Henderson v. US Interstate Commerce Commission Briefs and Amicus

    \

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

PETER H. BEER, et al., )
)

Plaintiffs, )
)

v.

UNITED STATES OF AMERICA, et al.f

Defendants,

and

JOHNNY JACKSON, JR., et al.,

FILED-

)
)
j Civil Action No. 1495-73
)
)
)
)
)
)

Intervenors. )
)

J U D G M E N T

This action came on for hearing before the Court upon the 

complaint seeking a declaratory judgment that the redistricting 

plan submitted therewith complies with the requirements of Sec­

tion 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c (1970), 

and upon the pleadings thereafter filed, the evidence introduced, 

and the briefs and oral arguments presented by the parties; and 

The issues having been duly heard and a decision, by an 

opinion stating the Court's findings of fact and conclusions of ls.w, 

having been duly rendered; and the Court having determined chat, 

for the reasons discussed in its opinion, the redistricting plan 

submitted will have the effect of abridging, on account of race 

or color, the right to vote in councilmanic elections in the 

City of New Orleans, Louisiana; it is, this /5 — • day of March, 1974, 

ORDERED and ADJUDGED that the declaratory judgment sought 

by the complaint be and hereby is denied, that the action be and



hereby is dismissed, and that the defendants and the intervenors 

recover of the plaintiffs their respective costs of action.

SFOTTSWOOD W. ROBIHSON, 111
United States Circuit Judge



UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

filed

PETER H. BEER, et al. ,

v.

) 
)

- Plaintiffs, ) 
) 
)

UNITED STATES OF AMERICA, et al., )
)

Defendants, )
)

and )

JOHNNY JACKSON, JR., et al.,
) 
) 
)

Intervenors ) 
__________)

WAR 1  5 1374

L.

) Civil Action No. 1495-73

O P I N I O N

James R. Stoner, James R. Treese, Stoner, Treese & Ruff- 
ner, of V7ashington, D. C., Blake G. Arata, City Attorney of 
New Orleans, La., and Ernest L. Salatich, Assistant City At­
torney of New Orleans, La., for plaintiffs.

M. Karl Shurtliff, Walter Gorman, and Nathaniel Fields, 
Attorneys, Department of Justice, for defendants.

Stanley D. Halpin, Jr., Kidd, Katz & Halpin, of New Orleans 
La., Charles E. Cotton, Cotton, Jones & Fazande, of New Orleans, 
La., Charles E. Williams, III, Jack Greenberg, James M. Nabrit, 
III, and Eric Schnapper, of New York, New York, and Wiley A. 
Branton, of Washington, D. C., for intervenors.

Before ROBINSON, Circuit Judge, and CORCORAN and WADDY, 
District Judges.



TABLE OF CONTENTS

Introduction

I.

II.

III.

IV.

The Evolution of the Redistricting Problem....
A. Portents of the Problem..............
B. Crystallization of the Problem.......

The Evolution of the Redistricting Plans.....
A. The Formulation of Plan-I............
B. Impediments to Black Suffrage........

' C. The Formulation of Flan II...........

The Historical Evolution of Section 5........
A. The Constitutional Background........
B. The Voting Rights Act................
C. Sections 4 and 5....,.................

The Scope of Section 5........................
A . Coverage........................... . . .
B. Relationship to Fifteenth Amendment...
C. Dilution of the Right to Vote........

V. The Legal Problem......... ..............
A. The Prime Factors...............
B. Purpose of the Plan.............
C. Effect of the Plan..............

VI. Dilution of Present Black Voting Strength
A. The Facts........................
B. The Justifications Proffered....

VII. Dilution of Potential Black Voting Strength...
A. The Question..........................
B. The Legal Doctrine....................
C. Application of Doctrine..............

VIII. The At-Large Elections........................
A. The At-Large Problem........ .........
B. Jurisdiction to Consider.............
C. Resolution of the Problem.............

Page

3

4 
4 
6

16
17
20
25

27
27
30
31

35
35
37
39

44
44
46
49

52
52
55

62
62
65
66

75
75
77
79

IX. Disposition 83



ROBINSON, Circuit Judge: The City of New Orleans, Louisiana, 

seeks a judgment, pursuant to Section 5 of the Voting Rights Act 

of 1965, declaring that its plan of redistricting for council-

manic elections does not have the purpose and will not have the

effect of denying or abridging the right to vote on account of
2/

race or color. The plan is the City's current response to

the call of its charter for action decennially to assure council-
2 /

manic districts approximately equal in population. The City

contends that the plan is a projection of legitimate criteria

conceived objectively and applied without potential discnmina-
4/ V

tory consequences. The Government and the intervenors chal­

lenge this position on the ground that the plan will operate to 

dilute the vote of the city's black minority. The intervenors 

insist additionally that the plan was designed to achieve that

very end.

1/ Pub.L. No. 89-110, § 5, 79 Stat. 439 (1965), _as_ 
amended, 42 U.S.C. § 1973c (1970), quoted infra note 19.

2/ section 5 authorizes an action by a "State or 
[political] subdivision" for a judgment incorporating such a 
declaration. See note 19, infra. The present action is brought 
on behalf of the City by six of the seven members of the City 
Council. We accept that as a compliance with § 5.

3/ New Orleans, La., Charter art. Ill, § 3-103(3) (1954),
quoted infra note 18. See also Part II, infra.

4/ The defendants herein are the United States and its 
Attorney General.

5/ The intervenors are five black citizens registered to 
vote In New Orleans. Compare City of Petersburg v. United, States., 
354 F.Supp. 1021, 1024 (D’.D.C. 1972), aff'd sub nom. Diamond v. 
United States, 412 U.S. 934 (1973). They are the plaintiffs m

3



\1

/ . - . • !
I

Conformably with Section 5, this three-judge court was con-
6/

vened to hear and determine the controversy. As hereinafter 

elaborated, we find that the redistricting which the plan pro­

poses will have the effect of abridging the vote of the black
7/

citizenry of New Orleans. So concluding, we do not reach the
8/

question whether the City's burden of showing a racially nondis- 

criminatory purpose has been borne.

I. THE EVOLUTION OF THE REDISTRICTING PROBLEM

A. Portents of the Problem

The City of New Orleans embraces all of the territory of 

Orleans Parish, Louisiana. Lake Pontchartrain ^urnishes a 

natural boundary on the north, as the Mississippi River partly 

does on the south. The Mississippi also separates the south­

easterly portion, known as Algiers, from the rest of the city. 

Travel between the two areas necessitates use either of the 

single bridge connecting Algiers and downtown New Orleans or the 

limited ferry service available. A controversy germinated by

Jackson v. Council of city of New Orleans, Civ. No. 73-1862 (E.D.
1973), wherein they seek, on constitutional grounds, recon­

struction of the councilmanic districts differently from the con­
cept embodied in the redistricting plan under review. Proceed­
ings in that case have been deferred pending decision herein.
See also note 44, infra. We allowed the intervention on the de­
fendant side.

6/ See note 19, infra. See also Beer v. United States, 
Civ. No. 1495-73 (D.D.C. Jan. 4, 1974), at 4a.

7/ This opinion incorporates our findings of fact and 
conclusions of law. See Fed.R.Civ.P. 52(a).

8/ See Parts V(B), VII(C), infra.

4



. . , -fC

Algiers' persistent demand for more adequate means of transporta­

tion across the Mississippi was to color the redistricting activi-
9/

ties leading to this litigation. i

The population of New Orleans is 593,471 persons, of whom
10/

267,308 are black. Registered voters in the City numbered

242,416, of whom 83,588 are black. White citizens thus comprise 

55.0% of the population and 65.5% of the voters; black citizens 

make up the remaining 45.0% of the population and 34.5% of the 

electorate. The large numerical strength of the black community 

as well as its much weaker proportional voting power were deseined

to play major roles in the gestation of the central issue in this
1 1/

case.

^-Lthough some black families are to be found in most of the 

principal areas of New Orleans, there is no general geographical 

blending of black and white residences. The black population is 

heavily concentrated in a series of neighborhoods extending east- 

wardly and westwardly through the central part of the City; the 

areas lying north and south of this belt, with minor exceptions, 

are overwhelmingly white. This residential pattern looms large

in any redistricting effort that would safeguard the black vote
12/

against dilution.

9/ See Part II (A) , infra.

10/ These statistics, and others utilized in this opinion, 
are from sources compiled by city authorities.

11/ See Part VI, infra.

12/ See Part II, infra♦

- 5 -



Other relevant and important facets of the general situation 

in New Orleans derive from the scheme pursuant to which its legi­

slative body is elected. That body is the City Council, composed

of seven members, of whom five are chosen from single-member dis-
13/

tricts and the remaining two from the city at large. Four

of the five districts extend from the Mississippi River to 

Lake Pontcharfrain, and thus traverse the entire city; the other
14/

district is a wedge-shaped portion of the downtown area. Pri­
ll/mary elections for the Council are by majority vote, and

16 /
singleshot voting is prohibited. These phenomena cooperate

with others inherent in the plan under consideration to pose the .....
17/

legal threat to the redistricting which the plan would bring about.

B . Crystallization of the Problem

Toward the end of 1971, the City Council of New Orleans 

initiated procedures to redistrict the city for councilmanic elec­

tions. The catalyst for this undertaking was a provision of the 

city charter requiring the Council, after each national decennial

census, to remake the districts into elective enclaves approxi-
18/ •

mately equal in population. From the beginning, the Council

13/ New Orleans, La., Charter art. Ill, § 3-102 (1954).

14/ See Part VI, infra.

15/ La. Rev. Stat. Ann. art. 18, § 358 (1966 supp.).

16/ La. Rev. Stat. Ann. art.* 18, § 351 (1966 supp.),
quoted infra note 164.

17/ See Part VI, infra.

18/ New Orleans, La., Charter art. Ill, § 3-103(3) (1954),
providing:

It shall be the mandatory duty of the Council 
to redistrict the City by ordinance within

6



recognized that a plan reorganizing the district boundaries would

constitute a suffrage change within the meaning of Section 5 of
19/

the Voting Rights Act, requiring federal approval prior to

six months after the official publication by
the United States of the population of the 
City as enumerated in each decennial census.
Each councilnanic district shall contain as 
nearly as possible the population factor ob­
tained by dividing by five the City's popu­
lation as shown by the decennial census.

1_9_/ Pub.L. No. 89—110, § 5, 79 Stat. 439 (1965), as amended, 
42 U.S.C. § 1973c (1970), providing:

Whenever a State or political sub­
division with respect to which the prohibi­
tions set forth in Section 1973b (a) of this 
title based upon determinations made under 
the first sentence of section 1973b (b) of 
this title are in effect shall enact or seek 
to administer any voting qualification or pre­
requisite to voting, or standard, practice, 
or procedure with respect to voting different 
from that in force or effect on November 1,
1964, or whenever a State or political subdi­
vision with respect to which the prohibitions 
set forth in section 1973b (a) of this title 
based upon determinations made under the second 
sentence of section 1973b (b) of this title are 
in effect shall enact or seek to administer any 
voting qualification or prerequisite to voting, 
or standard, practice, or procedure with respect 
to voting different from that in force or effect 
on November 1, 1968, such State or subdivision 
may institute an action in the United States 
District Court for the District of Columbia for 
a declaratory judgment that such qualification, 
prerequisiste, standard, practice, or procedure 
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, and unless and 
until the court enters such judgment no person 
shall be denied the right to vote for failure to 
comply with such qualification, prerequisiste, 
standard, practice, or procedure: Provided,
That such qualification, prerequisiste,. standard, 
practice, or procedure may be enforced without 
such proceeding if the qualification, pre­
requisite, standard, practice, or procedure 
has been submitted by the chief legal officer

7



<S! ‘

» \
20/

operation. The saga of the Council's quest for approval is21/
lengthy, and for immediate purposes only the highlights of its

22/
endeavors need be recounted.

On Narch 2, 1972, the Council enacted Ordinance No. 4796
23/

M.C.S., which incorporated a scheme of redistricting (Plan I).

or other appropriate official of such State or 
subdivision to the Attorney General and the 
Attorney General has not interposed an objection 
within sixty days after such submission, except 
that neither the Attorney General's failure to 
object nor a declaratory judgment entered under

section shall bar a subsequent action to en­
join enforcement of such qualification, preyequi— 
site, standard, practice, or procedure. Any ac­
tion under this section shall be heard and deter­
mined by a court of three judges in accordance 
with provisions of section 2284 of Title 28 and any 
appeal shall lie to the "Supreme Court.

As thus made evident, a state or political subdivision 
is covered by § 5 if it falls within the ambit of § 4 of the Act 
42 U.S.C. § 1973b (1970), quoted in relevant part infra note 108#. 
Section 4 intercepts, inter alia, states with respect to which it 
is determined that any one of several enumerated tests or devices 
was used on November 1, 1964, as a prerequisite to voting, and 
that less than 50% of the persons of voting age residing therein 
were registered on that date or actually voted in the presidential 
election of November, 1964; and the political subdivisions of any 
such state are likewise intercepted. See note 108, infra, and 
Part III (c), infra. Louisiana was brought under § 4 on August 7 
1965, 30 Fed.Reg. 9897 (1965), and so it remains, with the result 
that New Orleans is within the purview of § 5.

20/ See Part II, infra.

21/ From the time of receipt of usable 1970 census figures 
in late 1971 until shortly prior to the filing of this action in 
July, 1973, the Council and its research staff engaged extensively 
m  the development of redistricting concepts and proposals, in the 
drafting and consideration of implementing ordinances, in the con­
duct of public hearings thereon and in related activities. See 
Part II, infra.

22/ See Part VI (B), infra.

23/ When legislative proposals are first introduced, ordi­
nance calendar (O.C.) numbers are assigned for easy reference dur-

8



24/
Acknowledging the coverage of Section 5, the City Attorney,

on May 4, 1972, submitted Plan I to the Attorney General of the

United States with a view to a determination that the plan "[did]

not have the purpose [and] will not have the effect of denying
25/

or abridging the right to vote on account of race or color."

On January 15, 1973, the Attorney General interposed an objec-
26/

tion to Plan I on several grounds. The boundaries of the dis­

tricts projected, he stated, "appear [] to dilute black voting 

strength by combining a number of black voters with a larger num-

ing consideration. Ordinances which have been adopted by the 
Council and acted on by the Mayor are designed "Mayor Council Series" 
(M.C.S.).

24/ See note 19, supra, and Part IV(A), infra.

25/ This is the standard for measurement of the validity of 
New Orleans’ redistricting plans. See note 19, supra, and Part V, 
infra.

26/ The letter communicating the Attorney General1s ruling 
on Plan I reads:

This is in reference to your submission 
to the Attorney General pursuant to Section 5 
of the Voting Rights Act of 1965 of City Coun­
cil Ordinance 4796 M.C.S. which reapportioned 
the councilmanic districts of the City of New 
Orleans. This submission was received by this 
Department on November 15, 1972.

We have given careful consideration to 
the submitted changes and the supporting infor­
mation as well as data compiled by the Bureau of 
the Census and information and comments from in­
terested parties. Our analysis shows that the 
district boundary lines in the submitted plan are 
drawn in a manner which appears to dilute black 
voting strength by combining a number of black 
voters with a larger number of white voters-in 
each of the five districts. Moreover, it does 
not appear that the district lines are drawn as 
they are because of any compelling governmental

9



a

- 27/
ber of white voters in each of the five districts." "[I]t

does not appear," he added, "that the district lines are drawn

need and they do not reflect numeric population 
configurations or considerations of district com­
pactness or regularity of shape. Under these cir­
cumstances we cannot conclude, as we must under 
the Voting Rights Act, than this plan of reappor­
tionment for the New Orleans Council will not have 
a racially discriminatory effect on voting. Conse­
quently, on behalf of the Attorney General I must 
interpose an objection.

We have reached this conclusion reluctantly 
because we fully understand the complexities fac­
ing the city in designing a reapportionment plan 
to satisfy the needs of the city and its citizens 
and, simultaneously, to comply with the mandates 
of the federal Constitution and laws. We are per­
suaded, however, that the Voting Rights Act compels 
this result.

Of course, Section 5 permits you to seek a 
declaratory judgment from the District Court for 
the District of Columbia that this plan neither has 
the purpose nor will have the effect of denying or 
abridging the right to vote on account of race. Until 
such a judgment is rendered by that Court, however, 
the legal effect of the objection of the Attorney 
General is to render unenforceable this reappor­
tionment plan.

