Nos. 98-405 and 98-406
In the Supreme Court of the United States
OCTOBER TERM, 1998
JANET RENO, ATTORNEY GENERAL, APPELLANT
v.
BOSSIER PARISH SCHOOL BOARD
GEORGE PRICE, ET AL., APPELLANTS
v.
BOSSIER PARISH SCHOOL BOARD
ON APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BRIEF FOR THE FEDERAL APPELLANT
SETH P. WAXMAN
Solicitor General
Counsel of Record
BILL LANN LEE
Acting Assistant Attorney General
BARBARA D. UNDERWOOD
Deputy Solicitor General
PAUL R.Q. WOLFSON
Assistant to the Solicitor General
MARK L. GROSS
LOUIS E. PERAERTZ
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether the district court erred in concluding that, because Bossier Parish
School Board's 1992 redistricting plan was not enacted with a retrogressive
purpose, it was not enacted with "the purpose * * * of denying or abridging
the right to vote on account of race," within the meaning of Section
5 of the Voting Rights Act of 1965, 42 U.S.C. 1973c.
In the Supreme Court of the United States
OCTOBER TERM, 1998
No. 98-405
JANET RENO, ATTORNEY GENERAL, APPELLANT
v.
BOSSIER PARISH SCHOOL BOARD
No. 98-406
GEORGE PRICE, ET AL., APPELLANTS
v.
BOSSIER PARISH SCHOOL BOARD
ON APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BRIEF FOR THE FEDERAL APPELLANT
OPINIONS BELOW
The opinion of the district court (J.S. App. 1a-28a)1 is reported at 7 F.
Supp. 2d 29. An earlier opinion of the district court (J.S. App. 78a-144a)
is reported at 907 F. Supp. 434. This Court's opinion on appeal from the
district court's initial decision (J.S. App. 29a-77a) is reported at 520
U.S. 471.
JURISDICTION
The judgment of the three-judge district court was entered on May 4, 1998.
J.A. 33. Notices of appeal were filed on July 6, 1998 (the Monday following
Friday, July 3, a federal holiday). J.A. 33-34. This Court noted probable
jurisdiction on January 22, 1999. J.A. 408. This Court's jurisdiction rests
on 42 U.S.C. 1973c.
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
Reproduced in an appendix to this brief (App., infra, 1a-2a) are pertinent
provisions of the Fourteenth and Fifteenth Amendments to the United States
Constitution and Section 5 of the Voting Rights Act of 1965, 42 U.S.C. 1973c.
STATEMENT
1. The State of Louisiana and all of its political subdivisions are jurisdictions
covered by the "preclearance" requirement of Section 5 of the
Voting Rights Act of 1965, 42 U.S.C. 1973c. See 28 C.F.R. Pt. 51 App. Section
5's preclearance requirement provides that a covered jurisdiction may not
implement any change in its election practices unless either (1) it has
first submitted the proposed change to the Attorney General and the Attorney
General has not interposed an objection to the change within 60 days, or
(2) it has obtained a declaratory judgment from the United States District
Court for the District of Columbia that the proposed change "does not
have the purpose and will not have the effect of denying or abridging the
right to vote on account of race or color." 42 U.S.C. 1973c. This case
involves the effort by the School Board of Bossier Parish, Louisiana (appellee
or Board) to gain preclearance for a redistricting plan that it adopted
in 1992.
Bossier Parish is located in northwestern Louisiana. The Parish's primary
governing body, the Police Jury, and the Parish's separate School Board
each consist of 12 members elected from single-member districts by majority
vote to four-year concurrent terms. J.S. App. 145a. There is no legal requirement
that the 12 Police Jury districts and the 12 School Board districts be the
same, and the districts for the two bodies were different throughout the
1980s. Id. at 150a-151a.
The School Board and the Parish both have a history of racial discrimination
beginning before the Civil War and continuing to the present. J.S. App.
210a-220a. That discrimination has affected both the administration of the
school system by the Board and the drawing of voting districts for elections
to both the Board and the Police Jury.
As for the administration of the school system, de jure segregation prevailed
in Louisiana's schools long after this Court's decision in Brown v. Board
of Education, 347 U.S. 483 (1954). J.S. App. 216a. In 1965, the Board was
placed under a court order to eliminate the vestiges of racial discrimination
in its school system. Lemon v. Bossier Parish Sch. Bd., 240 F. Supp. 709
(W.D. La. 1965), aff'd, 370 F.2d 847 (5th Cir.), cert. denied, 388 U.S.
911 (1967). The Board repeatedly sought to evade its desegregation obligations
through a variety of devices, and it remains subject to that court order,
its 1979 request for termination having been denied. J.S. App. 216a-217a.
The Board has continued to violate the Lemon court's order to maintain a
biracial committee to "recommend to the School Board ways to attain
and maintain a unitary system and to improve education in the parish."
Id. at 182a-183a. The Board also has continued to assign disproportionate
numbers of black faculty to schools with predominantly black enrollment.
The schools in Bossier Parish have, in fact, become increasingly segregated
by race since the 1980s. Id. at 217a-218a.
As for the Parish's electoral systems, in 1990, black persons comprised
20.1% of the total population of Bossier Parish, and 17.6% of the voting
age population. J.S. App. 145a-146a. The black population of the Parish
is heavily concentrated in two areas. More than 50% of the black residents
live in Bossier City, and the remaining black population is concentrated
in four populated areas in the northern rural part of the Parish. Id. at
146a-147a. Voting patterns in the Parish are polarized along racial lines,
see id. at 201a-206a; see also J.A. 163-174 (analysis by government's expert);
one Police Juror estimated that at least 80% of white and black voters choose
candidates of their own race, J.S. App. 201a. The parties have also stipulated
that it is feasible to draw two reasonably compact majority-black districts
in the Parish using traditional districting features such as roads, streams,
and railroads. Id. at 154a-155a, 192a-194a. Nevertheless, the Police Jury
has never enacted a districting plan with any majority-black districts,
id. at 79a, and black voters have historically been unable to elect candidates
of their choice to political positions in the Parish, id. at 195a-206a;
see J.A. 174 (government's expert concluding that, because of racially polarized
voting patterns and bloc voting, "African American voters are likely
to have a realistic opportunity to elect candidates of their choice * *
* only in districts in which they constitute a majority of the voting age
population").2
2. After the 1990 census revealed that its districts were malapportioned,
the Police Jury began the process of redistricting. "At the time of
the 1990-1991 redistricting process, some Police Jurors were specifically
aware that a contiguous black-majority district could be drawn both in northern
Bossier Parish and in Bossier City," and "it was obvious that
a reasonably compact black-majority district could be drawn within Bossier
City." J.S. App. 154a-155a. Nonetheless, during public meetings in
April 1991, white Police Jurors and the Police Jury's cartographer, Gary
Joiner, told citizens that it was impossible to create such districts because
the black population was too dispersed. Id. at 160a-162a. On April 30, 1991,
the Police Jury adopted a redistricting plan that, like all of its predecessors,
contained no majority-black districts. Id. at 163a-164a. The plan required
the creation of 20 new precincts and was not the alternative with the fewest
precinct splits. Id. at 167a-168a.
On May 28, 1991, the Police Jury submitted its redistricting plan to the
Department of Justice for preclearance under Section 5. The Police Jury
did not provide the Department with information then available to it showing
that reasonably compact majority-black districts could be created. Nor did
it provide a copy of a letter from the Concerned Citizens of Bossier Parish,
a local organization, protesting the Police Jury's exclusion of black citizens
from the redistricting process, despite the organization's express request
that the letter be included in the Police Jury's Section 5 submission. On
July 29, 1991, based on the information submitted to it, the Department
of Justice precleared the plan for Police Jury elections. J.S. App. 165a-167a.
3. The School Board initially proceeded without urgency on its own redistricting
process, as its next elections were not scheduled to occur until October
1994. J.S. App. 172a. On May 2, 1991 (after the Police Jury had adopted
its plan), the Board held a meeting to which the Police Jury's cartographer,
Joiner, was invited. Joiner reminded the Board that, because no election
was scheduled until 1994, it had "more than adequate time" in
which to develop a plan. Id. at 173a. The Board engaged Joiner to draft
a redistricting plan, which he estimated would take 200 to 250 hours, far
longer than would be needed simply to duplicate the Police Jury plan. Id.
at 125a, 173a. On September 5, 1991, Joiner presented the already-precleared
Police Jury plan to the Board, along with precinct maps (because, Joiner
explained, the Board would have to work with the Police Jury to alter precinct
lines for its own plan). Id. at 174a. But despite a proposal by Board Member
Tom Myrick (who would have benefitted from the Police Jury Plan because
it preserved his district, which was majority-white but contained the largest
concentration of black voters under the preexisting plan), the Board did
not at that time adopt the Police Jury plan. Ibid.
The Board's decision not to adopt the Police Jury plan reflected the fact
that the two bodies have different functions and priorities. Police Juries
"are concerned with road maintenance, drainage, and in some cases garbage
collection, and the level of demand for such services in each district is
a concern. School board members, by contrast, are typically concerned with
having a public school or schools in each district." J.S. App. 151a.
The district lines in the Police Jury plan, however, were not drawn with
school locations in mind. Id. at 191a. Also, the Police Jury plan did not
correspond to the distribution of Board incumbents; if adopted by the Board,
the Police Jury plan would have paired Board incumbents against each other
in two districts and would have created two other districts with no incumbent.
Id. at 181a.
