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I

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The Federal Courts and Redistricting:
The Right to Eormulate a Remedy

Janet Sabel
Fal1 L982
N.Y.U. Law School



In much of public law litigation, the policy of

judicial deference to the legislature in traditi-onaIIy poli-

tical matters acts as a constraint on the court's ability

to give fulI meaning to fundamental constitutional rights.

Unrestricted judicial intervention in peculiarly legislative

or political matters would undermine the credibility and,

ultimately, the power of the judiciary as a co-equal branch

of the government. However, in some areas where majoritarj-an

control threatens the very existence of fundamental rights,

the Supreme Court has acknowledged that the judiciary is
unambiguouslv required to review legislative policy. Following

this principle, the courts have intervened in the area of

voting rights, where it is claimed that minorities have been

unfairly excluded from the electoral process. The Supreme

Court, however, has not formulated the fuIl extent and precise

nature of judicial intervention in the remedy stage of voting

rights cases. An analysis of the recent Texas vote dilution

case of gphq_v._Sge*gnl will illustrate several alternative
judicial explanations for the Court's involvement in fashj-oning

a remedy in the politically charged area of congressional

redistricting.

Since the Supreme Court's decisions, in the early
1960's, of -Baker v.J"r! and Reynolds v. Simms,3 the federal

courts have found themselves in the center of the politi-ca1

conflict over Ieg5-slative and congressional reapportionment.



When Congress passed the Voting Rights Act in 1965,4 it was

recognized that ful1 and effective protection of the one-

person-one-vote principle5 required legislative intervention

to supplement and expand upon the Fourteenth and Fifteenth

Amendment constitutional safeguards. To the extent that the

Voting Rights Act and the Constitution arti-culate require-

ments for fair voting practice and equal access to the

legislative process, the federal courts have been given the

responsibility of given meaninq to the right to equal access

to the electoral process.

The 14th and 15th Amendments of the constitution

and Section 2 of the Voting Rights Act 6 confer on private

individuals the right to bring a cause of action against a

state or political body for alleged vote dilution. Section

5 of the voting Rights actT applies only to specified juris-

dictions whose prior history of voting discrimination requires

them to preclear all proposed changes to voting practices or

procedures in their state with the U.S. Department of Justice.

At the time of Upham, under Section 2 of the Voting Rights

Act and the 14th and 15th Amendments, proof of intent to

discriminate against minorities was required to establish a

voting rights violation,S whereas Section 5 of the Voting

Rights Act required the lesser showing that the voting prac-

tice or procedure had the purpose or effect of decreasing

minority voting strength. Upham was brought under Section 5

of the Voting Rights Act.



The decisive factor in every vote dilution case is

whether a minority group is allowed effective participation

in the political process. 9 The supreme court in Beer v.

United StateslO stated that:

the purpose of Section 5 lof the Voting Rights
Act] has always been to ensure that no voting
procedure changes would be made that would lead
to a retrogression in the position of racial
minorities with respect to their., pf f ective exer-
cise of the electoral franchise."

Under Beer, therefore, the Section 5 "non-retro-

gression" standard can only be fully satisfied if the ability

of minorj-ty groups to participate in the political process

is not lessened by the procedural "h.r,g".12 The burden of

proving non-retrogression in a Section 5 preclearance case

falls on the covered jurisdiction. If the jurisdiction fails

to meet its burden of proving that the voting procedure or

plan does not have a racially discriminatory purpose or

effect, the Department of Justice will file a letter objecting

to the enactment of the voting plan or procedure. The appro-

priate district court will be asked to become involved to

ensure that an acceptable voting plan is formulated for the

jurisdiction. At this point, the courtrs relationship to the

legislature becomes increasingly problematic.

Redistricting plans involve highly political prac-

tices which go to the very heart of a democratically elected

government. But where delay in the implementation of con-

stitutionally and statutorily required voting laws has the

effect of shutting out minority access to the electoral



process, the court's involvement j-n fashioning interim reme-

dies is justified. The court must at all times, however, be

extremely cautious when fashioning remedies not to preempt

the legislative task or intrude upon state policy any more

than necessary. 13 Just how far the court can go in deviating

from, rejecting or reshaping legisl-ative pronouncements in

fashioning an interim redistricting plan is the subject of

Upham v. Seamon.

