Opposition Brief — Theriot v. Parish of Jefferson

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No. 99-1203

Jn the Supreme Court of the Gnited States

DENNIS THERIOT, ET AL., PETITIONERS

Vv.

PARISH OF JEFFERSON, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Record

BILL LANN LEE

Acting Assistant Attorney

General

MARK L. GROSS

REBECCA K. TROTH

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the court of appeals correctly upheld as

not clearly erroneous the district court’s finding that

incumbency and other nonracial considerations, rather

than race, predominated in the drawing of District 3 of

the Parish Council of Jefferson Parish, Louisiana, and

therefore correctly concluded that District 3 is not

subject to strict scrutiny.

2. Whether the court of appeals correctly held that

the appropriate benchmark for determining whether a

proposed redistricting in Jefferson Parish would satisfy

the nonretrogression principle of Section 5 of the Vot-

ing Rights Act of 1965, 42 U.S.C. 1978c, was the most

recent redistricting plan that the Parish had adopted

and the Attorney General had precleared under Section

5, including the current black percentage of the voting

age population of the Parish districts in that plan.

3. Whether the configuration of District 3 is nar-

rowly tailored to meet the compelling state interest of

compliance with the Voting Rights Act.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Abrams v. Johnson, 521 U.S. 74 (1997) .......ccccccssesseseeeee 16

Beer v. United States, 425 U.S. 130 (1976) .........ccceceeeee 17

Burton v. Sheheen, 793 F. Supp. 1329 (D.S.C. 1992),

vacated on other grounds, 508 U.S. 968 (1993) .............. 15-16

Bush v. Vera, 517 U.S. 952 (1996) .........ccccccsscescserees 10-11, 18

City of Rome v. United States, 446 U.S. 156

(1980) Ua ASAE RAR gts Te ee OND 15

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) ......... 12

Hunt v. Cromartie, 526 U.S. 541 (1999) 00... ececessesseees 11

Ketchum v. Byrne, 740 F.2d 1398 (7th Cir. 1984),

cert. denied, 471 U.S. 1135 (1985) ............scssssssecssssssssseeeeees 15

Miller v. Johnson, 515 U.S. 900 (1995) 0.0... ceceeeeees 10, 13

Perkins v. Matthews, 400 U.S. 379 (1971) .........cccceeeeeeee 17

Reno v. Bossier Parish Sch. Bad.:

I a licen 17

I ini bhtnaiennnnapiininegsainin 3

Shaw v. Hunt, 517 U.S. 899 (1996) ..........c.cccccccsscssscscsecssceses 10

Shaw v. Reno, 509 U.S. 630 (1998) ........ssesesseseseseenees 18, 19, 20

Thornburg v. Gingles, 478 U.S. 30 (1986) ........ccseseseseseeess 19

Young v. Fordice, 520 U.S. 273 (1997) ... vin 16

Constitution, statutes and regulations:

U.S. Const.:

Amend. XIV (Equal Protection Clause) ................. 2, 5, 9, 20

Amend. XV ........ sniisincineiesitiba 2,5

(IID)

IV

Statutes and regulations—Continued: Page

Voting Rights Act of 1965, 42 U.S.C. 1973 et segq.:

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28 C.F.R.:

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Jn the Supreme Court of the Anited States

No. 99-1203

DENNIS THERIOT, ET AL., PETITIONERS

Vv.

PARISH OF JEFFERSON, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-

A29) is reported at 185 F.3d 477. The opinion of the

district court (Pet. App. A37-A69) is reported at 966 F.

Supp. 1435.

JURISDICTION

The judgment of the court of appeals was entered on

August 17, 1999. The petition for a writ of certiorari

was filed on November 15, 1999. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

1. The Parish of Jefferson is a political subdivision of

the State of Louisiana and is governed by a Parish

President and a seven-member Council. In 1980, the

Parish had a population of 454,592. At that time, blacks

in the Parish made up 13.86% of the total population

and 11.78% of the voting age population (VAP). Pet.

App. A2 & n.1.

Before 1987, members of the Council were elected

under what was known as the “4-2-1 plan.” Under that

plan, the Parish was divided into four Council districts,

each of which elected one member. In addition, a

floterial district, or super-district, comprising Districts

1 and 2, elected a fifth member, a floterial district com-

prising Districts 3 and 4 elected a sixth member, and a

seventh member (the Council Chairman) was elected

from the entire Parish at-large. In 1986, several Parish

voters brought suit against the Parish, alleging that the

Council districts were malapportioned in violation of

the one-person, one-vote requirement of the Equal

Protection Clause. The plaintiffs prevailed in that suit,

and in 1987 the district court entered a consent decree

that redrew the four base councilmanic districts, but

otherwise maintained the 4-2-1 structure of the Council.

