COUNTY OF LOS ANGELES, ET AL., PETITIONERS V. YOLANDA GARZA, ET AL., AND UNITED STATES OF AMERICA Nos. 90-849 and A-422 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit And On Application For Stay Pending Consideration Of The Petition Brief For The United States In Opposition TABLE OF CONTENTS Questions Presented Opinions below Jurisdiction Statement Argument Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. A1-A48) is not yet reported. The decisions and orders of the district court (Pet. App. A50-A151, A152-A163) are not yet reported. JURISDICTION The judgment of the court of appeals was entered on November 2, 1990. The petition for rehearing was denied on November 27, 1990. The application for a stay of the court of appeals' judgment and the petition for a writ of certiorari were filed on November 30, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether a court-ordered remedy for vote dilution caused by intentional race discrimination providing for legislative districts with equal numbers of persons violates the Equal Protection Clause principles established in Reynolds v. Sims. 2. Whether the lower courts properly found that petitioners' decision to fragment a population core of Hispanic persons was motivated by impermissible discriminatory intent, when the districting plan by which fragmentation was achieved was intended both to dilute the Hispanic vote and to protect incumbent supervisors. 3. Whether the district court's remedial plan, which unites the Hispanic Core, is an appropriate remedy for the fragmentation of the Core. 4. Given the findings that petitioners' fragmentation of the Hispanic Core was motivated by discriminatory intent, whether a finding that this has significantly diminished the opportunity of Hispanics to participate in the political process and to elect representatives of their choice establishes a violation of Section 2 of the Voting Rights Act and the Equal Protection Clause, even absent proof that Hispanics could have constituted a majority of the eligible voters in a district at the time petitioners adopted their redistricting plan. 5. Whether the district court exceeded its remedial authority when it provided for a district with a Hispanic voting majority. 6. Whether the question of a plaintiff's ability to challenge a redistricting plan that is valid when adopted is properly presented, when the court of appeals' decision is premised entirely on a finding that petitioners' redistricting plan was invalid when adopted. STATEMENT 1. Hispanics in Los Angeles County are geographically concentrated to a significant extent in an area known as the Hispanic Core. Pet. App. A62-A63. /1/ The 1981 redistricting plan for the Los Angeles County Board of Supervisors divided the Hispanic Core among three of the five Supervisor districts. Id. at A86. Almost half of the Core was assigned to District 1; almost half was assigned to District 3; and a smaller section was assigned to District 2. Ibid. In August 1988, the Garza plaintiffs -- Hispanic voters in Los Angeles County -- filed suit alleging that the 1981 plan had the purpose and result of diluting Hispanic voting strength, in violation of Section 2 of the Voting Rights Act, 42 U.S.C. 1973, the Equal Protection Clause of the Fourteenth Amendment, and the Fifteenth Amendment. Pet. App. A58. In September 1988, the United States filed suit alleging that the 1981 plan violated Section 2. Ibid. 2. After a three-month trial beginning in January 1990, the district court ruled for plaintiffs. Pet. App. A50-A151. The court's ultimate finding was that the County's plan was adopted with the intent of diluting Hispanic voting strength and that it had resulted in denying Hispanic citizens an equal opportunity to participate in the political process and to elect candidates of their choice. The court entered detailed findings in support of these conclusions. The court first examined the historical background. After a thorough review of the four redistrictings between 1959 and 1971, the court found that the County repeatedly added predominantly white areas to District 3, while avoiding the addition of predominantly Hispanic ones, and that this pattern was "persuasive evidence that the lines were drawn and maintained with a racially discrimantory design." Pet. App. A64-A73. The court then turned to the 1981 redistricting. It found that there had been explosive growth in the Hispanic population between 1970 and 1980, and that all participants in the redistricting process were aware of this. Id. at A61, A74. The participants were also aware that most of this growth had taken place in Districts 1 and 3. Id. at A75. Against this backdrop, the question of how to apportion the Hispanic Core became a key issue. A coalition of Hispanic groups -- the Californios for Fair Representation (CFR) -- sought to eliminate the fragmentation of the Core. Recognizing that it would be futile to propose a plan with a substantial Hispanic majority in any one district, CFR proposed a plan increasing the Hispanic population in District 3 to 50%, and in District 1 to 42%. Pet. App. A78-A79. The court found that, despite the County's awareness that the apportionment of the Hispanic Core was a critical issue to Hispanics, it did not appoint a single Hispanic to the Boundary Committee. Pet. App. A77. Only after CFR objected did the County relent. Id. at A77-A78. Even then, none of these appointees had previous redistricting experience, and they were therefore relegated to a minor role. Id. at A78. Eventually, the Board addressed the redistricting issue in a series of unusual meetings, avoiding the State's public meeting requirement by meeting privately, in a back room, two at a time. Pet. App. A82. After ten such meetings, the court found, an agreement was reached. The Board then adopted the plan without ever having presented it to the public. Ibid. The