In Upham, the District Court had before it a

redistricting plan for the State of Texas, Senate Bitl No. I
(S.B. 1), which incorporated three new congressional dis-

tricts required by the 1980 census report. When the state

first announced its plan to enact S.B. 7, a suit was filed

in District Court challenging the constitutionality of the

reapportionment plan for alleged dilution of minority voting

strength under the Fourteenth and Fifteenth Amendments and

under Section 2 of the Votinq Riqhts Act of 1965.

The District Court deferred a hearing on the case

until Texas submitted the redistricting plan for preclearance

to the Department of Justice. Texas, as a covered juris-

diction under Section 5 of the Voting Rights Act, is required

to get prior approval from the U.S. Attorney General for any

change in voting practice or procedure it wishes to enforce.

The Department of Justice refused to preclear the redistricting
plan and stated in its objectlon letter that two conqressional

districts in S.B. 1 were unconstitutionally drawn so as to



have a retrogressj-ve effect on minority voting strength in

Texas. 14 The Department of Justice refused to sever the two

objectionable districts from the rest of the state plan,

despite a request by Texas to aIlow the unobjected-to portions

of S.B. I to be enacted into Iaw. The effect of the objection

to S.B. I by the Attorney General was to render implementation

of S.B. I's provisions lega11y unenforceable. The District

Court was asked by the parties in the litigation, including

the State of Texas, to exercise equitable jurisdiction and

implement an interim congressj-ona] redistricting plan to

forestall any further delay in elections. The three judge

panel redrew district lines to resolve the Attorney General's

stated objections in two congressional districts, but Judges

Johnson and Justice went further and drew a court plan for

two additional districts in Dallas County.

Judge Justice found that S.B. I was an unconstitu-

tional redistricting plan and redressed the wrong by redrawing

district lines in Dallas County.l5 Judge Johnson viewed

S.B. I as a legal nullity such that any plan which the

District Court proposed r.rould be a court-ordered plan which

must conform to Section 5 standards and the stricter application

of the non-retrogression rule of Eer_v.- United States than

would be necessary with a legislative plan. Under judicial

application of the non-retrogression standard, Judge Johnson

found that the legislative plan for Dallas County did not

meet the special standards of population equality and racial

fairness that are appli-cable to court-ordered p}ans, and

therefore the district lines had to be redrawn. 16



Judge Parker would have followed the proposed

legislatj-ve plan in Dallas County, and dissented from the

portion of the opinion lvhich concerned Dallas County. Judge

Parker vierved the Department of Justice objection letter

as a final statement of liability, which therefore required

complete deference by the District Court.17

On direct appeal, the United States Supreme Court

vacated the District Court decision to the extent that the

Court devised its own districts for unchallenged portions

of S.B. 1. In the absence of a finding that the proposed

plan violated the Constitution or the Voting Rights Act, the

District Court had to defer to the legislative pronouncements

of s. B. 1. 18

The Supreme Court remanded the case back to the

District Court to determine whether to modify its judgment

and reschedule the primary elections for Dallas County, or

to allow the election to go forward despite the District
Courtrs error in refusing to adopt the S.B. 1 districts for

Da1las County. The District Court on remand determined not

to modify its judgment, because of the detrimental impact of

further delay on the electoral p.o""==.I9

The three judges on the District Court panel in

Upham were required to weigh the Courtrs responsibility in
giving meaningr to the fundamental right to vote against the

strong prohibition on the courts to intrude no further than

necessary into the legislative process. Judges Johnson,

Justice and Parker raised controversial issues in their



opinions regarding when and how the courts can justify

intervention in a legislative redistricting case.