In this connection, I wish to bring to your 
attention our receipt on January 12, 1973, of 
your City Council Ordinance 5026 M.C.S. which 
calls for a referendum election on March 20,
1973, on the question of increasing the size of 
the City Council from seven to nine members. We
will review that submission and let you 
know the Attorney General's determination 
as soon as possible. However, I also wish 
to point out that should the increase in the 
size of the council be approved at the refer­
endum, any districting plan drawn up as a re­
sult must also meet the clearance requirements 
of Section 5.

27/ See note 26, supra.

10



*

28/
as they are because of any compelling governmental need," and 

the lines "do not reflect numeric population configurations or
29/

considerations of district compactness or regularity of shape."

By force of Section 5, the effect of this objection was to render

Plan I inoperable unless and until this court granted approval in
30/

accordance with the standard prescribed by that section.

Subsequently, and after attempts to enlarge its membership
31/

through a charter amendment were aborted, the Council, on May

3, 1973, passed Ordinance No. 5154 M.C.S., which adopted another

redistricting scheme (Plan II). That scheme effected some rnodi-
32/

fications cf Plan I, and on May 10, 1973, the City Attorney 

submitted it to the Attorney General. A second objection inter­

posed by the Attorney General on July 9, 1973, reiterated the

grounds originally advanced and cited additional reasons for
33/

his disapproval of Plan II. The Attorney General concluded

28/ See note 26, supra.

29/ See note 26, supra.

30/ See note 19, supra.

11/ See Part II (B) , infra.

32/ See Part II (A) , infra.

33/ The Attorney General's ruling on Plan II reads:

This is in reference to your submission
to the Attorney General pursuant to Section 
5 of the Voting Rights Act of 1965 of City 
Council Ordinance 5154 M.C.S. which reappor­
tioned the councilmanic districts of the City 
of New Orleans. This submission was received 
by this Department on May 10, 1973.

We have given careful consideration to 
the submitted changes and the supporting in-

11



V.

"that the boundary lines prescribed by [Plan II] appear to effect 

a dilution of black voting strength in the same manner as did the

formation as well as data compiled by the 
Bureau of the Census and information and com­
ments from interested parties. In addition we 
have utilized the information and data which
you had previously provided this office in con­
nection with cur consideration of Ordinance 
4795 M.C.S., pursuant to Sec-ion 5 of the Vot­
ing Rights Act of 1955.

Our analysis shows that the boundary lines 
prescribed by Ordinance 5154 M.C.S. appear to ef­
fect a dilution of black voting strength in the 
same manner as did the boundary lines prescribed 
in Ordinance 4796 M.C.S. to which an objection 
was interposed on behalf of the Attorney General 
on January 15, 1973. Under these circumstances 
we cannot conclude, as we must under the Voting 
Rights Act of 1965, that this plan of reapportion­
ment for the New Orleans City Council will not 
have a racially discriminatory effect on voting. 
Consequently, on behalf of the Attorney General 
I must interpose an objection to the re­
apportionment plan outlined in Ordinance 
5154 M.C.S.

While we recognize that there are sig­
nificant differences between the reapportion­
ment plans proposed in Ordinance numbers 4796 
and 5154 especially in regard to the number 
of non-contiguous districts and the population 
by race of proposed District B, Ordinance 5154 
M.C.S. nevertheless combines a number of black 
voters with a larger number of white voters in 
four of the five districts. Moreover, the dis­
trict lines in the instant submission do not ap­
pear to have been based on any compelling govern­
mental need or to reflect numeric population con­
figurations or considerations of district com­
pactness or regularity of shape.

Our evaluation of Ordinance numbers 4796 
and 5154 indicates that the objectionable dilu­
tion of black voting strength in both redistric­
ting plans is primarily attributable to the ver­
tical shape of the submitted districts. Because 
the predominantly black neighborhoods in the 
city are located generally in an east to west 
progression, the vertical districts in the sub-

-  12 -



f
\

34/ j
boundary lines prescribed in [Plan I]." He found that "[w]hile

...there are significant differences between [Plans I and II] es- i

mitted plans divided the black neighborhoods and 
combined them with white areas in the north and 
the south of the city resulting in districts 
with more white than black voters.

Although the shape of the submitted districts 
may have been in part based upon the shape of the 
seventeen wards in New Orleans, the wards do not 
of themselves define official boundaries bearing 
uoon the election of or representation by city 
council members, and adherence to the traditional 
shape of the wards may not serve to justify the 
resulting prohibited dilution of black voting 
strength under Section 5.

We do not mean by this analysis to imply 
that other reapportionment plans based upon ver­
tical districts will necessarily divide the black 
neighborhoods in the city to the degree found ob­
jectionable here. We have determined, however, 
that a dilutive result similar to that found in 
the submitted plan is difficult to avoid when 
such districts are utilized to the extent found 
in the submitted plan, and that the extent to 
which such districts were utilized is not neces­
sary to achieve a successful reapportionment of 
the city's population.

If you desire any further explanation 
of the basis for the objection herein, or 
believe that such further explanation would 
be helpful in fashioning a redistricting plan 
which avoids the objectionable features of the 
submitted plan, please do not hesitate to con­
tact us. Of course, Section 5 permits you to 
seek a declaratory judgment from the District 
Court for the District of Columbia that this 
plan neither has the purpose nor will have the 
effect of denying or abridging the right to vote 
on account of race. Until such a judgment is 
rendered by that Court, however, the legal effect 
of the objection of the Attorney General is to 
render unenforceable this reapportionment plan.

34/ See note 33, supra.

13



pecially in regard to the number of non-contiguous districts
35/

and the population by race of proposed District B," Plan II,

like Plan I, "nevertheless combines a number of black voters

with a larger number of white voters in four of the five dis- 
36/

tricts." He further found that the district lines set in

Plan II, like those drawn in Plan I, "do not appear to have

been passed on any compelling governmental need or to reflect

numeric population configurations or considerations of distxict
37/

compactness or regularity of shape. 11

Continuing, the Attorney General was of the view

that the objectionable dilution of black 
voting strength in both redistricting plans 
is primarily attributable to the vertical 
shape of the submitted districts. Because 
the predominantly black neighborhoods in the 
city are locked generally in an east to west 
progression,—  the vertical districts in the 
submitted plans divided the black neighbor­
hoods and combined them with white areas in 
the north and the south of the city result­
ing in districts with more white than black 
v o t e r s -/

And "fa]lthough the shape of the submitted districts may have been

in part based upon the shape of the seventeen wards in New Or
40/

leans," the Attorney General pointed out that "the wards do

35/ See note 33, supra.

36/ See note 33, supra.

37/ See note 33, supra.

38/ See Part 1(A) , supra.

39/ See note 33, supra.

40/ See note 33, supra, and note 219, infra.

14



\

not of themselves define official boundaries bearing upon the 

election of or representation by city council members, and ad­

herence to the traditional shape of the wards may not serve to
|

justify the resulting prohibited dilution of black voting
41/

strength under Section 5."

So, said the Attorney General, while "[w]e do not mean 

by this analysis to imply that other reapportionment plans based

upon vertical districts will necessarily divide the black r.oigh-
42/

borhoods x.i the city to the degree found objectional here,

[w]e have determined, however, that a dilu­
tive result similar to that found in the 
submitted plan is difficult to avoid when 
such districts are utilized to the extent 
found in the submitted plan, and that the 
extent to which such districts were utili­
zed is not necessary to achieve a success­
ful reapportionment of the city's popula­
tion. 43/

The failure to gain the Attorney General's approbation for

either plan has left New Orleans unable to conduct councilmanic
44/

elections on a redistricted basis. That, in turn, prompted

41/ See note 33, supra.

42/ See note 33, supra.

43/ See note 33, supra.

44/ See note 19, supra. As we have previously observed in
this case, "Section 5 itself enjoined any election utilizing the 
district boundaries specified in [Plan II]," Beer v. United States, 
supra note 6 , at 11, and we earlier issued, at the City's unopposed 
request, a temporary injunction that "spelled out the statutory 
prohibition against councilmanic elections" based on that plan.
JEd. See also City of Petersburg v . United States, supra note 5,
354 F.Supp. at 1023-24. We note that in Jackson v. Council of 
City of Now Orleans, supra note 5, the District Court for the East­
ern District of Louisiana has also enjoined temporarily the Or-

15



six members of the Council to file this action on July 25, 1973,
i

seeking a judgment declaring that Plan II neither has the purpose

nor will have the effect of denying or abridging the right to vote
45/ |

on account of race or color. We have held four days of hear­

ings during which a great deal of evidence of various sorts was 

introduced by testimony, both live and deposed, stipulations and

exhibits. The parties have also briefed the issues extensively,
46/

and have presented oral argument. Once these voluminous materials

are sifted and organized, the relevant facts appear without material 

contradiction, and the legal aspects of the New Orleans picture 

come into sharp focus.

II. THE EVOIdTTION OF THE REDISTRICTING PLANS

The spadework for plans delineating a redistricting of New

Orleans were performed by the Council's research staff, an ad-
47/

ministrative arm. The two versions which emerged from the

Council as Plans I and II were adaptations of staff proposals

leans Parish Democratic and Republican Executive Committees from 
taking any steps in the councilmanic electoral process, or in the 
enforcement of the city charter's reapportionment provision or or­
dinances enacted pursuant thereto. (order of Aug. 31, 1973).

45/ See note 19, supra.

46/ See also Beer v. United States, supra note 6 , at 4-6.

47/ The research staff is charged with the duties of con­
ducting research on legislative, fiscal and administrative mat­
ters; of drafting ordinances on requests from councilmen; of 
keeping the Council informed of the needs and actions of city 
agencies in areas of legislative concern; and of supervising 
overall the Council's housekeeping chores.

16



to the views prevailing among the councilmen. To gain the proper 

perspective on Plan II, the subject of this litigation, we must 

examine the evolution of both of the plans.

A . The Formulation of Plan I
Armed with the 1970 census figures, guidelines of the At-

48/
tornsv General promulgated pursuant to Section 5, a recent

federal court decision on legislative reapportionment in Louisi- 
49/ 50/

ana, and other data, the research staff developed numerous 

redistricting concepts, some of which evolved into concrete plans

for consideration by the Council. A g^oup of several factors ex 

erted the primary influence on the staffs determinations leading 

to the district boundaries set by the submission which ultimately 

became Plan I.
The staff gave principal attention to the city charter's de-

51/
mand for five councilmanic districts of equal population. Be-52/
yond this, the staff noted instructions of the City Attorney,

supplementing the Attorney General's guidelines, to avoid lines

which would divide concentrations of minority voters and thereby
53/

reduce their voting strength. The staff also undertook to

48/ 28 C.F.R. pt. 54 (1973) .
49/ Taylor v. McKeithen, 333 F.Supp. 452 (E.D.La. 1971) 

vacated and remanded, 407 U.S. 191 (1972).

50/ See notes 51-59, infra.

51/ See note 18, supra, and Part VII, infra.

52/ The City Attorney prepared a digest of the
3eneral’s guidelines and court decisions to assist the staf 
its redistricting activities.

53/ see Part IV(C), infra.

17



i

observe, as far as possible, traditional political boundaries
54/ j

ward and precinct lines— and natural geographic boundaries —  
the Mississippi River and Lake Pontchartrain, as well as major

streets and canals. Yet another effort was to steer clear of 

boundaries which would place two or more incumbent councilmen
55/

in the same district. And the staff endeavored to keep the
56/

councilraanic districts compact and geographically integral.

The complex question of Algiers, and the inseparable dispute 

over additional bridging of the Mississippi River, were also in­

strumental in shaping Plan I. Algiers, as we have mentioned, is 

disjoined by the Mississippi from downtown New Orleans, and only
57/

one bridge spans the river from Algiers to downtown New Orleans.

The bridge is the principal corridor for needed access by the 

residents of Algiers to the remainder of the city; an infrequent 

ferry service is of little use to the daily commuter. Algiers is

a high-growth residential area, and its citizens do not full}

share with other inhabitants of the city the same political and
58/

economic concerns. Transportation across the river to and

54/ See note 219, infra.

55/ See Part VI (C), infra.

56/ See Part VI (C), infra.

57/ See text supra at note 9.

58/ Although residents on both sides of the Mississippi 
have a common interest in the river traffic, physical separation 
from the remainder of the city has been responsible for a feeling 
of independence among those who live in Algiers.

18



from Algiers is dear to the people living there, and is a much
59/

debated issue in New Orleans.

The mix of the above elements produced a proposal to adopt 

the redistricting scheme which was to become Plan I. The propo­

sal, O.C. No. 5194, was presented for community views at three 

public hearings. The plan envisioned the division and distribu­

tion of the territory of Algiers among three different council- 

manic districts, and to this the residents of Algiers voiced

strong objection. Several black groups vigorously opposed the
60/

plan because, by their estimate, it diluted the black vote; .in

an effort to increase the potential for black representation on 
61/

the Council, they sought to restructure the plan to provide for

as many as eleven single-member districts. Nonetheless, with

slight modifications, the proposal passed the Council as Plan I,

becoming Ordinance No. 4796 M.C.S., only to be disapproved by the
62/

Attorney General.

5_9/ The existing bridge connects Algiers and downtown New 
Orleans. Uptown residents have argued that construction of a new 
bridge would turn a basically residential area into a main 
thoroughfare; downtown residents express concern that a second 
bridge would add more traffic congestion to an already overburdened 
area. The residents of Algiers have vigorously urged a new bridge, 
irrespective of location, as a necessary means of alleviating 
pressures on the limited facilities existing, and of accommoda­
ting the growing transportation needs of a burgeoning population. 
Although the City Council is not authorized to construct any new 
bridges or change the ferry schedules, it is responsible for com­
municating the views of its constituents to the State Department 
of Highways, the implementing agency.

60/ See Part VI, infra.
61/ See Part II (B) , infra.
62/ See Part I (B) , supra.

iI

19



4
\ l

| I
i*

i “
i
(

B . Impediments to Black Suffrage

At the hearings on Plan I, black citizens' groups advocated4 " !I
both an increase in the size of the City Council and the elimina­

tion of at-large elections of councilmen. The goal of this ap­

proach was greater opportunity for black voters to take part 

meaningfully in the selection of those who are to sit on the 

Council. Witnesses claimed that the existing scheme— five coun­

cilmen from districts and two at large— perpetuated limitations 

on the ability of the black voting population to engage effec­

tively in the choice of councilmanic membership. In recounting 

from hard personal experience the barriers to full political par­

ticipation by minorities, black opponents of Plan I cited a 

variety of restraints which we find quite revealing.

As the prime example of past discriminatory practice, the 

expansionists stressed the long history of racial segregation in

education, housing, public facilities and virtually all facets of
63/

everyday life in New Orleans. With special reference to suf­

frage, witnesses attested to past voting practices which worked

to exclude blacks from the registration rolls and to stifle minor-
64/

ity participation in elections. Even until recent times, they

reminded listeners, strict proof of residency of specified dura­

tion, and confinement of registration to one location the city
65/

hall— had persisted as obstacles to black would-be voters.

63/ See Part VII (C), infra.

64/ See Part VII (C), infra.

65/ Since the present Council assumed office in 1970, some 
efforts have been made to get registrars out onto local college

-  20  -

t



Testimony at the hearings further indicated that the candidate- 

selection process preceding councilmanic campaigns created addi­

tional problems for New Orleans' black citizens. To maximize 

citywide exposure, aspirants for councilmanic office are often 

invited to join mayoral tickets and to campaign with mayoral can­

didates as a team, and invitees are the personal choices of those 
66/

candidates. Endorsements from local organizations--the white

political power structure— are another component in the selection.

Black citizens running for office are hampered both by their

generally more individualistic political philosophies and their
■67/

more limited financial resources. No black person has ever

won election to the Council.

To overcome the barriers of endorsements and campaign assis­

tance, most black candidates have run independent— albeit losing—  

campaigns, focusing their appeal on the black community. In re­

cent years, the only four successful black candidates for city­

wide office in New Orleans were recipients of support from white

campuses and into neighborhood fire stations near election time. 
It was not, however, until after the filing of this suit that 
registrars made concerted efforts to regularly move into the com­
munity to facilitate the qualification of eligible minority citi­
zens .

6 6/ An invitation to participate on a ticket with a mayoral 
candidate has the effect of reducing campaigning costs since each 
member of the ticket contributes some of his or her campaign funds 
to the ticket in order to get the benefit of citywide publicity 
and exposure.

67/ Not only are candidates expected to espouse a philosophy 
which is palatable to the organization, but they are also expected 
to assist the organization by financial contributions to defray 
the cost of getting out the vote for its endorsees.