plan continued "to split the Hispanic Core almost in half." Id. at A83. The Board understood that this would "impair the ability of Hispanics to gain representation on the Board." Ibid. Based on its findings, the court reached three conclusions: (1) the Supervisors "acted primarily on the political instinct of self-preservation"; (2) they nonetheless also "intended * * * the dilution of Hispanic voting strength"; and (3) these motives were "inextricably linked" since the accomplishment of the latter purpose was a "prerequisite" to the accomplishment of the former. Pet. App. A83-A84. The court further found that the County's purposeful fragmentation of the Hispanic Core had its intended effect of diminishing the opportunity of Hispanic voters to participate in the political process and to elect representatives of their choice. Pet. App. A84. Because the Board's plan fragmented the Hispanic Core, Hispanics ended up constituting only 23 percent of the eligible voters in Districts 1 and 3 by 1982, the time of the first election under the plan (PX 444). Had the County united the Core in a single district, the court found, it could have created a district in which Hispanics would have constituted 44-46% of the eligible voters in 1982 (Pet. App. A85). Because of demographic changes within the Core, by 1988, Hispanics would have constituted a majority of the eligible voters in such a district. Id. at A103-A104. /2/ 3. The court afforded the County an opportunity to submit a plan to remedy the violation it had found. Three members of the Board submitted a plan which was opposed by the other two. Pet. App. A198. After finding that this plan failed to cure the violation, however, the court devised its own plan. Id. at A153. Under the court's plan, one of the districts -- District 1 -- contains most of the Hispanic Core; in this district, Hispanics constitute a majority of the eligible voters. Id. at A155. Each of the five districts has approximately the same number of people, with a total deviation of less than one percent. Id. at A154. The districts do not each have the same number of citizens of voting age. Ibid. Based on extrapolations from the 1980 Census, the court estimated that just over 700,000 citizens of voting age are in District 1, while about 1,100,000 are in District 3. Ibid. If citizen voting age population were used as an apportionment base, the total deviation would approximate 40%. Ibid. In selecting total population as the apportionment base, the court noted that California law requires the use of total population. Pet. App. A148. It also found that the County's 1981 redistricting plan had used total population, and that the County had never inquired into what effect this would have on the distribution of citizens of voting age. Id. at A75. If 1980 citizen voting age population were used as the apportionment base, the County's 1981 plan would have a total deviation of approximately 20% (PX 444). All of the remedial plans submitted by the parties, including the County's, used total population as the apportionment base. If citizen voting age population were used as the base, all of the plans would have substantial total deviations. Indeed, the County's plan had a higher deviation than the one adopted by the court. The court also noted the practical difficulties that jurisdictions would face if required to use citizenship voting age population as the apportionment base. Total population data is based on an actual count of the population. Pet. App. A92. In contrast, the court found that citizenship data is estimated from a sample of the population. Ibid. Moreover, the court found, citizenship data is not available until several years after the Census is completed, and many jurisdictions are required to complete their redistrictings before such data are available. Ibid. The court ordered the County to hold a special primary election for new District 1 on November 6. Pet. App. A161. This order was stayed by the Ninth Circuit, which also rejected the County's motion to hold an immediate election under the 1981 plan. Id. at A164. Instead, the court of appeals left intact the district court's injunction against the election proposed by the County, permitting the incumbent in District 1 to hold over past the expiration of his term. Ibid. 4. In a decision issued on November 2, the Ninth Circuit unanimously affirmed the district court's finding of a violation and rejection of the County's proposed remedy. With one judge dissenting, the court of appeals went on to affirm the district court's remedial order. a. The court first rejected petitioners' argument that this Court's decision in Thornburg v. Gingles, 478 U.S. 30 (1986), precludes a finding of a violation because it was not possible to draw a district in 1981 in which Hispanics would have constituted a majority of the eligible voters. Pet. App. A13. The court noted that the district court had found that the "County in 1981, as part of a course of conduct that began decades earlier, intentionally fragmented the Hispanic population among the various districts in order to dilute the effect of the Hispanic vote in future elections and preserve incumbencies of the Anglo members of the Board of Supervisors." Id. at A9-A10. The court also concluded that the evidence "shows that at the time this action was filed it was possible to draw lines for five districts of roughly equal population size, as required by state law, with one single-member district having a majority of Hispanic voters." Id. at A10. Noting that Gingles did not involve a claim that the challenged districts were adopted with a discriminatory intent, the court concluded that, "to the extent that Gingles does require a majority showing, it does so only in a case where there has been no proof of intentional dilution of minority voting strength." Id. at A10-A11. To conclude otherwise, the