Brief for Appellee — Beer v. United States

] Supreme Court, U. $.

FILED

MAR 19 1975

No, 73-1869 , MICHAEL RODAK, JR.,CLERK

In the Supreme Court of the United States

Ocrosber Term, 1974

Perer H. Beer, ev AL, APPELLANTS

v.

UNITED STATES OF AMERICA, BT AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF COLUMBIA

BRIEF FOR THE UNITED STATES

ROBERT H. BORK,

Solicitor General,

J. STANLEY POTTINGER,

Assistant Attorney General,

LAWRENCE G. WALLACE,

Deputy Solicitor General,

JOHN P. RUPP,

Assistant to the Solicitor General,

BRIAN K. LANDSBERG,

WALTER W. BARNETT,

MARK L. GROSS,

Attorneys,

Department of Justice,

Washington, D.C. 205230.

ING so ctdecddcetowtuntadeeokees da —

es ad ee iain

Constitutional and statutory provisions involved _-

sco loa eeeuabakeunmienal

ER ae on cabs debeneekn edad

I. The district court properly determined

that Plan II would substantially di-

lute the voting strength and potential

of black citizens of New Orleans_____-_-

A. In determining the effect of Plan

Il, the court properly con-

sidered the Plan’s dilutive ef-

fects in the context in which

the Plan would operate_______-

B. The evidence supported the dis-

trict court’s finding that Plan

II would substantially dilute

the voting strength and poten-

tial of black citizens. __._____-

Il. Appeilants’ justifications for Plan II

were insufficient to warrant the

Plan’s substantial dilution of minority

icnicdensndecennetcune

Pe iiads a cdennbuedakanecteasecanenie

571-067—75-———-1

WOoreNN KF

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13

13

19

23

30

CITATIONS

Cases: Fage

Abate v. Mundt, 403 U.S. 182_____________. 24

Allen v. State Board of Elections, 393 U.S.

BUG. « cccecsccenegebiunteamnsendnstinedicn 18, 29

Anderson v. Martin, 375 U.S. 399___________ 22

Beer v. United States, 374 F. Supp. 357_____- 6

Burns v. Richardson, 384 U.S. 73__..-._ 18

City of Petersburg, Virginia v. United States,

354 I’. Supp. 1921, affirmed 410 U.S. 962___ 18, 29

Dunn v. Blumstein, 405 of > ae 25

Fairley v. Patterson, 393 U.S. 544._......__- 13-14

Georgia v. United States, 411 U.S. 526___ 13, 17,18

Howard v. Adams County Board of Supervisors,

453 F. 2d 455 __ __- litemanemeaieie 16

Korematsu vy. United States, 323 U. S. 24

Lane v. Wilson, 307 U.S. 268_........ 24

Louisiana vy. United States, 380 U.S. 145____ 4, 21

Loving v. Virginia, 388 U.S. 1_..---- 24

WeLaugilin vy. Florida, 379 U.S. 184... 24

Mahan v. Howell, 440 U.S. 315.00, 24

Moore v. Leflore County Board of Election

(OnMISSLONETS, 202 I. 2d AEE 16, 23, 28

Perlins vy. Matthews, 400 U.S. 379___ ==. 13, 18, 29

Reynolds vy. Sims, 377 U.S. 583__. 24

Robinson v. Commissioners Court of Anderson

County, 505 F. 2d 674___.............__. 674

san Antonio School District vy. Rodriquez, 411

Rh: Disesas wakiemartae ulcer 25

Shelton v. Tucker, 364 U.S. 479_..__.._._______ 25

Sherbert v. Verner, 374 U.S. 398_... 25

South Carolina v. Katzenbach, 383 U.S£301__ 17,

18, 24

Whitcomb vy. Chavis, 403 U.S. a ’ 15, 18, 21

White v. Regester, 412 U.S. 755

baeeaune 15, 18, 21, 23

18

mm

Constitution and statutes: —

United States Constitution, Fifteenth Amend-

eT ae ey 1, 2, 17, 18, 24, 25

Voting Rights Act of 1965, 79 Stat. 437, as

amended, 42 U.S.C. 1973 et seq.:

Sec. 4,42 U.S.C. 1973b___...-___-______- 3, 6, 29

Sec. 5, 42 U.S.C. 1973¢__.._._._______- passim

Miscellaneous:

115 Cong. Rec. 38486__..........__________ 15

116 Cong. Rec. 5520-5521.......__________. 15

116 Comg. Rec. 56287. ....................- 15

116 Comg. Ree. 6368. ..................... 15

Oe OG, BOND GIG ow ecccnccccccnnccaccses 3

Hearings before the Subcommittee on Con-

stitutional Rights of the Senate Committee

on the Judiciary, on Amendments to the

Voting Rights Act of 1965, 91st Cong., Ist

ee aS se IEE ema tacit 14, 17, 29

Hearings before Subcommittee No. 5 of the

House Committee on the Judiciary, on

H.R. 4249, 5538, and Similar Proposals,

9ist Cong., Ist Sess_............_.______ 14, 17

Political Participation, A Report of the United

States Commission on Civil Rights (1968) __ 14

The Voting Rights Act: Ten Years After, A Re-

port of the United States Commission on

Civil Rights (1975)_.........-...._.._____ 20

Gu the Supreme Court of the Gnited States

OcTOBER ‘TERM, 1974

No. 73-1869

Perer H. Beer, ET ‘AL., APPELLANTS

Vv.

Unirep Staves OF AMERICA, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF COLUMBIA

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the district court (J.S. App. la—72a)

is reported at 374 F. Supp. 363.

JURISDICTION

The judgment of the district court (J.S. App. T3a-

74a) was entered on March 15, 1974. A notice of ap-

peal (J.S. App. 75a-76a) was filed on April 5, 1974.

This Court noted probable jurisdiction on October 15,

1974.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifteenth Amendment to the United States

Constitution provides as follows:

(1)

2

Section 1. The right of citizens of the United

States to vote shall not be denied or abridged

hy the United States or any State on account of

race, color, or previous condition of servitude.

Section 2. The Congress shall have power to

enforce this article by appropriate legislation,

Section 5 of the Voting Rights Act of 1965, 79 Stat.