21



6 8/ 69/
organizations or white candidates. As suggested at the hear­

ings, the achievements of these candidates cannot be equated with

open access to the voting booth and equal weight of the vote in 
70/

the count.

According to the expansionists, the need for increased repre­

sentation on the City Council was exacerbated by the unresponsive­

ness of city officeholders to the wishes and wants of the black 
71/

minority- Indicia of the failure of the all-white City Coun­

cil to react favorably to the concerns of the black community 

were legion. Advocates of improved municipal services received 

a deaf ear from the Council more often than not. Efforts to pave 

streets, maintain parks and improve recreational areas in black 

neighborhoods have more lately been bolstered, not by improved 

attitudes on the part of council members, but by pressure to 

utilize funds provided by federal programs. Good faith efforts

6 8/ Black political organizations did not come into existence 
in Ne~Orleans until the late 60's. The formation of these organi­
zations was precipitated by the significant increase in black voter 
registration after passage of the Voting Rights Act of 1965. These 
organizations have hoped to serve as bases for more active minority 
participation in the electoral process and as a source of support 
for black aspirants for political office.

69/ A*black candidate for the Louisiana Court of Appeals 
ran unopposed when his opponent withdrew for personal reasons.  ̂
Another black candidate, who won in his bid for the Criminal Dis­
trict Court, had as his campaign co-chairmen the then Governor 
of Louisiana and the Mayor of New Orleans. Still another black^ 
candidate, for the school board, ran successfully on a ticket with 
a past president of the board. Since this litigation began, a 
black candidate was elected clerk of the Criminal District Court 
with the Mayor's support.

70/ See Part VII(C), infra.

71/ See Part VII (C), infra.

22



of some public officials have brought assistance to black consti­

tuents, but examples are relatively scarce.

The white and black communities of New Orleans are polarized 

in political matters, and that is perhaps best manifested by the 

incidence of bloc voting in New Orleans. The record documents

a history of bloc voting substantially along racial lines in
72/

both white- and black-occupied areas. The results of modern

elections which black candidates entered, or in which issues of

special concern to black voters are aired, demonstrate a strong

trend toward overwhelming support for black candidates and "black"

issues in black neighborhoods with minimal support in white
73/

neighborhoods, and vice versa. Speakers at the hearings as­

serted that where black voters constitute a minority of the total 

voting population, as is the case in New Orleans, the negative im­

pact of bloc voting would further impair their ability to partici­

pate effectively in political activities.

To this array of factors delimiting black access to the 

political process, the expansionists added certain structural ele­

ments as further proof that the black vote would continue to

72/ See Part VII (C), infra.

73/ Dominance of the Democratic Party in New Orleans has 
traditionally made success in Democratic primaries tantamount to 
victory in general elections. The only notable exception in re­
cent years was a race in 1970 for a New Orleans seat in the state 
legislature. A black candidate won the Democratic nomination, but 
a white Republican who qualified against him was elected in the 
general election; and so it was that for the first time in this 
century the district from which they ran was represented by a 
Republican. The results of the election were plainly attributable 
to bloc voting, with predominantly white wards, traditionally 
Democratic in registration, supporting the white Republican candi­
date over his black Democratic opponent.

23



suffer if the City Council remained small in membership and the

at-large seats were preserved. In New Orleans two such elements,

both of statutory origin, are of particular significance. The ex-
74/

pansionists attacked the majority-vote requirement and the anti-
75/

singleshot provision as primary-election mechanisms which de­

preciate the ballot of the black voter in councilmanic elections.

The majority-vote rule obscures a black candidate's chances of
76/

winning even if he were to receive all of the black vote. With­

out the possibility of a plurality victory by his candidate, the 

minority voter's influence on the election results is sharply re­

duced. The anti-singleshot law provides that if two or more of­

fices are to be filled— as, for example, the two at-large seats 

on the City Council— a voter must vote for candidates equal in

number to the number of offices at stake, or else have his ballot
77/

invalidated with respect to all of those offices. So, although

a voter wishes to support but one aspirant for an at-large seat 

on the Council, he must cast a vote against his candidate in or­

der to have his vote for that candidate counted.

The expansionists' arguments won a limited victory tempos 

rarily. 'Subsequent to the public hearings, the City Council ap­

proved ordinances offering the voters of New Orleans alternatives

74/ La. Rev. Stat. Ann. art. 18, § 358 (1966 supp.).

75/ Id. at § 351, quoted infra note 164.

76/ See Part VII(C), infra.

77/ See Part VII (C), infra.

24



I

to a seven-member legislative body and two of them were succes-
j

sively submitted to separate citywide referenda. The first, 

Ordinance No. 4923 M.C.S., called for an expansion to eleven 

members, nine from districts and two at large; the second, Or­

dinance No. 5026 M.C.S., specified an expansion to nine members,
78/

seven from districts and two at large. Although neither or­

dinance embodied the central proposal advanced by black spokes- 

persons--elimination of at-large voting, and election of all 

councilmen from single-member districts, as an essential feature 

of any expansion— both ordinances were supported by the black vote 

ostensibly on the theory that enlargement of council membership 

in any form was superior to the existing scheme, and raised some 

hope for fairer minority representation. Neither proposal re­

ceived any support from white political organizations, however, 

and both were eventually defeated by the preponderant white vote.

C. The Formulation of Plan II

Following the rejection by the electorate of plans for ex­

pansion of the City Council, and principally in response to 

vociforous outrage over the tripartite split of Algiers in Plan 

I, a member of the Council directed the research staff to redraw 

that plan to incorporate all of Algiers into one district and to 

readjust the boundaries of other districts accordingly. This the 

staff did and one of the products of its efforts ultimately became

Plan II. The staff considered the same criteria it had utilized in

•

78/ Of a total of five expansion proposals adopted by the 
Council, only these two reached a referendum.

25



promulgating Plan I, but the Algiers question appears to have

been the overriding concern in the restructuring of districts.

Very importantly, the factors which persuaded the Attorney General
80/

to disapprove Plan I did not undergo reconsideration by the

staff in the formulation of the concepts leading to Plan II. The

staff commenced and completed its work on Plan II while Plan I

was under review by the Attorney General and before he interposed
§1 /

his objection to it.
82/

In toto, four new schemes revising Plan I were submitted

by the staff and considered by the Council. In the meantime, the
83/

Attorney General rejected Plan I, but it does not appear that 

the Council addressed specifically the flaws whxch the Attorney 

General identified in that version. The eventual Plan II— rela­

tively little more than a modification of Plan I placing Algiers 

in a single district— was aired at two additional public hearings 

and passed by the Council with only a minor amendment— the shift­

ing of a precinct from one district to another. Again the Attor-

79/ See Part 11(A), supra.

80/ See note 26, supra, and accompanying text.

81/ The staff transmitted its proposals in November, 1972.
The Attorney General did not announce his ruling on Plan I until 
January 15, 1973. See Part 11(C), infra.

82/ One alternative was a modification of Plan I which re­
tained the configurations of two districts, changed the boundaries 
of the other three districts, and placed all of Algiers in one dis­
trict. In addition, it placed two incumbent councilmen in a single 
district. The remaining alternatives were variations on that scheme, 
adjusting the lines of two of the districts.

83/ See Part 1(B), supra.

26



ney General registered an objection in the view that the second
84/

plan, as had the first, failed to meet the test of Section 5,
85/

and that left the fate of Plan II to the courts.

III. THE HISTORICAL EVOLUTION OF SECTION 5

A . The Constitutional Background

Section 1 of the Fifteenth Amendment pledges 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." And so, "without fur-
86/

ther legislative specification," Section 1 ‘invalidate [s] state

voting qualifications or procedures which are discriminatory on
87/

their face or in practice." The Fifteenth Amendment, however,

does not rest protection of the right to vote entirely on the 

majestic pronouncement made by Section 1, but in Section 2

provides that "[t]he Congress shall have the power to enforce 

this article by appropriate legislation." "This power, like all 

others vested in Congress, is complete in itself, may be exer­

cised to the utmost extent, and acknowledges no limitations, other
88/

than are prescribed in the constitution."

84/ See Part 1(B), supra.

85/ See note 19, supra. See also Beer v. United States, supra 
note 6 , at 6-1 0 .

8 6/ Section 1 has uniformly been construed as self-executing. 
See South Carolina v. Katzenbach, 383 U.S. 301, 325 (1966).

87/ Id., and see cases there cited.

8 8/ Id. at 327, quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.)
1, 196 (1824) .

27



1

The wisdom of coupling with the guaranty of Section 1 the j
broad enforcement authority conferred by Section 2 was fully

|
demonstrated by the experience accumulated over the 95 years follow-

i
ing ratification of the Fifteenth Amendment in 1870. For notwith­

standing the self-executing nature of Section 1 and its enforce­

ability in the courts, the promise it made far outran actual
89/ 90/

realization. The grandfather clause, the white primary,
91/ 92/

the discriminatory challenge and the black gerrymander, though 

' ultimately declared illegal, attested the multiform opposition to 

racial equality in voting persistent in some sections of the coun­

try. Among the subtler, but certainly not the feebler, devices

suppressing black suffrage were literacy tests discriminatorily
93/

conceived and administered. In the wake of these techniques

was widespread disenfranchisement of black citizens in areas where
94/

the black population was large.

That was the sad reality in 1965, despite the best efforts of 

those who had advocated voting equality in the courts and others

89/ See Guinn v. United States, 238 U.S. 347, 364 65 (1915) ; 
Myers". Anders0 ^ 7 2 3 8  U.S. 368, 382 (1915); Lane v. Wilson, 307
U.S. 268, 275 (1939) .

90/ See Nixon v. Condon, 286 U.S. 73, 89 (1932) ; _Nixon.
v. Herndon, 273 U.S. 536, 540 (1927). Compare Grovey. v. Townsend,^
295 U.S. 45, 54 (1935) with Smith v. Allwright, 321 U.S. 649, 664-65 
(1944); and Terry v. Adams, 345 U.S. 461, 470 (1953).

91/ See United States v. Thomas, 362 U.S. 58, 59 (1960).

92/ See Gomillion v. Lightfoot, 364 U.S. 339, 347 (1960).

93/ See Schnell v. Davis, 336 U.S. 933 (1949); Alabama v.^ 
United"States, 371 U.S. 37 (1962); Louisiana v. United States, 380
U.S. 145, 153 (1965).

9 4/ See H.Rep. No. 439, 89th Cong., 1st Sess. 8-16 (1965); 
South Carolina v. Katzenbach, supra note 8 6 , 383 U.S. at 313.

28



*

i I
who had pushed for stronger voting rights laws in Congress. An­

other reality, equally stark, was that each of those approaches 

had suffered from its own difficulties. Post-Civil War statutes 

on the subject had proven ineffective, and modern federal legisla­

tion had aimed at facilitating case-by-case litigation of suf-
95/

frage discrimination. Attempts to enforce the constitutional

mandate entailed numerous lawsuits, which all too frequently be-
96/

came individually onerous and protracted. Beyond that, adjudi­

cations removing one obstacle to equality ofttimes went for naught

in the face of substitution of another obstacle, or even of defi-
97/

ance or evasion of court orders. The net of it all was rela-
98/

tively littie gain in black voting. As the House Judiciary
/

Committee was to observe in 1965, "ft]he historic struggle for 

the realization of tnis constitutional guarantee indicates clearly

95/ See South Carolina v. Katzenbach, supra note 8 6 , 283 
U.S. at 313.

96/ See H.Rep. No. 439, 89th Cong., 1st Sess. 9-11 (1965); 
South Carolina v. Katzenbach, supra note 8 6 , 383 U.S. at 314-15.

97/ See South Carolina v. Katzenbach, supra note 8 6 , 383 
U.S. at 314.

98/ • "Another measure of the effectiveness of existing civil
rights statutes and their case-by-case enforcement is to be found 
in voter registration statistics in those areas where federal liti­
gation has been previously concentrated. For example, in Alabama, 
the number of Negroes registered to vote has increased by only 
5.2 percent between 1958 and 1964 to 19.4 percent; in Mississippi, 
approximately 6.4 percent of voting age Negroes were registered in 
1964 compared with 4.4 percent in 1954; and in Louisiana, the in­
crease in Negro registration has been imperceptible— from approxi­
mately 31.7 percent in 1956 to approximately 31.8 percent of the 
eligible Negroes registered as of January 1, 1965. Meanwhile, 
the percentage of registered white voters in Louisiana is 80.2 per­
cent." H.Rep. No. 439, 89th Cong., 1st Sess. 10 (1965). See also 
South Carolina v. Katzenbach, supra note 8 6 , 383 U.S. at 313.

29



5

that our national achievements in this area have fallen far short
99/

of our aspirations." i
• • • I

B. The Voting Rights Act i

The Voting Rights Act of 1965 mounted the Nation's most for­

midable legislative assault upon the massive problem of voting dis 

crimination. As the history of the Act discloses, "Congress felt 

itself confronted by an insidious and pervasive evil which had

been perpetuated in certain parts of our country through unremit-
100/

ting and ingenious defiance of the Constitution." And as the

Act itself reveals, "Congress concluded that the unsuccessful reme

dies which it prescribed in the past would have to be replaced by

sterner and more elaborate measures in order to satisfy the clear
101/

commands of the Fifteenth Amendment."

The 1965 congressional approach to this task was marked by

renewed determination and a changed philosophy. The Voting Rights

Act "implemented Congress 1 firm intention to rid the country of
102/

racial discrimination in voting." It "was designed by Con­

gress to banish the blight of racial discrimination in voting,

which [had] infected the electoral process in parts of our country
103/

for nearly a century." It was "drafted to make the guarantees

99/ H.Rep. No. 439, 89th Cong., 1st Sess. 8 (1965).

100/ South Carolina v. Katzenbach, supra note 8 6 , 383 U.S. 
at 309.

101/ Id.

102/ Allen v. State Bd. of Elections, 393 U.S. 544, 548 
(1969).

103/ South Carolina v. Katzenbach, supra note 8 6 , 383 U.S. 
at 308. See also id. at 315.

30



\

104/
of the Fifteenth Amendment finally a reality for all citizens;

it "was aimed at the subtle, as well as the obvious, state

regulations which have the effect of denying citizens their
105/

right to vote because of their race." For "Congress realized

that existing remedies were inadequate to accomplish this purpose

and drafted an unusual, and in some aspects a severe, procedure

for insuring that States would not discriminate on the basis of
106/

race in the enforcement of their vot.rng laws."

C. Sections 4 and 5

A reading of the Act in its entirety tells how extensively

Congress pursued these objectives. We need not canvass all pro-
107/

visions of the Act, for our immediate concern is Section 5. We 

must, however, examine that section in light of Section 4, with 

which Section 5 and other remedial provisions of the Act are 

closely related.

Section 4 automatically suspends compliance with any "test or 

device" as a precondition to voting in any state or political sub­

division "which (1) the Attorney General determines maintained on

104/ Allen v. State Bd. of Elections, supra note 102, 393 
U.S. at 556. See also South Carolina v. Katzenbach, supra note 
8 6, 383 U.S. at 308, 309.

105/ Allen v. State Bd. of Elections, supra note 102, 393 
U.S. at 565. See also Perkins .v. Matthews,. 400 U.S. 379, 385 
(1971); South Carolina v. Katzenbach, supra note 8 6 , 383 U.S. at 
335.

106/ Allen v. State Bd. of Elections, supra note 102, 393 
U.S. at 556.

107/ See W. Christopher, Constitutionality of the Voting 
Rights Act of 1965, 18 Stan. L. Rev. 1 (1965); A. Derfner, Racial 
Discrimination and the Right to Vote, 26 Vand. L. Rev. 523, 547-52 
(1973); Note, Voting Rights Act of 1965, 1966 Duke L. J. 463.

31



November 1, 1964, any test or device, and with respect to which 

(2) the Director of the Census determines that less than 50 per
|centum of the persons of voting age residing therein were regi­

stered on November 1, 1964, or that less than 50 per centum of
108/

such persons voted in the presidential election of November, 1964."

