Reno v. Bossier Parish School Board Reply Brief on Reargument of Appellee

    T

Nos. 98-405, 98-406

In The

Supreme Court of the United States
---------------♦---------------

JANET RENO, ATTORNEY GENERAL 
OF THE UNITED STATES,

Appellant, and

GEORGE PRICE, et a l,

Appellants,
v.

BOSSIER PARISH SCHOOL BOARD,

Appellee.
----------------♦----------------

On A ppeal From The U nited S tates D istric t C ourt 
For The D istrict Of C olum bia

------------------♦------------------

REPLY BRIEF ON REARGUMENT OF APPELLEE
--------------- ♦---------------

M ichael  E. R osm a n  
H ans  F. Bauer

C enter  eor I ndividual. R ights 
1300 19th Street, N.W. 
W ashington, D.C. 20036 
(202) 833-8400

M ichael  A . C arvin’* 
A nd rew  G. M c B ride 
D avid H .  T h o m i>son  
C raic, S. L erner 
C o o pe r , C arvin & 

R o s e n t h a l , PLLC 
1500 K Street, N.W. 
Suite 200
W ashington, D.C. 20005 
(202) 220-9600

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO . (800) 225-6964 
OR CALL COLLECT (402) 342-2831



I

TABLE OE CONTENTS
Page

ARGUMENT



II

TABLE OF AUTHORITIES
Page

C asi-s

American Eagle Ins. Co. v. Thompson, 85 F.3d 327
(8th Cir. 1996).......................................................................... 8

Arlington Heights v. Metropolitan Hons. Dev. Corp.,
429 U.S. 252 (1977)..........................................................9, 10

Beer v. United States, 425 U.S. 1.30 (1976).............. passim

Cc£A Carbone, Inc. v. Clarkstown, 511 U.S. 383
(1994).............................................................................................3

City o f Lockhart v. United States, 460 U.S. I 25 (1983)........ I

City o f Richmond v. United States, 422 U.S. 358
(1975).............................................................................................3

Fireman Fund Ins. Co. v. Videfreeze Corp., 540 F.2d 
1171 (3d Cir. 1976), cert, denied, 429 U.S. 1053 
(1977).............................................................................................8

Griggs v. Duke Power, 401 U.S. 424 (1971)........................... 4

Hunter v. Underwood, 471 U.S. 222 (1985)...........................9

Liberty Mat. Ins. Co. v. Sweeney, 216 F.2d 209 (3d
Cir. 1954) ..................................  8

Miller v>. Johnson, 515 U.S. 900 (1 9 9 5 )....................................9

Preferred Accident Ins. Co. v. Grasso, 186 F.2d 987
(2d Cir. 1951).............................................................................. 8

Shaw v. Reno, 509 U.S. 630 (1993)........................................... 9

South Carolina v. Katzenbach, 383 U.S. 301 (1966) .. .4, 7

St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993) . .9, 10

Texas Dep't o f Community Affairs v. Burdine, 450
U.S. 248 (1981).............. ......................................................... 8

TABLE OF AUTHORITIES -  Continued
Page

Under Sea Indus, v. Dacor Corp., 833 F.2d 1551 (Fed.
Cir. 1987) ............................................................................... 8

Voinovich v. Quitter, 507 U.S. 146 (1993)...........................6

Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642
(1989)....................................................................................... 9

White v. Regester, 412 U.S. 755 (1973).........................2, 3

Wygant v. Jackson Bd. o f Educ., 476 U.S. 267 (1986)........9

Statutes

42 U.S.C. § 1973a(c)................................................................2

42 U.S.C. § 1973b..................................................................... 4

Legislative Materials

H R. Rep. No. 439, 89th Cong., 1st Sess. (1965)................6

H R. Rep. No. 91-397 (1970)..................................................6

H R Rep. No. 94-196 (1975)..................................................6

S. Rep. No. 162, 89th Cong., 1st Sess. (1965)................. 5

S. Rep. No. 94-295 (1975)...................................................... 6

S. Rep. No. 417, 97th Cong., 2d Sess. (1982)................... 5

Other

E. Borchard, Declaratory Judgments (2d ed. 1941)............8

2 J. Strong, McCormick on Evidence (j 337 (4th ed.
1992)......................................................................................... 9