Beginning in March 1992, appellant-intervenor George Price, president of
the local chapter of the NAACP, wrote to the Board to point out that there
was no minority representation on the Board, and requested that he be included
in the Board's redistricting process. The Board did not respond to those
requests. J.S. App. 175a-176a. In August 1992, Joiner met privately with
Board members and showed them various computer-generated alternative scenarios,
none of which contained a majority-black district. Id. at 176a. Also in
August 1992, at a time when no other plan had been publicly released, Price
presented Joiner with a partial plan, containing two majority-black districts,
that had been developed by the NAACP. Joiner told Price the Board would
not consider a plan that did not include the other ten districts. J.A. 175-176;
J.S. App. 177a-178a.
At a Board meeting held on September 3, 1992, Price presented a new NAACP
plan that depicted all 12 districts and included two majority-black districts.
J.S. App. 177a-178a. The Board refused to consider Price's new plan, ostensibly
because "the [NAACP] plan's district lines crossed existing precinct
lines, and therefore violated state law." Id. at 178a-179a. The Board,
its cartographer, and its attorney knew at the time, however, that the Board
was not legally precluded from considering a plan that would cross existing
precinct lines. Id. at 179a. Although state law prohibits school boards
themselves from splitting precincts, id. at 149a, school boards may and
do "request precinct changes from the Police Jury necessary to accomplish
their redistricting goals," id. at 151a. The Board had long been aware
of a possible need to split precincts in fashioning its redistricting plan,
for Joiner had explained at the start of the redistricting process that
it would have to work with the Police Jury to do so, and had given the Board
precinct maps. Id. at 174a.
At the next Board meeting on September 17, 1992, only two weeks after Price
had presented the NAACP plan, the Board unanimously passed a motion of intent
to adopt the Police Jury plan that it had initially found unsatisfactory.
J.S. App. 180a. On September 18, 1992, Price and others sent a letter urging
the Board to use the NAACP plan as a basis for drawing majority-black districts.
J.A. 193-194. The Board's action to adopt the Police Jury plan precipitated
overflow citizen attendance at a Board hearing on September 24, 1992, and
many citizens, white and black, vocally opposed the plan. Price explained
to the Board that, in light of the NAACP plan demonstrating the feasibility
of drawing majority-black districts, the Department of Justice's preclearance
of the Police Jury plan did not guarantee its preclearance for Board elections.
The Board nevertheless adopted the Police Jury plan at its next meeting
on October 1, 1992. J.S. App. 180a-181a.
The Board submitted the 1992 plan to the Attorney General for preclearance.
On August 30, 1993, the Attorney General interposed an objection to the
Board's plan, citing new information that had not been provided when the
Police Jury submitted the same plan, such as the demonstrated feasibility
of majority-black districts and the Board's refusal to engage in efforts
to accommodate the concerns of the black community. J.S. App. 233a-237a.
4. On July 8, 1994, the Board filed a declaratory judgment action in the
United States District Court for the District of Columbia, seeking preclearance
of its 1992 election plan. The government opposed preclearance, arguing
that the Board had not shown an absence of discriminatory purpose on its
part, and also that the plan would "result[] in a denial or abridgment
of the right * * * to vote on account of race or color," in violation
of Section 2 of the Voting Rights Act of 1965, 42 U.S.C. 1973. The government
did not argue, however, that the 1992 plan had either the purpose or effect
of making the position of blacks worse than before it was enacted. See J.S.
App. 88a, 221a.
On November 2, 1995, a divided three-judge district court granted preclearance.
J.S. App. 78a-144a. The court first held that a redistricting plan may not
be denied preclearance solely on the basis that the new plan would violate
Section 2. Id. at 89a-102a. The court also ruled that the Board, in adopting
the Police Jury plan, did not have a racially discriminatory purpose that
would bar preclearance. Id. at 102a-114a. In reaching that conclusion, the
court acknowledged that the Board had "offered several reasons for
its adoption of the Police Jury plan that clearly were not real reasons."
Id. at 106a n.15 (noting that Board had contended that the plan was designed
to comply with Shaw v. Reno, 509 U.S. 630 (1993), which had not yet been
decided when the 1992 plan was adopted). The court nonetheless found "legitimate,
non-discriminatory motives" for the Board's decision: "The Police
Jury plan offered the twin attractions of guaranteed preclearance and easy
implementation (because no precinct lines would need redrawing)." J.S.
App. 106a.
Judge Kessler concurred in part and dissented in part, and would have denied
preclearance. J.S. App. 115a-144a. Although she agreed with the majority
that a Section 2 violation does not per se prevent Section 5 preclearance,
she dissented from the majority's conclusion that the Board had satisfied
its burden to show the absence of a discriminatory purpose in its adoption
of the plan. Id. at 115a-116a. Taking into account evidence that, she maintained,
was relevant to the intent analysis under Village of Arlington Heights v.
Metropolitan Housing Development Corp., 429 U.S. 252, 266 (1977), she found
that "the evidence demonstrates conclusively that [the Board] acted
with discriminatory purpose." J.S. App. 117a-118a.
5. The government appealed to this Court, and argued that a voting change
may not be precleared under Section 5 if the change would violate Section
2, and that the district court erred in its purpose analysis. This Court
disagreed with the government on the first point and held, in agreement
with the district court, that a voting change may not be denied preclearance
under Section 5 solely because the change would "result" in a
denial or abridgment of the right to vote, in violation of Section 2. J.S.
App. 33a-45a. The Court explained that "a plan has an impermissible
'effect' under § 5 only if it 'would lead to a retrogression in the
position of racial minorities with respect to their effective exercise of
the electoral franchise.'" Id. at 35a (quoting Beer v. United States,
425 U.S. 130, 141 (1976)).
The Court also held, however, that evidence that a voting change would dilute
minority voting strength is relevant to whether that change has a discriminatory
purpose, and therefore should be denied preclearance. J.S. App. 45a-51a.
The Court stated that, even if the only discriminatory purpose that requires
denial of preclearance under Section 5 is a retrogressive purpose, i.e.,
an intent to make the position of minorities worse than before, evidence
of vote dilution is relevant to that analysis. Id. at 47a. The Court remanded
the case to the district court for further consideration as to whether the
Board had a discriminatory purpose in adopting the 1992 plan. Id. at 50a-51a.
In remanding the case, the Court "[left] open for another day the question
whether the § 5 purpose inquiry ever extends beyond the search for
retrogressive intent," and stated that the existence of a "non-retrogressive,
but nevertheless discriminatory, purpose," and "its relevance
to § 5, are issues to be decided on remand." Id. at 45a-46a.3
6. On remand, the parties rested on the original record. J.S. App. 1a. The
government argued that a voting change may not be precleared if it was enacted
with a discriminatory (albeit not necessarily retrogressive) purpose, and
that the evidence showed that the Board had adopted the 1992 plan with the
discriminatory purpose of perpetuating the dilution of blacks' voting strength
in Bossier Parish. The district court, again divided, again precleared the
Board's plan. Id. at 1a-28a.
As to whether Section 5 requires denial of preclearance of a plan enacted
with a discriminatory but nonretrogressive purpose, the majority stated,
"We are not certain whether or not we have been invited to answer the
question the Court left for another day, but we decline to do so in this
case." J.S. App. 3a. The majority also remarked that the record in
this case "will not support a conclusion that extends beyond the presence
or absence of retrogressive intent." Ibid. Although the majority remarked
that it could "imagine a set of facts that would establish a 'non-retrogressive,
but nevertheless discriminatory purpose,'" it stated that "those
imagined facts are not present here." Id. at 3a-4a. Thus, the majority
proceeded to analyze only whether the Board had enacted the plan with an
intent to retrogress. It did not examine whether the evidence demonstrated
that the Board had enacted the plan with the unconstitutional purpose of
maintaining an electoral system that dilutes the votes of blacks in the
Parish, nor did it apply the Arlington Heights framework to analyze evidence
of such a purpose to dilute blacks' votes.
The district court adhered to its previous view that the Board's adoption
of the Police Jury plan was supported by two "legitimate, non-discriminatory
motives": the Board's belief that the plan would be easily precleared
(because it had already been precleared by the Attorney General for use
in Police Jury elections) and its "focus on the fact that the Jury
plan would not require precinct splitting, while the NAACP plan would."
J.S. App. 5a. Those two motives, the court concluded, were sufficient to
establish a "prima facie case for preclearance." Ibid.
The majority then considered, under the rubric of Arlington Heights, supra,
factors that might be relevant to establish the Board's retrogressive intent.
First, it considered whether there was evidence that the plan "bears
more heavily on one race than another." J.S. App. 5a. It found that
factor inconclusive, because, having limited its analysis to evidence of
retrogressive intent, it could not find evidence that "the Jury plan
bears more heavily on blacks than the pre-existing plan," ibid. (emphasis
added); even if the 1992 plan was dilutive of black voting strength, it
was no more dilutive than the previous plan, id. at 5a-6a. As for the historical
background to the Board's adoption of the 1992 plan, the court acknowledged
that there was "powerful support for the proposition that [the Board]
in fact resisted adopting a redistricting plan that would have created majority
black districts," including the Board's history of resistance to school
desegregation (particularly its refusal to obey a district court order to
maintain a biracial committee to study ways to attain a unitary school system).
Id. at 6a-7a. But, the court stressed, all that history proved only "a
tenacious determination to maintain the status quo. It is not enough to
rebut the School Board's prima facie showing that it did not intend retrogression."
Id. at 7a. Similarly, the sequence of events leading up to the adoption
of the plan "does tend to demonstrate the school board's resistance
to the NAACP plan," and evidence of the Board's deviation from its
normal practices "establishes rather clearly that the board did not
welcome improvement in the position of racial minorities with respect to
their effective exercise of the electoral franchise," but neither established
retrogressive intent. Ibid.
