No. 94-558 In the Supreme Court of the United States OCTOBER TERM, 1994 UNITED STATES OF AMERICA, APPELLANT v. RAY HAYS, ET AL. STATE OF LOUISIANA, APPELLANT v. RAY HAYS, ET AL. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA BRIEF FOR THE UNITED STATES DREW S. DAYS, III Solicitor General DEVAL L. PATRICK Assistant Attorney General PAUL BENDER Deputy Solicitor General IRVING L. GORNSTEIN Assistant to the Solicitor General JESSICA DUNSAY SILVER MARK L. GROSS Attorneys Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED 1. Whether a State's intentional creation of a majority-minority district is always subject to strict scrutiny. 2. Whether the boundaries of District 4 in Louisiana's redistricting plan are so highly irregular on their face that they can be understood only as an effort to segregate voters into separate districts because of their race. 3. Whether 1 District 4 is narrowly tailored to further a compelling interest. (I) ---------------------------------------- Page Break ---------------------------------------- II PARTIES TO THE PROCEEDING Plaintiffs are Ray Hays, Edward Adams, Susan Shaw Singleton and Gary Stokely. Defendants are Edwin Edwards, Governor of the State of Louisiana; Samuel B. Nunez, President of the I Louisiana State Senate, John A. Alario, Speaker of the Louisiana House of Representatives; W. Fox McKeithen, Secretary of State of Louisiana; and Jerry Fowler, the Commissioner of Elections for the State of Louisiana. The United States intervened as a defendant. ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinions below . . . . 1 Jurisdiction . . . . 2 Constitutional and statutory provisions involved . . . . 2 Statement . . . . 2 Summary of argument . . . . 10 Argument: I. Louisiana's redistricting plan is not subject to strict scrutiny . . . . 14 A. Race-conscious redistricting is not always subject to strict scrutiny . . . . B. I District 4 is not so highly irregular on its face that it can be understood only as an effort to segregate the races for purposes of voting . . . . 20 II. The State's redistricting plan satisfies strict scrutiny . . . . 26 A. The State had compelling interests in creating a second majority-minority district . . . . 27 B. The State's plan is narrowly tailored to further its compelling interests . . . . 34 Conclusion . . . . 36 TABLE OF AUTHORITIES Cases: Allen v. State Board of Elections, 393 U.S. 544 (1969) . . . . 32 Beer v. United States, 425 U.S. 130 (1976) . . . . 19 Cane v. Worcester County, 35 F.3d 921 (4th Cir. 1994), petition for cert. pending (No. 94-955) . . . . 21, 29-30 City of Pleasant Grove v. United States, 479 U.S. 462 (1987) . . . . 30 City of Port Arthur v. United States, 459 U.S. 159 (1982) . . . . 30 City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) . . . . 9, 12, 27, 34 (III) ---------------------------------------- Page Break ---------------------------------------- IV Cases-Continued: Page City of Richmond v. United States, 422 U.S. 358 (1975) . . . . 19,30 Davis v. Bandemer, 478 U.S. 109 (1986) . . . . 16, 17 Gaffney v. Cummings, 412 U.S. 735 (1973) . . . . 16 Hunter v. Underwood, 471 U.S. 222 (1985) . . . . 17 Jeffers v. Clinton, 730 F. Supp. 196 (E.D. Ark. 1989), aff'd mem., 498 U.S. 1019 (1991) . . . . 21,29 Johnson v. DeGrandy, 114 S. Ct. 2647 (1994) . . . . 13, 28, 29 Johnson v. Miller, 864 F. Supp. 1354 (S.D. Ga. 1994), probable jurisdiction noted, Nos. 94-631, 94-797, 94-929 . . . . 22 Johnson v. Transportation Agency, 480 U.S. 616 (1987) . . .. 27 Major v. Treen, 574 F. Supp. 325 (E.D. La. 1983) . . . . 2, 6, 31 McCain v. Lybrand, 465 U.S. 236 (1984) . . . . 32 Metro Broadcasting v. FCC, 497 U.S. 547 (1990) . . . . 15 Palmer v. Thompson, 403 U.S. 217 (1971) . . . . 17 Perkins v. Mathews, 400 U.S. 379 (1971) . . . . 32 Presley v. Etowah County Comm'n., 112 S. Ct. 820 (1992) . . . . 33 Regents of the Univ. of Calif. v. Bakke, 438 U.S. 265 (1978) . . . . 31 Shaw v. Hunt, 861 F. Supp. 408 (E.D.N.C. 1994) . . . 27, 28, 33, 35 Shaw v. Reno, 113 S. Ct. 2816 (1993) . . . . 2, 10, 15, 16, 17, 18, 20, 21, 22, 27 Thornburg v. Gingles, 478 U.S. 30 (1986) . . . . 12, 19, 28 United Jewish Organizations of Williamsburg, Inc. v. Carey, 430 U.S. 144 (1977) . . . . 9, 10, 14, 33, 34 United States v. Paradise, 480 U.S. 149 (1987) . . . . 34 Vera v. Richards, 861 F. Supp. 1304 (S.D. Tex. 1994), appeal docketed (No. 94-988) . . . . 22 Voinovich v. Quilter, 113 S. Ct. 1149 (1993) . . . . 24 Washington v. Davis, 426 U.S. 229 (1976) . . . . 20 Wise v. Lipscomb, 437 U.S. 535 (1978) . . . . 36 Wygant v. ,Jackson Bd. of Educ., 476 U.S. 277 (1986) . . . . 27 ---------------------------------------- Page Break ---------------------------------------- V Constitution, statutes and regulation: Page U.S. Const. Amend. XIV . . . . 2 Equal Protection Clause . . . . 2, 4, 15, 16, 32 Voting Rights Act, 42 U.S.C. 1971 et seq.: 2, 42 U.S. 1973 . . . . passim 2(a), 42 U.S.C. 1973(a) . . . . 19 5, 42 U.S.C. 1973c . . . . passim 28 C.F.R. 51.3 . . . . 3 Miscellaneous: Alenikoff & Issacharoff, Race And Redistricting: Drawing Constitutional Lines After Shaw v. Reno, 92 Mich. L. Rev. 588 (1993) . . . . 18 Pildes & Niemi, Expressive Harms, "Bizarre Districts, " And Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 Mich. L. Rev. 483 (1993) . . . . 18, 22 ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1994 No. 94-558 UNITED STATES OF AMERICA, APPELLANT v. RAY HAYS, ET AL. No. 94-627 STATE OF LOUISIANA, APPELLANT v. RAY HAYS, ET AL. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA BRIEF FOR THE UNITED STATES OPINIONS BELOW The second opinion of the three-judge district court (J.S. App. la-23a) is reported at 862 F. Supp. 119. The first opinion of the three-judge district court (J.S. App. 39a-109a) is reported at 839 F. Supp. 1188. (1) ---------------------------------------- Page Break ---------------------------------------- 2 JURISDICTION The judgment of the three-judge court was entered on December 9, 1994. J.A. 9. A notice of appeal was filed on December 9, 1994. J .A. 233. This Court noted probable jurisdiction on December 12, 1994. J.A. 237. The jurisdiction of this Court rests on 28 U.S.C. 1253. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Equal Protection Clause of the Fourteenth Amendment provides that "[N]o State shall * * * deny to any person within its jurisdiction the equal protection of the laws." The relevant federal statutory provisions are Sections 2 and 5 of the Voting Rights Act, 42 U.S.C. 1973, 1973c, which appear in the appendix to the jurisdictional statement at 117a-119a. STATEMENT This case concerns a challenge to the State of Louisiana's 1994 congressional redistricting plan. A three-judge court invalidated the plan after finding that it violated the standards for race-conscious redistricting established in Shaw v. Reno, 113 S. Ct. 2816 (1993). 1. The population of the State of Louisiana is more than 30% black. J. A. 179. From the end of Re- construction until the 1980's, black voters were not in the majority in any of Louisiana's congressional districts, and no black person was elected to Congress. In 1983, a three-judge court invalidated Louisiana's 1982 congressional redistricting plan on the ground that it fragmented the minority population in the New Orleans area in violation of Section 2 of the Voting Rights Act, 42 U.S.C. 1973. Major v. Treen, 574 F. Supp. 325, 341 (E.D. La. 1983) (three-judge court). To remedy that violation, a plan was adopted in which blacks constituted ---------------------------------------- Page Break ---------------------------------------- 3 a majority in a district centered in New Orleans. Louisiana had a total of eight congressional districts in that plan. In 1990, a black candidate was elected to Congress from the New Orleans-based district. Louisiana's congressional redistricting efforts were preceded by the State's redistricting of the Board of Elementary and Secondary Education (B. E. S. E.). Traditionally, the boundaries of the eight B.E.S.E. districts had been identical to the boundaries of the State's congressional districts. The new B.E.S.E. plan contained one majority-minority district. The State submitted the plan to the Department of Justice for preclearance under Section 5 of the Voting Rights Act of 1965, 42 U.S.C. 1973c. Acting on behalf of the Attorney General (28 C.F.R. 51.3), the Assistant Attorney General for the Civil Rights Division refused to preclear the plan. DX 16 (1993 Hearing). The Assistant Attorney General's objection letter noted that the B.E.S.E. plan had fragmented the minority population along the Mississippi River among three majority-white districts, that polarized voting by whites would preclude blacks from having an opportunity to elect a candidate of their choice in any of those districts, and that the State's black population was large enough and compact enough to constitute a majority in a second district that included the minority voters who lived along the Mississippi River. ibid. The letter concluded that the State had not shown that its failure to create a second majority- minority district was free of discriminatory purpose. Ibid. In response to that objection, the State adopted a new B.E.S.E. plan that created two majority-minority districts, which the Assistant Attorney General then precleared. As a result of the 1990 Census, Louisiana lost one of its congressional seats. J.S. App. 55a. In May, 1992, the ---------------------------------------- Page Break ---------------------------------------- 4 State legislature enacted a districting plan for the seven remaining seats. Id. at 39a. That plan included two majority-black districts. One was centered in New Orleans and was similar to the majority-black district in the plan used in the 1980s; the other (District 4) was a Z- shaped district that spanned a large part of the State. The State's plan was precleared by the Department of Justice. Appellees, four voters living in Lincoln Parish, Louisiana, challenged that plan in 1992 on the ground that it segregated voters into districts on the basis of race, in violation of the Equal Protection Clause. J.S. App. 42a. The district court denied appellees' request for a preliminary injunction, and the 1992 congressional elections were held under the State's plan. Ibid. A black candidate was elected to Congress from District 4. In December, 1993, following this Court's decision in Shaw, a three-judge Court ruled in favor of appellees on the merits. J.S. App. 39a-109a. The court held that "[al legislature creates a racially-gerrymandered districting plan when it intentionally draws one or more districts along racial lines or otherwise intentionally segregates citizens into voting districts based on their race." Id. at 48a. The court concluded that such an intent could be proven "inferentially * * * when districts are so bizarrely shaped that they presumptively bespeak an impermissible purpose. " Id. at 50a. The court also concluded that such an intent could be shown "by direct evidence that a legislature enacted a districting plan with the specific intent of segregating citizens into voting districts based on their race." Ibid. The court found that appellees had proven racial gerrymandering in both ways. Id. at 51a. Applying strict scrutiny, the court assumed that the State had one or more. compelling interests in creating a ---------------------------------------- Page Break ---------------------------------------- 5 second majority-black district. J.S. App. 79a. The court went on to hold, however, that the State's plan was not narrowly tailored to further those interests for two reasons. First, the court found that District 4, which was 63% black in voting age population, contained more black voters than were "reasonably necessary to give blacks a realistic chance to determine the outcome of elections there." Id. at 83a-84a. According to the court black voters would have an opportunity to elect the candidate of their choice in a district that is 55% black in voting age population . Id. at 84a. Second, the court found that "a second black majority district could have been drawn that would have done substantially less violence to traditional redistricting principles." Id. at 85a. The State appealed. While that appeal was pending, the State enacted a new redistricting plan (Act 1), with a newly configured majority-minority District 4. The Department of Justice precleared Act 1. On June 27, 1994, this Court vacated the district court's judgment and remanded the case for further proceedings in light of the new plan. J.S. App. 2a. 2. Appellees filed an amended complaint, challenging Act 1 on equal protection grounds. J.S. App. 2a. The United States intervened to defend the plan. The court held a hearing on July 21 and July 22, 1994. Ibid. The evidence at trial showed that the plan was drafted by legislative aide Glenn Koepp, based on instructions he received from two state senators with leadership roles on the State Senate redistricting committee. The two state senators told Koepp to devise a plan that would respect traditional redistricting values and avoid unnecessary packing of minority voters in accordance with the district court's 1993 decision, while still attempting to create a second majority-black district. J.A. 32-35, 105-106, 109, 120-121. To accomplish those ---------------------------------------- Page Break ---------------------------------------- 6 purposes, the senators suggested that Koepp model the district on congressional District 8 from prior redistricting plans. District 8 already had the second highest percentage of black voters of any district. J.A. 37,87,93-94, 105-106. The State had used versions of old District 8 in every redistricting plan enacted between 1967 and 1992. J.S. App. 11 la-114a. Old District 8 generally began in the western part of the State, included areas along the Red and Mississippi Rivers as it moved in a south-easterly direction, and ended beyond Baton Rouge. J.S. App. 111a- 114a. Blacks are geographically concentrated in much of the area covered by the various configurations of old District 8, particularly along the Red and Mississippi Rivers. J.A. 38-39, 62, 82. In 1980, District 8 was 33.2% black; in 1990, it was 38.4% black. Major v. Treen, 574 F. Supp. at 328 n.3; J.A. 184. The area along the Red River Valley is also an important economic region and the people in that region share common interests. J.A. 71- 72,75-76, 196. Using old District 8 as a model, Koepp devised new District 4. As Koepp explained it, "once I started working with it, * * * putting together parishes in the old Eighth, it got to be a district that was very close to a minority district." J.A. 41. And once Koepp extended the lines to Shreveport, the district was over 50% minority. Ibid. In devising the district, Koepp tried to keep small towns, precincts, and parishes intact, retain existing congressional districts as much as possible, reflect communities of interest, and place incumbents in separate districts. J.A. 35, 39-45, 107. To satisfy the one person, one vote rule and other objectives in the plan, 14 of Louisiana's 64 parishes were divided. J.A. 37, 45-46. During State Senate redistricting hearings, Koepp displayed maps of various versions of old District 8 and ---------------------------------------- Page Break ---------------------------------------- 7 explained that they had been used as the basis for the new majority-minority district. J.A. 37-38, 164-178. The State House also held hearings and considered two additional plans similar to the one drafted by Koepp. SX 7 (maps, H.B. 8, 11); J.A. 194. The House was advised that those plans were also based on old District 8. J.A. 201. The House and Senate made several minor adjustments in Koepp's plan in the Lafayette and St. Landry area to satisfy an incumbent's concern about the political makeup of his district and to split fewer small towns. J.A. 55,94-96,197,227. As finally enacted, the new district begins in the northwest part of the State near Shreveport, runs diagonally southeast along the Red River to Alexandria, and then further southeast along the Mississippi River past Baton Rouge. J.S. App. 110a. The district is approximate] y 55% black in registered voters. J.A. 41. In recent years, the cultural regions of Louisiana have become much less distinct and agricultural regions have become widely dispersed. J.A. 69-70. The adopted plan recognizes the State's geographic, economic, and cultural regions as well or better than any of the alternative plans considered by the legislature, including those with only one majority-minority district. J.A. 74- 75,84. Voting in Louisiana is racially polarized, and blacks in Louisiana have not been elected either to Congress or the State legislature except from districts in which blacks have constituted a majority of registered voters. J.A. 65-67, 181-193. Aware of that reality, the State legislature created a second majority-minority district in order to comply with the requirements of Sections 2 and 5 of the Voting Rights Act, and to continue to remedy Louisiana's history of discrimination in voting. J.A. 41-43,87-90,104,113-115, 202-219. ---------------------------------------- Page Break ---------------------------------------- 8 3. On July 22, 1994, the district court held the new plan unconstitutional. On July 25, 1994, it enjoined further use of the plan, and required 1994 and subsequent elections to be held under a plan drawn by the court. J.S. App. 24a-26a. The court's plan creates only one majority-black district; all other districts are less than 30% black in registered voters. The district court issued an opinion explaining its decision on July 29, 1994. J.S. App. la-23a. The court found that "[t]he districting map of Louisiana, created under Act 1, reflects a racial gerrymander." Id. at 3a. The court specifically found that District 4 "cuts across historical and cultural divides, splits twelve of its fifteen parishes and divides four of the seven major cities of the State." Ibid. The court added that "[t]he statistical evidence showing the racial composition of the districts further supports the finding that District Four is so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races for purposes of voting." Ibid. (internal quotation marks omitted). That evidence, the court concluded, shifted the burden to the State to show that District 4 did not reflect a racial gerrymander. Ibid. The court then found that the State had failed to satisfy that burden. J.S. App. 4a-5a. The court found that the State's assertion that the residents along the Red River had common interests was a "post hoc rationalization." The court also found that the State's claim that it had relied on the design of old District 8 was "mere pretext." Id. at 5a. In reaching those conclusions, the court relied in large part on the fact that "[t]he Senators themselves admitted that race played a large if not dominant role in the map as it is now drawn." Id. at 4a. The court also noted that old District 8 had never been challenged and that it was originally ---------------------------------------- Page Break ---------------------------------------- 9 created for the purpose of ensuring the reelection of an incumbent congressman. Id. at 5a. The court concluded that while "other factors" affected the way in which District 4 was drawn, the "fundamental factor driving Act 1 was race." Ibid. The court then held that "[r]ace-conscious redistricting, while not always unconstitutional, is always subject to strict scrutiny." J.S. App. 5a. The court noted that this Court had applied a more deferential standard to race-conscious redistricting in United Jewish organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144 (1977) (UJO). J.S. App. 5a. The court concluded, however, that City of Richmond v. J. A. Croson Co., 488 U.S. 469 (1989), undermined the holding in UJO, and required strict scrutiny of all race- conscious redistricting. J.S. App. 6a. The court went on to hold that the State had not proven that its consideration of race was supported by a compelling interest. J.S. App. 6a-7a. The court con- cluded that Section 5 "cannot be read to compel the results of Act 1" because there was no showing "that [the] failure to create a second majority-minority district would either be a retrogression of minority strength or have an illegal purpose." J.S. App. 8a. The court further concluded that a second majority-minority district was not compelled by Section 2 because proof of a "numerous and compact minority" is a precondition for a Section 2 dilution claim and "[t]he evidence convincingly proves that the State cannot clear [that] hurdle." J.S. App. 8a. Finally, the district court rejected the State's assertion that the creation of a majority-minority district furthered the State's interest in remedying its history of racial discrimination. Id. at 9a-10a. The court concluded that "[w]ithout concrete evidence of the lingering effects of past discrimination * * * we cannot ---------------------------------------- Page Break ---------------------------------------- 10 agree that the re-segregation of Louisiana by racially configured voting districts is warranted." Id. at 10a. The court then addressed the question of remedy. It stated that it had adopted its own plan because of the need for prompt action and because the State had already failed twice to adopt a constitutionally acceptable plan. J.S. App. 10a. Chief Judge Shaw issued a separate opinion in which Judge Wiener concurred. That opinion generally tracked the court's reasoning. J.S. App. 13a-23a. On August 11, 1994, this Court stayed the district court order, permitting the 1994 congressional elections to proceed under the State's plan. On December 9, 1994, the district court reentered its judgment to cure a technical deficiency. On December 12, 1994, this Court noted probable jurisdiction. SUMMARY OF ARGUMENT I. A. The district court's holding that all race- conscious redistricting is suspect is inconsistent with United Jewish Organizations of Williamsburg, Inc. v. Carey, 430 U.S. 144 (1977). In that case, five Justices agreed that the intentional creation of majority-minority districts is constitutional absent proof that the State's redistricting plan has the purpose and effect of diluting a racial group's voting strength. In Shaw v. Reno, 113 S. Ct. 2816 (1993), the Court held that race-conscious redistricting is suspect in those rare cases when the shape of a district is so highly irregular that it can be understood only as an effort to segregate the races for voting purposes. The Court in Shaw did not overrule UJO, but distinguished it on the ground that the plan at issue in UJO followed traditional districting practices. UJO therefore remains controlling when a State ---------------------------------------- Page Break ---------------------------------------- 11 intentionally creates majority-minority districts that are consistent with its traditional districting practices. UJO is correct and should not be overruled. The district court's holding that all race-conscious redistricting is suspect deprives racial minorities who share common interests of the same opportunity to influence redistricting decisions that is accorded to other groups. It conflicts with the Court's holdings that plaintiffs challenging a decision on equal protection grounds must demonstrate a discriminatory effect. It fails to give sufficient weight to Congress's judgment that jurisdictions must be conscious of the racial consequences of their redistricting decisions. And it ignores the reality that those who redistrict are race- conscious because race often correlates with voting behavior. B. A redistricting plan is suspect under Shaw only if it departs dramatically from the State's traditional districting practices. For that reason, the most salient fact in this case is that District 4 in the State's plan resembles District 8 in the plans that the State used between 1967 and 1992. The district court erred in concluding that the State's admission that it intended to create a majority-minority district undermined the State's reliance on old District 8. The inquiry under Shaw is an objective one into whether the district is highly irregular when compared to districts drawn according to the State's traditional districting practices. Even if the State's intent were the ultimate issue, however, the State's admission that it intended to create a majority-minority district is not inconsistent with the State's assertion that it also took into account the traditional districting values that would be served by creating a district that resembled prior ---------------------------------------- Page Break ---------------------------------------- 12 districts. There is nothing suspect about that kind of balanced approach. Isolated segments of District 4 are irregular in shape. The relevant inquiry, however, is whether the district as a whole is bizarre, not whether isolated segments of it are. District 4 reflects a con-scientious effort to create a majority-minority district while simultaneously pursuing other traditional Louisiana redistricting interests. It is therefore not suspect under Shaw. H. In any event, the State's plan satisfies strict scrutiny because it is narrowly tailored to further the State's compelling interest in complying with the Voting Rights Act and ameliorating the present effects of racially polarized voting. A. To establish a compelling interest in creating a majority-minority district in order to comply with the Voting Rights Act, the State was not required to prove that the Voting Rights Act ultimately mandated such a district. Rather, it was sufficient for the State to show that it had a sound basis for concluding that its failure to create a second majority-minority district would have led to a prima facie case against it under the Act. City of Richmond v. J.A. Croson Co., 488 U.S. 469,500 (1989). A State clearly has a sound basis for creating a majority-minority district to comply with Section 2 when (1) the minority group is sufficiently large and compact to constitute a majority in a district; (2) the minority group is politically cohesive; (3) whites usually vote sufficiently as a bloc to defeat the minority's preferred candidates; and (4) the failure to create a majority-minority district would leave the minority group substantially underrepresented when compared with the group's percentage in the population. Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986); Johnson ---------------------------------------- Page Break ---------------------------------------- 13 v. DeGrandy, 114 S. Ct. 2647, 2658-2662 (1994). The State made each of those showings. The district court found that blacks in the State are not sufficiently compact to constitute a majority in a second district. The relevant inquiry, however, is whether the proposed majority-minority district is reasonably compact in light of the State's traditional practices. Since District 4 is similar in compactness to districts drawn by the State in the same general area, the compactness requirement was satisfied. The State also had a sound basis for believing that it would have difficulty satisfying its burden under Section 5 of showing that the failure to create a second majority- minority district was free of discriminatory purpose. In addition to the factors already discussed, the Attorney General had objected on discriminatory purpose grounds to a redistricting plan for the State Board of Elementary and Secondary Education, which had included one majority-minority district out of eight. The district court questioned the validity of that objection. Since there was no evidence that the objection was clearly insupportable, however, the State could properly rely on it. The State also had a compelling interest in ameliorating the effect that racially polarized voting continues to have on the opportunity of minority voters to elect a candidate of their choice. Faced with the kind of extreme and pervasive bloc voting present in Louisiana, the State could properly seek to insure a fair allocation of political power. B. The State's plan is narrowly tailored. It creates the number of majority-minority districts that its interests in complying with the Voting Rights Act and fairly allocating political power justify. It does not needlessly pack minority voters into the majority- ---------------------------------------- Page Break ---------------------------------------- 14 minority districts. And it gives sufficient weight to other redistricting interests. ARGUMENT I. LOUISIANA'S REDISTRICTING PLAN IS NOT SUBJECT TO STRICT SCRUTINY A. Race-Conscious Redistricting Is Not Always Subject To Strict Scrutiny In enacting its congressional redistricting plan, the State intended to create a second majority-minority district. The district court viewed that intent alone as a sufficient basis for subjecting Act 1 to strict scrutiny. The court's core holding was that "[r]ace-conscious redistricting, while not always unconstitutional, is always subject to strict scrutiny." J.S. App. 5a. That holding is inconsistent with United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144 (1977). In UJO, the State "deliberately used race in a purposeful manner" to create majority-minority dis- tricts. Id. at 165. Seven of the eight Justices parti- cipating voted to uphold the State's plan without subjecting it to strict scrutiny. Five Justices specifically agreed that the intentional creation of majority-minority districts does not give rise to an equal protection claim, absent proof that it has the intent and effect of diluting the majority's voting strength. See ibid. (White, J. joined by Stevens, J. and Rehnquist, J.); id. at 179-180 (Stewart, J., concurring, joined by Powell, J.). Because the plan at issue in UJO was consistent with traditional redistricting principles, id. at 168, UJO did not resolve the question of what constitutional standard would apply to plans that departed from such principles in order to create majority-minority districts. ---------------------------------------- Page Break ---------------------------------------- 15 In Shaw, this Court addressed that issue, holding that a redistricting plan that is "so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races for purposes of voting" is subject to strict scrutiny. 113 S. Ct. at 2824. Such a plan is constitutional only if it is narrowly tailored to further a compelling interest. Id. at 2825. The Court "express[ed] no view as to whether `the intentional creation of majority-minority districts, without more' always gives rise to an equal protection claim." Id. at 2828. The Court did not, however, purport to overrule UJO. Instead, it distinguished UJO on the ground that the State in that case had "adhered to traditional districting principles." Id. at 2829. The Court also explicitly and repeatedly limited its holding to those "rare" cases in which districts are so highly irregular that they can be understood only in racial terms. Id. at 2824, 2825, 2826, 2828, 2830. The district court's holding in this case that Louisiana's intent to create a majority-minority district automatically triggered strict scrutiny is therefore in conflict with UJO and not supported by Shaw. The Court's holding in UJO is correct and should not be overruled. That is true for several reasons. First, a holding that all race-conscious districting is automati- cally suspect would be inconsistent with the central purpose of the Equal Protection Clause-to insure equal treatment regardless of race. In most contexts, the principle of equal treatment is fully effectuated by considering each person as an individual, without regard "to his or her race. Metro Broadcasting v. FCC, 497 U.S. 547, 602 (1990) (O'Connor, J. dissenting). Redistricting, however, presents a different situation. In adopting redistricting plans, States do not treat people as individuals, but as members of groups. Redistricting "inevitably has and is intended to have ---------------------------------------- Page Break ---------------------------------------- 16 substantial political consequences." Gaffney v. Cum- mings, 412 U.S. 735, 753 (1973). Because of those politi- cal consequences, groups with distinctive political interests seek to influence the way in which district lines are drawn. The groups participating in the redistricting process include not only political parties, groups with the same business interests, groups made up of people with similar socio-economic status, and issue- oriented groups, but also racial, ethnic, and religious groups. In redistricting, a State inevitably seeks to "reconcile the competing claims of [those] groups." Davis v. Bandemer, 478 U.S. 109, 147 (1986) (O'Connor, J., concurring in the judgment). Under the Equal Protection Clause, a State must be free to give the same consideration to the claims of racial minority groups that seek to influence redistricting as to the claims of any other interest group. For example, if, as the district court indicated, a State may properly seek to accommodate the political interests of North Louisiana Irish, mainline Protestants, South Louisiana Catholics, and Creoles (J.S. App. 17a), it must have the same freedom to accommodate the political interests of blacks who live along the Red and Mississippi Rivers. If all race-conscious redistricting were subject to strict scrutiny, however, racial minority groups sharing common interests would have less opportunity to influence redistricting than other groups. That result cannot be squared with the central purpose of the Equal Protection Clause. As Justice Stevens has stated, "[i]f it is permissible to draw boundaries to provide adequate representation for rural voters, for union members, for Hasidic Jews, for Polish Americans, or for Republicans, it necessarily follows that it is permissible to do the same thing for members of the very minority group whose history in the United States gave birth to the ---------------------------------------- Page Break ---------------------------------------- 17 Equal Protection Clause." Shaw, 113 S. Ct. at 2844-2845 (Stevens, J., dissenting). The holding in Shaw is not at odds with that conclusion. The showing required in Shaw to invoke strict scrutiny-that a majority-minority district is so highly irregular on its face that it can be understood only as an effort to segregate the races for voting purposes-indicates that the State has taken action on behalf of a racial minority group that it is unwilling to take on behalf of any other group. That sort of preference for racial interests triggers special equal protection concerns. When a State follows traditional districting practices in creating a majority-minority district, however, no such special concerns are raised. The district court's holding that all race-conscious redistricting triggers strict scrutiny is also inconsistent with this Court's holdings that a plaintiff challenging a decision under the Equal Protection Clause must show that the decision has discriminatory consequences. Davis v. Bandemer, 478 U.S. at 127 (plurality opinion); id. at 161 (Powell, J., concurring in part and dissenting in part); Hunter v. Underwood, 471 U.S. 222,227 (1985); Palmer v. Thompson, 403 U.S. 217, 224-225 (1971). Shaw did not eliminate that requirement. Instead, the Court there identified two race-based injuries that it believed could be traced to a plan that is so highly irregular that it can be understood only as an effort to segregate the races for voting purposes. The Court concluded that such a plan imposes harm because it conveys the message "that members of the same racial group-regardless of their age, education, economic status, or the community in which the[y] live-think alike, share the same political interests, and will prefer the same candidates at the polls." 113 S. Ct. at 2827. And the Court concluded that such a plan also inflicts harm ---------------------------------------- Page Break ---------------------------------------- 18 because ''[w]hen a district obviously is created solely to effectuate the perceived common interests of one racial group, elected officials are more likely to believe that their primary obligation is to represent only the members of that group, rather than their constituency as a whole." Ibid. Whether or not. the Court was right in attributing those consequences to the creation of highly irregular districts (see 113 S. Ct. at 2848 n.9 (Souter, J., dissenting)), the court did not suggest in Shaw that such effects would occur when the creation of a majority- minority district is consistent with traditional districting practices. To the contrary, the premise of Shaw is that "race-conscious redistricting that `segregates' by drawing odd-shaped lines is qualitatively different from race-conscious redistricting that affects groups in some other way." Id. at 2838 (White, J., dissenting). As commentators have noted, the harms identified by Shaw flow from the fact that highly irregular majority-minority districts may convey the message to the public that race has submerged all other redistricting values-a message that is not conveyed by more regular majority-minority districts. Pildes & Niemi, Expressive Harms, "Bizarre Districts, " And Voting Rights: Evaluating Election-District Appear- ances After Shaw v. Reno, 92 Mich. L. Rev. 483, 526 (1993); See also, Alenikoff & Issacharoff, Race And Redistricting: Drawing Constitutional Lines After Shaw v. Reno, 92 Mich. L. Rev. 588, 613-614 (1993) (extremely irregular majority-minority districts may be racially divisive in a way that more compact majority- minority districts are not). Treating all race-conscious redistricting as automa- tically suspect also gives insufficient weight to Congress's judgment that States should be conscious of ---------------------------------------- Page Break ---------------------------------------- 19 the racial consequences of their redistricting decisions. Section 5 of the Voting Rights Act compels covered jurisdictions, like Louisiana, to create majority- minority districts when that is necessary in order to avoid retrogression in minority voting strength or when the failure to draw such a district would reflect purposeful racial discrimination. Beer v. United States, 425 U.S. 130, 140-142 (1976); City of Richmond v. United States, 422 U.S. 358, 378-379 (1975). Similarly, Section 2 of the Voting Rights Act requires all state and local jurisdictions to draw majority-minority districts if the failure to do so would lead to discriminatory "results." 