12 James Wm. Moore, Moore’s Federal Practice 
§ 57.62[2][d] (1999)..............................................................8

iii



ARGUMENT

I. Our initial briefs establish that under Beer v. United 
States, 425 U.S. 130 (1976), and its progeny, a voting change 
“abridgfes 1" minority voting power under Section 5 only if it 
causes a retrogression in minority voting rights. Consequently, just 
as a change cannot have the “effect of . . . abridging the right to 
vote” unless it has a retrogressive effect, it cannot have the 
“purpose . . . of . . . abridging" unless it has a retrogressive 
purpose.

Apparently recognizing that every principle of English usage 
compels this conclusion, the United States now makes the astonish­
ing assertion that “Beer . . . did not decide that the phrase ‘deny or 
abridging the right to vote,’ as used in Section 5, refers only to 
retrogression.” U.S. Rearg. Br. at 5.1 * Incredibly, in support of this 
assertion, the United States quotes the very passage from Beer that 
most directly refutes this assertion, i.e., a nonretrogressive change “ 
‘can hardly have the “effect" of diluting or abridging the right to 

vote on account of race within the meaning of § 5.’ ” U.S. Rearg. 
Br. at 5 (quoting Beer, 425 U.S. at 141 (emphasis added)). See also 
City of Lockhart v. United States, 460 U.S. 125, 136 (1983) 
(emphasis added) (perpetuation of potentially discriminatory status 
quo did not “have the effect of denying or abridging the right to 
vote on account of race . . . ”). Thus, Beer clearly states that a 
change has the effect of abridging Section 5 voting rights only if it 
reduces minority power from that which existed prior to the 
change.

Moreover, Beer’s holding that Section 5 reaches only retro­
gressive effect is necessarily an interpretation of the statutory term, 
“abridging." Beer's holding that Section 5 prohibits only changes 
with the “effect” of retrogressing is necessarily a holding that.

1 In this brief, citations are to the Brief on Rcargumenl for the Federal
Appellant ("U.S. Rearg. Br.“); Brief of Appellee ( "Initial Br.”); Brief of 
Appellee on Reargumenl (“App. Rearg. Br“); Supplemental Brief on 
Reargumcnt of Appellants George Price, et al. (“A I Rearg. Br.”); and Brief 
for the Federal Appellant (“U.S Initial Br ”).



under Section 5, "abridging” is the same as “retrogressing.” Other­
wise, a nonretrogressive change could have the effect of “abridg­
ing,” which all agree it cannot.

The United States nevertheless asserts that “abridge" under 
Section 5 must go beyond retrogression because “abridge” goes 
beyond retrogression under Section 2. If anything is clear, however, 
it is that the abridgment proscribed by Section 2 is entirely 
different than the abridgment prohibited by Section 5.2 As the 
United States elsewhere concedes, a voting qualification may 
“result in . . . abridgement” under Section 2 only if it creates the 
dilutive effect found in White v. Regester, 412 U.S. 755 (1973), but 
has the effect of abridgment under Section 5 only if it is retrogres­
sive. See U.S. Rearg. Br. at 4 n.3 (internal quotations omitted). 
Since it is undisputed and clear that the abridging effect prohibited 
by Section 5 is entirely different than the abridging result prohib­
ited by Section 2, the normal presumption that the same language 
in different statutory sections has the same meaning plainly does 
not pertain here.