court held, "would prevent any redress for districting which was deliberately designed to prevent minorities from electing representatives in future elections governed by that districting * * * a result wholly contrary to Congress' intent in enacting Section 2 of the Voting Rights Act and contrary to the equal protection principles embodied in the fourteenth amendment." Id. at A13. The court next rejected petitioners' contention that the district court had failed to find intentional discrimination and had instead found that Board members had acted solely to preserve their incumbencies. The court stated that "(t)his is a mistaken reading of what the district court found." Pet. App. A13. The court explained that while the district court had found that self-preservation was a goal of Board members, the district court had also found that the Supervisors "chose fragmentation of the Hispanic voting population as the avenue by which to achieve this self-preservation." Id. at A13-A14. This discriminatory intent was sufficient to demonstrate a violation, the court held, since "discrimination need not be the sole goal in order to be unlawful." Id. at A14. The court noted that plaintiffs who allege intentional discrimination must also prove that "they have been injured as a result." Pet. App. A14. While this showing "need not be as rigorous as in effects cases, some showing of injury must be made" (ibid). In particular, the court held, plaintiffs must show that a discriminatory intent has resulted in their having "less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." Ibid. (quoting 42 U.S.C. 1973(b)). Applying this standard, the court upheld the district court's finding that the "supervisors' intentional splitting of the Hispanic core resulted in a situation in which Hispanics had less opportunity than did other county residents to participate in the political process and to elect legislators of their choice." Pet. App. A15. b. The majority of the panel rejected the County's contention that under Reynolds v. Sims, 377 U.S. 533, 568 (1964), the district court was required to formulate a remedy in which each one of the districts had an equal number of eligible voters. The majority held that the district court's plan, which was designed to equalize the number of persons in each district, satisfied Reynolds. The court read Reynolds and this Court's decision in Burns v. Richardson, 384 U.S. 73, 91 (1966), to permit states to apportion either on the basis of eligible voters or on the basis of total population. Pet. App. A19-A20. In addition, the majority noted, the constitutional requirement for members of the House of Representatives is that there must be "equal representation for equal number of people" (Pet. App. A19, quoting Wesberry v. Saunders, 376 U.S. 1 (1964)). Since Reynolds simply extended this principle to state and local governments, "population is an appropriate basis for state legislative apportionment." Pet. App. A20. Moreover, the majority added, California law expressly requires redistricting on the basis of population, and no Supreme Court case has suggested that such a requirement is unconstitutional. Pet. App. A20. Indeed, this Court's decision in Gaffney v. Cummings, 412 U.S. 735, 747 (1973), approved a plan based on total population, while at the same time noting that such plans often lead to disparities in eligible voters. Ibid. And this Court's decision in Chapman v. Meier, 420 U.S. 1 (1975), the majority determined, indicates that a court must apportion strictly on the basis of population, unless state law requires otherwise. Pet. App. A20. Beyond that, the majority held, equalizing the number of eligible voters in each district would in this case lead to serious population inequalities. Pet. App. A21. Those persons placed in the more populous districts "will suffer diminishing access to government" adversely affecting their "right to petition their government for services and to influence how their tax dollars are spent." Id. at A21-A22. To require districting on the basis of voting capability, the court concluded, would constitute a denial of equal protection to Hispanic voters. Id. at A23. c. Judge Kozinski concurred in part and dissented in part. He "join(ed) the liability portion of Judge Schroeder's opinion without reservation." Pet. App. A27. Judge Kozinski agreed that the district court's findings "graphically document * * * a continuous practice of splitting the Hispanic core into two or more districts to prevent the emergence of a strong Hispanic challenger who might provide meaningful competition to the incumbent supervisors." Id. at A28-A29. Judge Kozinski concluded, however, that the majority's analysis of the district court's remedial plan could not be squared with Reynolds. Id. at A31. Citing dicta from several of this Court's decisions, Judge Kozinski concluded that they support the view that equality in voting strength is the paramount concern of the Equal Protection Clause. Id. at A32-A33. Judge Kozinski acknowledged equality of population "assures that constituents have more or less equal access to their elected officials, by assuring that no official has a disproportionately large number of constituents to satisfy." Id. at A35. Still, in Judge Kozinski's view, "(i)t is very difficult * * * to read the Supreme Court's pronouncements in this area without concluding that what lies at the core of one person one vote is the principle of electoral equality, not that of equality of representation." Ibid. For while this Court's statements in support of electoral equality have been expressed "as an ultimate constitutional imperative, * * * its various statements in support of the principle of equal representation have been far more conditional." Id. at A37. /3/ Having concluded that eligible voters must be the starting point for any reapportionment plan, Judge