Judge Kessler again dissented. J.S. App. 12a-27a. She again concluded that
"the School Board's decision to adopt the Police Jury redistricting
plan was motivated by discriminatory purpose," id. at 12a, and that
the Board's "proffered reasons for acceptance of the Police Jury plan
are clearly pretextual," id. at 15a. She agreed with the government
that the existence of a discriminatory, albeit nonretrogressive, purpose
requires denial of preclearance under Section 5; otherwise, "we would
commit ourselves to granting § 5 preclearance to a 'resistant' jurisdiction's
nonretrogressive plan even if the record demonstrated an intent by that
jurisdiction to perpetuate an historically discriminatory status quo by
diluting minority voting strength." Id. at 17a. After reviewing evidence
of vote dilution in Bossier Parish, Judge Kessler concluded, "[i]t
would be impossible to ignore the weight and the relevance of this §
2 evidence to the School Board's intent to dilute the voting strength of
blacks in Bossier Parish." Id. at 22a-23a. And she reiterated her previous
conclusion, based on applying the Arlington Heights framework to the facts
of this case, that "the only conclusion that can be drawn from the
evidence is that [appellee] acted with discriminatory purpose." Id.
at 23a (brackets omitted).
SUMMARY OF ARGUMENT
A. Section 5 of the Voting Rights Act of 1965 prohibits a covered jurisdiction
from implementing a new voting practice unless the jurisdiction establishes
that the new practice "does not have the purpose and will not have
the effect of denying or abridging the right to vote on account of race
or color." 42 U.S.C. 1973c. The "purpose" prong of Section
5 requires the courts to decide whether a voting change has a discriminatory
purpose, not merely whether it has a retrogressive purpose. The language
of the statute refers simply to a purpose to deny or abridge the right to
vote on account of race, and makes no reference to an intent to make the
position of minorities worse. The background to Section 5 also makes clear
that Congress enacted that provision to prevent covered jurisdictions from
implementing voting changes denying and abridging minorities' voting rights
in violation of the Constitution, whether or not they are retrogressive.
Congress enacted Section 5 because its previous approach to unconstitutional
racial discrimination in voting practices, requiring case-by-case litigation
to enjoin particular practices, had proven inadequate; Congress found that
offending jurisdictions simply replaced one voting practice declared by
the courts to be discriminatory with another intended to accomplish the
same result. If Section 5 were limited to voting changes with a retrogressive
intent, then a jurisdiction could replace one unconstitutionally discriminatory
voting practice with another having precisely the same purpose and effect.
It is implausible that Congress intended to require either the Attorney
General or this Court to give such approval to unconstitutional, racially
discriminatory voting practices.
This Court's previous decisions regarding Section 5 support a construction
that precludes enforcement of all voting changes enacted with a racially
discriminatory purpose. The Court has explained that, even when a voting
change has an effect that does not preclude preclearance, the change should
nonetheless be barred if it was enacted with a discriminatory purpose, because
official actions taken with a racially discriminatory purpose have no legitimacy
under the Constitution. Thus, if a change is enacted with the purpose to
dilute the votes of minorities, it should be denied preclearance, even if
it is not retrogressive. Although the Court has construed the "effect"
prong of Section 5 to be limited to retrogression, that construction reflects
concerns about the potential reach of a provision that opens official action
to challenge because of discriminatory effects alone, and has little relevance
to official action with a racially discriminatory motivation. This construction
of Section 5's "purpose" prong is also supported by the Attorney
General's longstanding and consistent practice in administering the statute,
which is entitled to deference.
B. Appellee's 1992 redistricting plan should be denied preclearance because
it had the unconstitutional purpose of diluting the voting strength of black
voters in Bossier Parish. Properly analyzed in light of the factors set
forth in Village of Arlington Heights v. Metropolitan Housing Development
Corp., 429 U.S. 252 (1977), the evidence establishes appellee's discriminatory
intent. There is both a long and a recent history of racial discrimination
against blacks in Bossier Parish, including and especially discrimination
by the School Board. The facts leading up to the adoption of the plan persuasively
show invidious intent. The Board originally had little interest in the Police
Jury plan because that plan interfered with its traditional districting
goals, and intended to adopt an entirely different plan; it turned to the
Police Jury plan only after black voters in the Parish began to insist on
a plan that would create a majority-black district. The record establishes
that the Police Jury plan had the effect of perpetuating the dilution of
blacks' voting strength in the Parish. Statements by School Board members
also indicate the Board was hostile to black representation on the Board.
The district court indeed acknowledged that the Board did not welcome improvement
in the political position of blacks in the Parish, and that the Board was
motivated to adopt the plan by a "tenacious determination" to
maintain the status quo (J.S. App. 7a)-a status quo in which, appellee has
conceded, blacks' votes are diluted.
In examining appellee's purpose, the district court erroneously confined
its analysis of the evidence under the Arlington Heights framework to determining
whether the plan had a retrogressive purpose. Thus, to the extent the district
court may have addressed the plan's discriminatory (but not retrogressive)
purpose, its analysis was legally insufficient, for it failed to apply Arlington
Heights to determine whether the plan had a discriminatory purpose. Similarly,
any conclusion by the district court that appellee adopted the plan for
legitimate reasons could not be sustained on appeal because of the lower
court's erroneous truncation of its analysis. The record shows in any event
that appellee's justifications for its plan are pretextual. Moreover, because
appellee must show the absence of a discriminatory purpose to its 1992 plan,
preclearance should be denied because the evidence shows that the plan did
have a discriminatory purpose, even if there might also be legitimate justifications
for the plan.
ARGUMENT
BECAUSE BOSSIER PARISH SCHOOL BOARD'S 1992 REDISTRICTING PLAN WAS ENACTED
WITH AN UNCONSTITUTIONAL, RACIALLY DISCRIMINATORY PURPOSE, THE DISTRICT
COURT ERRED IN PRECLEARING THAT PLAN
A. Section 5 Of The Voting Rights Act of 1965 Bars Preclearance Of A Voting
Change Enacted With An Unconstitutional, Racially Discriminatory Purpose,
Whether Or Not The Change Was Also Intended To Make The Position Of Minorities
Worse Than Before The Change Was Enacted
1. Congress Intended Section 5 To Bar Implementation Of Unconstitutional
Voting Changes Enacted By Covered Jurisdictions
Section 5 bars the implementation of a covered jurisdiction's voting change
unless the jurisdiction establishes that the change "does not have
the purpose and will not have the effect of denying or abridging the right
to vote on account of race or color." 42 U.S.C. 1973c. A "purpose
* * * of * * * abridging the right to vote on account of race" includes
any purpose to limit the voting power of minorities, including the purpose
to implement and perpetuate a regime because it dilutes the votes of racial
minorities. See Allen v. State Bd. of Elections, 393 U.S. 544, 569 (1969)
(explaining that Section 5 requires preclearance review even when covered
jurisdiction does not bar minorities from voting, because "[t]he right
to vote can be affected by a dilution of voting power as well as by an absolute
prohibition on casting a ballot"); Georgia v. United States, 411 U.S.
526, 534 (1973) (Section 5 requires preclearance review of redistricting
plans because of potential for dilution of minorities' votes); cf. Rogers
v. Lodge, 458 U.S. 613, 617 (1982) (upholding Fourteenth Amendment intentional
vote-dilution challenge to county's at-large election system).
This interpretation is not only consistent with the plain language of the
statute, but also it is necessary to effectuate the unambiguous intent of
Congress in enacting Section 5 of the statute, in two respects. First, Congress
clearly intended in Section 5 to prohibit the implementation of any new
practice that violated the Constitution's prohibitions against racial discrimination
in voting. Second, Congress enacted Section 5 for the specific purpose of
preventing jurisdictions from substituting for one prohibited voting practice
another voting practice designed to restore-but not necessarily to magnify-the
discriminatory features of the prohibited law. Neither congressional purpose
would be served by the construction of Section 5 proposed by appellee (Mot.
to Aff. 19), limiting its reach to voting changes enacted with "retrogressive
intent"-i.e., with the purpose of making the position of minorities
worse than it was before the change.
Congress's overarching purpose in enacting and reenacting Section 5 was
to enforce the Constitution's prohibitions against purposeful racial discrimination
in voting. See South Carolina v. Katzenbach, 383 U.S. 301, 325-326 (1966);
City of Rome v. United States, 446 U.S. 156, 173-178 (1980); S. Rep. No.
417, 97th Cong., 2d Sess. 9-10 (1982). Indeed, Section 5 tracks the language
of the Fifteenth Amendment, which prohibits intentional racial discrimination
in official voting practices. Cf. U.S. Const. Amend. XV, § 1 ("The
right of citizens * * * to vote shall not be denied or abridged * * * on
account of race [or] color[.]"); Gomillion v. Lightfoot, 364 U.S. 339
(1960). If Section 5's purpose prong were limited to voting changes enacted
with a retrogressive intent, then the federal courts (including this Court)
and the Attorney General would be required to give approval to changes specifically
intended to impair minorities' voting rights in violation of the Constitution,
so long as the voting changes were not intended to (and did not) make the
position of minorities worse. The background to Section 5 shows that such
a construction of Section 5 is implausible.