The United States also argues that “the purpose and 
effect prongs of Section 5 are not coterminous.” U.S. Rearg. 
Br. at 8. It notes that otherwise permissible acts may

- The United States also notes, correctly, that the “abridge" language 
in Section 3(c) of the Act is patterned after and has the same meaning as the 
identical language in Section 5. 42 U.S.C § 1973a(c). U.S. Rearg. Br. at 3. 
But it is plainly wrong in suggesting that Section 3(c) must reach 
nonretrogressive changes because, otherwise, the Justice Department 
would be forced to preelear voting changes which are indistinguishable 
from the voting procedure that the Court just struck down as 
unconstitutional. Id. As we explained in our initial brief, procedures which 
have been adjudicated by a court to be unconstitutional will never be 
submitted for preclearancc. Rather, the court which found that a voting 
procedure violated the Constitution would directly remedy that adjudged 
violation, and plainly could not accept a proposed "remedy” with precisely 
the same discriminatory purpose and effect. Initial Br. at 40 n 30. The text 
of Section 3(c) itself makes this clear. The authorization for district courts 
to require preclearancc of other voting changes in the future comes only "in 
addition to such relief as (the court| may grant” with respect to the 
adjudged constitutional violation 42 U.S.C. § I973a(c) (emphasis added).

3

“ ‘become unlawful when done to accomplish an unlawful end.’ ” 
Id. (quoting City of Richmond u United States, 422 U.S. 358, 379 
(1975)). This is, of course, entirely tme and entirely irrelevant. 
Contrary to the straw man erected by the United States, we have 
never argued that “purpose and effect" are “coterminous.”1 We 
have contended, rather, that “abridge" and “abridge” are coter­
minous or, more accurately, that the same word must mean the 
same thing in the same statutory sentence. Since perpetuating a 
discriminatory status quo does not actually abridge any voting 
rights -  i.e., does not have the "effect” of “abridging” -  an intent to 
perpetuate the status quo cannot be a “purpose” of “abridging." 
Since maintaining the status quo is not an “unlawful end" under 
Section 5, intending to maintain the status quo is not an intent to 
“accomplish an unlawful end."* 4

' As the United States correctly notes, the law often treats a deliberate 
effort to do X differently than an action which unintentionally results in X. 
"In the words of Justice Holmes, ‘even a dog distinguishes between being 
stumbled over and being kicked.’ ” C&A Carbone, Inc. v. Clarkstown, 511 
U.S. 383, 424 n. 12 (1994) (Souter, J., dissenting) (citation omitted). But if 
actually killing a dog is not a “homicide" under state law, intentionally 
killing a dog cannot be an “intentional homicide." By the same token, since 
a nonretrogressive change does not "abridge” voting rights, a change 
intended to be nonretrogressive cannot purposefully abridge those rights.

4 The United States again speculates that Beer narrowly interpreted 
Section 5 to reach only changes with a retrogressive effect because the 
Court was purportedly concerned that a broader effects test would “reach 
beyond the Constitution itself -  a concern that is not implicated by a 
purpose test that extends beyond retrogression. U.S. Rearg. Br. at 6-7. As 
we have shown, this is plainly untrue on every level: ( I ) there is absolutely 
no language in Beer or its progeny reflecting any concern about a statute 
which imposes an effects test that goes beyond retrogression or the 
Constitution; (2) a retrogressive effect test also “reach[es| beyond the 
Constitution itself," by attaching liability without any finding of an 
invidious purpose; (3) it was entirely unclear in /976 whether a statute 
prohibiting an unintended dilutive result even went beyond the 
Constitution; and (4) even if the Constitution itself did not prohibit dilutive 
results, no Justice perceived any problem with Congress imposing such a 
test, as it ultimately did in 1982 for Section 2, particularly since the same 
Court, just prior to Beer, had decided White v. Regester and read an “effects