No district in the 1987 consent decree plan had a black

population exceeding 24%. Pet. App. A2-A3 & n.1.

2. Two Jefferson Parish civic associations and six

black voters brought suit alleging that the 4-2-1 plan

violated Section 2 of the Voting Rights Act of 1965, 42

U.S.C. 1978, and the Fourteenth and Fifteenth Amend-

ments to the Constitution. After a bench trial, the

district court ruled in 1988 that the Parish’s districting

plan violated Section 2. See Pet. App. A3-A4. The

district court approved, as a remedy for the Section 2

3

violation, a plan proposed by the Parish in March 1990,’

which abandoned the 4-2-1 structure and instead

established one at-large district and six single-member

districts, one of which, District 3, had a black majority

population and voting age population. The Attorney

General precleared the March 1990 plan under Section 5

of the Voting Rights Act, 42 U.S.C. 1973c.’ Pet. App.

A4-A5; Pet. 2 (stating that District 3 had 50.12% black

VAP as reflected in 1980 census figures).

The Parish appealed the district court’s finding of

liability under Section 2. The court of appeals affirmed,

and remanded the case for implementation of the new

districting plan. Pet. App. A5d.

3. On remand, the district court recognized that the

March 1990 plan would have to be adjusted to ac-

commodate population shifts reflected in the newly

1 In reciting the history of this case, the court of appeals ini-

tially referred to this plan incorrectly as the February 1990 plan,

Pet. App. A4-A5, but later correctly referred to it as the March

1990 plan (id. at A25 n.24). See id. at A45-A46 (district court’s

findings of fact).

2 Because Louisiana and all of its political subdivisions are

jurisdictions covered under Section 5 of the Voting Rights Act,

Jefferson Parish may not enact or seek to administer any new

voting procedure unless it first obtains “preclearance” of the new

procedure from either the United States District Court for the

District of Columbia or the Attorney General. A voting change

may not be precleared if it will cause, or has the purpose to cause, a

“retrogression” in minority voting strength, that is, if the change

will adversely affect, or is designed to affect adversely, the ability

of minority voters to participate in the political process. See Reno

v. Bossier Parish Sch. Bd., 120 S. Ct. 866, 868-869 (2000). That

retrogression standard generally requires a comparison of the pro-

posed voting change to a “benchmark,” which is “the last legally

enforceable practice or procedure used by the jurisdiction.” 28

C.F.R. 51.54(b)(1).

4

released 1990 census figures. According to the 1990

census, the total population of the Parish had declined

by about 1.4%, to 448,306, of which 74% was white and

17.5% (78,263) was black. Pet. App. A5 n.8. The black

percentage of the total population of the Parish grew

by 3.6 percentage points between the 1980 census and

the 1990 census. J/bid. The Department of Justice in-

formed Jefferson Parish that the March 1990 districting

plan was the appropriate benchmark for determining

whether a new districting plan would cause retrogres-

sion under Section 5 of the Voting Rights Act. The

1990 census showed that District 3 in the March 1990

plan had a 52.38% black VAP. Jbid.

Councilman James Lawson, the incumbent in District

2 in the invalidated 4-2-1 plan, proposed a new plan

using the new census figures that protected his incum-

bency interests as well as the interests of the majority

of the other incumbents. On May 8, 1991, the Parish

Council adopted the plan Lawson had proposed, altered

slightly to reflect the concerns of an extremely vocal

constituent.’ In the Lawson Plan, District 3 has a black

VAP of 57.4%. Pet. App. A6-A7.

Although the parties presented the Lawson Plan to

the district court as a joint stipulation, the district court

rejected it on the ground that the parties had improp-

erly allowed “politics” to influence the redistricting

process. The district court appointed a special master

to assist in adjusting the March 1990 plan to reflect the

census figures. The special master drew a plan based

largely on the lines in the March 1990 plan, which con-

3 See Pet. App. A53 (district court refers to that constituent as

raising “political Cain” because she wanted to be in District 1); id.

at A58 (that “uproar” caused the Council to divide precinct be-

tween two districts).

| perry

ee es ae

5

tained a District 3 with a 49% black VAP. The district

court ordered implementation of the special master’s

plan. Pet. App. A7.