108/ " (a) To assure that the right of citizens of the
United States to vote is not denied or abridged on account of 
race or color, no citizen shall be denied the right to vote in any 
Federal, State, or local election because of his failure tc comply 
with any test or device in any State with respect to which the 
determinations have been made under subsection (b) of this sec­
tion or in any political subdivision with respect to which such 
determinations have been made as a separate unit, unless the United 
States District Court for the District of Columbia in an action 
for a declaratory judgment brought by such State or subdivision 
against the United States has determined that no such test or de­
vice has been used during the ten years preceding the filing of 
the action for the purpose or with the effect of denying or abridg­
ing the right to vote on account of race or color: Provided, That no 
such declaratory judgment shall issue with respect to any plain­
tiff for a period of ten years after the entry of a final judg­
ment of any court of the United States, other than the denial of 
a declaratory judgment under this section, whether entered prior 
to or after the enactment of this subchapter, determining that 
denials or abridgments of the right to vote on account of race or 
color through the use of such tests or devices have occurred any­
where in the territory of such plaintiff.

"An action pursuant to this subsection shall be heard 
and determined by a court of three judges in accordance with 
the provisions of section 2284 of Title 28 and any appeal shall lie 
to the Supreme Court. The court shall retain jurisdiction of 
any action pursuant to this subsection for five years after judg­
ment and sha-11 reopen the action upon motion of the Attorney 
General alleging that a test or device has been used for the 
purpose or with the effect of denying or abridging the right to 
vote on account of race or color.

"If the Attorney General determines that he has no 
reason to believe that any such test or device has been used dur­
ing the ten years preceding the filing of the action for the 
purpose or with the effect of denying or abridging the right to 
vote on account of race or color, he shall- consent to the entry 
of such judgment.

" (b) The provisions of subsection (a) of this sec­
tion shall apply in any State or in any political subdivision

32



The coverage of Section 4 has been extended to any other state or

political subdivision with respect to which similar determinations
109/

are made as to the year 1968. The words "test or device" are

of a state which (1) the Attorney General determines maintaini 
on November 1, 1964, any test or device, and with roscact to 
which (2) the Director of the Census determines that'less than 50 
per centum of the persons of voting age residing therein were 
registered on November 1, 1964, or that less than 50 per centum
? o ^ UCh persons voted in the presidential election of November 
i964 on and after August 6 , 1970, in addition to any State or 
political subdivision of a State determined to be subject to sub- 
sec ion (a) of this section pursuant to the previous sentence 
the provisions of subsection (a) of this section shall apply in 
any State or any political subdivision of a State which (i) the 
Attorney General determines maintained on November 1, 1968 any 
test or device, and with respect to which (ii) the Director of 
the Census determines that less than 50 per centum of the persons
?Lo ing,?ge residlnp therein were registered on Noverber 1,
1968, or that less than 50 per centum cf such persons voted in 
the presidential election of November 1968.

eral or of 1'? germination certification of the Attorney Gen- 
, . . the Director of the Census under this section or under

section 1973d or 1973k of this title shell not be reviewabL ?n
Register^ S h a 1 1 ^  effecti''e Publication in the Federal

.  ̂ "(C) The phrase ,test or device' shall mean any re­
quirement that a person as a prerequisite for voting or registra-
^and o r T  ^ U l demonstrate the ability to read? wriL? ™ S r -  

' nterpret any matter, (2 ) demonstrate any educational
achievement or his knowledge of any particular subject, (3 ) possess

Character- or (4) prove his qualifications by the 
ucher of registered voters or members of any other class.

_  ... .".(d) For Purposes of this section no State or politi-
* subdlvrsion shall be determined to have engaged in the use 

o tests or devices for the purpose or with the effect of denyinq 
r abridging the right to vote on account of race or color ifY 
(1 ) incidents of such use have been few in number and have been 
promptly and effectively corrected by State or local action (2) 
the continuing effect of such incidents has been eliminated, and 
L I  ^h!re n° reasonable probability of their recurrence in
the future. Voting Rights Act of 1965, § 4, as amended 45 n q o § 1973b (1970). ~ ciluenuoa/ U.S.C.

, § 4 (b )/ as amended. 42 U.S.C. § 1973b (c) (1970)quoted supra note 108. ' 1 y/U''

33



. ' i
\

defined as "any requirement that a person as a prerequisite for i1
voting or registration for voting (1 ) demonstrate the ability to 

read, write, understand, or interpret any matter, (2 ) demonstrate

any educational achievement or his knowledge of any particular sub­

ject, (3 ) possess good moral character, or (4) prove his qualifi­

cations by the voucher of registered voters or members of any 
110/

other class," A state or local unit thus covered may rein­

state the test or device only by bringing an action in this court 

for a declaratory judgment and obtaining a determination "that no 

such test or device has been used during the ten years preceding 

the filing of the action for the purpose or with the effect of
111/

denying or abridging the right to vote on account of race or color, " 

It is to the states and political subdivisions which are 

covered by Section 4 that the prohibition of Section 5 applies. 

Section 5 provides that no person shall be denied the vote for 

failure to comply with "any voting qualification or prerequisite 

to voting, or standard, practice, or procedure with respect to vot­

ing different from that in force or effect" in the covered state 

or subdivision on November 1, 1964, or November 1, 1968, as the 

case may be, unless and until (a) the change is submitted to the 

Attorney General and he interposes no objection, or (b) in an ac­

tion instituted in this court, a judgment is obtained declaring 

"that such qualification, prerequisite, standard, practice, or
l------------------------------ \

110/ Id. § 4(c), as amended, § 1973b(c) (1970), quoted
supra note 108.

111/ Id. § 4(a), as amended, 42 U.S.C. § 1973b(a) (1970),
quoted supra note 108. See Gaston County v. United States, 395 
U.S. 285 (1969).

34



procedure does not have the purpose and will not have the effect

of denying or abridging the right to vote on account of race or 
112/

color...."

The reason for including the proscription of Section 5 in

the Act is simple. As the Supreme Court has explained, "Congress 

knew that some of the States covered by § 4(b) of the Act had re­

sorted to the extraordinary stratagem cf contriving new rules of

various kind for the sole purpose of perpetuating voting discrimi-
113/

nation in the face of adverse federal decrees." Moreover, as
the Court continued, "Congress had reason to suppose that these

• *

States might.try similar maneuvers in the future in order to

evade the remedies for voting discrimination contained in the 
114/

Act itself." So, said the Court, "[u]ndcr the compulsion of

these unique circumstances, Congress responded," through the enact
115/

ment of Section 5, "in a permissibly decisive manner." The

decisiveness of that response is apparent both from the wide 

coverage that Section 5 was given and from the caliber of the 

showing prerequisite to removal of its bar.

IV. THE SCOPE OF SECTION 5

A . Coverage

Since August 7, 1965, the State of Louisiana, in consequence 

of appropriate administrative determinations, has fallen within

112/ See note 19, supra.

113/ South Carolina v. Katzenbach, supra note 8 6 , 383 U.S. 
at 335.

114/ Id.

115/ Id. See, to the same effect, Allen v. State Bd. of 
Elections, supra note 102, 393 U.S. at 548; Perkins v. Matthews, 
supra note 105, 400 U.S. at 339.

35



1
1 I
I  ji
l j, I

:i■ i
116/

the ambit of Section 4 of the Voting Rights Act. Since the

State has not exempted itself from the coverage of Section 4, the
117/

City of New Orleans remains subject to the commands of Section 5.

The latter section requires clearance either by the Attorney General

or by this court of "any voting qualification or prerequisishe to

voting, or standard, practice, or procedure with respect to voting
118/

different from that in force or effect" on November 1, 1964.

The redistricting plan which is the subject of this litigation 

will change a number of boundaries of the five councilroanic dis­

tricts in New Orleans from what they were on that date. The At­

torney General has interposed an ob‘lection to the plan, and the 

question is whether, on the evidence tested by the standard 

enunciated in Section 5, the plan merits our approval.

Indubitiibly, the enactment of the ordinance adopting Plan II 

triggered Section 5 into operation. As the Supreme Court has ad­

monished, "Congress intended that the Act be given 'the broadest

possible scope1 to reach 'any state enactment which altered the
119/

election law of a covered State in even a minor way'"; "all 1

116/ 30 Fed.Reg. 14505 (1965).

117/ See Voting Rights Act of 1965, §§ 4 and 5, as amended, 
42 U.S.C. §§ 1973b and 1973c (1970), quoted supra notes 102 
and 19. See also Perkins v. Matthews, supra note 105, 400 U.S. 
at 394-96; Allen v. State Bd. of Elections, supra note 102, 393 
U.S. at 554-56.

118/ See note 19, supra.
119/ Perkins v. Matthews, supra note 105, 400 U.S. at 387, 

quoting Allen v. State Bd. of Elections, supra note 102, 393 U.S. 
at 566, 567. See also Georgia v. United States, 411 U.S. 526,
532 (1973).

36



v 120/changes no matter how small [are to] be subjected to § 5 scrutiny." 

The reconstitution of councilmanic districts which the plan en­

visions is clearly a change of a "standard, practice, or procedure
121/

with respect to voting." As such, it falls plainly within the
122/

purview of Section 5.

But to say that Section 5 is actuated by a plan proposing 

such a change is not to suggest that Section 5 demands disappro­

bation of the plan. It is to say that the plan must be disapproved 

unless the evidence warrants a judgment declaring that it "does not

have the purpose and will not have the effect of denying or abridg-
123/

ing the right to vote on account of race or color." That is

the question which we are summoned to decide in this case.

B . Relationship to the Fifteenth Amendment

In considering whether the New Orleans redistricting plan 

passes muster under Section 5, we must bear in mind the relation­

ship of the Toting Rights Act to the Fifteenth Amendment. The 

Act, in its preamble, is declared to be legislation " [t]o enforce

120/ Allen v. State Bd. of Elections, supra note 102, 393 
U.S. at 563. See also Georgia v. United States, supra note 119,
411 U.S. at 532; Perkins v. Matthews, supra note 105, 400 U.S. at 
387.

121/ Georgia v. United States, supra note 119, 411 U.S. at 
531-35; Perkins v. Matthews, surra note 105, 400 U.S. at 388.

122/ Compare Georgia v. United States, supra note 119, 411 
U.S. at 531-35; Perkins v. Matthews, supra note 105, 400 U.S. at 
387-95; Allen v. State Bd. of Elections, supra note 102, 393 U.S. 
at 550-53, 569-71.

123/ See note 19, supra. See also Georgia v. United States, 
supra note 119, 411 U.S. at 529; Perkins v. Matthews, supra note 
105, 400 U.S. at 383-85; Allen v. State Bd. of Elections, surra note 
102, 393 U.S. at 558-59; City of Petersburg v. United States, surra 
note 5, 354 F.Supp. at 1027.

37



*

[

\
the fifteenth amendment to the Constitution of the United States,

124/
and for other purposes." In Section 2 the Act, similarly to

i
the Amendment, specifies that "[n]o voting qualification or pre-

{
requisite to voting, or standard, or practice, or procedure shall 

be imposed or applied by any State or political subdivision to

deny or abridge the right of any citizen of the United States to
125/

vote on account of race or color." The legislative history of

the Act establishes the full and firm allegiance of its own objec-
125/

tives with the goals of the Amendment. The Supreme Court
summed it up when it observed that "(t]he Act was drafted to

make the guarantees of the Fifteenth Amendment finally a reality
127/. T ...■ ■■ ,, • • .for all citizens."

This close relationship, so true of the Act as an entirety,

is also true of Section 5. That section "essentially freezes

the election laws of the covered States unless a declaratory

judgment is obtained in [this court] holding that a proposed
128/

change is without discriminatory purpose or effect." Like

124/ 79 Stat. 437 (1965). See also H.Rep. No. 439, 89th Cong.,
1st Sess. 6 (1965).

125/ 42 U.S.C. § 1973 (1970).

126/ See Part III (B), supra.

127/ Allen v. State Bd. of Elections, supra note 102, 393 
U.S. at 556. See also South Carolina v. Katzenbach, supra note 
8 6, 383 U.S. at 308, 309. "Hopefully, millions of non-white 
Americans will now be able to participate for the first time on 
an equal basis in the government under which they live. Vie may 
finally look forward to the day when truly 1 [t]he right of citi­
zens 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.'" Id. at 337.

128/ Georgia v. United States, supra note 119, 411 U.S. at
538.

38



' I

129/ 1
other provisions of the Act, Section 5 was passed, and its

130/
validity has been sustained, as an appropriate exercise of

congressional power to enforce the mandate of the Fifteenth Amend- 
131/

ment. Section 5 proceeds to accomplish that mission through

a substantially similar mandate of its own. The Amendment, in

Section 1, provides in part that "[t]he right...to vote shall not

be denied or abridged by...any State on account of race [or]
132/

color"; in parallel language, Section 5 permits judicial ap­

proval of a changed voting procedure only if it "does not have

the purpose and will not have the effect of denying or abridging
133/

the right to vote on account of race or color." Judicial

clearance of a new voting rule under Section 5 thus exacts "a

judicial determination that continued suspension of the new rule

is unnecessary to vindicate rights guaranteed by the Fifteenth 
134/

Amendment."

C. Dilution of the Right to Vote

The clearest case of violation of the Fifteenth Amendment 

right arises, of course, when a would-be voter is barred from ex-

129/ South Carolina v. Katzenbach,» supra note 8 6 , 383 U.S. 
at 308-16, 334-35.

130/ Georgia v. United States, supra note 119, 411 U.S. at 
535. See also Allen v. State Bd. of Elections, supra note 102, 393 
U.S. at 556; South Carolina v. Katzenbach, supra note 8 6, 383 U.S. 
at 323-37.

131/ See Part III (B), supra.

132/ Emphasis added.

133/ See note 19, supra (emphasis added).

134/ South Carolina v. Katzenbach, supra note 8 6 , 383 U.S. 
at 335.

39



* I

I
I

135/ 1 ,
ercising it; and there is no indication that the redistricting

plan proposed for New Orleans will have that effect upon any voter.
|

But both the Fifteenth Amendment and the Voting Rights Act for-
136/

bid abridgment of the right to vote as well as its outright denial,

and any doubt as to what abridgment of the right encompasses may
137/

readily be dispelled. The Supreme Court held in Reynolds v. sims,

a reapportionment case, and has later consistently repeated in
138/

cases arising under the Act, that "the right of suffrage can

be denied by a debasement or dilution of the weight of a citizen's

vote just as effectively as by wholly prohibiting the free exer-
139/

cise of the franchise." As the Court has stated it another

way with specific reference to the Act, "[t]he right to vote can

be affected by a dilution of voting power as well as by an abso-
140/

lute prohibition on casting a ballot." And the Court has de­

clared that by passage of the Act "Congress intended to adopt the

concept of voting articulated in Reynolds v. S ims, . . . [to] protect
141/

Negroes against a dilution of their voting power."

135/ See cases cited supra notes 89-93. "The abstract right 
to vote means little unless the right becomes a reality, at the 
polling place on election day." Perkins v. Matthews, supra note 
105, 400 U.S. at 387.

136/ See text supra at notes 125-33.

137/ 377 U.S. 533 (1964).

138/ See Georgia v. United States, supra note 119, 411 U.S. 
at 532; Perkins v. Matthews, supra note 105, 400 U.S. at 388; Allen 
v. State Bd. of Elections, supra note 102, 393 U.S. at 569.

139/ Reynolds v. Sims, supra note 137, 377 U.S. at 555.

140/ Allen v. State Bd. of Elections, supra note 102, 393 
U.S. at 569.

141/ Perkins v. Mai t thews, supra note 105, 400 U.S. at 390, 
quoting Allen v. State Rd. of Elections, supra note 102, 393 U.S. 
at 588 (separate opinion of Harlan, J.).

40



Our investigation as to whether the redistricting plan before 

us has a dilutive effect on the black vote in New Orleans is
l

greatly assisted by a pause to briefly examine theory and practice

prevalent in legislative reapportionment cases, wherein essentially

the same problem has arisen. It is now settled that "[t]he Equal

Protection Clause [of the Fourteenth Amendment] demands no less

than substantially eaual state representation for all citizens,
142/

of all places as well as of all races." When the same number

of representatives on the same body are elected from districts 

having disparate pbpulations, the individual votes of citizens in 

the more heavily populated districts obviously have less weight 

than the votes of those in the districts more sparsely populated.

For state elections conducted on the basis of districting, the

general requirement is "substantial equality of population among

the various districts, so that the vote of any citizen is approxi-
143/

mately equal in weight to that of an/ other citizen in the State."

Our commission in this case does not extend to this kind of

malapportionment, but to conditions that might detrimentally af-
144/

feet the franchise on the basis of race or color. Sometimes,

142/ Reynolds v. Sims, supra note 137, 377 U.S. at 568. 
The cases supporting this proposition are legion. See, e.g., 
Gaffney v. Cummings, 412 U.S. 735 (1973); Mahan v. Howell, 410 
U.S. 315 (1973); ZTbate v. Mundt, 403 U.S. 182 (1971); Swann v.
Adams, 385 U.S. 440 (1967); and cases cited at note 145, infra.