Judge Johnson believed that the Court had a very

proper role in redrawing the district lines in Dallas

County, despite the apparent lack of objection by the

Department of Justice to the DaIlas districts. Because

S.B. I was a lega1 nullity after the objection letter was

filed, the District Court was given the task of fashioning

an interim congressional reapportionment plan for the State

of Texas. Judge Johnson reasoned that because the plan that

was ultimately to be implemented would be a court-drawn p1an,

the plan would be subject to stricter standards of review

than legislatively adopted redistricting plans.20

The Supreme Court has distinguished between

judicially-imposed and legislatively-adopted redistricting

plans in analyzing whether remedies in vote dilution cases

conform to constitutional and statutory reguirements. 21

The fear that judicially created remedies will infringe too

much on the political process has resulted in a careful and

conscious restriction on the federal courts to fashion

remedies in vote dilution cases based only on strict,

objective factors. A legislative plan wiII generally not be

held to the same high standards applicable to court devised

remedies.22 Remedial redistricting plans , for example, must

provide for population equality with litt1e more than de

minimis variation among districts, with 10t as the maximum

deviation from the median population per district.23 rn



Iegislatively adopted plans, though, state policy considera-

tions may justify a deviation from the strict numerical

requirements for court-ordered p1ans.24

In the absence of a Supreme Court pronouncement

on the appropriate guidelines for reviewing the legality
of the District Courtrs interim redistricting plan, Judge

Johnson relied on language in the Supreme Court cases of

McDaniel v. Sanchez25 and Beer v. United States26 to develop

justiciable standards. Judge Johnson identified tvro coterminus

constitutional requirements which district courts must follow

in order to properly implement a redistricting plan. A dis-

trict courtrs plan must achieve the goal of voter equality so

that the command of one-person-one-vote is satis f ied,.27

Additionally, a court-ordered plan must be racially fair
under the Beer non-retroqression standard.2S

In fashioning a remedial decree in Upham v. Seamon,

Judge Johnson concluded that the District Court should follow

McDaniel v. Sanchez 29 and formulate a Texas redistricting
plan under the Section 5 standards appropriate to covered

jurisdictions.30 This requires the court to devise a plan

that has neither a racially discriminatory purpose or eftect]1
Judge Johnson used the Bee! non-retrogression analysis

to evaluate S.B. I and found that under the strict application
of Beer, appropriate for a court-ordered remedial plan, the

S.B. 1 Texas redistricting plan did not comply as it pertained

to the Dal1as districts. Judge Johnson stated:



This Court's refusal to defer to the state
legislature's plan as it pertained to Ithe
DaIIasl districts. . .was considered necessary
because a court-ordered plan is adjudged under
more stringent standards than are applicable
to legistative enactments. Because no legaIly
enforceable plan was in existence, and because
these districts, as drawn by the legislature,
would have resulted in a severe and extreme
retrogression in minority voting strength, the
Court concluded these racially unfair districts
could not validly be included in a court-ordered
Plan ' 32

Judge Johnson's approach guarantees that minorj-ties

will be accorded fuI1 and fair participation in the electoral

process. With his reliance on Beer, Judge Johnson has recog-

nj-zed a justiciably manageable standard that can'be objectively

applied to court-ordered redistricting plans and that satis-

fies the requirement that court remedies receive strict

review. The analysis can be accomplished quickly so that

state electj-ons will not be unduly delayed.

A possj-ble objection to allowing judicial review

of the legislative plan aL the remedy stage is that it sub-

jects the jurisdiction to additional and unpredictable

scrutiny, the

the district

(uncertain) scope of which is determined by

court. This fear may be justified in some

areas, but it is unfounded here. The court under Judge

Johnsonrs analysis does not impermissibly intrude on the

legislative decision making process because the court's inter-

vention is limited by the scope of the Beer retrogressi-on

standard, which was the ori-gina1 Section 5 index of compliance

for covered jurisdictions.



Inaddition,toensurethatthecourt'sinter-

vention is not haphazard, orl review, the court-ordered plan

can be evaluated on grounds of judicial discretion. If the

court, for example, failed to correct deficiencies found by

the Department of Justice, or exceeded the proper bounds of

judicial intervention under Beer, the court plan may be

fairly challenged.

