# Appellants Brief — Reno v. Bossier Parish School Bd.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appellants Brief
- **Published:** January 1, 2000
- **Citation:** 528 U.S. 320

## Text

f; im

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,

V.

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¢

ee eee

- 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?

ij
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

iv

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

v
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

vi

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, ~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

17

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”).

18

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

19

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

20

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

21

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

22

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

24

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.

25

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,

26

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

27

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.”

28

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

29

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.

30
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);

31

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

32

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

33

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),

34

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

35

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.

36

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

37

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

38

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

39

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-

40

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.

1

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0228%3A07. Public record. Not legal advice.