Congress enacted Section 5 for the specific purpose of stopping the practice
of replacing one unconstitutional voting law with another. In the Civil
Rights Act of 1957, Congress, to enforce the Fifteenth Amendment, had declared
that all citizens otherwise qualified to vote should be entitled to vote
"without distinction of race, color, or previous condition of servitude,"
42 U.S.C. 1971(a) (1958), and had authorized the Attorney General to bring
suit to prevent the deprivation of the right to vote on account of race,
42 U.S.C. 1971(c) (1958). The Justice Department's experience under the
1957 Act was that that statute's approach, requiring affirmative litigation
by the federal government, accomplished little (and that only after great
delay) because jurisdictions intent on impairing blacks' right to vote resisted
voting rights litigation to the utmost. In particular, even after the federal
government won final judgments enjoining jurisdictions from enforcing particular
discriminatory tests, the jurisdictions simply switched to new devices in
order to accomplish the same result. As Attorney General Katzenbach told
a subcommittee of the House Judiciary Committee: "[T]he fact is that
those who are determined to resist are able, even after apparent defeat
in the courts, to devise whole new methods of discrimination. And often
that means beginning the whole weary process all over again."4
Congress therefore determined "to shift the advantage of time and inertia
from the perpetrators of the evil to its victims." South Carolina,
383 U.S. at 328. It did so by "suspend[ing] new voting regulations
[in covered jurisdictions] pending scrutiny by federal authorities to determine
whether their use would violate the Fifteenth Amendment." Id. at 334.5
Under appellee's view of Section 5, however, if the Justice Department successfully
sued to enjoin enforcement of a covered jurisdiction's racially discriminatory
voting practice as violative of the Fifteenth Amendment, and the jurisdiction
then responded with a different practice that was intended to have, and
did have, precisely the same (or a slightly less) invidious effect on blacks'
voting rights in violation of the Fifteenth Amendment, then the Attorney
General would be required to preclear that new practice.
Nothing in the legislative background to Section 5 suggests that Congress
anticipated or desired that the Attorney General preclear newly adopted
voting practices that violated the Constitution as long as the new practices
were intended merely to hold the line against additional black registration
or participation in elections. To the contrary, as the Court explained in
South Carolina, Section 5 requires "the suspension of all new voting
regulations pending review by federal authorities to determine whether their
use would perpetuate voting discrimination." 383 U.S. at 316 (emphasis
added); see id. at 335 (Congress intended Section 5 to prohibit jurisdictions
from "contriving new rules of various kinds for the sole purpose of
perpetuating voting discrimination") (emphasis added).
Furthermore, when Congress reenacted Section 5 in 1970 and 1982, the relevant
committees explained that Section 5 review continued to be necessary to
prevent the perpetuation and maintenance of voting discrimination through
adoption of new voting regulations.6 Indeed, one of Congress's specific
concerns when it reenacted Section 5 was that covered jurisdictions that
had previously prevented blacks from voting entirely had switched to more
subtle methods of abridging minorities' voting rights, such as vote dilution
through redistricting plans.7 Congress retained the preclearance requirement
to ensure federal review of cases in which covered jurisdictions abandoned
blunt denials of minorities' right to vote in favor of permitting minorities
to register and vote but intentionally diluting the value of their vote-a
shift that may not be retrogressive but is unquestionably discriminatory
and unconstitutional.8 This shift would have come as no surprise to the
Congress that enacted Section 5, for it knew that jurisdictions covered
by the Act had resorted to "extraordinary stratagem[s]" to resist
black enfranchisement in the past and had reason to suppose that they would
"try similar maneuvers in the future in order to evade the remedies
for voting discrimination contained in the Act itself." South Carolina,
383 U.S. at 335.
Thus, although there has been disagreement over "how far beyond the
Constitution's requirements Congress intended [Section 5] to reach,"
neither Congress nor this Court has ever expressed doubt that Section 5's
prohibition of discriminatory voting changes was intended "to reach
as far as the Constitution itself." J.S. App. 57a (Breyer, J., concurring).
To hold that the Attorney General and the courts must preclear voting changes
enacted with a racially discriminatory (but not retrogressive) purpose would
be to conclude that Section 5-the federal government's principal weapon
in its arsenal against racial discrimination in voting -cannot reach what
Congress understood to be its principal target: the perpetuation of intentional
racial discrimination in voting that violates the Constitution.
2. This Court Has Construed Section 5 To Bar Voting Changes With A Discriminatory,
But Not Retrogressive, Purpose
a. This Court has consistently held that a voting change enacted with the
intent to discriminate against minorities must be denied preclearance under
Section 5, whether or not the covered jurisdiction acted with a retrogressive
intent. Most recently, in City of Pleasant Grove v. United States, 479 U.S.
462 (1987), the Court denied preclearance to the annexation, by a city with
an all-white population, of two parcels of land, one vacant and one inhabited
only by a few white residents. The Court affirmed the district court's ruling
that the City of Pleasant Grove had failed to show that its annexations
were untainted by a discriminatory purpose, id. at 469, even though it was
agreed that the change could not possibly have been retrogressive of the
position of black voters in the City at the time of the annexation, since
there were no such black voters there, id. at 470-471. The Court squarely
rejected the contention that "an impermissible purpose under §
5 can relate only to present circumstances," id. at 471, and affirmed
the denial of preclearance on the basis of the City's "impermissible
purpose of minimizing future black voting strength," id. at 471-472.
"One means of thwarting this process [of black political empowerment],"
the Court noted, "is to provide for the growth of a monolithic white
voting block, thereby effectively diluting the black vote in advance. This
is just as impermissible a purpose as the dilution of present black voting
strength." Id. at 472. In reaching that conclusion, the Court rejected
the argument, advanced in dissent, that, "for a city to have a discriminatory
purpose within the meaning of the Voting Rights Act, it must intend its
action to have a retrogressive effect on the voting rights of blacks."
Id. at 474 (Powell, J., dissenting); see id. at 471 n.11 (opinion of the
Court, rejecting dissent's position).9
Similarly, in City of Richmond v. United States, 422 U.S. 358 (1975), the
Court ruled that, if an annexation plan was motivated by a discriminatory
purpose, it must be denied preclearance, even if the plan does not have
a prohibited discriminatory effect on minorities' franchise. Although the
Court concluded in that case that the annexation plan at issue did not have
a prohibited effect on the position of minorities, it made clear the inquiry
could not stop at that point, because the district court had found the annexation
plan "was infected by the impermissible purpose of denying the right
to vote based on race through perpetuating white majority power to exclude
Negroes from office through at-large elections." Id. at 373. The Court
remanded for further proceedings on the issue of the City of Richmond's
intent, and it stressed that, even though the ultimate effect of the annexation
might have been permissible, nonetheless "[a]n official action, whether
an annexation or otherwise, taken for the purpose of discriminating against
Negroes on account of their race has no legitimacy at all under our Constitution
or under the statute. Section 5 forbids voting changes taken with the purpose
of denying the vote on the grounds of race or color." Id. at 378; see
also City of Port Arthur v. United States, 459 U.S. 159, 168 (1982) (relying
on City of Richmond to hold that, even if electoral scheme might reflect
political strength of a minority group and therefore pass "effect"
test, "the plan would nevertheless be invalid if adopted for racially
discriminatory purposes").
This Court's summary affirmance of the district court's denial of preclearance
in Busbee v. Smith, 549 F. Supp. 494, 516 (D.D.C. 1982), aff'd, 459 U.S.
1166 (1983), also holds that a voting change must be denied preclearance
if it was enacted with a discriminatory purpose, even if that purpose was
not necessarily retrogressive. The redistricting plan at issue in Busbee
was concededly not retrogressive in effect, and in fact it increased black
voting strength somewhat. Id. at 516. The district court, however, relying
upon evidence of Georgia's intent to avoid the creation of a majority-black
district in the Atlanta area, denied Section 5 preclearance. Id. at 516-518.
The court explained that the redistricting plan was "being denied Section
5 preclearance because State officials successfully implemented a scheme
designed to minimize black voting strength to the extent possible, [and]
the plan drawing process was not free of racially discriminatory purpose."
Id. at 518. It therefore denied preclearance squarely on a finding that
Georgia had acted with a discriminatory, but not retrogressive, intent.
In its appeal from the district court's judgment, Georgia included the following
question in its jurisdictional statement: "Whether a Congressional
reapportionment plan that does not have the purpose of diminishing the existing
level of black voting strength can be deemed to have the purpose of denying
or abridging the right to vote on account of race within the meaning of
Section 5 of the Voting Rights Act." J.S. at i, Busbee v. Smith, 459
U.S. 1166 (1983); see id. at 22. In response, the government noted that
"[t]he core of [the State's] argument is that the only discriminatory
purpose that violates Section 5 is a purpose to * * * cause retrogression,"
and argued that this reading of Section 5 was foreclosed by City of Richmond,
supra. See Gov't Mot. to Aff. at 4-6, Busbee v. Smith, supra. Thus, this
Court's summary affirmance in Busbee necessarily rejected the contention
that a voting plan enacted with a nonretrogressive, yet discriminatory,
purpose may be precleared.
In addition, in Beer v. United States, 425 U.S. 130, 141 (1976), the Court
stated that even an ameliorative election plan can violate Section 5 if
it "so discriminates on the basis of race or color as to violate the
Constitution"; see also id. at 142 n.14 (noting that "[i]t is
possible that a legislative reapportionment could be a substantial improvement
over its predecessor in terms of lessening racial discrimination, and yet
nonetheless continue so to discriminate on the basis of race or color as
to be unconstitutional"). Appellee acknowledges that Beer "suggests
that any changes that violate the Constitution also violate Section 5."
