Nos. 98-405 and 98-406
In the Supreme Court of the United States
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
REPLY BRIEF ON REARGUMENT
FOR THE FEDERAL APPELLANT
SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
In the Supreme Court of the United States
No. 98-405
JANET RENO, ATTORNEY GENERAL, APPELLANT
v.
BOSSIER PARISH SCHOOL BOARD
ON APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
REPLY BRIEF ON REARGUMENT
FOR THE FEDERAL APPELLANT
1. The Proper Scope of Section 5
a. Appellee contends (Bd. Br. 1-4)1 that the purpose prong of Section 5
of the Voting Rights Act of 1965, 42 U.S.C. 1973c, bars only new voting
practices with the purpose to worsen the electoral position of minorities,
and that this limitation is found in the statutory term "abridge."
Contary to appellee's contention (Bd. Br. 9), however, this Court has never
held that "abridge" in Section 5 refers only to retrogression.
As we have pointed out (Gov't Rearg. Br. 3-4), such a construction would
be untenable, for Sections 2(a) and 3(c) of the Act also use "abridge,"
see 42 U.S.C. 1973(a), 1973a(c), and yet those provisions are not limited
to prohibiting retrogression. Further, Section 5 was phrased to echo the
Fifteenth Amendment, which provides that the right to vote "shall not
be denied or abridged" on account of race, U.S. Const. Amend. XV, §
1, but it could not be seriously maintained that the Fifteenth Amendment
prohibits only retrogressive practices.2
Appellee also suggests (Bd. Br. 4-6) that Section 5 could not have been
intended to prevent the perpetuation of unconstitutional discrimination
because it is reactive to changes proposed by a covered jurisdiction. Appellee
reasons that, if preclearance were denied on the ground that the new voting
practice would perpetuate discrimination, the denial would simply leave
the prior discrimination in place. That argument ignores the reality of
most changes to election laws, which are set in motion by a need to address
some change in circumstances. Redistricting (as in this case) provides a
useful example. Appellee was under a constitutional obligation to redistrict
because its 1980s plan was malapportioned. Section 5 prevented it from adopting
a plan with a racially discriminatory purpose. The constitutional imperative
of reapportionment, however, prevented it from doing nothing.3
b. Appellee's effort to distance Section 5 from the Constitution leads it
to decidedly odd assertions about the function that Congress intended for
the preclearance remedy. Appellee suggests (Bd. Br. 7) that Congress intended
the elimination of discrimination to be accomplished entirely by the suspension
of tests and devices in Section 4 of the Act, 42 U.S.C. 1973b, and designed
Section 5 preclearance merely as a backstop against any retrogression from
the new and improved, nondiscriminatory state. That argument is misconceived.
As we have explained (Gov't Rearg. Br. 10-13), Congress has always understood
Section 5 as preventing both retrogression and conscious attempts to perpetuate
discrimination by new means. Thus, when Congress reenacted Section 5 in
1970, it was well aware that Section 4 had not by itself eliminated all
racially discriminatory infringements of the right to vote, and the House
Judiciary Committee stated that extension of Section 5 was "essential"
both to safeguard gains achieved and "to prevent future infringements
of voting rights based on race or color." H.R. Rep. No. 397, 91st Cong.,
1st Sess. 5 (1969); see also City of Rome v. United States, 446 U.S. 156,
182 (1980).
Appellee further argues (Bd. Br. 12 n.6) that, although there were jurisdictions
that had successfully prevented any black citizens from registering or voting
in their elections before Section 5 was enacted, it would nonetheless have
been theoretically possible for those jurisdictions to bring about retrogression.
According to appellee, in sum, no matter how bad things were in 1965, they
could always have been worse. But even if we assume arguendo that a jurisdiction
that had for years successfully prevented a single black citizen from registering
to vote might somehow have brought about a further erosion of blacks' right
to vote, it is scarcely conceivable that Congress intended Section 5 to
have only the minuscule function of barring such "retrogression."
By that hypothesis, Section 5 would have been least significant in the jurisdictions
with the worst history of official racial discrimination in voting.
c. Appellee also strains to avoid the import of this Court's precedents.
Concerning City of Pleasant Grove v. United States, 479 U.S. 462 (1987),
appellee speculates that Pleasant Grove's annexation of an all-white enclave
might have been intended to cause retrogression because, appellee asserts
(Bd. Br. 20), Pleasant Grove had 32 black residents. But every Justice on
this Court, as well as the district court, decided Pleasant Grove on the
assumption that the town was all-white at the time of the annexation, and
that assumption was shared by the parties litigating the case. See 479 U.S.
at 465 n.2 (opinion of the Court); id. at 475 (Powell, J., dissenting);
City of Pleasant Grove v. United States, 568 F. Supp. 1455, 1456 n.3 (D.D.C.