4, The court of appeals reversed the district court’s

rejection of the Lawson Plan. The court of appeals

ruled that the district court had intruded on the

Council’s legislative responsibility in redistricting by

ordering implementation of the special master’s plan,

and that the special master’s plan unacceptably failed to

include a black-majority district necessary to remedy

the Parish’s violation of Section 2. The remand order

instructed the trial court to issue an injunction requir-

ing the Parish to submit the Lawson Plan to the De-

partment of Justice for expedited review under Section

5. The district court did so, and on August 27, 1991, the

Attorney General precleared the Lawson Plan. Pet.

App. A7-A8.‘

5. In 1995, petitioners brought this suit in district

court, challenging the Lawson Plan (particularly Dis-

trict 3) as an unconstitutional racial gerrymander in

violation of the Fourteenth and Fifteenth Amendments

to the Constitution and the Voting Rights Act of 1965.

The district court allowed the United States and local

officials to intervene to defend the Lawson Plan. Pet.

App. A8-A9.

After a bench trial, the district court entered judg-

ment for respondents. Pet. App. A36-A68. The court’s

extensive findings of fact stressed that incumbency

played the predominant role in the Council’s decision to

adopt the Lawson Plan. In particular, the district court

found that, while race “was a factor, it is clear that

4 Elections were held in the fall of 1991 using the Lawson Plan,

and for the first time in the history of Jefferson Parish, voters

elected a black Council member. Pet. App. A8 & n.1.

6

political incumbency drove the pencil in designing these

districts.” Jd. at A48.° Other factors at work, the court

found, were the one-person, one-vote rule, considera-

tions of contiguity and compactness in light of the

Parish’s particularly dispersed population, and other

traditional districting principles, including uniting

communities of interest. [bid.; see id. at A538-A57. The

district court also found that splitting districts and even

precincts for political reasons was not uncommon in the

Parish (id. at A55), that the increase in the black VAP

of District 3 to 52.3% as reflected in the 1990 census jus-

tified the use of that figure for the purpose of measur-

ing retrogression under Section 5 of the Voting Rights

Act (id. at A58-A59), and that vestiges of discrimination

remain in Jefferson Parish (id. at A59-A60).

After reiterating the factors that had predominated

in determining the shape of the districts in the Lawson

Plan, the district court held that District 3 should not

be subjected to strict scrutiny because petitioners had

failed to prove that race predominated in the drawing

of that District. Pet. App. A62. The court further con-

cluded that the shapes of the districts in the Lawson

5 With respect to incumbency, the district court observed that

the Council had understood that the first elections after the 1990

census would almost certainly pit incumbents against each other,

as the Parish had abandoned the floterial districts in the old 4-2-1

plan. Recognizing that necessity, Lawson set out to ensure that

his own district, District 2, included his strongest political con-

stituencies, while likely supporters of his anticipated opponent for

District 2, Lloyd Giardina, were placed in the neighboring District

3. For that reason, several areas were placed in District 3 even

though those areas, if placed in District 2, would have made Dis-

trict 2 more compact. Some of those divisions, moreover, could not

be explained on racial grounds, for several areas with larger black

populations were placed in District 2 rather than the majority-

black District 3. See Pet. App. A49-A51.

7

Plan were not so “bizarre” as to require strict scrutiny

on the ground that the district lines could not be

explained on a ground other than race. ZJd. at A63.

Although the court therefore did not examine in detail

whether District 3 satisfies strict scrutiny, it did state

generally that “this plan has been narrowly tailored to

meet a compelling state interest.” Jd. at A68.

6. The court of appeals affirmed. Pet. App. A1-A29.

Noting that petitioners “bear the burden of proving an

impermissible racial classification,” id. at All, it sus-

tained the district court’s finding that racial considera-

tions did not predominate in the drawing of District 3:

“The record reveals no clear error inasmuch as incum-

bency protection, maintaining communities of interest,

addressing one-person, one-vote concerns and natural

geographic conditions predominated in drawing District

3.” Id. at A12.

The court stressed that much of the discussion sur-

rounding the adoption of the Lawson Plan turned on

political considerations, including the likelihood that

Lawson and another incumbent (Lloyd Giardina) would

each campaign for the same District 2 Council seat.