439, as amended, 42 U.S.C. 1973¢, provides in pertinent

part:

Whenever a State or political subdivision

with respeet to which the prohibitions set forth

in section 1973b(a) [of this title] * * * are in

effect shall enact or seek to administer any vot-

ing qualification or prerequisite to voting, or

standard, practice, or procedure with respect to

voting different from that in force or effect on

November 1, 1964 * * * such State or subdivi-

sion may institute an action in the United

States Distriet Court for the District of Colum-

hia for a declaratory judgment that such quali-

fication, prerequisite, standard, practice, or

procedure does not have the purpose and will

not have the effect of denying or abridging the

right to vote on account of race or color * * *,

QUESTION PRESENTED

Whether the district court properly determined that

appellants had failed to establish that a redistrict-

ing plan proposed for councilmanie elections in the

City of New Orleans, Louisiana, will not have the

effect of denying or abridging the right to vote on

account of race or color,

STATEMENT

This is an appeal from the denial by the district

court of a declaratory judgment sought by members

of the City Council of New Orleans, Louisiana, pur-

suant to Section 5 of the Voting Rights Act of 1965,

supra, to permit implementation of a redistricting

plan proposed by the City. The court denied the re-

lief requested because it found that the redistricting

would unlawfully dilute the voting capabilities of

black voters.

The New Orleans City Council is a seven-member

body, two of whom are elected at-large and five by

single-member districts dividing the City (Pl. Ex. 4;

New Orleans Charter, 3-102, 3-103)." On March 2,

1972, the Council, complying with a charter provision

requiring the reapportionment of councilmanic dis-

tricts following the decennial census of the United

States, adopted Ordinance No. 4796 M.C.S. (“‘Plan

1’’), which redivided the city into five new couneil-

manic districts.’

Because Louisiana and its political subdivisions are

covered by Sections 4 and 5 of the 1965 Voting Rights

Act (see 30 Fed. Reg. 9897), a change in voting proce-

dures such as that provided for in Plan I may not be

implemented before it has been subjected to federal

scrutiny (J.S. App. 30a). This may be accomplished

in either of two ways: (1) the state or subdivision

involved may institute an action for a declaratory

judgment in the United States District Court for the

‘ Plaintiff-Appellants’ exhibits are cited as “PL Ex.” and

Defendant-Appellees’ exhibits are cited as “Def. Ex.”

*\ map of the districts specified in Plan I appears at

App. 623.

Under all of the redistricting plans considered by the Coun-

cil, the election of two council members on an at-large basis

would have been continued.

4

District of Columbia, and may implement the change

in voting procedures if the court finds that the voting

change ‘‘does not have the purpose and will not have

the effect’’ of unlawfully denying or abridging voting

rights; alternatively, (2) the state or subdivision may

submit the proposed change to the Attorney General

of the United States, and may implement such change

if the Attorney General does not interpose an objec-

tion. If the Attorney General does object, the pro-

posed change in voting procedures may still be made

the subject of an action for a declaratory judgment

in the United States District Court for the District

of Columbia and implemented if ultimately declared

to be lawful in purpose and effect. 42 U.S.C. 1973e.

In the present case, the City chose to submit Plan I

to the Attorney General (J.S. App. Ta), rather than

to bring an action for a declaratory judgment. By

letter dated January 15, 1973, the Attorney General

objected to that plan on several grounds, concluding

that its proposed councilmanic districts (J.8. App.

7a, mn. 26):

are drawn in a manner which appears to dilute

black voting strength by combining a number

of black voters with a larger number of white

voters in each of the five districts,

On May 3, 1973, the City Council adopted Ordinance

No. 5154 M.C.S. (“Plan 11”), which is the subject

of this litigation, and submitted the amended plan

to the Attorney General. By letter dated July 9, 1973,

the Attorney General also objected to Plan IT, stating

in part that the boundary lines specified in Plan II

“appear to effect a dilution of black voting strength

in the same manner as did the boundary lines pre-

5

scribed in [Plan I]” and noting that Plan IT “com-

bines a number of black voters with a larger number

of white voters in four of the five [councilmanic] dis-

tricts” (J.S. App. 9a-10a, n. 33). The Attorney Gen-

eral’s letter of July 9, 1973, also specifically criticized

the use of predominantly north-south districts in both:

plans that had heen submitted (id. at 10a, n. 33):

Our evaluation of Ordinance numbers 4796

and 5154 indicates that the objectionable dilu-

tion of black voting strength in both redistrict-

ing plans is primarily attributable to the

vertical [7.7., north-south] shape of the submitted

districts. Because the predominantly black

neighborhoods in the city are located generally

in an east to west progression, the vertical dis-

tricts in the submitted plans divided the black

neighborhoods and combined them with white

areas in the north and the south of the city

resulting in districts with more white than

black voters.

After receipt of this letter, six of the seven council

members filed suit in the United States District

Court for the District of Columbia, pursuant to the

provisions of Section 5 of the Voting Rights Act (42

U.S.C. 1973c), seeking a declaratory judgment that

Plan IT neither has the purpose nor would have the

effect of denying or abridging voting rights on the

basis of race. A three-judge court was convened, as

required by Section 5, and hearings were held on

August 9-10 and October 17-18, 1973 (J.S. App. 12a-

13a). On March 15, 1974, the district court denied

appellants’ request for a declaratory judgment per

571-067 75 2

mitting implementation of Plan I (J.S. App. la-

74a).

After discussing the evolution of Plan IT (J.S.

App. 13a-22a) and the historical background of the

Voting Rights Act in general and Sections 4 and 5

in particular (id. at 22a-37a), the district court made

detailed findings concerning the prospective opera-

tion of Plan II on minority voting strength in New

Orleans.’ The court found that residential segregation

by race still prevails in New Orleans and that New

Orleans’ black population is concentrated in an east-

west belt through the center city, with contiguous

white residential areas to the north and south (see

App. 620). Consequently, the use of predominantly

north-south redistricting lines such as those specified

in Plan II tends to create voting districts controlled

by white voters (J.S. App. 38a).

*The district court had earlier denied a petition filed by

several amici. Beer v. United States, 374 F. Supp. 357

(D.D.C.). The issue there raised by the amici is not encom-

passed in the present appeal.