42 U.S.C. 1973(a); Thornburg v. Gingles, 478 U.S. 30 (1986). To view the intentional drawing of majority- minority districts as suspect in all circumstances would ignore this legal context in which redistricting authorities must operate and would undermine Con- gress's decision to require such districts where necessary to avoid discriminatory results. Such a rule would also place States in a legal straitjacket in which they would face litigation with minority voters if they do not create a majority-minority district and litigation from others if they do. The result would be the functional equivalent of a requirement that States and localities must preclear all their re- districting plans in federal court before they can safely implement them. It is one thing to put States in that position in the relatively rare circumstances in which they contemplate drawing highly irregularly-shaped majority-minority districts. It is another thing to create that dilemma every time a State or locality contemplates creating a majority-minority district. Finally, as this Court noted in Shaw, "redistricting differs from other kinds of state decisionmaking in that the legislature always is aware of race when it draws ---------------------------------------- Page Break ---------------------------------------- 20 district lines, just as it is aware of age, economic status, religious and political persuasion, and a variety of other demographic factors." 113 S. Ct. at 2826. Because experience shows that race is often highly correlated with voting behavior, it is unrealistic to expect legislators to ignore that reality when they engage in the highly political task of redistricting. Id. at 2835 (White, J., dissenting) ("[I]t can hardly be doubted that legislators routinely engage in the business of making electoral predictions based on group characteristics- racial, ethnic, and the like."); id. at 2844 (Stevens, J., dissenting) ("Politicians have always relied on assumptions that people in particular groups are likely to vote in a particular way when they draw new district lines."). Thus, if legislators are candid in their discussions concerning redistricting plans, a holding that all race-conscious redistricting is automatically suspect would subject a very large number of redistricting plans at all levels of government to strict scrutiny. Cf. Washington v. Davis, 426 U.S. 229, 248 (1976) (noting that the consequence of treating all state laws with a discriminatory effect as suspect would be to raise serious questions about, and perhaps invalidate, a wide range of state laws). In sum, the State's intent to create a second majority- minority district did not trigger strict scrutiny in this case. The district court erred in holding otherwise. B. District 4 Is Not So Highly Irregular On Its Face That It Can Be Understood Only As An Effort To Segregate The Races For Purposes Of Voting The district court also subjected the State's plan to strict scrutiny on the ground that District 4 was "so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races for ---------------------------------------- Page Break ---------------------------------------- 21 purposes of voting." J. S., App. 3a. The court erred in reaching that conclusion as well. 1. The question whether a district is so highly irregular on its face that it can be understood only as an effort to segregate the races for purposes of voting is not a purely factual issue that a court can decide based entirely on intuition or aesthetic reactions. That inquiry must be guided by meaningful legal standards. Four principles are particularly important here. First, the manner in which the State has drawn and continues to draw other districts is the most appropriate benchmark for determining whether a particular majority-minority district is "bizarre." See Cane v. Worcester County, Maryland, 35 F.3d 921, 927 n.6 (4th Cir. 1994), petition for cert. pending (No. 94-955); cf. Jeffers v. Clinton, 730 F. Supp. 196 (E.D. Ark. 1989), aff'd mem., 498 U.S. 1019 (1991). As previously discussed, a State should have the same leeway to accommodate the interests of racial minority groups with common interests as it has to accommodate other interest groups. For that reason, only majority-minority districts that are much more unusual in shape than districts drawn by the State to accommodate other political interests trigger strict scrutiny. Moreover, as previously noted, the Court in Shaw concluded that a district is suspect when it conveys a message that excessive consideration has been given to race. That perception will be shaped by how the State ordinarily redistricts, not by some model redistricting ideal. Practical considerations also necessitate reliance on the State's own redistricting standards. The only alterna- tive to that approach would be a wholly subjective "I know it when I see it" test. Second, Shaw described suspect districts as "extremely irregular" and "bizarre." 113 S. Ct. at 2824- ---------------------------------------- Page Break ---------------------------------------- 22 2825. Districts that are only "somewhat irregular" are not suspect. Id. at 2826. A district is therefore suspect under Shaw only if it departs dramatically from the State's traditional redistricting practices. Third, Shaw held that a district is suspect only when it is so extremely irregular "on its face" that it can be understood only in racial terms. 113 S. Ct. at 2824. The terms "on its face" clearly mandate an objective inquiry into the nature of the district, not a subjective inquiry into the legislature's intent. Johnson v. Miller, 864 F. Supp. 1354, 1395 & n.2 (S.D. Ga. 1994) (Edmondson, J., dissenting), probable jurisdiction noted, Nos. 94-631, 94- 797, 94-929; see also Pildes & Niemi, supra, 92 Mich. L. Rev. at 508. Finally, the relevant inquiry under Shaw is whether the district is bizarre. The fact that isolated segments of a district are irregular does not make the district itself bizarre. Vera v. Richards, 861 F. Supp. 1304, 1345 (S.D. Tex. 1994), appeal docketed (No. 94-988). 2. Application of these legal standards leads to the conclusion that District 4 should not have been subjected to strict scrutiny. The most salient fact in this case is that District 4 resembles a majority-white district used in previous State redistricting plans. For 25 years (from 1967-1992), District 8 usually began in the western part of the State, included areas along the Red and Mississippi Rivers as it moved southeast, and ended beyond Baton Rouge. J.S. App. 111a-114a. District 4 includes the same general area. Id. at 110a. District 4 most closely resembles District 8 in the congressional plans used in 1967-1970 and 1971-1972. Id. at 112a, 113a. Because District 4 is consistent with the State's redistricting traditions, it is not suspect under Shaw. In addition, the population along the Red River Valley which is included in District 4 shares common social and ---------------------------------------- Page Break ---------------------------------------- 23 economic interests. That evidence reinforces the conclusion that District 4 is not so irrational on its face that it can be understood only in racial terms. Isolated segments of District 4 are irregular. But as we have discussed, the relevant inquiry under Shaw is whether the district as a whole is bizarre, not whether isolated segments of it are. When viewed as a whole, District 4 is not such a dramatically irregular departure from State districting practices as to make it suspect under Shaw. 3. The district court rejected the State's reliance on the fact that District 4 resembles old District 8 and encompasses a community of interest along the Red and Mississippi Rivers as "post hoc rationalization" and "mere pretext. " J.S. App. 5a. In reaching those conclusions, the court relied in large part on the admissions of state legislators that race played a large role in the drawing of District 4. Ibid. As we have noted, however, Shaw mandates an objective inquiry into whether a district conveys the impression that racial considerations have been pursued to the exclusion of other redistricting values, not a subjective inquiry into the legislature's intent. The resemblance of District 4 to old District 8 and the presence of a community of interest along the Red and Mississippi Rivers are powerful objective indications that District 4 would not be understood as being driven by racial considerations to the exclusion of other redistricting values. Those factors are therefore of critical relevance in evaluating appellees' Shaw claim. Conversely, the fact that state legislators conceded that the State intended to draw a majority-minority district is not determinative of a Shaw claim. Under Shaw, there is nothing suspect about a State's desire to draw a majority-minority district. ---------------------------------------- Page Break ---------------------------------------- 24 Even if the legislature's actual intent were the relevant subject of inquiry, the district court misunder- stood what the State sought to prove by introducing evidence that it modelled District 4 on District 8 and that it included persons in District 4 who had common interests other than their race. The point of that evidence was not to show that race played no role in the drawing of District 4; it admittedly played an important one. Rather, the point was to show that the State was attempting to draw a majority-minority district in a way that was consistent with other traditional redistricting interests. The State's acknowledgement that it intended to create a majority-minority district is not in any way inconsistent with its assertion that it also took into account the traditional districting values of using districts that resemble prior districts and including persons with common interests. That acknowledgement therefore provides no basis for the court's finding that the State's reliance on those other factors was pretextual. In rejecting the State's reliance on old District 8, the district court also attributed significance to the fact that District 8 was "never challenged" and "was crafted for the purpose of ensuring the reelection of Congressman Gillis Long." J.S. App. 5a. Legislation that has not been challenged, however, is presumptively consti- tutional. Voinovich v. Quilter, 113 S. Ct. 1149, 1156-1157 (1993). Nor does it denigrate the State's reliance on old District 8 to note that the district was originally drawn to protect an incumbent congressman. To the contrary, that fact indicates that the shape of District 8 reflects the State's traditional districting practices. The district court therefore erred in failing to treat that district as a benchmark for determining whether District 4 reflected such a dramatic departure from the ---------------------------------------- Page Break ---------------------------------------- 25 State's traditional practices as to be suspect under Shaw. 4. The district court made only a conclusory finding that District 4 was bizarre. J.S. App. 3a. Chief Judge Shaw, joined by Judge Weiner, elaborated on why, in their opinion, District 4 should be viewed as bizarre. J.S. App. 15a-17a. Their reasons are unpersuasive. Chief Judge Shaw first found that District 4 is not compact because it is 250 miles long and spans 14 parishes. J.S. App. 15a-16a. Other districts in the current State plan, however, are also long and span numerous parishes. District 6 is about 200 miles long and spans 18 parishes; District 5 is about 190 miles long and spans 17 parishes; and District 3 is about 175 miles long and spans 15 parishes. J.S. App. 110a. In the court's plan (J.S. App. 38a), District 4 is about 200 miles long and spans 12 parishes, and District 3 is about 175 miles long and spans 13 parishes. See also U.S. Exh. 4 (District 5 in 1969-70 plan contained 17 parishes; District 5 in 1971- 1972 plan contained 19 parishes; District 5 in 1973-1982 plan contained 20 parishes). Because Louisiana is comparatively large and has 64 parishes, but only seven congressional districts, some of its districts will necessarily be long and contain numerous parishes. There is nothing bizarre or even unusual about that. Judge Shaw next found that District 4 does not respect political subdivisions because it splits 12 parishes and four cities. J.S. App. 16a-17a. In Louisiana, however, parish and city lines have never been sacrosanct in congressional redistricting. The three plans used between 1971 and 1992 all divided seven parishes. U.S. Exhs. 4, 6; PX 5, J.S. App. 65a. The court's own plan divided six. Congressional redistricting plans through- out the twentieth century have split the city of New Orleans. The number of parishes and cities split by ---------------------------------------- Page Break ---------------------------------------- 26 District 4 does not constitute such an extraordinary departure from the State's usual redistricting practices as to trigger strict scrutiny, Chief Judge Shaw also found that the State's plan did not follow the traditional principle of respect for commonality of interests because District 4 combines different ethnic, religious, and agricultural groups. J.S. App. 15a, 17a. Any plan with only seven districts in a State as diverse as Louisiana, however, must combine different groups in districts to some extent. As already noted, District 4 unites a large number of residents who share common economic and social interests. The State's decision to give greater weight to the com- monalities of interest reflected in District 4 than to the ethnic, religious, and agricultural factors favored by Judge Shaw does not show that District 4 is bizarre. In sum, suspect treatment is reserved for truly bizarre districts that, on their face, evidence a single- minded pursuit of racial goals, with little or no consideration for other districting values. District 4 is not such a district. It reflects an acknowledged effort to create a majority-minority district, while simulta- neously pursuing other traditional Louisiana districting values. It is therefore not suspect under Shaw. II. THE STATE'S REDISTRICTING PLAN SATISFIES STRICT SCRUTINY Even if the district court were right in subjecting the State's plan to strict scrutiny, it erred in concluding that strict scrutiny was not satisfied. The State's plan is narrowly tailored to further the State's compelling interests in complying with the Voting Rights Act and ameliorating the effect that racial polarization has on the opportunity of minority voters to elect candidates of their choice. ---------------------------------------- Page Break ---------------------------------------- 27 A. The State Had Compelling Interests In Creating a Second Majority-Minority District 1. State has a compelling interest in complying with Sections 2 and 5 of the Voting Rights Act. See Shaw, 113 S. Ct. at 2830. The district court did not suggest otherwise. Instead, it held that, for the State to invoke that compelling interest as a justification for its actions, there must be "findings of * * * statutory violations." J.S. App. 7a. The district court therefore reviewed the evidence de novo to determine whether the State's creation of District 4 was "compelled" by Section 2 or Section 5. J.S. App. 7a, 9a. Based on the application of that standard, the court found that the creation of District 4 was not justified by the need to comply with Section 2 or Section 5. J.S. App. 7a-9a. The district court's approach is inconsistent with this Court's precedents. To invoke the Voting Rights Act as a justification for its actions, the State was not required to prove that the Act ultimately required the drawing of a second majority-minority district. Rather, the State was required to show only that it had a "strong basis in evidence" for its actions-a standard that is satisfied if the State had a sound basis for believing that its failure to draw a second majority-minority district would have led to a prima facie case against it. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 500 (1989); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 277 (1986) (plurality opinion); id. at 292-293 (O'Connor, J., concurring); Johnson v. Transportation Agency, 480 U.S. 616,652-653 (1987) (O'Connor, J., concurring in the judgment). That standard gives States a margin of safety that will encourage their voluntary compliance with the Voting Rights Act, while still insuring that States do not resort to race-based action casually or gratuitously. Johnson, 480 U.S. at 652-653 (O'Connor, J., concurring in the ---------------------------------------- Page Break ---------------------------------------- 28 judgment); Wygant, 476 U.S. at 290-291 (O'Connor, J., concurring). The actual violation standard adopted by the district court imposes an unfair burden of omni- science upon the States. Shaw v. Hunt, 861 F. Supp. 408, 439-440 n.26 (E.D.N.C. 1994). Under the correct standard, Louisiana's creation of a second majority- minority was justified by both Section 2 and Section 5. a. In Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986), the Court established three preconditions for a Section 2 vote dilution claim. Plaintiffs must show that (1) the minority population is sufficiently large and compact to constitute a majority in a single-member district, (2) the minority group is politically cohesive, and (3) whites usually vote sufficiently as a bloc to defeat the minority's preferred candidate. In Johnson v. DeGrandy, 114 S. Ct. 2647, 2658-2662 (1994), the Court further held that the extent to which the minority population has an opportunity to elect candidates in proportion to their percentage in the population is important evidence bearing on the ultimate issue whether a redistricting plan violates Section 2. 114 S. Ct. at 2664 (O'Connor, J., concurring) ("[A] court must always consider the relationship between the number of majority-minority voting districts and the minority group's share of the population."). In light of Gingles and DeGrandy, a State would clearly have a reasonable basis for creating a majority-minority district to comply with Section 2 when the State legitimately believes that each of the three Gingles preconditions could be established against it and when, without such a district, the minority group remains substantially underrepresented when compared to the group's proportion of the ---------------------------------------- Page Break ---------------------------------------- 29 population. See Shaw v. Hunt, 861 F. Supp. at 440-441 & n.28. 1. The State made that showing here. There is over- whelming evidence that blacks are politically cohesive in Louisiana and that whites usually vote sufficiently as a bloc to defeat their preferred candidates. No black candidate has ever won election to Congress or the Louisiana legislature except from a district in which blacks have constituted a voting majority. In the five most recent primary and run-off elections in old District 8, more than 87% of the blacks, on average, supported the black candidate, while less than 10% of the whites, on average, supported that candidate. SX 15. In addition, since blacks constitute 30% of the State's population, creating only one majority-minority district out of seven (14%) would leave the minority population very substantially underrepresented when compared to that group's share of the population. That leaves only the question whether the minority population is sufficiently large and compact to constitute a majority in a district. The district court found that no compact district could be drawn because the minority population outside New Orleans is too dispersed. J.S. App. 8a & n.4. The Gingles compactness requirement, however, does not demand compactness in any absolute sense. Rather, the question in circumstances like those presented here is whether the proposed majority- minority district is reasonably compact in light of a State's traditional districting practices. Jeffers v. Clinton, 730 F. Supp. at 207; Cane v. Worcester County, ___________________(footnotes) 1 In some circumstances, even when a State's existing plan provides proportional representation, the State may need to create an additional majority-minority district in order to comply with section 2. See DeGrandy, 114 S. Ct. at 7658-7676. ---------------------------------------- Page Break ---------------------------------------- 30 35 F.3d at 926-927 n.6. As already noted, District 4 (54% black) is similar in compactness to previous districts drawn by the State in the same geographic area. Gingles requires no more. 2. Moreover, the question here is not whether plaintiffs bringing a Section 2 suit would necessarily have been successful in satisfying the compactness requirement, but whether the State could have legitimately believed that they would be. Given the similarity in compactness between District 4 and old District 8, the State acted reasonably in seeking to comply with Section 2. b. The State also had a sound basis for concluding that the creation of a second majority-minority district was necessary to comply with Section 5. Section 5 forbids a jurisdiction from implementing a redistricting plan unless it can show that the plan has neither a discriminatory purpose nor a discriminatory effect. 42 U.S.C. 1973c. Thus, even when a redistricting plan is not retrogressive, a State cannot obtain preclearance unless it makes the further showing that the plan is free of discriminatory purpose. City of Pleasant Grove v. United States, 479 U.S. 462, 469, 471 & n.11 (1987); City of Port Arthur v. United States, 459 U.S. 159, 168 (1982); City of Richmond v. United States, 422 U.S. 358,378-379 (1975). In this case, the State reasonably concluded that it would be unable to satisfy its burden under Section 5 to show that a redistricting plan with only one majority- minority district was free of discriminatory purpose. ___________________(footnotes) 2 According to the district court, the State's expert "confirmed" that the minority population outside New Orleans was too dispersed to satisfy the compactness requirement. J.S. App. 8a n.4. In fact, however, the State's expert testified that District 4 was reasonably compact. J.A. 127. ---------------------------------------- Page Break ---------------------------------------- 31 The State could not ignore the fact that a three-judge court had found that the State's 1982 redistricting plan diluted black voting strength. Major v. Treen, supra. The State also knew that Louisiana voting remained racially polarized to an extraordinary degree. SX 15. And the State had previously drawn majority-white districts similar in shape and location to District 4. Those facts reasonably led the State to conclude that it would have difficulty showing that a failure to draw a second majority-minority district similar to District 4 was based on legitimate redistricting considerations rather than an intent to dilute the black vote. The State could also take into account the fact that the Attorney General had already objected to its re- districting plan for the statewide Board of Elementary and Secondary Education (B.E.S.E.), a plan that had included only one majority-minority district out of eight. The Attorney General's objection letter stated that the State's B.E.S.E. plan had fragmented minority con- centrations among three majority white districts, that this fragmentation had not been justified in terms of neutral districting principles, and that the application of such neutral principles would have resulted in two majority-minority districts. See DX 16 (1993 Hearing). The district court apparently believed that the State could not rely on the existence of the Attorney General's objection to its B.E.S.E. plan, but was required to show that the objection was a legally valid one. J.S. App. 7a & n.3. That approach was incorrect. Congress has delegated to the Attorney General primary responsi- bility for evaluating whether state redistricting schemes in jurisdictions covered by Section 5 violate the voting rights of racial minorities. A State always has the option to seek preclearance in the District Court for the District of Columbia if the Attorney General ---------------------------------------- Page Break ---------------------------------------- 32 determines that the State's plan is discriminatory. But Congress clearly contemplated that the States would not always have to take that step before revising their plans to accommodate the Attorney General's objection. The whole point of permitting the States to seek administrative preclearance was to provide an expeditious alternative to district court preclearance actions. McCain v. Lybrand, 465 U.S. 236, 246-247 (1984). That benefit would be lost if the States could not generally rely on the Attorney General's "adminis- trative finding" of discrimination. Regents of the Univ. of Calif. v. Bakke, 438 U.S. 265, 305 (1978) (opinion of Powell, J.) (Section 5 objection by the Attorney General is sufficient to give a state a compelling interest in taking race-based remedial action). Moreover, Congress determined that substantive Section 5 determinations would be made by either the Attorney General or the District Court for the District of Columbia. McCain v. Lybrand, 465 U.S. at 246-247. Congress assigned local federal courts a limited procedural role in the Section 5 enforcement scheme-to enjoin voting changes that have not been precleared. Allen v. State Board of Elections, 393 U.S. 544, 558-560 (1969). As the Court explained in Perkins v. Mathews, 400 U.S. 379, 385 (1971), "What is foreclosed to such district court is what Congress expressly reserved for consideration by the District Court for the District of Columbia or the Attorney General-the determination whether a covered change does or does not have the purpose or effect `of denying or abridging the right to vote on account of race or color.'" The effect of the district court's approach in this case is to transfer substantive Section 5 review from the Attorney General and the District Court for the District of Columbia to ---------------------------------------- Page Break ---------------------------------------- 33 local federal district courts in contravention of Congress's intent. Because a State has its own responsibilities under the Equal Protection Clause, it may not defer entirely to the Attorney General's Section 5 analysis. Given the Attorney General's important role in the Section 5 statutory scheme, however, a State should be able to act on the assumption that the Attorney General has correctly objected to its plan, unless the objection is clearly insupportable. Shaw v. Hunt, 861 F. Supp. at 443 & n.34; see UJO, 430 U.S. at 175 (Brennan, J., concurring in part) (the Attorney General's judgment that a particular districting scheme complies with the remedial objectives of the Voting Rights Act is entitled to "considerable deference"); cf. Presley v. Etowah County Comm'n, 112 S. Ct. 820, 831 (1992) (a court must defer to the Attorney General's construction of Section 5, unless Congress has clearly expressed a contrary intent or the Attorney General's construction is unreasonable). In this case, appellees have identified no such short- coming in the Attorney General's B.E.S.E. objection. That objection, together with the evidence discussed above, reasonably led the State to conclude that its failure to create a second majority-minority district would be found to violate Section 5. 2. Independent of its obligations under the Voting Rights Act, the State also had a compelling interest in ameliorating the effect that racially polarized voting has on the opportunity for minority voters in Louisiana to elect the candidates of their choice. In UJO, Justices White, Rehnquist and Stevens stated that a State is not "powerless to minimize the consequences of racial discrimination by voters when it is regularly practiced at the polls." 430 U.S. at 167. Where such discrimina- ---------------------------------------- Page Break ---------------------------------------- 34 tion exists, a State may seek to achieve a "fair allocation of political power between white and nonwhite voters." Ibid. No other Justices in UJO addressed that issue. The analysis of the three Justices, however, is fully consistent with this Court's decision in Croson, which recognized that a State has a compelling interest in remedying identified discrimination within its jurisdiction, even when it has no federal statutory duty to do so. 488 U.S. at 491-493, 509. The approach of the three Justices in UJO should therefore be followed here. Applying that analysis leads to the conclusion that polarized voting in Louisiana gives the State a compelling interest in creating a second majority- minority district. As we have noted, racially polarized voting in Louisiana is persistent and extreme. Based on the evidence before it, the State had every reason to believe that unless it created an additional district in which blacks constituted a majority, bloc voting by whites would preclude minority voters from having any realistic chance to elect a second representative of their choice and would leave them substantially under- represented compared to their percentage of the population. In those circumstances, the State had a compelling interest in creating a second majority- minority district in order to achieve a fair allocation of political power between white and nonwhite voters. B. The State's Plan Is Narrowly Tailored To Further Its Compelling Interests The district court's opinion does not address the issue of narrow tailoring. District 4, however, easily satisfies narrow tailoring standards. Relying on United States v. Paradise, 480 U.S. 149, 171 (1987) (plurality opinion), courts have focused on three narrow tailoring requirements in the redistricting ---------------------------------------- Page Break ---------------------------------------- 35 context. First, a State may not create more majority- minority districts than either the Voting Rights Act or the State's interest in fairly allocating political power justify. Shaw v. Hunt, 861 F. Supp. at 446; J.S. App. 82a. Second, a State may not needlessly pack substantially more minority voters into a district than are reasonably necessary to give the minority group an opportunity to elect the candidate of its choice. Ibid. And third, a State may not create an extremely irregular district when a far more regular district would be equally effective in serving the State's compelling interest and the creation of the more compact district would not compromise the State's other legitimate redistricting interests. 3. J, S. App. 84a-87a, The State's plan in this case does not run afoul of any of those requirements. The plan creates the number of majority-minority districts justified by the State's interests in complying with the Voting Rights Act and fairly allocating political power. Nor does the plan needlessly pack minority voters into District 4. Blacks constitute 55% of the registered voters in the district, very close to the minimum percentage necessary to provide minority voters with an opportunity to elect a candidate of their choice. J.S. App. 83a-84a. And for the reasons already discussed, the location and shape of District 4 is fully consistent with the State's traditional districting practices. 4. ___________________(footnotes) 3 As explained in our jurisdictional statement (at 11-14) in United States v. Vera, No. 94-988, the narrow tailoring principle does not require a State to draw the most compact district possible. A State may legitimately give priority to redistricting interests other than compactness, such as protecting incumbents. 4 The State contends that the district court erred in imposing a permanent redistricting plan, without first giving the State a chance to propose a remedial plan. We agree. The court justified ---------------------------------------- Page Break ---------------------------------------- 36 CONCLUSION The district court's judgment should be reversed. Respectfully submitted. DREW S. DAYS, III Solicitor General DEVAL L. PATRICK Assistant Attorney General PAUL BENDER Deputy Solicitor General IRVING L. GORNSTEIN Assistant to the Solicitor General JESSICA DUNSAY SILVER MARK L. GROSS Attorneys JANUARY 1995 ___________________(footnotes) its decision to adopt its own plan on the ground that prompt action was needed and the State had already failed to adopt a consti- tutionally acceptable plan twice. J.S. App. 10a. Those factors might well have justified the court's decision to impose an interim plan for the upcoming elections. There was no justification, however, for the court's decision to impose a permanent plan without first affording the State a chance to propose its own plan. Wise v. Lipscomb, 437 U.S. 535, 539 (1978). ---------------------------------------- Page Break ---------------------------------------- No. 94-558 In the Supreme Court of the United States UNITED STATES OF AMERICA, APPELLANT v. RAY HAYS, ET AL. STATE OF LOUISIANA, ET AL., APPELLANTS v. RAY HAYS, ET AL. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA REPLY BRIEF FOR THE UNITED STATES DREW S. DAYS, III Solicitor General Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- TABLE OF AUTHORITIES Cases: Page City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) . . . . 8 DeWitt v. Wilson, 856 F. Supp. 1409 (E.D. Cal. 1994), juris. statement filed, No. 94-275 (Aug. 8, 1994) . . . . 3, 5 Gomillion v. Lightfoot, 364 U.S. 339 (1960) . . . . 2 Johnson v. Miller, 864 F. Supp. 1354 (S.D. Ga. 1994), prob. juris. noted, 115 S. Ct. 713 (1995) (Nos. 94-631, 94-797 & 94-929) . . . . 3, 4 Rogers v. Lodge, 458 U.S. 613 (1982) . . . . 11 Shaw v. Hunt, 861 F. Supp. 408 (E.D.N.C. 1994), juris. statements filed, Nos. 94-923 & 94-924 (Nov. 21, 1994) . . . . 3, 4 Shaw v. Reno, 113 S. Ct. 2816 (1993) . . . . 2, 6 Vera v. Richards, 861 F. Supp. 1304 (S.D. Tex, 1994), juris. statements filed, Nos. 94-805 (Oct. 31, 1994), 94-806 (Nov. 2, 1994) & 94-988 (Dec. 1, 1994) . . . . 3, 4 Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977) . . . . 2 Wilson v. Eu, 823 P.2d 545 (Cal. 1992) . . . . 5 Wright v. Rockefeller, 376 U.S. 52 (1964) . . . . 2 Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986) . . . . 8, 9 Constitution and statutes: Page U.S. Const. Amend. XIV (Equal Protection Clause) . . . . 2 Voting Rights Act of 1965, 42 U.S.C. 1973 et seq.: 2, 42 U.S.C. 1973 . . . . 8, 9 5, 42 U.S.C. 1973c . . . . 8, 10, 11 (I) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1994 No. 94-558 UNITED STATES OF AMERICA, APPELLANT v. RAY HAYS, ET AL. No. 94-627 STATE OF LOUISIANA, ET AL.) APPELLANTS v. RAY HAYS, ET AL. