination, if minority voters already can elect 
no candidates of their choice, there is no need for 
further retrogression. Even if minority voting 
strength could have been more diluted
mathematically, it could not have been diluted any 
more effectively. To condone the intentional 
perpetuation of such a situation would transform the 
Board’s “extraordinary success in resisting
integration . .. [into] a shield for further resistance.” 
Pleasant Grove, 479 U.S. at 472. And, as this Court 
has held, “ [n]othing could be further from the 
purposes of the Voting Rights Act.” Id.

CONCLUSION

The evidence below, when fully considered as 
Judge Kessler did, “demonstrates overwhelmingly” 
that Bossier’s action “was a thinly veiled effort to 
deny black voters a meaningful opportunity for 
representation on the School Board.” App. 63a, 64a. 
This action is unconstitutional and, therefore, 
violates Section 5.

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31

The majority’s contrary interpretation of Section 5’s 
purpose prong, as prohibiting only the intent to 
retrogress, contradicts this Court’s clear precedents. 
Therefore, the Court should note probable 
jurisdiction and correct this substantial legal error.

Barbara R. arnwine 
Thomas J. Henderson 
Edward still

Respectfully submitted,
Pa tricia a . Brannan*
John W. Borkowski

Lawyer’s Committee for 
Civil Rights Under Law

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

1450 G Street, N.W., Suite 400
Washington, D.C. 20005 
(202) 662-8320

* Counsel o f  Record Counsel for Appellants 
George Price et at.

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