1983). Pleasant Grove's officials had been unaware of the presence of any
black residents of the town, see 479 U.S. at 465 n.2, and so they could
not have acted with the purpose to worsen the existing voting strength of
those residents. The officials' objective was to maintain the status quo.
See id. at 472.4
Appellee also misapprehends the holding of City of Richmond v. United States,
422 U.S. 358 (1975). Appellee observes (Bd. Br. 10-11) that the alleged
discriminatory purpose behind the annexation at issue in that case was a
purpose to reduce the voting strength of blacks in Richmond from its pre-annexation
level; indeed, the Court held that, if the annexation was in fact designed
for that purpose, then it should be denied preclearance-even though the
very same reduction in the voting strength of blacks in Richmond was permissible
under Section 5's effect prong, as applied in the annexation context. See
422 U.S. at 378. That holding of City of Richmond, however, conclusively
demonstrates that appellee's reading of Section 5 is wrong. If appellee
were correct that the purpose and effect prongs of Section 5 must be coterminous,
then City of Richmond could not have been correctly decided. That case stands
for the proposition that a jurisdiction's "purpose" to achieve
a particular outcome (there, a particular reduction in minority voting strength)
may require denial of preclearance under the purpose prong, even when nonpurposeful
official action with exactly the same "effect" does not require
denial of preclearance under the effect prong. Thus, while appellee argues
that, "[i]f the result is legitimate, it is difficult to understand
why it becomes illegitimate simply because it is intended," Bd. Br.
12, the Court rejected that very position when it explained in City of Richmond
that "it could be forbidden by § 5 to have the purpose and intent
of achieving only what is a perfectly legal result under that section."
422 U.S. at 378.5
d. Appellee persistently accuses the Department of Justice of pursuing a
"maximization" policy requiring covered jurisdictions to create
as many majority-black districts as possible.6 This case, however, has nothing
to do with maximization. When the Department interposed an objection to
appellee's 1992 plan, it made clear that appellee was "not required
by Section 5 to adopt any particular plan." J.S. App. 235a. The Department
detected a discriminatory purpose in the plan, not just because it provided
for no majority-black districts (much less any "maximum" possible
number), but also because appellee had manipulated the redistricting process
to override the concerns of the black community, and had failed even to
consider whether blacks would be represented fairly under the 1992 plan
when (as appellee later stipulated) it was "obvious" that at least
one reasonably compact, majority-black district could be drawn using traditional
districting criteria. Id. at 154a-155a.
The Department of Justice analyzed appellee's plan under the purpose prong
as it analyzes all voting changes submitted for preclearance, by applying
the factors set forth in Village of Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252, 265-266 (1977). The "impact"
of the plan is an "important starting point" for determining whether
there is a constitutional violation, see id. at 266, but it is never the
entirety of the purpose analysis, and in this case, other Arlington Heights
factors are especially compelling, particularly the "sequence of events
leading up to the challenged decision," see id. at 267. That sequence
included appellee's sudden decision to sacrifice its traditional districting
priorities, including incumbency protection, for a plan it had previously
found ill-suited for school board elections, when it was presented with
evidence that a majority-black district was feasible and desired by the
black community.7
e. In the end, appellee is reduced to making arguments against Section 5
itself. Appellee argues that local federal district courts hearing conventional
constitutional challenges to voting practices are better suited than the
preclearance district court in the District of Columbia to evaluate the
issue of a covered jurisdiction's discriminatory intent (Bd. Br. 2, 14);
that authority to evaluate new voting practices for their discriminatory
purpose should not be lodged with the Attorney General at all (id. at 17);
that, by requiring the covered jurisdiction to obtain preclearance before
implementing a new voting practice, Section 5 effects an unprecedented intrusion
on state sovereignty (ibid.); and that covered jurisdictions should not
be "second-class citizens who must affirmatively disprove their guilt"
(id. at 24). These were, of course, the arguments raised against Section
5 by its opponents in Congress, but they were rejected by Congress in 1965,
1970, 1975, and 1982. They were also raised against Section 5's constitutionality
in South Carolina v. Katzenbach, 383 U.S. 301, 334-335 (1966), and were
rejected in that case.