‘Appellants do not challenge the accuracy of these findings,

contending instead that the court misconstrued the applicable

law in denying their request for a declaratory judgment (¢.¢.,

App. Br. 10-11, 31).

‘At the hearing before the district court, the government

introduced a map of the City showing the locations of regis-

tered voters by race (Def. Ex. 1) and an acetate overlay (Def.

Ex. 5) showing the district boundaries of Plan IL. Viewed

together, these exhibits reveal that the north-south boundaries

utilized in Plan II produce four districts into which the black

population belt located in the center city would be divided,

and that each of these districts also includes a portion of the

white residential areas adjoining the river to the south and the

lakefront to the north (App. 620). Indeed, the City official

7

In this context, the court examined the impact of

Plan If on minority voting rights in the City, using

as referents both the percentage of registered voters

who are black and the percentage of black persons

in the City’s total population. The court found that

the five single-member councilmanic voting districts

proposed in Plan IT would have the following racial

characteristics (J.S. App. 39a; see also App. 624):

—

Population Registered voters

)i-trict -

Total Black Pereent Total Black Percent

black black

a _. 117,901 36, H65 29.1 57, 387 12, 964 22.6

a 118,678 76, 109 (4.1 39,870 20,976 52. 6

a 2,651 35.8 49, 756 11, 606 23. 3

Se 118, 337 51,447 43.5 49, 505 18, 223 36. 8

a 119,532 60,437 50. 6 5, 898 19, 819 43.2

Total___... 593,471 267, 308 45.0 242,416 83, 588 34.5

EEE ae _ — oe

Thus, although black persons comprise 34.5 percent

of the registered voters in New Orleans and 45.0 per-

cent of the City’s population, under Plan Il they

would represent a majority of the registered voters—

and then by a slight margin—in only one of the City’s

five councilmanie districts.

In assessing the significance of these statistics, the

court examined several aspects of the voting history

and electoral process under which Plan II would

operate. The court found that New Orleans is char-

responsible for directing the drafting of reapportionment plans

for the City acknowledged that vertical lines tend to create

majority white voting districts (/d. at 236).

8

acterized by racial bloc voting (id. at 16a-19a, 45a)°

and that black candidates, in recent efforts for city-

wide office, have been successful only where they

“were recipients of support from white organizations

or white candidates’ (id. at 17a, footnotes omitted).

Moreover, the nomination process in New Orleans

includes both a majority-vote requirement and an

anti-singleshot limitation (J.S. App. 19a, 58a-39a).

The former means that if a candidate, in any election

involving more than two candidates, receives only a

plurality, the top two candidates are required to run

against each other for the nomination (ibid.). The

anti-singleshot limitation makes impossible the con-

centration of minority-group votes in favor of a par-

ticular candidate in the at-large elections since all

hallots containing votes for fewer than the total

number of positions available are disqualified (J.S.

App. 20a, 58a-39a). The court found that these fea-

tures of the candidate-nomination process, when

viewed in light of New Orleans’ long history of racial

bloc voting and racial discrimination generally, effee-

tively preclude the election of black candidates in

any councilmanic district in which black persons do

not comprise the majority of the registered voters—

and ensure that both of the at-large positions on the

Couneil will be filled by white candidates (J.S. App.

Oba).

*Evidence of racial bloc voting is found throughout the

hearing record, in the form of statisties (see Def. Exs. 14, 2,

j2, 33, 34) and direct testimony (see App. 545-546).

9

Accordingly, the district court concluded that under

Plan If black persons in New Orleans could hope at

most to elect one of the seven Council members (J.8.

App. 46a, 54a). The court held that this result con-

stituted a ‘‘drastic’’ dilution of the voting strength of

black persons, whether viewed from the perspective

of the percentage of all registered voters who are

black or of the percentage of black persons in New

Orleans’ total population (J.S. App. 44a). Given the

fact of racial bloe voting, black persons—who, as

noted above, comprise 34.5 percent of the registered

voters in New Orleans—could expect as a theoretical

matter to elect between two and three Council mem-

hers. Since black persons make up 45 percent of the

City’s total population, moreover, they could, if regis-

tered in proportions roughly similar to white persons,

expect to elect between three and four council mem-

hers (id. at 45a-47a).’ The court found the under-

registration of black persons in New Orleans to be

attributable in large part to the City’s long history

of racial discrimination—in public schools, publie as-

semblies, public recreational facilities, public trans-

portation, housing, employment and, perhaps most

importantly, voting (J.S. App. l6a-17a, 57a-62a).°

* But see n. 19, infra.

*The history of legislative efforts in Louisiana to keep black

citizens away from the polls was discussed by this Court in

Louisiona Vv, United States, 380 US. 145, 147-150. These efforts

have included use of a grandfather clause, a so-called “inter-

pretation test,” enactment of a law limiting participation in

primary elections to white citizens, and the use of a statewide

system of committees—whose work was directed by a committee

of the Louisiana Legislature known as the Segregation Coni-

10

After thus finding that Plan II would dilute the

voting strength of black persons, the district court

considered the justifications offered by the City for

the plan (J.S. App. 47a-53a)." The City’s purported

justifications included reliance on ward and precinct

lines” and on natural and man-made boundaries, all

of which, the City suggested, mandated the north-

south direction of the district boundaries provided

for in Plan 11." The court found that these justifica-

tions were not sufficient to warrant the dilutive effect

of Plan IL on the voting potential of black persons

within the City (J.S. App. 5la).’* In reaching this

conclusion, the court stated that the City’s purported ©

justifications did not satisfy the compelling state in-

terest standard—particularly since the “curtailment of

the black vote [caused by the plan was] to consider-

mittee—dedicated to the preservation of white social and po-

litical supremacy. This history of voting discrimination is

reflected here in the fact that no black person has ever been

elected to the New Orleans City Council (J.S. App. 17a, 62a).

* Because of its finding that Plan II would have a racially

discriminatory effect, the court did not reach the contention

that the plan was also racially discriminatory in purpose (J.5.

App. 40a-42a).

Ward lines are historical boundaries no longer used as

election boundaries for city officials. In addition, the court noted

that because of “one-man, one-vote” requirements all parties

had stipulated that ward lines could not be followed. For this

and other reasons, the court discounted professed reliance on

ward lines (J.S. App. 49a-50a, n. 219).

