Appellants Brief — Reno v. Bossier Parish School Bd.

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Nos. 98-405 & 98-406

IN THE

Supreme Court of the Uni

States

OCTOBER TERM, 1998

JANET RENO, ATTORNEY GENERAL OF

THE UNITED STATES,

Appellant, and

GEORGE PRICE, ET AL.,

Appellants,

BOSSIER PARISH SCHOOL BOARD,

Appellee.

On Appeal from the

United States District Court for the District of Columbia

BRIEF OF APPELLANTS GEORGE PRICE, ET AL.

BARBARA R. ARNWINE PATRICIA A. BRANNAN*

THOMAS J. HENDERSON JOHN W. BORKOWSKI

EDWARD STILL HOGAN & HARTSON L.L.P.

LAWYERS’ COMMITTEE FOR 555 Thirteenth Street, N.W.

CIVIL RIGHTS UNDER LAW Washington, D.C. 20004

1450 G Street, N.W. (202) 637-8686

Suite 400

Washington, D.C. 20005

(202) 662-8600

* Counsel of Record Counsel for Appellants

George Price, et al.

ure¢

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- a ee a -

QUESTION PRESENTED

Whether a redistricting plan submitted to the United States

District Court for the District of Columbia under § 5 of the

Voting Rights Act of 1965, 42 U.S.C. § 1973c, for a

declaration 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,” should be precleared even if

infected with an unconstitutional, racially discriminatory

purpose that is not retrogressive?

PARTIES TO THE PROCEEDINGS

The Defendant-Intervenors below, Appellants George

Price, ef al., who are not listed in the caption are:

Leroy Harry

Thelma Harry

Clifford Doss

Odis Easter

Jerry Hawkins

Barbara Stevens King

Hurie Jones

Grover Cleveland Jaggers

Floyd Marshall

Rubie Fowler

All other parties are named in the caption.

TABLE OF CONTENTS

Page

eR i

PARTIES TO THE PROCEEDINGS ..0000.......2...-ccccceceeseeeeseeeenees ii

ee Ge attccccncivncnsttccsccesaterscesccsccbecsesternees vi

RET EE Ie TSE I SCS ACO ]

SE ee 2

CONSTITUTIONAL AND STATUTORY

PIV Te INVOLVED .ncccccccccccscoseocssossseressessensensseseceers 2

EES LS AGT 2

A. This Court’s Decision Vacating and

Remanding the First mate Judgment............ 3

B. The District Court’s Analysis on Remand................ 6

ST 7

2. Historical Background of the

cia cncasicereesatencsemnemnoese 8

3. Specific Sequence of Events Leading

to the Decision to Adopt the Jury

LS &

4. Board Departures from Normal

al cdititinalisdeanenitnecasedsonétccsnescesscoeneeon 9

5. Contemporary Statements of

EEE EL 9

TABLE OF CONTENTS—Continued

1. THE WORDS OF § 5, AND DECISIONS OF THIS

COURT APPLYING THEM, MAKE CLEAR

THAT THE “PURPOSE . .. OF DENYING OR

ABRIDGING THE RIGHT TO VOTE ON

ACCOUNT OF RACE OR COLOR” IS ANY

UNCONSTITUTIONAL, RACIALLY

DISCRIMINATORY PURPOSE .......0.......0.-0c-ceesee0s

Purpose that Could Violate the Constitution

B. Until This Case, the D.C. District Court Had

Not Limited the Analysis of “Purpose”

Under § 5 to Intent to Retrogress .................

C. The “Retrogression” Limitation on the

. ” Analysis Imposed by the Court

Below Is Inconsistent with the Intent of

D. Limiting the Purpose iry Under § 5 to

Retrogressive Intent W: Require

Preclearance of Voting Changes that

Violate the Constitution ...............-cceeeeeees

Il. APPLYING THE ARLINGTON HEIGHTS

STANDARD TO THE UNCONTESTED FACTS

BELOW, THIS COURT SHOULD REVERSE

BECAUSE THE BOARD’S PROPOSED

DISTRICTING PLAN WAS MOTIVATED BY A

PURPOSE TO DISCRIMINATE ON THE BASIS

TABLE OF CONTENTS—Continued

Page

A a tics citetestnteviiieitinnnenntti 28

B. Historical Background of the Adoption of

SE ae Sea ae kas ee 30

Cc. ific Sequence of Events Leading to the

ision to Adopt the Jury Plam....................0000++ 33

D. Board Departures from Normal Practice............... 37

E. Contemporary Statements of Participants.............. 38

I dacinccnapigseeentinciilinimimininnneglipaadtetiripenpetmeagntttes 40

TABLE OF AUTHORITIES

Page

CASES:

Anderson v. Martin, 375 U.S. 399 (1964) .......0....ccccccccccceeeneees 25

Arizona v. Reno, 887 F. Supp. 318 (D.D.C. 1995),

appeal dismissed, 516 U.S. 1155 (1996) ...........ccccccceccereeeeeees 21

Beer v. United States, 425 U.S. 130 (1976) 20.0.2... passim

Brown v. Board of Educ., 347 U.S. 483 (1954) .00.........cccce0c000. 31

Busbee v. Smith, 549 F. Supp. 494 (D.D.C. 1982),

Pg Et Re 18-21

City of Lockhart v. United States, 460 U.S. 125

RS eR Ee i al 22-23

City of Pleasant Grove v. United States, 568 F . Supp.

i crite diediinicictaintiiinetlcnastbllitlartsigndinniscciees 18

City of Pleasant Grove v. United States, 623 F. Supp.

782 (D.D.C. 1985), aff'd, 479 U.S. 462 (1987)............... passim

City of Port Arthur v. United States, 459 U.S. 159

tS EI lt BP SE Pe IRE. Se 17

City of Richmond v. United States, 376 F. Supp. 1344

(D.D.C. 1974), vacated, 422 U.S. 358 (1975) ................ passim

City of Rome v. United States, 446 U.S. 156 (1980)................. 13

County Council of Sumter County v. United States,

596 F. Sem. 3S ( DIDS. 19G4) qn. -nceceseseoccesccocsecsescoeccesees 21-22

Georgia v. Reno, 881 F. Supp. 7 (D.D.C. 1995), aff'd

sub. nom. Brooks v. Georgia, 516 U.S. 1021 (1995)............. 21

Gomillion v. Lightfoot, 364 U.S. 339 (1960) ...........cccccccecceeeees 17

vii

TABLE OF AUTHORITIES—Continued

Page

CASES (cont'd):

Hale County v. United States, 496 F. Supp. 1206

EERSTE EL tS 22

Hall v. St. Helena Parish Sch. Bd., 417 F.2d 801

aI aT te a oe ON a 32

Heckler v. Chaney, 470 U.S. 821 (1985) .0........cccccccccceceeveceneees 13

Hunter v. Underwood, 47\ U.S. 222 (1985) ......c.ccccccccccceeeeeeeees 26

Lemon v. Bossier Parish Sch. Bd., 240 F. Supp 709

(W.D. La. 1965), aff'd, 370 F.2d 847

(Sth Cir.), cert. denied, 388 U.S. 911 (1967) .............000- 8, 31

Lemon v. Bossier Parish Sch. Bd., 421 F.2d 121

SERRE EES RGN Se ae A ee 32

Lemon v. Bossier Parish Sch. Bd., 444 F.2d 1400

I aa a i 32

Lopez v. Monterey County, 119 S. Ct. 693 (1999)... 13

Louisiana v. United States, 380 U.S. 145 (1965)..............00000. 30

Major v. Treen, 574 F. Supp. 325 (E.D. La. 1983)................... 30

Miller v. Johnson, 515 U.S. 900 (1995)... .cccccccccsceecceeeeeeees 17

Montclair v. Ramsdell, 107 U.S. 147 (1883) .0.......00.0.c00000c0000. 13

New York v. United States, 874 F. Supp. 394

ESE SEES: Se Re 22

Perkins v. Matthews, 400 U.S 379 (1971) ........cccccccccccccesceeees 26

Reno v. Bossier Parish Sch. Bd., 517 U.S. 1154

TABLE OF AUTHORITIES—Continued

Page

CASES (cont'd):

Reno v. Bossier Parish Sch. Bd., 520 U.S. 471 (1997)...... passim

Rogers v. Lodge, 458 U.S. 613 (1982) .......cc-cccseeseneeeeserennenenees 24

Shaw v. Reno, 509 U.S. 630 (1993) ........cccccccccceeeeeerneeeneenenenens 39

Singleton v. Jackson Mun. Separate Sch. Dist., 4\9

F.2d 1211 (Sth Cir. 1969), cert. denied sub nom.

West Feliciana Parish Sch. Bd. v. Carter, 396 U.S.

Se Cir cceertetinesinceteh cicititadintelinipreinedtitiiiiniaenimngncenn 32

South Carolina v. Katzenbach, 383 U.S. 301 (1966)..... 14, 23-24

Texas v. United States, 785 F. Supp. 201

I. Fran iccesschinnncsittin tena albintestianiiiyittineiietaenties 22

Texas v. United States, 866 F. Supp. 20 (D.D.C.

TRS Pa 8 GE 4 SEU 21

United States v. Albertini, 472 U.S. 675 (1985) .........cccccc00 13

United States v. Menasche, 348 U.S. 528 (1955) 0.0.0.0... 13

Village of Arlington Heights v. Metropolitan. Hous.