143/ Reynolds v. Sims, supra note 137, 377 U.S. at 579. 
Since we are concerned with but one branch of the "one man, one 
vote" doctrine, we do not embark upon a consideration of its 
numerous ramifications.

144/ See Beer v. United States, supra note 6 , at 6-10.

41



however, in reapportionment situations devoid of any vitiating de­

viation from population equality, the claim is made that something 

in the voting scheme— in the decided cases, a multimember district
i

or at-large voting— operates to sap the voting strength of racial
145/

or other minorities within the district. The methodology of

resolving such claims is instructive.

The Supreme Court has held that in such cases "the plaintiff[1s] 
146/

burden is to produce evidence to support findings that the 

political processes leading to nomination and election were not 

equally open to participation by the group in question— that its 

members had less opportunity than did other residents of the dis­

trict to participate in the political processes and to elect
147/

legislators of their choice." Thus, as the Fifth Circuit has

pointed out, "although population is the proper measure of equality

in apportionment,...access to the political process and not popu-
148/

lation [is] the barometer of dilution of minority voting strength."

The determination demanded in such cases is to be made on "the
149/

totality of the circumstances," and among the factors pertinent

145/ See White v. Reqester, 412 U.S. 755, 765-70 (1973); 
Whitcomb v. Chavis, 403 U.S. 124, 143-44, 149 (1971); Burns v. 
Richardson, 384 U.S. 73, 88 (1966); Fortson v. Dorsey, 379 U.S.
433, 439 (1965); Turner v. McKeithen, No. 71-2221 (5th Cir. Dec.
28, 1973); Zimmer v. McKeithen,. 485 F.2d 1297 (5th Cir. en banc 
1973); Howard v. Adams County Bd. of Supervisors, 453 F.2d 455,
457 (5th Cir.), cert, denied, 407 U.S. 925 (1972).

146/ The burden of proof which the Court speaks of is the 
burden in cases wherein relief is sought on constitutional grounds. 
As to the burden of proof in § 5 cases, see Part VI (B), infra.

147/ White v. Reqester, supra note 145, 412 U.S. at 766.

148/ Zimmer v. McKeithen, supra note 145, 485 F.2d at 1303.

149/ White v. Reqester, sunra note 145, 412 U.S. at 769u 
See also Turner v. McKeithen, supra note 145, at 7; Zimmer v. 
McKeithen, supra note 145, 485 F.2d at 1305.

42



to the question whether a minority group enjoys meaningful access 

"are the continuing effects of past discrimination on the minority- 

group's ability to participate in the political process, the op­

portunity for the minority group to participate in the candidate 

selection process, the responsiveness of elected officials to

the particular concerns of the minority group, and the strength
150/

of the state interest in multi-member or at-large voting."

Our examination of New Orleans' redistricting, then, may

proceed on several fundamental premises. The tendered issues are
«

whether the City's Plan II will have the purpose or effect of
151/

abridging the right to vote because of race or color. The

decision necessitates prior investigation to ascertain whether the

plan will attenuate, in terms of power or weight, the black vote
152/

in councilmanic elections. The measure of the plan's validity

is equality of opportunity, and the cruicial inquiry is whether

the plan leaves black citizens at liberty to participate in the
153/

electoral processes on the same plane with white citizens.

That assessment, toward which we now proceed, is to be made upon
154/

careful consideration of all relevant circumstances.

150/ Turner v. McKeithen, supra note 145, at 6 .

151/ See text infra at Part V.

152/ See text infra at Part VI.

153/ See text infra at Part VII.

154/ See text infra at Part V (A) .

43



V. THE LEGAL PROBLEM ■

To fulfill the mandate of Section 5, we repeat, it must
'

be shown that the redistricting plan in question does not have i
the purpose and will not have the effect of denying or abridging

155/
the right to vote on account of race or color. The burden of

156/
that showing rests upon New Orleans. Our task is to determine

157/
whether that burden has been discharged, and that is the only

158/
function we have with respect to the controversy at hand.

A . The Prime Factors

Several prominent factors, proceeding from quite different

sources, converge to intensify the problem confronting us. One is
159/

the size and voting strength of the black community in New Orleans,

which expectably would assure the prospect of fairly substantial

black representation on the City Council. At the same time the

black minority, which numerically is nearly half of the total

population, commands only slightly more than one-third of the

vote, a circumstance that beckons inquiry as to why that is so.

Another factor of great moment is the residential pattern preva­
i l /

lent in the city. When the five councilmanic districts are

constructed vertically— by dividing lines drawn northwardly and

155/ See Parts III(B), (C), IV(B), (c), supra.

156/ We discuss the burden of proof in § 5 cases in Part 
VI (B), infra.

157/ See Beer v. United States, supra note 6 , at 6-10

158/ Id.

159/ See Part 1(A), supra.

160/ See Part I (A), supra.



*

■

southwardly across the entire city— it is difficult to

avoid the result that each district will combine a segment of the

east-west black belt with segments of contiguous white areas.

Rather, the likely result is all or nearly all districts with
161/

a preponderance of white inhabitants and voters.

Other vital factors are important elements of the political

machinery by which the City Council is chosen. Five of the

seven members are elected from the five single-member districts
162/

and the other two from the city at large. Nomination as a

candidate for election requires a majority of the vote cast at a
163/ ' 164/

primary, and singleshot voting in primaries is not allowed.

These features of the electoral process operate conjunctively to

1§1/ Compare the analysis of the Attorney General, Part 1(B), 
s^ra, and note 33, supra. We do not suggest that vertically-drawn 
district lines may not appropriately be incorporated into a re­
districting scheme for New Orleans, nor that only an east-west con­
figuration could satisfy Section 5. It is not within our power to 
draw new lines; our function extends merely to identification of 
the visible defects in the plan as submitted which work to dilute 
the black vote.

162/ New Orleans, La., Charter art. Ill, § 3-102 (1954). See 
Part II (B), suora.

163/ La. Rev. Stats. Ann. art. 18, § 3 5 8 (1966 supp.).

164/ Id. art. 18, § 351 (1966 supp.), which reads:

Whenever in any political district or 
political subdivision there are two or more 
offices of the same kind or character to be 
elected,...each elector shall vote for as many 
candidates as there are places to be filled. 
Whenever an elector shall vote for a lesser 
number of candidates than there are places to 
be filled, the ballot shall not be counted for 
any one of the plural candidate's voted for 
thereon, but shall be considered and counted 
as if no one of the plural candidates had been 
voted for....

45



i

l

handicap a racial minority, wherever and whenever it is also a

voting minority, from securing nomination of its candidates if the

voting proceeds strictly along racial lines. In New Orleans it
165/ i

usually does, and nomination in the Democratic primary is usually
166/

tantamount to victory in the general election.

It is in this general context, further ramified by additional

considerations, that the redistricting proposed by Plan II must 

be examined. The plan changes a number of boundaries of the five 

preexisting vertical councilmanic districts, but leaves the dis­

tricts just as vertical as they were before. When the plan is 

superimposed upon the housing pattern prevalent in New Orleans, 

the statistical picture in the five districts emerges as follows:

District Population Registered Voters
Tota .1 Black % Total Black %

A 117,901 36,665 29.1 57,387 12,964 2 2.6
B 118,678 76,109 64.1 39,870 20,976 52.6
C 119,023 42,651 35.8 49,756 11,606 23.3
D 118,337 51,447 43.5 49,505 18,223 36.8
E 119,532 60,437 50.6 45,898 19,819 43.2

Total 593,471 267,308 45.0 242,416 83,588 34.5

Thus only in one district— District B—  would there be a majority 

of black voters, and a slim majority at that. Two seats on the 

Council would be filled by the at-large vote, and the majority- and 

multiple-vote requirements for primaries would remain.

B . Purpose of the Plan

On the issue of the purpose— as to black voting— that engen­

dered the redistricting scheme projected by Plan II, New Orleans

165/ See Part 11(B), supra.

166/ Compare note 73, supra.

46



i

has submitted extensive testimony by six members of its City Coun-
|

cil and three members of the Council's research staff as to the
ifactors they respectively considered and evaluated in the course of
I

the formulative process. Credible evidence supports the City's

assertion that compliance with the call of the city charter for
167/

councilmanic redistricting after decennial censuses was the 

prime motivation in the evolution of the plan. In sum, the City 

asserts that the factors instrumental in the shaping of Plan II 

were population, boundaries-— natural, historical and political,
168/

compactness of districts and avoidance of minority-vote dilution.

The City insists that the planners were not prompted by any desire 

to discriminate against any group of residents on the basis of race 

or color in the promulgation of the plan.

The Government concedes that the bare statistical output 
169/

of Plan II, taken in a vacuum, does not necessarily establish 

that the plan is racially discriminatory in aim. To rebut the 

City's evidence, the Government, joined by the intervenors, sug­

gests that the planners were unpardonably insensitive to the con­

sequences of redrawing the district lines through dense settlements 

of black population. The Government notes that though black fami­

lies live throughout Orleans Parish, they are heavily concentrated

in several areas comprising something of a chain extending eastwardly
170/

and westwardly across the city. The contention is that the

167/ See note 18, supra.

168/ See Part VI (B) , infra

169/ See Part V (A) , suora.

170/ See Part I (A) , supra.

- 47 -



vertical north—south lines staking out the district boundaries es­

tablished by Plan II have the purpose of discriminating against 

black voters since they obviously carve up major black neighbor-
i

hoods which follow a horizontal east-west progression.

As additional support for its claim of improper motive, the

Government points to evidence tending to show a conscious effort

by the planners to preserve, as far as possible, the existing dis-
171/

tricts— represented, of course, by incumbent councilmen. The

Government also endeavors to bolster its argument by rereronjo to
172/

the long history of past racial discrimination in New Orleans.

The Government hastens to remind us that the City has the burden
173/

of proof or the issue, and that neither the Government nor 

the intervenors are required to come forward with an affirmative 

showing thereon.
Such, in brief summary, is the posture of the evidence directed

toward the issue of purpose of Plan II, an issue, however, which

we have no occasion to decide. New Orleans, we reiterate, bears

the burden of proving that the plan is untainted by racial discrimi-
174/

nation, not only in its objective but also in its potential effect. 

For reasons we elaborate in the remainder of this opinion, we 

find that Plan II will have the effect of abridging the right to

171/ Preservation of incumbents1 districts is not automati­
cally a disqualifying consideration. See White v. Weiser, 412 
U.S. 783, 791 (1973) ; Burns v. Richardson, supra note 145, 384 
U.S. at 89 n.16. Nonetheless, it is an element to be viewed in 
the complex of motivating forces.

172/ See Part VII(C), infra.

173/ See Part VI (B), infra.

174/ See text supra at note 123; Parts III(B), (C), IV(B),
(C), supra, and Part VI (B), infra.

48



175/
vote on account of race or color. so concluding, we need

not ponder whether the framers of the plan intended that result 
to follow.

C. Effect of the Plan

In assessing the effect of Plan II upon the black vote in
176/

councilmanic elections in New Orleans, the initial step is 

a comparison of (a) the potential of that vote when uninhibited 

by artificial barriers with (b) the potential the vote will have 

once the plan joins the family of procedures for voting at such 

elections. This starting point is dictated by considerations 

fundamental to the technique of ascertaining whether in any situ­

ation the right to vote has been abridged. The Constitution out­

laws any electoral scheme which is "used invidiously to cancel out
177/

or minimize the voting strength of racial groups," and Section

175/ Parts VI-VIII, infra.

176/ Inquiry as to the effect of the plan upon the right to 
vote properly extends to any councilmanic election--primary or 
general, regular or special. " [T]he Act gives a broad interpre­
tation to the right to vote," Allen v. State Bd. of Elections, 
supra note 102, 393 U.S. at 565-66*.

The terms "vote" or "voting" shall include 
all action necessary to make a vote effective in 
any primary, special, or general election, includ- 

. ing, but not limited to, registration, listing 
pursuant to this subchapter, or other action re­
quired by law prerequisite to voting, casting a 
ballot, and having such ballot counted properly 
and included in the appropriate totals of votes 
cast with respect to candidates for pub­
lic or party office and propositions for 
which votes are received in an election.

Voting Rights Act of 1965, § 14(c) (1), 42 U.S.C. § 19731/c) (1) 
(1970).

177/ White v. Roqestcr, supra note 145, 412 U.S. at 765.
See also Turner v. McKeithen, supra note 145, at 13-14; Zim­
mer v. McKeithen, supra note 145, 485 F.2d at 1304.

49



*

178/
5 bars approval of any scheme which will have that effect.

179/
Dilution— a species of abridgment— of the right to vote is

necessarily gauged by the difference between the value— the weight

which the vote should have and the value which in the particular
180/

circumstances it really has.

In determining the impact of a redistricting plan upon the

voting capability of a racial minority, the relevant comparison

is between the results which the minority is constitutionally

free to command and the results which the plan leaves the minority
181/

able to achieve. A substantial difference between the two,

not justified by a compelling governmental interest, is unconsti-
182/

tutionally enervating. Moreover, a plan which unjustifiably

curtails the voting power of one racial group more severely than

178/ See Parts III (B) , (C) , IV (B), (C) , supra.

179/ See Part IV (C), supra.

180/ See Part IV (C), supra. The point is well illustrated 
in many cases wherein claims of population malproportionment for 
state elections are advanced. The standard in such cases, dic­
tated by the Equal Protection Clause of the Fourteenth Amendment, 
is "one man, one vote" substantially equal in weight to the votes 
of all other electors. The ideal is perfect equality, and dilu­
tion is the degree to which one man's vote is unjustifiably as­
signed a value less than full equality. Unconstitutionality of 
the apportionment plan may result from too great a difference 
between the actual weight of particular votes and the theoretical 
quality of the ideal. Reynolds v. Sims, supra note 137, 377 U.S. 
at 568, 577-79. See Whitcomb v. Chavi.s, supra note 145, 403 U.S. 
at 161-63; Swann v. Adams, supra note 142; Kllqarlin v. Hill,
386 U.S. 120 (1967). Compare White v. Regester, supra note 145; 
Gaffney v. Cummings, supra note 142; Mahan v. Howell, supra note 
142 .

181/ See Part IV(C), supra. 

182/ See Part VI (B), infra.

50



the power of another similarly situated group is patently dis- 
183/

criminatory. The value to which the New Orleans black vote

is legally entitled is "a theoretical optimum designed to give

fair representation to both minority and majority groups in the 
184/

City"; and the test of the plan proposed for New Orleans is 

whether on the one hand it indulges or on the other hand fore­

closes the opportunity for that brand of representation.

When we apply these standards to the case at bar, we can 

conclude on3v that Plan II will necessarily dilute the right of 

black citizens to vote in councilmanic elections held thereunder 

in New Orleans. We find that the inexorable consequence of the 

plan will be a drastic reduction in the voting strength of the 

black minority in such elections. We are brought to that find­

ing irrespective of whether, for purposes of decision, we assess

black voting strength in New Orleans at the level of black voter 
"185/ 186/ 

registration or on the basis of black population, or whether

from either viewpoint we examine the plan simply in light of the
'187/

extrinsic requirement of at-large elections for two seats. As

this opinion reflects, v/e have approached the problem from each

of these three directions, and in each instance we have reached
188/

the same result.

183/ See cases cited supra note 180.

184/ Dobson v. Mayor & City Council of Baltimore City, 330 
F.Supp. 1290, 1299 (D.Md. 1971).

185/ See text supra at note 10.

186/ See text supra at notes 10-11.

187/ See text supra at note 13.

188/ See Parts VI, VII, VIII, infra.

51



VI. DILUTION OF PRESENT BLACK VOTING STRENGTH

A . The Facts * !
■

Taking the power of the black vote in New Orleans merely

for what it now is, as distinguished from what if historically
189/

unsuppressed the black vote actually should be, it may none­

theless be readily discerned that the City's redistricting plan

would diminish markedly the potency of that vote in councilmanic 

elections.

Based uoon voter registration, black voting strength is
190/

34.5% of total voting strength in New Orleans. With seven

members to be nominated or elected at councilmanic elections, the

power of the black vote is theoretically equivalent to 2.42 seats
191/

on the Council. While the measurement of group voting
192/

strength and of its dilution is a matter of comparing potentials,

the practice of bloc voting along racial lines which so fre-
193/

quently pervades elections in New Orleans would expectably 

bring the black and white voting potentials fairly close to 

reality.