The court specifically stated (J.S. App. 38a, n. 161) that

it was not invalidating all plans drawn on a north-south basis,

nor holding that only an east-west plan would satisfy Section 5.

It was only speaking to, and rejecting, the specific plan

before it.

2 Contrary to appellants’ assertion, the district court did not

require that any reapportionment plan ensure “maximal poten-

ll

ably less than half of its potential, if indeed not a

complete negation of its potential” and other redis-

tricting schemes without such a drastic racial effect

had not been demonstrated to be infeasible (J.S. App.

53a; 64a). Alternatively, the court held that the City

had not offered any justification for Plan II suffi-

ciently substantial to justify “dilution of the vote

* * * on the scale indicated here” (3.8. App. 53a).

SUMMARY OF ARGUMENT

In considering appellants’ request for a declaratory

judgment to permit implementation of Plan II, the

district court properly held that dilution of voting

strength on a racial basis is encompassed within the

‘denying or abridging the right to vote’’ standard of

Section 5 of the Voting Rights Act. The determina-

tion of whether a particular voting change would have

such a proscribed effect necessarily involves, as rec-

ognized by the district court, an inquiry into the so-

cial and political context in which the plan would

tial black voting strength” (App. Br. 51). Rather, the court

specifically noted that a minority group is not entitled to “ ‘an

apportionment structure designed to maximize its political

advantage’” (J.S. App. 47a). The court did state, however,

that racial minorities are entitled to protection against being

“enveloped in a structure which will necessarily minimize

[their] potential for meaningful access to the political process”

(ibid.).

18 The district court also noted that the continued existence

of the two at-large seats, part of the New Orleans councilmanic

arrangement since 1954, exacerbated the dilutive effect of Plan

1I. The court found that, given the history of racial bloc

voting and the fact that black voters were in the minority

citywide, the two at-large seats were “the expectancy of the

white vote” (J.S. App. 66a). Appellants do not here contest

this finding.

12

operate and an ultimate assessment of the plan’s im-

pact on the access of minority-group members to the

political process.

In applying these principles in the present case,

the eourt found first that the councilmanic districts

provided for in Plan II would put black voters in the

minority in four of the five proposed councilmanie dis-

tricts. The court further found that black-support-

ed candidates, largely because of New Orleans’ long

history of racial bloc voting, could realistically hope

to be elected to the Council only in the single district

under the plan in which blacks would be a majority

of the registered voters. Plan II would leave undis-

turbed the present arrangement of electing two council

members on an at-large basis, and the court found that

these two seats would remain “the expectancy” of

white voters.

The court did not base its ultimate finding of the

dilutive effect of Plan II solely upon a statistical

assessment. Rather, the court considered a variety

of obstacles to full participation by blacks in the

political process in New Orleans and ultimately

concluded, we submit correctly, that Plan IL would

result in a sufficiently severe dilution of the voting

<treneth of black citizens in the City to require justifi-

cation by the appellants.

The court then subjected the justifications for Plan

Il offered by the City to careful serutiny, in light

of the magnitude of the plan’s dilutive effect. The

court found that reasonable alternatives for redistrict-

ing that would not entail the substantial dilutive ef-

13

fect of Plan II would have equally satisfied the guide-

lines proposed by the City as justifications. In view of

this and its other findings, which are fully supported

by the evidence, the court’s denial of a declaratory

judgment approving Plan Il was correct.

ARGUMENT

I

THE DISTRICT COURT PROPERLY DETERMINED THAT PLAN

iif WOULD SUBSTANTIALLY DILUTE THE VOTING

STRENGTH AND POTENTIAL OF BLACK CITIZENS OF NEW

ORLEANS

\. IN DETERMINING THE EFFECT OF PLAN IL, THE COURT PROPERLY

CONSIDERED TIE PLAN'S DILUTIVE EFFECTS IN THE CONTEXT IN

WHICH THE PLAN WOUiD oPERATE

In analyzing the effect of Plan II, the district court

first correctly recognized that “dilution” of the vote

is encompassed within the ‘‘denying or abridging the

right to vote” standard of Section 5 (e.g., J.S. App.

33a-34a). As this Court stated in Georgia v. United

States, 411 U.S. 526, in holding the Georgia reappor-

tionment plan there at issue to be subject to Section

5 veview, “the question * * * is whether such changes

have the potential for diluting the value of the Negro

vote and are within the definitional terms of § 5” (id.

at 534), and the Court answered both parts of this

question affirmatively (id. at 934, 535). Indeed, the

Court has consistently held that Section 5 is concerned

with changes in voting procedures that have the

potential for “dilution of voting power.” See Perkins

y. Matthews, 400 U.S. 379, 390; Fairley v. Patterson,

571-067--75- —-3

|

14

393 U.S. 544, 569. And there is indication that, in

reenacting Section 5 in 1970 with the intention that it

would apply to the redistricting changes to be neces-

xitated by the combined effects of the 1970 census

and this Court's reapportionment decisions, Congress

was specifically concerned about the possibility that

redistricting could be used as a means of diluting

black voting strength.”

“As early as 1968 the United States Civil Rights Commis-

sion had reported to Congress, after an 18-month study of the

operation of the Voting Rights Act, that “[i]n areas where

[minority] registration has increased, we have moved into a

new phase of the problem [of disenfranchisement]. Political

boundaries have been changed in an effort to dilute the newly

esined voting strength of Negroes.” Political Participation.

A Report of the United States Commission on Civil Rights. p.

177 (1968).

The Civil Rights Commission's finding concerning the prev-

alence of the use of redistricting measures to dilute black vot-

ing strength was prominently and repeatedly referred to dur-

ing the Senate and House hearings held in 1969 and 1970 in

connection with Congress’ extension of the Voting Rights Act

(e.g.. Hearings before Subcommittee No. 5 of the House Com-

mittee on the Judiciary on H.R. 4249, 5538, and Similar Pro-

posals, 91st Cong.. Ist Sess. pp. 3-4 (statement of Rep. MeCul-

loch): #4, at p. 17 (testimony of Howard Glickstein, Act-

ing Staff Director, United States Commission on Civil Rights) :

id, at p. 150 (testimony of Thomas FE. Harris, Associate Gen-

eral Counsel, AFL-CIO); Hearings before the Subcommittee

on Constitutional Rights of the Senate Committee on the

Judiciary on Amendments to the Voting Rights Act of 1965, 91st

Ceng.. Ist and 2d Sess.. p. 47 (testimony of Frankie Free-

man. Member, United States Commission on Civil Rights): /d.

at p. 132 (testimony of Joseph L. Rauh, Jr.. General Counsel.