Because the court plan in upham is only an interim

plan, dDy encroachment upon legislative decision making is,

by definition, short-Iived. The courtrs actions may even

have the beneficial result of encouraging the legislature

to respond quickly to formulate their own acceptable plan

if they dislike the court's remedy. llost important is the

fact that during the brief period of the enactment of the

court-ordered plan, minority acceSS to the electoral process

will be guaranteed.

Unlike Judge Johnson, Judge Justice based the

Court's unwillingness to defer to the legislative plan for

DaIlas County on his determination that S.B. 1 violated both

the Constitution and the Voting Rights Act. Judge Justice

conducted a detaj-[ed analysis, based upon Bolden v. Citv of

MobiIe,33 Arlinqton Heights v. Metropolitan Housing-Corp-

oration34 and White v. Register,35 to determine if the intent

of the Texas state legi-slature in passing S.B. 1 was to

dilute minority voting strength.36 Notwithstanding the

Attorney Generalrs letter of objection, Judge Justice

IO



believed that the District Court had a duty to conduct its

own review of S.B. I to ensure that its terms did not

transgress the constitutional standards of the 14th and 15th

Amendments:

Certainly the action of the Attorney General
in entering a limited objection to the legis-
lative plan does not abrogate the force of the
Constitution as a constrai-nt on the actions of
the legislature, and the ability of federal
courts to enforce its principles. A contrary
result would patently violate all established
principles of iudicial review under Article IIr
or the constitition.3T

Judge Justice rejected Judge Johnson's analytic

approach to S.B. 1, although he concurred in the outcome.

Despite case 1aw which states that court plans must conform

to stricter standards of reviewr3S Judge Justice felt that

it was "entering unchartered territory" to give content to

that command.39 In formulating a remedy, therefore, "the

clear principle is that the court must act in a nanrmer wholly

free from any taint of arbitrariness or discrimination.40 In

addition, Judge Justice concluded that there is no legal

requirement that the court must mirror the legislative choices

when fashioning a court-ordered remedial plan. While the

court may elect to draw boundaries similar to those of the

legislature, the court may also choose to diverge substantially
from the legislative proposal.4l

Judge Justice perceives that his function as a judge

is to gi-ve meaning to fundamental constitutional values and

to guarantee concrete application of those rights. In his

analysis of Dallas County , for example, Judge Justice

11



evaluated the extent of minority influence in the electoral

process based on the power of minority swing votes and the

historical relationship between blacks and hispanics in

Dallas County. In doing So, he rejected the stated prefer-

ences of the minority coalition and the legislature to

create one "safe" minority district. The Supreme Court

accepts the proposition that compliance with the Voting

Rights Act would often necessj-tate the use of racial con-

siderations in drawing district lines, and that a state,

under Beer, Rdy choose to increase the percentaqe of minority

voters in a given district until they hold a majority position.42

Yet despite the state's acknowledged right to rnake these

policy decisions, Judge Justice concluded that minority

interests would be better protected if minorities held swing

votes in two districts.
By engaging i-n interest group politics, Judge

Justice may have gone too far. Judge Justice has the interests

of minorities in mind in his vote dilution analysis. Yet

there is nothing that makes a judge more qualified to represent

minority interests than a popularly elected legislature:

The judge is not to speak for the minority or
otherwise amplify its voice. The task of the
judge is to give meaning to constitutional
values, and he does that by worki,ng with the
constitutional text, histoiy, and iocial ideals.43

If Judge Justice overextended himself in his role

of judicial activist and reformer, Judge Parker erred in the

opposite direction by adopting an overly deferential role for

the judiciary. Judge Parker dissented from the opinions

L2



of Judges Johnson and Justice to the extent that the Court

redrew the district lines for Dallas County. The Supreme

Court, according to Judge Parker, has not set forth clear

guidelines for district courts required to make substantive

intrusions into the reapportionment process. A finding by

the Department of Justice that the redistricting plan violates

the Voting Rights Act does not suspend the deference owed to

the legislative process as embodied in those portions of the

redistricting plan which were not offensive to the Department
AAof Justice. ' Judge Parker relies on the Supreme Court

ooinions of white v. weiser 45 and whitcomb v. Chavis 46 to

explain his extremely deferential view of the court's role in

redrawing the DaIIas County district lines. In each case,

the District Court in implementing a reapportionment plan set

aside the state apportionment policy even where the state

reapportionment plan satisfied constitutional requirements.