Under redistricting Plan II, however, the strength of the 

black vote would be much lower than its 34.5% potential. This

189/ We consider the plan from the latter viewpoint in Part 
VII, infra.

190/ See Part V(A), supra.

191/ That is, 34.5% of the seven seats. Compare Dobson v. 
Mayor~K~City Council of Baltimore City, supra note 184, 3 30 F.Supp.
at 1298-99.

192/ See Parts IV(C), V (C), supra.

193/ See Part II (B), supra.

52



*

1

becomes apparent when the plan is viewed, as 'it must be, in the
194/

whole of the context in which it would operate. Two members

of the Council would be elected from the city at large, and each
195/

of the others from one of the five councilmanic districts.

Nominations of candidates for councilmanic office at primary elec-
196/

tions would require majority vote, and singleshot voting would 
197/

be taboo. With black voting power at 34.5% of total voting

power, black citizens in New Orleans are a distinct minority on

a citywide basis. ' Under Plan II, tney are also the minority in

four of the five councilmanic districts, wherein black registered

voters are confined to a range of 22.6% to 43.2% of the district
198/ . 199/

totals. Only in District B, where they would reach 52.. V%,

is black voting strength theoretically self-sufficient to elect a

candidate and, the thinness of the margin considered, only doubt- 
200/

fully so.

Thus analyzed, Plan II, operating conjunctively with exis­

tent features of the New Orleans scheme for the election of 

councilmen, would limit the capability of the black vote to but

194/ See Part V(C), supra.

195/ See note 13, supra, and accompanying text. 

196/ See Parts 11(B), V(A), supra.

197/ See note 13, supra, and accompanying text.

198/ See Part V (A), supra. 

199/ See Part V(A), supra.

200/ Compare Dobson v. Mavor & City Council of Baltimore 
City, supra note 184, 330 F.Supp. at 1299.

53



one of the seven seats on the Council. This contrasts sharply
201/

with the black vote's theoretical equivalent of 2.42 seats, j
and with the artificial gain of the white vote to 6 . 0 0 seats

202/
from its theoretical equivalent of 4.58 seats. These devia­

tions are the consequence of fragmentation of the black vote for 

the five district seats and its compartmentation in districts so 

constructed that it attains a majority status in only one, in co­

operation with the phenomena of at-large elections for the two 

remaining seats, and majority- and multiple-vote prerequisites 

to candidacy for any seat. It cannot be doubted that the reduc­

tion in the strength of the black vote from its natural potential

of 2.42 seats to an actual equivalent of a dubious one seat is
203/

a dilution in every sense of thie word. Nor can it be gainsaid

that Plan II would lay a much heavier hand upon New Orleans' black
204/

minority than upon its white majority.

We wish to make it plain that the question before us is not 

whether New Orleans must confer upon its black citizens every 

political advantage that a redistricting plan conceiveibly could 

offer. We agree that "a minority group is not constitutionally 

entitled to an apportionment structure designed to maximize its

201/ See text supra at note 191.

202/ That is, 65.5% of the seven seats.
203/ See Kilgarlln v. Hill, supra note 180; Swann v. 

Adams, suora note 142; Lucas v. Forty-Fourth Gen. Assembly, 
377 U.S. 713 (1964); Roman v. Sincock, 377 U.S. 695 (1964); 
Reynolds v. Sims, sunra note 137; Ellis v. Baltimore, 352 
F.2d 123 (4th Cir. 1955); Skolnick v. Chicago, 415 F.2d 1291 
(7th Cir. 1969), cert, denied, 397 U.S. 954 (1970).

204/ See, e.g., notes 26 and 33, supra.

54



205/ !
political advantage," nor "to one or more 'safe or majority

districts simply because an apportionment scheme could be drawn
206/

to reach this result." But just as surely, neither may [the

group] be enveloped in a structure which will necessarily mini—
207/

mize its potential for meaningful access to the political process."

The Government and the intervenors, as they should, press vigor­

ously on behalf of black voters for all that is their due, but 

they ask for no more.

B . The Justifications Proffered

The City urges a variety of considerations as legitimate 

local interests justifying the scheme incorporated into Plan II 

despite the damage it will inflict on the black vote. The justi­

fications the City proffers are subsumed in a group of guidelines 

within which the research staff undertook the development of the

several redistricting concepts whicn from time to time were sub-
208/

mitted to the City Council. For purposes of restatement, we

adopt the City's listing, which accurately summarizes the evidence 
209/

on that score. The redistricting should be accomplished with­

out diluting the voting rights of any minority group within the

city. The object of the redistricting should be achievement, as
*

205/ Turner v. McKeithen, supra note 145, at 13.

206/ Id. at 13 n.24. See also Whitcomb v. Chavis, suora 
note 145, 403 U.S. at 156-60; Howard v. Adams County Bd. of Super­
visors , supra note 145, 453 F.2d at 458.

207/ Turner v. McKeithen, supra note 145, at 13-14. See also 
text infra at Parts VII and VIII.

208/ See Parts 11(A), (C), supra.

209/ See Part 11(A), supra.

55



I1

nearly as possible, of a maunematical balance of population within 

each of the five councilmanic districts in order to insure com­

pliance with the "one man, one vote" edict. Whenever possible, 

existing ward and precinct boundaries should be left undisturbed 

by district boundaries, and historic and traditional district 

boundaries should be observed in an effort to preserve continuity 

within the electorate. Natural boundaries created by the Missis­

sippi River and Lake Pontchartrain, and the economic and social 

effect of the river and lake on the city, should be considered, as 

well as man-made boundaries existing in the form of important 

streets and canals, a majority of which run in a north-south direc1- 

tion. Prospective councilraafiic districts should be contiguous and 

compact.

Since the redistricting activity in New Orleans sought a

nearly equal population balance within the councilmanic districts,

the local concerns reflected by the guidelines paralleled factors

which have endured exposure in state legislative apportionment 
210/

cases. While population is the controlling criterion for
211/

judgment in controversies of that type, mathematical exactness

210/ Gaffnev v. Cummings, supra note 142, 412 U.S. at 752; 
Burns v. Richardson, supra note 145, 384 U.S. at 89 n.16. See'-
White v. Regester, supra note 145, 415 U.S. at 764-65 n.8 ;
Mahan v. Howell, supra note 142; and compare White v. Ueiser, 
supra note 171,. 412 U.S. at 7,91 (minimize contests between in­
cumbents) ; Abate v. Mundt, supra note 142, 403 U.S. at 185...
(maintain integrity of political subdivision lines); Whitcomb 
v. Chavis, supra note 145, 403 U.S. at 162 n.42 (construct 
contiguous-compact districts).

211/ Reynolds v. Sims, supra note 137, 377 U.S. at 567.

56



212/
in redistricting is an impractical goal and small departures

from a mathematically precise "one man, one vote" standard may 
213/

be indulged. "So long as the divergences from a strict popu-I
lation standard are based on legitimate considerations incident

to the effectuation of a rational state policy," the Supreme Court

has said, "some deviations from the equal-population principle are
214/

constitutionally permissible." But the validity of the appor­

tionment depends upon "faithful adherence to a plan of population—
215/

based representation," and the departures allowable are "such 

minor deviations only as may occur .\n recognizing certain factors
216/

which are free from any taint of arbitrariness or discrimination."

' We do not underestimate the complexity of the difficulty of 

redistricting a large metropolitan area, nor do we denigrate the 

recognition in a reapportionment plan of legitimate local interests 

within the narrow range legally allowed. The evidence in this 

case, however, tends to weaken the group of interests which the 

City advances. The guidelines utilized by the staff were never 

deemed an- absolute code, but rather a flexible mold enabling inno­

vation and change. Examples of variations which the guidelines
217/

indulged are the various concepts submitted by the staff, the

212/ Roman v. Sincock, suora note 203, 377 U.S. at 710; 
Reynolds v. S1ms, supra note 137, 377 U.S. at 577.

213/ Roman v. Si ncock, supra note 203, 377 U.S. at 710; 
Reynolds v. Sims, supra note 137, 377 U.S. at 578-81.

214/ Revnolds v.» Sims, supra note 137, 377 U.S. at 579.

215/ Roman v. Sincock, supra note 203, 377 U.S. at 710.

216/ Id.; Revnolds v. Sims, supra note 137, 377 U.S. at 579

217/ See Parts II(A), (C) , supra.

57



*

218/
contrasting treatments of Algiers, the occasional splitting of

219/
wards and precincts, and the free interchange of geographical 

220/ / 
phenomena. The evidence indicates that the Council's second

|plan--the plan now under investigation--may have been as much the 

handiwork of councilmen as of the staff, with resultant uncertainty 

as to the extent that allegiance to the staff's guidelines was 

maintained. The evidence also discloses wide differences of 

opinion among the councilmen as to the relative priority and

218/ Compare Part 11(A) with Fa^t 11(C), sunrr .

219/ in Louisiana, the division of parishes into wards 
served to establish goegraphical units for the election of 
police juries—-governing bodies of the parishes— school boards-' 
and some local officers. In 1912, Orleans Parish had a com­
mission form of local government, which functioned more as ai. 
administrative than a legislative body, and its territory, the 
boundaries of which are coterminous with the present City of 
New Orleans, was divided into wards principally for purposes 
of state and federal elections. Precinct lines were drawn as 
subdivisions within the wards for locating neighborhood voting 
booths and establishing voter group entities.

The adoption in 1954 of a home rule charter and the 
mayor—council form of government for. New Orleans rendered ob£ olete 
the original function of the ward lines as regards municipal elec­
tions. Under the 1954 charter, the geographic boundaries for 
such elections are the district lines and not the ward lines.

Testimony from both councilmen and staff members 
stressed their concern for observing ward and precinct lines as 
traditional, historic political boundaries. It is clear, how­
ever, that the ward boundaries are political anachronisms inso­
far as councilmanic elections are concerned, and survive merely 
as convenient administrative designations for groups of pre­
cincts. And, in the formulation of Plan I, the Council's ac­
tion in splitting the Fifteenth Ward--Algiers— three ways and 
assigning the pieces to three different districts undermined any 
assumed importance of keeping ward boundaries intact. Moreover, 
as the parties stipulated at trial, it is mathematically impossible 
to combine the existing wards in New Orleans in such a way as to 
achieve an equal population dispersion in five councilmanic dis­
tricts .

220/ See Part 11(C), supra.

58



weight which the factors incorporated into the guidelines should

be assigned. And, quite importantly, in some respects some of
221/

the factors may legally be open to question.

We need not engage in a detailed discussion along these 

lines, however, because in any event the City's attempt at 

justification falls far short of the mark. " [A]11 legal restric­

tions which curtail the civil rights of a single racial group are
222/

immediately suspect," we are reminded, and "courts must sub-
223/

ject them to the most rigid scrutiny." Beyond that, the

right to vote is "a fundamental political right, . . .preservative
224/

of all rights," and "before that right can be restricted, the

purpose of the restriction and the assertedly overriding interests
225/

served by it must meet close constitutional scrutiny."

Dilutions of the right to vote which are to be tested by

the equal protection standard— which involves a balancing of corn-
226/

peting governmental and private interests— may withstand analysis 

upon a firm showing that they are rationally related to a permis-

221/ See Lucas v. Forty-Fourth Gen. Assembly, supra note 203
377 U.S. at 738 (history, heterogeneous characteristics, 
geographical and topographic considerations); Maryland Comm. _for 
Fair Representation v. Tawes, 377 U.S. 656, 675 (1964) (history,
tradition); Reynolds v. Sims, supra note 137, 377 U.S. at 578-79
(history) . •

222/ Korematsu v. United States, 323 U.S. 214, 216 (1944).

223/ Id.
224/ Dunn v. Blumsteln, 405 U.S. 330, 336 (1972), quoting

Reynolds v. Sims, supra note 137, 377 U.S. at 562.

225/ Evans v. Cornman, 398 U.S. 419, 422 (1970). See also
Dunn v. Blumstein, supra note 224, 405 U.S. at 336; Bullock v. 
Carter, 405 U.S. 134, 143 (1972) .

226/ See Gaffney v. Cummings, supra note 142, 412 U.S. at 
748-49; White v. Regester, supra note 145, 412 U.S. at 761-62; 
Abate v. Mundt, supra note 142, 403 U.S. at 185.

59



i

1

ii

sible governmental interest. But, the Supreme Court admonishes,

"a more exacting test is required for any [governmental action]
228/

that ’place[s] a condition on the exercise of the right to vote.'" 

In pursuing even the most substantial of its interests, govern­

ment "cannot choose means which unnecessarily burden or restrict
229/

constitutionally protected activity." So, "if a challenged

statute grants the right to vote to some citizens and denies the

franchise to others, 'the Court must determine whether the exclu-
230/

sions are necessary to promote a compelling state interest.'"

"And if there are other, reasonable ways to achieve [its] goals

with a lesser burden on constitutionally protected activity, a
231/

State may m t  choose the way of greater interference"; rather,
232/

"[i]f it acts at all, it must choose 'less drastic means'."

We have no doubt whatever that in light of the strictures of
233/

the Fifteenth Amendment, the standard which justifications of 

denials of voting rights must meet applies equally to dilutions

227/ E .g., Reynolds v. Sims, supra note 137, 377 U.S. at 568.

228/ Dunn v. Blumstein, supra note 224, 405 U.S. at 337, 
quoting Builock v. Carter, supra note 225, 405 U.S. at 143.

229/ Dunn v. Blumstein, supra note 224, 405 U.S. at 343.

230/ Id. at 337, quoting Kramer v. Union Free School Dist.,
395 U.S. 621, 627 (1969). See also Cipriano v. City of Houma, 395 
U.S. 701, 704 (1969); City of Phoenix v. Kolodziejski, 399 U.S. 204, 
205, 209 (1970).

231/ Dunn v. Blumstein, supra note 224, 405 U.S. at 343, quot­
ing Shelton v. Tucker, 364 U.S. 479, 488 (1960) .

232/ Id.

233/ See Parts III(A), IV(C), supra.

60



of those rights. Nor do we doubt that Section 5 of the Voting

Rights Act accommodates any less than the Fifteenth Amendment de- 
234/

mands.

The question, then, is whether the City has satisfied the
'\ 'high standard of justification. We think it clear that the ques­

tion must be answered in the negative. As the Supreme Court has 

recently stated, "[i]t is well established that in a declaratory

judgment action under § 5, the plaintiff State has the burden of 
235/

proof." The Court explained:

The very effect of § 5 was to shift the burden 
of proof with respec: to racial discrimination 
in voting. Rather t.ian requiring affected par­
ties to bring suit tD challenge every changed 
voting practice, States subject to § 5 were 
required to obtain prior clearance before pro­
posed changes Could be put into effect. The 
burden of proof is cn "the area seeking re­
lief. "236/

Even were we to assume that the justifications the City presses 

could ever override the right cf its black citizens to cast meaning­

ful votes— a question we in no wise undertake to now decide— the

burden in the case at bar was at least to demonstrate that nothing
237/

but the redistricting proposed by Plan II was feasible. The

City has not made that sort of demonstration; indeed, it was con-

234/ See Parts III, IV, supra.

235/ Georgia v. United States, supra note 119, 411 U.S. at 
538. See also City of Petersburg v. United States, supra note 5, 
354 F.Supp. at 1027.

236/ Georgia v. United States, supra note 119, 411 U.S. at 
538 n.9, quoting South Carolina v. Katzenbach, supra note 8 6 ,
383 U.S. at 335.

237/ See text supra at notes 235-36.

61



ceded at trial that neither that plan nor any of its variations 

was the City's sole available alternative.

Moreover, it is clear enough to us that the interests which 

the City asserts here cannot justify a black voting-strength dilu-
r - -

tion of the magnitude which the plan forebodes. The reduction here,

we repeat, is from 2.42 of seven seats at least to a single seat,
238/

and perhaps even to no seat at all. That is a curtailment

of the black vote to considerably less than half of its poten­

tial, if indeed not a complete negation of its potential. The 

Equal Protection Clause tolerates some limited accommodation of

governmental interests at the expense of very minor dilution of
239/

the vote, but certainly nothing on the scale indicated here.

Surely the Fifteenth Amendment, which flatly enjoins all govern­

ments from denying or abridging the right to vote on account of 
240/

race cr color, discountenances the abridgment evident in this 

case.