Leadership Conference on Civil Rights); ‘d. at p. 427 (state-

ment of Howard Glickstein) ; #/. at p. 518 (testimony of David

Norman, Deputy Assistant Attorney General, Civil Rights Divi-

sion, U.S. Dept. of Justice) ). The connection between redist rict-

15 ,

In determining the question of dilution, the district

court in the present case explicitly recognized that a

proposed change in voting procedures does not require

justification merely because it does net maximize

minority-group voting strength (J.S. App. 47a) and

held that the governing standard is, instead, “equality

of opportunity” under the plan GJ.S. App. 37a)—the

right of the group not to “be enveloped in a structure

which will necessarily minimize its potential for

meaningful access to the political process”’ (J.S. App.

47a). This Court adopted a similar standard in up-

holding a constitutional challenge to multi-member

legislative districts because of their dilutive effects

on minority voting potential in White v. Regester,

412 U.S. 755, 766, stating in the contexi of that con-

stitutional case:

The plaintiffs’ burden is to produce evidence to

support findings that the political processes

leading to nomination and election were not

equally open to participation by the group in

question—that its members had less opportunity

than did other residents in the district to par-

ticipate in the political processes and to elect

legislators of their choice, Whitcomb v. Charis,

[403 U.S.] at 149-150.

Although this standard has thus far been utilized by

this Court only in determining whether dilution was

ing and the dilution of black voting strength was also discussed

in beth Houses during the floor debates preceding reenactment of

the Voting Rights Act (e.g. 115 Cong. Ree. 58486 (remarks of

Rep. MeCulloch): 116 Cong. Ree, 5520. 5521. 5527 (statement of

joint views of Senators Bayh, Burdick, Cook, Dodd, Fong,

Hart, Kennedy, Mathias, Scott, Tydings) ; 116 Cong. Rec. 6358

(remarks of Senator Bayh) ).

16

caused by multimember districts, it was properly

relied upon by the district court here (with due

regard to the shift in the burden of proof in the

present statutory context). As the Court of Appeals

for the Fifth Circuit put it, in analyzing a constitu-

tional challenge to a single-member district reappor-

tionment plan (Howard vy. Adams County Board of

Supervisors, 453 F, 2d 455, 458, nn. 2),

[while the ‘‘dilution” test developed in Burns

[v. Richardson, 384 U.S, 73), and expanded

in Whitcomb, is used in those cases to test

the constitutionality of multimember district

plans, we have no hesitation in applying that

test as a measure of the constitutionality of

reapportionment plans involving only single-

member districts. In each instance, we are re-

quired to determine the same question, whether

or not there has been an unconstitutional manip-

ulation of electoral district boundaries so as to

minimize or dilute the voting strength of a

minority class or interest.”

Appellants appear to contend that the principles

emanating from these constitutional decisions do not

apply to the statutory review of changes in voting

procedures under Section 5 (Br, 14-17). They argue

that Section 5 review is, instead, limited to a deter-

tnination of the effects of the proposed voting change

“by itself,’ ignoring the “social, economic and po-

litical context’? in which the plan will operate (Br.

16).

See also Robinson v. Commissioners Court of bade reou

County, 505 F, 2d 674 (C.A. 5): Moore v. Leflore County Board

of Election Commissioners, 502 F. 2d 621, 624 (C.A.5).

17

However, as this Court recognized in South Carolina

v. Katzenbach, 383 U.S. 301, 308-315, the Voting

Rights Act of 1965 was passed specifically to enforce

the Fifteenth Amendment, on the basis of an informed

congressional judgment that previous judicial and

legislative efforts to secure Fifteenth Amendment

rights had been insufficient. Section 5 ‘suspends new

voting regulations pending scrutiny by federal au-

thorities to determine whether their use would violate

the Fifteenth Amendment.’’ 383 U.S. at 334. And the

granting of a declaratory judgment under Section 5 is,

effectively, a determination that “continued suspension

of the new rule is unnecessary to vindicate rights

guaranteed by the Fifteenth Amendment.” Jd. at 335.

Accordingly, the issuance of a declaratory judgment

under Section 5 necessarily implicates constitutional

standards.” A mere determination that any denial or

abridgement of voting rights under the changed pro-

cedure would be no worse than that under the pre-

“Denial of a declaratory judgment, however, need not be

based on a finding that the proposed plan would be unconstitu-

tional since the burden of proof is on the State to show that

its changed procedure meets the statutory requirements (see

Georgia v. United States, supra, 411 U.S. at 528). Moreover.

both the Attorney General and the Deputy Assistant Attorney

General in charge of the Civil Rights Division testified during

the 1970 hearings leading to the Act’s reenactment that Section

5 also expands the substantive prohibition of the Fifteent),

Amendment for prophylactic purposes. See Hearings before

Subcommittee No. 5 of the House Committee on the Judiciary

on TLR, 4249, 5538, and Similar Proposals, 91st. Cong., Ist.

Sess., at p. 280; Hearings before the Subcommittee on Const itu-

tional Rights of the Senate Committee on the Judiciary on

Amendments to the Voting Rights Act of 1965, 91st. Cong.. Ist.

and 2d Sess.. at pp. ISO- 190, 240, DOT, 536,

18

existing procedure obviously would not satisfy the

congressional purpose to enforce the Fifteenth

Amendment. What is required, instead, is a realistic

inquiry into the effects the proposed plan would have

in actual operation in order to determine that the

statutory and constitutional rights are vindicated—

the kind of inquiry sanctioned by this Court in Whit-

comb v. Chavis, supra, and White v. Regester, supra,

where, as here, dilution of voting strength was the

issue.” Indeed, any lesser standard for granting a de-

claratory judgment under Section 5 would permit

approval of new election procedures under that sec-

tion which would be vulnerable to subsequent challenge

under the Fifteenth Amendment—a result obviously

contrary to the prophylactic purpose of Section 5. See

South Carolina v. Katzenbach, supra, 383 U.S, at

308, 309, 335, 337.