“Although the Lawson Plan resulted in a race between

Lawson and Giardina in District 2, it garnered the most

support because it met the political and incumbency

concerns of the majority of the existing councilpersons.”

Pet. App. A13.° The court of appeals also held that the

6 The court rejected petitioners’ contention that the Depart-

ment of Justice had pressured the Parish “to adopt a plan with

maximum benefits to minority voters.” Pet. App. Al7 n.18; id. at

A25 n.24. The court concluded that, notwithstanding petitioners’

efforts to “exaggerate and misconstrue the nature of the communi-

cations between the DOJ and the Parish Council,” id. at A25,

“there was no proverbial big brother manipulating the process of

drawing the districts,” id. at Al7 n.18. Rather, “DOJ properly

8

district court did not clearly err in finding that District

3 unites communities of interest among low-income

residents, and in particular, it sustained the district

court’s finding that District 3’s low-income residents

share “common social and economic needs.” Jd. at A18.’

It further sustained the district court’s finding of the

“paramount” importance to the Parish of meeting the

Constitution’s one-person, one-vote requirement in a V-

shaped jurisdiction that is “very irregular” geographi-

cally and topographically. Jd. at A19-A20. The court

did not find the shape of District 3 to be “bizarre on its

face,” but in any event, it determined that “any irregu-

larity associated with the shape of District 3 is deriva-

tive of politics, joining communities of interest, one-

person, one-vote concerns, and the geography and

population distribution in the Parish.” Jd. at A20-A21.

Because the court of appeals determined that race

did not predominate in the drawing of District 3, it

concluded that strict scrutiny was not appropriate, and

it did not address whether the Lawson Plan would

survive strict scrutiny. Pet. App. A32. The court did,

advised the Parish of a benchmark under Section 5 of the Voting

Rights Act.” Ibid.

7 In reaching that conclusion, the court of appeals cited the

evidence in the record of the “plethora” of civic and community

organizations whose members live in District 3 and have been

active in addressing the issues of housing, education, and poverty

in the community. Pet. App. A18 n.20. It also rejected petitioners’

argument that that evidence of communities of interest was not

properly considered by the district court because that evidence

had been developed after the district lines were drawn. The court

noted that, when the Lawson Plan was drawn in 1991, members of

the Parish Council were already “well aware” of the socioeconomic

conditions of Parish residents and were familiar with the evidence

of those conditions compiled during the earlier Section 2 litigation.

Id. at Al19.

9

however, consider and reject petitioners’ argument that

the Lawson Plan could not be justified to avoid retro-

gression under Section 5 of the Voting Rights Act

because (petitioners argued) only the last plan under

which elections actually have been held provides the

proper benchmark for determining retrogression. Pet.

App. A24-A25. Rather, the court held, the appropriate

benchmark for determining retrogression is the last

plan that was legally in force or effect, not the last plan

under which elections were actually held. A contrary

rule, the court observed, would often “sentence minori-

ties complaining of vote-dilution to a fate similar to

Sisyphus,” since a plaintiff that proved a Section 2

violation could not then use a plan entered as a remedy

for that violation as the appropriate benchmark for

Section 5 purposes (unless elections had actually been

held under the remedial plan). See id. at A25-A26. In

effect, the court observed, petitioners “would have us

turn the [plaintiffs] away and have them prove a

Section 2 violation all over again. We decline to impose

such a requirement.” Jd. at A26.

ARGUMENT

The court of appeals correctly sustained the district

court’s finding that race did not predominate in the

drawing of the lines of District 3 of the Jefferson Parish

Council. That determination reflects a factbound appli-

cation of this Court’s now settled principles setting

forth the requirements for establishing a racial gerry-

mander in violation of the Equal Protection Clause.

The court of appeals also correctly concluded that con-

ditions under the March 1990 plan at the time redis-

tricting to reflect the 1990 census was proposed (includ-

ing the black voting age population of the Parish Coun-

cil’s districts as reflected in the 1990 census figures)

10

provided the appropriate benchmark for determining

whether a redistricting plan to account for 1990 census

would cause retrogression in violation of Section 5 of

the Voting Rights Act. That conclusion does not con-

flict with any decision of this Court or any court of

appeals. Further, since the court of appeals concluded

that race did not predominate in the drawing of District

3 in the Lawson Plan, it did not reach the question

whether District 3 satisfies strict scrutiny. Accord-

ingly, this case does not present an appropriate vehicle

for review of any broad questions concerning whether

and when compliance with the Voting Rights Act justi-

fies a districting plan dictated primarily by raciai con-

siderations.