Dev. Corp., 429 U.S. 252 (1977) ..vcccceesserereeeeseerneeenneenenes passim

Washington v. Davis, 426 U.S. 229 (1976)......ccccceceeeeeeeeeeees 5,21

Western Union Tel. Co. v. Foster, 247 U.S. 105

CREED ccrsticccrcsepuveiinniuininictitiiiiaiibsin nn, ~<tejjimimtiaaistiaiaial 17

TABLE OF AUTHORITIES—Continued

Page

CONSTITUTION:

as IIE, SI eccthascinisrstsiinseld ich ccanimsimnincibnttenmsduasianicsen. 30

Soe NINES DI cersterthincetnchextbesitidasemutenbsonsinmenuchienspinasse 2, 25

a IIE, FET cicnscttearscensnessosnpinistineminmseitenabsntniieanne passim

STATUTORY PROVISIONS:

Voting Rights Act of 1965,

ee ee iataicicnes tries nctucinda ih tssertidasenshanciaiuacs 4, 23

| RRR Gt aN ET Re Som 23

REESE ES nea a nee I eae 23-24

I i passim

La. Rev. Stat. Amn. § 17:71 .3E(2)(a) sccccccccccccsecsssssssssosessssseessee 29

La. Rev. Stat. Ann. § 17:71.3E(3)(a) .occccsccsesssssesessossssesossssscosee 29

LEGISLATIVE MATERIALS:

GER, Rap. No. 97-227 (IGG) oice..cosesecsscccssevesesececesccesesesecees 24-25

IN THE

Supreme Court of the United

States

OCTOBER TERM, 1998

Nos. 98-405 & 98-406

JANET RENO, ATTORNEY GENERAL OF

THE UNITED STATES,

Appellant, and

GEORGE PRICE, £7 AL.,

Appellants,

Vv.

BOSSIER PARISH SCHOOL BOARD,

Appellee.

On Appeal from the

United States District Court

for the District of Columbia

BRIEF OF APPELLANTS GEORGE PRICE, ET AL.

OPINIONS BELOW

The decision of the United States District Court for the

District of Columbia (“D.C. District Court”) that is the

subject of these appeals is reported at 7 F. Supp. 2d 29

(D.D.C. 1998) and is reprinted at App. 1a-28a.' An earlier

decision of the D.C. District Court in this case is reported at

907 F. Supp. 434 (D.D.C. 1995) (App. 78a-144a); this

Court’s decision vacating and remanding that earlier decision

is reported at 117 S. Ct. 1491 (1997) (App. 29a-77a).

JURISDICTION

The D.C. District Court had jurisdiction pursuant to 42

U.S.C. § 1973c. It entered the judgment at issue on May 4,

1998. George Price, ef al., and Janet Reno filed timely

notices of appeal on July 6, 1998 and filed timely

jurisdictional statements on September 4, 1998. This Court

noted probable jurisdiction on January 22, 1999. This

Court’s jurisdiction is based on 42 U.S.C. § 1973c.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

Section 1 of the Fourteenth Amendment to the United

States Constitution provides in pertinent part that no state

shall “deny to any person within its jurisdiction the equal

protection of the laws.” Section 1 of the Fifteenth

Amendment provides: “The right of citizens of the United

States to vote shall not be denied or abridged by the United

States or by any State on account of race, color, or previous

condition of servitude.” Section 5 of the Voting Rights Act,

42 U.S.C. § 1973c, is reprinted at App. 244a-246a.

STATEMENT

Because the Bossier Parish School Board (“Board”) is a

jurisdiction subject to the preclearance requ‘rements of §5 of

the Voting Rights Act of 1965, 42 U.S.C. § 1973c, it is

req"ired to obtain the approval either of the Attorney General

of the United States or of the D.C. District Court before

‘mplementing any changes to a “voting qualification or

l Citations to “App.” refer to the separately bound appendix

to the Jurisdictional Statement filed on behalf of Janet Reno in No.

98-405. Citations to “J.A.” refer to the Joint Appendix filed on

March 5, 1999.

prerequisite to voting, or standard, practice, or procedure.”

App. 244a. Because the 1990 census revealed wide

population disparities among its election districts, the Board

proceeded to redraw its election districts to meet the mandate

of this Court’s one-person -- one-vote decisions. Jd. at 30a.

The Board seeks in this declaratory judgment action a

determination that its redistricting plan adopted following the

1990 census “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.” 42 U.S.C. § 1973c (App. 245a).

This is the second time that the Court has noted probable

jurisdiction in this case. In 1997, this Court vacated and

remanded the first judgment of the D.C. District Court

preclearing the Board’s proposed redistricting plan.

Although the D.C. District Court found on remand “powerful

support for the proposition that the Bossier Parish School

Board in fact resisted adopting a redistricting plan that would

have created majority black districts” and a “tenacious

determination to maintain the status quo,” in which all

election districts were majority white, App. 7a, it once again

precleared the 12-of-12 majority white election district plan.

A. This Court’s Decision Vacating and Remanding the

First Declaratory Judgment.

This Court decided two questions in its review of the D.C.

District Court’s first judgment granting preclearance of the

Board’s proposed redistricting plan:

(i) whether preclearance must be denied under § 5

whenever a covered jurisdiction’s new voting “standard,

practice, or procedure” violates § 2 [of the Voting Rights

Act]; and

(ii) whether evidence that a new “standard, practice, or

procedure” has a dilutive impact is always irrelevant tc

the inquiry whether the covered jurisdiction acted with

“the purpose . . . of denying or abridging the right to vote

on account of race or color” under § 5.

App. 29a-30a.

The Court first reviewed the Board’s process of

redistricting following the 1990 census:

[The Board] considered, and initially rejected, the

redistricting plan that had been recently adopted by the

Bossier Parish Police Jury, the parish’s primary

governing body (the Jury plan), to govern its own

elections. Just months before, the Attorney General had

precleared the Jury plan, which also contained 12

districts. ... (Stipulations, 468). None of the 12

districts in the Board’s existing plan or in the Jury plan

contained a majority of black residents. ... (Stipulations,

§ 82) (under 1990 population statistics in the Board’s

existing districts, the three districts with highest black

concentrations contain 46.63%, 43.79%, and 30.13%

black residents, respectively);. ... (Stipulations, 4 59)

(population statistics for Jury plan, with none of the

plan’s 12 districts containing a black majority). Because

the Board’s adoption of the Jury plan would have

maintained the status quo regarding the number of black-

majority districts, the parties stipulated that the Jury plan

was not “retrogressive.”... (Stipulations, 4252). ...

Appellant George Price, president of the local chapter of

the NAACP, presented the Board with a second option —

a plan that created two districts each containing not only

a majority of black residents, but a majority of voting-age

black residents. ... (Stipulations, 498). Over vocal

opposition from local residents, black and white alike, the

Board voted to adopt the Jury plan as its own... . .

App. 30a-3 1a (citations omitted).

The Court recounted that the Attorney General rejected the

Board’s proposed redistricting plan when it was submitted

for preclearance, on grounds that it would violate § 2 of the

Voting Rights Act, 42 U.S.C. §1973, “because it

‘unnecessarily limit{[ed] the opportunity for minority voters

to elect their candidates of choice.” App. 32a. The Attorney

General had concluded that black residents are sufficiently

numerous and geographically compact to form a majority in

two of the 12 election districts. /d. at 31a-32a.

While the Court concluded that a voting change should not

automatically be denied preclearance under § 5 of the Voting

Rights Act, because the change would violate § 2 of the Act,

App. 33a-45a, it held that evidence of minority vote dilution

should not be excluded in a § 5 preclearance proceeding. A

remand was necessary because it was not clear whether the

District Court considered proffered evidence that would be

relevant toa § 2 claim in order to determine whether the

redistricting plan has the “purpose ... of denying or

abridging the right to vote on account of race or color.”

42 U.S.C. § 1973c (App. 45a-51a).

The Court commended to the D.C. District Court on

remand the factors relevant to determining discriminatory

intent for purposes of Fourteenth Amendment analysis,

outlined in Village of Arlington Heights v. Metropolitan

Housing Development Corp., 429 U.S. 252, 265 (1977):

The _ “important Starting point” for assessing

discriminatory intent under Arlington Heights is “the

impact of the official action whether it ‘bears more

heavily on one race than another.” 429 U.S., at 266

(citing Washington v. Davis, 426 U.S. 229, 242 (1976)).

In a § 5 case, “impact” might include a plan’s

retrogressive effect and, for the reasons discussed above,

its dilutive impact. Other considerations relevant to the

purpose inquiry include, among other things, “the

historical background of the [jurisdiction’s] decision”;

[t]he specific sequence of events leading up to the

challenged decision”; “{djepartures from the normal

procedural sequence”; and “[t]he legislative or

administrative history, especially . . . [any] contemporary

a ae by members of the decisionmaking body.”

, at .

App. 49a.

The Court concluded:

Because we are not satisfied that the District Court

considered evidence of the dilutive impact of the Board’s

redistricting plan, we vacate this aspect of the District

Court’s opinion. The District Court will have the

opportunity to apply the Arlington Heights test on remand

as well as to address appellants’ additional arguments that

it erred in refusing to consider evidence that the Board

was in violation of an ongoing injunction “to ‘remedy

any remaining vestiges of [a] dual [school] system’,” 907

F. Supp., at 449, n. 18.

App. 50a-5 la.

The Court noted that it was leaving “open for another day

the question whether the § 5 purpose many ever extends

beyond the search for retrogressive intent. . . Reserving this

question is particularly appropriate when, as in this case, it

was not squarely addressed by the decision below or in the

parties’ briefs on appeal. ... The existence of such a [non-

retrogressive but nevertheless discriminatory] purpose, and

its relevance to § 5, are issues to be decided on remand.”

App. 45a-46a (citations omitted).

B. The District Court’s Analysis on Remand.

Soon after this Court issued its mandate, the three-judge

D.C. District Court called for short memoranda from the

parties setting forth their views of what further proceedings

should be required. * The court required the parties to state

“whether the record needs to be re-opened” and whether

additional briefs were required.” The record was not re-

opened on remand to receive the results of the School Board

elections held in March and April 1996 under the Jury plan,

because the parties agreed “that there is no need to reopen the

2 Order filed Aug. 13, 1997, Civ. No. 94-1495. On remand,

United States District Judge James Robertson was assigned to fill

the vacancy on the panel left by the death of Judge Charles

Richey. The panel on remand accordingly consi of Judge

Robertson, District Judge Gladys Kessler, and Circuit Judge

Laurence H. Silberman.