In short, “Section 5 is not concerned with a simple

inventory of voting procedures, but rather with the

reality of changed practices as they affect Negro

voters.” Georgia v. United States, supra, 411 U.S. at

jal.”

17 Whitcomb and White ave in this respect no more than a

particular application of the principle that a statute racially

neutral on its face may he chellenged as racially discriminatory

in application. See, ¢.g., Yick Wo v. Hopkins. 118 U.S. 356.

* See, also, Perkins v. Matthews, 400 U.S. 379, 390; Allen

vy. State Board of Elections, 393 U.S. 544. 548: South Carolina

v. Katzenbach, supra. 283 U.S. at 308, 315; City of Petersburg,

Virginia V. Vnited States, 354 F. Supp. 1021, 1027 (D.D.C.),

affirmed, 410 U.S. 962; ef. Burns v. Richardson, 384 U.S. 73, 83.

19

BR. THE EVIDENCE SUPPORTED TIE DISTRICT COURT'S FINDING THAT

PLAN If WOULD SUBSTANTIALLY DILUTE THE VOTING STRENGTH

AND POTENTIAL OF BLACK CITIZENS

‘The district court examined the probable effect of

Plan II in light of the detailed evidence developed in

the four-day hearing in this case. As a starting point,

the court found that Plan IL would fragment the

black vote in New Orleans so that black persons would

be in the majority, and then only slightly, in but one

of the five proposed councilmanie districts (¢.g., JS.

App. 39a-40a). The court also found that New

Orleans’ long history of racial bloe voting, reinforced

as late as 1964 by state legislation (see pp. 22-23,

infra), and Louisiana’s majority vote requirement

would continue to operate as a practical matter

to defeat black-supported candidates in any district in

which blacks do not comprise a majority of the regis-

tered voters (J.S. App. 45a-46a). Under Plan I,

then, at least four of the five redistricted council

seats would be controlled by New Orleans’ white

majority (J.S. App. 46a). Moreover, the cumulative

effect of racial bloe voting and the continued enforce-

ment of majority-vote requirements and an anti-

single-shot limitation would, as a practical matter, en-

sure that the two at-large seats would remain “the

expectancy of the white vote” (J.S. App. 66a). In a

city in which 34.5 pereent of the registered voters are

black, therefore, the overall effect of Plan IT would

20

be to give black voters realistic access—at most—to

one of the seven (14 percent) council seats.”

The court did not, however, base its ultimate find-

ings merely on these statistics. Rather, it assessed

their significance in light of the residual effects of the

long history of racial discrimination in voting and

other fields in Louisiana (J.S. App. 16a, 57a—60a) and

the court’s related finding that city office holders in

New Orleans have generally been unresponsive to the

In addition to the single councilmanie district (District B)

in which black persons would comprise a slight majority (52.6

percent) of the registered voters, the court also found that

under Plan IT blacks would account for approximately one-half

(50.6 percent) of the population of a second district (District

E) (J.S8. App. 39a). This does not mean, however, that a black-

supported candidate would have a realistic chance of being

elected to the City Council from District E given the preva-

lence of bloc voting—even in the absence of under-registration

of black persons living in District E. As of the 1970 census,

the proportion of the black population of New Orleans of

veting age (267308—total black population; 152,.650—black

voting age population; 57.1 percent—percentage of black popu-

lation of voting age) was substantially below the proportion of

the white population of voting age (326.163—total white popu-

lation: 236507T—white voting age population; 72.5 percent—

percentage of white population of voting age). See The Voting

lights Act: Ten Years After, A Report of the United States

Commission on Civil Rights, 368 (1975); App. 624. If these

voting-age percentages are applied to the population mix of

Distriet E. they reveal that blacks would comprise only about

44.5 percent of the voting age population of that district—even

though they account for just over one-half of the total popula-

tion (.Ayop. 624).

21

*‘wishes and wants of the black minority’’ (J.S. App.

18a ; see id. at 63a).”

The court noted, for example, that until very re-

cently participation by black citizens in councilinanic

elections in New Orleans was limited by a variety of

legal obstacles—including requirements that persons

secking to register submit strict proof of residency of

specified duration and the confinement of registration

to one location (City Hall) (J.S. App. 16a). And it

was not until the present suit was filed that city

registrars made any concerted efforts to reach out

into New Orleans’ black community to facilitate the

registration of black persons (J.S. App. 6a, n. 65).

The tactics that have been employed throughout Lou-

isiana, including New Orleans, ‘‘with phenomenal

success to keep Negroes from voting in the State’’

were summarized in Louisiana v. United States, supra,

380 U.S. at 147-150, and significantly inform the

findings made by the district court (and previously by

the Attorney General) in this case. See White vy.

Regester, supra, 412 U.S. at 765-770.

The court also found that the access of black per-

sons in New Orleans to the political process is further

* The court's determination, accordingly, was not based on

any notion that minority-group members are entitled to be

represented in legislative councils by a proportional number of

members of their own race. See, e.g. Whitcomb v. Chavis,

supra, 403 U.S, at 152-155.

22

limited by the candidate-selection methods currently

used. Victory in the Democratic primary in New Or-

leans is generally tantamount to victory in the gen-

eral election (J.S. App. 19a, n. 73). As a rule, how-

ever, black persons seeking to run in the Democratic

primary have not been included in mayoral tickets

headed by white candidates (see id. at 17a). Indeed,

black candidates have been elected to citywide office in

New Orleans only on the rare occasions when a black

candidate was individually supported by a white or-

ganization in the City or by white candidates (ibid.).

The inability of individual black candidates to form

suecessful alliances with white candidates endorsed

by the existing “white political power structure”’ has

without exception proved fatal because it has impeded

their efforts to gain citywide exposure (ibid.).

The court’s findings indicate, moreover, that racial

bloc voting is perhaps even stronger in New Orleans

than is allegiance to the Democratic Party. The court

found that “the only notable exception” to Democratic

Party allegiance in recent years occurred in a state

legislative race in which a black candidate had won

the Democratic primary and was defeated in the gen-

eral election by a Republican because of cross-over

vote from traditionally Democratic white wards in

the City (J.S. App. 19a, n. 73). Indeed, racial bloc

voting in New Orleans was encouraged, until 1964,

by the Louisiana statute declared unconstitutional in

Anderson v. Martin, 375 U.S. 399, which required the

Louisiana Secretary of State to print, in parentheses,

the race of each candidate “‘[o]n the ballots to be used

23

in any state or local primary, general or special elec-

tion * * *” (375 U.S. at 400, n. 1).