Neither case, however, involved a jurisdiction covered under

Section 5 of the Voting Rights Act with its separate non-retro-

gression requirement and purpose or effect standard of proof.

Judge Parker contends that any changes made to the

redistricting plan on behalf of minorities, "are merely sub-

stitutes by this court of its preferences for those of the

legis1ature." 47 The court should not engage in affirmatlve

action policies and cannot legitimately do so without inter-

fering in the legislative domain. The Justice Departmentrs

objectj-ons are not an "invitation for this court to redraw

other districts according to our preferences when no con-

13



stit,utional violation has

is unwarranted usurPation
48

our society. "

been or can be found. To do so

of the democratic Processes of

To the extent Judge Parkerrs decision rests upon

the belief that the District Court is not permitted to find

a constitutional or statutory violation in the proposed Texas

apportionment plan because of the deference due the Depart-

ment of Justice's finding of liability, it misunderstands the

nature of Section 5 objection letters. Objections by the

Department of Justice are filed when a jurisdiction fails to

meet its burden of proving that a given voting practice or

procedure does not have a racially discriminatory purpose or

effect. The Department of Justice does not pretend to do an

exhaustive study of the redistricting plan. Rather, once

one element of the plan has not been satisfactorily explained,

the Department of Justice will issue a general objection

letter.
On the other hand, Judge Parker may base his

deference to the legislative plan on the assumption that the

District Court, in the remedy stage, cannot entertain a

hearing on liabitity. An artificial separation of the court's

responsibilities in the right and remedy stages of Iitigation

too narrowly restricts the degree of court involvement in

voting rights cases. As Fiss points out:

Rights and remedies jointty constitute the
meaning of the public value...A Constitutional
value such as equality derives its meaning from
both sph.eres, declaration and actualization,
and it is this tight connection between meaning aq
and remedy...that requires a unity of functions.'-

l4



Under both analyses, Judge Parker relinquishes too

much judicial control to the legislature in light of the

mandate by Congress in the Voting Rights Act, and by the

Supreme Court beginning with Baker v. Carr,50 to actively
give meaning to the fundamental right to vote. In voting

rights, as with desegregation, the district courts have been

delegated the difficult task of deciding how to effectuate
general rights. At the very least, the district court judge

must use the court "to stir the governmental entitites to

action to make sure that issues are addressed and choices

made. " 51

In vacating the District Court opinion, the Supreme

Court supported Judge Parkerrs finding that the DaIlas County

lines should not have been redrawn by the Court, but they did

not openly adopt his reasoning. In a per curiam opinion,

the Court held that in the absence of a finding that the plan

offended either the Constitution or the Voting Rights Act,

the Di-strict Court had to defer to the legislative judgments

embodied in S.B. 1.52 Therefore, it is possible that if a

majority of the District Court had followed Judge Justice's
analysis, the Supreme Court would have affirmed the lower

court I s result.
In rejecting Judge Johnson's reasoning, the Supreme

Court found that there may be reasons for rejecting portions

of S.B. 1 not objected to by the Department of Justice:

15



but those reasons must be something other than
the limits on the court's remedial actions [the
requirement of stricter scrutiny for court-
ordered plansl. Those limits do not come into
play until and unless a remedy is required;
whether a remedy is required must be determined
on the basis of the substantive legal-standards
applicable to the staters submission.5J

The Supreme Court opinion was narrowly drawn and

reflects the desire of the Court to allow modification of a

state plan only where necessary to cure a constitutional or

statutory defect. Judicial deference to the legislature in

fashioning remedies recognizes the principle that remedies

shall not exceed the scope of the violati-on for which they

are required.54

Like Judge Parker, the Supreme Court draws a sharp

distinction between the remedy and liability stage of liti-

gation, wlth the result that the Court would rather defer

to legislative judgments in the formulation of a remedy than

ensure, even at this late stage, that a minority's fundamental

right to vote is protected.