: Id.

evidentiary record." In fact, this Court had denied a Board

motion to supplement the record on the first appeal with the

1996 election results. Reno v. Bossier Parish Sch. Bd, 517

U.S. 1154 (1996). The court set a schedule for further

briefing on the application of the Arlington Heights criteria to

the largely stipulated record previously developed and “on

the relevance to SectionS of a non-retrogressive, but

nevertheless discriminatory, ‘purpose{.]’” *

The D.C. District Court received the parties’ briefs on those

issues, but ostensibly “decline[d]” to address whether §5’s

purpose prong encompasses a search for discriminatory intent

beyond retrogressive intent. App. 3a. The court searched the

record, however, only for retrogressive intent: “The question

we will answer . is whether the record disproves Bossier

Parish’s retrogressive intent in adopting the Jury plan.”

Id. at 4a (emphasis added). The court applied the Arlington

Heights factors to this limited question:

1. Effect of the Plan. The D.C. District Court pointed

out that “[t}he first Arlington Heights factor is ‘the impact of

the official action -- whether it bears more heavily on one

race than another."” App. 5a, quoting Arlington Heights, 429

U.S. at 266. The court noted the argument of Mr. Price and

the other intervening defendants that the redistricting

worsened the position of black voters by diminishing slightly

the percentage of black voting age population in two of the

12 election districts, but concluded that the parties had

“stipulated the point away” by agreeing that these reductions

are “de minimis.” App. 6a. The court next addressed “other

allegedly dilutive impacts of the Jury plan”: “that some of

the new districts have no schools, that the plan ignores

attendance boundaries, that it does not respect communities

of interest, that there is one outlandishly large district, that

several of them are not compact, that there is a lack of

contiguity, and that the population deviations resulting from

4 Order filed Sept. 9, 1997, Civ. No. 94-1495.

5 —Id., quoting Reno v. Bossier Parwh Sch. Bd, 520 US.

471, 486 (1997) (App. 46a).

the jury plan are greater than the limits (+ 5%) imposed by

Louisiana law.” Jd The court conceded that “[t}wo of those

points -- failure to respect communities of interest and cutting

across attendance boundaries -- might support a finding of

retrogressive intent,” id (emphasis added), but thought the

point “too theoretical, and too attenuated, to be probative.”

2. Historical Background of the Adoption of the

Plan. The D.C. District Court characterized its previous

findings on the historical background of the Jury plan as

“provid{ing] powerful support for the proposition that the

Bossier Parish School Board in fact resisted adopting a

redistricting plan that would have created majority black

districts.” Jd at 7a. In this context, the panel majority

addressed for the first time the history of “the school board's

resistance to court-ordered desegregation, and particularly its

failure to comply with the order of the United States District

Court in Lemon v. Bossier Parish School Board, 240 F.

Supp. 709 (W.D. La. 1965), aff'd, 370 F.2d 847 (Sth Cir.

1967), cert. denied, 388 U.S. 911 (1967), that it maintain a

bi-racial committee to ‘recommend to the School Board ways

to attain and maintain a unitary system and to improve

education in the parish.”” App. 7a, quoting Stipulation § 111.

The court found that the intent proved by that history “is a

tenacious determination to maintain the status quo.” /d

This, however, the court found “is not enough to rebut the

School Board’s prima facie showing that it did not intend

retrogression.” Id. (emphasis added).

The D.C. District Court conducted only a summary review

of the other Arlington Heights factors. The pattern on each is

the same: The court found fact after fact that supports the

conclusion that the Jury plan was adopted with racial animus,

but minimized that evidence because the Jury plan did not set

back even further the voting position of the black citizens of

Bossier Parish.

3. Specific Sequence of Events Leading to the

Decision to Adopt the Jury Plan. The D.C. District Court

found that the sequence of events “does tend to demonstrate

the school board's resistance to the NAACP plan; it does not

demonstrate retrogressive intent.” Id. (emphasis added).

4. Board Departures from Normal Practice. The

court referenced its earlier review of evidence “tending to

establish that the board departed from its normal practices,”

and found that it “establishes rather clearly that the board did

not welcome improvement in the position of racial minorities

with respect to their effective exercise of the electoral

franchise,” but concluded that such “is not evidence of

retrogressive intent.” Id. (emphasis added).

5. Contemporary Statements of Participants. The

D.C. District Court referred back to its earlier findings

concerning such statements, and concluded that “[t}hey do

not _— retrogressive intent.” Id at 8a (emphasis

Judge Gladys Kessler once again dissented, because she

remained convinced that the Board’s decision to adopt the

Jury plan was motivated by discriminatory purpose. /d at

12a. Judge Kessler pointed out that her “colleagues have

limited their § 5 purpose inquiry to a search for intent to

retrogress and have declined to consider whether the § 5

inquiry ever extends beyond that search for retrogressive

intent.” Jd at 13a. That analysis, in Judge Kessler’s view,

“avoid[ed} carrying out the Supreme Court's directive to (1)

inquire into the existence of ‘some nonretrogressive, but

nevertheless discriminatory, purpose’; and (2) determine the

relevance of such a purpose (should one exist) to [the] § 5

inquiry.” /d. (internal quotation omitted).

Since the parties agreed that the Board’s proposed

redistricting plan would not have a retrogressive effect, Judge

Kessler first addressed whether a nonretrogressive but

nonetheless discriminatory purpose to deny or abridge the

right to vote on account of race or color warrants denial of

preclearance under § 5. She reasoned that if the court “were

to deny preclearance under §5 only to those new plans

enacted specifically with a retrogressive purpose, [it]

would commit [itself] to granting §5 preclearance to a

‘resistant’ jurisdiction’s nonretrogressive plan even if the

record demonstrated an intent by that jurisdiction to

perpetuate an historically discriminatory status quo by

diluting minority voting strength.” /d at 17a. Because “a

construction of § 5 that limits its purpose inquiry to a search

for retrogressive intent could require us to preclear

nonretrogressive but nevertheless unconstitutional voting

plans,” id (emphasis in original), Judge Kessler concluded

that the purpose inquiry does extend beyond a search for

retrogressive intent.

That conclusion prompted Judge Kessler to review again

the full range of the evidence demonstrating the real reasons

why the Board adopted the Jury plan. She cited the Board’s

admission in a stipulation that it is “obvious that a

reasonably compact black-majority district could be drawn in

Bossier City.” /d at 19a, quoting Stipulation { 36.

Stipulations also demonstrate that the Parish is racially

polarized, id at 19a, citing Stipulations 4181-96, and “that

no black person ha[d] been elected to the Bossier Parish

School Board despite the fact that 20.1% of the population is

black.” Jd. (footnote omitted), citing Stipulations $9153, 5.

Bossier Parish has a history, recounted by Judge Kessler, of

official and voting-related discrimination including

implementation by the State of Louisiana of procedures since

the adoption of the Voting Rights Act that dilute minority

voting strength. /d at 20a-2la. Reviewing her previous

assessment of the Arlington Heights factors on these facts,

Judge Kessler reached the same conclusion:

[T]he only conclusion that can be drawn from the

evidence is that the Bossier School Board acted with

discriminatory purpose. The adopted plan has a

substantial negative impact on the black citizens of

Bossier Parish. The sequence of events leading up to the

decision show conclusively how the School Board

excluded the black community from the redistricting

process and rushed to adopt the Police Jury plan only

when faced with an alternative plan that provided for

black representation. The plan itself ignores and

overrides a number of the School Board’s normal

paramount interests. And the statements of some School

Board members certainly lend strength to the other

evidence. . .. We cannot blind ourselves tc the reality of

the situation and the record before us.

App. 23a (citation omitted).

These appeals followed.

SUMMARY OF THE ARGUMENT

_ Section 5 of the Voting Rights Act calls for a declaratory

judgment by the D.C. District Court preclearing a voting

change where the covered jurisdiction can establish that the

change “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.” Section 5 echoes the words of the Fifteenth

Amendment to the Constitution, which is the authority for

Congress’ enactment of the Voting Rights Act: “The right of

citizens of the United States to vote shall not be denied or

abridged by the United States or by any State on account of

race, color, or previous condition of servitude.”

This Court's cases reviewing the D.C. District Court’s § 5

decisions establish core principles supporting the conclusion

that the discriminatory “purpose” that bars preclearance of a

voting change under § 5 is as broad as the discrimination

prohibited by the Constitution:

e The “purpose” and “effect” inquiries both must be

conducted in order to determine whether a proposed

voting change passes muster under § 5.

e Even if the effect of a voting change is not

retrogressive, the proposed change will not be

precleared if it was motivated by a discriminatory,

¢ The test for determining whether a voting change was

motivated by a discriminatory purpose is set forth in

Arlington Heights.

Consistent with these principles, on remand the D.C.

District Court should have applied the Arlington Heights

factors to determine whether any racially discriminatory

purpose to deny or abridge the right to vote motivated the

redistricting plan submitted by the Bossier Parish School

Board, without restricting its analysis to a search for

“retrogressive intent.” The D.C. District Court applied the

Arlington Heights factors, but in its analysis of each

Arlington Heights element it addressed only whether the

evidence demonstrated “retrogressive intent.” See App.

5a-8a. That limitation should not be read into the “purpose”

analysis under §5 because it has no foundation in the

language or history of the statute, or in the § 5 decisions of

this Court. Indeed, the Court has decided “purpose” cases

that would have had a different result if its analysis had been

limited to a search for purpose to retrogress. Moreover,

limiting “purpose” to “retrogressive intent” would require the

Attorney General and the D.C. District Couri to preclear

voting changes that violate the Constitution.

The D.C. District Court found that the Board’s adoption of

the Jury plan violated traditional districting principles and

reflected a strong resolve to maintain 12-of-12 majority-

white election districts. The Board sought through its

redistricting to maintain a status quo characterized by non-

compliance with its unsatisfied desegregation obligations.

Under a proper application of the Arlington Heights analysis,

these conclusions warrant reversal of the judgment below and

denial of preclearance of Bossier’s redistricting plan.

ARGUMENT

I. THE WORDS OF § 5, AND DECISIONS OF THIS

COURT APPLYING THEM, MAKE CLEAR THAT

THE “PURPOSE ... OF DENYING OR ABRIDGING

THE RIGHT TO VOTE ON ACCOUNT OF RACE OR

COLOR” IS ANY UNCONSTITUTIONAL, RACIALLY

DISCRIMINATORY PURPOSE.