1. Petitioners contend that District 3, a black-

majority district in Jefferson Parish, is an unconstitu-

tional racial gerrymander. To establish a racial gerry-

mander, petitioners must first prove that race was the

“predominant factor” motivating the jurisdiction’s re-

districting decision; that is, that the jurisdiction “subor-

dinated traditional race-neutral districting principles,

including but not limited to compactness, contiguity,

respect for political subdivisions or communities de-

fined by actual shared interests, to racial considera-

tions.” Miller v. Johnson, 515 U.S. 900, 916 (1995); see

also Shaw v. Hunt, 517 U.S. 899, 905 (1996) (“The con-

stitutional wrong occurs when race becomes the domi-

nant and controlling consideration.”) (internal quotation

marks omitted). Because this “threshold standard” is a

“demanding one,” see Miller, 515 U.S. at 928 (O’Connor,

J., concurring), strict scrutiny is not triggered by

evidence that race was only one of several factors

animating the drawing of a district’s boundaries. See

Bush v. Vera, 517 U.S. 952, 958-959 (1996) (opinion of

O’Connor, J., joined by Rehnquist, C.J., and Kennedy,

11

J.) (“Strict scrutiny does not apply merely because

redistricting is performed with consciousness of race.

* * * Nor does it apply to all cases of intentional

creation of majority-minority districts.”); see also id. at

993 (separate opinion of O’Connor, J., concurring)

(“Only if traditional criteria are neglected and that

neglect is predominantly due to the misuse of race does

strict scrutiny apply.”); Hunt v. Cromartie, 526 U.S.

541, 546 (1999).

The courts below faithfully followed this Court’s

decisions and examined the factors considered by the

Parish in drawing and adopting the Lawson Plan (in-

cluding the lines of District 3). Based on that examina-

tion, the lower courts correctly concluded that incum-

bency, not race, was the predominant factor in the

fashioning of District 3. With regard to the influence of

incumbency concerns, the courts below found that

Councilmember James Lawson was the driving force

behind the plan that the Parish ultimately adopted and

the court of appeals ordered into effect in August 1991.

Pet. App. A6-A8. Because Lawson wanted his areas of

political strength in District 2, areas were added and

deleted for political reasons, and racial matters were

secondary in the minds of those drawing the plan. 7d.

at A13-A14. Indeed, with regard to the specific geo-

graphical areas on which petitioners focus, the district

court found either that there was no racial motivation

present in placing those areas in District 3, or that

political motivations predominated. Jd. at A49-A54.

The court of appeals agreed, concluding that “the issue

of race was plainly subordinate to the majority of the

councilpersons’ preoccupation with protecting incum-

bency and maintaining other political advantages.” Id.

at Al3-Al4. The district court aiso exhaustively

addressed the other factors that motivated the drawing

12

of the plan, and after reviewing that evidence in detail,

the court of appeals confirmed that “(t]he record pre-

sents bountiful evidence supporting the district court’s

finding that political incumbency, communities of in-

terest, one-person, one-vote, and geography dwarf is-

sues pertaining to race.” Jd. at A21. Petitioners pro-

vide no basis for this Court to disturb those factual

conclusions in which two lower courts have concurred.

See Goodman v. Lukens Steel Co., 482 U.S. 656, 662

(1987).

Petitioners note that the Parish was aware of the

need to comply with the Voting Rights Act in redis-

tricting. It has never been disputed that the Parish

considered as a factor in the 1991 redistricting process

the need to create a majority-black district in order to

comply with that statute. The Parish could not have

acted otherwise in light of the adjudicated Section 2

violation. But evidence that the Parish undertook to

comply with the Voting Rights Act is not proof that

race predominated in the drawing of the specific lines of

the majority-black district. Here, the courts below

considered the evidence of the Parish’s awareness of

the need to devise a remedy for the Section 2 violation

and to comply with Section 5 and concluded that neither

those concerns nor other racial considerations predomi-

nated over traditional districting concerns, and indeed,

that those considerations were accommodated within

traditional districting principles. Thus, the court of

appeals concluded that “[iJssues of race were relevant,

inasmuch as the Parish Council was directed to remedy

a Section 2 violation, yet did not predominate.” Pet.

App. A22.