Mot. to Aff. 24 (internal quotation marks omitted). Congress has reached
the same conclusion, for that part of Beer was expressly noted with approval
in the definitive Senate Report accompanying Congress's 1982 extension of
Section 5 without change. See S. Rep. No. 417, supra, at 12 n.31; see also
Thornburg v. Gingles, 478 U.S. 30, 43 n.7 (1986) (noting that the Senate
Report is the "authoritative source" of the legislative history
for the 1982 extension of the Act). Congress's reenactment of Section 5
without changing its applicable standard amounts to a codification of the
Court's reading of Section 5 in Beer.10
b. Appellee has argued (Mot. to Aff. 21) that, because the Court in Beer
limited the "effect" prong of Section 5 to retrogressive effects,
the "purpose" prong must necessarily be limited to an intent to
cause retrogression. That argument, however, overlooks both the function
played by the effect prong of Section 5 and many of the concerns that animated
the Court's construction of it in Beer.
As this Court explained in City of Rome, Congress in Section 5 prohibited
the implementation of voting changes that have a retrogressive effect, even
if they do not violate the Constitution itself, because for many years the
covered jurisdictions had imposed devices to effect voting discrimination,
and had successfully impeded the ability of racial minorities to exercise
the electoral franchise effectively. See 446 U.S. at 176. A nonretrogression
principle was necessary to ensure that further voting changes did not retard
minorities' progress in overcoming that past discrimination. See id. at
177-178; see also South Carolina, 383 U.S. at 334 (suspension of tests and
devices necessary to remedy past discrimination because they could "freeze
the effect of past discrimination"); Lopez v. Monterey County, 119
S. Ct. 693, 703 (1999) (reaffirming that "the Act may guard against
both discriminatory animus and the potentially harmful effect of neutral
laws" in a covered jurisdiction).
The Court has also recognized, however, that allowing a voting practice
(or, indeed, any official action) to be subject to challenge solely because
it has a discriminatory effect has implications that are potentially very
broad. In Beer, for example, the Court noted that the district court had
applied the concept of "discriminatory effect" to rule, in effect,
that blacks were entitled to proportional representation. See 425 U.S. at
136 & n.8. Indeed, in the same Term as Beer, the Court decided Washington
v. Davis, 426 U.S. 229 (1976), which held that proof of discriminatory purpose
is necessary to establish a violation of the Equal Protection Clause of
the Fourteenth Amendment. In rejecting the contention that a discriminatory
effect alone is sufficient to establish a constitutional violation, the
Court emphasized in Davis that such a broad-ranging constitutional rule
"would be far reaching and would raise serious questions about, and
perhaps invalidate, a whole range of tax, welfare, public service, regulatory,
and licensing statutes that may be more burdensome to the poor and to the
average black than to the more affluent white." Id. at 248.
The same concerns, however, are not raised by a construction of Section
5 that prohibits enforcement of voting changes enacted with a purpose to
discriminate against minorities. Such a rule does not preclude any voting
practice per se; it simply requires that state actors not adopt practices
with a discriminatory intent. Cf. Rogers, 458 U.S. at 617 (reaffirming that
at-large voting systems are not unconstitutional per se, but also holding
that they may not be used for the purpose of vote dilution).
The Court has also observed that Section 5-and in particular, its effect
prong, which bars enforcement of many voting practices that are not actually
unconstitutional-"imposes substantial federalism costs." Lopez,
119 S. Ct. at 703 (internal quotation marks omitted). Limiting Section 5's
effect prong to cases of retrogression cabins those federalism costs substantially,
for a construction of the statute's "discriminatory effect" provision
not limited by the principle of retrogression might have substantially interfered
with the States' ability to implement election laws that do not offend the
Constitution. But there are far fewer federalism costs to a reading of Section
5 that precludes enforcement of voting practices motivated by intentional
racial discrimination (even if that motivation is not retrogressive). Such
practices violate the Constitution itself, and therefore may not be legitimately
enforced.11 The principal federalism costs imposed by Section 5 in a case
of intentional racial discrimination involve the requirement of preclearance
and the shifting of the burden of proof to the covered jurisdiction to show
that the voting practice does not have a discriminatory purpose. But the
Court long ago sustained those aspects of Section 5 as necessary to combat
"persistent discrimination in voting, because of the inordinate amount
of time and energy required to overcome the obstructionist tactics invariably
encountered in [such] lawsuits." South Carolina, 383 U.S. at 328; see
Lopez, 119 S. Ct. at 703.
3. The Attorney General's Construction Of Section 5 Is Entitled To Deference
Finally, the Attorney General's construction of Section 5 as prohibiting
preclearance of voting changes enacted with an unconstitutional discriminatory
purpose (whether or not that purpose is retrogressive) is entitled to deference.
The Attorney General has consistently followed that construction. In more
than 30 years of enforcement of the Voting Rights Act, the Department of
Justice has always read Section 5 to require covered jurisdictions to establish
that their voting changes were enacted without an unconstitutionally discriminatory
purpose, and it has never limited its purpose analysis on preclearance review
to a search for "retrogressive intent."12 The Attorney General's
published procedures for Section 5 submissions do not even recognize the
concept of "retrogressive intent," but rather make clear that
"the Attorney General will consider whether the change is free of discriminatory
purpose and retrogressive effect in light of, and with particular attention
being given to, the requirements of the 14th, 15th, and 24th amendments
to the Constitution." 28 C.F.R. 51.55(a). That longstanding and consistent
construction of Section 5 by the Attorney General is entitled to "particular
deference" in light of her "central role" in administering
Section 5. See Dougherty County Bd. of Educ. v. White, 439 U.S. 32, 39 (1978);
Lopez, 119 S. Ct. at 702.
B. Bossier Parish School Board's 1992 Redistricting Plan Was Enacted With
An Unconstitutional, Racially Discriminatory Purpose
1. Proper Analysis Of The Board's Adoption Of The 1992 Plan Under The Arlington
Heights Framework Shows That The Board Had A Discriminatory Purpose
Appellee has the burden to prove the absence of discriminatory purpose behind
the 1992 plan. City of Rome, 446 U.S. at 183 n.18. The Court has instructed
that, in analyzing "whether invidious discriminatory purpose was a
motivating factor" for a voting change, courts should employ the framework
of Arlington Heights, supra. See J.S. App. 48a; cf. Rogers, 458 U.S. at
618 (using same framework to evaluate claim of intentional vote dilution).
That framework directs the courts to consider, in particular, whether the
official action "bears more heavily on one race than another";
the "historical background of the [jurisdiction's] decision";
the "specific sequence of events leading up to the challenged decision";
"[d]epartures from the normal procedural sequence" and "substantive
departures"; and "[t]he legislative or administrative history,"
especially "contemporary statements by members of the decisionmaking
body." J.S. App. 49a; Arlington Heights, 429 U.S. at 266-268. Under
that analysis, which was faithfully applied to this case by Judge Kessler
(see J.S. App. 23a-26a, 117a-134a), "the only conclusion that can be
drawn * * * is that [appellee] acted with discriminatory purpose" (id.
at 134a).
a. Historical Background. There is a well-documented history of racial discrimination
affecting blacks in Bossier Parish, including discrimination by the School
Board, continuing into the present. As the parties stipulated (J.S. App.
210a-214a), before passage of the Voting Rights Act, Louisiana employed
numerous tests and devices to prevent blacks from voting. The Attorney General
in 1967 designated Bossier Parish for the appointment of federal voting
examiners under Section 6 of the Act, and subsequently denied preclearance
to a number of voting changes enacted by the state legislature because of
their dilutive effect on black voting rights in the Parish. See id. at 214a-216a.13
In 1991, the Police Jury (which has never drawn a majority-black district)
again adopted a districting plan with no majority-black district even though
it was "obvious" at the time that at least one reasonably compact
majority-black district could have been drawn, and yet members of the Police
Jury told the public that no such district could be drawn. Id. at 146a-147a,
154a-155a, 161a-162a.14
With respect to the School Board in particular, even after the federal courts
ordered the Board to dismantle its segregated school system (which survived
Brown by over a decade), the Board resisted. The Board disregarded a court
order to maintain a biracial committee to recommend ways to attain and maintain
a unitary school system. J.S. App. 182a-183a. It also attempted to evade
the desegregation order by segregating black children of personnel at the
local Air Force Base and implementing an unconstitutional "freedom
of choice" plan. The Board has reduced the percentage of the black
teachers in the school district by a third (to less than 10% from 14% of
the total), and has disproportionately assigned those teachers to schools
with mostly black students. Schools in the Parish have also become increasingly
segregated by race, despite the Board's affirmative duty to desegregate;
in 1993-1994, four of the 16 regular elementary schools had predominantly
black enrollment and five had student enrollments that were more than 80%
white. Id. at 216a-218a.
This Court found a similar history of official discrimination, followed
by resistance to improvement in the position of minorities, to be highly
probative of discriminatory intent in Rogers, 458 U.S. at 622-626. In support
of its holding, the Rogers Court cited such evidence as past voting discrimination,
which contributed to low black voter registration, and a racially segregated
school system. Id. at 625. The Court stressed that historical evidence of
discrimination is particularly relevant when "the evidence shows that
discriminatory practices were commonly utilized, that they were abandoned
when enjoined by courts or made illegal by civil rights legislation, and
that they were replaced by laws and practices which, though neutral on their
face, serve to maintain the status quo." Ibid. That is the case here.
