# Brief for Appellee — Beer v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0215%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for Appellee - **Published:** January 1, 1976 - **Citation:** 425 U.S. 130 ## Text ] 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 — 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