Finally, it simply is not the case that, in 34 years of evaluating preclearance
submissions for discriminatory intent, the preclearance court and the Attorney
General have exercised a "standardless power" (Bd. Br. 17). Rather,
the court and the Attorney General have evaluated discriminatory purpose
under standards consistent with the Arlington Heights framework. In Section
5 declaratory judgment actions, the preclearance court has never limited
its purpose analysis to a search for retrogressive purpose (other than in
this case). The Attorney General's approach to the statute has been the
same. See Gov't Rearg. Br. 13. Appellee has failed to show that this consistent
approach over 34 years has rendered the statutory scheme unworkable or damaged
the Nation's constitutional structure.
2. Burden of Proof
Appellee has made no argument based on the text or legislative history of
Section 5 that the burden of proof on the question of purpose should rest
with the government. Indeed, appellee acknowledges (Bd. Br. 24) that a covered
jurisdiction has the burden of proof on the question of retrogressive purpose,
as well as effect, and that the text of the statute requires that conclusion.
But if we are correct that Section 5 forbids implementation of a new practice
with a discriminatory but nonretrogressive purpose (as well as a retrogressive
purpose), then it is impossible to read the statute as requiring the government
to bear the burden of proof on the nonretrogressive purpose, while requiring
the jurisdiction to prove the absence of a retrogressive purpose.
Appellee argues only (Bd. Br. 22-24) that, because the government previously
assumed the burden to prove a "clear violation" of the "results"
standard of Section 2 as a basis for denial of preclearance under Section
5, the government should be deemed to have assumed the burden of proof on
the question of purpose as well. As we have explained (Gov't Rearg. Br.
19 n.11), the government's assumption of the burden of proof on the Section
2 results issue was intertwined with its position that a clear violation
of Section 2's results standard required denial of preclearance, which this
Court held to be erroneous. That the government erred in one aspect of its
construction of Section 5 once is hardly a basis for creating new error
in the different context here. The government has always taken the position
that the covered jurisdiction bears the burden of proof on purpose in Section
5 preclearance actions, and the Attorney General has consistently applied
that burden of proof in administrative preclearance proceedings as well.
See Georgia v. United States, 411 U.S. 526 (1973).8 And although appellee
suggests (Bd. Br. 25) that placing the burden of proof on the government
is necessary to avoid constitutional doubts about Section 5, the Court long
ago turned aside the argument that placement of the burden of proof on the
covered jurisdictions creates any constitutional difficulty. See South Carolina
v. Katzenbach, 383 U.S. at 335.
* * * * *
For the foregoing reasons, as well as those set forth in our earlier briefs,
the judgment of the district court should be reversed.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
AUGUST 1999
1 In this brief, "Bd. Br." refers to appellee's principal brief
filed on reargument; "Gov't Rearg. Br." refers to the government's
principal brief filed on reargument; and "Gov't Opening Br." refers
to the government's original brief on the merits filed in March 1999.
2 To avoid the problem that "abridge" in the Fifteenth Amendment
is not limited to retrogression, appellee suggests that "abridge"
as used in the Amendment necessarily requires another kind of comparison,
namely, a comparison of a racially discriminatory voting practice to a specific,
hypothetical state of enhanced minority voting strength (Bd. Br. 4). That
argument is incorrect. Although the specific concept of vote dilution requires
comparison to an undiluted state, see Holder v. Hall, 512 U.S. 874, 880
(1994) (opinion of Kennedy, J.), it is quite possible to find an unconstitutional
impairment of voting rights on account of race without pointing to a specific,
alternative, nondiscriminatory state. For example, if a State were to create
a new political entity with boundaries similar to those in Gomillion v.
Lightfoot, 364 U.S. 339 (1960), those boundaries would demonstrate the existence
of a racially discriminatory purpose, even if it was not certain what lines
the State would have drawn if it had acted without a discriminatory purpose.
Under Village of Arlington Heights v. Metropolitan Housing Development Corp.,
429 U.S. 252 (1977), the relative impact of any decision on minority and
white voters is an "important starting point" for determining
the existence of discriminatory intent, id. at 266-267, but it is not the
entirety of the analysis, and Arlington Heights does not require a comparison
with an ideal, nondiscriminatory state as a predicate to a finding of discriminatory
intent. Of course, the presence of a readily apparent nondiscriminatory
alternative might be important evidence that the State had engaged in racial
discrimination, but it is the infection of the jurisdiction's decisionmaking
by a racially discriminatory purpose, rather than a contrast with an ideal
state, that supplies the constitutional violation. Indeed, it is well established
that an unconstitutional impairment of the right to vote on account of race
may be found even when it would be permissible for the jurisdiction to accomplish
precisely the same result for racially neutral reasons. See Gov't Rearg.