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA REPLY BRIEF FOR THE UNITED STATES 1. We argue in our opening brief (Br. 14-20) that the district court erred in holding that "[r]ace- conscious redistricting, while not always unconsti- tutional, is always subject to strict scrutiny." J.S. App. 5a. While agreeing that race-conscious re- districting is not always subject to strict scrutiny, Br. 23-24, appellees nevertheless advocate a very (1) ---------------------------------------- Page Break ---------------------------------------- 2 similar standard. Relying on Village of Arlington Heights v. Metropolitan Housing. Dev. Corp., 429 U.S. 252, 266 (1977), appellees contend (Br. 19-20) that strict scrutiny is appropriate any time that race is "a motivating factor" in determining a district's boundaries. As we have discussed in our opening brief (Br. 15-20), redistricting presents a unique setting for applying the Equal Protection Clause. In redistrict- ing, States must reconcile the competing claims to political influence of different politically cohesive groups. Members of a racial minority often form such a competing group. If a State's intent to draw district lines to accommodate the interests of a politically cohesive racial minority always triggered strict scrutiny-while accommodating the interests of other politically cohesive groups did not-it would put racial minority groups at a severe competitive disadvantage in the redistricting process. Far from furthering equal protection goals, application of strict scrutiny whenever redistricting accommodates the political interests of racial minorities would seriously undermine those goals. * ___________________(footnotes) * The other cases relied upon by appellees do not support their view that strict scrutiny applies to any district created With race as a motivating factor. In Gomillion v. Light foot, 364 U.S. 339 (1960), the municipal lines were bizarre and had the effect of depriving blacks of the right to vote in municipal elections. The claim at issue in Wright v. Rockefeller, 376 U.S. 52, 53-54 (1964) was that the district lines were irrational and had the effect of reducing the political power of a racial minority group. Appellees' assertion that, following this Court's decision in Shaw v. Reno, 113 S. Ct. 2816 (1993), all of the district courts have held that strict scrutiny applies to any district created with race as a motivating factor is also incorrect. Besides the district court in this case, only one other ---------------------------------------- Page Break ---------------------------------------- 3 Application of appellees' proposed approach would also cause a dramatic increase in the number of redistricting plans subject to strict scrutiny. Guided by political considerations, a sense of fairness, or a desire to comply with the Voting Rights Act, jurisdictions at all levels of government often create majority-minority districts. Appellees' proposed approach would subject all those districts to strict scrutiny. Appellees attempt to minimize the practical consequences of their position by claiming that in this case, the North Carolina case, and the Georgia case, strict scrutiny "was applied to only one district ," and that "[e]ven in Texas, only three of that State's thirty districts were subjected to strict scrutiny," Br, 25 & n.4. That claim is misleading. In this case, the district court applied strict scrutiny to only one Louisiana district. But that is only because `the district court concluded that appellees did not challenge the majority-minority district in New Orleans. J.S. App. 41a. Had that ___________________(footnotes) district court has adopted that standard. See Shaw v. Hunt, 861 F. Supp. 408 (E.D.N.C. 1994), juris. statements filed, Nos. 94-923 & 94-924 {Nov. 21, 1994). The other three district courts have rejected that standard. See Johnson v. Miller, 864 F. Supp. 1354, 1371-1374 (S.D. Ga. 1994) (strict scrutiny applies when race is the overriding factor in the creation of a district), prob. juris. noted, 115 S. Ct. 713 (1995) (Nos. 94-631, 94-797 & 94-929); Vera v. Richards, 861 F. Supp. 1304, 1344-1345 (S.D. Tex. 1994) (strict scrutiny applies only to districts that reflect an extraordinary departure from the State's traditional redistricting practices), juris. statements filed, Nos. 94-805 (Oct. 31, 1994), 94-806 (Nov. 2, 1994) & 94-988 (Dec. 1, 1994); DeWitt v. Wilson, 856 F. Supp. 1409, 1411-1413 (E.D. Cal. 1994) (strict scrutiny applies only to dramatically irregular districts), juris. statement filed, No. 94-275 (Aug. 8, 1994). ---------------------------------------- Page Break ---------------------------------------- 4 district been challenged, it would have been subject to strict scrutiny under appellees' motivating factor approach. In North Carolina, both majority-minority districts were subjected to strict scrutiny by the district court, not just one. Shaw v. Hunt, 861 F. Supp. 408, 473-474 (E.D.N.C. 1994), juris. statements filed, Nos. 94-923 & 94-924 (Nov. 21, 1994). In Georgia, only one of the three majority-minority districts was subjected to strict scrutiny, but that is because the plaintiffs in that litigation challenged only one of the three districts. Johnson v. Miller, 864 F. Supp. 1354, 1359 (S.D. Ga. 1994), prob. juris. noted, 115 S. Ct. 713 (1995) (Nos. 94-631, 94-797 & 94-929). Had plaintiffs challenged all three districts, and had the court applied appellees' proposed test, all three majority- minority districts would have been subjected to strict scrutiny. Id. at 1366-1377. In Texas, it is true that only three of the State's congressional districts were subjected to strict scrutiny, Vera v. Richards, 861 F. Supp. 1304, 1337- 1344 (S.D. Tex. 1994), juris. statements filed, Nos. 94-805 (Oct. 31, 1,994), 94-806 (Nov. 2, 1994) & 94-988 (Dec. 1, 1994). The court expressly found, however, that race was a motivating factor in 16 additional districts challenged by the plaintiffs in that case. Id. at 1325-1328. The court failed to subject those districts to strict scrutiny only because it limited strict scrutiny to districts that, in its view, reflected an extraordinary departure from the State's traditional redistricting practices. Id. at 1344-1345. Appellees also do not discuss the California case. There, the State's redistricting plans for Congress, state Assembly, and state Senate "attempted to reasonably accommodate the interests of every `functionally, geographically compact' minority group ---------------------------------------- Page Break ---------------------------------------- 5 of sufficient voting strength to constitute a majority a single-member district." DeWitt v. Wilson, 856 Supp. 1409, 1411 (E.D. Cal. 1994), juris. statement filed, No. 94-275 (Aug. 8, 1994). Had the court applied appellees' proposed standard in that case, it would have subjected virtually all of the 54 majority- minority legislative districts (14 congressional, 27 state Assembly, 13 state Senate) to strict scrutiny. See Wilson v. Eu, 823 P.2d 545, 580-596 (Cal. 1992). Because the court concluded that strict scrutiny does not apply when race is considered in the context of traditional redistricting principles, however, no California districts were subjected to strict scrutiny. DeWitt, 856 F. Supp. at 1415. Faced with the difficulty of advocating a pure motivating factor analysis in the redistricting context, appellees ultimately retreat from that position to some extent. According to appellees (Br. 24), because "[m]embers of one race can * * * forma cohesive and compact community,] * * * race may be a legitimate consideration in helping to determine the boundaries of a particular community." Thus, race can be a factor in determining district boundaries as long as it does not become "the touchstone for an electoral district." Ibid. At another point, appellees propose a slightly different formulation (Br. 34): Strict scrutiny is triggered when "the fundamental factor driving [a district] was race." As we have explained in our brief in United States v. Johnson, Nos. 94-929, 94-631 & 94-797, in addition to being too difficult to administer, a fundamental factor test is subject to the same objections as a motivating factor test: It would put politically cohesive racial minority groups at a severe disadvantage in the redistricting process, and it ---------------------------------------- Page Break ---------------------------------------- 6 would also subject most majority-minority districts to strict scrutiny. For those reasons, both of appellees' proposed standards are inappropriate. Instead, as we have argued, when a State intentionally creates a district in which members of a politically cohesive racial minority constitute a majority, that district is not subject to strict scrutiny unless it is "so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races for purposes of voting." Shaw, 113 S. Ct. at 2824. In this case, there is overwhelming evidence that blacks in District 4 are politically cohesive. See U.S. Br. 29. District 4 is also not highly irregular or bizarre. U.S. Br. 22-26. Accordingly, District 4 should not have been subjected to strict scrutiny. 2. We argue in our opening brief (Br. 21) that the question whether a district is bizarre must be decided in the context of the practices of the State in which the district is created. The relevant inquiry is whether the district is bizarre when compared to other districts created through the State's traditional districting practices. Because District 4 resembles and is actually modelled on various ver- sions of old District 8 (U.S. Br. 22), it is not bizarre within the meaning of Shaw. a. Appellees do not appear to challenge our contention that the bizarreness inquiry is a comparative one, They contend instead that District 4 should be subjected to strict scrutiny because it differs from old District 8 in numerous respects (Br. 31-32). As the relevant maps demonstrate, however, the resemblance between District 4 and old District 8 is unmistakable. Both districts are located in the same general area of the State and both run in the ---------------------------------------- Page Break ---------------------------------------- 7 same general direction along the Red and Mississippi Rivers. When compared to old District 8, District 4 is not at all bizarre. b. As we explain in our opening brief, rather than using old District 8 as the benchmark for determining whether District 4 is bizarre in the context of Louisiana districting practices, the district court undertook an inquiry that was apparently based on its own views of proper redistricting criteria. The court found that District 4 is bizarre because, in the court's view, it is not sufficiently compact, splits too many parishes and large cities, and divides various political communities. See U.S. Br. 25-26. Appellees do not defend most of the district court's bizarreness analysis. Instead, they seek to justify the district court's finding based entirely on the evidence that District 4 splits parishes and cities, See Appellees' Br. 29-30. But as we have noted (Br. 25), there is nothing remarkable about District 4's splitting of parishes and cities. Previous Louisiana plans have split as many as seven parishes and two major cities, ibid.; State's Br, 27-28 & n.33, The fact that District 4 splits 12 parishes and two major cities does not constitute a sufficient departure from prior practices to justify a finding that District 4 is bizarre. Appellees insist (Br. 29-30) that the difference is that this time parishes and cities were divided in order to help create a majority-minority district. As we have discussed, however, there is nothing suspect about an intent to create a district in which a politically cohesive minority constitutes a majority as long as the shape of the district does not depart dramatically from the State's districting practices. ---------------------------------------- Page Break ---------------------------------------- 8 Because the minority group members in District 4 are politically cohesive and the district is not bizarre under that standard, District 4 should not have been subjected to strict scrutiny. 3. We argue in our opening brief that even assuming strict scrutiny is applicable, the State's plan satisfies that standard because it is narrowly tailored to comply with Sections 2 and 5 of the Voting Rights Act. In deciding this question, the district court inquired into whether the failure to draw a second majority-minority district would actually violate Section 2 or 5. The relevant inquiry, however, " is whether the State had a firm basis for believing that District 4 may have been necessary to comply with those statutory prohibitions. Application of that standard leads to the conclusion that the State established a compelling interest sufficient to justify District 4. See U.S. Br. 27-33. Appellees argue (Br. 35-39) that the district court's actual violation standard is the correct one for judging the constitutionality of the State's plan. But as we have noted, this Court has already rejected the view that a State seeking to comply with federal nondiscrimination requirements must prove that its actions are actually required by federal law. U.S. Br. 27-28. Instead, this Court has made clear that the State may engage in race-conscious action when it has a firm basis for believing that such action may be required by federal law. See City of Richmond v. J.A. Croson Co., 488 U.S. 469,500 (1989), and Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 277 (1986) (opinion of Powell, J.). The firm basis in evidence standard (rather than a standard requiring proof that an actual violation would have occurred) is appro- priate in order to encourage voluntary compliance ---------------------------------------- Page Break ---------------------------------------- 9 with federal nondiscrimination law. Wygant, 476 U.S. at 290-291 (O'Connor, J., concurring in part and concurring in the judgment). Appellees make no effort to reconcile their standard with Croson and Wygant. Appellees argue (Br. 35-39) that the standard we propose immunizes constitutional violations so long as they are committed with a "pure heart." Under the standard we propose, however, a State's sub- jective belief that the Voting Rights Act may require a majority-minority district is not alone sufficient to justify the creation of such a district: However pure, the State's belief must also be objectively reasonable in light of the circumstances. 4. Appellees argue (Br. 39-49) that even under the standard we propose, a second majority-minority district is not justified by Section 2. As we have noted, however, the evidence shows that (1) blacks who live along the Red and Mississippi Rivers are politically cohesive, (2) whites in that area vote as a bloc against the candidates preferred by blacks, (3) the black community living along the Red and Mississippi Rivers is sufficiently large and compact to constitute a majority in a district, and (4) absent the creation of such a district, blacks would be very substantially underrepresented in the Louisiana congressional delegation when compared to their percentage in the State's population. See U.S. Br. 29- 30. That evidence is sufficient to show that the State had a firm objective basis for its conclusion that a second majority-minority district was needed to comply with Section 2. Appellees contend (Br. 46-48) that the district court's finding that the compactness requirement was not satisfied precludes any reliance on Section 2. ---------------------------------------- Page Break ---------------------------------------- 10 The district court's finding, however, was based on a subjective "eye of the beholder" test of compactness. See Appellees' Br. 47. That is not the right legal standard for judging compactness. As we have explained (Br. 29-30), the relevant inquiry is whether District 4 is reasonably compact in light of the State's traditional redistricting practices. Because District 4 is reasonably compact when compared to old District 8, it satisfies the compactness require- ment. Appellees point to no evidence that would justify a different conclusion. Appellees also contend (Br. 48-49) that there was insufficient evidence of racially polarized voting in Louisiana. But as we have shown, the evidence of polarized voting was overwhelming. See U.S. Br. 29. Appellees' assert (Br. 48) that the district court rejected the evidence presented by the United States' expert on that issue. In fact, however, the district court interrupted the examination of that expert to state that it was already convinced by his report that racial polarization existed and that further examination on that issue was therefore unnecessary. J.A. 67. 5. Appellees also argue (Br. 41) that the evidence was insufficient to justify the State's belief that a second majority-minority district was necessary to comply with Section 5, The evidence established, however, that (1) the State had impermissibly diluted minority voting strength in its 1980s congressional redistricting plan, (2) the Attorney General had objected to the State's recent Board of Elementary and Secondary Education plan on the ground that the State's failure to create a second majority-minority district reflected purposeful discrimination, and (3) the State had created majority-white districts in ---------------------------------------- Page Break ---------------------------------------- 11 prior congressional redistricting plans that were similar in compactness to District 4. See U.S. Br. 31; State's Br. 36-37. That evidence was sufficient to provide the State with a firm basis for believing that it would have difficulty satisfying its burden under Section 5 to show that its failure to create a second majority-minority district was free of discriminatory purpose. Appellees' only response (Br. 41) is that none of the pieces of evidence noted above is sufficient by itself to prove that a plan with only one majority-minority district would have reflected purposeful discrimi- nation. If the State had attempted to obtain preclearance for a plan with only one majority- minority district, however, each item of evidence noted above would not have been viewed in isolation. The question would have been whether the totality of the relevant facts raised an inference of purposeful discrimination. Rogers v. Lodge, 458 U.S. 613, 618 (1982). The State would, moreover, have had to shoulder the burden of proof on that issue. In those circumstances, the State's decision to comply voluntarily with Section 5 by drawing a second majority-minority district was entirely reasonable and supported by a strong basis in evidence. 6. Finally, we have argued (Br. 33-34) that the State could constitutionally draw a second majority- minority district in order to further its compelling interest in ameliorating the consequences that racially polarized voting continue to have on the opportunity for minority voters to elect candidates of their choice. Appellees contend (Br. 49) that because the district court found that the compactness requirement was not satisfied, there was no need for the court to address the State's asserted interest in ---------------------------------------- Page Break ---------------------------------------- 12 redressing the effects of racially polarized voting. As we have already discussed, however, the district court erred in concluding that the compactness requirement was not satisfied. In addition, the assumption underlying appellees' position is that the only compelling interest that a State may assert is compliance with federal law. That assumption is incorrect. As we have explained (Br. 33-34), independent of its responsibilities under the Voting Rights Act, a State has a compelling interest in remedying the effects of racial discrimi- nation within its borders. That interest fully justifies the State's decision to create a second majority-minority district. ***** For the reasons stated in our opening brief as well as those stated herein, the district court's judgment should be reversed. Respectfully submitted. DREW S. DAYS, III Solicitor General APRIL 1995 ---------------------------------------- Page Break ---------------------------------------- No. 94-558 In the Supreme Court of the United States OCTOBER TERM, 1994 UNITED STATES OF AMERICA, APPELLANT v. RAY HAYS, ET AL. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA JURISDICTIONAL STATEMENT DREW S. DAYS, III Solicitor General DEVAL L. PATRICK Assistant Attorney General PAUL BENDER Deputy Solicitor General IRVING L. GORNSTEIN Assistant to the Solicitor General JESSICA DUNSAY SILVER MARK L. GROSS Attorneys Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED 1. Whether the intentional creation of a majority- minority district is always subject to strict scrutiny. 2. Whether the boundaries of District 4 in Louisi- ana's redistricting plan are so bizarre on their face that they can be understood only as an effort to segre- gate voters into separate districts because of their race. 3. Whether the State's creation of District 4 is narrowly tailored to further a compelling interest. (1) ---------------------------------------- Page Break ---------------------------------------- II PARTIES TO THE PROCEEDING Plaintiffs are Ray Hays, Edward Adams, Susan Shaw Singleton and Gary Stokely. Defendants are Edwin Edwards, Governor of the State of Louisiana; Samuel B. Nunez, President of the Louisiana State Senate; John A. Alario, Speaker of the Louisiana House of Representatives; W. Fox McKeithen, Secretary of State of Louisiana; and Jerry Fowler, the Commissioner of Elections for the State of Louisiana, The United States intervened as a defendant. ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinions below . . . . 1 Jurisdiction . . . . 1 Constitutional and statutory provisions involved . . . . 2 Statement . . . . 2 The questions presented are substantial . . . . 10 Conclusion . . . . 21 Appendix A . . . . 1a Appendix B . . . . 24a Appendix C . . . . 39a Appendix D . . . . 110a Appendix E . . . . 115a Appendix F . . . . 117a TABLE OF AUTHORITIES Cases: Beer v. United States, 425 U.S. 130 (1976) . . . . 11 Cane V. Worcester County, Maryland, No. 94-1579 (4th Cir. Sept. 16, 1994) . . . . 13 City of Richmond V. J.A. Croson Co., 488 U.S. 469 (1989) . . . . 8, 18, 20 City of Richmond V. United States, 422 U.S. 358 (1975) . . . . 19 DeWitt V. Wilson, No. CIV-S-93-575 (E.D. Cal. June 27, 1994) . . . . 12 Jeffers v. Clinton, 730 F. Supp. 196 (E.D. Ark. 1989), aff'd mem., 498 U.S. 1019 (1991) . . . . 13, 19 Johnson v. Miller, No. 194-008 (S.D. Ga. Sept. 12, 1994) . . . . 12, 15 Major V. Treen, 574 F. Supp. 325 (E.D. La. 1983) . . . . 2, 20 Regents of the Univ. of Calif. V. Bakke, 438 U.S. 265 (1978) . . . . 19 (III) ---------------------------------------- Page Break ---------------------------------------- IV Cases-Continued: Page Shaw v. Hunt, No. 92-202-CIV-5-BR (E.D.N.C. Aug. 1, 1994) . . . . 12, 18, 19 Shaw V. Reno, 113 S. Ct. 2816 (1993) . . . . 2, 11, 13, 15, 17 Thornburg v. Gingles, 478 U.S. 30 (1986) . . . . 18 United Jewish Organizations of Williamsburg, Inc. V. Carey, 430 U.S. 144 (1977) . . . . 8, 10, 20 Vera V. Richards, C.A. No. H-94-0277 (S.D. Tex. Aug. 17, 1994) . . . . 12 Wygant V. Jackson Bd. of Educ., 476 U.S. 267 (1986) . . . . 18 Constitution, statutes, and regulation: U.S. Const. Amend. XIV (Equal Protection Clause) . . . . 2, 3 Voting Rights Act of 1965, 42 U.S.C. 1973 et seq.: 2,42 U.S.C. 1973 . . . . 2, 7, 9, 11, 17, 18 5,42 U.S.C. 1973c . . . . 2, 3, 5, 8, 11, 17, 19 28 C.F.R. 51.3 . . . . 3 ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1994 No. UNITED STATES OF AMERICA, APPELLANT v. RAY HAYS, ET AL. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA JURISDICTIONAL STATEMENT OPINIONS BELOW The second opinion of the three-judge district court (App., infra, la-23a) is not yet reported. The first opinion of the three-judge district court (App., infra, 39a-109a) is reported at 839 F. Supp. 1188, vacated, 114 S. Ct. 2731. JURISDICTION The judgment of the three-judge court was entered on July 26, 1994. App., infra, 24a-26a. A notice of appeal was filed on July 26, 1994. App., infra, 115a- 116a. The jurisdiction of this Court is invoked under 28 U.S.C. 1253. (1) ---------------------------------------- Page Break ---------------------------------------- 2 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Equal Protection Clause of the Fourteenth Amendment provides that "[N] o State shall * * * deny to any person within its jurisdiction the equal protection of the laws." The relevant statutory pro- visions are Sections 2 and 5 of the Voting Rights Act, 42 U.S.C. 1973, 1973c, which are reproduced in the Appendix, infra, 117a-119a. STATEMENT This case concerns a challenge to a congressional redistricting plan adopted by the State of Louisiana which contains two majority-minority districts. A three-judge court invalidated the plan after finding that one of those districts violated the standards for race-conscious redistricting established in Shaw V. Reno, 113 S. Ct. 2816 (1993). The United States, a defendant-intervenor below, has appealed from that judgment. The State of Louisiana has also appealed. 1. The population of the State of Louisiana is more than 30 % black. Blacks comprise 28 of Louisiana's voting age population and nearly 28% of its registered voters. From Reconstruction until the 1980s, black voters had not been in the majority in any of that State's congressional districts. As a result of litigation following the 1980 census, a three- judge court ordered redistricting which resulted in blacks constituting a majority in one of the State's eight congressional districts. Major V. Treen, 574 F. Supp. 325 (E.D. La. 1983) (three-judge court). In 1991, Louisiana redistricted the eight districts of the Board of Elementary and Secondary Education (B.E.S.E.). Traditionally, the boundaries of the eight B.E.S.E. districts had been similar to the bound- ---------------------------------------- Page Break ---------------------------------------- 3 aries of the State's congressional lines. The new B.E.S.E. plan created only one majority-minority dis- trict. Louisiana, a State covered by Section 5 of the Voting Rights Act of 1965, 42 U.S.C. 1973c, submitted the plan to the Justice Department for preclearance. Acting on behalf of the Attorney General (28 C.F.R. 51.3 ), the Assistant Attorney General for the Civil Rights Division interposed an objection under Sec- tion 5, stating that the State's minority population was large enough and compact enough to create two majority-minority districts, and that the State had not carried its burden of showing that its decision to create only one such district did not have a discrimi- natory purpose. DX 16-17. In response to that ob- jection, the State adopted a new plan that created two majority-minority districts, which the Assistant Attorney General then precleared. As a result of the 1990 Census, Louisiana lost one of its congressional seats. App., infra, 55a. In May, 1992, the State legislature enacted a districting plan for the seven remaining seats. Id. at 39a. That plan included two majority-black districts: One was cen- tered in the City of New Orleans and was similar to the majority-black district in the plan used in the 1980s; the other (District 4) was a Z-shaped district that began in the northwest corner of the State, went east along the State's northern border, ran south down the Mississippi River to the center of the State, and ended with three western extensions. Id. at 4 la, 62a-63a. The State's plan was precleared by the Department of Justice. Appellees, four voters living in Lincoln Parish, Louisiana, challenged that plan on the ground that it segregated voters into districts on the basis of race, in violation of the Equal Protection Clause. App., ---------------------------------------- Page Break ---------------------------------------- 4 infra 42a. In December, 1993, a three-judge court ruled in favor of appellees. Id. at 39a-109a. The court held that "[a] legislature creates a racially- gerrymandered districting plan when it intentionally draws one or more districts along racial lines or oth- erwise intentionally segregates citizens into voting districts based on their race." Id. at 48a. In the court's view, that intent may be proven "indirectly or inferentially * * * when districts are so bizarrely shaped that they presumptively bespeak an imper- missible purpose" or "by direct evidence that a legis- lature enacted a districting plan with the specific intent of segregating citizens into voting districts based on their race." Id. at 50a. The court found that appellees had proven racial gerrymandering in both ways. Id. at 51a. Applying strict scrutiny, the court assumed that the State had one or more compelling interests in creating a second majority-black district. App., infra, 79a. The court went on to hold, however, that the State's plan was not narrowly tailored to further those interests for two reasons. First, the court found that the plan packed more black voters into District 4 than was "reasonably necessary to give blacks a realistic chance to determine the outcome of elections there." Id. at 83a. The court noted that while blacks clearly have a realistic chance to elect candidates of their choice in a district that is 5570 black in voting age population, District 4 was 63% black in Vot- ing age population. Id. at 83a-84a. Second, the court found that "a second black majority district could have been drawn that would have done substantially less violence to traditional redistricting principles." Id. at 85a. The State appealed. While that appeal ing, the State passed a new redistricting plan (Act ---------------------------------------- Page Break ---------------------------------------- 5 1), with a newly configured majority-minority Dis- trict 4. That plan was precleared by the Department of Justice under Section 5. On June 27, 1994, this Court vacated the district court's judgment and remanded the case for further proceedings in light of the new plan. App., infra, 2a. 2. Appellees then filed an amended complaint, challenging new District 4 on equal protection grounds. App., infra, 2a. The United States inter- vened to defend the plan. The court then held a two- day trial. Ibid. The evidence at trial showed that the legislative aide who drafted the new plan, Glenn Koepp, was given instructions by two state senators to attempt to devise a plan that would accommodate the con- cerns expressed in the district court's 1993 opinion, while still creating a second majority-black district. Koepp Test., 7/21/94 A.M. Tr. 5-8. To accomplish these purposes, the senators suggested that Koepp model the district on old District 8, a district that the State had used in plans in the 1970s. Id. at 11. Old District 8 generally began in the western part of the State, included areas along the Red and Mis- sissippi Rivers as it moved in a southeast direc- tion, and ended beyond Baton Rouge. App., infra, 111a-114a. One version of old District 8 in use from 1971-1972 ran from the western border of the State all the way east to Lake Ponchartrain. Id. at 112a. During redistricting hearings, the state Senate was shown maps of various versions of old District 8. State's Exh. 1 (Senate Comm. Tr. 236-253, 270). Blacks are geographically concentrated in much of the area covered by the various configurations of old District 8, particularly along the Red and Mis- sissippi Rivers. Koepp Test., 7/21/94 A.M. Tr. 13- ---------------------------------------- Page Break ---------------------------------------- 6 14; Hillard Test., 7/21/94 P.M. Tr. 67. The area along the Reel River Valley is also an important economic region and the people in that region share common interests. Hillard Test., 7/21/94 P.M. Tr. 47-48. Using old District 8 as a model, Koepp devised new District 4. The new district begins in the north- west part of the State near Shreveport, runs diagon- ally southeast along the Red River to Alexandria, and then further southeast along the Mississippi River past Baton Rouge. App., infra, 110a. The district is approximately 55% black in registered voters. Koepp Test., 7,/21/94 A.M. Tr. 17. In devising the district, Koepp tried to keep small towns, precincts, and parishes intact, retain existing districts as much as possible, reflect communities of interest, and sep- arate incumbents. Id. at 8, 14-26; Brinkhaus Test., 7/22/94 A.M. Tr. 11, 31-32. To satisfy the one person, one vote rule and other objectives in the plan, 14 of Louisiana's 64 parishes were divided. Koepp Test., 7/21/94 A.M. Tr. 11. The plan used in the 1980s had divided seven parishes. App., infra, 65a. The legislature made several minor adjustments in the plan to satisfy incumbents' concerns about the political makeup of their districts. Koepp Test., 7/21/94 A.M. Tr. 48; Bagneris Test., 7/21/94 P.M. Tr. 119. Those adjustments made District 4 some- what more irregular. State's Exh. 11. Voting in Louisiana is racially polarized, and blacks in Louisiana have not been elected to Congress except from districts in which blacks have constituted a majority of registered voters. Engstrom Test., 7/21/94 P.M. Tr. 16-18; State's Exh. 13. Aware of that reality, the state legislature attempted to create ---------------------------------------- Page Break ---------------------------------------- 7 a second majority-minority district in order to comply with the requirements of Sections 2 and 5 of the Voting Rights Act, and to continue to remedy Louisi- ana's history of discrimination in voting. Koepp Test., 7/21/94 A.M. Tr. 18-22; Bagneris Test., 7/21/94 P.M. Tr. 106-107, 110; Brinkhaus Test., 7/22/94 A.M. Tr. 6,24-27. 3. On July 25, 1994, the district court held the new plan unconstitutional. App., infra, 24a-26a. The district court enjoined further use of the plan, and required 1994 elections to be held under a plan drawn by the court. Ibid. The court did not afford the par- ties an opportunity to examine or raise objections to its plan. The court's plan creates one majority-black district; all other districts are less than 30% black in registered voters. Id. at 33a. Under the court's plan, Cleo Fields, who currently represents the ma- jority-black district the court found unconstitutional in its first opinion, is paired with a white incumbent in a district that is more than 70% white. No other incumbents are paired. The district court issued an opinion explaining its decision on July 29, 1994. App., infra, la-23a. That opinion also readopts the court's first opinion. Id. at 2a. The court first found that "the bizarre and irregular shape of District Four raises an infer- ence that the Louisiana Legislature classified its citi- zens along racial lines and segregated them into voting districts accordingly." Id. at 3a. That find- ing, the court held, shifted the burden to the State and the United States to rebut that inference. Ibid. After reviewing all the evidence, the court con- cluded that "Act 1 can only be explained credibly as the product of race-conscious decisionmaking." App., ---------------------------------------- Page Break ---------------------------------------- 8 infra, 4a. In support of that conclusion, the court relied primarily on the fact that the legislators who testified admitted that race played a "large if not dominant role in the map as it is now drawn." Ibid. The court rejected the State's contention that non- racial considerations also played an important role in the drawing of District 4. In the court's view, the State's assertion that the residents along the Red River had common interests was a "post hoc rational- ization." Id. at 4a-5a. The court also concluded that the State's assertion that it relied on the design of old District 8 was "mere pretext. " Id. at 5a. While the court acknowledged that "other factors" affected the way in which District 4 was drawn, the court concluded that the "fundamental factor driving Act 1 was race." Ibid. The court then held that "[r] ace-conscious redis- tricting, while not always unconstitutional, is always subject to strict scrutiny." App., infra, 5a. The court noted that this Court had applied a more deferential standard to race-conscious redistricting in United Jewish Organizations of Williamsburg, Inc. v. Carey, 430 U.S. 144 (1977) ( UJO). App., infra, 5a. The court concluded, however, that City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), undermined the holding in UJO, and required strict scrutiny of all race-conscious redistricting. App., infra, 6a. The court went on to hold that the State had not proven that its consideration of race was supported by a compelling interest. App., infra, 6a-7a. The court concluded that Section 5 "cannot be read to compel the results of Act 1" because "[n] either the State nor the Department of Justice offered any evidence suggesting that failure to create a second majority-minority district would either be a retro- ---------------------------------------- Page Break ---------------------------------------- 9 gression of minority strength or have an illegal pur- pose or effect." Id. at 8a. The court further con- cluded that a second majority-minority district was not compelled by Section 2 because proof of a "numer- ous and compact minority" is a precondition for a Section 2 dilution claim and "the evidence convinc- ingly proves that the State cannot clear [that] hur- dle." App., infra, 8a. Finally, the district court re- jected the State's assertion that the creation of a majority-minority district furthered the State's inter- est in remedying its history of racial discrimination. Id. at 9a-10a. The court concluded that "[w]ithout concrete evidence of the lingering effects of past dis- crimination * * * we cannot agree that the resegre- gation of Louisiana by racially configured voting dis- tricts is warranted." Id. at 10a. Turning to the question of remedy, the court stated that it had adopted its own plan because of "the late- ness of the hour, the dismal history of the Legislature in two previous attempts, foot-dragging by the de- fendants in the appeals and the risk that Louisiana might be without Congressional representation in January 1995." App., infra, 10a. The court noted that its plan "split only 6 parishes," followed "tradi- tional lines," divided only one town, and "ignore [d] all political considerations." Id. at 10a-11a. Chief Judge Shaw issued a separate opinion, also joined by Judge Wiener, which generally tracked the findings and conclusions of the court. App., infra, 13a-23a. Chief Judge Shaw believed that District 4 "completely disregards the traditional districting principles of compactness, respect for political sub- divisions, and respect for commonality of interests." Id. at 15a. He also stressed that the "old eighth dis- trict was never challenged on constitutionality" and ---------------------------------------- Page Break ---------------------------------------- 10 therefore has "no application to this case." Id. at 18a. On August 11, 1994, this Court stayed the district court order, permitting the 1994 congressional elec- tions to proceed under the State's plan. THE QUESTIONS PRESENTED ARE SUBSTANTIAL The Court should note probable jurisdiction of this appeal. The district court has seriously misconstrued this Court's decision in Shaw and has decided several related questions that are of substantial importance in voting rights litigation now pending throughout the country. Unless reversed, the court's decision will significantly hamper state efforts to comply volun- tarily with the Voting Rights Act. Full briefing and argument is therefore warranted. 1. The district court held that "race conscious re- districting, while not always unconstitutional, is al- ways subject to strict scrutiny." App., infra, 5a. That holding is inconsistent with United Jewish Or ganizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144 (1977). In UJO, seven of the eight Justices participating voted to uphold a plan that deliberately created majority-minority districts without subject- ing that plan to strict scrutiny. Five justices spe- cifically agreed that the proposed plan has the intent and effect of diluting the majority's voting strength. See id. at 165 (opinion of White, J. joined by Stevens & Rehnquist, JJ.): id. at 179-180 (Stewart, J. joined by Powell, JJ., concurring). In adverting to that issue in Shaw, this Court "express[ed] no view as to whether "the intentional creation of majority-minority districts, without ---------------------------------------- Page Break ---------------------------------------- 11 more,' always gives rise to an equal protection claim." 113 S. Ct. at 2828. The Court did not purport to overrule UJO. Instead, it distinguished UJO on the ground that the State in that case had "adhered to traditional districting principles," Id. at 2829. This Court also repeatedly stated in Shaw that its holding was limited to those rare cases when a State creates a, district that is "so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races for purposes of voting." Id. at 2824 (emphasis added) ; id. at 2825, 2826, 2828, 2830. The district court's holding that Louisiana's admitted intent to create a majority-minority district automatically triggered strict scrutiny is therefore in conflict with UJO and unsupported by Shaw. The district court's holding has widespread impli- cations. As Justice White has stated, "bloc voting by race * * * is a fact of life well known to those re- sponsible for drawing electoral district lines. These lawmakers are quite aware that the districts they create will have a white or a black majority; and with each new district comes the unavoidable choice as to the racial composition of the district." Beer v. United States, 425 U.S. 134, 144 (1976) (White, J., dissenting). In such circumstances, a holding that the intentional use of race to draw district lines is automatically suspect has the potential to make a wide range of redistricting plans at all levels of gov- ernment constitutionally suspect. Moreover, Sections 2 and 5 of the Voting Rights Act often require race-conscious redistricting. Under the district court's decision in this case, however, race-conscious redistricting undertaken to comply with Sections 2 and 5 will invariably be treated as constitutionally suspect. The inevitable result will ---------------------------------------- Page Break ---------------------------------------- 12 be to chill voluntary compliance by the States with those important statutes. In addition to the district court in this case, four other three-judge courts have addressed the question whether race-conscious redistricting always triggers strict scrutiny. Those decisions reflect a full range of views on when strict scrutiny is required. In DeWitt v. Wilson, No. CIV-S-93-535 (E.D. Cal. June 27, 1994), slip op. 4, the district court held that "in redistricting, consciousness of race does not give rise to a claim of racial gerrymandering when race is considered along with traditional redistricting principles, such as compactness, contiguity, and polit- ical boundaries." In Vera v. Richards, C.A. No. H- 94-0277 ( S.D. Tex. Aug. 17, 1994), the court reached the same conclusion. That court held that strict scru- tiny is appropriate only when a district is "highly irregular" and ignores "traditional districting cri- teria." Slip op. 92. In contrast, in Shaw v. Hunt, No. 92-202-CIV-5-BR (E.D.N.C. Aug. 1, 1994), slip op. 40-41, the district court held that strict scrutiny is appropriate whenever "racial considerations played a `substantial' or `motivating' role in the line- drawing process, even if they were not the only fac- tors that influenced that process." Finally, in John son v. Miller, No. 194-008 (S.D. Ga. Sept. 12, 1994), slip op. 37, the court held that strict scrutiny is applicable when race is the "overriding, predominant force determining the lines of the district," but does not apply when race is "one factor among many of equal or greater significance." That wide divergence of views on the threshold question of when strict scrutiny is required reinforces the conclusion that the issue is one that warrants this Court's plenary con- ---------------------------------------- Page Break ---------------------------------------- 13 sideration. This case presents an appropriate vehicle for resolving that issue. 