We submit that all of these factors, viewed together,

amply support the district court’s finding that Plan II

would result in a sufficiently severe dilution of the

voting strength of black citizens of New Orleans to

require justification by the appellants. Indeed, re-

markably similar considerations were deemed by this

Court in White v. Regester, supra, 412 U.S. at 766-

767, 769-770, to justify a finding that dilution of

minority voting strength resulting from multi-member

districting was unconstitutionally discriminatory. See,

also, Moore v. Leflore County Board of Election Com-

missioners, 502 F. 2d 621, 627 (C.A. 5).

II

APPELLANTS’ JUSTIFICATIONS FOR PLAN II WERE INSUFFI-

CIENT TO WARRANT THE PLAN’S SUBSTANTIAL DILUTION

OF MINORITY VOTING STRENGTH

Following its finding of dilution of black voting

strength the district court examined in detail the

City’s justifications for Plan II, stating that the City’s

burden is to satisfy ‘‘the high standard” of the com-

pelling interest test (J.S. App. 52a) and coneluding

that the City had not offered justifications sufficiently

substantial to warrant ‘‘dilution of the vote * * * on

the scale indicated here” (J.S. App. 53a). Appellants

contend that they need show only a “rational basis’’

for the Plan (Br. 22-26), and assert that their justi-

fications, in the form of ‘“‘guidelines’’ to those respon-

|

24

sible for drafting the plan (set forth at pp. 28-29 of

their brief), satisfy this test.

This contention ignores the fact that a Section 5

proceeding entails an inquiry made to insure preser-

vation of Fifteenth Amendment rights (South Caro-

lina v. Katzenbach, supra, 383 U.S. at 355)—an

inquiry made in the implementation of legislation

designed to insure that “millions of nonwhite Amer-

icans will now be able to participate for the first time

on an equal basis in the government under which

they live” (7d. at 337).

This Court has consistently demanded a high stan-

dard of justification for state laws or procedures which

curtail or diminish constitutionally pretected rights

(see, e.g., Korematsu v. United States, 325 U.S, 214,

Loving v. Virginia, 388 U.S. 1; McLaughlin vy. Flo-

ida, 379 U.S. 184; Anderson Vv. Martin, 375 U.S. 399)

and, of course, the Fifteenth Amendment specifically

prohinits denial or abridgement of voting rights on a

racial basis, whether accomplished directly or indi-

rectly (see, eg., Lane v. Wilson, 307 U.S. 268).

Accordingly, even though Plan {L would not amount

to an absolute denial of the black citizen’s right toe

* Appellants’ contention that a reapportionment plan re-

viewed under Section 5 must be upheld if supperted by “rea-

sonable” or “legitimate” state interests relies on cases stemming

from Leynolds v. Sims, 377 US. 585 (see Br. at 22). The cases

cited by appellants, however, did not involve any allegation

that voting rights were being abridged on a racial basis (see,

¢.q. Abate v. Mundt, 403 U.S. 182, 184, n. 2; Mahan v.

Tlowell, 410 U.S, 3515, 318, mn. 5), but were instead concerned

with allegations of deviations from the “one-man, one-vote”

standard of the Fourteenth Amendment.

25

vote and there was no finding of racial purpose, a

“searching judicial scrutiny’’ was appropriate because

the plan’s dilutive effects would ‘‘impinge upon con-

stitutionally protected rights.’’ San Antonio School

District v. Rodriguez, 411 U.S. 1, 40; see id. at 37-38.

Thus, regardless of whether the appellants’ burden

here was best characterized by the “compelling state

interest’ standard, the district court, after finding

that the plan would substantially dilute black voting

strength, correctly subjected appellants’ justifications

for the plan to careful scrutiny. In this context, we

submit, that scrutiny should balance the magnitude of

the plan’s dilutive effects (in light of the importance

of the rights protected by the Fifteenth Amendment

and by Section 5) against the non-racial justifications

offered for the plan. Unless those justifications show

that the reasons supporting the particular plan ™

outweigh its dilutive effects, the plan should be

rejected.”

** Appellants dispute the district court’s statement that, were

any justification possible for a voting plan whieh curtailed

minority voting rights, the plaintiff must demonstrate that

“nothing but [the plan] proposed * * * was feasible” (J.S.

App. 53a). However, this statement merely acknowledges the

principle that, when a State attempts to justify action which

curtails constitutional rights, it must choose the least restrictive

alternative, or the course of action with the least effect on

those rights. See, e.g... Dunn v. Blumstein, 405 U.S. 330, 543;

Sherbert v. Verner, 374 U.S. 398, 407; Shelton v. Tucker, 364

U.S. 479, 488,

*Under this general approach in those instances of sub-

missions to him under Section 5 which arguably involve some

dilution of minority voting strength, the Attorney General has

requested that the State or political subdivision come forward

26

Under this standard, we submit, the district court

correctly concluded that “the interests which the

City asserts” do not “‘justify * * * the magnitude”

of Plan II’s dilution of black voting strength (J.S.

App. 53a). The court’s findings and the evidence at

trial demonstrated in several ways that substantially

less dilutive alternatives could satisfy the City’s guide-

lines approximately as well as Plan II. Evidence

was presented, for example, that plans in which dis-

tricts were drawn on an east-west, rather than north-

south, basis would comply with most of the city’s

enidelines. Indeed, the member of the City Council

staff primarily responsible for the initial drafting of

plans for the Couneil’s consideration testified that he

developed two east-west plans with which the staff

was satisfied (App. 336-337). Consideration by the

Council of such plans would have been one way to

avoid the disproportionate number of majority white

districts ereated by Plan IT’s north-south scheme.”

with justifications for the partienlar reapportionment plan in

question. The Attorney General has ultimately not objected to

the great majority of proposed reapportionments that have been

submitted to him under the Votine Rights Act: from the date

of the Act's original enactment through December 31, 1974,

some 443 reapportionment plans were submitted to the Attorney

General. and he interposed objections under Section 5 to 72 of

them (many of which were then revised and approved as

resubmitted).