4

The United States next canvasses the same legislative history 
examined in Beer and cites various pronouncements suggesting 
that "Congress was concerned that covered jurisdictions would 
adopt new devices to freeze the existing disparity in voter registra­
tion between blacks and whites.” U S. Rearg. Br. at 9. This is quite 
true, but Congress intended to eliminate that registration disparity 
by “freezing election procedures” other than literacy tests and 
similar devices in order to prevent, as the United States elsewhere 
concedes, "covered jurisdictions [from] employing] new voting 
practices to evade the effect of the suspension of discriminatory 
tests and devices in Section 4 of the Act, 42 U.S.C. 1973b.” U S. 
Rearg. Br. at 20. If poll taxes and literacy tests -  “the principal 
method used to bar Negroes from the polls” -  are eliminated, and 
other procedures remain the same, then the registration disparity 
existing prior to the Act would obviously not be perpetuated, but 
would be dramatically reduced. South Carolina v. Katzenhach, 383 
U S. 301, 310 (1966). The only way the registration disparity 
would be “perpetuated” is if procedures other than the banned tests 
and devices were made worse, so that they could fill the discrimi­
natory “gap” caused by the banning of tests. Accordingly, forbid­
ding retrogressive changes in other voting procedures -  which 
were presumably neutral since they were designed for a white 
electorate -  would clearly not result in perpetuating the existing 
registration disparity, but would plainly avoid such perpetuation.

For this reason, in the legislative history cited by the United 
States, the only examples of changes prohibited by Section 5 are 
those which are plainly retrogressive because they are worse than 
the status quo, i.e., “adopting at-large elections [over the less 
dilutive single-member schemes], increasing filing fees, abolishing 
elective offices, and extending the terms of white incumbents.” 
U S. Rearg. Br. at 12 (emphasis added). Thus, the examples 
helpfully catalogued by the United States plainly contradict appel­
lants’ position that Section 5 invalidates voting changes which, for 
example, reduce filing fees or white incumbents’ terms, if the *

test" into Title VII on the basis of far less compelling statutory language. 
See Griggs v. Duke Power, 401 U S. 424 (1971). See Initial Br. at 24-25 & 
n. 19, 34 n.25.

5

Justice Department finds that they would have been reduced even 
more absent racial considerations.

In short, the Solicitor General’s legislative history argument is 
based on a fundamental distortion of the nonretrogression principle 
actually established by Beer. The United States maintains that a 
change cannot be retrogressive unless it reduces overall minority 
voter participation below the sorry levels that existed in 1965 and 
then contends that Congress could not have limited Section 5 to 
prevent even “further diminishment” of this abysmal state of 
affairs. U S. Rearg. Br. at 11. But obviously a change in voting 
procedure is retrogressive even if it does not reduce overall minor­
ity registration or voting strength, so long as it makes access to the 
ballot or voting strength more difficult than the particular pro­
cedure being replaced. Since, as noted, that retrogression principle 
would prevent voting procedures other than tests and devices from 
accomplishing the disenfranchisement previously accomplished by 
literacy tests, that principle obviously would accomplish Congress’ 
goal of preventing southern jurisdictions from ”replac[ing]" the 
“old devices for disenfranchisement” with "new ones." U S. Rearg. 
Br. at 12 (quoting S. Rep. No. 417, 97th Cong., 2d Sess., at 6 
(1982)).’’

s The Solicitor General disingenuously maintains that the following 
passage from the 1965 Senate Report somehow suggests that Section 5 
incorporated the substantive standard of the Fifteenth Amendment 
concerning purposeful abridgement of minority voting rights: “ ‘[S]o long 
as State laws or practices erecting voting qualifications do not run aloul 
[of| the 15th amendment or other provisions of the Constitution, they stand 
undisturbed.’ " U S Rearg. Br. at 11 (quoting S. Rep. No. 162, 89th Cong., 
1st Sess.. Pt. 3, at 18 (1965)). This passage had absolutely nothing to do 
with Section 5. or its substantive standard. Rather, as the very heading of 
the section of the Senate Report makes clear, it was simply responding to 
the argument that the Act was unconstitutional because it interfered with 
“the right of the Stales to fix qualifications for voting, ” by pointing out that 
the Stales would unconstitutionally abuse this authority it their 
qualifications ran "afoul of the 15th amendment.” S. Rep No. 162, Pt. 3, at 
18. This truism does not suggest that Section 5 would, of its own force, 
invalidate any Fifteenth Amendment violation by a State, as the very next 
sentence makes even clearer: "But when Stale power is abused, it is subject