2. The district court went cm to find that District 4 is "bizarre" and "can only be explained credibly as the product of race-conscious decisionmaking." App., infra, 3a. This case therefore also raises the ques- tion of the proper approach in determining that im- portant Shaw issue. a. Because the Constitution does not require a State to tailor its districts to any absolute measure of compactness, Shaw, 113 S. Ct. at 2827, the manner in which the State has drawn and continues to draw other districts is a proper benchmark for determining whether a particular majority-minority district is "bizarre." A bizarre district is one that reflects an extraordinary departure from a State's usual dis- tricting practices. See Cane v. Worcester County, Maryland, No. 94-1579 (4th Cir. Sept. 16, 1994), slip op. 9 n.6; cf. Jeffers v. Clinton, 730 F. Supp. 196, 207 (E.D. Ark. 1989), aff'd mem., 498 U.S. 1019 (1991 ). The manner in which the State has drawn other districts is also relevant in deciding whether a particular majority-minority district "on its face * * * rationally can be viewed only as an effort to segregate the races for purposes of vot- ing." Shaw, 113 S. Ct. at 2824. When a district resembles districts that a State has drawn for rea- sons having nothing to do with creating a majority- minority district, it is improper to conclude that such a district can only be understood as a racial gerry- mander. Application of these principles leads to the conclu- sion that Louisiana's District 4 should not have been subjected to strict scrutiny under Shaw. First, that district resembles the Eighth District in congres- sional plans that the State used from 1967-1972. ---------------------------------------- Page Break ---------------------------------------- 14 App., infra, 110a-112a. The plans in use between 1973 and 1992 also contained a district in the same general area. Id. at 113a-114a. In none of these districts did blacks constitute a voting majority. Given that history, District 4 cannot be considered bizarre on its face. Nor can it be understood solely as an effort to segregate voters on the basis of race. Quite apart from its resemblance to old District 8, the shape of District 4 fits comfortably within the State's ordinary districting practices. As the map of the State's plan illustrates (App., infra, 110a), District 4 is reasonably compact and contiguous. It is generally wide and straight. Unlike old District 4, it does not meander over disconnected parts of the State, nor is it comprised of a series of "fingers" reaching out from the core. District 4 follows the Red River and then the Mississippi River, two im- portant geographical features in the State, and the population that is concentrated along those rivers shares common interests. District 4 is not a square or circle. Shaw, how- ever, does not treat as suspect any deviation from geometric regularity. Suspect treatment is reserved for truly bizarre districts that, on their face, evidence a single-minded pursuit of racial goals, with little or no consideration for other districting values. District 4 is not such a district. It reflects a conscientious effort to create a majority-minority district, while simultaneously pursuing other traditional Louisiana districting values. It is therefore not suspect under Shaw. 1. ___________________(footnotes) 1 The relevant inquiry under Shaw is whether the district as a whole is bizarre, not whether isolated segments of it are. Virtually every redistricting plan will have some lines that, when viewed in isolation, look quite irregular, and this plan is no exception. It is worth noting that some of the less regu- ---------------------------------------- Page Break ---------------------------------------- 15 b. The district court rejected the State's reliance on the fact that District 4 resembles old District 8 and encompasses a community of interest along the Red and Mississippi Rivers as "post hoc rationaliza- tion" and "mere pretext." App., infra, 5a. In reach- ing that conclusion, the court relied primarily on the admissions of state legislators that race played a large role in the drawing of District 4. Ibid. The district court's analysis is flawed for two reasons. First, the relevant inquiry under Shaw is whether a. district is so bizarre on its face that it can be understood only as a racial gerrymander. 113 S. Ct. at 2824. Those terms mandate an objective inquiry, not an inquiry into the legislature's subjective intent based on after-the-fact statements made by legisla- tors. Johnson v. Miller, slip op. 7-8 ( Edmondson, J., dissenting). The resemblance of District 4 to old District 8 and the presence of a community of inter- est along the Red and Mississippi Rivers are objective indications that District 4 is not bizarre and cannot be understood solely as an effort to segregate voters on the basis of race. Those factors are therefore of crucial relevance in evaluating appellees' Shaw claim. Conversely, the fact that state legislators conceded that the State intended to draw a majority-minority district is not determinative of a Shaw claim. Under Shaw, there is nothing suspect about a State's desire to draw a majority-minority district. Second, the district court seems to have misunder- stood what the State sought to prove by introducing ___________________(footnotes) lar lines at the mid-point of District 4 were constructed to satisfy the political preferences of incumbent legislators, a routine consideration in the enactment of redistricting plans; other unusual looking lines in the district follow oddly shaped precinct lines. Koepp Test., 7,/21/94 A.M. Tr. 30, 48; Bagneris Test., 7/21/94 P.M. Tr. 119; Brinkhaus Test., 7/22/94 A.M. Tr. 9, 14. ---------------------------------------- Page Break ---------------------------------------- 16 evidence that District 4 resembles old District 8 and includes persons with common interests. The point of the evidence was not to show that race played no role in the drawing of District 4; it admittedly played an important one. Rather, the point of that evidence was to show that the State was attempting to draw a majority-minority district in a way that was con- sistent with other traditional redistricting interests. The State's acknowledgement that it intended to cre- ate a majority-minority district is not at all incon- sistent with its assertion that it also took into account the traditional districting values served by creating a district that resembled prior districts and that included persons with common interests. That ac- knowledgement provides no basis for the court's find- ing that the State's reliance on those other factors was pretextual. 2. The reasons given by Chief Judge Shaw for find- ing the State's plan suspect under Shaw are equally unpersuasive. Chief Judge Shaw concluded that the State's plan "completely disregards" the traditional districting principle of respect for political subdivi- sions because District 4 splits 12 parishes and four cities. App., infra, 15a-17a. In Louisiana, however, parish and city lines have never been sacrosanct. The ___________________(footnotes) 2 In rejecting the State's reliance on old District 8, the dis- trict court also attributed significance to the fact that it was "never challenged" and "was crafted for the purpose of en- suring the reelection of Congressman Gillis Long." APP., infra, 5a. Legislation that has not been challenged, however, is presumptively constitutional. Moreover, if old District 8 was drawn to ensure the reelection of an incumbent non- minority Congressman, then, in the absence of any significant demographic changes in the region, it calls into question the conclusion that District 4, which follows similar lines and directions, can be understood only as an effort to segregate black and white residential areas. ---------------------------------------- Page Break ---------------------------------------- 17 1980 redistricting plan divided seven parishes, and the court's own plan divided six. Id. at 10a-lla, 65a. Congressional redistricting plans throughout the twentieth century have split the city of New Orleans. U.S. Exh. 4. District 4's splitting of parish and city lines does not make it bizarre. Chief Judge Shaw also concluded that the State's plan completely disregards the traditional principle of "respect for commonality of interests" because District 4 includes different religious groups and dif- ferent agricultural interests. App., infra, 15a, 17a. With only seven districts, however, it is impossible for Louisiana to create districts composed of persons who have similar interests on every conceivable so- cial and economic issue. Uncontradicted evidence shows that persons in District 4 share some impor- tant common interests. Hillard Test., 7/21/94 P.M. Tr. 47-48. Chief Judge Shaw's view that the State should have given greater weight to religious and agricultural differences reflects his own redistricting preferences. It does not show that District 4 is bizarre. 3. Even if the district court were right in sub- jecting District 4 to strict scrutiny, it erred in con- cluding that the State did not have a compelling in- terest in drawing a second majority-minority district. In Shaw, this Court provided some general guidance on how to determine whether a State has a compelling interest in creating a majority-minority district. 113 S. Ct. at 2830-2832. This case provides an opportu-. nity to provide more concrete guidance on that cen- tral issue. a. A State has a compelling interest in complying with Sections 2 and 5 of the Voting Rights Act. See Shaw, 113 S. Ct. at 2830. The district court did not suggest otherwise. Instead, reviewing the evidence ---------------------------------------- Page Break ---------------------------------------- 18 de novo, the district court concluded that the State's creation of District 4 was not compelled by Section 2 or Section 5. App., infra, 6a-9a. Under this Court's decisions, however, a State is not required to show that its actions were in fact required by law in order to take remedial action. A State need only show that it had a "strong basis in evidence" for its actions- a standard that is satisfied if the State reasonably believes that its failure to take the measure would lead to a prima facie case of discrimination against it. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 500 (1989) ; Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 292-293 (1986) (O'Connor, J., con- curring in part and concurring in the judgment). With regard to Section 2, a State would have a compelling interest in creating a majority-minority district when the three preconditions for a vote dilu- tion claim set forth in Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986), are present. See Shaw v. Hunt, slip op. 62-64. Strong evidence that each of those preconditions existed was present here. The record demonstrates that blacks in Louisiana are politically cohesive and that unless they constitute a majority in a district, their candidates of choice will be defeated by whites voting as a bloc. The record also shows that the concentration of minorities along the Red and Mississippi Rivers is sufficiently large and compact to constitute a majority in a district. Accordingly, the State had a reasonable basis for con- cluding that the creation of a second majority- minority district was required in order to comply with Section 2. The district court found that a second majority- minority district was not compelled by Section 2 because no geographically compact district could be drawn. App., infra, 8a. The Gingles compactness ---------------------------------------- Page Break ---------------------------------------- 19 requirement, however, does not demand compactness in any absolute sense. Rather, the question in cir- cumstances like those presented here is whether the proposed majority-minority district is reasonably compact in light of a State's traditional redistricting practices. Jeffers v. Clinton, 730 F. Supp. at 207. As already noted, District 4 is similar in compact- ness to previous districts drawn by the State in the same general area. Gingles requires no more. The State also had a reasonable basis for conclud- ing that the creation of a second majority-minority district was required by Section 5. By 1992, the Department of Justice had already refused Section 5 preclearance to the B.E.S.E. plan on the ground that the State had not shown that its failure to create a second majority-minority district was free of dis- criminatory purpose. DX 16-17. From that experi- ence, the State reasonably believed that it would also have difficulty satisfying its burden to show that its failure to create a second majority-minority congres- sional district complied with Section 5. The district court apparently believed that the State could not rely on the Attorney General's objec- tion to its B.E.S.E. plan, but was required to show that the objection was in fact a legally valid one. App., infra, 7a & n.3. That approach was incorrect. The Attorney General is required under Section 5 to object to a redistricting plan when the State is unable to demonstrate that it is free of discrimina- tory purpose. City of Richmond v. United States, 422 U.S. 358, 372-373 (1975). The Attorney Gen- eral's objection based on such a determination con- stitutes an "administrative finding of discrimina- tion." Regents of the Univ. of Calif. v. Bakke, 438 U.S. 265, 305 (1978) (opinion of Powell, J.); Shaw v. Hunt, slip op. 67-69. Such a finding provides the ---------------------------------------- Page Break ---------------------------------------- 20 State with a basis for believing that remedial action is necessary. Ibid. b. Independent of its obligations under the Voting Rights Act, the State had a compelling interest in ameliorating the effect that racially polarized voting has had on the opportunity for minority voters in Louisiana to elect the candidates of their choice. See Croson, 488 U.S. at 491-493 (opinion of O'Connor, J.). When whites persist in voting as a bloc against minority preferred candidates, a State can take steps through redistricting to "alleviate the consequences of racial voting at the polls." UJO, 430 U.S. at 166- 168 (opinion of White, J., joined by Stevens & Rehn- quist, JJ. ). The district court determined that there are no lingering effects of discrimination that would justify such remedial action. App., infra, 10a. That deter- mination ignores the persistence of racially polarized voting in the State. As recently as 1983, Louisiana was ordered by a federal court to create its first majority-minority district in the New Orleans area in order to comply with the Voting Rights Act. Major v. Treen, supra. And based on the evidence before it, the State had every reason to believe that unless it created an additional district in which blacks con- stituted a majority, bloc voting by whites would preclude minority voters from having any realistic chance to elect a second representative of their choice. 3. ___________________(footnotes) 3 The district court's opinion does not address the issue of narrow tailoring. We nonetheless note that the State's plan could not be more narrowly tailored to further its compelling interests. It creates a second majority-black district in the very place in which minority voters are geographically con- centrated, and it does so in a way that is consistent with the State's other redistricting interests. Nor does the plan need- ---------------------------------------- Page Break ---------------------------------------- 21 4. As already noted, there are now five decisions by three-judge courts addressing the issues raised by Shaw. In addition to Louisiana, the States in- volved are California, Georgia, Texas, and North Carolina. All of those cases involve congressional redistricting; all either have been or will be appealed to this Court. The present case raises, in a straight- forward way, the most important questions left undecided by Shaw. It clearly warrants plenary con- sideration by this Court. CONCLUSION The Court should note probable jurisdiction. Respectfully submitted. Drew S. DAYS, III Solicitor General DEVAL L. PATRICK Assistant Attorney General PAUL BENDER Deputy Solicitor General IRVING L. GORNSTEIN Assistant to the Solicitor General JESSICA DUNSAY SILVER MARK L. Gross Attorneys SEPTEMBER 1994 ___________________(footnotes) lessly pack minority voters into the district: blacks constitute 55% of the registered voters in the district, very close to the minimum percentage necessary to provide minority voters with an opportunity to elect a candidate of their choice. ---------------------------------------- Page Break ---------------------------------------- APPENDIX A [Filed Jul. 29, 1994] UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA SHREVEPORT DIVISION No. 92-1522 RAY HAYS, ET AL., PLAINTIFFS versus STATE OF LOUISIANA, ET AL., DEFENDANTS Before Wiener, Circuit Judge, Shaw, Chief District Judge and Walter, District Judge. Walter, J., Wiener and Shaw, JJ. concurring, with Shaw concurring specially with whom Wiener, J. concurs: By order dated June 27, 1994, this case was re- manded from the United States Supreme Court for further proceedings. For the following reasons, Act 1 of the Second Extraordinary Session of the 1994 Louisiana Legislature is null and void. The State of Louisiana is hereby enjoined from holding any future Congressional elections based upon the redistricting scheme embodied by Act 1. (1a) ---------------------------------------- Page Break ---------------------------------------- 2a I STATEMENT OF THE CASE Ray Hays, Edward Adams, Susan Singleton, and Gary Stokely ("Plaintiffs") brought this suit in state court in August 1992 challenging Act 42 of 1992. The case was removed to this Court by the State of Louisiana. After one trial and an evidentiary hear- ing, we struck down Act 42 as an impermissible racial gerrymander violative of Plaintiffs' equal pro- tection rights. The State of Louisiana et al. ("De- fendants") pursued their appeal directly to the Su- preme Court. Meanwhile, during an extraordinary session, the Louisiana Legislature enacted Act 1, re- pealing Act 42 and creating a new Congressional redistricting scheme. Plaintiffs filed supplemental pleadings seeking to amend their complaint. The amended pleadings challenged Act 1 and sought in- junctive relief. As the case was on appeal to the Su- preme Court, the motions were returned unsigned for lack of jurisdiction. On June 27, 1994, the Supreme Court vacated our judgment of December 29, 1993; remanded the case to this Court "for further consid- eration in light of Act 1 of the Second Extraordinary Session of the 1994 Louisiana Legislature and the parties' filings in this Court concerning Act l." Con- sistent with that order, this Court permitted the pre- viously filed amended complaint and a two-day trial was held to determine the constitutionality of Act 1. II FINDINGS OF FACT AND CONCLUSIONS OF LAW In the interest of brevity, we reiterate and adopt by reference our December 28, 1993 opinion. Our ---------------------------------------- Page Break ---------------------------------------- 3a conclusions regarding Plaintiffs' standing to bring an equal protection challenge are adopted as well. With that in mind, we make the following findings: A "The Act (1) speaks for itself" The districting map of Louisiana, created under Act 1, reflects a racial gerrymander. Specifically the bizarre and irregular shape of District Four raises the inference that the Louisiana Legislature classi- fied its citizens along racial lines and segregated them into voting districts accordingly. The district cuts across historical and cultural divides, splits twelve of its fifteen parishes and divides four of the seven major cities of the State. The statistical evi- dence showing the racial composition of the districts further supports the finding that District Four is "so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races for purposes of voting," Shaw v. Reno, 113 S. Ct. 2816 (1993). 1. Plaintiffs, by submitting the new map with their supplemental pleadings, stated a claim upon which relief can be granted under the Equal Protec- tion Clause. We ordered the State of Louisiana and Defendant-Intervenor United States to begin the trial by rebutting this inference. Defendants offered the testimony of two State Senators, the State Senate's assistant secretary, a geographer, and a sociologist in an effort to explain the shape of the district on other than impermissible ___________________(footnotes) l The State now concedes that Act 42 was bizarre. In our opinion of December 28, 1993, we called for major surgery. Act 1 is at best a cosmetic makeover. ---------------------------------------- Page Break ---------------------------------------- 4a racial grounds. Those persons involved directly with the formation of Act 1 acknowledged that the crea- tion of a second majority-minority district was the specific intent of the Legislature. Two race-neutral explanations were submitted by the defense. First, the geographer opined that as District Four followed the Red River valley, it endowed all its residents with a commonality of interest. Second, the various wit- nesses asserted that District Four was inspired by "the old Eighth" district thereby satisfying the con- cept of "traditional" districting principles. The starting point, following the 1990 census, was to redistrict for seven congressional districts, instead of eight, Louisiana having lost one member of Con- gress. Next, the State sought to comply with the Constitutional requirement of one man-one vote. In this case, each district should contain, as closely as practicable, 603,853 citizens. The State's evidence clearly shows what happened next: Misinterpreting our opinion of December 1993 as approving a racially gerrymandered district if it contained no more than 55% minority registered voters; and remaining con- vinced that the Department of Justice would not pre- clear any plan that did not contain two majority/ minority districts, the Legislature embarked on an endeavor to comply with those demands and still se- cure adoption. These were the only inflexible fea- tures given to the cartographer/demographer in charge of generating the seven districts. After reviewing the evidence, we find that Act 1 can only be explained credibly as the product of race- conscious decisionmaking. The Senators themselves admitted that race played a large if not dominant role in the map as it is now drawn. The Red River ---------------------------------------- Page Break ---------------------------------------- 5a valley theory is clearly a post hoc rationalization simi- lar to the Mississippi River theory offered to support Act 42 and equally unbelievable. The State did not imitate the "old Eighth" for tradition's sake. 2. The "old Eighth," certainly bizarre, before Shaw and never challenged, was crafted for the purpose of en- suring the reelection of Congressman Gillis Long. New District Four was drafted with the specific in- tent of ensuring a second majority-minority Con- gressional district. The State's purported reliance on District Four's similarity to the "old Eighth" is mere pretext. Although the witnesses highlighted other factors that carved the contours of the awkward dis- trict, the fundamental factor driving Act 1 was race. B ACT 1 IS SUBJECT TO STRICT SCRUTINY Race-conscious redistricting, while not always un- constitutional, is always subject to strict scrutiny. This conclusion has troubled legislators, scholars, liti- gators, and judges alike. T. Alexander Aleinikoff, Samuel Issacharoff, Race and Redistricting: Draw- ing Constitutional Lines After Shaw v. Reno, 92 Mich. L. Rev. 588, 602 ( "Aleinikoff"). The problem is caused by the incomplete constitutional status of affirmative action plans in the voting rights realm. In United Jewish Organization, v. Carey, 430 U.S. 144 (1977 ), the Supreme Court applied a more def- erential standard to what the plurality deemed benign" measures. One year later, the Court decided Regents of the University of California v. Bakke, 438 U.S. 265 (1978) following the theory that "the ___________________(footnotes) 2 In fact, District Four incorporates the "old Eighth" only in part. It shoves the top further north into Shreveport, fur- ther south into Baton Rouge and shortens it to the east. ---------------------------------------- Page Break ---------------------------------------- 6a right not to be injured on the basis of one's skin color was a personal right secured by the Constitution, and the asserted lack of an invidious purpose could not be a sufficient reason for reducing the level of judicial scrutiny applied to measures that disadvan- taged persons on the basis of race." Aleinikoff, 92 Mich. L. Rev. at 592. Eleven years later, City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) confirmed the motion that, since Bakke, the scrutiny applied under the Fourteenth Amendment Equal Pro- tection Clause will not vary based on the race of the preferred group. 488 U.S. at 493. Shaw is consistent with the more recent equal protection precedents, focusing on individual rights as opposed to UJO's group-based approach. Aleinikoff, 92 Mich. L. Rev. at 600. By not overruling UJO, Shaw W. Reno can be read to ratify "the earlier group-based decisions which focus on whether electoral schemes `dilute' the voting strength of protected minorities [while mak- ing clear] that the fact of non-dilution does not im- munize districting plans from constitutional chal- lenge." Id. "A racial classification, despite purported motiva- tion, is presumptively invalid and can be upheld only upon an extraordinary justification." Personnel Ad- ministrator of Massachusetts v. Feeny, 442 U.S. 256, 272, 99 S. Ct. 2282, 2293 (1979). Therefore, such legislation must be narrowly tailored to further a compelling government interest if it is to pass con- stitutional muster. C COMPELLING GOVERNMENTAL INTEREST Defendants have proved no compelling govern- mental interest in distinguishing among citizens of ---------------------------------------- Page Break ---------------------------------------- 7a Louisiana because of their race. Defendants contend that incumbency politics, the Voting Rights Act, and remedying past legal and social or continuing social discrimination justified the racial segregation of voters. We disagree. We note at the outset that incumbency politics can- not justify racial classifications. Adhering to federal anti-discrimination laws and remedying past or con- tinuing discrimination could constitute compelling governmental interests if the State could "demon- strate a strong basis in evidence for its conclusion that remedial action was necessary." Crosot, 488 U.S. at 510, 109 S. Ct. at 730. Such a basis may be drawn from judicial, legislative, or administrative findings of constitutional or statutory violations. 1 Voting Rights Act The State Legislature believed that the Voting Rights Act compelled the creation of a second major- ity-minority districts. 3. A careful review of those stat- utes and the caselaw interpreting them reveals that the State's belief was misplaced. Under Section 5 of the Voting Rights Act, 42 U.S.C. 1973c, the State has an affirmative duty to ___________________(footnotes) 3 This belief was encouraged, if not demanded, by the De- partment of Justice, under an actual or implied threat of withholding Section 5 pre-clearance. The shield became a sword. Whether the Attorney General had the right to with- hold pre-clearance may be open to question, but she certainly had the power, and the threat, whether issued by her or some middle level bureaucrat, was a matter of real concern to the State. Litigation in the District of Columbia, and everywhere else is expensive. We hold, however, that a real concern is not a compelling one. ---------------------------------------- Page Break ---------------------------------------- 8a avoid retrogression or enactment of a plan that has the purpose or effect of denying or abridging the right to vote because of race or color. Neither the State nor the Department of Justice offered any evi- dence suggesting that failure to create a second majority-minority district would either be a retro- gression of minority strength or have an illegal pur- pose or effect. Not surprisingly, we can find no sup- port for such a claim either. Section 5 cannot be read to compel the results of Act 1. A Voting Rights Act Section 2 violation occurs when, under the totality of the circumstances, a State's apportionment scheme has the effect of dimin- ishing or abridging the voting strength of a protected class. In Thornburg v. Gingles, 478 U.S. 30, 106 S. Ct. 2752 (1986), the Supreme Court enumerated three conditions to a Section 2 "dilution" claim: (1) a numerous and compact minority, that is (2) politi- cally cohesive, and (3) subject to majority bloc vot- ing usually defeating the minority's preferred candi- date. 438 U.S. at 50-51, 106 S. Ct. at 2766. The evidence convincingly proves that the State cannot clear the first Gingles hurdle. 4. Accordingly, Section 2 cannot serve as a-compelling justification- for Act 1. Certainly the Voting Rights Act would permit the creation of a second majority-minority district, but the fact that such a district is permitted does not ___________________(footnotes) 4 Despite a minority population of approximately 30 %, demographic distribution is simply too diffuse (See Gov't Exhibit 2) to generate a majority voting age population in any district outside of the Orleans Parish region. The State's own expert confirmed that Louisiana's minority population is simply not sufficiently concentrated to meet Gingles minimum requirements. ---------------------------------------- Page Break ---------------------------------------- 9a compel its creation. Shaw demands that we distin- guish between what the Voting Rights Act requires and what it permits. 113 S.Ct. at 2830. As for any arguments that Section 2 compels maximization of minority voting strength, the Supreme Court recently held: (R)eading Section 2 to define dilution as any failure to maximize tends to obscure the very object of the statute and to run counter to its textually stated purpose. One may suspect vote dilution from political famine, but one is not entitled to suspect (much less infer) dilution from mere failure to guarantee a political feast. . . . Failure to maximize cannot be the measure of Section 2. Johnson v. DeGrandy, - Us. -, - S. Ct. 1994 WL 285792 (1994). Hence, the State did not have a basis in law or fact to believe that the Voting Rights Act required the creation of two majority-minority districts. 5. 2 Remediation of Pastor Present Discrimination Defendants elicited testimony that the sordid his- tory of unconstitutional treatment of black citizens in Louisiana prompted the State to tinker with district lines in order to ensure minority control at the polls. Using the disease as a cure is a dangerous antidote, one that must be absolutely warranted before being administered. Ironically, one witness contended that ___________________(footnotes) 5 A strong basis under Gingles does exist, however, to war- rant the creation of a majority-minority district in the Orleans Parish region, where one has existed since 1983. See Major v. Treen, 574 F. Supp. 325 (E.D. La. 1983). ---------------------------------------- Page Break ---------------------------------------- 10a the days of "white" and "colored" water fountains and bus seats justify distinct "white" and "African- American" congressional districts. What the defense failed to establish is where the Civil Rights Act of 1964 and the Voting Rights Act of 1965 have failed to accomplish what the State now sets out to do. Without concrete evidence of the lingering effects of past discrimination or continuing legal prejudice in voting laws and procedures, coupled with specific remedies, we cannot agree that the re-segregation of Louisiana by racially configured voting districts is warranted; 6. Croson and Bakke dictate this result. Finally, we refuse to accept the explanation that citizen response to issues such as education, crime and health care is driven by skin pigmentation. Legitimation of that notion would herald the demise of equal protection. III THE COURT'S PLAN Our strong preference is to leave to the Legislature the task of drawing election districts. We reluctantly set our hands to the task, considering the lateness of the hour, the dismal history of the Legislature in two previous attempts, foot-dragging by `the defendants in the appeals and the risk that Louisiana might be without Congressional representation in January 1995, The districts that we drew split only 6 parishes ___________________(footnotes) 6 We also note, that accepting arguendo the remediation argument as compelling, the defendants utterly failed to demonstrate how gerrymandering could remedy the problems asserted as compelling interests. That is exactly the problem with a sweeping remedy to an amorphous concept. Without properly defining the compelling interest, it is impossible for the State to narrowly tailor any plan. ---------------------------------------- Page Break ---------------------------------------- lla of the sixty-four, followed traditional lines, only one town of approximately 3000 was divided, and the plan met all Constitutional one man-one vote require- ments. It did ignore all political considerations. And, instructed by Gingles, we did not carve districts along race lines, except in District 2, where the Constitu- tion and fairness requires us to consider it. 7. IV CONCLUSION The Equal Protection Clause demands strict scru- tiny of government use of race as a dividing line. This is an individual right in addition to any group- based protections that the Amendment affords. When voting districts are carefully planned like racial wards, an individual injury occurs. All citizens are stigmatized by the notion that their "interests" can be defined by race or will be represented adequately only if a member of their racial "group" holds a particular office. To reinforce such racial notions by operation of law seems to fly in the face of Justice Thurgood Marshall's expressed hope in his argument in Cooper v. Aaron that we "learn to live together with fellow citizens, and above all to learn to obey the law." I find a contrary position strangely at odds with the desires so eloquently voiced, not so long ago, in Shreveport, in Jackson, in Selma, in countless towns across the South, at schools and lunch counters, at voter registrar's offices. They stood there, black and white, certain in the knowledge that the Dream was coming; determined that no threat, no spittle, no ___________________(footnotes) 7 See Major v. Treen, note 5 supra. ---------------------------------------- Page Break ---------------------------------------- 12a blow, no gun, no noose, no law could separate us because of the color of our skin. To say now: "Sep- arate " "Divide " "Segregate " is to negate their sacrifice, mock their dream, deny that self-evident truth that all men are created equal and that no government may deny them the equal protection of its laws. The validity of equal protection and the systemic legitimacy of our electoral process are threatened when a State sculpts voting districts along race lines. As here, when the State cannot, or has not, offered and supported an extraordinary justification for these questionable measures, the race-conscious enact- ments must fall. ---------------------------------------- Page Break ---------------------------------------- 13a UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA SHREVEPORT DIVISION Civil Action Number 92-1522 RAY HAYS, ET AL., PLAINTIFFS versus EDWIN W. EDWARDS, in his official capacity as Governor of the State of Louisiana, ET AL., DEFENDANTS SHAW, Chief District Judge, concurring: I concur in the able opinion of the majority. It is an honest effort to provide a suitable plan for Con- gressional districts in Louisiana within the restraints of the Constitution. I would, however, like to add a few words which may be somewhat repetitive but which address matters in our December 28, 1993 ruling which we have adopted by reference as well as additional findings supported by the evidence. Ap- plying the same constitutional analysis to Act 1 has led us to a similar conclusion. Again, this Court is called upon to answer the same question: "Does a state have the right to create a second racial majority/minority Congressional district by racial gerrymandering?" ---------------------------------------- Page Break ---------------------------------------- 14a The United States Supreme Court has answered that question for this Court in Shaw v. Reno, 1. "Yes, but only if the plan is narrowly tailored to further a compelling state interest." For the following reasons, this Court finds that the Congressional Redistricting Plan embodied in Act 1 and District 4, in particular, is the product of racial gerrymandering and is not narrowly tailored to further any compelling governmental interests. The plaintiffs' right to equal protection as guaranteed by the United States Constitution is violated by this redistricting plan, and as such, the plan is null and void. Racial Gerrymandering As stated in our previous opinion, racial gerry- mandering is defined as the intentional segregation of voters on the basis of race. This Court is called upon to first determine whether the redistricting plan is the result of racial gerrymandering. At trial, the witnesses for the State readily ad- mitted that the purpose of District 4 was to create a second black majority district. The testimony of the state legislators and the State Senate Assistant Secretary confirmed that the district lines were driven by the fact that the black population in the State of Louisiana was sufficiently dispersed through the State that it was impossible to create a second majority black district without skewing the lines into a long irregular shape, as demonstrated by District 4 of the plan. The districting plan embodied in Act 1 is highly irregular in its shape. Though it may be less bizarre ___________________(footnotes) 1508 U.S. -, 113 S. Ct. -, 125 L. Ed. 2d 511 (1993). ---------------------------------------- Page Break ---------------------------------------- 15a than the plan created in Act 42, the physiognomy of District 4 still strongly suggests that the Legisla- ture engaged in racial gerrymandering in creating the district. Looking at District 4 on a map of Louisiana, it appears as if someone knocked over an inkwell somewhere around Waskom, Texas, spill- ing ink aimlessly across the map of Louisiana. There is simply nothing regular about the contours of Dis- trict 4. This Court acknowledges that the appearance or beauty of a district is irrelevant to a constitutional analysis; however, the irregularity in shape of a district is suspect and can indicate racial gerry- mandering. Although Shrew discusses the concept of bizarre or irregular shape as a means of demonstrating or in- ferring racial gerrymandering, the high court in no way indicated that shape alone was a determining factor in a finding of racial gerrymandering. This Court finds, aside from the irregularity of the shape of this district, the evidence at trial clearly supported a finding of racial gerrymandering. The Louisiana Legislature abandoned traditional district- ing principles to arrive at a Plan which created two majority black voting districts. Act 1, like Act 42, completely disregards the traditional districting prin- ciples of compactness, respect for political subdivi- sions, and respect for commonality of interests. a. Compactness District 4, under Act 1, begins in Caddo Parish, and includes the Parishes of DeSoto, Red River, Sabine, and Natchitoches, all located in clearly de- ---------------------------------------- Page Break ---------------------------------------- 16a fined North Louisiana, and ends in Ascension Parish, after cutting through the French region of Louisiana called "Acadiana," which includes Lafayette, St. Martin, St. Landry, and Evangelize Parishes. The district is approximately 250 miles long, and me- anders through 15 parishes, making it considerably longer than any other district in the State. District 4 cuts up four major population centers of Louisiana, including Shreveport, Alexandria, Lafayette, and Baton Rouge, in its efforts to capture sufficient pockets of African-American voters, paying no re- spect to parish lines. 