The critical error of the D.C. District Court on remand was

in its failure to recognize the many cases holding that

consideration of purpose is not limited to a search for

retrogression. The analysis of “purpose” and “effect” are not

the same, and both must be conducted in a declaratory

judgment action seeking preclearance of a voting change:

“By describing the ¢'ements of discriminatory purpose and

effect in the conjunctive, Congress plainly intended that a

voting practice not be precleared unless both discriminatory

purpose and effect are absent.” City of Rome v. United

States, 446 U.S. 156, 172 (1980) (emphasis in original);

accord Lopez v. Monterey County, 119 S. Ct. 693, 703

(1999) (“once a jurisdiction has been designated, [§ 5 of] the

Act may guard against both discriminatory animus and the

potentially harmful effect of neutral laws in that jurisdiction”)

(emphasis in original). Giving meaning to both “purpose”

and “effect” implements the common-sense principle of

statutory construction that sections of a statute generally

should be read to give effect, if possible, to every clause.

Heckler v. Chaney, 470 U.S. 821, 829 (1985) (finding

distinct applications for two provisions of Administrative

Procedure Act).®

This Court’s cases applying the “purpose” prong of § 5

confirm that the purpose analysis is not the same as the effect

test, and is not limited to retrogressive intent. The D.C.

District Court’s limitation of purpose to retrogressive intent

would require preclearance of voting changes adopted with

an unconstitutional discriminatory purpose.

6 — See also United States v. Albertini, 472 U.S. 675, 682-83

(1985) (declining to read statute in way that renders one paragraph

su uous); ited States v. Menasche, 348 U.S. 528, 538-39

(1955) (quoting Montclair v. Ramsdell, 107 U.S. 147, 152 (1883)

and refusing to “emasculate an entire section” of Immigration and

Nationality Act because it is the Court’s “duty ‘to give effect, if

possible, to every clause and word of a statute”).

A. In Cases Evaluating Whether a Voting Change

Satisfies §5, This Court Has Examined the Full

Scope of Discriminatory Purpose that Could Violate

the Constitution.

This Court’s § 5 decisions are based on the principle that

“{t]he Voting Rights Act of 1965 reflects Congress’ firm

intention to rid the country of racial discrimination in

voting.” South Carolina v. Katzenbach, 383 U.S. 301, 315

(1966) (footnote omitted). In Katzenbach, the Court upheld

the constitutionality of challenged sections of the Voting

Rights Act, including § 5, as a valid exercise of Congress’

authority under the Fifteenth Amendment. /d at 327.

Section 5 is an appropriate exercise of congressional power

because a judicial determination to preclear a voting change

“is a judicial determination that continued suspension of the

new rule is unnecessary to vindicate rights guaranteed by the

Fifteenth Amendment.” /d. at 335. An analysis of whether a

proposed voting change reflects a discriminatory purpose that

would offend the Constitution is the touchstone for

preclearance, since “[t]he Act suspends new voting

regulations pending scrutiny by federal authorities to

determine whether their use would violate the Fifteenth

Amendment.” /d. at 334.

A determination whether a proposed voting change “will

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

on account of race or color” calls for some prediction, as

Congress’ use of the future tense suggests, of how a voting

change will operate in practice. Where redistricting is at

issue, “a legislative reapportionment that enhances the

position of racial minorities with respect to their effective

exercise of the electoral franchise can hardly have the ‘effect’

of diluting or abridging the right to vote on account of race

within the meaning of § 5.” Beer v. United States, 425 US.

130, 141 (1976). The Court accordingly concluded in Beer

that a new apportionment plan for the New Orleans City

Council did not have the “effect” of denying or abridging the

right to vote on account of race or color, since the old

apportionment plan had five councilmanic districts, in one of

which blacks were a majority of the population and about

half of the registered voters. /d at 135. Under the new post-

1970-census plan, two districts had black population

oo and one district had a black voter majority. Jd. at

The key to the Court’s analysis in Beer is the selection of

the baseline for comparison with the new plan to determine

whether the new plar will have the “effect” of denying or

abridging the right to vote on account of race or color. The

Court rejected the proposition that comparison of the

“mathematical potential” of black majority districts and

“predicted reality” under the new plan was appropriate. /d. at

137. Instead, the Court held that the “effect” prong is

properly measured in the redistricting context by comparing

the old and proposed new plans. Where the new plan is an

“ameliorative new legislative apportionment,” it does not

— red “effect” of denying or abridging the right to vote.

. at ‘

The Court carefully explained in its Beer holding that the

analysis of “effect” did not change the principle that voting

changes in violation of the Constitution should be denied

preclearance under the “purpose” prong of §5: “We

conclude, therefore, that such an ameliorative new legislative

apportionment cannot violate §5 unless the new

apportionment itself so discriminates on the basis of race or

color as to violate the Constitution.” Id. at 141 (emphasis

added). The Court explained why even a voting change with

no retrogressive effect should be rejected if it manifests a

discriminatory purpose: “It is possible that a legislative

reapportionment could be a substantial improvement over its

predecessor in terms of lessening racial discrimination, and

yet nonetheless continue so to discriminate on the basis of

race or color as to be unconstitutional.” /d at 142 n.14.

Because facts demonstrating discriminatory purpose were not

present in Beer, and the effect of the redistricting plan was

not retrogressive, preclearance was granted.

Beer built on the Court’s holding in City of Richmond v.

United States 422 U.S. 358 (1975), in which the D.C. District

Court had refused to preclear annexation of an area of

Chesterfield County to the City of Richmond, Virginia, on

grounds that it was discriminatory both in its purpose anc

effect. City of Richmond v. United States, 376 F. Supp. 1344

(D.D.C. 1974), vacated, 422 U.S. 358 (1975). The D.C.

District Court relied on evidence that the City initially

proceeded without seeking the preclearance mandated by § 5,

that no legitimate purpose for annexation had been shown,

and that a proposed post-election ward system had not

minimized to the extent possible the dilution of black voting

strength that would be caused by annexing an area with a

more substantial pr>portion of white voters than were present

in the City before annexation. City of Richmond, 422 U.S. at

367.

This Court held in City of Richmond that an annexation has

the effect of denying or abridging the right to vote on account

of race or color only if the resulting election system fails to

fairly reflect the voting strength of the black community as it

exists after the annexation; the Court rejected the notion that

an annexation should be rejected for preclearance because the

black community will lose relative influence in the City. /d

at 370-72. Although the Court concluded that the effect of

the annexation did not violate § 5, it went on to weigh

whether it had a racially discriminatory purpose. /d. at 372.

The Court remanded for further proceedings to consider

possible legitimate, non-discriminatory reasons for the

annexation, a remand that would have been meaningless if

the absence of retrogression were dispositive. The Court

made very clear in City of Richmond why the inquiry into

purpose is required, even if a voting change is not

retrogressive:

We have helc that an annexation reducing the relative

political strength of the minority race in the enlarged city

as compared with what it was before the annexation is not

a statutory violation as long as the post-annexation

electoral system fairly recognizes the minority’s political

potential. If this is so, it may be asked how it could be

forbidden by § 5 to have the purpose and intent of

achieving only what is a perfectly legal result under that

section and why we need remand for further proceedings

with respect to purpose alone. The answer is plain, and

we need not labor it. An official action, whether an

annexation or otherwise, taken for the purpose of

discriminating against Negroes on account of their race

has no legitimacy at all under our Constitution or under

the statute. Section 5 forbids voting changes taken with

the purpose of denying the vote on the grounds of race or

color. Congress surely has the power to prevent such

gross racial slurs, the only point of which is “to despoil

colored citizens, and only colored citizens, of their

theretofore enjoyed voting rights.” Gomillion v.

Lightfoot, 364 U.S. 339, 347 (1960). Annexations

animated by such a purpose have no credentials

whatsoever; for “[a]cts generally lawful may become

unlawful when done to accomplish an unlawful end. . . .”

Western Union Telegraph Co. v. Foster, 247 U.S. 105,

114 (1918); Gomillion v. Lightfoot, supra, at 347. An

annexation proved to be of this kind and not proved to

have a justifiable basis is forbidden by § 5, whatever its

actual effect may have been or may be.

City of Richmond, 422 U.S. at 378-79. Accord Miller v.

Johnson, 515 U.S. 900, 924 (1995) (“[a}]meliorative changes,

even if they fall short of what might be accomplished in

terms of increasing minority representation, cannot be found

to violate section 5 unless they so discriminate on the basis of

race or color as to violate the Constitution”) (citation

omitted); City of Port Arthur v. United States, 459 U.S. 159,

168 (1982) (even an electoral scheme that “might otherwise

be said to reflect the political strength of the minority

community . . . would nevertheless be invalid if adopted for

racially discriminatory purposes, ie., if [a] majority-vote

requirement...had been imposed for the purpose of

excluding blacks from any realistic opportunity to represent

those districts or to exercise any influence on Council

members elected to those positions. City of Richmond v.

United States, 422 U.S., at 378-379”).

This Court’s affirmances after Beer and City of Richmond

in City of Pleasant Grove v. United States, 479 U.S. 462

(1987) and Busbee v. Smith, 459 U.S. 1166 (1983), further

establish that the discriminatory “purpose” prohibited by § 5

is not limited to retrogressive intent. The voting changes at

issue in those cases were not retrogressive, but were

nonetheless rejected because they were infected with

discriminatory purpose.

Pleasant Grove, \ike Richmond, was an annexation case.

The City of Pleasant Grove, Alabama, was “an all-white

enclave in an otherwise racially mixed area of Alabama.”

City of Pleasant Grove, 479 U.S. at 465 (citation omitted).

Pleasant Grove annexed two parcels of land, one of which

was uninhabited and one of which was home to an extended

white family. /d. at 465-66. While these annexations were in

process, Pleasant Grove rejected the annexation of an

adjacent black neighborhood and attempted to cut off that

area’s fire protection and paramedic services. /d. at 466. The

D.C. District Court found no prohibited effect under § 5,

because it could noi be said that annexation of a white area

that did not alter the racial composition of the voting

population had a retrogressive “effect” as described in Beer.