Even the district court acknowledged that the Board had shown a "tenacious
determination to maintain the status quo." J.S. App. 7a.
b. Sequence Of Events Leading Up To The Decision. Especially probative in
this case is the sequence of events leading up to the Board's adoption of
the Police Jury plan for its own purposes. That course of events convincingly
demonstrates that, absent an intent to still black voters' efforts to obtain
representation on the Board, appellee would not have adopted the Police
Jury plan. When the Board first met with its cartographer (Gary Joiner)
in May 1991, no one suggested adopting the plan that the Police Jury had
just adopted, which is not surprising, since the Police Jury plan was unsuitable
for the Board's priorities in districting-namely school locations and incumbency
protection. J.S. App. 151a, 171a, 181a, 191a. At the May 1991 meeting, Joiner
estimated that preparing a redistricting plan would take him 200-250 hours,
id. at 173a, far longer than would be necessary to recycle the Police Jury
plan.
When the Board met again with Joiner in September 1991, Joiner provided
the Board with precinct maps because, he explained, the Board would need
to work with the Police Jury to alter precinct lines for its own plan (which
would have been unnecessary if the Board had intended to adopt the Police
Jury plan). J.S. App. 174a. At that meeting, Board Member Myrick-who stood
to benefit from the Police Jury plan because his district, which contained
the largest concentration of black voters under the preexisting plan, would
remain majority-white-suggested adopting that plan. The Board did not take
that course. As appellee observed below, Board members "in redistricting
fight savagely to keep their pet schools in their new districts," C.A.
No. 94-1495 Appellee Br. 6 n.2 (filed Oct. 23, 1997), and "[s]ome of
the [Board] members were unhappy with the Police Jury plan because their
pet schools were situated outside their new districts," id. at 10-11.
Over the following year, Board members met privately with Joiner to discuss
various redistricting scenarios. J.S. App. 125a-126a, 176a. Despite requests
from the local branch of the NAACP to be included in the redistricting process,
the Board gave no notice of such private meetings. Id. at 176a. Frustrated
at the Board's unresponsiveness, the NAACP developed a plan showing two
majority-black districts. Id. at 177a. After being told by Joiner that any
proposed plan must include all 12 election districts, the NAACP presented
such a plan with two majority-black districts on September 3, 1992. J.A.
175-176; J.S. App. 177a-178a.
Only then did the Board become roused to action. On September 17, 1992,
"without any further consultation with its cartographer or attempt
to address the concerns of the black community, the School Board passed
a motion of intent to adopt the Police Jury plan, which had no majority-black
districts." J.S. App. 127a. The Board found new favor in the Police
Jury plan, even though it pitted two pairs of Board incumbents against each
other and did not allocate schools among the districts to Board members'
satisfaction, in direct contradiction of the Board's traditional districting
priorities. The Board adopted the Police Jury plan at its next meeting,
even after a public hearing attended by an overflow crowd, at which not
a single person spoke in favor of the plan. Ibid. As Judge Kessler observed,
"[t]he fact that the Board adopted a plan which departs substantively
from its earlier districting plans and which ignores factors it has usually
considered of paramount concern, is probative of discriminatory purpose."
Id. at 129a. Even the majority agreed that "[e]vidence in the record
tending to establish that the board departed from its normal practices *
* * establishes rather clearly that the board did not welcome improvement
in the position of racial minorities with respect to their effective exercise
of the electoral franchise." Id. at 7a.15
c. Dilutive Impact Of The Plan. The record compiled in the district court
amply establishes that the 1992 plan had a particularly adverse impact on
black voters. In fact, appellee conceded on remand that "the School
plan did dilute black voting strength." C.A. No. 94-1495 Appellee Br.
21 (filed Oct. 23, 1997). The record corroborates that concession. Under
Thornburg v. Gingles, supra, three factors are particularly relevant to
establishing vote dilution: (1) the racial minority group must be sufficiently
large and geographically compact to constitute a majority in a single-member
district; (2) the group must be politically cohesive; and (3) the white
majority must vote sufficiently as a bloc to usually defeat the minority's
preferred candidate. 478 U.S. at 50-51. The record, including the parties'
stipulations, established each part of the Gingles test. J.S. App. 154a-155a,
192a-194a, 196a-207a.
First, in 1990, black persons comprised 20.1% of the total population of
Bossier Parish, and 17.6% of the voting age population. J.S. App. 145a-146a.
The black population of the Parish is concentrated in two areas: more than
50% of it lives in Bossier City, and the remaining black residents are concentrated
in four identifiable populated areas in the northern rural portion of the
Parish. Id. at 146a-147a. Contiguous, reasonably compact majority-black
districts can be drawn in those areas using traditional redistricting features.
Id. at 154a-155a, 192a-194a.16
Second, the history of elections in the Parish showed both the black community's
political cohesion and racially polarized voting, resulting in a pattern
in which the majority, white voters, prevented the election of the black
community's representatives to the Board. The presence of racially polarized
voting was recognized in the community and among elected officials. See
J.A. 70-71, 130, 132, 134, (testimony by Board Member Jerome Blunt, Police
Juror Jerome Darby, Bossier City Councilmember Jeff Darby, and recognition
in local press); J.S. App. 201a (Police Juror Burford's estimation that
80% of black and white voters chose candidates of their own race; stipulation
that, "[t]o some extent, voting patterns in Bossier Parish are affected
by racial preferences"). Before 1992, black candidates had run for
the School Board on at least four occasions, but none had been elected.
Id. at 195a-196a. Further, with few exceptions owing to unusual circumstances,
black voters had also been unable to elect candidates of their choice to
other political positions in the Parish. Id. at 196a-201a. Statistical analysis
of elections in which black candidates ran against white candidates disclosed
that many were affected by racial bloc voting, id. at 202a-207a, and that
"African American voters are likely to have a realistic opportunity
to elect candidates of their choice * * * only in districts in which they
constitute a majority of the voting age population." J.A. 174. Indeed,
where black persons comprise 20% of the population, "it is sensible
to expect" that at least some black representatives would have been
elected to one of the Board's 12 single-member districts before the 1992
redistricting plan was adopted, and "the fact that none [had] ever
been elected" is important evidence of purposeful discrimination. Rogers,
458 U.S. at 623-624.
d. Contemporaneous Statements. Finally, contemporary statements by members
of the Board support a finding of discriminatory intent. Member Henry Burns
told one witness who testified at trial that, although he personally favored
"having black representation on the board, other school board members
oppose[d] the idea." J.S. App. 83a n.4. Member Barry Musgrove told
appellant Price that "the Board was 'hostile' toward the idea of a
black majority district." Ibid. Tom Myrick also told two of the intervenors,
after a meeting at which black community representatives had raised concerns
about unequal funding for computer purchases at predominantly black schools,
that "we [the African Americans] were always trying to take his seat
and * * * he was not going to let us take it away from him." J.A. 212;
see J.A. 182-183; J.S. App. 83a n.4. "[C]onsidered in the context of
the School Board's discriminatory past, * * * th[ose] statements add further
proof of improper motive," and "it seems fair to conclude that
at least some School Board Members were openly 'hostile' to black representation
on the school board." Id. at 133a.
In sum, applying Arlington Heights to the record permits only one conclusion:
when the Board adopted the Police Jury plan as its own redistricting plan,
it acted with the unconstitutional, racially discriminatory purpose to deny
black voters a fair opportunity to elect candidates of their choice to the
School Board.
2. To The Extent The District Court May Have Ruled That The Board Acted
Without A Discriminatory Purpose, That Conclusion Cannot Be Sustained
a. Despite the impressive evidence showing that the Board acted with discriminatory
intent in adopting its redistricting plan, appellee argues (Mot. to Aff.
15) that the district court actually found that the plan was free even of
a discriminatory, but nonretrogressive purpose. That argument is based on
two cursory sentences in the district court's opinion on remand.17 While
the meaning of those sentences is decidedly uncertain, they are best read
only as stating that the court would not decide whether appellee acted with
a discriminatory intent, not that it decided that appellee had acted without
a discriminatory intent. Indeed, just after those sentences, the lower court
proceeded to explain that "[t]he question we will answer, accordingly,
is whether the record disproves [appellee's] retrogressive intent in adopting
the [Police] Jury plan." J.S. App. 4a.
Moreover, to the extent the district court's opinion might be read as concluding
that appellee had acted without any discriminatory intent, that conclusion
cannot be sustained on appeal. This Court has admonished that "[d]etermining
whether invidious discriminatory purpose was a motivating factor demands
a sensitive inquiry into such circumstantial and direct evidence of intent
as may be available," Arlington Heights, 429 U.S. at 266, and has set
forth a framework for analyzing evidence of discriminatory intent, id. at
266-268; J.S. App. 48a-49a. The district court's comment about the existence
vel non of a discriminatory purpose, however, was unaccompanied by any discussion
of the Arlington Heights framework or any analysis of the evidence under
it. As Judge Kessler pointed out, the majority discussed the Arlington Heights
factors "only for the purpose of finding evidence of retrogressive
intent." J.S. App. 24a (emphasis added). Thus, even when the majority
did apply the Arlington Heights factors, it followed its findings establishing
that the Board did not want blacks in the Parish to improve their voting
strength with a statement that such evidence did not show intent to retrogress.