Kozinski nonetheless suggested that it may be permissible to deviate from this principle to remedy the dilution of Hispanic voting strength proven in this case. Judge Kozinski indicated that the district court "would have latitude of up to 20% maximum deviation from the ideal district, providing, of course, that it supplies an adequate explanation of why its purposes cannot be achieved within a narrower range." Pet. App. A45. Indeed, "(i)f supported by the record * * * a much greater deviation from the ideal plan would be permissible, quite possibly as much as the 40% maximum deviation here" (ibid.). Judge Kozinski saw no need to resolve this issue, however, concluding that the court should remand to the district court to attempt to draw a remedial plan which remedied the violation while still having equal numbers of eligible voters in each district. Only if it proved impossible to do this, Judge Kozinski explained, would it be necessary to decide the extent to which a court may deviate from one person one vote principles to remedy racial vote dilution (id. at A46-A47). ARGUMENT 1. Petitioners' primary contention (Pet. 6-10) is that the remedy imposed by the courts below violates the Fourteenth Amendment because it provides for apportionment on the basis of population. This contention is incorrect and in any event does not warrant review by this Court, nor does it justify the extraordinary remedy sought by petitioners. a. This is an eleventh-hour attempt by petitioners to avoid remedying what the courts below have unanimously held is a longstanding violation of Section 2 of the Voting Rights Act and the Fourteenth Amendment. Petitioners' attempt is founded primarily on their contention that the Fourteenth Amendment requires apportionment on the basis of citizenship and forbids apportionment based on population. Petitioners accordingly urge the Court to reconsider its unbroken line of cases establishing "the equal protection test enunciated in Reynolds v. Sims * * * that districts in state reapportionments be 'as nearly of equal population as is practicable.'" Gaffney v. Cummings, 412 U.S. 735, 742 (1973). This case would be a peculiarly inappropriate vehicle for considering the question petitioners seek to present. Petitioners' position that it is unconstitutional to apportion on the basis of population represents a quite recent change of heart. In assuming this position, petitioners repudiate the State law which requires apportionment based on population, and abandon their own twenty-five-year practice of redistricting on the basis of population. Indeed, that practice survived well into this litigation: The remedial redistricting plan that petitioners themselves submitted to the district court used population as an apportionment base. b. An unbroken line of cases from Reynolds v. Sims to Board of Estimate v. Morris, 109 S. Ct. 1433, 1437 (1989), establishes a "general rule of population equality between electoral districts." With similar consistency, these cases recognize that, in applying this rule, "more flexibility may * * * be constitutionally permissible with respect to state legislative apportionment than in congressional districting." Gaffney, 412 U.S. at 743-744. Accord Mahan v. Howell, 410 U.S. 315 (1973). The remedy adopted by the courts below is fully faithful to these principles. The rule of population equality "is a principle designed to prevent debasement of voting power and diminution of access to elected representatives." Kirkpatrick v. Preisler, 394 U.S. 526, 531 (1969). Population equality will not always accommodate the twin goals of equality of representation and equality of voting power in precisely equal measure, because the population of a district changes, the figures on which apportionment is based are inherently imprecise, and the inhabitants of a district who at the time of apportionment may not be citizens or eligible to vote may become eligible voters before reapportionment occurs. Gaffney, 412 U.S. at 744-746 & 745 n.10. That is the reason for the second principle, which recognizes that "(m)athematical exactness or precision is hardly a workable constitutional requirement." Reynolds, 377 U.S. at 577 (quoted in Gaffney, 412 U.S. at 743). This Court has explicitly recognized on two occasions that a population basis for districts does not precisely equalize voting power. In Gaffney, the Court observed that even though decennial apportionments are based primarily on census figures, "(t)he proportion of the census population too young to vote or disqualified by alienage or nonresidence varies substantially among the States and among localities within the States." 412 U.S. at 746-747. The Court noted that the 1970 Census, for example, showed that "New York has a 29% variation in age-eligible voters among its congressional districts, while California has a 25% and Illinois a 20% variation." Id. at 747 n.13. Notwithstanding this recognition, the Court did not even remotely intimate that the practice in these States of apportioning districts on the basis of population violated the Fourteenth Amendment, as petitioners now contend. On the contrary, the Court cited the inherent imprecision in population-based apportionment as the reason why "(f)air and effective representation * * * does not depend soley on mathematical equality among district populations. There are other relevant factors to be taken into account and other important interests that States may legitimately be mindful of." Id. at 748-749 (footnote omitted). /4/ The Court applied the same common-sense approach in Burns v. Richardson, 384 U.S. 73 (1966). There, the State of Hawaii used registered voters as an apportionment base, producing a result that differed significantly from that which would have resulted from population-based apportionment. Id. at 90. The Court rejected plaintiffs' contention that the