City of Pleasant Grove v. United States, 568 F. Supp. 1455,

1458-59 (D.D.C. 1983). The court found, however, that

summary judgment preclearing the annexation could not be

granted because of evidence of discriminatory purpose under

the Arlington Heights analysis. The City’s history of

discriminatory policies and practices included ordinances “to

restrict colored property,” opposition to a “colored housing

project,” refusal to annex black residential areas, and

maintenance of a segregated school system. /d. at 1456-57.

After trial on the merits, the D.C. District Court denied

preclearance based on the purpose prong alone. City of

Pleasant Grove v. United States, 623 F. Supp. 782 (D.D.C.

1985), aff'd, 479 U.S. 462 (1987).

This Court affirmed, holding that the trial court’s findings

were not clearly erroneous that Pleasant Grove’s economic

justifications for treating adjacent white and black areas

differently were flawed pretexts developed after the fact.

Pleasant Grove, 479 U.S. at 470. The Court specifically

rejected Pleasant Grove’s argument that “since the

annexation could not possibly have caused an impermissible

effect on black voting, it makes no sense to say that appellant

had a discriminatory purpose.” /d at 471. A covered

jurisdiction cannot “short-circuit a purpose inquiry under § 5

by arguing that the intended result was not impermissible

under an objective effects inquiry.” /d. at 471 n.11, citing

City of Richmond, 422 U.S. at 378-79. Section 5 prohibits

voting changes with discriminatory purposes beyond the

dilution of existing minority voting strength, the Court

concluded, because:

One means of thwarting this process [fof racial

integration] is to provide for the growth of a monolithic

white voting block, thereby effectively diluting the black

vote in advance. This is just as impermissible a purpose

as the dilution of present black voting strength. Cf. City

of Richmond, supra, at 378. To hold otherwise would

make appellant’s extraordinary success in resisting

integration thus far a shield for further resistance.

Nothing could be further from the purposes of the Voting

Rights Act.

City of Pleasant Grove, 479 U.S. at 472.

In Busbee v. Smith, 459 U.S. 1166, this Court summarily

affirmed the D.C. District Court’s conclusion that the

Georgia congressional redistricting following the 1980

census could not be precleared under § 5 because it was

tainted with discriminatory purpose, although “the voting

plan does not have a discriminatory effect, as that term has

been construed under the Voting Rights Act.” Bushee v.

Smith, 549 F. Supp. 494, 516 (D.D.C. 1982), aff'd, 459 U.S.

1166 (1983) (relying on Beer, 425 U.S. at 141). The D.C.

District Court found no retrogressive effect, because there

was one majority black congressional district in the Atlanta

area in both the previous and proposed plans; that district

gained a few percentage points in black population under the

proposed plan. Busbee, 549 F. Supp. at 498, 516. The

court’s findings of discriminatory purpose, as in Pleasant

Grove, were based on application of the Arlington Heights

factors. Jd. at 517. The court found overt racial statements

(such as statements by the Chairman of the House Permanent

Standing Committee on Legislative and Congressional

Reapportionment opposing drawing of a “nigger district,”

549 F. Supp. at 512); the conscious minimization of black

voting strength in the Atlanta area (especially as contrasted

with efforts to consolidate communities with consistent

interests in other parts of the state, such as the mountains of

North Georgia); a history of invidious discrimination; and the

absence of legitimate non-racial reasons for the plan. /d.

The process was questionable as well. By excluding black

legislators “solely because of their race . . . from the final-

decision making process,” -- a legislative conference

committee -- and entrusting those decisions to “whites who,

for racially discriminatory reasons, opposed the creation of a

district which might allow black voters an opportunity to

elect a candidate of their choice,” the process failed to

function in a nondiscriminatory manner. /d. at 518.

The D.C. District Court stressed that it expressed no view

as to what congressional redistricting plan the Georgia

legislature should adopt, and that its “decision does not

require the State of Georgia to maximize minority voting

strength in the Atlanta area.” /d at 518. The court

concluded: “The State is free to draw the districts pursuant to

whatever criteria it deems appropriate so long as the effect is

not racially discriminatory and so long as racially

discriminatory purpose is absent from the process.” Jd.

On appeal, the State of Georgia appellants specifically

sought this Court’s review of whether a voting plan that lacks

the effect of diminishing black voting strength can be held to

have a discriminatory purpose. This Court summarily

affirmed. Bushee, 459 U.S. 1166.

7 The questions presented in Busbee were:

A. Whether a Congressional reapportionment plan that has

no discriminatory effect, that enhances black voting

B. Until This Case, the D.C. District Court Had Not

Limited the Analysis of “Purpose” Under §5 to

Intent to Retrogress.

The D.C. District Court in numerous § 5 cases since Beer--

in addition to Bushee and City of Pleasant Grove-- has

evaluated whether a proposed voting change has a

retrogressive effect; regardless of that result, the court also

ren cee come > eae fenect of

purpose, with Arlington Heights and

Washington v. Davis setting the framework for the analysis.

For example, where a voting change -- the creation of new

judgeships -- was found not to have a retrogressive effect, the

D.C. District Court has granted summary judgment to a

covered jurisdiction on the effect prong of the analysis, but

has permitted the United States to conduct discovery into

purpose in order to develop evidence regarding the Arlington

Heights factors. Arizona v. Reno, 887 F. Supp. 318 (D.D.C.

1995), appeal dismissed, 516 U.S. 1155 (1996). Accord

Georgia v. Reno, 881 F. Supp. 7, 11, 14 (D.D.C.), aff'd sub.

nom. Brooks v. Georgia, 516 U.S. 1021 (1995) (finding

neither effect nor purpose in creation of new judgeships);

Texas v. United States, 866 F. Supp. 20, 27-28 (D.D.C. 1994)

(summary judgment denied on both purpose and effect

prongs because of disputed facts concerning change from

elected to appointed governing board). *

— and that provides blacks with equal access to the

= process can be deemed to violate Section 5 of the

oting Rights A Act.

B. Whether a Congressional reapportionment plan that

does not have the purpose of diminishing the existing

level of black voting strength can be deemed to have the

purpose of denying or abridging the right to vote on

account of race within the meaning of Section 5 of the

Voting Rights Act.

Jurisdictional Statement at i, Busbee v. Smith, 459 U.S. 1166.

8 = Accord County Council of Sumter County v. United States,

oy 96 F. Supp. 35 (D.D.C. 1984) (change to at-large election system

for county council had both the purpose and effect of denying or

Since Beer, the D.C. District Court has measured the effect

prong by analyzing retrogression, but, until the decision

below, the D.C. District Court had never, so far as we are

able to discover, restricted a §5 “purpose” analysis to a

search for retrogressive intent. See New York v. United

States, 874 F. Supp. 394, 399-400 (D.D.C. 1994) (creation of

new judgeships precleared; “preclearance under section 5

represents nothing more than an official determination that a

proposed voting change will not diminish the position of

minority voters and that it was not undertaken for a

discriminatory purpose”); Texas v. United States, 785 F.

Supp. 201, 203-04 (D.D.C. 1992) (“Plaintiff's burden in a

suit for declaratory judgment under section 5 is twofold:

First, it must demonstrate that the redistricting plan does not

lead to a retrogression in the position of racial minorities;

second, the State must demonstrate that the plan is free of a

discriminatory purpose. Even if a change is ‘ameliorative,’ it

may violate Section 5 if it “so discriminates on the basis of

race or color as to violate the Constitution” (quoting Beer,

425 U.S. at 141)).

C. The “Retrogression” Limitation on the “Purpose”

Analysis Imposed by the Court Below Is

Inconsistent with the Intent of Congress.

The court below ruled that “[t]he language of Beer

[defining retrogression in terms of a comparison of an old

election plan to the proposed plan] is just as applicable to the

‘purpose’ inquiry as to the ‘effect’ inquiry.” App. 4a. To be

sure, this Court explained in Beer that “the purpose of § 5 has

always been to insure that no voting-procedure changes

would be made that would lead to a retrogression in the

position of racial minorities with respect to their effective

exercise of the electoral franchise.” Beer, 425 U.S. at 141;

see City of Lockhart v. United States, 460 U.S. 125, 133

abridging right to vote based on race); Hale County v. United

States, 496 F. Supp. 1206, 1218 (D.D.C. 1980) (change to at-large

elections for the Hale County, Alabama county sinlicine the rig had

both the purpose and effect of den nving 0 are ing the right to

vote on account of race; Arlington factors oe

sii OF 9, 6s tes Sead Cabienas tan Gabe Seteensty

voters as compared to some earlier level. Voter registration

and election participation by black voters in some parts of

this country in 1965 was almost non-existent. This Court in

Katzenbach summarized the evidence that was before the

Congress when it first enacted the Voting Rights Act:

According to estimates by the Attorney General during

hearings on the Act, registration of voting-age Negroes in

Alabama rose only from 14.2% to 19.4% between 1958

and 1964; in Louisiana it barely inched ahead from

31.7% to 31.8% between 1956 and 1965; and in

Mississippi it increased only from 4.4% to 6.4% between

1954 and 1964. In each instance, registration of voting-

age whites ran roughly 50 percentage points or more

ahead of Negro registration.

Katzenbach, 383 U.S. at 313.

Congress made clear through its adoption of multiple

means of combating discrimination in voting that it knew the

job would be massive. Congress authorized new kinds of

litigation to secure voting rights, 42 U.S.C. §§ 1973, 1973a;

the use of tests and devices in determining

eligibility to vote in certain states and political subdivisions

where voter registration and participation were very low, 42

U.S.C. § 1973b; and imposed the preclearance requirement in

§ 5 for new voting qualifications or prerequisites.