To the extent that the Supreme Court adopts Judge

Justice's approach, it runs into the very serious problem

that it places on the plaintiff and the court in a Section 5

covered jurisdiction the requirement of conducting a ful1

vote dilution suit, as if a private individual brought a

cause of action under Section 2 of the Voting Rights Act or

the 14th or 15th Amendments. Because vote dilution cases

are very difficult to prove, in addition to being expensive

and time consuming, Congrress enacted Sectj-on 5 of the Voting

I5



Rights Act to provide a more judicially manageable and

efficient quarantee that minorities would receive equal

access to the electoral process in convered jurisdictionsS5

Where, as in Upham, the court was asked by the

State of Texas to formulate an interim redistricting plan

so that elections in the state could proceed, the requirement

to first undertake a vote dilution analysis will result in

unreasonable delay. In addition, if a district court, in

a time contstrained and cursory analysis, finds that there

was no unconstitutional vote dilution, a private individual

may be foreclosed at a later date from bringing a fu1l and

complete Section cIaim. Judge Johnson's approach, ofl the

other hand, will not interfere with a subsequent Section 2

or Constitutional claim.

CONCLUSION

In an effort to respect the separation of powers

doctrine, the Supreme Court has gi-ven short shrift to con-

stitutional values it was mandated to protect. Respect for

the principle that the scope of the remedy may not exceed

the scope of the wrong should not have led the Supreme Court

to the conclusion, expressed in Upham, that district courts

in a Section 5 jurisdiction will be required to conduct a

ful1 vote dilution hearing on a IegalIy unenforceable state

reapportionment p1an. This requirement seriously undermines

the purposes and goals of Section 5 of the Voting Rights

act. 56

L7



The courtrs primary role in voting rights litigation

arising under the Voting Rights Act should instead be to

guarantee that the right to vote is given its ful1 value.

The District court in upham was able to do so without

unpermissibly intruding upon the legislative process because

Judge Johnson was able to formulate and follow objective

and justiciably manageable guidelines in fashioning a

reapportionment plan for the State of Texas.

The Supreme Court's adherence i, llgbU to a rigid

separation of the liability and remedy stages of litigation

is likewise misplaced. It serves to compartmentalize

judicial functions to the detriment of minority voters. The

District Court's decision to redraw the Da1las district

lines was not the result of the District Court substituting

its political judgments for the legislature's, but rather

followed from the application of the Beer test which shorved

that S.B. 1 violated Section 5 of the Voting Rights Act.

Under the conditions of IiLhamr where there is a manageable way

for the District Court to intervene at the remedy stage, there

is no compelling reason to adhere to the rigid separation of

functions.

Judicial activism should not go unchecked. The

Supreme Court's efforts to structure judicial interventj-on

in political areas is frequently justified. But j-n a voting

rights redistricting case where fundamental rights are

involved and objective and justiciable standards can be

applied, the district courts should not meekly defer to

Iegislative pronouncements to the detriment of minority voters.

l8



NOTES

1. 536 F. Supp. 93I (E.D. Texas), vacated and remanded'
71 L.Ed. 2d 725 (1982) .

2. 359 u.S. 185 (L962).

3. 377 U.S. s33 (1964) .

4. 42 u.S.C. S 1973 (1965).

5. Reynolds v. Si-mms , 37 7 U.S. at 555.

6. 42 u.S.C. S L973 (L976).

7. 42 U.S.c. S L973 c (1976).

8. Section 2 of the Voting Rights Act was amended in the
L982 Extension Act to no longer require proof of dis-
criminatory intent. Seg Senate Comm. on the Judiciary,
Report on S.L992, S.Rep. No. 4L7, 97thr Cong., 2nd Sess.
27 (1982) (hereinafter "S.Rep. ").