2. The district points fingers out into Caddo, Rapides, and Lafayette Parishes, while taking small bites out of St. Martin and Iberville Parishes. A district that stretches over as much territory, touching so many media and population centers, cannot be said to be compact. b. Respect f or Political Subdivisions Although Act 1 is an improvement from Act 42, the state legislature continues to disregard the parish lines in fashioning a plan to create a second minority district. In the creation of District 4, the State found it necessary to fragment twelve of the fifteen parishes comprising District 4, splitting sixteen parishes under the plan. District 4 is made up of pieces and parts of twelve parishes and splits four of the State's ___________________(footnotes) 2 This court notes that District 4 covers, not only four major population centers of Louisiana, but includes four separate and major media centers of this state. Congressional candidates would be required to spend substantial amounts of money and time covering the voters in four major areas of the state. ---------------------------------------- Page Break ---------------------------------------- 17a largest cities, outside of New Orleans-Shreveport, Baton Rouge, Lafayette, and Alexandria. Clearly, Act 1 has no respect for Louisiana's political sub- divisions. c. Commonality of Interests To say that District 4 comprises voters with com- mon interests violates all traditional north-south, ethno-religious, economic and historical distinctions in Louisiana which created this State's diverse personality. District 4 includes North Louisiana English- Scotch-Irish, mainline Protestants, South Louisiana French-Spanish-German Roman Catholics, traditional rural black Protestants, and Creoles. The district encompasses North, Central, and South Louisiana, each of which has its own unique identity, interests, culture, and history. The agricultural regions of Dis- trict 4 include cotton, soybean, rice, sugar cane, and timber. Such diverse agricultural constituency have few common interests. We continue to question how one Congressional representative could ade- quately represent the varying interests of residents in such far-flung areas of the State. A district which disregards commonality of inter- ests and stretches across the State in a hap- hazard manner without regard to political subdivi- sions can only be explained as the result of racial gerrymandering. Justification for Defendant's Plan The State attempted to put forth a race-neutral explanation for its plan by the use of a geographer who testified that District 4 was drawn along the ---------------------------------------- Page Break ---------------------------------------- 18a Red River Valley demonstrating a commonality of interest. The State failed in its burden of proof to show that the Red River Valley region in the State of Louisiana demonstrated a commonality of interests. Secondly, the State offered as support for its plan, that District 4 of the plan was modeled after the old eighth district in Louisiana which was created for and represented by Congressman Gillis Long. This Court is not swayed by the assertion that the tradition of the past regarding the old eight district is binding on this Court, due to the fact that the old eighth district was never challenged on constitutionality by any court in the United States This Court is not called upon to determine the con stitutionality of the old eighth district, and does no rely on the fact that such a district existed in Louisi ana. What was done by the Louisiana Legislature in the old eighth has no application to this case before this Court, and cannot be used as a comparable for the plan before this Court. Accordingly, this Court finds that the only explan- ation of the State's Redistricting Plan was racial gerrymandering. The State intentionally segregate voters into Congressional districts on the basis o race, in order to intentionally create a second black majority voting district. Narrowly Tailored A racially gerrymandered plan is subject to strict scrutiny, and as such it violates the Equal Protection Clause of the Fourteenth Amendment unless it is narrow] y tailored to further a compelling govern mental interest. ---------------------------------------- Page Break ---------------------------------------- 19a Compelling Governmental Interest Again, the State advances two possible compelling state interests to justify their racial gerrymander- ing: (1) compliance with the Voting Rights Act, and (2) remedying the effects of past discrimination. a. Compliance with the Voting Rights Act Section 5 of the Voting Rights Act provides that a state has an affirmative duty to avoid retrogression or to avoid enactment of a plan that has the purpose or effect of denying or abridging the right to vote on account of race. The defendants established that the Louisiana Leg- islature was operating under the belief that a second majority-black district was mandated by the Depart- ment of Justice to avoid retrogression, and obtain preclearance. Without commenting further regard- ing the role of the Department of Justice in affecting the plan enacted in Act 1, this Court finds no evi- dence to support a finding that a second majority- black district is required by Section 5 of the Voting Rights Act, to avoid retrogression. Prior to the census, Louisiana's Congressional delegation had only one black representative out of eight congressmen. Certainly, one congressman out of seven cannot con- stitute retrogression. Section 5 of the Voting Rights Act does not constitute a compelling governmental interest in this case. Additionally, Section 2 of the Voting Rights Act prohibits a plan that has the effect of diminishing or abridging the voting strength of a protected class. ---------------------------------------- Page Break ---------------------------------------- 20a However, this claim must fall in the face of the Supreme Court's ruling in Thornburg v. Gingles. 3. This Court finds that Section 2 of the Voting Rights Act is not implicated by this plan. Although the Voting Rights Act would permit a second minor- ity district, such a district is not compelled by the Act. b. Remedy Past Discrimination The State advanced, as justification for its racially gerrymandered district, the belief that the creation of a second minority district in Louisiana is mandated to remedy the past discrimination which has existed in Louisiana. This Court struggled with the concept of how to define "past discrimination" in Louisiana. Certainly, the history of Louisiana, as of most states in the deep South with respect to its treatment of blacks, is indelibly imprinted in our memories. This State, having inflicted great atrocities against minorities, has made great strides in remedying past discrimina- tion, being ever vigilant of its current existence in the attitudes of many of its residents today. Louisi- ana, in the sense of its history, will always have a history of past discrimination. However, this Court must determine whether this State has a history of past legal discrimination in the voting laws and pro- cedures which compels it to make reparations and remediation. The Civil Rights Act of 1964 and the Voting Rights Act of 1965 have mandated the elimination of ob- stacles to minority participation at the polls. Since ___________________(footnotes) 3478 U.S. 30, 106 S. Ct. 2752 (1986). ---------------------------------------- Page Break ---------------------------------------- 21a those turbulent times in Louisiana, and through the efforts of many black and white leaders in this State, we have seen the elimination of poll taxes, literacy tests, and violence to reduce or prohibit African- American participation in our elections process. Lou- isiana has minority representation in nearly every level of government, in almost every area of the State. Speaking only in the sense of the voting rights of minorities in Louisiana, this Court finds that there exist no significant obstacles for minorities in this State to participate in the elections process which have not been remedied by the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Accord- ingly, the concept of remedying past discrimination is not a compelling governmental interest in the re- cent history of Louisiana in the area of voting rights. This Court acknowledges the great benefits that are derived by an increase in minority representa- tion in government, not only for those who are repre- sented but also to the process of government itself. Given the opportunity to serve, minorities have shown that they perform admirably. A greater number of African-American leaders in the government process not only provide positive role models for all black citizens, but their efforts in government will insure that the legal obstacles to minority advancement in all areas of life will be eliminated. However, to dis- regard the rights of all citizens of the State of Lou- isiana would violate the Equal Protection Clause of the United States Constitution, and such a plan would do further violence to the ultimate goal of a color- blind system. Although we found that the evidence presented at the hearing did not support the contention that the ---------------------------------------- Page Break ---------------------------------------- 22a Legislature was operating pursuant to a compelling state interest, even if there had been satisfactory evidence at trial that there is a compelling state in- terest in creating a second majority-minority Con- gressional district, the plan embodied by Act 1 was not narrowly tailored to effect that interest. The fact that outside of the Orleans Parish area, the minority black population is relatively dispersed throughout the rest of the State, elicited the question of whether it was even possible to develop a district- ing plan that creates a second majority-minority dis- trict and is narrowly tailored, in the sense that the plan in total does not unduly burden the rights of third parties. The Court Imposed Plan This Court, with the assistance and guidance of our appointed special master, devised a Congressional Districting Plan. This plan was created from a com- puter program which included the demographics of the State of Louisiana. This Court started with the goal of creating seven Congressional districts, re- maining true to the "one man, one vote" require- ment, and the constraints of Shaw and Gingles. After considering every combination available, this Court reached the conclusion that the diffused popu- lation of black voters in Louisiana, outside of Dis- trict 2, makes it impossible to draw a Congressional plan which contains two minority-majority districts and passes constitutional muster. Act 1 clearly does not. Conclusion While this Court finds that the creation of a second minority-majority district in Louisiana is permissive ---------------------------------------- Page Break ---------------------------------------- 23a and advantageous, we do not find it compelling, under the constraints of the Constitution. This Court applauds the Louisiana Legislature in its efforts to create a second minority district; how- ever, such efforts run aground of the Constitution and the dictates of Shaw v. Reno. ---------------------------------------- Page Break ---------------------------------------- 24a APPENDIX B [Filed Jul. 25, 1994] UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA SHREVEPORT DIVISION Civil Action No. CV 92-1522S RAY HAYS, ET AL., PLAINTIFFS versus EDWIN W. EDWARDS, in his official capacity as Governor of the State of Louisiana, ET AL., DEFENDANTS ORDER IT is ORDERED that Plaintiffs' Motion for Judg- ment as a Matter of Law be and it is hereby GRANTED. IT IS FURTHER ORDERED that Act 1 of the Second Special Session of the 1994 Louisiana Legisla- ture (the Act) is unconstitutional, in that it violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, and the redistricting plan embodied in the Act is null and void. ---------------------------------------- Page Break ---------------------------------------- 25a IT IS FURTHER ORDERED that the State of Louisiana is permanently enjoined from holding any elections under the Act. IT IS FURTHER ORDERED that, although we do not invalidate the 1992 congressional elections, the term of office of each member of the United States House of Representatives from Louisiana who repre- sents a district created under the plan in Act 42 of 1992 of the State of Louisiana, and each district cre- ated under such plan, shall expire, ipso facto, at noon on the 3rd day of January, 1995, and such terms of office and such districts shall not be extended or carried over into the next Congress in any manner whatsoever. IT IS FURTHER ORDERED that a congressional redistricting plan for the State of Louisiana is hereby provided, as set forth in Appendix A, on the basis of which all congressional elections for the seven (7) United States Representatives from the State of Louisiana to the One Hundred Fourth Con- gress shall be conducted, with the dates for qualify- ing and for holding such elections to be established by the cognizant officials of the State of Louisiana according to law; and that all subsequent elections of United States Representatives from the State of Louisiana shall be conducted under the plan provided by this court until and unless a congressional district- ing plan enacted by the State of Louisiana according to law is submitted to this court and is determined by it to be constitutionally valid. IT IS FURTHER ORDERED that, as prevailing parties in all phases of this case to date, the Plain- tiffs are entitled to recover all reasonable costs, at- torneys' fees and expenses, including reasonable ex- ---------------------------------------- Page Break ---------------------------------------- 26a pert witness fees, pursuant to 42 U.S.C. 1988, in amounts to be determined by reference to United States Magistrate Judge Roy S. Payne for review and recommendations; provided, however, that such determination shall not prevent this Order from be- coming final immediately upon its being filed. This court reserves the right to issue, and intends to issue, a memorandum opinion consistent with this Order. FOR THE COURT: /s/ Donald E. Walter DONALD E. WALTER District Judge [Judgment Entered 7-26-94] ---------------------------------------- Page Break ---------------------------------------- 27a LOUISIANA CONGRESSIONAL DISTRICTS The State of Louisiana is divided into the following seven Congressional Districts: DISTRICT 1 District 1 is composed of Precincts 3-G, 5-G, 8-G, 9-G, 1O-G, 1-H, 2-H, 3-H, 4-H, 5-H, 6-H, 7-H, 8-H, 9-H, l-K, 2-K, 3-K, 4-K, 5-K, 6-K, 7-K, 8-K, 9-K, 1O-K, 11-K, 12-K, 13-KA, 15-K, 16-K, 17-K, 18-K, 19-K, 20-K, 25-K, 27-K, 28-K, 34-K, 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 105, 106, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 132, 134, 135, 136, 137, 170, 171, 174B, 175, 176, 177, 178, 182, 183, 184, 185, 193, 194A, 195, 210, 211, 225, 226, 227, 228, 229, 230, 231, and 234 of Jefferson Parish; Precincts 3-20, 4-8, 4-9, 4-10, 4-10A, 4-11, 4-12, 4-13, 4-13A, 4-14, 4-14A, 4-15, 4-16, 4-16A, 4-17, 4-17A, 4-18, 4-18A, 4-19, 4-20, 4-20A, 4-21, 4-21A, 4-22, 4-23, 5-12, 5-13, 5-14, 5-15, 5-16, 5-17, 5-18, 5-19, 7-33A, 7-40, 7-41, 7-42, 12-4, 13-1, 14-1, 14-2, 14-3, 14-4, 14-8, 14-9, 14-10, 14-11, 16-2, 17-1, 17-17, 17-18, 17-18A, 17-18B, 17-19, 17-19A, 17-20, and 17-21 of Orleans Parish; St. Tammany Parish; Tangipahoa Parish; and Washington Parish. ---------------------------------------- Page Break ---------------------------------------- 28a DISTRICT 2 District 2 is composed of Precincts l-G, 2-G, 4-G, 6-G, 7-G, 11-G, 13-KB, 14-K, 21-K, 22-K, 23-K, 24-K, 26-K, 29-K, 30-K, 31-K, 32-K, 33-K, l-W, 2-W, 3-W, 4-W, 5-W, 6-W, 7-W, 8-W, 9-W, 104, 107, 115, 131, 133, 138, 150, 151, 152, 153, 154, 155, 156, 157A. 157B, 172, 173, 174A, 179A, 179B, 180, 181, 186, 187, 188, 189, 190, 192, 192, 194B, 196, 197, 198, 212, 213A, 213B, 213C, 214, 215, 232, 233, 235, 236, 237, 246A, and 246B of Jefferson Parish and Precincts 1-1, 1-2, 1-5, 1-6, 1-7, 2-1, 2-2, 2-3, 2-4, 2-5, 2-6, 2-6A, 2-7, 3-1, 3-3, 3-4, 3-5, 3-6, 3-7, 3-8, 3-9, 3-10, 3-12, 3-13, 3-14, 3-15, 3-16, 3-17, 3-18, 3-19, 4-2, 4-3, 4-4, 4-5, 4-6, 4-7, 5-1, 5-2, 5-3, 5-4, 5-5, 5-6, 5-7, 5-8, 5-9, 5-10, 5-11, 6-1, 6-2, 6-4, 6-5, 6-6, 6-7, 6-8, 6-9, 7-1, 7-2, 7-4, 7-4A, 7-5, 7-6, 7-7, 7-8, 7-9, 7-9A, 7-10, 7-11, 7-12, 7-13, 7-14, 7-15, 7-16, 7-17, 7-18, 7-19, 7-20, 7-20A, 7-21, 7-22, 7-23, 7-24, 7-25, 7-25A, 7-26, 7-26A, 7-27, 7-27A, 7-27B, 7-28, 7-28A, 7-29, 7-30, 7-31, 7-32, 7-33, 7-34, 7-35, 7-36, 7-36A, 7-37, 7-37A, 7-38, 7-38A, 7-39, 8-1, 8-2, 8-4, 8-5, 8-6, 8-7, 8-8, 8-9, 8-10, 8-11, 8-12, 8-13, 8-14, 8-15, 8-16, 8-17, 8-18, 8-19, 8-20, 8-21, 8-22, 8-23, 8-24, 8-25, 8-25A, 8-26, 8-26A, 8-27, 8-27A, 8-28, 8-29, 8-30, 9-1, 9-2, 9-3, 9-3A, 9-3B, 9-4, 9-5, 9-5A, 9-6A, 9-6B, 9-6C, 9-6D, 9-6E, 9-6F, 9-7, 9-8, 9-8A, 9-8B, 9-9, 9-10, 9-11, 9-12, 9-13, 9-14, 9-15, 9-16, 9-17, 9-18, 9-19, 9-20, 9-21, 9-22, 9-23, 9-24, 9-25, 9-25A, 9-26, 9-26A, 9-27, 9-28, 9-28A, 9-28B, 9-28C, 9-28D, 9-28E, 9-28F, 9-29, 9-29A, 9-30, 9-30A, 9-31, 9-31A, 9-31B, 9-31C, 9-31D, 9-31E, 9-32, 9-33, 9-33A, 9-34, 9-34A, 9-35, 9-35A, 9-36, 9-36A, 9-36B, 9-36C, 9-37, 9-37A, 9-38, 9-38A, 9-38B, 9-39, 9-39A, 9-39B, 9-40, 9-40A, 9-40B, 9-40C, 9-41, 9-41A, 9-41B, ---------------------------------------- Page Break ---------------------------------------- 29a 9-41C, 9-41D, 9-42, 9-42A, 9-42B, 9-42C, 9-42D, 9-42E, 9-43, 9-43A, 9-43B, 9-43C, 9-43D, 9-43E, 9-43F, 9-43G, 9-43H, 9-431, 9-43J, 9-43K, 9-43L, 9-43M, 9-43N, 9-44, 9-44A, 9-44B, 9-4C, 9-44D, 9-44E, 9-44F, 9-44G, 9-44H, 9-441, 9-44J, 9-44K, 9-44L, 9-44M, 9-44N, 9-440, 9-44P, 9-44Q, 9-45, 9-45A, 10-3, 10-4, 10-5, 10-6, 10-7, 10-8, 10-9, 10-10, 10-11, 10-12, 10-13, 10-14, 11-1, 11-2, 11-3, 11-4, 11-5, 11-6, 11-7, 11-8, 11-9, 11-10, 11-11, 11-12, 11-13, 11-14, 11-15, 11-16, 11-17, 11-18, 11-19, 12-1, 12-2, 12-3, 12-5, 12-6, 12-7, 12-8, 12-9, 12-10, 12-11, 12-12, 12-13, 12-14, 12-15, 12-16, 12-17, 12-18, 12-19, 12-20, 13-2, 13-3, 13-4, 13-5, 13-6, 13-7, 13-8, 13-9, 13-10, 13-11, 13-12, 13-13, 13-14, 13-14A, 13-15, 13-16, 14-5, 14-6, 14-7, 14-12, 14-13, 14-13A, 14-14, 14-15, 14-16, 14-17, 14-18, 14-18A, 14-19, 14-20, 14-21, 14-22, 14-23, 14-24, 14-24A, 14-25, 14-26, 14-26A, 15-1, 15-2, 15-3, 15-4, 15-5, 15-6, 15-7, 15-8, 15-9, 15-10, 15-11, 15-11A, 15-12, 15-12A, 15-13, 15-13A, 15-13B, 15-14, 15-14A, 15-14B, 15-14C, 15-14D, 15-14E, 15-14F, 15-14G, 15-15, 15-15A, 15-15B, 15-16, 15-17, 15-17A, 15-17B, 15-18, 15-18A, 15-18B, 15-18C, 15-18D, 15-18E, 5-18F, 15-19, 15-19A, 15-19B, 15-19C, 16-1, 16-1A, 16-3, 16-4, 16-5, 16-6, 16-7, 16-8, 16-9, 17-2, 17-3, 17-4, 17-5, 17-6, 17-7, 17-8, 17-9, 17-10, 17-11, 17-12, 17-13, 17-13A, 17-14, 17-15, and 17-16 of Orleans Parish. DISTRICT 3 District 3 is composed of Precints 13, 14, 15, 16A & 16B, 27A, 27B, 28, 29, 31, 32, 33, 34, 35A, 35B, 36, 37, 40, 41, and 42 of Ascension Parish; Assumption Parish; Iberia Parish; Precinct 1-GI, l-LA, l-LB, 2-L, 216, 217, 238, 247, 248, 249, and 250 of Jeffer- ---------------------------------------- Page Break ---------------------------------------- 30a son Parish; Lafourche Parish; Plaquemines Parish; St. Bernard Parish; St. Charles Parish; St. James Parish; St. John the Baptist Parish; Precincts 1-1, 1-2, 1-3, 1-4, 1-5, 1-6, 1-7, 2-1 & 2-3, 2-2, 2-4, 3-1, 3-2, 3-3, 3-4, 3-5, 3-6, 3-7, 3-8, 3-9, 4-1, 4-2, 4-3, 4-4, 4-5, 4-6, 5-1, 5-2, 5-3 & 5-4, 6-1, 6-2, 6-3, 6-4, 7-1, 7-2, 7-3, 7-4, 8-1, 8-2, 8-3, 8-4, 9-1, 9-4, and 9-5 of St. Martin Parish; St. Mary Parish; and Terrebonne Parish. DISTRICT 4 District 4 is composed of Precincts 1-1, 1-3, 1-4, 1-6, 1-7, 2-6-O, 3-1, 4-1, 4-2, 4-3, 5-2, 5-2A*, 5-5, and 5-10 of Allen Parish; Beauregard Parish; Bienville Par- ish; Bossier Parish; Caddo Parish; Claiborne Parish; De Soto Parish; Natchitoches Parish; Red River Par- ish; Sabine Parish; Vernon Parish; and Webster Parish. DISTRICT 5 District 5 is composed of Avoyelles Parish; Caldwell Parish; Catahoula Parish; Concordia Parish; East Carroll Parish; Precincts 1-2, 1-13-0, 1-13-1, 4-1-2R, 4-1-3R, 4-1C, 4-2-O, 4-2-1, 4-3, 4-4, 5-1, 5-2-O, 5-2-1, 5-2-2, 5-3, 5-4C, 5-4R, and 5-5 of Evangelize Parish; Franklin Parish; Grant Parish; Jackson Parish; La Salle Parish; Lincoln Parish; Madison Parish; Morehouse Parish; Ouachita Parish; Rapides Parish; Richland Parish; Tensas Parish; Union Parish; West Carroll Parish; and Will Parish. DISTRICT 6 District 6 is composed of Precincts 1, 2A & B, 3, 4A, 4B, 5A, 5B, 6, 7A, 8A & 8B, 9, 10A & 10B, 11A & 11B, 12, 21A & 21B, 22A, 22B, and 23 of Ascension ---------------------------------------- Page Break ---------------------------------------- 31a Parish; East Baton Rouge Parish; East Feliciana Parish; Iberville Parish; Livingston Parish; Pointe Coupee Parish; St. Helena Parish; West Baton Rouge Parish; and West Feliciana Parish. DISTRICT 7 District 7 is composed of Acadia Parish; Precincts 1-2, 1-5, 2-1, 2-2-C, 2-2-O, 2-3, 2-4-C, 2-4-O, 2-5, 2-6-C, 3-2, 5-1, 5-3, 5-3A*, 5-4-C, 5-4-O, 5-4-X* , 5-4-Y*, 5-6, 5-7, 5-8, 5-8A*, 5-9, 5-11, 5-12 and 5-13 of Allen Parish; Calcasieu Parish; Cameron Parish; Precincts 1-1, 1-3, 1-4-OR, 1-4-1R, 1-4C, 1-5-O, 1-5-l, 1-6, 1-7, 1-8-O, 1-8-1, 1-8-2, 1-9-0C, 1-9, 1C, 1-9-2-C, 1-9-3C, 1-9R, 1-10-0, 1-10-1, 1-11, 1-12, 1-14, 1-15, 1-16, 1-17-OR, 1-17-lR, 1-17C, 1-18-OC, 1-18-1C, 1-18R, 1-19, 2-1, 2-2, 2-3, 2-4, 2-5, 3-l-O, 3-l-1, 3-2-O, 3-2-1, 3-2-2, 3-3, 3-4, 3-5, 3-6-O, 3-6-1, 3-6-2, 3-7, 3-8, 4-l-OR, and 4-1-lR of Evangelize Parish; Jefferson Davis Parish; Lafayette Parish; St. Landry Parish; Precincts 9-2, and 9-3 of St. Martin Parish; and Ver- milion Parish. The precincts enumerated herein are the precincts existing on April 17, 1994 established by the respec- tive parish governing authority and used by the Louisiana Legislature in Act 1 of the Second Extraor- dinary Session of 1994. ---------------------------------------- Page Break ---------------------------------------- 32a DB : LA SEN 1994 Congressional District Statistics Total Population Total Ideal % District Number Popu- Popu- District District Name Members lation lation Variance Variance District 1 1 602,842 602,853 -11 0.00% District 2 1 602,877 602,853 24 0.00% District 3 1 602,839 602,853 -14 0.00% District 4 1 602,876 602,853 23 0.00% District 5 s. 602,933 602,853 80 0.01% District 6 1 602,774 602,853 -79 -0.01% District 7 1 602,832 602,853 -21 0.00% PLANWIDE STATISTICS: Range of populations: 602,774 to 602,933 Ratio range: 1.0003 Absolute range: -79 to 80 Absolute overall range: 159 Relative range: -0.01 to 0.01% Relative overall range: 0.03% Absolute mean deviation: 36.00 Relative mean deviation: 0.01% ---------------------------------------- Page Break ---------------------------------------- 33a - 38a [TABLE CHART OMITTED] ---------------------------------------- Page Break ---------------------------------------- 39a APPENDIX C [Filed Dec. 28, 1993] UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA SHREVEPORT DIVISION No. 92-CV-1522 RAY HAYES, ET AL., PLAINTIFFS versus STATE OF LOUISIANA, ET AL., DEFENDANTS Before WIENER, Circuit Judge, SHAW, Chief Dis- trict Judge, and WALTER, District Judge. MEMORANDUM OPINION WIENER, Circuit Judge: Plaintiffs Ray Hayes, et al. (Plaintiffs) challenge the congressional redistricting plan (the Plan) adopted by the Louisiana State Legislature (the Legislature ) when, following the 1990 census, it en- acted Act 42 of 1992 (Act 42). 1. In its present pos- ___________________(footnotes) 1 A technical distinction can be drawn between the terms "apportionment" and "reapportionment," on the one hand, and "districting" and "redistricting" on the other: apportionment and reapportionment involve the alloca- tion [by Congress] of a finite number of representatives ---------------------------------------- Page Break ---------------------------------------- 40a ture, this case considers the constitutionality of the Plan, admittedly designed inter alia to increase the number of black representatives in Louisiana's con- gressional delegation from one out of eight to two out of seven. The Plaintiffs insist that the Plan ac- complishes this result by employing impermissible racial gerrymandering to create a new majority- black voting district, thereby violating the Equal Protection Clause of the United States Constitution. In simplest form, this case poses the question, "Does a state have the right to create a racial ma- jority-minority congressional district by racial gerry- mandering?" In simplest form, the answer-largely supplied by the United States Supreme Court's opin- ion in Shaw v. Reno 2. , rendered during the pendency of this case-is "Yes, but only if the state does it right." Finding that the Plan in general and Louisiana's Congressional District 4 in particular are products of racial gerrymandering and are not narrowly tailored to further any compelling governmental interest, we continue that the Legislature did not "do it right." We hold, therefore, that Plaintiffs' right to equal protection as guaranteed by the U.S. Constitution is ___________________(footnotes) among a fixed number of pre-established areas. District- ing and redistricting . . . refer to the process by which the lines separating legislative districts are drawn [by states]. See Major v. Treen, 574 F. Supp. 325, 328 (E.D. La. 1983) (quoting Backstrom et al., Issues in Gerrymandering: An Exploratory Measure of Partisan Gerrymandering Applied to Minnesota, 62 Min. L. Rev. 1121, 1121 n.1 (1978). For simplicity, however, we use both terms interchangeably. 2 Shaw v. Reno, 508 U.S. -, 113 s. ct. -, 125 L. Ed. 2d 511 (1993). ---------------------------------------- Page Break ---------------------------------------- 41a violated by the Plan. Consequently, we declare Act 42 of 1992 to be unconstitutional and the redistrict- ing plan embodied therein to be null and void; enjoin the State of Louisiana from holding any future con- gressional elections based on the Plan; and, although we do not invalidate the 1992 congressional elections held thereunder, hold that the term of office of each member of the United States House of Representa- tives from Louisiana who represent a district created under the Plan shall expire, ipso facto, at noon on the 3rd day of January, 1995, 3. such terms of office not to be extended or carried over into the next Con- gress in any manner whatsoever. I STATEMENT OF THE CASE The Plan comprises five majority-white districts (Districts 1, 3, 5, 6 & 7) and two majority-black dis- tricts (Districts 2 and 4). 4. District 2 has a minority voting age population of 5670, while District 4 has a minority voting age population of 63%. New Dis- trict 2 covers essentially the same geographic area as did old District 2 in the previous plan: almost the entire population of Orleans Parish and roughly one- third of the population of Jefferson Parish. District 2 is not challenged in the instant lawsuit, nor else- where to our knowledge. Rather, District 4, appear- ing for the first time in Act 42, is the primary focus of this constitutional challenge. Shortly after the enactment of Act 42, the Plain- tiffs filed this suit seeking to have 1) the Plan de- ___________________(footnotes) 3 See U.S. Const. amend. XX, 1. 4 See Table, Appendix A. ---------------------------------------- Page Break ---------------------------------------- 42a clared unlawful, 2 ) the Defendants enjoined from using the Plan in the impending congressional elec- tions, 3) the Legislature ordered to create a new plan that would not segregate state residents into voting districts on the basis of race, and 4) the Defendants preliminarily enjoined "from taking any action in preparation for the primary or general elections for the U.S. House of Representatives . . . . " In their complaint the Plaintiffs-who are black, white, and Asian residents of either District 4 or District 6- allege that the Plan violates Section 3 of the Lousi- ana State Constitution, Section 2 of the Voting Rights Act, and the Fifth, Fourteenth and Fifteenth Amend- ments of the United States Constitution. As required by the Voting Rights Act, the chief judge of the United States Court of Appeals for the Fifth Judicial Circuit appointed the instant panel to hear this case. It was tried on August 26 and 27, 1992 (the Trial). At the conclusion of the Trial, we issued an interlocutory Memorandum Ruling and Or- der (the 1992 Order) in which we denied Plaintiffs' request for an injunction, allowed the 1992 Congres- sional elections to go forward under the Plan, refused to consider Plaintiffs' state and federal constitutional claims, and took Plaintiffs' Voting Rights Act claims under advisement. We also requested post-trial brief- ing on the question whether the Plan dilutes the vot- ing strength of either blacks or whites in contraven- tion of the Voting Rights Act. Being aware of an essentially identical case origi- nating in North Carolina-now known as Shaw v. Reno-which had progressed further than had the in- stant case, we held this one under submission until the results of Shaw became known. On June 29, 1993, the Supreme Court rendered its decision in ---------------------------------------- Page Break ---------------------------------------- 43a Shaw, profoundly affecting this case and similar ones pending in other states. We requested the parties and invited amici curiae to file supplemental briefs, gen- erally discussing the implications of Shaw and spe- cifically addressing whether-in the terminology of Shaw-the Plan was "narrowly tailored to further a compelling government interest." In August 1993, we held two additional days of trial (the Evidentiary Hearing) to assist us in determining whether the Plan is in fact the product of racial gerrymandering, and, if so, whether it should nonetheless be sustained because it is narrowly tailored to further a compel- ling state interest. II PRELIMINARY LEGAL MATTERS A. Standing Early in this case Defendants suggested that the white Plaintiffs intrinsically lack standing to chal- lenge the Plan. The Defendants evidently believe that only historically disadvantaged minorities have stand- ing to attack state laws that separate citizens on the basis of race. But that is not the case. In Shaw, the Supreme Court reaffirmed the im- portant principle "that equal protection analysis is not dependent on the race of those benefited or bur- dened by a particular classification." 5. "The guaran- tees of the Fourteenth Amendment extend to all per- sons. Its language is explicit: `No state shall . . . . deny to any person within its jurisdiction the equal protection of the laws.' The guarantee of equal pro- ___________________(footnotes) 5 Id. at 531 (citing Richmond v. J. A. Croson Co., 488 U.S. 469, 494, 109 S. Ct. 706, 102 L. Ed. 2d 854 (1989) (internal quotations omitted). ---------------------------------------- Page Break ---------------------------------------- 44a tection cannot mean one thing when applied to one individual and something else when applied to a per- son of another color. If both are not accorded the same protection, then it is not equal." 6. White citi- zens thus clearly have standing to challenge redis- tricting plans under the Equal Protection Clause of the Fourteenth Amendment, just as do black citizens, Hispanic citizens, Asian citizens, Native American citizens, and citizens of any other race. We reject out of hand the implication that, although all are equal under the law, "some . . . are more equal than others." 7. B. Survival of Plaintiffs' Equal Protection Claim The Defendants assert that the Plaintiffs' equal protection claim does not conform to the structure of the argument approved by the Court in Shaw and, consequently, that the Plaintiffs fail to state an equal protection claim under Shaw. The Defendants also argue that our 1992 Order, in which we denied Plain- tiffs' state and federal constitutional claims, effec- tively disposed of the Plaintiffs' Equal Protection Clause claim with finality; and that we therefore may only consider the Plaintiffs' claim that the Plan ___________________(footnotes) 6 Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 290-91, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978). Indeed, laws that entail overt racial classifications are subject to strict scrutiny, even when they burden or benefit different races equally. See, e.g., Powers v. Ohio, 499 U.S. -, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991). "[R]acial classifications do not become legitimate on the assumption that all persons suffer them in equal degree." Powers, 113 L. Ed. 2d at 425. 7 George Orwell, Animal Farm 123 (Penguin Books 1972) (1946). ---------------------------------------- Page Break ---------------------------------------- 45a violates the Voting Rights Act. We disagree with both of these assertions. Although Shaw had not yet been decided at the time the Plaintiffs initiated the instant suit, the al- legations in the Plaintiffs' complaint are clearly suf- ficient to make out a cognizable claim of racial gerry- mandering under Shaw. The narrow holding of Shaw is that a citizen states a claim under the Equal Protection Clause by alleging that the reapportion- ment scheme adopted by his state is so irrational on its face, so bizarrely shaped and convoluted, "that it can only be understood as an effort to segregate vot- ers into separate voting districts because of their race . . . . " 8. There is no question that the Plaintiffs make such allegations in their complaint. For example, the Plaintiffs allege that "[t] he adop- tion of Act 42. . . has resulted in the creation of at least two of seven districts which are devoid of any commonality of interest . . . geographical compact- ness, contiguousness [sic], consistency with existing political, societal, governmental or economic districts or jurisdictional boundaries, other than the racial des- ignation of the majority therein." Similarly, the plaintiffs allege that "Act 42 created two amorphous districts which embody a scheme for segregation of voters by race in order to meet a racial quota for representation of the State of Louisiana in the United States House of Representatives." And again, Plain- tiffs allege that "[t] he defendants enacted and intend to implement Act 42 with the intent to create a Con- gressional Plan concentrating voters of a particular ___________________(footnotes) 8 Shaw, 125 L. Ed. 2d at 536 (indicating that irregular shapes may imply impermissible racial gerrymandering). See also id. at 528-29. ---------------------------------------- Page Break ---------------------------------------- 46a race in designated districts . . . . " We find that these statements clearly amount to allegations that the State of Louisiana "adopted a reapportionment scheme so irrational on its face that it can be under- stood only as an effort to segregate voters into sep- arate voting districts because of their race." 9. We conclude that the Plaintiffs have stated an Equal Pro- tection Clause claim essentially identical to the claim alleged by the plaintiffs in Shaw. Moreover, our 1992 Order, denying Plaintiffs' state and federal constitution claims, worked a temporary dismissal of Plaintiffs' equal protection claim, not a final one. It was clearly an interlocutory ruling. In an order dated June 29, 1993 (1993 Order) we requested supplemental briefing to clarify the rele- vance of Shaw to the instant case and to appear at the Evidentiary Hearing to elucidate whether the Plan was "narrowly tailored to further a compelling government interest," as required by the Court in Shaw. Of necessity our 1993 Order modified our 1992 Order and reactivated the Plaintiffs' equal pro- tection claim in light of Shaw. As such a resuscita- tion is specifically contemplated and authorized by Rule 54(b) of the Federal Rules of Civil Procedure, 10. the Plaintiffs' equal protection claim persists and de- mands adjudication by this court. ___________________(footnotes) 9 Shaw, 125 L. Ed. 2d at 536. 