There is no evidence that Congress thought that the

enactment of these tools through passage of the Voting

Rights Act would create such a level baseline of

nondiscriminatory voting opportunity that Congress intended

in § 5 only to bar deterioration in the opportunity of blacks to

vote. The perpetuation of discrimination through new

devices with the purpose of keeping black citizens we

participating as voters, even if the new devices were merely

as effective as the old ones, would insure that the promise of

the Fifteenth Amendment could not become a reality. It is in

this context that this Court, in its voting rights decision

closest to the date of the passage of the Act, observed that

numerous discriminatory requirements and stratagems to bar

black citizens from voting had been outlawed by federal

courts, but “some of the States affected have merely switched

to discriminatory devices not covered by the federal decrees

or have enacted difficult new tests designed to prolong the

existing disparity between white and Negro registration.”

Katzenbach, 383 U.S. at 314 (footnote omitted) (emphasis

added). Accord Rogers v. Lodge, 458 U.S. 613, 625 (1982)

(affirming denial of § 5 preclearance of voting change due to

purposeful discrimination evident in part through “practices

which, though neutral on their face, serve to maintain the

status quo”). The Voting Rights Act was designed to combat

a discriminatory status quo as well as to avoid future

retrogression.

Congress has not limited the overall reach of §5 to

retrogressive voting changes as the circumstances of black

and other minority voters have improved. In the

reauthorization of the Voting Rights Act in 1982, the

Committee on the Judiciary off of the House of Representatives

found “that there has been much progress in increasing

registration and voting rates for minorities since the passage

of the Voting Rights Act of 1965,” but that “these gains are

fragile. The registration figures for minorities remain

substantially lower than those for white voters.” H.R. Rep.

No. 97-227 at 7 (1981). In light of that evidence, and

evidence of continued discrimination in registration and

voting through a variety of mechanisms, the Judiciary

Committee recommended and the Congress approved the

extension of § 5, the “speedy review mechanism to correct

existing Fifteenth Amendment violations and to prevent

future voting discrimination,” with no change in the language

of § 5 that would limit “purpose” to purpose to retrogress.

Id. at 13.

D. Limiting the Purpose Inquiry Under §5 to

e Intent Would Require Preclearance of

Voting Changes that Violate the Constitution.

This Court and the Congress have linked § 5 preclearance

to the goal of barring voting changes that discriminate on the

basis of race or color. It takes no imagination to identify

voting changes that should be denied preclearance under § 5

because of their discriminatory purpose, but that would not

be halted if the search for purpose is limited to “purpose to

retrogress.” This Court has held that certain voting practices

or requirements violate the Fourteenth or Fifteenth

Amendment although they do not present “retrogression” in

anything like the numerical sense addressed in Beer. For

example, if a covered jurisdiction were to seek a declaratory

judgment preclearing a rule requiring candidates to be

identified by race on the ballot, that change should be denied

preclearance. Such a requirement violates the equal

protection clause of the Fourteenth Amendment. See

Anderson v. Martin, 375 U.S. 399, 402 (1964). Yet that type

of voting change is not readily analyzed under a retrogression

test. Fact issues could be extensive in litigation over whether

listing of race on the ballot would have an impact on voting

patterns. Regardless of whether such a requirement would

gain or lose votes for candidates by race, it should be denied

preclearance because it represents government's endorsement

of consideration of race in the casting of ballots. /d

If a covered jurisdiction proposed preclearance of a rule

requiring the disenfranchisement of misdemeanants

convicted of crimes involving moral turpitude, for example,

preclearance should be denied if the jurisdiction does not

demonstrate the absence of a racially invidious intent to limit

the eligibility of black voters. See Hunter v. Underwood,

471 U.S. 222 (1985). Fact and opinion witnesses no doubt

would clash in their predictions of whether such a change

would diminish voter participation by race. Whether or not it

is possible to prove that such a device actually would

diminish the practical ability of black citizens to elect

candidates of their choice, such a rule should be denied

preclearance if it is intended to disqualify black voters.

If a covered jurisdiction relocated polling places from

centers that are familiar and readily accessible to black voters

to areas inconvenient and perceived as hostile to the black

community, that veting change is subject to the preclearance

requirement of § 5. See Perkirs v. Matthews, 400 U.S. 379,

387-88 (1971). If the jurisdiction brought the change in

polling places to the D.C. District Court for preclearance, it

should be denied regardless of factual conflicts about whether

black voters would actually be deterred. If white leaders

testified that they changed the polling places just out of

hatred, to force black voters to come to them in order to

participate, it should matter not at all whether a single black

voter would refrain from voting at the new polling place.

Such discrimination should not be dignified with

preclearance since it is unsupported by any rational,

nondiscriminatory basis.

Denial of preclearance to a redistricting plan infected with

a discriminatory purpose that is not retrogressive is important

in jurisdictions like Bossier Parish, in which the existing plan

against which retrogression is measured has no majority

black election districts and only white candidates had ever

been elected to the School Board at the time of the adoption

of the proposed plan. In such jurisdictions, voting changes

imposing any conceivable means of limiting black voter

participation could pass muster under the “effect” prong of

§ 5, as long as they merely hold even the white dominance of

the electoral system. If the “purpose” analysis also is limited

to “intent to retrogress,” the D.C. District Court would have

to preclear even the most flagrantly racist efforts to hold

down a low baseline of meaningful black voter participation.

In short, a covered jurisdiction’s “extraordinary success in

resisting integration” should not become a “shield for further

resistance,” City of Pleasant Grove, 479 U.S. at 472, that

requires preclearance of voting changes that seek only to

maintain the status quo for the racially invidious reason that

the status quo is very favorable to white voters. In

redistricting cases, such a jurisdiction could pass a plan

designed to maintain the status quo, accompanied even with

the most overt and outlandishly racist statements, and still

gain preclearance of its plan.

Congress sought in the Voting Rights Act to break the

status quo, which was characterized by discrimination that

kept meaningful black voting participation at very low

levels. Racially motivated efforts to maintain that status quo

are as invidious and violative of the Constitution as are

efforts to retrogress.

Il. APPLYING THE ARLINGTON HEIGHTS

STANDARD TO THE UNCONTESTED FACTS

BELOW, THIS COURT SHOULD REVERSE

BECAUSE THE BOARD’S PROPOSED DISTRICTING

PLAN WAS MOTIVATED BY A PURPOSE TO

DISCRIMINATE ON THE BASIS OF RACE.

The facts in this case, to a remarkable degree, have been

stipulated by the parties. App. 145a-232a. The summary of

the facts herein relies principally on the stipulations and on

the findings of the majority below, and applies the Arlington

Heights factors, as the D.C. District Court was directed to do

on remand. /d. at 49a.

Because the Board was starting from a baseline of no

majority black election districts, retrogression is not the

salient factor in the inquiry. The Board’s adoption of the

Jury plan was surrounded with racial tension, marked by

irregular procedures and deviations from traditional

districting principles, and what the D.C. District Court found

to be a “tenacious determination to maintain the status quo.”

Id. at 7a. The evidence establishes that preclearance of the

plan should be denied because the Board has not carried its

burden of demonstrating the absence of a purpose to deny or

abridge the right to vote on account of race or color.

A. Effect of the Plan.

In 1992, in response to the need to redistrict for one-

person-one-vote purposes following the 1990 census, the

Board adopted a 12 single-member-district reapportionment

plan with 12 majority-white districts. The Board’s plan

during the 1980s also had no majority black districts. By

1990, however, Bossier Parish, Louisiana had a population

that was 20.1% black, id at 145a-146a (4 5), and a voting age

population that was 17.6% black. /d. at 146a (46). Black

students also comprise 29% of the enrollment in the Parish’s

public schools. /d. at 81a n.2; id. at 191a (4 142). No black

candidate, however, had ever been elected to the 12-member

School Board when the plan was adopted in 1992. /d at

145a (4 4).

As the parties stipulated below, voting patterns in Bossier

Parish are affected by racial preferences. /d at 20la-207a

(49 181-196). The foreseeable impact of the Board’s adoption

of a redistricting plan with all majority-white districts,

therefore, was to ensure that when black voters and white

voters prefer different candidates, white voters’ preferences

will prevail. see id. at 118a-120a, perpetuating the status quo.

The record furthermore showed that the creation of 12

majority-white election districts was not dictated by

adherence to traditional redistricting principles. The parties

stipulated and the court below found that the black

population of the Parish is concentrated in two areas. More

than 50% of the black residents live in Bossier City, App.

79a; id. at 146a-147a (§ 10); another significant percentage of

black residents is concentrated in communities in the

northern rural portion of the Parish. /d. The School Board

stipulated that it was “obvious that a reasonably compact

black-majority district could be drawn within Bossier City,”

id. at 154a-155a (4 36), and that the outlines of a second such

district in the northern part of the parish were “readily

discernible.” /d. at 194a (9148). By fragmenting or

“fracturing” predominantly black residential areas, however,

the Board avoided drawing any majority-black districts. See

id. at 190a-192a (¥¥ 137-138, 142). On remand, Bossier

conceded that “[t]he impact of [its] plan does fall more

heavily on blacks than on whites,” and, more specifically,

that its election plan “did dilute black voting strength.” Brief

In Behalf of Plaintiff on Remand at 12, 21.

The Board's plan not only has a harsh impact on black

voters; it departs substantively from its earlier districting

plans and ignores factors that it had previously considered

paramount. App. 128a-129a. For example, the Police Jury

plan pitted School Board incumbents against one another in

two districts. Jd at 85a. Likewise, as the court below

recognized, the Police Jury plan distributed schools unevenly,

with some election districts containing no schools and other

districts containing sev: ral. Jd at 85a; see also id at 15la,

19la (49 24, 141).

The plan also contained one district that included “almost

half of the geographic area in the Parish,” id. at 129a, several

others that were not compact according to the Board’s own

cartographer, id. at 191a (§ 139), and one district that was not

contiguous. /d. at 6a; J.A. 221-238 (Cooper). The plan also

violated a state law requirement that no election district

deviate from the one-person, one-vote ideal by more than

~o Id. 4 31; La. R.S. 17:71.3 E(2)(a) and E(3)(a) (J.A. 374-

The Board stipulated to facts showing that its plan does

“not respect communities of interest in Bossier Parish.” App.