See pp. 12-14, supra; J.S. App. 5a-8a. Because the lower court failed to
apply the Arlington Heights factors to the broader question of discriminatory
but nonretrogressive intent, any finding that it may have made on that point
is not entitled to deference under the "clearly erroneous" rule
of Federal Rule of Civil Procedure 52(a). See Schneiderman v. United States,
320 U.S. 118, 129-130 (1943) (declining to follow district court's findings
because they were "but the most general conclusions of ultimate fact,"
and it was "impossible to tell from them upon what underlying facts
the court relied, and whether proper statutory standards were observed").18
Furthermore, any conclusion that appellee's adoption of the plan was free
of a discriminatory purpose would be manifestly contrary to the weight of
the evidence, as well as the district court's own findings. The court readily
acknowledged that appellee was motivated by a "tenacious determination
to maintain the status quo." J.S. App. 7a. It also accepted that the
record "establishes rather clearly that the board did not welcome improvement
in the position of racial minorities with respect to their effective exercise
of the electoral franchise." Ibid. The lower court's previous decision
in this case also recognized that the Board had initially disliked the Police
Jury plan for valid reasons, and that it turned to that plan only after
the redistricting process "began to cause agitation within the black
community." Id. at 106a. Thus, while the district court characterized
the 1992 plan as a "close port" available in a "storm,"
ibid., the "storm" was actually the Board's realization that the
black community was seeking improvement in its political position, something
the Board was determined to oppose.19 That determination to maintain a status
quo that diluted the voting strength and minimized the political effectiveness
of blacks in Bossier Parish is a discriminatory purpose in violation of
the Constitution. See Rogers, 458 U.S. at 617.
b. In rejecting a finding of retrogressive intent, the district court suggested
that appellee had advanced two "legitimate, non-discriminatory"
explanations for choosing the Police Jury plan rather than the NAACP plan-"guaranteed
preclearance" by the Attorney General and "easy implementation"
(because no precinct lines would need redrawing under the Police Jury plan).
J.S. App. 5a, 106a. The court's statement that those justifications were
"legitimate" and "non-discriminatory," however, was
predicated on its erroneous truncation of its legal analysis to the issue
of retrogressive intent, and therefore is not entitled to deference on appeal.
See Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485,
501 (1984) ("Rule 52(a) does not inhibit an appellate court's power
to correct * * * a finding of fact that is predicated on a misunderstanding
of the governing rule of law."). The record clearly demonstrates, moreover,
that the proffered justifications were pretextual.
Appellee's hope for "guaranteed preclearance" of the 1992 plan
is plainly insufficient, for once an alternative plan with majority-black
districts was presented to it, the Board could not reasonably have believed
that a plan which ameliorated the existing vote dilution would be less likely
to receive preclearance than the Police Jury plan. The record also shows
that guaranteed preclearance did not in fact induce the Board to adopt the
Police Jury plan. Since the plan was precleared for Police Jury elections
on July 29, 1991, the Board could have adopted it when it was first proposed
on September 5, 1991, or anytime over the next year, yet it continued the
process of developing another plan for more than a year. See pp. 6-8, supra.
On the other hand, the Board had important reasons to enact a different
plan, for the Police Jury plan did not protect the incumbencies of four
Board members and was not drawn with school locations in mind. See pp. 6-7,
supra.
Concerns over splitting precincts also did not motivate the Board to adopt
the Police Jury plan. There is no evidence that the Board was concerned
about preserving precincts before the black community began to request that
a majority-black district be drawn. In fact, the Board had anticipated splitting
precincts from the beginning of its redistricting process, in order to adopt
a plan different from the Police Jury plan that would best serve its legitimate
objectives (including preserving the seats of incumbents, a goal that was
later sacrificed in the 1992 plan). J.S. App. 174a. The parties also stipulated
that school boards may request that the Police Jury realign the Parish's
precincts- a process that is both legal and common in Louisiana. Id. at
151a. But when the NAACP presented its plan with two majority-black districts,
Joiner and the Bossier Parish district attorney asserted (contrary to their
knowledge of state law) that the NAACP plan could not be considered because
its district lines crossed existing precinct lines, and therefore, would
violate state law. Id. at 179a.
Finally, even if the district court were correct that the Board's proffered
reasons for its adoption of the 1992 plan were not pretextual, the court's
decision to preclear the plan would still be erroneous as a matter of law,
because the record and the court's own findings make clear that the Board
also acted with a discriminatory intent in adopting the 1992 plan. A jurisdiction
seeking preclearance of a voting change has the burden of proving the absence
of discriminatory purpose on its part. City of Pleasant Grove, 479 U.S.
at 469. Because the presence of a discriminatory purpose requires denial
of preclearance, a jurisdiction's election plan is not entitled to preclearance
if a discriminatory purpose significantly contributed to the adoption of
the plan. The fact that the jurisdiction may have had some legitimate reason
for enacting the plan does not permit the court to ignore its discriminatory
motivation in doing so. Cf. 42 U.S.C. 2000e-2(m) (Title VII is violated
when race "was a motivating factor for any employment practice, even
though other factors also motivated the practice").
CONCLUSION
The judgment of the district court should be reversed.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
BILL LANN LEE
Acting Assistant Attorney General
BARBARA D. UNDERWOOD
Deputy Solicitor General
PAUL R.Q. WOLFSON
Assistant to the Solicitor General
MARK L. GROSS
LOUIS E. PERAERTZ
Attorneys
MARCH 1999
APPENDIX
1. The Fourteenth Amendment to the United States Constitution provides,
in pertinent part:
SECTION 1. * * * No State shall * * * deny to any person within its jurisdiction
the equal protection of the laws.
* * * * *
SECTION 5. The Congress shall have power to enforce, by appropriate legislation,
the provisions of this article.
2. The Fifteenth Amendment to the United States Constitution provides:
SECTION 1. The right of citizens of the United States to vote shall not
be denied or abridged by the United States or by any State on account of
race, color, or previous condition of servitude.
SECTION 2. The Congress shall have power to enforce this article by appropriate
legislation.
3. Section 5 of the Voting Rights Act of 1965, 42 U.S.C. 1973c, provides
in pertinent part:
Whenever a State or political subdivision with respect to which the prohibitions
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 prerequisite
to voting, or standard, practice, or procedure with respect to voting different
from that in force or effect on November 1, 1964, * * * 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, prerequisite,
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, or in contravention of the guarantees set forth in section
1973b(f)(2) of this title, 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, prerequisite, standard, practice, or procedure; Provided,
That such qualification, prerequisite, standard, practice, or procedure
may be enforced without such proceeding if the qualification, prerequisite,
standard, practice, or procedure has been submitted by the chief legal officer
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, or upon good cause shown, to facilitate
an expedited approval within sixty days after such submission, the Attorney
General has affirmatively indicated that such objection will not be made.
* * * * *
1 "J.S. App." refers to the appendix to the jurisdictional statement
in No. 98-405.
2 When the largely stipulated record was compiled in this case, no black
person had ever been elected to the School Board. J.S. App. 195a. In the
16 elections in the Parish held from 1981 through 1993 in which a black
candidate ran against a white candidate in a single-member district or for
mayor, only two black candidates (one for Police Jury, one for Bossier City
Council) won. Both of those candidates ran in districts that contained a
United States Air Force base that increased the ability of black voters
to elect representatives of their choice, in a manner peculiar to those
districts. Id. at 196a-198a, 199a-200a, 206a; J.A. 168-170, 515-521. When
the plans were reconfigured after the 1990 census in a way that reduced
the effect of the Air Force Base area, the black incumbent Police Juror
was reelected unopposed in 1991 (J.S. App. 198a), and the incumbent black
Bossier City Councilmember faced a white challenger in 1993 and lost (id.
at 200a).
Before its earlier decision in this case, this Court denied the Board's
motion to supplement the record with the results of an election that occurred
after the district court's 1995 decision. Reno v. Bossier Parish Sch. Bd.,
517 U.S. 1154 (1996). On remand, the parties agreed to rest on the record
that had previously been compiled. J.S. App. 1a. The district court offered
the Board two opportunities to reopen the record, which the Board declined.
Thus, the district court decided this case on the basis of stipulated facts
showing that voting is racially polarized in the Parish, and that no black
person had ever been elected to the Board. The Board later asked the district
court to take judicial notice of election results after the court's November
1995 judgment, in which blacks were elected to the Board. The district court
denied the motion, and explained that, were it "to consider the election
results at all, [it] would need more information about them." Id. at
1a-2a n.1; see also 98-405 Gov't Opp. to Mot. to Aff. 3-4 n.2.
3 In separate opinions, Justice Breyer, joined by Justice Ginsburg, and
Justice Stevens, joined by Justice Souter, concluded that the purpose inquiry
under Section 5 extends beyond the search for retrogressive intent, and
"includes the purpose of unconstitutionally diluting minority voting
strength." J.S. App. 56a (Breyer, J., concurring in part and concurring
in the judgment); id. at 76a (Stevens, J., dissenting in part and concurring
in part) (agreeing with Justice Breyer on that point).
4 Voting Rights: Hearings on H.R. 6400 Before Subcomm. No. 5 of the House
Comm. on the Judiciary, 89th Cong., 1st Sess. 5 (1965) (1965 House Hearing);
see also Voting Rights: Hearings on S. 1564 Before the Senate Comm. on the
Judiciary, 89th Cong., 1st Sess. Pt. 1, at 11 (1965) (Attorney General Katzenbach,
describing "second full-scale attempt to end discriminatory practices"
in Selma); H.R. Rep. No. 439, 89th Cong., 1st Sess. 10 (1965) ("Indeed,
even after apparent defeat resisters seek new ways and means of discriminating.
Barring one contrivance too often has caused no change in result, only in
methods."); S. Rep. No. 162, 89th Cong., 1st Sess. Pt. 3, at 7-9 (1965)
(joint views of 12 members of Senate Judiciary Committee, ascribing inadequacy
of 1957 Act to "intransigence of local officials and dilatory tactics"
used in voting rights litigation); H.R. Rep. No. 397, 91st Cong., 1st Sess.