10 Rule 54 (b) of the Federal Rules of Civil Procedure reads in pertinent part: "[A]ny order or other form of decision, however designated, which adjudicates fewer than all the claims . . . shall not terminate the action as to any of the claims . . . and the order . . . is subject to revision at any time before the entry of judgment adjudicating all the claims . . . " Fed. R. Civ. P. 54(b). ---------------------------------------- Page Break ---------------------------------------- 47a III FINDINGS OF FACT AND CONCLUSIONS OF LAW As the findings of fact and conclusions of law in this case are inextricably intertwined, we do not present them in separate sections. Such separate pre- sentation would increase the length and redundancy of our discussion. Rather, our language will indi- cate whether we find a particular observation to be a finding of fact or a conclusion of law. To the ex- tent that a finding of fact is also a conclusion of law, we adopt it as both a finding of fact and a conclu- sion of law. To the extent that a conclusion of law is also a finding of fact, we also embrace it as both a conclusion of law and a finding of fact. A. Racial Gerrymandering: General Plaintiffs allege that the Plan is a product of racial gerrymandering. Consequently, as noted above, this case fails squarely within the ambit of Shaw v. Reno. In Shaw, the Court held that plaintiffs state a jus- ticiable claim. under the Equal Protection Clause by alleging that a redistricting scheme is "so irrational on its face that it can be understood only as an effort to segregate voters into separate voting districts be- cause of their race . . . . 11. As Shaw was an appeal of the district court's dismissal of the plaintiff's case for failure to state a claim, however, the Court did not have to resolve that claim; it had only to recog- nize it. Thus, the roadmap sketched by the Court- as helpful as it is-leaves some questions to be an- swered in cases such as this. ___________________(footnotes) 11 Shaw V. Reno, 125 L. Ed. 2d. at 536, ---------------------------------------- Page Break ---------------------------------------- 48a 1. Racial Gerrymandering Defined A legislature creates a racially-gerrymandered dis- tricting plan when it intentionally draws one or more districts along racial lines or otherwise intentionally segregates citizens into voting districts based on their race. l2. Thus, "racial gerrymandering" refers to the intentional, not the accidental, segregation of voters on the basis of race. 13. 2. Racially Gerrymandered Plans are Subject to Strict Scrutiny The bedrock principle underlying the Court's deci- sion in Shaw is that racially gerrymandered redis- tricting plans are subject to the same strict scrutiny that applies to other state legislation classifying citi- ___________________(footnotes) 12 See, e.g., Wright v. Rockefeller, 376 U.S. 52, 66-67, 84 S. Ct. 603, 11 L. Ed. 2d 512 (1964) (in which the Court ex- amined whether the plaintiffs had sustained their burden of proving "that the New York legislature was either moti- vated by racial considerations or in fact drew districts on racial lines"). See also Shaw, 125 L. Ed. 2d. 511 (in which "racially gerrymandering" and "intentional segregation of voters into separate voting districts" are used interchange- ably throughout). 13 For example, if a legislature devises a redistricting plan that separates river districts from mountain districts, and more blacks happen to live along the rivers, and more whites happen to live in the mountains, then the plan is not a product of racial gerrymandering, even though it entails some coin- cidental segregation. In short, de facto or accidental segre- gation is not constitutionally suspect, but state-sponsored in- tentional segregation is, irrespective of the legislature's under- lying motives. ---------------------------------------- Page Break ---------------------------------------- 49a zens on the basis of race. 14. As such, racially gerry- mandered plans violate the Equal Protection Clause of the Fourteenth Amendment unless they are nar- rowly tailored to further a compelling governmental interest. l5. Such plans receive "careful scrutiny under the Equal Protection Clause regardless of the motiva- tions underlying their adoption." l6. This intense scru- tiny is justified by the grave danger that is posed to our constitutional order and national community when a state creates and administers laws based on the race of its citizens. 17. ___________________(footnotes) 14 Shaw v. Reno, 125 L. Ed. 2d 511; accord City of Mobile v, Bolden, 446 U.S. 55, 67, 100 S. Ct. 1490, 64 L. Ed. 2d 47 (1980) (indicating that claims of racial discrimination in the reapportionment context are resolved in the same way as other claims of racial discrimination); Washington v. Davis, 426 U.S. 229, 240, 96 S. Ct. 2040, 48 L. Ed. 2d (1976) (re- ferring to Wright v. Rockefeller, 376 U.S. at 58, and pointing out that every member of the Court believed that plaintiffs stated a claim by alleging that "boundaries were purposefully drawn on racial lines"). In its supplemental brief to this court, the United States (which entered this case as amicus curiae) agrees that racially gerrymandered redistricting plans must. be strictly scrutinized. 15 See Shaw, 125 L. Ed. 2d at 528. 16 Id. at 527. Thus, even if benign or benevolent motives underlie a legislature's decision to racially gerrymander a redistricting plan, that plan is still subject to strict judicial scrutiny. As discussed below, good motives may allow a plan to survive strict scrutiny, if they rise to the level of a com- pelling state interest, and if the plan is narrowly tailored to further such an interest. But such motives-however un- spotted-do not automatically exempt the plan from what amounts to a presumption of unconstitutionality. 17 In Wright v. Rockefeller, ,Justice Douglas discusses the dangers of' racial gerrymandering. Wright v. Rockefeller, ---------------------------------------- Page Break ---------------------------------------- 50a 3. Racial Gerrymandering May be Proved Either Inferentially or Directly We have already noted the narrow holding of Shaw: a plaintiff may state a claim under the Equal Protec- tion Clause by alleging that the reapportionment scheme adopted by his state is so irrational on its face "that it can only be understood as an effort to segregate voters into separate voting districts because of their race . . . . " 18. Shaw primarily deals with the problem of proving racial gerrymandering indirectly or inferentially. Racial gerrymandering-says the Court in Shaw can be inferred when districts are so bizarrely shaped that they presumptively bespeak an impermissible purpose. But racial gerrymandering may-a +-also be proved by direct evidence that a legislature en- acted a districting plan with the specific intent of segregating citizens into voting districts based on their race. If everyone-or nearly everyone-in- volved in the design and passage of a redistricting plan asserts or concedes that design of the plan was driven by race, then racial gerrymandering may be ___________________(footnotes) 376 U.S. 52, 66-67 (Douglas, J., dissenting ("when racial . . . lines are drawn by the State, the multiracial . . . com- munities that our Constitution seeks to weld together as one become separatist; antagonisms that relate to race . . . rather than to political issues are generated; communities seek not the best representative but the best racial . . . partisan."). In Shaw, Justice O'Connor echoes these same concerns. Shaw, 125 L. Ed. 2d. at 529 (Redistricting plans that segregate citizens primarily on the basis of race bear "an uncom- fortable resemblance to political apartheid."). 18 Shaw, 125 L. Ed. 2d at 536; see id. at 528-29 (indicating that irregular shapes may reflect impermissible racial gerry- mandering). ---------------------------------------- Page Break ---------------------------------------- 51a found without resorting to the inferential approach approved by the Court in Shaw. l9. The Court recog- nized in Shaw that "[n] o inquiry into legislative pur- pose is necessary when the racial classification ap- pears on the face of the statute." 20. The same is equally true when virtually unanimous, essentially uncontroverted direct trial evidence establishes racial classification, as it did here. In this case, we find over- whelming evidence-both indirect and direct-that the Plan is a product of racial gerrymandering. 4. Intent Distinguished from Motive In a brief aside, we draw on the familiar crime of homicide as a didactic analogy to clarify the impor- tant distinction between intent and motive for pur- poses of this case. By definition, one who knowingly cocks, aims, and fires a loaded gun at another has the intent to kill or cause great bodily harm. That is the purpose for shooting. But the shooter may have any number of motives for intentionally shooting the victim: to eliminate a romantic rival; to collect in- surance proceeds; to avenge some actual or perceived wrong; to repel aggression; to prevent the victim from perpetrating a crime or misdeed; and on and on. The applicable motive is the goal sought to be accomplished through the intentional killing of the victim. ___________________(footnotes) 19 See id. at 528-29, 536 (regardless of how a racial gerry- mander is created, it should receive strict scrutiny); accord City of Mobile v. Bolden, 446 U.S. 55, 67, 100 S. Ct. 1490, 64 L. Ed. 2d 47 (1980). 20 125 L. Ed. 2d at 525 (citing Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 272, 99 S. Ct. 2282, 60 L. Ed. 2d 870 (1979)), ---------------------------------------- Page Break ---------------------------------------- 52a We belabor the distinction between intent and motive because it provides a more recognizable way of looking at two separate aspects of this case: 1 ) the intent of the Legislature in creating the Plan on the basis of race (racial gerrymandering) ; 2) the motives of the Legislature or of individual or groups of legislators- whether compelling or not-for en- gaging in racial gerrymandering. Whatever the motivations of the Legislature or of the individual legislators who passed the Plan, the evidence over- whelmingly indicates that the specific intent of the Legislature-as an independent, collective organism -was indisputably to enact a plan that included two black and five white majority districts. At the Evidentiary Hearing so much of the testi- mony purporting to discuss the intent of the Legis- lature, or those who sought to influence Louisiana's 1992 redistricting, confounded and confused intent or purpose with motive or goal. More telling (and more candid ) was the testimony at the Trial, a year earlier, concerning the motive for creating a second majority-black congressional district. That testimony differed markedly from its counterpart at the Evi- dentiary Hearing. In both proceedings the testimony on motive was considerably less uniform than was the virtually unanimous testimony regarding the Legis- lature's intent to create a second safe, black majority district. At least by implication, however, four im- mutable elements provided a common point of depar- ture for all witnesses: 1) Louisiana had an unavoid- able legal obligation to reapportion its congressional delegation; 2) reapportionment had to be in strict compliance with the constitutional imperative of one- person, one-vote, meaning that each of Louisiana's seven congressional districts had to contain roughly ---------------------------------------- Page Break ---------------------------------------- 53a 603,000 residents; 3) given its failure to adopt a re- apportionment plan in 1991, the Legislature would have to adopt a plan in its 1992 session that would be `certain to receive immediate preclearance so that the congressional election, scheduled for the fall of that year, could be held; and 4) to obtain timely preclear- ance, I.e., voluntarily and not by court decree, any plan would have to include two safe, black majority districts. 21. ___________________(footnotes) 21 Even though the Legislature put itself under severe time constraints by failing to redistrict in 1991, the United States Department of Justice not a party to this litigation-must be regarded as an active player in this case. As Louisiana is covered by Section 5 of the Voting Rights Act, the Legisla- ture must either (1) have any proposed plan precleaned by the Department of Justice, or (2) seek a judgment from the Unite States District Court for the District of Columbia declaring that the plan "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 . . . . " Voting Rights Act of 1965, 42 U.S.C. 1973 (c). The testimony at the Trial and at the Evidentiary Hearing reflected overwhelmingly that the At- torney General's Office (AGO) had let it be known that pre- clearance would not be forthcoming for any plan that did not include at least two "safe" black districts out of seven. But neither Section 2, nor Section 5 of the Voting Rights Act justifies the ACO's insistence upon two black districts. To challenge a redistricting plan under Section 2 success- fully, plaintiffs who are members of a cognizable racial group must demonstrate that their group is numerous enough and geographically compact enough to be a majority in a district. Growe v. Emison, 507 U.S. -, 113 s. ct. -, 122 L. Ed. 2d 388, 403 (1993) (extending the threshold requirements elab- orated in Thornburg v. Gingles, 478 U.S. 30, 46-47, 106 S. Ct. 2752, 92 L. Ed. 2d 25 (1986), to single member, as well as multimember, districts). Obviously, however, black voters in District 4 do not constitute a geographically compact body as required by Gingles. Neither would any district resembling ---------------------------------------- Page Break ---------------------------------------- 54a B. Shaw v. Reno: Inferential Proof of Racial Gerrymandering Shaw deals primarily with proving racial gerry- mandering inferentially. We proceed to examine the ___________________(footnotes) District 4 be geographically compact. Consequently, the AGO cannot legitimately claim that Section 2 of the Voting Rights [Act] compels the creation of any redistricting plan that con- tains a tortured district like District 4. Unless a second geo- graphically compact black majority district is possible, the State's failure to create one does not violate Section 2. Growe, 122 L. Ed. 2d at 404. This is not to say that Section 2 forbids the creation of such a plan; simply that Section 2 does not require it. Voinovich v. Quilter, 507 U.S. ____, 113 s. ct. ____, 122 L. Ed. 2d 500, 513-14 (1993). Consequently, the AGO cannot rely on Section 2 of the Voting Rights Act to force a state to adopt a plan containing an additional majority- minority district with a geographically dispersed black ma- jority. Additionally, Section 2 of the Voting Rights Act expressly states that "[n]othing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population." Voting Rights Act of 1965, Section 2, 42 U.S.C. 1973. Section 2 refuses to trans- form the individual right to vote into a group right to elect. Thus, Section 2 emphatically does not authorize the AGO to reject plans that fail to "give full effect" to minority voters, or otherwise to create a de facto requirement of proportional representation by rejecting all plans that fail to maximize the concentration of minority voters. The text of Section 2 of the Voting Rights Act expressly declares that proportional representation is not required. Neither can Section 5 of the Voting Rights Act-on the basis of the 1990 Census-justify the AGO's insistence that Louisiana adopt a congressional redistricting plan with two safe, black-majority districts. In Beer v. United States, the Supreme Court stated that "the purpose of Section 5 has al- ways been to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of ---------------------------------------- Page Break ---------------------------------------- 55a indirect or circumstantial evidence of racial gerry- mandering in the instant case. ___________________(footnotes) racial minorities with respect to their effective exercise of the electoral franchise." Beer v. United States, 425 U.S. 130, 141, 96 S. Ct. 1357, 47 L. Ed. 2d 629 (1976) (emphasis added); accord Shaw, 125 L. Ed. 2d at 533. In this case, however. a redistricting Plan for the State of Louisiana that provided for one black majority district would have satisfied the requirement of nonretrogression. As a result of the 1990 Census, Louisiana lost a seat in the United States House of Representatives: previously it had eight seats, now it has seven. Thus, even if the Legislature had adopted a plan with a single black majority district, that plan would have satisfied the Section 5 nonretrogression prin- ciple: whereas before black majority districts comprised one- eight of all districts, under a new plan with one black ma- jority district, such districts would constitute one-seventh of all districts, an increase of nearly two percent. Thus, the Section 5 nonretrogression principle does not, on the instant facts, require Louisiana to adopt a redistricting plan with a second blackmajority district. Any suggestion by the AGO to the contrary was incorrect. In summary, neither Section 2 nor Section 5 of the Voting Rights Act justify the AGO's insistence that Louisiana adopt a plan with two safe, black majority districts. Yet members of the Legislature uniformly believed that they needed to create such a redistricting plan to secure preclearance. The letters sent by the Office of the Assistant Attorney General (AAGO) in response to redistricting plans for the Louisiana-. Senate and the Board Of Elementary and Second Educa- tion (BESE) show how Louisiana legislators got this mis- taken impression. In these letters, the A AGO acknowledged that the plans "appear[ed] to have no retrogressive effect" and met "in large part . . . Section 5 preclearance requirements." Yet the AAGO refused to preclear the plans because-in its ap- parent judgment-they could have been drawn "in a manner that would more effectively provide to black voters an equal opportunity . . . to elect candidates of their choice," there ---------------------------------------- Page Break ---------------------------------------- 56a 1. The Shifting Evidentiary Burden The Court in Shaw apparently intended to estab- lish an evidentiary "minuet" for racial gerrymander- ___________________(footnotes) a euphemism for black candidates. But, again, the Voting Rights Act does not require that a plan be drawn to maximize the efficacy of the black vote, and we perceive the AAGO's insistence upon such a result to be tantamount to an insist- ence upon proportional representation: an insistence that is expressly forbidden by Section 2 of the Voting Rights Act. In one letter the A AGO went so far as to suggest how the plan should be drawn to secure early preclearance by com- bining "significant concentrations of black voters in north- eastern Louisiana and. in the parish bordering the State of Mississippi, both along the river and the state's southern border." Here-in a nutshell-was a blueprint for the highly irregular district known as District 4: a district that runs through the length and breadth of the state, a district that ignores traditional geographical and political boundaries, yet a district that the A AGO inappropriately hinted would have to be created if Louisiana was to secure preclearance. What was the authority for the AAGO's insistence? The answer presents itself: none. when State authorities wrote back, explaining the his- torical, cultural, political, economic, and religious significance of the north-south divide in Louisiana, as a means of explain- ing and defending its proposed plan, the AAGO dismissed the explanation and concluded that lumping black voters to- gether in a district "transcends the distinction between northern and southern parishes." What was the authority for this judgment: again, none ! To reiterate, neither Section 2 nor Section 5 of the Voting Rights Act requires that geo- graphically dispersed black voters be lumped together to maxi- mize the efficacy of their vote. That is nothing more than an AAGO "gloss" on the Voting Rights Act-a gloss unapproved by Congress and unsanctioned by the courts. The Department of Justice did not conclude that Louisiana's concern with preserving its historic parishes was pretextual; it decided that creating black districts trumped traditional redistricting criteria. What was the authority for this policy ---------------------------------------- Page Break ---------------------------------------- 57a ing cases analogous to the one established by Mc- Donnell Douglas v. Green and Texas Department of Community Affairs v. Burdine in the Title VII con- text, 22. After a citizen establishes a cause of action by ___________________(footnotes) decision ? Yet again, none! As the AAGO concluded that the State BESE plan was not retrogressive with respect to the black vote, it necessarily admitted that the plan had no dis- criminatory effect. See Beer V. United States, 47 L. Ed. 2d 629, 639. Thus, the AAGO could legally reject the plan only if it determined-and presumably for non-arbitrary reasons -that the plan reflected discriminatory motives. Georgia v. United States, 411 U.S. 526, 93 S. Ct. 1702, 36 L. Ed. 2d 472 (1973). But the AAGO did not so conclude. Rather, the AAGO arrogated the power to use Section 5 preclearance as a sword to implement forcibly its own re- districting policies, rather than as a shield to prevent lament- able historical abuses. The Attorney General's Office has no authority to withhold preclearance for reasons outside the ambit of the Voting Rights Act. Indeed, because any plan that entails more racial gerrymandering than is absolutely necessary to pass Voting Rights Act muster is potentially unconstitutional, Shaw, 125 L. Ed. 2d at 534, the AGO will risk encouraging unconstitutional conduct if it pressures states to gerrymander their districts to maximize the con- centration of minority voters. 22 McDonnell Douglas v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Texas Dep't of Community Affairs V. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L, Ed. 2d 207 (1981 ). The three-step McDonnell-Douglas-Burdine "minuet" structures the basic allocation of burdens and order of pre- sentation of proof in the Title VII context. Burdine, 450 U.S. at 252-53. This minuet requires (1) the plaintiff to prove-by a preponderance of the evidence-a prima facie case of disparate treatment that contravenes Tile VII of the Civil Rights Act of 1964, (2) the defendant to proffer a legitimate, nondiscriminatory reason for the employee's re- jection, and (3) the plaintiff to demonstrate that the defend- ant's proffered explanation is pretextual. Id. at 253. At the ---------------------------------------- Page Break ---------------------------------------- 58a alleging that the reapportionment scheme adopted by his state is so irrational on its face that it can only be understood as an effort to segregate voters on the basis of race-thereby creating a presumption of un- constitutionality 23. the burden shifts to the state to proffer a legitimate, non-racial explanation for the irrationally shaped districts in its plan. 24. If, per chance, the state should answer, generally denying gerrymandering, and move for summary judgment, the plaintiff presumably would need to support such a presumption with summary judgment evidence, e.g., affidavits and depositions demonstrating legis- lative intent, violation of redistricting principles, or the like. But if the state advances a legitimate, non- racial explanation for the plan's irregularity, then the factfinder must-as always-weigh the evidence on both sides and decide whether the plaintiff has met his burden of demonstrating that the plan's irra- tional shape reflects racial gerrymandering. 25. ___________________(footnotes) end of the day, however, the plaintiff has the burden of prov- ing that a violation of Title VII occurred. See St. Mary's Honor Center v. Hicks, 509 U.S. -, 113 s. Ct. -, 125 L. Ed. 2d 407 (1993). 23 Shaw, 125 L. Ed. 2d at 536; See also id. at 528-29 (indi- cating that irregular shapes may imply impermissible racial gerrymandering). 24 Id. 25 See, e.g., Wright, 376 U.S. 52 (in which the Court held that the plaintiffs had not "sustained their burden of proving that . . . [the plan] . . , segregates eligible voters by race and place of origin in violation of the Equal Protection and Due Process Clauses . . . . "); accord Whitcomb v. Chavis, 403 U.S. 124, 91 S. Ct. 1858, 29 L. Ed. 2d 363 (1971). To clarify this minuet further, if a plaintiff comes into court with a map bearing hideously contorted districts and evidence that ---------------------------------------- Page Break ---------------------------------------- 59a Although the Court in Shaw does not discuss the respective burdens borne by the parties in this shift- ing protocol, Supreme Court precedent clearly indi- cates that plaintiffs have the ultimate burden of prov- ing-by a preponderance of the evidence-that the irregularity of the challenged districts reflects racial gerrymandering. 26. Proof on the merits would likely focus on the pretext of the state's proffered non- discriminatory reasons. Nevertheless, placing the burden of proof on the plaintiffs reflects a basic tenet of equal protection analysis: there can be no violation of the Equal Protection Clause unless those who complain demonstrate that the state has engaged in purposeful discrimination. 27. Thus, in this case, Plaintiffs have the burden of demonstrating by a preponderance of the evidence that the Legislature was "motivated by racial considerations" when it ___________________(footnotes) the state legislature drew those districts on the basis of race, and if the plaintiff complains that those districts lack a non- racial explanation-i.e., cannot be explained or understood without hypothesizing racial gerrymandering-then the plain- tiff has stated a prima facie case under Shaw. If the state then introduces evidence that tends to show that the legisla- ture was actuated by other motives that can explain the bizarre contours of the districts without resorting to race, the state has created a competing inference. The factfinder must then decide, on the basis of all available evidence, who is right. 26 Id. 27 City of Mobile v. Bolden, 446 U.S. at 66, 100 S. Ct. 1490, 64 L. Ed. 2d 47 (1980) (citing Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976)); Plaintiffs also have the burden of proving the invalidity of a reapportion- ment plan under Section 2 of the Voting Rights Act. Voino- vich v. Quilter, 507 U.S. -, 113 s. ct. -, 122 L. Ed. 2d 500, 512 (1993) . ---------------------------------------- Page Break ---------------------------------------- 60a adopted Act 42. 28. We find that the plaintiffs have met that burden-comfortably. 2. Plaintiffs' Cause of Action In addition to stating a cause of action by alleging extreme irregularity of shape, a plaintiff may, under Shaw, strengthen the inference that the state engaged in constitutionally suspect racial gerrymandering by demonstrating the state's disregard of traditional dis- tricting principles. 29. As discussed above in section II B, the Plaintiffs have clearly alleged both that the Plan-particularly District 4-is highly irregular on its face, and that the Plan disregards traditional dis- tricting principles. 30. We therefore conclude that the Plaintiffs established a cause of action essentially identical to that alleged by the plaintiffs in Shaw. It consequently devolved upon the Defendants either to refute the allegations directly or to provide legiti- mate, non-racial explanations for the Plan's irrational shape and its disregard of traditional districting cri- teria. 31. ___________________(footnotes) 28 Wright, 376 U.S. at 55. 29 Shaw, 125 L. Ed. 2d at 528. 30 For example, Plaintiffs allege that " [t]he adoption of Act 42, . . has resulted in the creation of at least two of seven districts which are devoid of any commonality of interest . . . . geographical compactness, contiguousness [sic], consistency with existing political, societal, governmental or economic districts or jurisdictional boundaries, other than the racial designation of the majority therein." See discussion in section II B of this Memorandum Opinion for other examples of Plaintiffs' allegations. 31 Recalling our pedagogic comparison with homicide, when the state attempts to convict a defendant of homicide using ---------------------------------------- Page Break ---------------------------------------- 61a 3. Defendants' Proffered Justifications Apparently recognizing the impossibility of directly refuting high irregularity and violation of traditional districting criteria, the Defendants attempted to jus- tify the Plan. During the entire Trial, not one wit- ness ever suggested that the Legislature's intent in creating District 4 was anything other than to create a second district with a super-majority of black vot- ers by drawing its boundaries along racial lines. In- deed, most of the testimony of the Defendants' wit- nesses concerned how numerically large a black ma- jority was needed to ensure the effectiveness of the Plan, which everyone conceded to be a product of racial gerrymandering. At the Evidentiary Hearing, however, following as it did on the heels of the Supreme Court's decision in Shaw, the Defendants-with the benefit of hindsight -attempted to deny the racial gerrymandering that they so candidly proclaimed and avidly defended a year earlier at the Trial. Specifically, the Defendants now suggest that two non-racial factors played key roles in the creation of the Plan: partisan/incumbent politics and socioeconomic commonalities. As discussed in the following section, we find the Defendant's ex- planations wholly unconvincing and in many respects disingenuous. ___________________(footnotes) circumstantial evidence essentially arguing that the facts are consistent with homicide, the defendant may attempt to show that the evidence is consistent with a far more innocent hypothesis: for example, an accident. The Defendants' op- portunity to provide legitimate, non-racial explanations for the Plan's irrational shape is analogous. ---------------------------------------- Page Break ---------------------------------------- 62a 4. Choosing Between the Competing Inferences Because of the procedural posture of Shaw, the Court did not have to go beyond reversing the district court's grant of the defendants' motion to dismiss. Following a full merits trial here, however, we are obliged to decide whether the Plaintiffs have carried their burden of proving-by a preponderance of the evidence-that the Plan's irregularity and its disre- gard of traditional redistricting principles reflect ra- cial gerrymandering. As we find that the only sensi- ble explanation for the Plan's extreme facial irregu- larity and is flagrant deviation from traditional dis- tricting criteria is that the Legislature intentionally segregated voters into congressional districts based on their race, we conclude that the Plaintiffs have overwhelmingly satisfied their burden of proving ra- cial gerrymandering. a. Plaintiffs' Inferential Evidence 1. The Plan is Highly Irregular The most cursory inspection of the districts estab- lished by Act 42 reveals several of them to be irregu- lar, and District 4 to be highly irregular. 32. Like the fictional swordsman Zorro, when making his signa- ture mark, District 4 slashes a giant but somewhat shaky "Z" across the state, as it cuts a swath through much of Louisiana. 33. It begins north of Shreveport- in the northwestern corner of Louisiana, just east of the Texas border and flush against the Arkansas bor- der-and sweeps east along that border, periodically ___________________(footnotes) 32 See Map, Appendix B. 33 Id. ---------------------------------------- Page Break ---------------------------------------- 63a extending pseudopods southward to engulf small pockets of black voters, all the way to the Mississippi River. The district then turns south and meanders down the west bank of the Mississippi River in a narrow band, gobbling up more and more black vot- ers as it goes. As it nears Baton Rouge, the district juts abruptly east to swallow predominantly black portions of several more parishes. Simultaneously, it hooks in a northwesterly arc, appropriating still more black voters on its way to Alexandria, where it selectively includes only predominantly black residen- tial neighborhoods. Finally, at its southern extremity, the district extends yet another projection-this one westward towards Lafayette-adding still more con- centrations of black residents. On the basis of Dis- trict 4's physiognomy alone, the Plan is thus highly irregular, suggesting strongly that the Legislature engaged in racial gerrymandering. 34. 2. The Plan Violates Traditional Redis- tricting Principles In Shaw, the Court reiterates the notion that states are not constitutionally required to adhere to the traditional redistricting principle of compactness, contiguity, respect for established political subdivi- sions, and commonality of interests. 35. The Court also ___________________(footnotes) 34 See generally Shaw, 125 L. Ed. 2d 511, 35 Shaw, 125 L. Ed. 2d at 528-29 (citing Gaffney v. Cum- mings, 412 U.S. 735, 752, n.18, 93 S. Ct. 2321, 37 L. Ed. 2d 298 (1973) ). The seminal case of Major v. Treen also dis- cusses these traditional redistricting criteria and applies them to the Louisiana context. Major v. Treen, 524 F. Supp. 325 (E.D. La. 1983). ---------------------------------------- Page Break ---------------------------------------- 64a observes that a state's adherence to traditional dis- tricting criteria "may serve to defeat a claim that a district has been gerrymandering on racial lines." 36. Yet a state's disregard of such criteria, emphasizes the Shaw opinion, may be evidence of constitutionally- suspect racial gerrymandering. 37. Indeed, the Court in Shaw refers to a situation "in which a State concentrated a dispersed minority pop- ulation in a single district by disregarding traditional districting principles . . . . " as a circumstance in which racial gerrymandering can be easily inferred, pre- cisely because the state ignored such principles. 38. As a state's decision to disregard traditional redistrict- ing criteria is probative of constitutionally-suspect ra- cial gerrymandering, we closely examine the Plan's adherence (or, more accurately, non-adherence ) to those principles; and we find that, for the most part, the Plan cavalierly disregards them. a. Compactness District 4 snakes narrowly across Louisiana soil from end to end for more than 600 miles. 39. A rec- tangle superimposed on the Z-shaped figure formed by District 4 would overlay two-thirds of the State. Additionally, at it winds along its erratic path, Dis- trict 4 projects myriad diverticulae to encapsulate small sacs of otherwise widely dispersed black voters. ___________________(footnotes) 36 Id. at 529 (citing Kardner v. Daggett, 462 U.S. 725, 755, 103 S. Ct. 2653, 77 L. Ed. 2d 133 (1983). 37 Id. at 528. 38 Id. 39 See Map, Appendix B. ---------------------------------------- Page Break ---------------------------------------- 65a No one could claim that District 4 is compact, at least not with a straight f ace. b. Contiguity District 4 was confected to satisfy the traditional districting criterion of contiguity, but only hypertech- nically and thus cynically. When displayed on a map of the State, the district's boundaries seem several times to narrow to a single point. This impression reflects reality, for at some places along its attenuated path, District 4 is no more than 80 feet wide. Such tokenism mocks the traditional criterion of con- tiguity. 40. c. Respect For Political Subdivisions As one witness explained at the Evidentiary Hear- ing, there is no more fundamental unit of societal or- ganization in the history of Louisiana than the par- ish. 41. Whereas the previous congressional plan di- vided only seven of modern Louisiana's 64 parishes, scattering fractions of the same parish in more than one congressional district, Act 42 splits and scatters 28. District 4 is particularly aggressive in violating the boundaries of these traditional political and gov- ernmental units of the State: of the 28 parishes touched by District 4, only four whole parishes are included; but the district annexes only shards of 24 additional parishes, usually incorporating none but the predominantly black fragments of those shattered ___________________(footnotes) 40 In complementary fashion, District 6 maintains contiguity only by employing gossamer connections at several junctions. 41 A parish is analogous to a county, but it has its roots in, and takes its name from, the ministrations of the Catholic Church in early Louisiana history. ---------------------------------------- Page Break ---------------------------------------- 66a regions. Additionally, for the first time in Louisiana history, with the advent of Act 42 a districting plan violates the boundaries of nearly all major munici- palities in the State. With the exception of Lake Charles, the Plan fragments all major municipalities into more than one congressional district, thereby de- stroying the common representation historically en- joyed by residents of the same municipality. 