deviation from total population was inconsistent with Reynolds. Indeed, this Court relied on Reynolds to hold that a state may legitimately choose any one of three apportionment bases -- eligible voters, citizen population, or total population. Burns, 384 U.S. at 91. The Court reasoned that for purposes of apportionment "(t)he decision to include or exclude (aliens, transients, short-term or temporary residents, or persons denied the vote for conviction of crime) involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere." Id. at 92. /5/ The remedy adopted by the courts below was based on California's choice to use population to apportion legislative districts. Pet. App. A20. /6/ The remedy was therefore fully faithful not only to the rule of population equality but also to this Court's teaching that courts generally must respect a State's legislative judgments regarding apportionment. E.g., Wise v. Lipscomb, 437 U.S. 535, 540 (1978). Moreover, petitioners' position would create an indefensible tension between the rules governing congressional apportionment and those governing state legislative apportionment. As the panel majority recognized (Pet. App. A19-A20), Wesberry v. Sanders, 376 U.S. 1 (1964), held that under Article I, Section 2, total population is the only appropriate apportionment base for congressional apportionment. In petitioners' view, what is constitutionally required for apportionments for the House of Representatives is constitutionally forbidden in apportionments for state and local legislative bodies. Petitioners have pointed to nothing that would sanction such a curious result. /7/ 2. Petitioners challenge (Pet. 12-19) the unanimous holdings of the courts below that petitioners acted intentionally to deprive Hispanic voters of an equal opportunity to elect representatives of their choice. This fact-bound challenge lacks merit and in any event does not warrant this Court's review. a. As stated in Judge Kozinski's opinion, "(t)he careful findings of the district court graphically document (petitioners') * * * continuing practice of splitting the Hispanic core into two or more districts to prevent the emergence of a strong Hispanic challenger who might provide meaningful competition to the incumbent supervisors. The record is littered with telltale signs that reapportionments going back at least as far as 1959 were motivated * * * by the desire to assure that no supervisorial district would include too much of the burgeoning Hispanic population." Pet. App. A28-A29. /8/ Petitioners do not provide any basis for this Court to set aside these findings. /9/ This Court should not depart from its practice of refusing to set aside findings of fact concurred in by two lower courts. Rogers v. Lodge, 458 U.S. 613, 623 (1982). The courts below correctly held that petitioners acted with discriminatory intent. As the court of appeals recognized (Pet. App. A13-A15), the County's intention to dilute Hispanic voting strength was not redeemed simply because it was designed to protect the incumbents. /10/ Discriminatory intent need not be the sole motivating factor in a decision to be unlawful; it is enough that it is one of the causative factors. Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 255-256 (1977); see also Hunter v. Underwood, 471 U.S. 222, 231-232 (1985) (State's purpose of keeping Democrats in power could not "render nugatory the purpose to discriminate against all blacks"); United States v. Starrett City Associates, 840 F.2d 1096 (2d Cir.), cert. denied, 488 U.S. 946 (1988); McMillan v. Escambia County, Fla., 688 F.2d 960, 969 n.19 (1982) ("(an) incumbent legislator's desire to remain in office (cannot) justify or legitimate an election scheme that is purposefully discriminatory"), cert. denied, 464 U.S. 830 (1983); Ketchum v. Byrne, 740 F.2d 1398, 1408 (7th Cir. 1984) ("Since it is frequently impossible to preserve white incumbencies amid a high black-percentage population without gerrymandering to limit black representation, * * * many devices employed to preserve incumbencies are necessarily racially discriminatory."), cert. denied, 471 U.S. 1135 (1985). Petitioners' argument (Pet. 16-17) that the court's finding of intent cannot stand because there is no finding of racial animosity is similarly without merit. The relevant question is whether the County purposefully sought to dilute Hispanic voting strength. Rogers, 458 U.S. at 621. Proof that the County despised Hispanics would be significant evidence of such an intent, but its absence is not dispositive: Assume you are an Anglo homeowner who lives in an all-white neighborhood. Suppose, also, that you harbor no ill feelings toward minorities. Suppose further, however, that some of your neighbors persuade you that having an integrated neighborhood would lower property values * * * . On the basis of that belief, you join a pact not to sell your house to minorities. Have you engaged in intentional racial and ethnic discrimination? Of course you have. Pet. App. A28 n.6. See also City of Richmond v. J.A. Croson Co., 109 S. Ct. 706 (1989); Brown v. Board of Educ., 347 U.S. 483 (1954). b. Petitioners assert (Pet. 19-21) that the election in District 1 ordered by the courts below does not fit the violation because that violation occurred in District 3. In making this assertion, petitioners demand respect for the boundary lines that they drew in violation of Section 2 of the Voting Rights Act and the Fourteenth Amendment. No such respect is warranted. Contrary to petitioners' assertion (Pet. 20), the district court did not find that petitioners' violations were limited to District 3, nor could it have done so. The boundaries of each of the five supervisorial districts shifted from 1959 through 1981 for the illegal purpose of fragmenting the Hispanic Core. By 1981, the core was fragmented among several districts, with the bulk of it evenly split between Districts 1 and 3. Thus, the violation is this fragmentation. The district court's remedy, as upheld by the court of appeals, cures this fragmentation by uniting the Hispanic Core into a single district. This remedy is entirely appropriate. 