6

Indeed, Beer itself makes crystal clear that interpreting Sec­
tion 5 to reach only retrogressive changes is fully consistent with 
Congress’ goal of affirmatively increasing minority voter participa­
tion and preventing covered jurisdictions from perpetuating the 
prior discriminatory regime by replacing the invalidated discrimi­
natory devices with new ones. Beer found that "the purpose of § 5 
has always been to insure that no voting-procedure changes would 
be made that would lead to a retrogression in the position of racial 
minorities . . . Beer, 425 U.S. at 141, only after noting that 
Section 5 was intended to prevent covered jurisdictions from 
“ ‘staying one step ahead of the federal courts by passing new 
discriminatory voting laws as soon as the old ones had been struck 
down’ ” and to “ ‘ “shift the advantage of time and inertia from the 
perpetrators of the evil to its victim.” ’ ” Beer, 425 U.S. at 140 
(quoting H.R. Rep. No. 94-196, at 57-58 (1975)) (citation omitted). 
The Beer Court understood that Congress intended to increase 
minority voting by “freezing election procedures” in order to 
prevent States from “ ‘undofing] or defeating] the rights recently 
won’ by Negroes” and to “ ‘insure that [the gains thus far achieved 
in minority political participation] shall not be destroyed through 
new [discriminatory] procedures and techniques.’ ” hi. at 140-41 
(quoting H.R. Rep. No. 91-397, at 8 (1970) and S. Rep. No. 
94-295, at 19 (I975)).6

to Federal action by Congress as well as by the courts under the 15th 
amendment." Id. More generally, we fully agree that the Voting Rights Act, 
including Section 5, was obviously intended to secure and protect the 
Fifteenth Amendment's guarantee against racial discrimination in voting. 
See H R. Rep. No. 439, 89th Cong., 1st Sess., at 26 (1965) (quoted in U.S. 
Rearg Br. at II). But Section 5 did not accomplish that goal by adopting 
the Fifteenth Amendment’s abridgement standard. Section 5 could not do 
this, since, unlike the Fifteenth Amendment, it deals only with changes to 
the status quo. Of course, the United States docs not really believe that 
Section 5 incorporated the Fifteenth Amendment’s substantive standards 
because, if it did, there would be a serious, unresolved question concerning 
whether Section 5 even reaches vote dilution mechanisms such as 
redistricting plans. See Voinovich v. Quitter, 507 U.S. 146, 159 (1993).

6 Contrary to the Solicitor General’s assertion, by preventing such 
retrogression, Section 5 did indeed “ ‘play an important role’ ” in

7

2. Appellants devote the bulk of their briefs to arguing that 
the covered jurisdiction has the burden of persuasion with respect 
to the purpose prong of Section 5, just as it has the burden to show 
the absence of an impermissible effect. To be sure, just as the 
covered jurisdiction has the burden of showing that a voting 
change does not have the effect of reducing minority voting power, 
it must also show that the purpose of the change was not to reduce 
minority voting strength The question here, however, is whether 
the covered jurisdiction must shoulder an additional burden with 
respect to “purpose” that it does not have with respect to “effect,” 
by proving not only that the change has a nonretrogressive purpose 
but also that it is not motivated in any way by considerations of 
race.

Appellants seek to justify this additional showing for “pur­
pose” not because the language of Section 5 draws any distinction 
between purpose and effect, but because Section 5's broader “goal” 
was purportedly to prohibit unconstitutional voting changes. 
Accordingly, it would be inequitable and unreasonable to shift the 
burden used in those constitutional cases simply because the cov­
ered jurisdiction was forced unwillingly to litigate this issue in the 
special District of Columbia Section 5 Court as a plaintiff, as the 
Bossier I dissenting opinion acknowledged with respect to Section 
2. See App. Rearg. Br. at 23. Appellants cannot explain why a 
different rule should obtain with respect to the Constitution or why 
the covered jurisdiction has the constitutional burden when, even 
under their interpretation, Beer plainly placed the burden on the 
Attorney General to show a constitutional violation. App. Rearg. 
Br. at 22.7

“ ‘rid[ding| the country of racial discrimination in voting.’ ” Beer, 425 
U.S. at 140 (quoting South Carolina. 383 U.S. at 315). So, contrary to the 
United States’ contention, the legislative history lauding the valuable role 
of Section 5 is hardly "inconsistent” with interpreting it to reach 
retrogression.