2 (1969) (because of "State and local intransigence and delays in the
judicial process," earlier legislation "yielded insignificant
gains"); S. Rep. No. 417, supra, at 5 (before 1965, "case-by-case
litigation proved wholly inadequate," for "[b]y the time a court
enjoined one scheme, the election had often taken place, local officials
had devised a new scheme, or both"); South Carolina, 383 U.S. at 309-315
(reviewing evidence before Congress about ineffectiveness of litigation
under 1957 Act); Perkins v. Matthews, 400 U.S. 379, 396 & n.13 (1971)
(similar); United States v. Mississippi, 229 F. Supp. 925, 995-997 (S.D.
Miss. 1964) (Brown, J., dissenting) (describing Mississippi's response to
previous litigation), rev'd, 380 U.S. 128 (1965); United States v. Louisiana,
225 F. Supp. 353, 392-393 (E.D. La. 1963) (Wisdom, J.) (noting Louisiana
had adopted a "good citizenship" test in case its test of understanding
state constitution was invalidated), aff'd, 380 U.S. 145 (1965); United
States v. Penton, 212 F. Supp. 193, 201-202 (M.D. Ala. 1962) (Johnson, J.)
("In spite of [two] prior judicial declarations," Alabama "continues
in the belief that some contrivance may be successfully adopted and practiced
for the purpose of" depriving blacks of franchise); David J. Garrow,
Protest at Selma 12-29 (1978) (reviewing historical evidence showing ineffectiveness
of 1957 Act).
5 See also H.R. Rep. No. 439, supra, at 26 (covered jurisdiction must show
that new practice "does not have the purpose and will not have the
effect of denying or abridging rights guaranteed by the 15th amendment");
S. Rep. No. 162, supra, at 24 (same); 1965 House Hearing, supra, at 90 (Attorney
General Katzenbach, explaining that, under Section 5, voting changes could
be precleared quickly "if there was no reason to believe that those
laws were in violation of the 15th amendment").
6 See H.R. Rep. No. 397, supra, at 7; S. Rep. No. 417, supra, at 14.
7 See H.R. Rep. No. 397, supra, at 7; 116 Cong. Rec. 5521 (1970) (joint
statement by members of Senate Judiciary Committee); H.R. Rep. No. 196,
94th Cong., 1st Sess. 10 (1975); S. Rep. No. 295, 94th Cong., 1st Sess.
18 (1975); H.R. Rep. No. 227, 97th Cong., 1st Sess. 6 (1981); S. Rep. No.
417, supra, at 6, 7 & n.8, 10-12.
8 The Court has not definitively resolved whether intentional racial vote
dilution violates the Fifteenth Amendment as well as the Fourteenth Amendment.
See Voinovich v. Quilter, 507 U.S. 146, 159 (1993). When Congress reenacted
Section 5, it made clear that the Act covers racially motivated voting changes,
including intentional vote dilution, that violate the Fourteenth Amendment.
See S. Rep. No. 417, supra, at 9-10 & n.19.
9 Although the dissent in City of Pleasant Grove suggested that, "for
a city to have a discriminatory purpose within the meaning of the Voting
Rights Act, it must intend its action to have a retrogressive effect on
the voting rights of blacks," 479 U.S. at 474, the principal point
of the dissent was that the annexation of land by an all-white town could
not, by definition, have been intended to have any effect on black voters,
since there were no such black voters. The dissent took issue with what
it stated to be the Court's reliance on the possibility that black voters
might move into the town in the future, suggesting that "such speculation
in finding a discriminatory purpose on the part of a state actor is illogical
and unprecedented." Id. at 476; see id. at 476-477 ("Where an
annexation's effect on voting rights is purely hypothetical, an inference
that the city acted with a motivation related to voting rights is unsupportable.").
The harm to minority voting rights in this case obviously cannot be considered
speculative or hypothetical, since blacks live and vote in Bossier Parish,
and the record amply supports a conclusion that the 1992 plan dilutes their
votes. See pp. 38-40, infra; C.A. No. 94-1495 Appellee Br. 21 (filed Oct.
23, 1997) (conceding on remand that "the [1992] School plan did dilute
black voting strength"); J.S. App. 118a-119a (Kessler, J., dissenting)
(concluding that the 1992 plan "effectively prevents black voters from
electing candidates of their choice to the School Board").
The dissent in City of Pleasant Grove also cited City of Lockhart v. United
States, 460 U.S. 125 (1983), for its analysis of the purpose prong of Section
5. In City of Lockhart, however, the Court had no occasion to consider the
purpose prong of Section 5; because the district court in that case had
denied preclearance under Section 5's effect test alone, "it was unnecessary
for the District Court to reach the issue of discriminatory purpose."
Id. at 130 & n.4; see id. at 133 (addressing whether city's new charter
had "the effect of denying or abridging the right to vote guaranteed
by § 5"). Since the Court remanded the case to the district court
for further proceedings, id. at 136, it evidently anticipated that the district
court would address the issue of purpose on remand.
10 Appellee has acknowledged (Mot. to Aff. 24) that the Senate Report expressly
approved the Court's discussion of "purpose" in Beer, but it argues
that the Court rejected reliance on the same Senate Report on the prior
appeal in this case (see J.S. App. 42a). On the prior appeal, the Court
concluded that one aspect of the Senate Report was unreliable as an indicator
of congressional intent because it was contrary to the Court's earlier construction
of Section 5 in Beer; the Court expressed doubt that, when Congress reenacted
Section 5 without change, it would have silently disapproved the Court's
decision in Beer without amending the statutory language. Ibid. The issue
on this appeal, however, involves Congress's approval of a different part
of the Court's decision in Beer, which deserves great weight.
11 See City of Richmond, 422 U.S. at 378 (official action "taken for
the purpose of discriminating against Negroes on account of their race has
no legitimacy at all under our Constitution"); Arlington Heights, 429
U.S. at 265-266 ("When there is a proof that a discriminatory purpose
has been a motivating factor in the decision, this judicial deference is
no longer justified.").
12 The Attorney General has also consistently taken that position in litigation.
See Gov't Mot. to Aff. at 5-6, Busbee, supra; U.S. Br. at 22-24, City of
Pleasant Grove, supra.
13 In one case, a district court enjoined the use of multi-member districts
in the Bossier Parish area for the state legislature, and referred to the
plan as "gerrymandering in its grossest form." J.S. App. 215a.
14 The Police Jury plan in fact fragments well-established black communities
bordering on the town of Benton and within Bossier City. J.A. 154-156. Further,
some of the districts in the Police Jury plan are not compact, J.S. App.
191a; that plan also required the splitting of existing precincts, and was
not the plan before the Police Jury with the fewest precinct splits. Id.
at 167a-168a. The plan also departs from Louisiana law in that it lacks
contiguity at one point and its population deviation exceeds plus or minus
five percent. J.A. 233-235.
15 Both this Court and Congress have found such departures to be highly
probative of discriminatory intent. See Arlington Heights, 429 U.S. at 267
(explaining that departures from substantive considerations are relevant
"particularly if the factors usually considered important by the decisionmaker
strongly favor a decision contrary to the one reached," and suggesting
that, if in that case, the town had switched zoning classifications only
when "[it] learned of [the developer]'s plans to erect integrated housing,"
that would have presented a "far different case"); S. Rep. No.
417, supra, at 10 (explaining that preclearance remedy continued to be necessary
because jurisdictions were "depart[ing] from past practice as minority
voting strength reaches new levels").
16 The record also shows that Board members were well aware of facts establishing
the potentially dilutive impact of the plan. Board members knew where the
black population of the Parish lived; some of them explained the increasing
racial segregation in the Parish's schools on the ground that predominantly
black schools were located in predominantly black neighborhoods. J.A. 94-100,
104, 109-110, 113-124; see also J.S. App. 154a-155a (stipulation that it
was "obvious" that majority-black district could have been drawn
in Bossier City).
17 Specifically: "We are not certain whether or not we have been invited
to answer the question the Court left for another day [i.e., whether a discriminatory
but nonretrogressive purpose bars preclearance under Section 5], but we
decline to do so in this case, because the record will not support a conclusion
that extends beyond the presence or absence of retrogressive intent. We
can imagine a set of facts that would establish a 'non-retrogressive, but
nevertheless discriminatory purpose,' but those imagined facts are not present
here." J.S. App. 3a-4a.
18 See also Sanchez v. Colorado, 97 F.3d 1303, 1316 (10th Cir. 1996) ("Broad
and general findings, not explicitly tethered to any particular testimony-especially
in the [Voting Rights Act] context which demands penetrating case by case,
fact bound analysis-simply do not provide the foundation for proper appellate
review."), cert. denied, 520 U.S. 1229 (1997); Westwego Citizens for
Better Gov't v. City of Westwego, 872 F.2d 1201, 1203-1204 (5th Cir. 1989)
(district court's findings "manifestly inadequate" because they
were "stated in conclusory fashion, with virtually no reference to
the evidence presented at trial").
19 Indeed, it is difficult to see how adoption of the Police Jury plan could
be justified as helping appellee avoid controversy. To the contrary, the
facts show that adoption of that plan only exacerbated controversy. On September
17, 1992, the Board informed the public that it passed a motion of intent
to adopt the Police Jury plan. On September 24, 1992, the black community
protested the adoption of that plan, and the NAACP presented a petition
with signatures of 500 people opposing the plan's adoption. On October 1,
1992, without considering alternative ways to draw a plan with even one
majority-black district, the Board nonetheless approved the plan. J.S. App.
179a-181a. The "storm" that the Board was seeking to avoid was
not an abstract controversy about redistricting, but rather increasing assertiveness
by blacks in Bossier Parish about their voting rights.