The courts below also agreed there was no evidence

that District 3 reflected any policy of “maximization” of

minority voting strength without regard to traditional

13

redistricting principles. Cf. Miller v. Johnson, 515 U.S.

at 926. The district court found (Pet. App. A24) that

petitioners “had not demonstrated that the [Depart-

ment of Justice] coerced the Parish into designing a

district that maximizes District 3’s black population,”

and the court of appeals agreed: “Stated simply, there

was no proverbial big brother manipulating the process

of drawing the districts.” Jd. at A17n.18. Because the

plan the Parish drew generally respected traditional

redistricting principles, and because (as the courts

found) the relatively minor deviations from compact-

ness in District 3 are explained by politics, not race, the

fact that the Parish was also aware of the need to

comply with the Voting Rights Act does not trigger

strict scrutiny or suggest a constitutional violation.

2. Petitioners contend (Pet. 10-11) that the adoption

of District 3 cannot be justified on the ground of avoid-

ing retrogression of minority voting strength in viola-

tion of Section 5 because, they contend, the appropriate

benchmark under Section 5 is minority voting strength

in the last plan under which elections were actually

held, not the last valid plan that was in force and effect.

In this case, the last Council elections before the

adoption of the Lawson Plan were held under the 4-2-1

plan, in which no district had more than a 24% black

VAP. That plan, as we have explained (pp. 2-3, supra),

was found to violate Section 2. The Parish subse-

quently adopted, and the Attorney General precleared,

a March 1990 plan that created one black-majority

district, but no elections were held under that plan

because the census and the requirement of redistricting

intervened.

Petitioners’ argument is not properly presented in

this case. At bottom, petitioner’s contention amounts

to an argument that District 3 of the Lawson Plan does

14

not satisfy strict scrutiny because, even if it was

adopted to avoid retrogression, it is not narrowly

tailored to accomplish that end since (they maintain)

Section 5 precluded retrogression only from the 24%

black VAP under the 4-2-1 plan, not the 52.3% black

VAP in the March 1990 plan (as reflected in the 1990

census figures). But the question whether the Lawson

Plan satisfies strict scrutiny would arise only if racial

considerations had predominated in the adoption of that

Plan. As we have explained, racial considerations did

not so predominate, and so there is no occasion to reach

the question whether the Lawson Plan is narrowly

tailored to avoid a Section 5 violation. That question

could arise only if the Lawson Plan required strict scru-

tiny.

In any event, petitioners’ argument is without merit.

Section 5 plainly bases nonretrogression on the most

recent plan validly in force and effect, not on the earlier

plan under which elections were most recently held.

Otherwise, as the court of appeals observed (Pet. App.

A25-A26), in many cases Section 2 litigation would be a

pointless exercise. Here, for example, black voters in

Jefferson Parish established in litigation that Jefferson

Parish’s 4-2-1 plan (with no majority-black district)

violated Section 2, and that finding of liability was

affirmed by the court of appeals. The parties then

agreed upon, and the district court eventually adopted,

a remedial (March 1990) plan in which one majority-

black district was created. By the time that plan was

finally adopted, however, the census had intervened,

and so the Parish had to adopt a new plan to reflect

population shifts. If petitioners’ view of Section 5 were

adopted, however, then Jefferson Parish could not have

been justified even in adopting the very same remedial

(March 1990) plan, because the proper benchmark for

15

retrogression would have been the previous 4-2-1 plan,

with a maximum 24% black VAP in any district: Thus,

to obtain a majority-black district after the 1990 census,

the plaintiffs would have been required to establish a

Section 2 violation over again (and perhaps again and

again, if the vagaries of timing were such that elections

were not held under a remedial plan before a new

census). The Voting Rights Act does not relegate

minority voters “to a fate similar to Sisyphus.” Id. at

A25-A26.

The Attorney General’s Section 5 Guidelines explain

that the retrogression standard generally requires a

comparison of the proposed voting change to a “bench-

mark,” which is “the last legally enforceable practice or

procedure used by the jurisdiction,” to determine

whether there is any reduction in minority electoral

opportunity. 28 C.F.R. 51.54(b)(1). Retrogression is

determined by using the racial composition of the popu-

lation in districts as reflected in the most recent census

(or more accurate and recent figures) as a starting

point. See City of Rome v. United States, 446 U.S. 156,

186 (1980) (the “effect of the 13 annexations must be

examined from the perspective of the most current

available population data”); 28 C.F.R. 51.54(b)(2). The

use of the most recent census (or other highly reliable)

figures is necessary because they are most likely to pre-

sent an accurate depiction of minority voting strength

at the time the Section 5 preclearance submission is

made. If there have been population shifts in districts

since the previous census, old census figures may pre-

sent a misleading picture of minority voting strength.