3. Petitioners contend (Pet. 22-26) that in Thornburg v. Gingles, 478 U.S. 30 (1986), this Court held that violations of Section 2 and the Fourteenth Amendment could only be established by proof that the minority group represented by plaintiffs constituted a majority of eligible voters in the affected district at the time of the alleged violations. The court of appeals correctly rejected this contention. Pet. App. A11-A13. In contrast to this case, Gingles did not involve a claim that the disputed districting plan had been enacted deliberately to dilute minority voting power. See 478 U.S. at 80. The court of appeals properly relied on the text of Section 2 and on this Court's decision in White v. Regester, 412 U.S. 755, 766 (1973), to hold that plaintiffs were required to show that as a result of petitioners' intentional conduct, they "had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice." Pet. App. A14 (quoting White, 412 U.S. at 766). See also Davis v. Bandemer, 478 U.S. 109, 127 (1986). Petitioners do not dispute the court of appeals' conclusion (Pet. App. A15) that plaintiffs made this showing. /11/ This case illustrates the correctness of the court of appeals' conclusion. In the absence of petitioners' discriminatory conduct, Hispanics in 1981 could have constituted 44 to 46% of the voters in a supervisorial district. Thus, they would have had a very real potential to elect a supervisor of their choice with only minimal cross-over voting by non-Hispanics. However, by deliberately fragmenting the Hispanic Core, the County was able to limit the proportion of Hispanics in Districts 1 and 3 to 23%, precluding that possibility. Under petitioners' theory, neither Section 2 nor the Fourteenth Amendment affords plaintiffs a remedy for such conduct. Such a result is especially untenable in light of the fact that, as petitioners were well aware in 1981, over the course of the decade the Hispanic population would grow sufficiently to constitute a majority of eligible voters in a district that had not been drawn with discriminatory intent. See Pleasant Grove v. United States, 479 U.S. 462, 471 (1987) ("an impermissible purpose * * * may relate to anticipated as well as present circumstances"). For this reason, it was not improper for the district court to remedy petitioners' violation by providing for a district in which Hispanics constitute a voting majority. While the immediate effect of petitioners' discriminatory intent was to deprive Hispanics of a significantly greater potential to participate in the political process and elect candidates of their choice, its long-term effect was to deprive Hispanics of the opportunity to be in a district in which they would have become a voting majority over the course of the decade. The purpose of a remedy is to eliminate all the effects of a violation, not simply those that are felt immediately. The district court's remedy is carefully tailored to address the current effect of the County's purposeful fragmentation of the Hispanic Core. It puts Hispanic citizens in precisely the position they would have been in today had the County united rather than fragmented the Hispanic Core in 1981. As such, the court's remedy satisfies well established remedial principles. Milliken v. Bradley, 418 U.S. 717, 747 (1974). 4. Finally, petitioners contend (Pet. 27-29) that the decennial redistricting principle applicable in one person one vote cases is also applicable to cases alleging racial vote dilution. According to petitioners, this means that plaintiffs alleging racial vote dilution may not prevail in a redistricting case, unless they can show that a reapportionment plan was invalid at the time of its adoption. This case does not present an occasion for the Court to resolve this issue. The district court found, and the court of appeals agreed, that the County's plan violated Section 2 and the Equal Protection Clause at the moment of its adoption. While the district court also found that, even if valid when adopted, application of the County's plan subsequently resulted in impermissible dilution, the court of appeals did not reach this issue. Accordingly, the issue is not properly presented here. 5. For the reasons set forth above, petitioners have not shown a likelihood of success on the merits to justify the stay they seek. In addition, they have failed to show that they will suffer irreparable injury if the stay is denied. The district court and the court of appeals have heard and considered petitioners' arguments for a stay pending appeal in light of the full record, and have found them insufficient. So too should this Court. See Graves v. Barnes, 405 U.S. 1201, 1203-1204 (1972). This Court, like Congress, has demonstrated an unwillingness to tolerate continued violations of the right to vote. Clinton v. Jeffers, 110 S. Ct. 1541 (1990) (denying stay of special election pending appeal). Respondents' interests in a prompt remedy are substantial. The district court found that "on a fundamental level" the political rights of the Hispanic community in Los Angeles County were violated systematically and intentionally over the course of decades. Pet. App. A53. The court of appeals affirmed and held unanimously that petitioners were liable for these acts of discrimination. Petitioners suggest that if the Court grants their application for a stay and the lower court's decisions are then upheld "the only potential loss is a short loss of time in implementation of the remedy." Application at 13-14. This is untrue. If this Court grants the petition for certiorari and enters a stay, the special election