Br. 8. Conversely, discriminatory intent is not established by the mere
fact that a voting plan has a relatively adverse impact on minorities (much
less by the fact that the plan fails to maximize the voting strength of
minorities). There may be many nondiscriminatory reasons why a jurisdiction
might fail to adopt a voting practice that would enhance minority voting
strength. The jurisdiction might be pursuing traditional, nondiscriminatory
priorities, or the possibility for minority enhancement might not be readily
apparent because minority citizens might not draw attention to it. Appellee
therefore seriously errs in arguing (Bd. Br. 11) that effect counts for
everything, and purpose for little if anything, in voting rights.
3 In many situations, a covered jurisdiction may be determined or may find
itself compelled to change its voting practices because of some new priority
or objective, or some change in circumstances. In Lopez v. Monterey County,
119 S. Ct. 693 (1999), for example, the changes in Monterey County's system
of electing judges requiring preclearance were undertaken pursuant to a
statewide policy of court consolidation. The option of remaining in place,
i.e., retaining a bifurcated court system, was neither realistic nor desired
by either the State or the County. Section 5, however, was enacted to ensure
that the consolidation (and similar changes to election laws) could not
be used to further discrimination.
4 See also Gov't Opening Br. 27-28 (explaining that Busbee v. Smith, 549
F. Supp. 494 (D.D.C. 1982), aff'd mem., 459 U.S. 1166 (1983), involved redistricting
where retrogression was neither caused nor intended).
5 Appellee also relies (Bd. Br. 5) on City of Lockhart v. United States,
460 U.S. 125 (1983), for the proposition that Section 5 is concerned only
with retrogression, but the Court in that case applied only the effect prong
of Section 5, and not the purpose prong, see id. at 130 & n.4, and the
Court's subsequent decision in City of Pleasant Grove, supra, made clear
that the purpose prong reaches beyond a purpose to cause retrogression.
6 Although little would be gained by recapitulating here the dispute in
other cases and other records about whether the Department had engaged in
such a maximization policy, we do note that this Court has made quite clear
that such a policy could not be justified as a means to enforce Section
5. See Miller v. Johnson, 515 U.S. 900, 923-927 (1995).
7 Appellee also argues (Bd. Br. 13) that "[t]he status quo for any
redistricting plan henceforth submitted for preclearance" is "necessarily
nondiscriminatory" because the Department of Justice or the preclearance
court has "affirmatively found" its redistricting plans to be
nondiscriminatory. That argument is flawed in several respects. First, when
the Attorney General declines to interpose an objection, she does not "affirmatively
find" a plan to be nondiscriminatory. She may decline to object because
the evidence submitted to her does not provide a basis for suspicion of
discrimination, but that may be because relevant evidence is withheld. For
that reason, and others, Section 5 permits the Attorney General to sue to
enjoin a plan even if she has previously precleared it. See 42 U.S.C. 1973c.
In addition, even if a redistricting plan was adopted for nondiscriminatory
reasons in 1970, 1980, or 1990, that does not mean that it is automatically
nondiscriminatory to adopt a similar plan ten years later. Racial demographics
in the jurisdiction may change significantly during the intervening ten
years, and a jurisdiction intent on discrimination may find that minor modifications
to existing district lines are sufficient to prevent any improvement in
minority voting strength. In other situations, especially where the number
of districts changes (for example, as a result of reapportionment following
the decennial census), a jurisdiction may have ample opportunity to manipulate
its boundary lines in order to prevent improvement in minority electoral
opportunity, without causing retrogression. Appellee therefore errs in arguing
(Bd. Br. 13-14) that, because of the anti-retrogression rule, it will be
impossible for a jurisdiction to engage in intentional vote dilution after
the 2000 Census.
8 Contrary to appellee's suggestion (Bd. Br. 25), there is nothing absurd
or impractical about placing the burden of proof on the covered jurisdiction
to prove both a lawful purpose and a lawful effect in administrative proceedings.
As we have explained (Gov't Rearg. Br. 14-25), a burden of proof is in effect
a rule of decision governing the result when the decisionmaker is in doubt
or the evidence is in equipoise. A decisionmaker may use such a rule of
decision even when the proceedings are less formal and adversarial than
judicial proceedings.