129a (citing Stipulations §§ 135-37). What the plan did

accomplish was splitting black communities and retaining all

white-majority election districts. The panel majority below

found that those departures from the Board’s traditional

districting criteria “establish{ } rather clearly that the board

did not welcome improvement in the position of racial

minorities with respect to their effective exercise of the

electoral franchise.” /d. at 7a.

B. Historical Background of the Adoption of the Plan.

The adverse effects of racially polarized voting on the

ability of black voters to elect candidates of their choice are

exacerbated in Bossier Parish by the effects of past

discrimination. App. 210a-218a (9213-243). It was

undisputed below that the depressed socioeconomic and

educational levels of black citizens of Bossier Parish make it

hard for them “to obtain necessary electoral information,

organize, raise funds, campaign, register, and turn out to

vote; [these factors] in turn cause a depressed level of

political participation.” Jd. at 207a-210a (¥ 197-202, 206-

213).

The dark history of voting discrimination in Bossier Parish

was undisputed below. /d. at 210a-216a (9 214-232). The

parties stipulated that “vestiges of discrimination persist

which affect the rights of black persons to register, to vote or

otherwise participate in the democrative process.” /d. at 210a

(§ 214). After the passage of the Thirteenth Amendment,

significant numbers of black Louisianans registered to vote.

Id. at 210 (§ 215). Beginning in 1896, however, Louisiana

enacted laws intended to reduce black voting; black

registration decreased by 90% within a few years. App.

121a; id. at 210a-21 1a (4 215-219). In 1921, an amendment

to the State Constitution required persons seeking to register

to vote to “give a reasonable interpretation” of a

constitutional provision. /d at 122a, 21]la-212a (§ 221).

That amendment, which disenfranchised most black citizens,

was not invalidated until 1965. Louisiana v. United States,

380 U.S. 145 (1965). After an all-white Louisiana

Democratic primary was invalidated, the party then adopted

an anti-single-shot rule and a majority-rule requirement for

party office. App. 122a; id. at 212a (222); Major v. Treen,

574 F. Supp. 325, 340-41 (E.D. La. 1983).

The School Board’s history of discrimination in education

against black citizens demonstrates its motive for wanting to

continue 12 majority-white districts. The schools in Bossier

Parish are segregated by race. App. 123a-124a (four

elementary schools have predominantly black enrollments);

id. at 217a-218a (99 240-242). While the District’s total

school enrollment is only 29% black, Bossier and Butler

Elementary Schools, whose attendance areas are adjacent to

one another in Bossier City, were 77% and 74% black in

1994. U.S. Exh. 84YY; U.S. Exh. 84KK. Likewise, both

schools in Board Member Thomas Myrick’s district in the

northern portion of the Parish have become more than 75%

black, J.A. 247-248, a telling contrast to the Board’s claim

periodically in this litigation that black residential population

is not sufficiently concentrated to permit it to draw majority-

black voting districts. So long as black voters had no voice,

and their children are largely isolated in predominantly black

schools, the Board could safely ignore their concerns. For

decades this has been the case.

The Board maintained de jure segregation in its schools

long after Brown v. Board of Education, 347 U.S. 483

(1954). App. 122a; id. at 216a (4 235). While the Board has

been a defendant for more than 30 years in the school

desegregation case of Lemon v. Bossier Parish School Board,

C.A. No. 10,687 (W.D. La.), it still has not fulfilled its

constitutional obligations to remedy segregation and establish

a unitary school district. App. 122a-124a See Lemon v.

Bossier Parish Sch. Bd., 240 F. Supp. 709 (W.D. La. 1965),

aff'd, 370 F.2d 847 (Sth Cir.), cert. denied, 388 U.S. 911

(1967).

The parties stipulated that the “Board for years sought to

limit or evade its desegregation obligations.” App. 216a

({ 237). The Board used techniques such as assigning “black

children of Barksdale Air Force Base personnel to black

schools without a right, to transfer to white schools [on

grounds] that they were ‘federal children’ and not within the

‘jurisdiction’ of the school district.” Jd. at 216a-217a (4 237).

Judge Wisdom rejected the Board’s “new and bizarre excuse

for rationalizing [its] denial of the constitutional right of

Negro school children to equal educational opportunities as

white children.” App. 217a (§ 237) quoting Bossier Parish

School Bd. v. Lemon, 370 F.2d 847, 849 (Sth Cir. 1967). The

federal courts rejected the Board’s “freedom of choice” and

other student assignment plans, including one that proposed

to assign students to schools in Plain Dealing on the basis of

their scores on the California Achievement Test. App. 217a

(4 238). See Hall v. St. Helena Parish Sch. Bd., 417 F.2d 801

(Sth Cir. 1969); Lemon v. Bossier Parish Sch. Bd., 421 F.2d

121 (Sth Cir. 1970); Lemon v. Bossier Parish Sch. Bd., 444

F.2d 1400 (Sth Cir. 1971).

While the school desegregation consent decree requires the

Board to follow Singleton standards and assign teachers to

schools by race in approximately their proportion in the

District as a whole, the Board has assigned black teachers

disproportionately to predominantly black schools, such as

Bossier and Butler Elementary Schools, contributing to their

increasing racial identifiability. See Singleton v. Jackson

Mun. Separate Sch. Dist., 419 F.2d 1211, 1218 (Sth Cir.

1969), cert. denied sub nom. West Feliciana Parish Sch. Bd.

v. Carter, 396 U.S. 1032 (1970); App. 217a-218a (4¥§ 239-

240); J.A. 281-287 (Lewis) (admitting deliberate assignment

of more than 70% black faculty to predominantly-black

Butler Elementary School, despite the fact that district-wide

black faculty had declined to less than 10%).

As the court below recognized when it examined this

evidence on remand, “the intent [this history] proves ... is a

tenacious determination to maintain the status quo.” App. 7a.

Black citizens have tried without success to alter these

policies and practices. Bossier is required by federal court

order to maintain a biracial committee to “recommend to the

School Board ways to attain and maintain a unitary system

and to improve education in the parish.” /d. at 182a (4 111).

The Board admitted that, for decades, it simply ignored this

requirement altogether. /d. at 182a-183a (4112). In 1993,

the Board established a committee; but when black members

made policy suggestions, the Board unilaterally disbanded

the committee. App. 184a (4 116); id at 124a. As Board

members admitted, they did not want this committee getting

into “policy” questions. /d Even in the face of a federal

court mandate to listen to the concerns of the black

community, Bossier refused to do so. As a result, the black

citizens of Bossier Parish are effectively cut off from any

opportunity to have a voice in the operation of their public

schools. Adopting a redistricting plan with 12 majority-

white districts continued this pattern of exclusion. This

history, as the majority found on remand, “provides powerful

support for the proposition that... Bossier ... resisted

adopting a redistricting plan that would have created majority

black districts.” Jd. at 7a.

C. Specific Sequence of Events Leading to the Decision

to Adopt the Jury Plan.

The redistricting process began in May 1991, when the

Board decided to develop its own plan rather than adopt the

one previously accepted by the Police Jury in response to its

own need to redistrict following the 1990 census. Throughout

the 1980s the Jury and the Board had different election

districts, but both had 12 single-member districts that were

majority white. /d. at 79a-81la; 15la, 171la (49 22, 80-81).

Given the fact that the next School Board election was not

scheduled until November 1994, there was no need for hasty

Board action. /d. at 8la-82a. The Board hired Gary Joiner,

the cartographer who had drawn the Jury plan. /d He was

hired to perform 200-250 hours of work, far more time than

would be needed simply to recreate the Jury plan. /d. at 173a

({4 86-87).

On July 29, 1991, the Police Jury plan was precleared by

the Justice Department. /d. at 80a. The parties stipulated,

however, that members of the Police Jury were “specifically

aware that a contiguous black-majority district could be

drawn both in northern Bossier Parish and in Bossier City.”

Id. at 154a, 160a-161la, 162a (49 36, 52-53, 57); the parties

stipulated that it was “obvious that a reasonably compact

black-majority district could be drawn within Bossier City.”

Id. at 154a-155a (936). Alternate configurations for a

contiguous majority-black district in the northern part of the

Parish also could be created. /d at 194a (4 148). However,

the Police Jury deliberately misled the public, id at 16la-

162a (4 54), the only black police juror, id at 159a (4 47),

and the Attorney General, id at 165a-166a (99 65-66), by

claiming that drawing any majority-black district was

impossible. Despite these misrepresentations, some black

community groups opposed the plan and specifically asked

that their letter expressing concerns about it be included in

the Police Jury’s §5 submission. /d at 147a, 165a-166a

("| 11, 65-66). The letter was not submitted.

School Board member Thomas Myrick participated in

private meetings with Mr. Joiner and white police jurors

during this time. App. 82a; id at 159a-160a, 172a-173a

($9 48, 85)? After these meetings, Mr. Myrick, who lives in

an area that the parties stipulated “would likely be included

in any majority-black district to be drawn in the northern part

of Bossier Parish,” id at 160a (§ 48), recommended that the

Board adopt the Police Jury plan. /d at 174a ($90). “On

September 5, 1991, however, the Board decided not to adopt

the Jury plan, largely because it would pit incumbents against

each other.” /d at 125a (emphasis added). “Over the course

of the next year, Board members considered a number of

redistricting options.” /d. “Mr. Joiner met privately with

Board members and demonstrated different possibilities to

them on his computer.” /d at 125a; 176a (§ 96). These

meetings were not open to the public, nor were there any

recorded minutes or published notices of the meetings. /d. at

126a; 176a (¥ 96).

While the School Board was meeting and planning in

private, the black community was trying, -unsuccessfully, to

participate in public. /d. at 126a. In March of 1992, George

Price, on behalf of a coalition of black community groups,

wrote to the Board asking to participate in its redistricting

process. App. 82a; id. at 175a (§ 93). Neither the Board nor

the Superintendent responded to this request. /d In August

9 Despite the Board’s stipulations about Mr. Myrick’s

meetings with Mr. Joiner and the Police Jurors, App. 159a-160a,

| 72a-173a (¥¥ 48, 85), and Mr. Joiner’s live testimony about such

meetings, J.A. 260-266 (Joiner), Mr. Myrick denied on the ‘|.

stand that any of them took place. J.A. 247-258 (Myrick).