9. Whitcomb v. Chavis, 403 U.S. L24, 141 (l-97L) t Reynolds,
37r'- u.S. aE-56'f,-fodse v. Buxton, 639 F.2d ]-35F, 4-
(5th cir. 1981).

r0. 425 u.s. 130 (L976).

11. Id. at 141.

l-2. rd.

13. Whlte v. Wieser, 412 U.S. 783 (1973); Whitcomb v. Chavis,a6ffil.ilfFTTgtu.
14. Beer v. United States, 425 U.S. 130 (L976).

15. 535 F.Supp. at 961.

16. Id. at 936-959.

17. Id. at 1028.

18 . 7L L. Ed. 2d. at 7 31, .

19. 536 F.Supp. 1030 (E.D. Texas L9B2l .

20. 536 F.Supp. at 944.

t9



2L. The classification of
either court drawn or
immediately obvious.
such a classification
v. Sanchez, 10I S.Ct.

23.

24.

a remedial redistricting plan as
legislatively imposed is not
Nor are all the implications of
clearly understood. See t"lcDaniel
2224 (198r).

22. Connor v. Finch, 43L U.S. 407, 4L2-4L5 (L977) i qbggan
v-. rrlerer , -Mu. s . 2L , 26-27 (L97 5) .

Connor v. Finch, 43L U.S. at 4L9. See
ffi978) i white v. RegisE6F,

Chapman , 402 U. S. at 26.

Wise v. LipgcomJc,
4L2 u.S. 755 (1973)

25. 101 S.Cr. 2224 (1981).

26. 425 U.S. 130 (L976).

27. 536 F.Supp. at 939.

28. Ig. at e43.

29. 101 S.Ct. at 2236.

30. In adopting the Section 5 standards, Judge Johnson
guarantees that the court's remedial plan will meet
the requirements of all covered jurisdictions because,
under McDaniel v. Sanchez, court-ordered (as compared
to 1egl-slati@ moEfyatea) remedial plans would not
otherwise be subject to Section 5 preclearance. Id. at
2230.

31. 42 U.S.C. S 1973ci See

32. 536 F.Supp. at 1032.

33. 446 u.s. ss (1980).

34. 429 U. s. 252 (L977) .

3s. 4l-2 u.s. 75s (1973).

Beer, 425 U.S. 130.

36. The recent Supreme Court case, Rogers v- Lodge, 
-_ .U.S.(L982), endorses the method of vote dilution analysis

which Judge Justice undertook in UPhU. The complicated
question of how to prove a vote dilution case is beyond
the scope of this PaPer.

37. 535 F.Supp. at 963.

20



38. Connor v. Finch, 43L U.S. at 4I5.

39. 535 F.Supp. at 964.

40. Id. at 963.

41. rd.

42. 425 U.S. at l4L-L42.

43. Fiss, "Forward: The Forms of Justicer" 93 Harvard L.Rev.e (L97e).

44. 536 F.Supp. at 1028.

45. 4L2 u.S. 783.

46. 403 u.s. L24.

47. 536 F.Supp. at L029.

48. rd. at 1030 (emphasis added) .

49. Fiss, 93 Har.L.Rev. at 52.

50. 369 u. S. 186.

51. Diver, "The Judge as Political Powerbroker: Superintending
Structural Change in Public Institutionsr" 65 Virginia
L.Rev. 92 (L979) .

52. 71 L.Ed. 2d at 730.

53. Id. at 73L.

54. Id.; See Millikin v. Bradley, 433 U.S. 267 (L976).

55. Section 5 "was designed to insure that old devices for
disenfranchisement would not simply be replaced by new
ones. Through this remedy Congress intended to provide
an expeditious and effective review to insure that
devices other than those directly addressed in the Act(literacy tests and the poI1 tax) would not be used to
thwart the will of Congress to secure the franchise for
blacks." S. Rep. at 6.

56. rd.

2L