See Ketchum v. Byrne, 740 F.2d 1398, 1402, 1414 (7th

Cir. 1984), cert. denied, 471 U.S. 1135 (1985); Burton v.

16

Sheheen, 793 F. Supp. 1329, 1847 (D.S.C. 1992), vacated

on other grounds, 508 U.S. 968 (1998).°

Petitioners have sought to rely on Young v. Fordice,

520 U.S. 273 (1997), and Abrams v. Johnson, 521 U.S.

74 (1997), but those decisions confirm that the proper

benchmark for retrogression is the current level of

black voting strength in the last valid plan that was in

effect in the jurisdiction. In Abrams, the Court

rejected the contention that the proper benchmark for

retrogression in that case was minority voting strength

in a plan that was an unconstitutional racial gerry-

mander when it was drawn (as distinguished from a

plan that became malapportioned over time because of

population shifts), and held that the proper benchmark

was the last plan that was constitutional when drawn

and was legally in effect in the district before the un-

constitutional plan was drawn. Id. at 97. That decision,

however, establishes only that the plan that provides

the benchmark must have been constitutional when it

was drawn, not that elections must have been held

under the plan. In Fordice, the Court rejected the

claim that a provisional voter registration plan that was

never actually adopted by the State was “in force or

effect” for purposes of determining the benchmark. 520

USS. at 282.

8 To the extent that petitioners fault the practice of measuring

minority voting strength using current census figures, it should be

noted that petitioners’ assumption (Pet. 4-5) that reliance on cur-

rent figures will result in racial gerrymandering is unfounded

factually as well as legally. There is no bias in that practice, as

current census figures may show either increases or decreases in

minority VAP from the previous census. If the 1990 census had

shown that the minority VAP of District 3 had decreased over the

previous decade, those 1990 census figures would still have pro-

vided the appropriate measure for determining retrogression.

17

In this case, it is not disputed that the March 1990

plan was valid and in effect when the 1990 census

figures were released, and petitioners never challenged

the constitutionality of that plan. The March 1990 plan

was the plan the Council adopted, the district court

approved, and the Attorney General precleared. It was

the plan that would have been used had a Council

election been held at that time to fill a vacancy or for

any other reason. Cf. Perkins v. Matthews, 400 U.S.

379, 394-395 (1971). he court of appeals therefore

correctly concluded thit the March 1990 plan, including

the 52.3% black VAP of existing District 3 under 1990

census data, provided the proper benchmark for Section

5 review of any plan that would be adopted after the

1990 census.°

® Petitioners note (Pet. 8) that, although District 3 in the March

1990 plan, with a black VAP of 50.12% as reflected in the 1980

census figures, satisfied the compactness requirement of a single-

member majority-minority district established as a remedy for a

Section 2 violation, no court has expressly decided whether a

majority-minority district with a greater percentage of black

voters than 50.12% also satisfies the compactness requirement

under Section 2. Nevertheless, it remains true that the 52.38%

black VAP in District 3 provided the appropriate figure for

avoiding a violation of the nonretrogression principle of Section 5,

which has a separate application from that of Section 2. This Court

has frequently emphasized that Section 2 and Section 5 “combat

different evils and * * * impose very different duties upon the

States.” Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 477 (1997).

Section 2 “was designed as a means of eradicating voting practices

that minimize or cancel out the voting strength and political

effectiveness of minority groups.” Jd. at 479 (internal quotation

marks omitted). Section 5, however, was designed “to insure that

the gains thus far achieved in minority political participation shall

not be destroyed,” Beer v. United States, 425 U.S. 130, 141 (1976)

(brackets omitted), and thus “freezfes] election procedures in the

covered areas unless the changes can be shown to be” nonretro-

18

3. Petitioners argue more generally (Pet. 26-30) that

the Lawson Plan does not satisfy strict scrutiny

because that Plan was not necessary to avoid a violation

of the Voting Rights Act. As we have explained (pp.

13-14, supra), that contention is not properly presented

here, because both lower courts determined that race

did not predominate in the drawing of District 3. In

addition, the court of appeals did not address whether

the Lawson Plan satisfies strict scrutiny, and so this

Court should not decide that issue in the first instance.