7 Appellant-intcrvenors do seem to suggest that covered jurisdictions 
should have the burden simply because they are nominal plaintiffs in the 
Section 5 declaratory judgment proceeding. But the standard rule is that 
"[i |t would seem rather anomalous that so important a matter (as the burden



8

Rather, appellants argue that placing the burden on covered 
jurisdictions is fair because they possess the information on the 
jurisdiction’s intent and because Congress determined that these 
jurisdictions were generally racist in the 1960s, thus “estab- 
lish(ing), in effect, a presumption that future voting practices 
enacted by covered jurisdictions would also have a discriminatory 
purpose. . . . ” U.S. Rearg. Br. at 20. Both factors are also present 
in traditional constitutional voting rights challenges to jurisdictions 
covered by Section 5, where minority plaintiffs bear the burden of 
proof, thus demonstrating that these factors are plainly insufficient 
to shift the normal burden. Moreover, under other civil rights 
statutes, the alleged victim of discrimination bears the burden of 
persuasion to prove discriminatory purpose. See Texas Dep t of 
Community Affairs v. Burdine, 450 U.S. 248 (1981). Here, as in 
those cases, it is the United States and minority parties who are 
contending that the covered jurisdiction will harm their civil rights,

of proof) should depend on the chance of who first sues and the outstanding 
authority in the field argues against such a result." Preferred Accident Ins. 
Co. v. Grosso, 186 F.2d 987, 991 (2d Cir. 1951) (citing E. Borchard, 
Declaratory Judgments, at 404-09 (2d ed. 1941). See also Fireman Fund 
Ins. Co. v. Videfreeze Corp., 540 F.2d 1171, 1176 & n.4 (3d Cir. 1976), cert, 
denied, 429 U.S. 1053 (1977); American Eagle Ins. Co. v. Thompson, 85 
F.3d 327 (8th Cir. 1996). This is particularly true where, as here and in 
patent cases, placing the burden on the plaintiff would require him to 
“prove a negative.” 12 James W m . M<xire e t  a l„ M o ore’s F ederal 
Practice  § 57.62)2 )[d) (1999); see also Borchard, supra; Under Sea Indus. 
v. Dacor Corp., 833 F.2d 1551, 1557 (Fed. Cir. 1987). Moreover, those 
courts that have placed the burden on declaratory judgment plaintiffs have 
done so because it is “reasonable and fair that one who brings another into 
court,” and thus may select the forum and enjoy the other “advantages" of a 
plaintiff, should have the burden that is normally borne by those seeking to 
have the court prevent another from taking some adverse action. Liberty 
Mut. Ins. Co. v. Sweeney, 216 F.2d 209, 210-11 (3d Cir. 1954). Here, of 
course, covered jurisdictions are not coercing the United States into court, 
but are forced by Section 5 to seek preclearance and cannot select the 
forum, but are forced to the distant, disadvantageous court in Washington, 
DC.

9

and thus should bear the burden of proving this harm.8 This is 
particularly true since minority voters have not suffered the only 
adverse effect concededly prohibited by Section 5 -  i.e., retrogres­
sion.