would be postponed for months pending briefing, argument, and a decision on the merits, after which there could follow an indeterminate sequence of further proceedings. The beneficiaries of the delay in relief will be the supervisors who are elected to office under the illegal redistricting plan. /12/ Meanwhile, in the coming months the Board of Supervisors will continue to make decisions of tangible and vital importance to the Hispanic community. Of particular importance, if a stay were granted, the same supervisors who have been found to have engaged in intentional discrimination would have authority to redistrict based upon the 1990 Census. The court of appeals correctly observed that Congress specifically has expressed the public interest that voting rights cases "be in every way expedited." Pet. App. A27 (quoting 42 U.S.C. 1971(g)). Likewise, the panel found it "imperative that such election procedures go forward as soon as practicable." Id. at A26. In doing so, the panel was fully consistent with the ruling of this Court in Clinton v. Jeffers, 110 S. Ct. 1541 (1990) (denying stay of special election pending appeal). Moreover, petitioners have failed to demonstrate -- or even allege -- any prospect of irreparable injury under the district court's special election schedule. Petitioners' only stated concerns are the cost to the County and the cost to the candidates for supervisor if the redrawn District 1 is subsequently held invalid. /13/ No candidates have sought to stop the special election in District 1, however, and administrative costs cannot take precedence over the need for prompt relief to remedy the violation of voting rights. See Williams v. Rhodes, 393 U.S. 23, 34-35 (1968). Because the applicants have failed to demonstrate any irreparable injury, a stay would not be justified even if the Court elects to grant certiorari. If after consideration of the merits this Court determines that one or more errors in the lower court decisions require remand or reversal, the completion of the special election now under way will in no way bind the hands of the lower courts from fashioning further relief consistent with this Court's decision. In sum, the public interest is served by conducting the special election under the remedial plan, rather than allowing an incumbent supervisor to hold over in office for what could be an extended period of time. The application for a stay should be denied. CONCLUSION The application for a stay of the district court's order pending disposition of the petition for a writ of certiorari and the petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General JOHN R. DUNNE Assistant Attorney General JOHN G. ROBERTS, JR. Deputy Solicitor General ROGER CLEGG Deputy Assistant Attorney General RICHARD H. SEAMON Assistant to the Solicitor General JESSICA DUNSAY SILVER IRVING GORNSTEIN STEVEN H. ROSENBAUM ROBERT A. KENGLE GAYE L. HUME Attorneys DECEMBER 1990 /1/ Hispanic voters are concentrated in the Core to virtually the same extent as the Hispanic population. Thus, 39% of the County's Hispanic population and 38% of the County's Hispanic registered voters live in the Hispanic majority district in the district court's remedial plan. Pet. App. A154-A155. Petitioners' assertion that only the Hispanic population is concentrated in the Core is inaccurate. /2/ The district court concluded that, even absent discriminatory intent, the plaintiffs had proven two independent "results" violations under Section 2 based upon the effect of the 1981 redistricting at the time of its adoption and subsequently. Pet. App. A53-A54. The court of appeals affirmed solely on the grounds above, however, and did not address the validity of these two additional grounds for finding a violation. We therefore do not discuss them further. /3/ Judge Kozinski also read this Court's decisions in Burns differently from the majority. Burns is significant, Judge Kozinski explained, because it is the one case in which this Court was squarely faced with a choice between the representational principle and voting equality principle, and it approved a reapportionment plan that equalized voting strength at the expense of equality in representation (Pet. App. A39). According to Judge Kozinski, "(w)hile Burns does not, by its terms, purport to require that apportionments equalize the number of qualified electors in each district, the logic of the case strongly suggests that this must be so" (ibid.). The only other way to read Burns, Judge Kozinski thought, "is to assume that there is no principle at all at play here" (id. at A40). /4/ Petitioners and the dissent from the panel opinion insist that the Fourteenth Amendment must be construed to confer primacy on either the principle of equal representation or that of equality in voting power. Pet. 6-10; Pet. App. A34. On the contrary, Burns and Gaffney make clear that the State is free to strike a reasonable balance between these principles based on legislative judgments. Those two decisions also make clear that, contrary to the petitioners' and the dissent's assertions, the Court has addressed the fact that the rule of population equality does not ensure precise equality of representation. /5/ The Court has subsequently made clear that various state interests, including the desire to equalize voting strength, may justify small deviations from population equality. Karcher v. Daggett, 462 U.S. 725, 740-741 (1983). But, at the same time, Karcher reaffirmed that equal representation for equal numbers of people is still the basic constitutional imperative. Id. at 730. /6/ Most states, like California, require that legislative apportionment be based on population. Ala. Const. art. 9, Sections 198, 200, art. 18, Section 284 (1975); Arizona, see Goddard v. Babbitt, 536 F. Supp. 538, 540-541 (D. Ariz. 1982); Cal. Const. art. 21, Section 1 (West Supp. 1990); Colo. Const. art. 