**The record suggests that the City’s insistence on north-

south lines had its genesis in ward boundaries established in

1912 or 1914 (App. 185-184). This fact, plus the concern to

preserve insofar as possible the historic boundaries of the dis-

tricts from at least the last reapportionment in 1961 (id. at

176. 200), suggest that the Council did not consider the effect

of its actions on those newly enfranchised by the Voting

tights Act of 1965.

es

27

Three of the “guidelines” used in drafting Plans I

and II “—ward and precinct lines, natural boundaries,

and man-made boundaries—are relied on by appellants

as direct support for adherence to the north-south

approach taken. Even before the plans were drafted,

however, appellants recognized (see complaint, par. 9;

App. 10), that, because of “one-man, one-vote” re-

quirements, ward lines could not be observed (App.

200). As to precinct lines, appellants suggest that

because elections for many different offices are tabu-

lated on a voting machine at a single precinct, con-

venience requires that precincts not be split (App.

122). New Orleans’ precincts are not large, however,

averaging from 500 to 2,000 voters (App. 188), and

a member of the Couneil’s staff acknowledged that

precinct lines could be observed by 2 plan which de-

viated substantially from the north-south direction of

Plan IT (App. 575; see also map at App. 626). And

the fact that precinct lines could be kept intact

reduces to insignificance the need to consider alleged

natural boundaries within New Orleans, except to the

extent that they divide communities with differing

economic or social interests.

However, the community of “economie and social”

** The evidence is undisputed that the drafting of Plan IT

oceurred without consideration of the objections raised hy the

Attorney General with respect to Plan I (App. 351).

** Moreover, one of the council members acknowledged that

an east-west plan need not be “irregularly shaped” (App. 379),

indicating that the guideline of contiguousness and compact-

ness (App. Br. at 29) need not be satisfied solely by adherence

to the north-south direction of Plan IT.

28

interests guideline upon which appellants also rely as

justifying, in part, the north-south direction of the dis-

tricts of Plan II was not consistently observed. The

Council staff was well aware that one area of the

City—that bordering on Lake Pontchartrain—has a

common social and economic interest (App. 572); but

under Plan IT, the lakefront is divided among four

districts (see App. 624). Conversely, the Algiers area,

which was also recognized as an area with “a com-

munity of interest” (App. 572), was in fact divided

among three districts by Plan I (see App. 623), but

ultimately placed entirely within one district (App.

624). And, most importantly, it is undisputed that

Plan IT fragments the black community located in the

center city—contrary to appellants’ purported guide-

line (App. Br. 28) that the *[rJedistricting should be

accomplished without diluting the voting rights of any

minority group * * *.”*

Finally, we note that another guideline actually

followed in the drafting of Plan IL was to attempt

to keep incumbents apart in the new districts (see,

ey., App. 557, 206-207, 344). The Council’s Staff

Director stated that several councilmen told him of their

desire to be kept in districts apart from other incum-

bents (App. 208), and it was undisputed that given

the residences of the members of the Council a plan

With north-south districts was necessary to achieve

this result (App. 344). The desire to keep incumbents

apart, however, though it may have merit in other

contexts, is entitled to no weight as a justification for

** The evidence indicates, however, that those drafting the plan

attempted to maintain a similar racial composition to that in the

existing districts (App. 215. 244-246).

29

abridgement of voting rights. See Moore v. Leflore

County Board of Election Commissioners, supra, 502

F. 2d at 625.

In sum, the district court’s conclusion that the

guidelines purportedly used by the City in the draft-

ing of Plan II did not justify the plan’s severe racially

dilutive effect was correct.” The guidelines were fol-

lowed to the extent that they justified the desire

to adhere to the existing system as much as possible

(partially in order to keep incumbents apart), and

ignored to the extent that they could justify, with

equal authority, a different zoning plan which would

not similarly fragment the black community.

**Contrary to appellants’ contention (App. Br. 31), the

district court correctly held that its determination that Plan

II's effect failed to meet the statutory standard made it unnee-

essary for the court to decide whether Plan II was also

racially discriminatory in purpose.

Section 5 of the Voting Rights Act, 42 U.S.C. 19736c,

explicitly provides that political entities covered by Section

+ bear the burden of demonstrating that a proposed change

in voting procedures will be racially non-discriminatory both

in purpose and effect:

“* * * such State or subdivision may institute an action in

the United States District Court for the District of Columbia

for a declaratory judgment that such qualification, prerequisite,

standard, practice, or procedure does not have the purpose and

will not have the effect of denying or abridging the right to vote

on account of race or color * * *” (emphasis added).

See Allen v. State Board of Elections, supra, 393 U.S. at 565,

n. 29; Perkins v. Matthews, supra, 400 U.S. at 387. See, also,

Senate Hearings, supra, n. 14, at 507. Indeed this Court

affirmed the denial by a district court of a request for a

declaratory judgment under Section 5 because the proposed

voting change had been found to have a racially discriminatory

effect—despite an express finding that the change was not

discriminatory in purpose. City of Petersburg, Virginia y. United

States, 410 U.S, 962, affirming, 354 F. Supp. 1021 (D. D.C.).

30

Consequently, whether measured pursuant to a

compelling state interest standard or a somewhat less

exacting standard, the justifications offered by the

City are not of the substantial nature required to

condone the effect of Plan Il. The severe effect of the

dilution found here would require a showing by the

appellants of the absence of reasonable alternatives

with a lesser racial effect. In the absence of such a

showing, and indeed in light of the findings and

evidence that such alternatives were in fact available,

the declaratory judgment requested below was prop-

erly demied.

CONCLUSION

For the foregoing reasons, the judgment of the

district court should be affirmed.

Respectfully submitted.

Ropserr H. Bork,

Solicitor General.

J. STANLEY POTTINGER,

Assistant Attorney General,

LAWRENCE G, WALLACE,

Deputy Solicttor General,

Joun P. Rupp,

Assistant to the Solicitor General,

Brian K. LANDSBERG,

Water W. BaRNert,

Marx L. Gross,

Attorneys.

Marcu 1975.

U6 GOVERNMENT PRINTING OFFICE t978