D.C. District Court rejected Mr. Myrick’s testimony. App. ws

of 1992, Mr. Price sent another letter asking specifically to be

involved in every aspect of the redistricting process. /d.

(4 94).

Frustrated by the Board’s unresponsiveness, Mr. Price

contacted the NAACP Redistricting Project in Baltimore,

Maryland. /d at 177a (§ 98). The Project was able to

develop a partial plan for Mr. Price to discuss with the

School Board. That illustrative plan consisted of two

majority-black districts. jd The plan did not show the other

10 districts that would make up the Parish. /d When Mr.

Price gave this information to a school district official, he

was told that it would not even be considered because it only

showed two districts. /d. (499). Mr. Price went back to the

NAACP, and a complete 12-district illustrative plan was

drawn up. /d. The parties stipulated that this plan

demonstrated that “two contiguous districts with a black

voting age population majority can be drawn within Bossier

Parish for the Bossier Parish School Board.” /d at 192a

(4 143).

On September 3, 1992, when Mr. Price appeared on behalf

of the black community at a Board meeting and presented a

new plan showing all 12 districts, including 10

majority-white and two majority-black districts, the Board

dismissed it summarily, claiming incorrectly that it could not

even consider any plan that split precinct lines. /d at 177a-

179a (%4 100-102). Until that time, however, the School

Board had been actively considering alternatives to the Police

Jury plan, almost all of which would have split precincts. See

App. 107a; id. at 15la, 174a (4 23, 89).

At the Board’s next meeting, on September 17, 1992,

Mr. Price again presented the NAACP’s illustrative plan. /d

at 179a-180a (¥ 106). Instead of discussing the plan with Mr.

Joiner, or asking him to further analyze the possibility of

drawing black-majority districts without splitting precincts

(the Board’s purported reason for rejecting the plan, but see

id at 15la (4 23)), the Board responded by immediately

passing a motion of intent to adopt the Jury plan. /d at 127a.

Around this time, a narrow majority of the Board appointed

Jerome Blunt as the first black person ever to serve on the

Board. /d. at. 84a. Mr. Blunt was appointed to a six-month

term representing an 11% black district. /d at 84a-85a. He

was sworn in at the September 17, 1992, meeting but was

defeated by a white candidate in the special election six

months later. /d at 85a As Judge Kessler observed:

Certainly, Board members knew that adopting the Police

Jury plan would ignite controversy in the black

community. And on the very night of that decision, the

School Board appointed a black to fill a seat that they

knew he would be unable to hold, hoping to quell the

political furor over adoption of the Police Jury plan. [/d.

at 133a-134a n.9.]

On September 24, 1992, an overflow crowd attended the

state-mandated public hearing on the redistricting plan. /d at

85a. Fifteen people spoke against the Board’s proposed plan,

most of whom objected because it would dilute minority

voting strength. App. 85a; id at 180a-18la (§ 108). Not a

single person spoke in favor of the plan. /d At this hearing,

Mr. Price also presented the Board with a petition signed by

more than 500 Bossier Parish residents, asking the Board to

consider an alternative redistricting plan. /d at 85a. This was

the largest petition presented to the Board on any subject in

years. Jd. at 180a (§ 108).

Despite the one-sided input from Bossier citizens, and

despite the fact that elections still were more than two years

away, the Board voted, at its very next meeting on October 1,

1992, to adopt the Jury plan. While Jerome Blunt encouraged

the other Board members to explore the issues being raised

by the black community, the Board refused. J.A. 125-130

(Blunt); id at 80-83 (U.S. Exh. 36). Mr. Blunt abstained

from the vote in protest, id; but the white majority present

voted unanimously for the Jury plan. App. 85a. Neither at

this hearing nor at its other meetings did the Board members

explain on the record their reasons for their support of the

Police Jury plan. See J.A. 60-69, 72-83 (U.S. Exhs. 23-36).

Thomas Myrick, in the one verbatim statement concerning

Te ee

redistricting recorded in two years of Board minutes, told Mr.

Blunt that this was not a question of “black and white” but of

“majority rule.” J.A. 80-83 (U.S. Exh. 36 at 67). The

Board’s minutes reflect an unexplained retreat to the Police

Jury plan that it had rejected a year earlier. J.A. 72-77, 80-83

(U.S. Exhs. 32, 34, 36). Thus, no perceived strengths of the

Police Jury plan are discussed or documented anywhere on

the public record of the Board’s action. As with the meetings

of September 3 and September 17, 1992, the minutes of this

meeting reflect virtually no substantive consideration of the

Poiice Jury plan.

The D.C. District Court concluded that a Par

community, ... the Police Jury plan became, as Board

member Myrick described it, “expedient.” App. 106a. The

Jury plan only became “expedient” when the Board was

publicly confronted with an illustration that alternatives to 12

white-majority districts were possible. Faced with the

growing frustration of the black community at being

excluded from educational policy decisions and from the

electoral process, the only way for the Board to ensure a plan

with all majority-white districts was to adopt the Jury plan

quickly, despite its other drawbacks. App. 128a; id at 85a,

106a.

D. Board Departures from Normal Practice.

The sequence of events described in section C. above

illustrates numerous departures from normal practice in the

Board’s consideration and adoption of the Jury plan.

Procedurally, the Board rushed to a decision, with no

upcoming election, upon being confronted with a

demonstration that majority black election districts could be

drawn. The Board departed from the conduct expected of

elected officials when it adopted the Jury plan in defiance of

the contrary views of every speaker at the public hearing and

in the face of the largest petition it had received in recent

years on any issue. The Board hid its real deliberations from

the public, made no official record of its reasoning, and

ignored the efforts of leaders in the black community to be

included.

On the substance of the plan as well, the Board reached a

result contrary to its own districting goals and traditional

principles that would be expected to govern the development

of an election plan for a school board. See page 29, supra.

The D.C. District Court majority below evaluated these

departures from traditional districting practice as part of its

analysis of the “effect” of the plan. App. 6a. The D.C.

District Court summarized its earlier findings as “tending to

establish that the board departed from its normal practices,”

and found that this “establishes rather clearly that the board

did not welcome improvement in the position of racial

minorities with respect to their effective exercise of the

electoral franchise.” /d. at. 7a.

E. Contemporary Statements of Participants.

The motivation that School Board member Thomas Myrick

described on the stand as “expediency,” he and other Board

members spoke about more candidly in private. Mr. Myrick,

who lives in one of the areas that could accommodate a

black-majority district and that contains two schools -- both

of which have student enrollments that are more than 75%

black -- told black leaders that he would not “let [them] take

his seat away from him.” /d at 83a n.4. School Board

member Henry Burns told a black acquaintance that “while

he personally favors having black representation on the

board, other school board members oppose the idea.” /d. at

83a n.4. The School Board offered no evidence denying or

explaining this statement. School Board member Barry

Musgrove told a prominent black leader that “while he

sympathized with the concerns of the black community, there

was nothing more he could do... on this issue because the

Board was ‘hostile’ toward the idea of a black-majority

district.” Jd.

In subsequent efforts to justify the unexplained reversal of

its initial decision and its refusal to consider alternatives from

the black community, the Board later offered the Attorney

General and the District Court a series of pretextual

explanations, including several which the majority itself

found “clearly were not real reasons.” /d. at 106a n.15. For

example, the Board argued that it adopted the Police Jury

plan (on October 1, 1992) to comply with Shaw v. Reno, 509

U.S. 630 (1993) (decided June 28, 1993) even though Shaw

was decided nine months after the Board adopted its plan. /d.

The Board also reiterated its claim that it could not adopt a

plan with fewer than 12 majority-white districts because any

such plan would require precinct-splitting, which it

erroneously claimed violates state law. App. 135a. The

majority found, however, that when “the School Board began

the redistricting process, i it likely anticipated the necessity of

splitting some precincts.” /d at 108a. Indeed, the majority

found and the parties stipulated that the Board was aware

when it entered the redistricting process that if it did not

adopt the same plan as the Police Jury, it would need to have

new precincts established. App. 108a, id. at 174a (¥ 89). Yet

the Board hired Gary Joiner to perform 200 to 250 hours of

work, far more than would be necessary simply to recreate

the Jury Plan. /d. at 173a (4% 86-87).

But it was only affer the black community presented its

alternative plan that the School Board proffered the “no

precinct-splitting” rationale. Furthermore, while the Board

itself may not split precincts, police juries have the authority

to establish and modify precinct lines, and many do so when

requested by a school board. /d at 148-152a, 164a ({ 13-25,

60-61). Here, as the majority found, the Board never made

such a request. /d. at 84a.

Bossier’s final later-proffered justification for adopting the

Police Jury plan was that it guaranteed preclearance; that is,

the Attorney General would approve the Board’s plan

because it was identical to the Jury plan which already had

been precleared. /d at 137a. However, “guaranteed pre-

clearance” was not the Board’s objective; if it had been, the

Board would not have waited until October 1, 1992 -- almost

14 months after the Jury plan was precleared -- to adopt it.

Id Moreover, adopting a plan with one or more majority-

black districts certainly would not have made preclearance

less likely. To the contrary, given the Board’s history and the

Attorney General’s position, the Board could not reasonably

have believed that a plan that would both honor traditional

districting principles and improve the opportunity of black

citizens to participate in the political process would have had

less chance of preclearance than the Police Jury plan.

CONCLUSION

For all of these reasons, this Court should reverse the

judgment below.

Respectfully submitted,

BARBARA R. ARNWINE PATRICIA A. BRANNAN*

THOMAS J. HENDERSON JOHN W. BORKOWSKI

EDWARD STILL HOGAN & HARTSON L.L.P.

LAWYERS’ COMMITTEE FOR 555 Thirteenth Street, N.W.

CIVIL RIGHTS UNDER LAW Washington, D.C. 20004

1450 G Street, N.W., Suite 400 (202) 637-8686

Washington, D.C. 20005

(202) 662-8600

* Counsel of Record Counsel for “oP eas

George Price, et al.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.