VII. DILUTION OF POTENTIAL BLACK VOTING STRENGTH

A. The Question

Wt turn now to analyze New Orleans' redistricting Plan II

from a somewhat different viewpont. The inquiry here will be

whether the plan will operate "invidously to cancel out or mini-
241/

mize the voting strength of [the] racial group[]" which the black

238/ See Part VI (A), supra.

239/ Compare cases cited at note 226, supra.

240/ See Parts III (A), IV(C), supra.

241/ White v. Regester, supra note 145, 412 U.S. at 765. 
See also Part IV(C), supra.

62



citizen;; of the city comprise. We find that the plan will inaeed 

have that effect.
In the previous section of this opinion, we saw that the pro-

) . . .posed redistricting, in combination with other forces inhering in

the processes by which councilmen are nominated and elected in New

Orleans, will cut the strength of the city's black vote down to a

point far below its present 34.5% potential as reflected by black
242/

voter registration. Black population, however, is 45.0% of the
243/

city's total population, and the theoretical entitlement of black 

population of that size on a seven-member elected body is 3.15 seats. 

We have seen, however, that if the redistricting plan before us 

takes its place in the electorial scheme, it will indulge the 

black vote a theoretical equivalent of but one councilmanic seat,

and in a practical sense by only a narrow margin at that. Moreover,

even if black voting power, in terms of voter registration, were

direc-ly proportional to black population, the two seats to be

filled by the two districts in which black population preponderates
247/

— albeit in one very narrowly— are less than two-thirds of black

242/ See Part VI(A), supra.

243/ See Part I(A), supra.

244/ That is, 45% of the seven seats.

245/ See Part VI (A), supra.
246/ Districts B and E. See text supra at Part V(A).

247/ The preponderance of black population in District 
E is only 0.6%. See Part V (A), supra. Compare Dobson v. Mayor 
"and rAtv Council of Baltimore City, supra .note 184, 330 F.Supp.
It” 1299.

63



entitlement. Most importantly, any consideration, from the

viewpoint of black population, of the effect of Plan II upon the

black right to vote inevitably questions why the number of black

registered voters lags so far behindi the number of black inhabi-
249/

tants of New Orleans.
Equality in weight of the vote, as well as in the right to cast

a vote, is the constitutional due of black and white citizens alike.

" [population is the proper measure of equality in apportionment,

and inequality visited because of race or color is an abridgement

of the right to vote within the condemnation of the Fifteenth Amend- 
2 52/ment.’ The question thus becomes whether, from the standpoint

of black population rather than black voter registration, the black 

vote will be impermissibly impaired by. Plan II. Restated somewhat, 

the question is whether the plan will dilute the voting power of 

the black community in terms of its full potential lather than its 

current level. In a very real sense, the dilution question sub­

sumes the core question of why the rate of white voter registration
253/

is nearly double the rate of black registration. For answers

248/ That is, 2.00 of 3.15 seats. See text supra at note
244.

249/ Of 267,308 black residents of New Orleans, 83,588, or 
34.5%*] are registered voters. See text supra at Part II (A) . On 
the other hand, 158,828, or 65.5% of 326,163 white residents 
of New Orleans are registered.

250/ See Part IV(C), supra.
2 5 1 /  Z i m m e r  v. M c K e i t h e n , s u p r a  note 145, 485 F.2d at 1303. 

252/ See P a r t s  III(A), IV (C), supra.

253/ See note 249, supra.

- 64 -



*

to these questions, there is a sizeable body of precedent which we
2 54/

may readily consult.

B . The Legal Doctrine

Dilution of the vote of a racial minority is not shown by

"a mere disparity between the number of minority residents and
255 /

the number of minority representatives," or by the fact "that

the racial group allegedly discriminated against has not had legi
256/

slative seats in proportion to its voting potential." A claim

of abridgment of the minority vote— from the viewpoint of the 

minority's full potential in the political arena is meritorious 

only when it appears that 'che political processes leading to 

nomination and election were not equally open to participation by
V

the group in question— that jts members had less opportunity than

did other residents in the district to participate in the political
257/

processes and to elect legislators of their choice. So,

254/ To resolve these questions, we pursue the inquiries 
and apply the principles approved in cases, hereinafter cited, 
involving claims that multimember electoral districts will unconsti 
tutionally dilute the voting strength of a racial or ethni g P- 
Those decisions furnish precedents of the highest quality for 
cases like ours. The issues are identical-whether an electoral 
prerequisite or procedure improperly waters down the group s 
riaht'to vote— and the investigation called for is essentially 
the same. The legal rules are no less commonly applicable simply 
because the problem is generated by a multimember dis ric 1 
the one situation and by a redistricting plan in the other, 
an earlier decision of this court similarly a P P l Y ^  
principles analogously, see city of Petersburg, v. United Stat__,
supra note 5, 354 F.Supp. at 1028.

2 5 5 /  Zimmer v. McKeithen, supra note 145, 485 F.2d at 1305.

256/ White v. Regcster, supra note 145, 412 U.S. at 765 6 6 .

257/ Id. at 766.

65



while "population is the proper measure of equality in apportion­

ment, .. .access to the political process and not population [is]
i 258/

the barometer of dilution of minority voting strength."

The investigation of this branch of the litigation calls
259/

for careful examination of a variety of circumstances. Our

decision must rest upon a delicate balance of all relevant fac- 
260/

tors. Giving due attention and weight to those factors, we

find that the plan for the redistricting of New Orleans will in­

dubitably have the effect of minimizing the voting strength of 

black citizens in councilmanic elections.

C . Application of Doctrine

We look first to the lengthy "history of official racial dis­

crimination in [Louisiana], which at times tcuched the right of

Negroes to register and vote and to participate in the democratic 
261/

processes." The pertinent historical events demonstrate not

on?y "that blacks ha[ve] suffered a history of official racial

discrimination which touched their right to participate in demo-
262/

cratic processes," but also "that the existence of past dis­

crimination in general precludes the effective participation in
263/

the elective system."

258/ Zimmer v. McKeithen, supra note 145, 485 F.2d at 1303. 

259/ See Part II (B), supra.

260/ See text supra at notes 226-34.

261/ White v. Regester, supra note 145, 412 U.S. at 766.

262/ Zimmer v. McKeithen, supra note 145, 485 F.2d at 1305. 
See also id. at 1306; White v. Regester, supra note 145, 412 U.S. 
at 766; Turner v. McKeithen, supra note 145, at 6 , 7-9.

263/ Zimmer v. McKeithen, supra note 145, 485 F.2d at 1305.

66



For generations, black inhabitants of New Orleans were segre-
264/ 265/

gated in public schools, public assemblies, public recrea-
266/ 267/

tional facilities, / public transportation, and even in the 
268/

city hall. For a long time they were victimized by
269/

governmentally-sanctioned residential segregation, and still
270/

longer by discrimination in public employment and exclusion

264/ See B u s h  v. Orleans P a r i s h  S c h o o l  Bd., 138 F.Supp.
336 (E.D.La.), dissolving t h r e e - j u d g e  c o u r t ; 138 F.Supp. 337 (E.D.
La. 1956), aff'd, 242 F.2d 156 (5th Cir.), cert, denied, 354 U.3.
921 (1957); 163 F.Supp. 701 (E.D.La.), aff'd, 252 F.2d 253 (5th 
Cir.), cert, denied, 356 U.S. 969 (1958), 268 F.2d 78 (5th Cir.
1959); 187 F.Supp. 42 (E.D.La. 1960); a f f 'd, 365 U.S. 569 (1961); 188 
F.Supp. 916 (E.D.La. 1960), aff1d, 365 U.S. 569 (1961); 190 F.Supp. 
861 (E.D.La. 1960), aff'd, 365 U.S. 569 (1961); 191 B.Supp. 871 
(E.D.La.), aff'd, 367 U.S. 908 (1961); 194 F.Supp. 182 (E.D.La.),
aff'd, 367 U.S. 907 (1961); 204 F.Supp. 568 (E.D.La. 1962); new
trial denied, 205 F.Supp. 893 (E.D.La.), modified, 3C8 F.2d 491
(5th Cir. 1962).

265/ See Bynum v. Schiro, 219 F.Supp. 204 (E.D.La. 1963).

266/ See Fazzio Real Estate Co. v. Adams, 396 F.2d 146 
.(5th Cir. .1968) ; Robertson v. Johnston,. 376 F.2d 43 (5th Cir. 1.967) ; 
New Orleans Citv Park Improvement Ass'n v. DeSeige, 252 F.2d 122 
(5th Cir. 1958); Bursthe v. City of New Orleans, 219 F.Supp. 788 
(E.D.La. 1963); McCain v. Davis, 217 F.Supp. 661 (E.D.La. 1963).

267/ See Morrison v . Davis, 252 F.2d 102 (5th Cir.), cert. 
denied, 356 U.S. 968 (1958). See also United States v. Lassiter,
203 F.Supp. 20 (W.D.La.), aff'd, 371 U.S. 10 (1962).

268/ This was established by uncontradicted evidence at v
trial.

269/ See Tyler v. Harmon, 158 La. 439, 104 So. 200,
160 La. 943, 107 So. 704 (1925), rev'd, 273 U.S. 6 68 (1927).; Land 
Dev. Co. v. City of New Orleans, 13 F.2d 898 (E.D.La.), revj_d,
1 7 jp~2d 1016 (5th Cir. 1926) . See also Modern Amusements, Inc, 
v. New Orleans Pub. Serv. , Inc., 183 La.. .898, 165 So. 137, 140 
(1935); Q u e e n s b o r o u g h  Land Co. v. Cazeaux, 136 La. 724, 67 So.
641, L.R.A. 1916B 1201 (1915).

270/ During the tenure of the present administration the 
number of black municipal employees has increased from 16% .in 
May, 1967, to 39% as of June, 1973. Testimony presented by the 
City identified 10-15 black persons who hold key supervisory 
positions with the local government. Occupants of the three

67



271/
from juries. We cannot remain insensitive to the cultural and

J
economic realities which are the heritage of decades of abominable

272/
race relations in New Orleans. Even more directly related to

minority suffrage in New Orleans is Louisiana's traditional and

"successful policy of denying Negro citizens the right to vote
273/ 274/

because of thei.c race." The grandfather clause, the liter-

top positions in each of the 1 0 - 1 2 major city departments are 
appointed by the Mayor. The remaining supervisory jobs are civil 
service positions which are filled by selections from the top 
three successful candidates cn the star.card Civil Service exami­
nation.

Yet, looking at tie city's payroll as a whole three 
things are evident. First, 36% representation in city employ­
ment of 4 5% of the populatior. can indicate only the severity of 
pre-1967 discrimination against black workers. Second, the num­
ber of black employees is stall relatively small in comparison 
with the total municipal worl: force. Third, the pattern of em­
ployment reflects that blacks are, with limited exceptions, con­
centrated in low salaried maintenance and clerical positions.

271/ Eubanks v. Louisiana, 356 U.S. 584 (1968); Goins v. 
Allgood, 391 F.2d 692 (5th Cir. 1968); Lahat v. Bennett, 365 F.2d 
698 (5th Cir. 1966).

272/ Compare White v. Iegester, supra note 145, 412 U.S. 
at 768-70.

273/ Louisiana v. Unite! States, supra note 93, 380 
U.S. at 147.

274/ See icL at 148. See also note 89, supra, and accom­
panying text. . .

68



275/
acy standard, 276/

the white primary and the "Segregation Comm 277/

2_75/ An applicant for registration in Louisiana must "be 
able to read and write in the English language, or his mother 
tongue, La. Const, art. VIII, § 1(c) (1961), and must "demon­
strate his ability to do so when he applies for registration...."

* The demonstration thus summoned entails each of the two 
exercises following. The first is "the reading and the writing 
from dictation given by the registrar, or an interpreter duly 
sworn, [of] any portion of the preamble of the Constitution of 
the United States of America...." Id. The second is the "making, 
under oath,...[of a] written application for registration, in the 
English language, or his mother tongue.... 11 Id. The application 
must "contain the essential facts necessary to show that he is en­
titled to register and vote," id., and must "be entirely written, 
dated and signed by him, except that he may date, fill out and 
sign, a prescribed form of application. Id. In either case, the 
application must be made "in the presence of the registration 
officer or hie deputy, without assistance or supervision from any 
person or any memorandum whatever, other than the form of appli- 
cat Lon.. . . " Id.

The application form, decreed by statute, La. Rev. Stats. 
Ann. art. 18 § 32 (1966 supp.), is comprehensive; understanding 
and completing it obviously demands a substantial degree of liter­
acy; and false or illegal registration is punishable by fine and 
imprisonment. Id., art. 18, §§ 32, 222 (1966 supp.). An ap­
plicant unable to make application in English may do so in his 
mother tongue from the dictation of an interpreter, La. Const, 
art. VIII, § 1(c) (1961), and an applicant unable to write because
of physical disability may dictate his application to the regis­
tration officer, id., but all illiterate applicants apparently are 
barred from registration. See United States v. Louisiana, 225 
F.Supp. 353, 357 n . 6 (E.D.La. 1963), aff'd, 380 U.S. 145 (1965).

In addition to those literacy exactions, Louisiana also 
reqi.ires that an applicant for registration "be able to understand 
and give a reasonable interpretation of any section of [the United 
States and Louisiana] Constitution [s] when read to him by the
registrar---" La. Const, art. VIII, § 1(d) (1961). It seems
that as late as 1965 the interpretation test had not been employed 
in New Orleans, United States v. Louisiana, supra, 225 F.Supp. at 
381, and the record is silent as to whether since then it has 
been used there. We note also that applicants for registration 
must "understand the duties and obligations of citizenship under 
a republican form of government," _id. art. VIII §§ 1(c), (d), al­
though again the role of the requirement in New Orleans voter 
registration is unclear.

176/ See Louisiana v. United States, supra note 93, 380 U.S. 
at 148-49. See also note 90, supra, and accompanying text.

277/ See id. at 149.



278/
combined inter sese and with other techniques to confine black

279/
political activity in Louisiana to a self-distressing level.

280/
We realize, of course, that judicial decisions and the 

281/
Voting Rights Act have banished these obstacles to political

functioning, and that race relations in the city have taken a turn
282/

for'the better in recent years. But neither of these wholesome

developments negates the present significance of past racial dir - 

crimination. The debilitating effects of the old impediments per­

sist and still hamper the black group's ability to function effec-
283/

tively in political processes. The continuing handicap is

mirrored in part by the fact that although black citizens in New

Orleans approach a numerical majority, they remain a decided
284/

minority of registered voters. As the Supreme Couct has said,

"[t]ests and devices [for voter registration] are relevant to voting 

discrimination because of their long history as a tool for perpe­

trating the evil; a low voting rate is pertinent for the obvious

278/ See id., at 149-50; United States v. Louis '.ana, supra 
note 275, 225 F.Supp. at 363-81.

279/ See Part 11(B), supra.

280/ See cases cited supra notes 89-93.

281/ See, for example, note 108, supra.

282/ See, for example, notes 65, 270, supra..

283/ Turner v. McKeithen, supra note 145, at 6 ; Zimmer v. 
McKeithen, sunra note 145, 485 F.2d at 1306. See also Gaston 
County v. United States, supra note 111, 395 U.S. at 296-97.

284/ Compare Zimmer v. McKeithen, supra note 145, 485 F.2d 
at 1306.

70



reason that widespread disenfranchisement must inevitably affect
285/

the number of actual voters."c
In assessing current afflictions of the plague of racial dis­

crimination during yesteryears, a factor of undeniable importance

is "the potential effect of unequal educational opportunities up-
286/

on exercise of the franchise." Our concern in this regard is
287/

heightened by Louisiana's long adherence to a literacy test The

relationship between educational inequality and literacy prerequi-
288/

sites to voting is well understood, and empirical data cn black

and white voter registration when the test held sway in New Orleans
289/»unmasks a discrepancy too glaring to ignore. While the door has 

always been open, the City has come forward nothing to "demon­

strate that although its schools suffered from the inequality in-
290/

herent in any segregated system, the dual educational system

285/ South Carolina v. Katzenbach, supra note 8 6, 383 U.S. 
at 330. See to the same effect, Gaston County v. United States, 
supra note 111, 395 U.S. at 292.

286/ Gaston County v. United States, supra note 111, 395 U.S. 
at 289. The literacy requirement in that case was that the ap­
plicant for registration "be able to read and write any section 
of the [North Carolina] Constitution in the English language."
Id. at 287 n .3. The Louisiana literacy standard, see note 275, 
supra, is surely no lower, and seemingly is even more demandxng.

287/ See note 275, supra.