Cf. Shaw v. Reno, 509 U.S. 630, 658 (1993).

In any event, petitioners err in arguing that the court

of appeals’ August 1991 decision ordering the Parish to

create a majority-minority district to remedy the adju-

dicated Section 2 violation did not establish a com-

pelling interest in creating a majority-minority district

when the Parish’s district lines were adjusted to reflect

the 1990 census. Although the Court has not explicitly

decided the question, a majority of the Court has stated

that compliance with Section 2 is a compelling state

interest, see Vera, 517 U.S. at 990 (separate opinion of

O’Connor, J., concurring); id. at 1033 (Stevens, J, dis-

senting); id. at 1065 (Souter, J., dissenting). Petitioners

do not argue to the contrary here. See Pet. 26-30.

Rather, petitioners contend (Pet. 28) that compliance

with Section 2 could not have been a compelling inter-

est in this case because there was no evidence in this

case that there “presently existed impediments to the

Parish’s minority citizens’ ability to fully participate in

the electoral process.” In other words, petitioners

argue that, when the Parish drew its majority-minority

district in the Lawson Plan, the Parish was required at

gressive, id. at 140 (internal quotation marks and brackets

omitted).

19

that time to establish that the absence of such a district

would contravene Section 2. But petitioners fail to

acknowledge that the court of appeals had already

determined, only a year earlier, that the Parish’s pre-

vious 4-2-1 election scheme violated Section 2, and had

ordered the Parish to implement a plan with a majority-

minority district as a remedy for that violation. Thus,

petitioners appear to contend that the Parish and the

courts below were required to reconsider those Section

2 findings after the 1990 census results became avail-

able and reconfirm that the preconditions for finding a

Section 2 violation under Thornburg v. Gingles, 478

U.S. 30, 50 (1986), were met under new census data.

Petitioners cite no authority (and there is none) for the

proposition that a court must revisit a finding of a

Section 2 violation whenever more recent census fig-

ures become available. The court of appeals properly

rejected petitioners’ invitation to revisit the merits of

the protracted Section 2 litigation absent affirmative

proof that population densities and concentrations had

changed such that the Gingles preconditions could no

longer be met. Pet. App. A26.

Petitioners also suggest (Pet. 9) that the Attorney

General, in exercising her preclearance authority under

Section 5, required the Parish to draw a district that is

unconstitutional in order to avoid retrogression. That

argument is flawed for several reasons. First, both the

district court and the court of appeals specifically found

(in addition to their findings that racial considerations

did not predominate in the drawing of District 3) that

the shape of the District 3 under the Lawson Plan was

not “bizarre” (especially given the highly dispersed

population of the Parish) and did not contravene Shaw

v. Reno. See Pet. App. A20, A63. Therefore, this case

presents no occasion for the Court to consider what

20

limits the Equal Protection Clause, including the princi-

ples of Shaw v. Reno, may place on the nonretrogres-

sion principle of Section 5.

Second, the Attorney General considers constitu-

tional principles against racial gerrymandering in

applying the nonretrogression principle of Section 5 in

the administrative preclearance process. The Attorney

General’s Section 5 guidelines make clear that the

Attorney General considers a variety of factors in

determining whether preclearance should be granted,

including the protections of the- Equal Protection

Clause:

In making a determination the Attorney General

will consider whether the change is free of * * *

retrogressive effect in light of, and with particular

attention being given to, the requirements of the

14th, 15th, and 24th amendments to the Constitu-

tion, 42 U.S.C. 1971(a) and (b) * * * and other

constitutional and statutory provisions designed to

safeguard the right to vote from denial or abridg-

ment on account of race, color, or membership in a

language minority group.

28 C.F.R. 51.55. The benchmark provides a guide, not

an absolute limit below which minority voting strength

may not fall. For example, Section 5 does not require

jurisdictions to draw plans that violate the one-person,

one-vote principle of the Equal Protection Clause, or

are otherwise unconstitutional. Similarly, Section 5

does not require a jurisdiction to engage in unconstitu- _

tional racial gerrymandering to achieve preclearance,

and the Attorney General administers Section 5 in light

of that understanding.

21

CONCLUSION

The petition for a writ of certiorari should be denied.

- Respectfully submitted.

SETH P. WAXMAN

Solicitor General

~ BILL LANN LEE

Acting Assistant Attorney

General

MARK L. GROSS

REBECCA K. TROTH

Attorneys

APRIL 2000