42. d. Commonality of Interests Within its irregular boundaries, District 4 sub- sumes bits of every religious, ethnic, economic, social, and topographical type found in Louisiana. (i) Religion and Ethnicity District 4 violates the traditional north-south ethno- religious division of the State. Along its circuitous route, this new district combines English-Scotch-Irish, mainline Protestants, traditional rural black Protes- tants, South Louisiana black Catholics, Continental French-Spanish-German Roman Catholics, sui generic Creoles, and thoroughly mixed polyglots, each from an historically discrete and distinctive region of Lou- isiana, as never heretofore so extensively agglom- erated. (ii ) Economic Base Cotton and soybean plantations, centers of petro- chemical production, urban manufacturing complexes, timberlands, saw mills and paper mills, river barge ___________________(footnotes) 42 Disregarding New Orleans, which comprises the majority of District 2, the major municipalities of Shreveport, Baton Rouge, Lafayette, Monroe, Alexandria, and Ruston are all rent asunder in this manner. ---------------------------------------- Page Break ---------------------------------------- 67a depots, and rice and sugarcane fields are strung to- gether to form the eclectic and incoherent industrial base of District 4. These diverse segments of the State economy have little in common. Indeed, their interests more often conflict than harmonize. (iii) Geography and Topography Red clay hills and pinelands, hardwood bottom- lands and forests, alluvial floodlands, coastal plains, marshes, swamps and wetlands-all are present in District 4, which-as noted above-stretches more than half a thousand miles from end to end. What did the Legislature intend when it created District 4 -this non-traditional, little-in-common nun-district" ? The indirect evidence overwhelmingly indicates that the Legislature specifically intended to create a plan with at least two majority black districts. Given the pre-existence of District 2, we find beyond cavil that the Legislature accomplished this by parceling voters into the remaining six districts on the basis of race, b. Defendants' Counter-Proof In contrast. we have been shown no credible evi- dence supporting the defense witnesses' proffered mo- tivations of party and incumbency protection and socioeconomic commonality. Their explanations ring hollow. We find them to be no more than disingen- uous, post hoc rationalizations. In particular, we find that neither partisan nor in- cumbency politics was a significant factor in the core decision intentionally to create a plan containing a second black majority district. At the trial, the De- fendants never suggested that partisan or incumbent politics played a role in the determination to create ---------------------------------------- Page Break ---------------------------------------- 68a District 4. 43. Indeed, Defendants' counsel objected to Plaintiffs' counsel's questions aimed at eliciting testi- mony about the Black Caucus-Republican Caucus al- liance that supported Act 42, arguing that such testi- mony was political and therefore irrelevant to the case. Moreover, even though party and incumbency protection play some role-large or small-in vir- tually everything done in the legislative branches (and executive branches, for that matter) of our con- temporary governments, this universal truism does not negate the compelling inference that Act 42 in general, and District 4 in particular, are products of racial gerrymandering. Additionally, without for a moment granting that incumbency politics played a significant role in the decision to create a second ma- jority black district, we question whether the Defend- ants could prevail in this litigation even if it had. The Defendants seem to believe that they can de- feat a claim of racial gerrymandering under Shaw ___________________(footnotes) 43 At the Evidentiary Hearing, Defendants introduced evi- dence of the role of incumbency, but it proved irrelevant to the issue of intentional segregation of voters by race. Such evidence showed, at most, that incumbency affected only the general location of the gerrymander that is District 4, i.e., the effective efforts of Congressional incumbents in "pushing" the pre-ordained second black majority district generally as far north and east as possible. Thus it follows largely the northern boundary of Louisiana with Arkansas and the east- ern boundary of Louisiana, i.e., the Mississippi River. But, as Louisiana had already lost one of its eight seats in the House of Representatives, creating a game of incumbents' "musical chairs," none should be surprised by the interesting but irrelevant fact that, once the decision to create a second minority-majority district had been made, each incumbent did what he could to keep his traditional geographical base and see that the new district was located anywhere but in his. ---------------------------------------- Page Break ---------------------------------------- 69a if any factor other than race played any cognizable role in the creation of a challenged redistricting plan. Although we need not correct such a misconstruction of Shaw to find racial gerrymandering in this case, we briefly address this legal issue-obiter dictum- in hopes of shedding a little additional light on this difficult area of the law. The Defendants evidently base their belief-that the presence of any non-racial motivating factor will excuse racial gerrymandering-on language found at the end of the Shaw opinion. There the Court indi- cates that a plaintiff states a claim under the Equal Protection Clause by alleging that a reapportionment plan is so irrational on its face "that it can be un- derstood only as an effort to segregate voters . . . . " 44. This emphatically does not mean that if any other factor influenced the legislature the plaintiff is un- able to establish a racial gerrymander. Rather, it means that if the contours and content of a redis- tricting plan can be wholly explained to be the prod- uct of one or more factors other than race, then the defendants have created a competing inference. The court must then weigh the competing inferences- as indeed it usually must-to decide whether the plaintiff has proved his inference by a preponderance of the evidence. 45. Thus, accurately stated, the ques- tion posed by Shaw is whether a redistricting plan can be reasonably conceived as the product of non- racial factors. in this case the Plan cannot. 46. ___________________(footnotes) 44 Shaw, 125 L. Ed. 2d at 536 (emphasis added). 45 Wright v. Rockefeller, 376 U.S. 52, 57, 84 S. Ct. 603, 11 L. Ed. 2d (1964). 46 At the risk of flaying a dead horse, we point out that logic demands that the Defendants' reading of Shaw be re- ---------------------------------------- Page Break ---------------------------------------- 70a No one claims that the contours of District 4 can be wholly and alternatively explained as a product of partisan or incumbency politics. Every single wit- ness who addressed the issue either proclaimed or acknowledged that the creation of a second black ma- jority district was the primary factor-or at least a substantial and important factor-in the creation of the Plan, We agree. There is no way that a rational factfinder-looking at the r-nap and reviewing the credible evidence with care-could conclude that Act 42 can be explained entirely without reference to ra- cial. gerrymandering. ___________________(footnotes) jected. Suppose a state legislature came right out and ad- mitted that it racially gerrymandered districts in a reappor- tionment plan, thereby obviating the plaintiff's need to show racial gerrymandering inferentially. Could the state then say, "but we also drew a few district lines to protect incum- bents, or to follow a river, or to put a state wildlife park in the district of a congressman who likes migratory birds," and thereby defeat plaintiffs claim because race was not the only factor involved in the delineation of districts? Race will never be literally the only factor. So Shaw requires only that race be an important factor. If the plaintiffs evidence shows that the plan cannot be understood without postulating that the legislature was significantly actuated by racial motives, then the plaintiff has made out a case of racial gerryman- dering. The cases of Wright v. Rockefeller and Arlington Heights V. Metropolitan Hous. Dev. Corp. support this interpretation. In Wright every member of the court accepted that the plain- tiffs stated a claim by alleging that the "New York Legisla- ture was either motivated by racial considerations, or in fact drew the districts on racial lines." 376 U.S. at 54. Similarly, the Court in Arlington Heights noted that invidious discrim- inatory intent need not be the legislature's dominant purpose: proof that such discriminatory intent was "a motivating factor" in the legislation is sufficient. 429 U.S. 252, 265, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977). ---------------------------------------- Page Break ---------------------------------------- 71a At the Evidentiary Hearing, Dr. Alan Lichtman, an expert witness for the Defendants, opined that District 4-which appears so violative of traditional redistricting principles-actually possesses socioeco- nomic commonality and coherence. Dr. Lichtman con- tended that District 4 was distinguishable from other districts because its residents were relatively poor, relatively under-educated, and owned fewer tele- phones and automobiles than did the residents of other districts established by the Plan. The Defend- ants offered this evidence to suggest "a rational basis [for District 4] other than race." 47. We do not gain- say the conclusions of this witness, but we disagree that they have significance. Any able statistician who looks at enough statistical character sties (multivariate analysis ) can find some- thing distinctive about any district. In this case Dis- trict 4 was found to be fairly poor, although poverty is not particularly distinctive in any region of Lou- isiana. Had District 4 been a fairly wealthy district, the Defendants' expert could have opined that the citizens of District 4 shared the common interest of wealth. And had District 4 fallen right in the mid- dle, he could have explained that District 4 was dis- tinctive in being the most solidly middle class. But all these observations are irrelevant because we find ___________________(footnotes) 47 The Defendants also offered this evidence to argue (1) that Act 42 served a compelling state interest by enhancing the representation for poor people-especially poor black people and (2) that the Plan adhered to the traditional re- districting principle of "commonality of interests" and thus was narrowly tailored. ---------------------------------------- Page Break ---------------------------------------- 72a them to rise to no level higher than post hoc ration- alization. 48. The defendants admit that the socioeconomic pro- files of the Plan's districts were not actually used by the Legislature: the census data used in Defendants' statistical analyses were not even available to the Legislature when it passed Act 42. More specifically, freshman Louisiana State Senator Tom Greene testi- fied that no socioeconomic data was submitted with the various redistricting plans when they were con- sidered by the Legislature. Thus, the allegedly dis- tinctive socioeconomic profile of District 4 is fac- tually unconvincing, methodologically flawed, irrele- ___________________(footnotes) 48 An additional criticism of Mr. Lichtman's statistical legerdemain is that the socioeconomic characteristics he ana- lyzes are themselves strongly correlated with race, a classic chicken-or-egg fallacy. At this moment in history black people in the South (and generally in America) are-on the aver- age-poorer and less well-educated than their white counter- parts. Moreover, blacks in largely segregated communities are probably poorer-on the average-than blacks in more integrated communities. Consequently, racially gerryman- dered plans, which seek to draw boundaries around various concentrations of black persons, will inevitably tend to con- centrate the poorer, less well-educated blacks. The Defendants' conclusions therefore have a tautological quality: to prove that factors other than race can explain District 4, the Defendants analyze socioeconomic factors that correlate strongly with race, Of course District 4 is relatively poor and relatively uneducated: it was intentionally filled with relatively poor and uneducated minorities. To use sta- tistical parlance, Dr. Lichtman's conclusions are spurious: they tell us nothing that we could not have predicted based on the Legislature's decision to pack District 4 with black voters. For a more scientific discussion of such spurious cor- relations, see Hubert M. Blalock, Jr., Social Statistics 443-48 (McGraw-Hill 1972). ---------------------------------------- Page Break ---------------------------------------- 73a vant, and unquestionably a hindsight rationalization of a plan that everyone understands to have been principally designed to create two majority-black districts. More simply, the socioeconomic profile of District 4 is an effect of District 4's design, not a cause. We see, then, that the Defendants' proffer of pro- tection of incumbent politicians and distinctive socio- economic profiles as alternative explanations for the peculiar contours of the Plan simply do not ring true. Faced with competing inferences, this court-as fact finder-must determine the credibility of witnesses, weigh the evidence, and choose between those infer- ences. 49. Concluding that the facts and inferences overwhelmingly favor the Plaintiffs, we find that the Plan is undeniably a child of racial gerrymander- ing. 50. Defendants must therefore demonstrate that Act 42 is narrowly tailored to satisfy a compelling ___________________(footnotes) 49 Wright v. Rockefeller, 376 U.S. 52, 57, 84 S. Ct. 603, 11 L. Ed. 2d (1964). 50 In finding that racial gerrymandering exists in this case, we feel confident that we are faithfully following the Supreme Court's temper in Shaw. In that case, the Court gives two examples of fact. patterns in which proving racial gerryman- dering "will not be difficult at all." Shaw, 125 L. Ed. 2d at 528. One example is when "a State concentrate [s] a dis- persed minority population in a single district by disregarding traditional districting principles such as compactness, con- tiguity, and respect for subdivisions." Id. Those facts squarely conform to this case. In the instant case, the Louisiana State Legislature created a serpentine belt 600 miles long to en- gulf enough blacks (actually, more than enough) to create a single super-majority district. According to the Court, this case presents a textbook example of racial gerrymander- ing that can be easily proved by application of the Shaw inferential minuet. ---------------------------------------- Page Break ---------------------------------------- 74a state interest, as required by Shaw and other appli- cable Equal Protection Clause cases. 5l. C. Direct Proof of Racial Gerrymandering We need not even consider the kind of indirect or inferential proof approbated in Shaw to reach the same point-a finding of racial gerrymandering. In this case, we also reach that junction when we con- sider the great weight of the direct evidence elicited at both the Trial and the Evidentiary Hearing. 52. Regardless of whether we reach a finding of racial gerrymandering by the inferential approach elabo- rated in Shaw, or by direct testimony and documen- tary evidence, the Defendants have the burden of justifying that gerrymandering. In this case, direct evidence clearly and forcefully demonstrates that the Plan is a product of racial gerrymandering. Virtually every witness who testi- fied at the Trial (all without the benefit of a retro- spective, self-serving view of Shaw) either affirma- tively stated or accepted as gospel that the Plan was drawn with the specific intent of ensuring the crea- tion of a second, safe, black majority congressional district: namely, District 4. The Defendants' wit- nesses either stated or conceded that the districts cre- ated by Act 42 were racially gerrymandered. Indeed, those witnesses, both lay and expert, spent most of their time at the Trial discussing how large the per- centage of registered black voters needed to be in the new majority black district to guarantee the efficacy ___________________(footnotes) 51 Shaw, 125 L. Ed. 2d at 528; see also supra note 13. 52 See Shaw, 125 L. Ed. 2d at 528 (implying that however a racial gerrymander is established, it should receive strict scrutiny). See also supra note 17 and accompanying text. ---------------------------------------- Page Break ---------------------------------------- 75a of their racial gerrymander-an efficacy they viewed as the sine qua non of preclearance. In response to this court's query whether the Legislature had created a racial gerrymander, De- fendants' counsel-Mr. Mongrue-said, "[a]nd [ra- cial gerrymandering]'s exactly what [the Legisla- ture] can do . . . . " Similarly, Mr. Willie Hunter, a black state legislator and a fact witness for the De- fendants, testified that the Legislature's intention "was to create a district where there was an excel- lent possibility of having another black elected . . . , and that to accomplish this they [the legislators] "looked at numbers [of black voters] period." Pro- fessor Engstrom, an expert witness for the defense, stated unabashedly that "race drove . . . [the creation of] . . . the Districts." Not surprisingly, the Plaintiffs' witnesses were at least equally convinced that considerations of race motivated the creation of Act 42. State Representa- tive Adley, a white legislator from Northwest Loui- siana, testified that "the only issue presented to us was a racial issue" and stated that District 4 was created "for the sole purpose of making sure that an additional black district got created regardless of what it looked like and what parishes it ran through " Dr. Gary Stokley agreed that "this plan is [based on] race." At the more recent Evidentiary Hearing, however, the Defendants attempted to recast their arguments in light of Shaw and to gainsay the racial gerry- mandering that they so readily approbated during the pre-Shaw Trial. But even at this latter hearing the witnesses agreed that race was the overarching factor that drove the actual creation of the Plan, and that the Legislature had specifically intended to as- ---------------------------------------- Page Break ---------------------------------------- 76a sort voters into districts based on race. Senator Marc Morial, a black legislator from New Orleans who appeared on behalf of the Defendants, testified that "[i]t was the intent of the Legislature to create . . . . [a] . . . second majority black district." This is perhaps the clearest, most `direct post-Shaw statement I of intent, and the best illustration of the difference I between intent and motive. Similarly, United States Congressman James A. Hayes (D. La) stated that the politics of race "was the major element" that drove the creation of the Fourth District. Dr. Law- rence N. Powell, one of Defendants' expert witnesses, agreed that "the primary determinant" of the shapes of Districts 2 and 4 was race. During four full days of testimony, two in 1992 and two more in 1993, some witnesses stated that race was the only factor, while others said that race was the primary factor. One witness-apparently uncomfortable with saying race was the primary factor-admitted that race was a very important factor. Not one witness, Plaintiffs' or Defendants', testified that Act 42 was not largely a product of racial gerrymandering-not one. Harking back to our homicide analogy, we note that although witnesses at the Evidentary Hearing voiced various altruistic motives-or accused others of various ulterior motives-for intentionally employ- ing racial gerrymandering to create voting districts on the basis of race, 53. everyone agreed that the intent ___________________(footnotes) 53 Among the positive goals thus voiced were promoting racial harmony, increasing racial fairness, eradicating ves- tiges of past de jure segregation, and "obeying the law" in the sense of complying with the Voting Rights Act in a way that would justify preclearance, to name a few. ---------------------------------------- Page Break ---------------------------------------- 77a of the Legislature-analyzed as a whole rather than from the point of view of its constituent members or caucuses-was to create a redistricting plan with a second majority black district. The evidence showed that the Plan passed the Legislature by virtue of an uncommon alliance of legislators: Some who supported the Plan wanted a second super-majority black district to increase the number of black representatives in Louisiana's con- gressional delegation. Other supporters of the Plan perceived various benefits in the correlative whitening of some districts that attends the intentional segrega- tion of black voters into other adjacent districts. 54. But there is absolutely no doubt that the immediate intent of the Legislature as a whole was to enact a plan containing two black majority districts, essen- tially without regard to any other considerations and interests. Viewed in any light, the direct evidence in this case proves the presence of racial gerrymandering. Thus, even in the event that we may have somehow misconstrued the Court's opinion in Shaw, or mis- applied the inferential minuet established therein, the direct evidence that Act 42 was a product. of ra- cial gerrymandering is overwhelming. Two inde- pendent evidentiary bases (inferential and direct) thus support our finding that Act 42 reflects racial gerrymandering. Each is sufficient on its own to subject Act 42 to strict scrutiny, and each is conse- quently sufficient to require the Defendants to demon- ___________________(footnotes) 54 Testimony at the trial revealed that Act 42 was passed by a legislative alliance between the Black and the Republican Caucuses, historically uncommon bedfellows but, according to expert testimony, a phenomenon occurring with increasing frequency across the country. ---------------------------------------- Page Break ---------------------------------------- 78a strate that Act 42 is "narrowly tailored to further a compelling governmental interest," as required by Shaw and other applicable Equal Protection Clause precedents." D. Strict Scrutiny of the Plan Again, the core principle underlying the Supreme Court's decision in Shaw is that racially gerry- mandered redistricting plans are subject to the same strict scrutiny that applies to other state legislation classifying citizens on the basis of race. 56. To survive such scrutiny, racially gerrymandered redistricting plans must be narrowly tailored to further a com- pelling governmental interest. 57. 1. Compelling Governmental Interest Defendants advance four possible compelling state interests to justify their racial gerrymandering: (1) conformity with Section 2 of the Voting Rights Act, (2) conformity with Section 5 of the Voting Rights Act, (3) proportional representation of Loui- siana blacks in Congress, 58. and (4) remedying the ___________________(footnotes) 55 Shaw, 125 L. Ed. 2d at 528. 56 See supra note 13. 57 Shaw, 125 L. Ed. 2d at 528. 58 At the Trial, Legislator Willie Hunter strongly advo- cated a second black majority district for the expressed goal of achieving black proportionality in congress. Without com- menting-one way or another-on proportional representa- tion's viability as a "compelling governmental. interest," we foresee serious constitutional problems in accomplishing that goal through creation of a second black majority district. Evidence adduced here demonstrates that, of Louisiana black ---------------------------------------- Page Break ---------------------------------------- 79a effects of past racial discrimination. Witnesses also made oblique references to various other admirable but nebulous-and often question-begging-motives, like promoting racial harmony and ensuring fairness. As we conclude, however, that Act 42 is not nar- rowly tailored to further these or any other compel- ling state interests, we need not decide here whether any one or more of them-properly clarified-is such an interest. For the sake of judicial economy, then, we do not analyze them in detail. Rather, we assume -without granting-that one or all of them con- stitutes a compelling state interest. 2. Narrowly Tailored By thus assuming-again, without granting-that the Defendants have articulated one or more compel- ling state interests that the Plan might further, we have shifted the focus of our strict scrutiny to the final aspect of Shaw: whether the Plan is narrowly tailored. In our final illustrative comparison with homicide, we note the parallelism between the hypo- thetical criminal defendant's burden-at common law of establishing an affirmative defense-such as justifiable homicide-and the State's burden here of establishing the affirmative justification of a compel- ___________________(footnotes) voting age population outside New Orleans, even the over- loaded 63% black District 4 would produce the election of the [black] candidate of choice of fewer than 407. of those blacks whom the proponents of proportional representation want to be thus represented in Congress. Consequently, the Plan would constitute state action that, in effect, grants voting "proxies" from the black voters residing in Districts 1, 3, 5, 6 and 7 to the black voters of District 4-clearly a disen- franchisement implicating equal protection and possibly due process as well. ---------------------------------------- Page Break ---------------------------------------- 80a ling state interest. 59. But even such affirmative de- fenses contain crucial limiting elements: the require- ment of applying only reasonable force in the self-defense context, and the requirement of narrow tailoring in the compelling state interest context. A homicide defendent, relying for acquittal on self- defense or justifiable homicide, must show not only that he had a reasonable fear of imminent harm from the aggressor/victim, but also that he used no more force than was reasonably necessary under the cir- cumstances. If a single, deterrent gunshot to the aggressor/victim's leg happens to cause death from uncontrollable hemorrhaging, the homicide may well be justified; but if the defendant fires two or three or four additional, immediately-fatal shots into vital areas of that same aggressor/victim's body after he has been neutralized by the first shot in the leg, the defendant is likely to find that the affirmative de- fense is unavailing. ___________________(footnotes) 59 We realize that many states choose to make the absence of justification an element of the actus reus, thereby imposing upon the prosecution the burden of proving that the criminal defendant did not act in self-defense. As the Supreme Court has lately declined to review whether the Due Process Clause requires the burden of persuasion in self-defense cases to be placed on the prosecution, see, e.g., Moran v. Ohio, 469 U.S. 948, 105 S. Ct. 350, 83 L. Ed. 2d 285 (1984) (Brennan, J., dissenting), state legislatures remain free to allocate burdens of proof "by labeling as affirmative defenses" aspects of a case that could alternatively be considered elements of a crime. Patterson v. New York, 432 U.S. 197, 210, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977); see also McElroy v. Holloway, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398, 399-400 (Rehn- quist, J., dissenting). For our purposes, however, such sub- tleties are irrevelant: as noted above, we are merely using classic common law homicide/self-defense as an instructive analogy. ---------------------------------------- Page Break ---------------------------------------- 81a In close parallel, Shaw tells us that, even in retro- gression cases under Section 5, the State does not have carte blanche to engage in racial gerrymander- ing; its reapportionment plan must not go "beyond what [is] reasonably necessary" to further the com- pelling governmental interest. 60. That is the essence of narrow tailoring in the redistricting context: just as a homicide defendant may not use excessive force to stop an aggressor, neither may a state burden the rights and interests of its citizens more than is rea- sonably necessary to further the compelling govern- mental interest advanced by the state. In this case, uncontroverted evidence from both the Trial and the Evidentiary Hearing convinces us that the Plan is not narrowly tailored to satisfy any of the supposedly compelling state interests advanced by the Defendants. 61. We reach that conclusion first because the Plan entails considerably more segrega- tion than is necessary to satisfy the need for a second black majority district-even assuming arguendo that such a second district were itself justified-and second because the Plan excessively burdens a variety of third party interests-dramatically so. In its Shaw opinion, the Supreme Court provides one example to illustrate how to apply the require- ment that a racially gerrymandered plan be narrowly tailored to satisfy one or more compelling state inter- ests: "A reapportionment plan would not be nar- ___________________(footnotes) 60 Shaw, 125 L. Ed. 2d at 534. 61 As noted above, in this section we assume-arguendo- that the State has demonstrated a compelling state interest, although, in fact, we have not so found. Neither could we on the evidence here presented. That is a judgment for the Legislature to make and the courts to review. ---------------------------------------- Page Break ---------------------------------------- 82a rowly tailored to avoiding the goal of retrogression if the state went beyond what was reasonably necessary to avoid retrogression." 62. Thus, if providing a single majority-minority district satisfies the nonretrogres sion requirement imposed by Section 5 of the Voting Rights Act, 63. then a racially gerrymandered redis- tricting plan comprising more than one minority- majority district is not narrowly tailored to satisfy the compelling state interest of comporting with Sec- tion 5. 64. Stated more broadly, as voters have an equal protection right not to be segregated by their state legislatures or local governments into various voting districts on the basis of race, only a plan that segre- gates to no greater extent than is reasonably neces- sary to further a compelling governmental interest can survive constitutional scrutiny. The same can be said for a plan that supersaturates a majority- minority district, while concomitantly depleting ad- jacent majority-majority districts of minority voters. In this ease, we find that the Plan entails more constitutionally suspect segregation than necessary, ___________________(footnotes) 62 Shaw, 125 L. Ed. 2d at 534. 63 Beer v.. United States, 425 U.S. 130, 141 (interpreting Section 5 as prohibiting voting-procedure changes that "lead to a retrogression in the position of racial minorities . . . . "). 64 The Court's example clearly indicates that the State of Louisiana may not justify the Plan, or any other racially gerry- mandered plan with more than one black majority district, by reference to the need to comply with the Section 5 non- retrogression principle. As noted above, because Louisiana lost a seat in the United States House of Representatives, a plan with one black majority district would satisfy the Section 5 nonretrogression requirement given no more dramatic shift in the statewide ratio of white-to-black voters than is demon- strated by a comparison of the 1980 and 1990 census figures. See supra note 21. ---------------------------------------- Page Break ---------------------------------------- 83a and is therefore not narrowly tailored. Continuing to assume arguendo that some state interest had been identified which could justify the creation of a second black-majority district, this Plan would have to be rejected as insufficiently narrowly tailored. It packs more black voters into a District 4 than are reason- ably necessary to give blacks a realistic chance to determine the outcome of elections there, providing that they exercise their right to vote. Also, the boundaries of the district violate traditional district- ing principles to a substantially greater extent than is reasonably necessary. District 4 contains 63% registered black voters, significantly more than are needed to elect represent- atives of their choice. To greater or lesser degrees, all expert witnesses acknowledged-some only reluc- tantly under cross examination-that 63% black voting age population was well in excess of the per- centage needed for reasonable comfort in creating a safe voting-age majority-minority district. For fur- ther confirmation that, this is so we need only ask rhetorically "If 54%, is sufficient in District 2, why must District 4 be supersaturated with 63% black voting age citizens?" No evidence was adduced by the Defendants to demonstrate a substantial differ- ence between the voting patterns in the areas covered respectively by Districts 2 and 4-either in white crossover or black block voting-to rationalize the 54 %-63% disparity in black voting age populations. Although the witnesses at trial disagreed on the exact percentage of net white cross-over votes for black candidates, we find that the evidence supported an average, net white cross-over vote in non-judicial ---------------------------------------- Page Break ---------------------------------------- 84a elections of between 10% and 25 %. 65. The evidence at trial also indicated that minority voter registra- tion is now comparable to white registration. Clearly, District 4 need not contain a black voting age popu- lation of 63% to satisfy the interest of a second district in which black officials can be readily elected. And, although it is not the province of this court in this case to establish the demographic specifications of the State's congressional redistricting plan, we find on the basis of the credible testimony and documen- tary evidence, that in this instance a district with a black voting age population of not more than 55% and probably less-would have been adequate to en- sure that blacks could elect a candidate of their choice, assuming they chose to exercise their fran- chise and assuming the candidate of their choice had more than a modicum of appeal for non-black voters. Additional confirmation that the Plan is not nar- rowly tailored lies in its excessive disregard of tradi- tional redistricting criteria and its derogation from third-party interests. Supreme Court precedent indi- cates that a variety of factors, both relative and ab- solute, are germane to analyzing whether a govern- ment measure is narrowly tailored. These factors include (1) the necessity of the measure, (2) the efficacy of alternative race-neutral measures, (3) the availability of more narrowly tailored (less intru- ___________________(footnotes) 65 In other words, on the average-for non-judicial elections in Louisiana black candidates will gain more votes from white cross-over voters (whites voting for black candidates ) than they will lose from black cross-over voters (blacks voting for white candidates) : thus, there is a positive net white cross-over vote. To put it another way, black voters are- again on the average-more racially coherent/conscious than white voters. ---------------------------------------- Page Break ---------------------------------------- 85a sive ) measures, (4) the flexibility and duration of the measure, and (5) the impact of the measure on the rights of third parties. 66. Relevant Supreme Court jurisprudence thus suggests that in essence-a plan is not narrowly tailored if it adversely affects more interests, if it generally wreaks more havoc, than it reasonably must to accomplish the articulated com- pelling state interest. We find that the Plan thus offends. Whether under a relative or a comparative analy- sis, the evidence adduced at Trial and at the Evi- dentiary Hearing undeniably established that, even in the face of the black population's wide dispersion in Louisiana (outside New Orleans), a second black majority district could have been drawn that would have done substantially less violence to traditional redistricting principles. For example, Mare Morial stated that " [t] here were alternatives which would have created a more compact black district that were not enacted . . . . " Similarly, Congressman Hayes admitted that a more compact plan could have been enacted. Freshman United States Congressman Cleo Fields-the former state senator and incumbent con- gressman from new District 4, who testified for the Defendants-also acknowledged that "it would have been possible to fulfill the desire of a second [black] majority district . . . and pay more attention than this District [District 4] does to both compactness and contiguity." ___________________(footnotes) 66 See, e.g., Richmond v. J. A. Croson Co., 488 U.S. 469, 510-511, 109 S. Ct. 706, 102 L. Ed. 2d 854 (1989); United States v. Paradise, 480 U.S. 149, 1.71, 107 S. Ct. 1053, 94 L. Ed. 2d 203 (1987); Fullilove v. Klutznick, 448 U.S. 448, 510-15.100 S. Ct. 2758, 65 L. Ed. 2d 902 (1980). ---------------------------------------- Page Break ---------------------------------------- 86a Dr. Alan Litchman-one of the Defendants' expert witnesses at the Evidentiary Hearing-likewise testi- fied that, were he to sit down with Dr. Ronald Weber (the expert on the other side) they "could create a [second black majority] district that looked better than this one [district 4] ." And Dr. Weber-the Plaintiffs' expert witness at both the trial and the evidentiary hearing-testified that a plan could be devised that would include a second black majority district, yet still be significantly more compact and comport much more closely with other traditional re- districting principles. The testimony of freshman state Senator Tom Greene at the Evidentiary Hearing was perhaps the most enlightening on this point. He stated that, with the neutral assistance of the Legislature's redistrict- ing computer technician, he (Greene) actually created a plan that evinced greater respect for Louisiana's traditional parish boundaries than the Plan, and still included a second majority-black district. Finally, Mr. Glenn Koepp, who is the Assistant Secretary of the Senate and the technician in charge of reappor- tionment activity in Louisiana since, 1981, testified that computer-supported mathematical modeling pro- grams gave the State the tools to create several plans -including several with a second black district- that would respect traditional redistricting criteria to a much greater- degree than does the Plan. Thus, the great weigh of the credible evidence indicates that the Legislature could have developed and adopted a redistricting plan-even one with a second major- ity black district-that reflected greater respect for traditional redistricting criteria and that was less disruptive to the traditional political, social, eco- nomic, ethnic, geographical, and religious organiza- ---------------------------------------- Page Break ---------------------------------------- 87a tion of the State. In short, substantially less extreme racially gerrymandered plans are readily available; plans without. such obviously overbroad, overarching overkill. In summary, we hold that the Plan is not narrowly tailored, either relatively or absolutely. This is so because it embraces considerably more racial gerry- mandering-and thus more segregation-than is needed to satisfy any advanced state interest, and because the Plan unnecessarily violates a host of his- torically important redistricting principles, thereby adversely affecting countless third party interests. These several and varied interests-some constitu- tionally protected and others merely important-may not be callously sacrificed on the altar of political expediency, particularly when less broadly tailored plans are conceivable. 