5, Section 46 (1980); Del. Code Ann. tit. 29, Section 806 (1983); Ill. Const. art. 4, Section 3 (Smith-Hurd Supp. 1990); Ind. Const. art. 4, Section 5 (Burns 1990); Iowa Const. art. 3, Section 34 (West 1989); Iowa Code Ann. Section 42.4 (West Supp. 1990); La. Const. art. 3, Section 6 (West 1977); Md. Const. art. 3, Section 4 (1981); Mass. Const., Pt. 2, art. 101, Section 247 (1979); Minn. Const. art. 4, Section 2 (West 1976); Miss. Code Ann. Sections 5-1-1, 5-1-3 (Supp. 1990); Mo. Const. art. 3, Sections 2, 7 (West Supp. 1990); Mont. Const. art. 5, Section 14 (1989); Nev. Const. art. 1, Section 13, art. 4, Section 5 (1986); N.C. Const. art. 2, Sections 3, 5 (1984); N.D. Cent. Code Section 54-03-01.5 (1989); Or. Const. art. 4, Section 6 (1989); Or. Rev. Stat. Section 188.010 (1985); Pa. Const. art. 2, Section 16 (Purdon 1969); R.I. Const. art. 7, Section 1, art. 8, Section 1 (1987); S.D. Const. art. 3, Section 5 (1990); Vt. Stat. Ann. tit. 17, Section 1891 (1982); W. Va. Code Ann. Section 1-2-1 (1990); Wis. Const. art. 4, Section 3 (1986); Wis. Stat. Ann. Section 4.001 (1986); Wyo. Const. art. 3, Section 3 (1990). /7/ The dissent mistakenly relies (Pet. App. A41 n.15) on the statement in Reynolds that arguments based on the "federal analogy" are "inapposite and irrelevant to state legislative redistricting schemes." 377 U.S. at 571-577. Reynolds was referring to those parts of the federal plan that compromised the principle of equality to the principle of state sovereignty, i.e., the provisions that each State would have two Senators and at least one Representative. In contrast, Reynolds found support for its decision in that part of Article I, Section 2 that provides for equal representation for equal numbers of persons. The interpretation of that Clause is therefore highly relevant here. /8/ After a thorough review of the underlying evidence, the district court expressly found that the Board of Supervisors "intended * * * the dilution of Hispanic voting strength" (Pet. App. A84). The court's summary contains a similar finding that "the Supervisors acted with the intent to maintain the fragmentation of the Hispanic vote." Pet. App. A55. And the court's opinion contains similar findings of intent for the pre-1981 redistricting. Id. at A64-A88. The court thus expressly found that the Board of Supervisors has fragmented the Hispanic Core over the last 30 years because of, and not merely in spite of, its adverse effect on the opportunity of Hispanics to participate in the political process and elect representatives of their choice. /9/ Petitioners seek to re-try these findings by relying (Pet. 13) on a statement by defense counsel that was quoted in the district court's summary of its findings. Pet. App. A55 ("(i)t was not because of a desire on anyone's part to dilute or diffuse or to keep the Hispanic community powerless"). This effort is misplaced. The district court quoted defense counsel in recognition that petitioners acted to dilute Hispanic voting because it was the only way to preserve their incumbency. In the paragraph immediately preceding the quotation of defense counsel's statement, the district court found that "the Supervisors' primary objective was to protect their incumbencies" and that "had the Board found it possible to protect their incumbencies while increasing Hispanic voting strength, they would have acted to satisfy both objectives." Pet. App. A54-A55. Immediately after quotation, the court found that the County knew that it could not accomplish both objectives and that it therefore deliberately fragmented the Hispanic vote. Id. at A55. /10/ Contrary to petitioner's assertion, the district court did not base its finding of intentional discrimination solely on the notion that petitioners knew their efforts would dilute the Hispanic vote. The district court found that petitioners intended to bring about this result. Abundant evidence supported this finding. The court's 120 findings on this issue detail (1) the history of discrimination in reapportionments dating back to 1959 following the near victory of an Hispanic candidate in District 3; (2) the exclusion of Hispanics from the Committee that was responsible for proposing reapportionment plans to the Board; (3) the rejection of plans that would have more fairly reflected Hispanic voting strength; (4) the maintenance of boundary lines that cut the Hispanic Core in two; and (5) the secret meetings that led to the Board's adoption of its plan. Besides this circumstantial evidence, the court also cited what Judge Kozinski referred to as "smoking gun" evidence that key participants in the process put an absolute upper limit on the percentage of Hispanics they would be willing to assign to their districts. The County's claim that the district court's intent finding is based solely on the Board's knowledge that its plan would have a discriminatory effect fails to come to grips with these findings. /11/ Petitioners' additional claim (Pet. 24) that proof of unresponsiveness has always been an essential element in a dilution case is equally wrong. The leading vote dilution case prior to the amendment to Section 2 was Zimmer v. McKeithen, 485 F.2d 1297, 1306-1307 (5th Cir. 1973), and it expressly held that proof of unresponsiveness is not required. Both this Court and Congress have subsequently adopted this same view. Rogers, 458 U.S. at 625 n.9; S. Rep. No. 417, 97th Cong., 2d Sess. 29 & n.116 (1982). /12/ If the applicants are correct that Los Angeles County must use voting age citizens as its redistricting base, then the effect of the stay would be to allow a supervisor who was elected under a plan that had a total deviation of 20% to hold over in office. /13/ Applicants urged the court of appeals to allow them to run that risk, however, when they sought to hold an election on November 6 under the 1981 redistricting plan.