The covered jurisdictions’ allegedly superior access to the 
relevant facts is a complete non-factor in an era where "liberal civil 
discovery rules give [minority proponents) broad access to” such 
information, and thus even the United States concedes that 
“[d]iscovery should give the government the opportunity to test 
[the covered jurisdiction’s] assertions and to obtain any contrary or 
impeaching evidence.” Wards Cove Packing Co., Inc. v. Atonio, 
490 U.S. 642, 657 (1989); U.S. Rearg. Br. at 22. See 2 J. Strong , 
McC ormick on E vidence § 337, at 439 n.ll (4th ed. 1992). 
Regardless of who has the burden of ultimate persuasion, the 
covered jurisdiction will, “(a|s a practical matter . . . and in the 
real-life sequence of a trial” have to offer a nondiscriminatory 
explanation for the voting change because it “knows that its failure 
to introduce evidence of a nondiscriminatory reason will cause 
judgment to go against it. . . . ” St. Mary's Honor Cir. v. Hicks, 509 
U.S. 502, 510 (1993).9

8 See, e.g., Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 667 
(1989) (Stevens, J., dissenting); W\gant v. Jackson Bd. o f Educ., 476 U.S. 
267, 292 (1986) (O’Connor, J., concurring in part and concurring in the 
judgment).

9 In Ihe rcdistricting context, where “the legislature always is aware 
of race," Shaw u Reno, 509 U.S. 630, 646 (1993) (emphasis in original), an 
apportionment plan violates the Constitution only il it "subordinate|s[ 
traditional race-neutral districting principles" and “race was the 
predominant factor motivaling the legislature's decision.” Miller u 
Johnson, 515 U.S. 900, 916 (1995). The Constitution clearly does not 
prohibit rcdistricting plans where race was “a motivating factor." as 
appellants contend. U.S. Initial Br. at 46-47. (Even outside the redistricting 
context, where race was “a substantial or motivating factor,” Hunter v. 
Underwood 471 U.S. 222, 225 (1985) (internal quotations omitted), a 
jurisdiction is not liable if it can show that it would have made the same 
decision absent the impermissible factor. Arlington Heights t. Metropolitan 
Hous Dev. Corp , 429 U.S. 252, 271 n.2l (1977)). Since there is no basis 
for concluding that Section 5’s purpose prong goes beyond the Constitution



10

Moreover, even if it could be plausibly “presumed” that every 
voting change by every covered jurisdiction is motivated by a 
discriminatory purpose because of congressional findings from 34 
(or 17) years ago, this is not an argument for shifting the burden of 
persuasion to the covered jurisdiction. Even where specific evi­
dence “ ‘creates a presumption that the [particular party] 
unlawfully discriminated,’ ” it is a “fundamental principle of [Fed­
eral] Rule [of Evidence] 301 that a presumption does not shift the 
burden of proof,” in the sense of the risk of nonpersuasion. Si. 
Mary’s Honor Ctr., 509 U.S. at 506, 511 (quoting Bunline, 450 
U S. at 254). In any event, using the South’s sorry history of 
discrimination as a basis for requiring jurisdictions to prove them­
selves innocent of a constitutional violation would be impermissi­
ble triple counting. That history is the reason they must bear the 
extraordinary Section 5 burden of disproving retrogression to 
Washington courts or bureaucrats before implementing their sover­
eign acts and is also a negative factor under the Arlington Heights 
analysis of discriminatory purpose. Arlington Heights v. Metro­
politan Hons. Dev. Corp., 429 U.S. 252, 267 (1977). To also use 
that history as a reason to impose an additional burden on the 
constitutional issue would plainly be unwarranted.

Respectfully submitted,

M ichael E. Rosman 
H ans F. B ader

C enter eor Individual R ights 
1300 19th Street, N.W. 
Washington, D.C. 20036 
(202) 833-8400

M ichael A. C arvin* 
A ndrew G. M c B ride 
D avid A. T hompson 
C raig S. L erner 
C ooper, C arvin & 

Rosenthal 
1500 K Street, N.W., 

Suite 200
Washington, D.C. 20005 
(202) 220-9600

*Counsel of Record

by prohibiting any consideration of race in redistricting, any remand order 
in this case should require the district court to determine whether 
defendants have proved that the Board’s plan subordinated traditional 
districting principles and was predominantly motivated by racial animus.