67. ___________________(footnotes) 67 We offer no opinion as to how much more narrowly tail- ored a plan would have to be to survive strict scrutiny. In- deed, we cannot say whether it is even possible-based on the 1990 Census-to devise a plan that would have two ma- jority-minority districts and still be narrowly tailored vel non. Even a plan that under the circumstances is as narrowly tailored as possible-in a relative sense (i.e., the least invasive and damaging plan available to further a compelling state interest ) -may fail to be sufficiently narrowly tailored-on an absolute basis-to pass constitutional muster. For ex- ample, when the minority population is spread so evenly throughout a state that a majority-minority district cannot be drawn without dramatically impairing the constitutional rights of the citizens of that state, there may simply be no constitutionally permissible way to draw such a district, no matter how defensible the legislature's motives for wishing to do so, or how bona fide its efforts to tailor the plan narrowly. ---------------------------------------- Page Break ---------------------------------------- 88a IV CONCLUSION We find that the Plan in general and Louisiana's Congressional District 4 in particular are the prod- ucts of racial gerrymandering and are not narrowly tailored to further any compelling governmental in- terest. We are therefore constrained to conclude that the Plaintiffs' right to equal protection as guaranteed by the United States Constitution is violated by the Plan. Consequently, we declare Act 42 of 1992 to be unconstitutional and the redistricting plan embodied therein to be null and void; and we enjoin the State of Louisiana from holding any future congressional elections based on the Plan. We do not, however, invalidate the 1992 congressional elections held there- under; but we do hold that the term of office of each member of the United States House of Representa- tives from Louisiana who represents a district cre- ated under the Plan-and each district thus created -shall expire, ipso facto, at noon on the 3rd day of January, 1995, such terms of office and such districts not to be extended or carried over into the next Con- gress in any manner whatsoever. ---------------------------------------- Page Break ---------------------------------------- 89a - 90a [TABLE CHART OMITTED] ---------------------------------------- Page Break ---------------------------------------- 91a Walter, District Judge, concurring: I concur with the result of the majority opinion. However, since my examination of the case differs somewhat analytically, I write separately. This court considered several questions: May a State enact a race-based reapportionment plan? If so, under what circumstances are race-conscious measures allowed ? Finally, how do these require- ments apply to Act 42. I LAW [I] n view of the constitution, in the eye of the law, there is no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no ac- count of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved . . . . The destinies of the two races, in this country, are indissolubly linked together, and the inter- ests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law . . . . The sure guaranty of the peace and security of each race is the clear, distinct, unconditional recognition by our governments, national and state, of every right that inheres in civil free- dom, and of the equality before the law of all citizens of the United States, without regard to race. ---------------------------------------- Page Break ---------------------------------------- 92a Plessy v. Ferguson, 163 U.S. 537, 558, 16 S. Ct. 1138, 1146 (1896) (Harlan, dissenting). A CONSIDERATION OF RACE IN REDISTRICTING LEGISLATION Despite the legislation enacted to promote racial equality, many states remained recalcitrant to the Civil War amendments' mandates. Among the meth- ods used by the states to evade the fifteenth amend- ment were poll taxes, literacy tests, and gerryman- dered 1. districts. Responding to this perversion, Con- gress enacted the Voting Rights Act of 1965 "as a dramatic and severe response to the situation." Shaw v. Reno, ___ U.S.___, 113 S. Ct. 2816, 2823 (1993). Amended in 1982, section 2 of the Voting Rights Act prohibits the dilution of a minority group's voting strength while section 5 mandates pre- clearance of newly created districts for those states that employed disenfranchising schemes in the past. The purpose of the voting rights legislation is to pro- hibit State efforts to abridge or deny minority repre- sentation. To this end, when pre-clearance is sought under section 5, the Department of Justice usually seeks maximization of minority voting strength to ___________________(footnotes) 1 Gerrymander is "[a] name given to the process of dividing state or other territory into the authorized civil or political divisions, but with such a geographical arrangement as to ac- complish an ulterior or unlawful purpose, as for instance, to secure a majority for a given political party in districts where the result would be otherwise if they were divided according to obvious natural lines." Black's Law Dictionary (5th Ed.) . ---------------------------------------- Page Break ---------------------------------------- 93a promote minority representation. 2. Since legislators are thus obligated to consider racial factors when re- districting, a delicate balance arises between promo- tion of minority suffrage and the color-bland stric- tures of equal protection. B EQUAL PROTECTION "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const., Amdt. 14 1. Interpreting this clause nearly a century ago, the Supreme Court held in Plessy v. Ferguson, 163 U.S. 537, 558, 16 S. Ct. 1138, 1146 (1896 ) that the separate but equal doctrine com- ported fully with the Fourteenth Amendment. Id. at 548. "The majority [in Plessy] held that persons could be legally classified and treated in such a man- ner because of their race when the classifying law was a reasonable exercise of the police power. This meant that such laws must be reasonable, good faith attempts to promote the public good and not be de- signed to oppress a particular class." John E. Nowak, Ronald D. Rotunda, Constitutional Law, 618 (1991 ). As the Court itself stated: ___________________(footnotes) 2 It is my opinion that Shaw v. Reno did not fully address the constitutional or statutory authority behind Department of Justice pre-clearance requirements that arguably go beyond the Voting Rights Act. Thus, the Supreme Court may very well hold the Department of Justice's reliance on minimum "safe" percentages unconstitutional. I do not reach that ques- tion today but am troubled by the effect that these demands are having upon states seeking administrative pre-clearance rather than a declaratory judgment from the District Court of the District of Columbia. ---------------------------------------- Page Break ---------------------------------------- 94a [W] e think the enforced separation of the races, as applied to the internal commerce of the state, neither abridges the privileges or immunities of the colored man, deprives him of his property without due process of law, nor denies him the equal protection of the laws, within the meaning of the fourteenth amendment. Plessy, 163 U.S. at 548, 16 S. Ct. at 1142. Fifty-eight years later, Plessy's flawed concept of equal protection was rejected. Although Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S. Ct. 686 (1954 ) did not expressly overrule Plessy outside the realm of education, that case heralded the demise of separate but equal treatment of the races by the states. Over the past four decades, the Supreme Court has confronted the consideration of race in State and federal legislation and has fashioned spe- cific guidelines for testing the constitutionality of such considerations. The central purpose of the Equal Protection Clause "is to prevent the States from purposefully discrim- inating between individuals on the basis of race." Shaw v. Reno, 113 S. Ct. at 2824. "Classifications based on race carry a danger of stigmatic harm. Unless they are strictly reserved for remedial set- tings, they may in fact promote notions of racial inferiority and lead to politics of racial hostility." City of Richmond v. J.A. Croson Company, 488 U.S. 469, 493, 109 S. Ct. 706, 722 (1989). Accordingly, the Court has "held that the Fourteenth Amendment requires state legislation that expressly distinguishes among citizens because of their race to be narrowly tailored to further a compelling governmental inter- est." Shaw, 113 S. Ct. at 2825. This test is known ---------------------------------------- Page Break ---------------------------------------- 95a as strict or heightened scrutiny and is justified be- cause: [a]bsent searching judicial inquiry into the jus- tification for such race-based measures, there is simply no way of determining what classifica- tions are `benign' or `remedial' and what classi- fications are in fact motivated by illegitimate notions of racial inferiority or simple racial poli- tics. Indeed, the purpose of strict scrutiny is to "smoke out" illegitimate uses of race by assur- ing that the legislative body is pursuing a goal important enough to warrant use of a highly sus- pect tool. The test also ensures that the means chosen "fit" this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prej- udice or stereotype. Croson, 488 U.S. at 493, 109 S. Ct. at 721. These equal protection principles apply to statutes that "al- though race-neutral, are, on their face, `unexplain- able on grounds other than race,'" and classifications that are ostensibly neutral but are an obvious pretext for racial discrimination. Shaw, 113 S, Ct. at 2825 (citing Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266, 97 S. Ct. 555, 564, 50 L. Ed.2d 450 (1977) ; Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886)). Under current equal protection doctrine, "race- conscious state decisionmaking is [not] impermissible in all circumstances." Shaw, 113 S. Ct. at 2824 (em- phasis in original). If State legislation contains ex- plicit racial classifications, if it is inexplicable on grounds other than race, or if it contains race-neutral classifications that serve as mere pretext for racial ---------------------------------------- Page Break ---------------------------------------- 96a discrimination, then courts are bound to apply the strict scrutiny regime. The classification must be justified by a compelling state interest, and then be narrowly tailored to fit that interest in order to sur- vive constitutional scrutiny. C RACIAL GERRYMANDERING UNDER EQUAL PROTECTION Redistricting legislation is almost always race- neutral on its face. Before Shaw, the Supreme Court had held that only two types of state voting practices could give rise to a constitutional claim. The first involves direct and outright deprivation of the right to vote, for example by means of a poll tax or literacy test . . . The second type of un- constitutional practice is that which affects the political strength of various groups in violation of the Equal Protection Clause. As for this lat- ter category, [the Court] insisted that members of the political or racial group demonstrate that the challenged action have the intent and effect of unduly diminishing their influence on the political process. Shaw, 113 S. Ct. at 2834 (White, J. dissenting). The latter category, known as "dilution," arises when voters are not deprived of the right to vote, but, through methods such as "cracking," "stacking," and "packing," certain groups are denied an effective vote. See, United Jewish Organization-s of Williams- burg, Inc. v. Carey, 430 U.S. 144, 97 S. Ct. 996, 51 L. Ed.2d 229 ( 1977) ( "UJO" ) ; Voinovich v. Quilter, ---------------------------------------- Page Break ---------------------------------------- 97a 507 Us. -, 113 S. Ct. 1149, 122 L. Ed.2d 500 (1993). Acknowledging UJO and its progeny, Shaw went further, holding that "district lines obviously drawn for the purpose of separating voters by race require careful scrutiny under the Equal Protection Clause regardless of the motivations underlying their adoption. " Id. at 2826. Supporting this holding is the now famous case of Gomillion v. Lightfoot, 346 U.S. 339, 81 S. Ct. 125, 5 L. Ed.2d 110 (1960) in which the Alabama legislature redefined the boundaries of Tuskegee, es- sentially excluding all but a few black citizens from the district. The result was "a strangely irregular twenty-eight-sided figure." Id., at 341. The Court found the scheme repugnant to the Fifteenth Amend- ment, holding: . . . Act 140 was not an ordinary geographic re- districting measure even within familiar abuses of gerrymandering. If these allegations upon a trial remain uncontradicted or unqualified, the conclusion would be irresistible, tantamount for all practical purpose to a mathematical demon- stration, that the legislation is soley concerned with segregating white and colored voters . . . . It is difficult to appreciate what stands in the way of adjudging a statute having this inevita- ble effect invalid in light of the principles by which this Court must judge, and uniformly has judged, statutes that, howsoever speciously de- fined, obviously discriminate against colored citizens. Id. at 341, 342. Therefore, racial gerrymandering, or legislation that manipulates district lines to achieve a predetermined racial result is subject to strict scrutiny. ---------------------------------------- Page Break ---------------------------------------- 98a D PROVING A RACIAL GERRYMANDER "Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protec- tion Clause." Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265, 97 S. Ct. 555, 563. Such invidious discriminatory intent or purpose need not be the legislature's dominant or primary consideration. Rather, proof that invidious discriminatory purpose was a motivating factor in the legislation will suffice. Id. Because improper racial classifications rarely appear on the face of legislation, the Supreme Court has identified sub- jects of proper inquiry in determining whether racially discriminatory intent existed. For example, legislation that "bears more heavily on one race than another" may indicate discrimination, Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040 (1976), as will historical patterns, Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 267, 97 S. Ct. 555, 564 (1977), legislative history, Id., irra- tionality pointing to nothing but racial classification, Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064 (1886). and direct evidence adduced, as in this case, before a three judge panel. Shaw stands for the proposition that bizarre reapportionment schemes such as that challenged in North Carolina and Act 42 fall into the Yick Wo category and may, in and of themselves, be evidence of invidious discrimination. Of course, these indicators may be rebutted by evidence of wholly legitimate purposes. "The district lines may be drawn, for example, to provide for com- pact districts of contiguous territory, or to maintain the integrity of political subdivisions." Shaw, 113 ---------------------------------------- Page Break ---------------------------------------- 99a S. Ct. at 2826. When such legitimate purposes are disclosed and accepted by the court, heightened scru- tiny is inappropriate. However, if the grounds as- serted are an obvious pretext for racial discrimina- tion or are simply post hoe arguments contrived to shield the segregation from judicial inquiry, the court must pursue the strict scrutiny regime. E STRICT SCRUTINY: WHEN IS A STATE INTEREST COMPELLING AND WHAT DETERMINES NARROW TAILORING? 1 COMPELLING STATE INTEREST Few interests will be deemed "compelling" enough to justify State classifications according to race. The Supreme Court has given little indication as to what satisfies this portion of the strict scrutiny regime. However, the Court has accepted the correction of past governmental and private sector discrimination, Richmond v. J.A. Croson, 488 U.S. 469, 109 S. Ct. 706, 102 L. Ed. 854 (1989), ethnic and racial diversi- fication in the faculty and student bodies of state operated universities and professional schools, see Regents Of the University of California v. Bakke, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed.2d 750 ( 1978), and has suggested that States have a "very strong interest in complying with federal antidiscrimination laws that are constitutionally valid as interpreted and applied." Shaw, 1.13 S. Ct. at 2830. Despite the lan- guage in Bakke, the Court seems unwilling to allow ---------------------------------------- Page Break ---------------------------------------- 100a any race-based measures outside a remedial setting 3. Croson, 488 U.S. at 493, 109 S. Ct. at 721. Although the States and their subdivisions may take action to remedy discrimination, "they must identify that discrimination, public or private, with some specificity before they may use race-conscious relief." Croson, 488 U.S. at 503, 109 S. Ct. at 727. That identification occurs when "judicial, legislative, or administrative findings of constitutional or statu- tory violations" are made. Bakke, 438 U.S. at 308- 309, 98 S. Ct. at 2757-2758. Otherwise, "the dream of a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achieve- ment would be lost in a mosaic of shifting prefer- ences based on inherently unmeasurable claims of past wrongs." Croson, 488 U.S. at 504, 109 S. Ct. at 728. 2 NARROWLY TAILORED Once an interest has been properly identified and accepted as compelling, the court must examine the classification in order to determine whether it is narrowly tailored to "fit" the interest involved. In deciding whether race-conscious remedies are appro- priate, the court may consider several factors. Among these are the necessity for the relief and the efficacy of alternative remedies; the flexibility and duration of the relief; and the impact of the relief on the rights of third parties. U.S. v. Paradise, 480 U.S. 149, 169, 107 S. Ct. 1053, 1066, 94 L. Ed.2d 203 ___________________(footnotes) 3 Compliance with federal law under the Voting Rights Act may be viewed as remedial and, therefore a state interest and perhaps compelling. ---------------------------------------- Page Break ---------------------------------------- 10la (1987). However, the relief must not go beyond what is reasonably necessary to accomplish the compelling interests. See, Shaw, 113 S. Ct. at 2831. Therefore, this court must first determine how the districts were drawn, that is, whether they were drawn along race lines or not. To do so, this Court will examine the factors listed in section D above. If the State counters with a legitimate non-racial ex- planation for Act 42's configuration, this Court will defer to the Legislature and refrain from reviewing the merits of their decisions. However, if a motivat- ing factor behind the reapportionment scheme was racial, strict scrutiny applies. Then we turn to whether the State had a compelling interest support- ing racial discrimination. We will expect the State to provide specific evidence warranting its action and require a nexus between the action and the inter- est.. Finally, we will examine whether Act 42 itself was narrowly tailored to fit the compelling interest in. light of the factors discussed above. II ANALYSIS A ACT 42 IS A RACIAL GERRYMANDER This court found the evidence to indicate over- whelmingly that the intent of legislature was to di- vide Louisiana's congressional districts along racial lines. The inferential evidence and the direct testi- mony of legislators for both the plaintiffs and the State allow no other conclusion. It is true that the State attempted to demonstrate non-racial explana- ---------------------------------------- Page Break ---------------------------------------- 102a tions for the highly irregular districts. In light of the testimony at both the trial and evidentiary hear- ing, these suggestions are but post hoc rationali- zations. The evidence before the Court demonstrated that the State Legislature acted as it did to gain pre- clearance and contrived the interest of correcting past discrimination for the purpose of the evidentiary hearing alone. Finally, as the majority notes above, most witnesses readily admitted to the availability of other plans less offensive to traditional districting patterns and or smaller racial discrepancies. B ACT 42 IS SUBJECT TO STRICT SCRUTINY As our factual findings denote, Act 42 is a clear example of a racial gerrymander. Specifically, Dis- trict 4 permits no conclusion other than classic segre- gation Both the facial irregularity without plausible non-racial explanation 4. and the explicit testimony ___________________(footnotes) 4 The defense elicited testimony that District 4 actually represents certain commonalities of interest. Essentially, the State suggested that certain interests are predominantly shared by Blacks and therefore District 4 has a sufficient non- racial justification. This is exactly the type State action that our color-blind Constitution prohibits. As the Shaw Court held: "A reapportionment plan that includes in one district in- dividuals who belong to the same race, but who are other- wise widely separated by geographical and political boun- daries, and who may have little in common but the color of their skin, bears an uncomfortable resemblance to political apartheid. It reinforces the perception that mem- bers of the same racial group-regardless of their age, education, economic status, or the community in which ---------------------------------------- Page Break ---------------------------------------- 103a of the legislators require this finding. Since redis- tricting along racial lines was a motivating factor, Act 42 is subject to strict scrutiny. This panel must now determine whether Act 42 was justified by a compelling governmental interest and that the means chosen by the State to effectuate its purpose were narrowly tailored to the achievement of that goal. 1 COMPELLING INTERESTS The State advanced two main compelling interests behind the racial gerrymander. I discussed the find- ings required by Croson, Wygant, and Bakke when a State attempts to rely on prior discrimination as ___________________(footnotes) they live-think alike, share the same political interests, and will prefer the same candidates at the polls. We have rejected such perceptions elsewhere as impermissible ra- cial stereotypes. By perpetuating such notions, a racial gerrymander may exacerbate the very patterns of racial bloc voting that majority-minority districting is some- times said to counteract. The message that such districting sends to elected rep- resentatives is equally pernicious. When a district is ob- viously created solely to effectuate the perceived common interests of one racial group, elected officials are more likely to believe that their primary obligation is to repre- sent only the members of that group, rather than their constituency as a whole. This is altogether antithetical to our system of representative democracy." Id. at 2827. I agree with what I perceive to be Justice O'Connor's views. If a multi-cultural State in which voters shared interests not according to the color of their skin but the content of their lives and experiences was the Legislature's goal, the tamper- ing would have resulted in more evenly split districts. The races would then have to reconcile their differences with one another and move forward on common ground. ---------------------------------------- Page Break ---------------------------------------- 104a a foundation for remedial action. I see no reason why the same analysis should not apply when a state argues that compliance with federal anti-discrimina- tion law mandated the jurisdiction's race-based ac- tion. In order to rely on "remedying past discrim- ination" and "obeying the law," a State must "dem- onstrate a strong basis in evidence for its conclusion that remedial action was necessary." Croson, 488 U.S. at 510, 109 S. Ct. at 730. I examine each pur- ported interest in turn to see if the State has met this burden. a Past or Present Discrimination "Societal discrimination, without more, is too amor- phous a basis for imposing a racially classified rem- edy." Wygant, 476 U.S. 276, 106 S. Ct. 1848. The Supreme Court has firmly held that States must have "convincing evidence that remedial action is war- ranted." Id. While there is no doubt that Louisiana has a sorry history of race relations, the defense did not provide evidence that the Legislature had before it the necessary factual predicate warranting a volun- tary affirmative action redistricting plan. In fact, the evidence supports the conclusion that the Legis- lature did not create Act 42 for the purpose of remedying past discrimination at all. Thus, if the State does intend to redistrict along racial lines with the goal of correcting past electoral discrimination, it must demonstrate what evidence warrants a finding of discrimination and how a specific plan relates to the elimination thereof. ---------------------------------------- Page Break ---------------------------------------- 105a b Pre-clearance from the Department of Justice The State legislators acted under the assumption that failure to create a second majority-minority dis- trict would result in the denial of pre-clearance by the Department of Justice. This assumption seems to be founded upon the rejection of two non-congres- sional plans by the Department of Justice. However, both letters from the Civil Rights Division acknowl- edged that the plans satisfied Section 5 pre-clearance requirements but rejected the plans because they could have been drawn more effectively. The Shaw opinion held that a state interest in complying with federal law is compelling only as constitutionally in- terpreted and applied. Additionally, by pointing out the distinction between what the law requires and what it permits, the Court stated that even valid plans under the Voting Rights Act must comport with the Fourteenth Amendment. Because the Voting Rights requirements do not give covered jurisdictions carte blanche to engage in racial gerrymandering in the name of nonretrogression, the question for this court is whether the State of Louisiana had a strong basis in evidence for the belief that failure to create a second majority-minority district would violate Section 2 or 5 of the Voting Rights Act. (1) Section 2 of the Voting Rights Act Section 2 of the Voting Rights Act of 1965, 42 U.S.C. 19 1973 was enacted to accomplish the guaran- tees of the Fifteenth Amendment. Specifically, Sec- tion 2(a) prohibits the imposition of any electoral ---------------------------------------- Page Break ---------------------------------------- 106a practice or procedure that "results in a denial or abridgement of the right of any citizen . . . to vote on account of race or color." This section therefore rejects State actions that, "interacting with social and historical conditions, impair the ability of a pro- tected class to elect its candidate of choice on an equal basis with other voters." Voinovich v. Quilter, - U.S. -, 113 S. Ct. 1149, 1155 (1993). If, under the totality of the circumstances, a State's apportionment scheme has the effect of diminishing or abridging the voting strength of a protected class, a Section 2 violation has occurred. Id. These "dilu- tion" claims involve three threshold conditions. First, they must show that the minority group 'is sufficiently large and geographically compact to constitute a majority in a single member dis- trict.' Second, they must prove that the minority group " 'is politically cohesive.' " Third, the plaintiffs must establish 'that the white majority votes sufficiently as a bloc to enable it . . . . usually to defeat the minority's preferred candi- date.' Id. at 1157 (quoting Gingles, 507 U.S. 30, 50-51, 106 S. Ct. 2752, 2766, 92 L. Ed.2d 25 (1986)). District 4 is evidence alone that the minority population large enough to constitute a majority in a single member district is not geographically compact. Without sat- isfaction of this initial Gingles condition, it is impos- sible to find that the State had a rational basis to believe that failure to create a second majority- minority district would violate Section 2. Reliance on possibly invalid applications of the Voting Rights Act by the Department of Justice cannot create a compelling state interest. If so, the Department of ---------------------------------------- Page Break ---------------------------------------- 107a Justice and various States could sidestep the holdings of Croson, Gingles, and Shaw with ease. (2) Section 5 of the Voting Rights Act Similar findings are required under the "nonretro- gression" analysis of Section 5. If the State had no basis to believe that one majority-minority district out of seven districts would constitute retrogression, then reliance on Section 5 as a compelling interest is misplaced. "Under [the nonretrogression] prin- ciple, a proposed voting change cannot be pre-cleared if it will lead to a retrogression in the position of racial minorities with respect to their effective exer- cise of the electoral franchise." Shaw, 113 S. Ct. at 2830 (quoting Beer v. U.S., 425 U.S. 130, 141, 96 S. Ct. 1357, 1364, 47 L. Ed.2d 629 (1976)). On its face, creating one district out of seven when the previous ratio was one district out of eight is not retrogressive. Once again, the legislature appears to have founded their belief that one district out of seven is retrogressive completely on the Department of Justice's previous unrelated rulings and the as- sumption that a gerrymandered second district was a requisite to pre-clearance. Without restating the points made above, I find such an assumption, with- out additional evidence, uncompelling. In summary, I find post hoc reliance on past dis- crimination and warrantless assertions that the Vot- ing Rights Act mandated a second district, unper- suasive. This is not to say that the State cannot rely on those interests to justify future affirmative action. Rather, I find that the basis forwarded by the State ---------------------------------------- Page Break ---------------------------------------- 108a to claim these interests as compelling is so slim that they reek of the pretextual and the contrived. 2 NARROWLY TAILORED Even if this panel were to overlook the dearth of Croson-type findings in this case, Act 42 cannot be termed narrowly tailored to fit the interests above. Since I concur in the majority opinion, I find no rea- son to reiterate their conclusions that Act 42 is not narrowly tailored to fit any compelling interest. III CONCLUSION I am gravely disturbed by the history of racial discrimination in this country and State, but I be- lieve that segregation of voters by race will achieve nothing but more discrimination, more separation, more animosity and would push Justice Harlan's and Dr. King's dream for this nation ever further into the future. One hundred and thirty years ago this nation endured a bloody civil war to ensure freedom and equality for all. That pledge, so dearly bought, remains elusive, but the concept that people defined only by race should receive separate representation in the legislative bodies of our government mocks the goals for which so many have suffered and died. In- deed, in my opinion, it breathes life into the discred- ited doctrine announced by the majority in Plessy, forty years after the Supreme Court administered what should have been its mortal wound. The districts created under Act 42 are the crea- tures of a racial gerrymander. The circumstantial ---------------------------------------- Page Break ---------------------------------------- 109a and direct evidence supported no other conclusion. Therefore, strict scrutiny applies to Act 42. Under that regime, the justifications offered by the State for its race-based measures were not accompanied by the requisite factual predicate. Additionally, the measures taken were not narrowly tailored to fit the interests, however baseless, advanced by the State. ---------------------------------------- Page Break ---------------------------------------- 110a - 114a [TABLE /CHART OMITTED] ---------------------------------------- Page Break ---------------------------------------- 115a APPENDIX E [Filed Jul. 26, 1994] IN THE UNITED STATES DISTRICT COURT FOR WESTERN DISTRICT OF LOUISIANA SHREVEPORT DIVISION Civil Action No. CV 92-1522S RAY HAYS, EDWARD L. ADAMS, SUSAN SHAW SINGLETON, AND GARY STOKLEY, PLAINTIFFS v. EDWIN EDWARDS, in his official Capacity as Governor of the State of Louisiana; SAMUEL B. NUNEZ, in his official capacity as President of the Louisiana State Senate; JOHN A. ALARIO, in his official ca- pacity as Speaker of the House for the State of Louisiana; W. Fox McKeithen, in his official ca- pacity as Secretary of State for the State of Lou- isiana; JERRY FOWLER, in his official capacity as Commissioner of Elections for the State of Louisi- ana; and certain UNIDENTIFIED STATE LEGISLA- TORS, DEFENDANTS UNITED STATES OF AMERICA, DEFENDANT-INTERVENOR NOTICE OF APPEAL Notice is hereby given that the defendant- intervenor, United States, hereby appeals to the ---------------------------------------- Page Break ---------------------------------------- 116a United States Supreme Court from the Judgment of the United States District Court, Western District of Louisiana (three-judge court ), entered on July 25, 1994. This appeal is taken pursuant to 28 U.S.C. 1253. Respectfully submitted, DEVAL PATRICK Assistant Attorney General /s/ Richard Jerome STEVEN H. ROSENBAUM REBECA J. WERTZ RICHARD B. JEROME STEVEN H. MULROY Attorneys, Voting Section Civil Rights Division Department of Justice P.O. BOX 66128 Washington, D.C. 20035 (202) 514-8696 MICHAEL D. SKINNER United States Attorney /s/ William J. Flanagan WILLIAM J. FLANAGAN Assistant U.S. Attorney United States Courthouse 300 Fannin Street Shreveport, Louisiana 71101 ---------------------------------------- Page Break ---------------------------------------- 117a APPENDIX F Section 2 of the Voting Rights Act of 1965, 42 U.S.C. 1973, provides: (a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b (f ) (2) of this title, as provided in subsection (b) of this section. (b) A violation of subsection (a) of this sec- tion is established if, based on the totality of circumstances, it is shown that the political proc- esses leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That noth- ing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population. Section 5 of the Voting Rights Act, 42 U.S.C. 1973c provides: Whenever a State or political subdivision with respect to which the prohibitions set forth in sec- tion 1973b (a) of this title based upon determina- ---------------------------------------- Page Break ---------------------------------------- 118a tions 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, or whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b ( a) of this title based upon deter- minations made under the second sentence of section 1973b (b) of this title are in effect shall enact or seek to administer any voting qualifica- tion or prerequisite to voting, or standard, prac- tice, or procedure with respect to voting different from that in force or effect on November 1, 1968, or whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b ( a) of this title based upon de- terminations made under the third sentence of section 1973b ( b ) of this title are in effect shall enact or seek to administer any voting qualifica- tion or prerequisite to voting, or standard, prac- tice, or procedure with respect to voting differ- ent from that in force or effect on November 1, 1972, such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judg- ment that such qualification, prerequisite, stand- ard, 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 judg- ment no person shall be denied the right to vote ---------------------------------------- Page Break ---------------------------------------- 119a 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, pre- requisite, 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 Gen- eral 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. Neither an affirma- tive indication by the Attorney General that no objection will be made, nor the Attorney Gen- eral's failure to object, nor a declaratory judg- ment entered under this section shall bar a sub- sequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. In the event the Attorney General affirmatively indicates that no objection will be made within the sixty-day period following re- ceipt of a submission, the Attorney General may reserve the right to reexamine the submission if additional information comes to his attention during the remainder of the sixty-day period which would otherwise require objection in ac- cordance with this section. Any action under this section shall be heard and determined by a court of three judges in accordance with the pro- visions of section 2284 of title 28 and any appeal shall lie to the Supreme Court. U. S. Government Printing Office; 1994 901157 86213