288/ See S.Rep. No. 162, 89th Cong., 1st Sess. 16 (1965);
H.R. Rep. No. 439, 89th Cong., 1st Sess. 15 (1965); Gaston County.
v. United States, supra note 111, 395 U.S. at 296-97.

289/ pre-Act registration of white and black inhabitants 
of New Orleans of voting age in 1960 was 63.0% and 28.4% respec­
tively. U.S. Comm'n on Civil Rights, Political Participation, 
240-41 (1968). Post-Act registration of the two groups rose 
less than 8 points to 67.7% for white citizens but nearly 20 
points to 48.0% for black citizens as early as October, 1967. Id.

290/ "Separate educational facilities are inherently un­
equal." Brown v. Board of Educ., 347 U.S. 483, 495 (1964).

71



4
\

had no appreciable discriminatory effect on the ability of per­
sons of voting age to meet a literacy requirement." In this
case, the translation persuaded by the registration data is that 
the inferiority of black public schools has interacted with the 
literacy standard to exact a dreadful toll of would-be black regi­
strants, to which the city's subpar black-voter strength stands

even today as a raomument.
Another factor denoting a minority's unequal access to politi­

cal processes is its consistent inability to elect candidates to 
9 92/officer" Never has a black candidate won election to the New 

Orleans City Council. The evidence establishes that four^black 
candi lates have recently been elected to other offices, but we 
do not regard their victories as truly significant to the problem 
under discussion. One was unopposed; the others ran^on tickets 
stror.gly backed by well known white personalities. Further­
more, when the history of black candidacy in New Orleans is view^ 5/ 
as a whole, these triumphs represent no more than nominal success.

We cannot assign to them much weight in the equation.

* 91/ Gaston County v. United States, supra note 111, 395 
U.S. at 291.

292/ White v. Regester, supra note 145, 412 U.S. at 766-67; 
TurneTT. M ^ TThen, supra note 145, at 9; Zimmer v. McKeithen, 
supra note 145, 485 F.2d at 1305-06.

293/ See note 69, supra, and accompanying text.

294/ See notes 66-69, supra.
295/ Moreover, like the Fifth Circuit,

we cannot endorse the view that 
the success of black candidates at 
the polls necessarily forecioses

72



Still another factor indicating unequal access is "the un

responsiveness of legislators to [the] particularized interests"
296/

of the minority. We have chronicled instances of indifference

of city officials to the desires and needs of the black citizens
297/

they purported to represent. We may add that "[t]he parish s

long history of segregation and voter registration discrimination 

certainly was a relevant evidentiary factor on the likely degree

of concern by local officials for the interests of the black corn-
298/ . „

munity." We do not say that all New Orleans leg.slaters have

the possibility of dilution of the 
black vote. Such success might, on 
occasion, be attributable to the 
work of politicians, who, apprehend­
ing that the support of a black can­
didate would be politically expedient, 
campaigned to insure his election.
Or such success might be attributab.-e 
to political support motivated by dif­
ferent considerations— namely that 
election of a black candidate will 
thwart successful challenges to elec­
toral schemes on dilution grounds.
In either situation, a candidate could 
be elected despite the relative politi­
cal backwardness of black residents in 
the electoral district. Were we to hold 
that a minority candidate's success at 
the polls is conclusive proof of a rrinor- 
ity group's access to the political process, 
we would merely be inviting attempts to 
circumvent the Constitution. This w*_ 
choose not to do. Instead, we shall^con­
tinue to require an independent considera­
tion of the record.

Zimmer v. McKeithen, supra note 145, 485 F.2d at 1307.

296/ Id. at 1305. See also id. at 1306; White v. Register, 
supra~~notc 145, 412 U.S. at 766-69; Turner v. McKeithpn, supra
note 145, at 6 , 10.

297/ See text supra at note 71.

298/ Turner v. McKeithen, supra note 145, at 10 n.18.

73



i

been totally unresponsive; the evidence suggests sympathetic re­
sponses to some pleas of black constituents, but relatively speak­

ing they were few. And we agree with the Fifth Circuit that " M e r e  

we to hold that the absence of a claim of representation unrespon­

sive to a minority's needs foreclosed constitutional attack, the

voting strength of minorities could be freely diluted without fear
2 99/

of constitutional restraint.
Lastly, in appraising black opportunity to engage in the city's 

political processes, we remain advertent to two structural features 

of the electoral scheme which exert a devitalizing effect. One 

is the requirement of a majority vote^as^a prerequisite to nomina­

tion as a candidate for public office. a precondition sharply 

criticized for its propensity for submerging racial and political 

minorities ~  The other is the legislative ban on singleshot 

voting— '"which forecloses concentration of the minority vote 

on a single aspirant in primary elections. These features of the 

electoral system have "enhanced the opportunity for racial discri- 

mination," and clearly they continue to do so today.

299/ Zimmer v. McKeithen, surra note 145, 48!5 F 2d at 1306- 
07 n.267 See also Turner v. McKeithen, supra note 145, at 10.

onn/ see Part I (A) , supra. Compare White v. Reqester, _s.up.ra 
TTT / n  tt q it 766- Turner v. McKeithen, supra note 145, 

af? ll': 485 F.2d at 1305.
1306.

301/ See Zimmer v. McKeithen, supra note 145, 485 F.2d at 
1306;~Graves v. Barnes, 343 F.Supp. 704, 725 (W.D.Tex 19 K

HMtoV" M * .  SHE|| -be 1 ; ^
Bd. Of Election Cornm’rs, 32/ i.bupp.

302/ See note 164, supra, and Part I(A), supra.

3 0 3/ white v. Regester, supra note 145, 412 U.S. at 766.

74



}/
New Orleans has offered no justification for these conse­

quences apart from the considerations we have already discussed
304/

and found lacking. We have pointed out that the City had

the 3:>urden of demonstrating some compelling governmental interest
305/

incapable of fulfillment through any available alternative, and
306/

that the City has not carried this burden. It follows that no

more in its impact upon potential than upon present black voting 
307/

strength can the proposed redistricting be approved.

VIII. THE AT-LARGE ELECTIONS 

A. The At-Large Problem

Twice already, in particular contexts, we have attributed

significance to the circumstance that New Orleans’ proposed re-

districting Plan II would leave two seats on the City Council to
308/

be filled by at-large elections, as under the city's electoral
309/

scheme they now are. No treatment of that facet of the city's

electoral system could ignore the fact that with respect to the

at-large seats, New Orleans is like any other multimember elective 
310/

uni/ and is susceptible to visitation by a special kind of 
304/ See Part VI (B), supra.

305/ See Part VI(B), supra.

306/ See Part VI (B), supra. 

307/ See Part VI (B), supra.

308/ See text infra at notes 312-14.

309/ New Orleans, La., Charter art. Ill, § 3-102 (1954).

310/ "[M]ulti-member districts— ...in logic of analysis are
merely one form of at-large voting." Turner v. McKeithen, supra 
note 145, at 7 n.8 , quoting Zimmer v. McKeithen, supra note 145, 
485 F.2d at 1315 (Clark, J,f dissenting). See also Zimmer v. 
McKeithen, supra note 145, 485 F.2d at 1304.

•~t r*



311/
abridgment problem which has arisen in other multimember units.

The question now confronting us is whether, apart from the vices 

already discussed, Plan II suffers from that additional difficulty.

In considering whether the plan, in constructing five single­

member districts with decided black-voter minorities in four, we 

counted the two at-large seats on the City Council for purposes

of ascertaining whether and to what extent the present strength
312/

of the city's black vote for councilmen would be weakened. And

in determining whether the plan would diminish the black-vote

potential endowed by a large black population, we similarly in-
313/

eluded the at-large seats in the computation. In each instance

we accepted the obvious fact that on an at-large basis the black 

voters of New Orleans were a minority, and for purposes of measur­

ing dilution we took the two at-large seats for what they are—
314/

the: expectancy of the white vote. This treatment of the at-

large seats contributed to our conclusions that, examined from 

the standpoint of either its current or its potential level, black 

voting power for city councilmen would be disparaged by the redis- 

trreting projected.

The problem we now address is different. It is whether, 

aside from these consequences, the redistricting plan and at-large 

voting combine in any other way to enfeeble the black vote in

311/ See note 254, supra.

312/ See Part VI(A), supra.
313/ See Part VII(C), supra.
514/ See Parts VI(A), VII(C)

76



»« *

counci]manic elections. The issue is raised by the intervenors, 

who insist that the combination has further effects.

B. Jurisdiction to Consider

We are met at the threshold by the City1s charge that that

issue is not properly in this case. As they state, the at-large

election has been the vehicle for filling two councilraanic seats 
315/

since 1954, and the redistricting plan would provide nothing

different in that regard.. Since Section 5 only intercepts changes
316/

in voting procedures occurring since November 1, 1964, and

since this court's concern is statutorily limited to an applica-
317/

tion of Section 5, the City argues that any additional at-
318/

large election problem is beyond the ambit of Section 5 and, 

by the same token, has no place in this litigation.

We think, however, that the issue tendered by the intervenors 

is properly and unavoidably before us. The impact of New Orleans' 

redistricting plan is not to be determined in a vacuum, nor on 
the basis of just some of the facts, but in the context of all 

circumstances touching the right to vote in councilmanic elec­

tions. The plan, if approved, would become a part of the machin­

ery for electing the City Ccuncil, and would be instrumental in 

the choice of five of its members. Another part of the machinery 

is the at-large election for the two remaining members of the

315/ New Orleans, La., Charter art. Ill, § 3-102 (1954).

316/ See Part III (C), supra.

317/ Beer v. United States, supra note 6, at 6-10.

318/ See Georgia v. United States, supra note 119, 411 U.S. 
at 535 n.7; Perkins v. Matthews, supra note 105, 400 U.S. at 394-95

77



Council. The interrelationship of these two parts is as relevant 

as any other circumstance bearing on the effect which the plan 

will have. The Council is a seven-member— not a five-member—  

body, and at-large voting for two of its members is an important 

aspect of the backdrop against which operation of the plan must 

be viewed. if at-large voting and the redistricting plan contri­

bute together to diminish the strength of the black vote in more 

ways than one, it is our responsibility to say so.

At-large voting, we have held, does make one such contribu­

tion because it puts two^of^the seven Council seats beyond the

reach of the black vote. it does so, we said, because the

black vote is distinctly a minority vote at an at-large electiM^

and the redistricting plan, we continued, completes'its devitaliza-
321/

tion to an impermissible degree. The interveners assert that

for yet another reasons the at-large feature of councilmanic elec­

tions is a causative factor in black-vote dilution. Their posi­

tion is that that very feature— of itself, without assistance 

from any other factor— minimizes the black vote for the two at- 

larc.e seats because, they say, black voters have been denied a 

meaningful role in the political activities which lead to nomina­

tion and election of the two at-large councilmen.

If that position be correct, the involvement of Section 5 

becomes plain, for any weakening of the black vote for those

319/ See Parts VI (A), VII (c), supra. 

320/ See Parts VI(A), VII(c), supra. 

32JV see Parts VI (A) , VII (c) , supra.

78



two councilmen obviously reduces the strength of the black vote 

in regard to membership on the Council as a whole. And any de­

preciation of the right to vote which ensues from that quarter 

obviously has a debilitating effect upon any black voting power 

which the redistricting plan permits. The plan, to merit judicial 

approbation, must survive not only the restrictions on black vot­

ing which it alone imposes but also those which jointly with ex­

trinsic phenomena it makes possible. V7e conclude that the inter­

veners' contention must be entertained as a legitimate part of 

the investigation enjoined upon us by Section 5.

C. Resolution of the Problem
In examining the intervenors' claim, we start from the 

premise that "multimember districts are not per se unconstitu­

tional nor are they necessarily unconstitutional when used in
322/

combination with single-member districts...." it bears re

peating, however, that multimember districts cannot be "used in­

vidiously to cancel out or minimize the voting strength of racial 
323 /

groups," and that such districts succumb to the Constitution 

when it appears "that the political processes leading to nomina­

tion and election were not equally open to participation by the
324/

group in question...." We agree that an allegation of

322/ White v . Regester, supra note 145, 412 U.S. at 765.
also Turner v. McKeithen, supra note 145, at 12 n .23; Zimmer v
McKeithen, supra note 145, 485 F.2d at 1304.

323/ White V. Regester, supra note 145, 412 U.S. at 765.
See also Turner v. McKeithen, supra note 145, at 13-14; Zimmer
McKeithen, supra note 145, 485 F.2d at 1304.

324/ White V. Regester, supra note 145, 412 U.S ’ at 766.
See also Turner v. McKeithen, supra note 145, at 12-14? Zimmer 
v. McKeithen, supra note 145, 485 F.2d at 1305.

79



minority-vote dilution is unavailing "[w]here it is apparent that 

[the] minority is afforded the opportunity to participate in the 

slating of candidates to represent its area, that the representa­

tives slated and elected provide representation responsive to 

minority's needs, and that the use of a multi-member districting

scheme is rooted in a strong state policy divorced from the main-
325/

tenance of racial discrimination...." But we also agree that

a strong case of enervation emerges where a "state policy favoring

multi-member or at-large districting schemes is rooted in racial
326/

discrimination," or "where a minority can demonstrate a lack

of access to the process ol slating candidates, the unresponsi^e-

ness of legislators to their particularized interests, a tenuous

state policy underlying the preference for multi-member or at-

large districting, or that the existence of past discrimination

in general precludes the effective participation in the election 
327/

system...." And we further agree that "[s]uch proof is en­

hanced by a showing of the existence of...majority vote require-
328/

ments [and] anti-single-siot voting provisions...."

The constitutional validity of a multimember district, in 

terms of its impact upon th3 voting strength of minority groups

325/ Zimmer v. McKeithen, supra note 145, 485 F.2d at 1305.
See also Whitcomb v. Chavis, suora note 145, 403 U.S. at 149; Burns 
v. Richardson, supra note 145, 384 U.S. at 95-96; Fortson v. Dorsey, 
supra note 145, 379 U.S. at 439; Turner v. McKeithen, supra note 
145, at 9.

326/ Zimmer v. McKeithen, supra note 145, 485 F.2d at 1305.

327/ Zimmer v. McKeithen, supra note 145, 485 F.2d at 1305. 
See also Turner v. McKeithen, supra note 145, at 6.

328/ Zimmer v. McKeither, suora note 145, 485 F.2d at 1305. 
See also Turner v. McKeithen, supra note 145, at 7.

80



within its borders, depends upon a balance of a variety of re]o-
329/ '‘330/

vant circumstances. They are, as previously notedT~ the

same factors which we have already had occasion to consider.'^

To summarize briefly, they include past discrimination foreclos­
ing present effect participation by the minority in political

—3 2/ 3 33/
processes, past inability of the minority to elect candidatesT

apathy of legislators toward the wishes and wants of the minority 
334/ 335/

community, majority vote requirements, and anti-singleshot por-

hibitions. We have found that all of these have worked to the
r, , ■ 337/serious detriment of the black vote in New Orleans.

Truly it has been said that "where a state or political sub­

division attempts to employ multi-member districts in the wake of

a history of pervasive racial discrimination, extreme care must be
329/ White v. Regester, supra note 145, 412 U.S. at 766; 

Turrier v. McKeithen, supra note 145, at 6 ; Zimmer v. McKeithen 
supra note 145, 485 F.2d at 1305. --------- '

330/ See note 254, supra.

331/ See Part III(c), supra.

M 2 /  white v. Regester. supra note 145, 412 U.S. at 766 
768-70,• Turner v. McKeithen, sujera note 145, at 6 , 7-9; Zimmer v. 
McKeithen, supra note 145, 485 F.2d at 1305.

333./ See text .supra at notes 293-95. Compare White v. Rege- 
•7-er' — -Pr.-- n°te 145, 412 U.S. at 766-67; Turner v. McKeithen, 
supra note 145, at 9; Zimmer v. McKeithen, supra note 1 4 S Aak 
F.2d at 1305-06. -----

£34/ Compare Turner v. McKeithen, supra note 145, at 6 , 10- 
î?.mer v* McKeithen, supra note 145, 485 F.2d at 1305.

3.35/ See text supra at note 299. Compare White v. Regester
-~-jira notG 145' 4 1 2 u-s - at 766; Turner v. McKeithen. supra note 
14a, at 7, 11; Zimmer v. McKeithen.. supra note 145, 485 F.2d at 1305

336/ See text supra at note 301. Compare Turner v. McKeith-n
sppp| note 145, at 7; Zimmer v. McKeithen. supra note 145, 485 F .26.' at 1305.

332/ See Part VII(C), supra.

81