Amicus Curiae Brief — United States v. Hays

Supreme Court brief1995

Ask Donna

What actually matters in this document.

Text

Nos. 94-558 and 94-627 | JAN 23 1995

| pewwas ot nt olen

In THE es

Supreme Court of the United States

OCTOBER TERM, 1994

UNITED STATES OF AMERICA,

Petitioner,

RAY Hays, et al.,

Respondents.

On Appeal from the United States District Court

for the Western District of Louisiana

BRIEF OF THE NATIONAL BAR ASSOCIATION,

THE NATIONAL BLACK CAUCUS

OF STATE LEGISLATORS, AND THE LEAGUE

OF UNITED LATIN AMERICAN CITIZENS

AS AMICI CURIAE IN SUPPORT OF PETITIONER

KOTELES ALEXANDER

Counsel of Record

BRIAN J. MURPHY

MILDRED E.. STEWARD

ALEXANDER, APONTE

& MARKS, LLP

Lee Plaza—Suite 805

8601 Georgia Avenue

Silver Spring, Maryland 20910

(301) 589-2222

Attorneys for Amici Curiae

WILSON - Eras PrinTine Co.. Inc. - 789-0096 - WASHINGTON. D.C. 20001

BEST AVAILABLE COPY

TABLE OF AUTHORITIES

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE

SUMMARY OF ARGUMENT

ARGUMENT ; bash detcinttissibsamaies

IT.

ITT.

FIFTEENTH AMENDMENT JURISPRU-

DENCE IS SUFFICIENT TO DETERMINE

THE CONSTITUTIONALITY OF A REDIS-

TRICTING PLAN ADOPTED PURSUANT TO

THE VOTING RIGHTS ACT

A. The Fifteenth Amendment, by its Very Lan-

guage, Applies to Redistricting Plans Com-

pelled by the Voting Rights Act ..........

NOTWITHSTANDING THE FIFTEENTH

AMENDMENT’S APPLICATION, FOUR-

TEENTH AMENDMENT EQUAL PROTEC-

TION JURISPRUDENCE WOULD COMPEL

INTERMEDIATE SCRUTINY BE APPLIED

pt) | iy ge.) Ay a aaa ee

A. The Three-Judge Panel Misinterpreted

Shaw’s Discussion of Irregular Shape

B. District No. 4 is not an Antecedent to Stereo-

typing, Stigmas, and Racial Polarization.

C. District No. 4 is Beneficial Because it In-

cludes Traditionally Excluded Minorities

into the Political Process .........000000

EVEN IF STRICT SCRUTINY IS APPLIED

TO THE REDISTRICTING PLAN, COMPLI-

ANCE WITH. THE FEDERALLY MAN-

DATED VOTING RIGHTS ACT, WHICH

WAS ENACTED PURSUANT TO § 2 OF THE

FIFTEENTH AMENDMENT, CONSTITUTES

A SUFFICIENT COMPELLING STATE IN-

RE eases Nits taldathreoy And tadbab tecxieneclOh send dbdedees as

ge aa ny pa TN a RT ee

Page

TABLE OF AUTHORITIES

CASES Page

Anderson v. Martin, 375 U.S. 399 (1964) 4

Beer v. United States, 425 U.S. 180 (1976) passim

Brown v. Board of Educ., 347 U.S. 483 (1954) 18,19

City of Mobile v. Bolden, 446 U.S. 55 (1980) .. 8,9

City of Richmond v. J. A. Croson Co., 488 U.S. 469

OE ccrctckoctesscssoieleerstetiienae Aiduehabiice ..14, 16, 22, 25

City of Richmond v. United States, 422 U.S. 353

EUPIED secncdanosencsanionms aos aied ek passim

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

(1980) .. ordcsdaaaadsaadae = 9

Dred Scott v. Sanford, 60 U.S. (19 Howard.) 393

(1857) Tas Brash unos 1 ee 19

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

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) 5

Growe v. Emison, 507 U.S. ——, 113 S. Ct. 1075

() }) _—_——— a <aienedtiieumodiaedideees ; - Beat

Guinn v. United States, 238 U.S.347 (1915) 5,18

Hays v. State of Louisiana, 862 F. Supp. 119 (W.D.

fh . — ; eae PR Peg Nam seuatie passim

Hirabayashi v. United States, 320 U.S. 81 (1943).. 16, 23

Kirkpatrick v. Preisler, 394 U.S. 526 (1969) 27

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

Metro Broadcasting v. FCC, 497 U.S. 547 (1990) 14

Personnel Administrator of Massachusetts v.

Feeney, 442 U.S. 256 (1979) 8

Plessy v. Ferguson, 163 U.S. 573 (1896) 19

Regents of the Univ. of California v. Bakke, 438

ik Fs. | ee 16, 17, 24

Reynolds v. Sims, 377 U.S. 533 (1964) ue. --.- passim

Rogers v. Lodge, 458 U.S. 613 (1982)..... 27

Shaw v. Reno, 509 U.S. ——, 113 S. Ct. 2816

EY Skcatescscrenes _sccisohensadlé sien eibRelisuasdecaadiee tata iletaeaesaaiene ma

South Carolina v. Katzenbach, 383 U.S. 301

|) ae. 2 ee se Re passim

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

United Jewish Organizations v. Carey, 430 U.S.

144 (1977) .... passim

United States v. State of Louisiana, 225 F. Supp.

353 (E.D. La. 1963) aff’d 380 U.S. 145 (1965) -... 4

ill

TABLE OF AUTHORITIES—Continued

Page

Voinovich v. Quilter, 507 U.S. ——, 113 S. Ct.

1149 (1998) .................. 22

Whitcomb v. Chavis, 403 U.S. 124 (1971) 8

Wright v. Rockefeller, 376 U.S. 52, reh. den., 376

U.S. 959 (1964) % es TO EANSY

Wyagant v. Jackson Bd. of Educ., 476 U.S. 267

> ae a ae es 16, 22, 25

passim

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. XV, XIX, XXIV, and XXVI..passim

MISCELLANEOUS

Cardell K. Jacobson, The Bakke Decision, 27(4)

J. Confl. Resol. at 687 (Dec. 1983) 19

Cedric Herring, James S. House, and Richard P.

Mero, Racially Based Changes in_ Political

Alienation in America, 72 (1) Soc. Sci. Q. 123

(March 1991) 18

Dudley McGovney, The American Suffrage Medley

SN rad cusinsccnnaanees Se tcahientna te aes Bie es 4

H.R. Rep. No. 439 59th Cone. Ist Sess. (1965) 4

Jon Hurwitz and Mark Peffley, Traditional Verse

Social Values As Antecedents of Racial Stereo-

typing and Policy Conservation, 14 (4) Polit.

a Ls EE Se ce

Kirk Harold Porter, A History of Suffrage in the

United States (1918) . ae . 4

Miriam J. Rodin, Judy M. Price, ‘Jeff B. Bryson,

and Francisco J. Sanchez, Asymmetry in Prej-

udice Attribution, 26 J. Exper. Soc. Psy. 481

I ee cihmaubvubsduabbunddadavintamsenne 1

Randell Kennedy, Persuasion and Distrust: A

Comment on the Affirmative Action Debate, 99

RS a Gs. , 5 A 19

Richard H. Pildes and Richard G. Niemi, Ex-

pressive Harms, ‘Bizarre Districts’ and Voting

Rights: Evaluating Election-District Appear-

ances After Shaw v. Reno, 92 Mich. L. Rev.

needle all ack ced nc. cs seuishacedianaibalen eubswiigoe suihbvonanaaigin 13

“I

TABLE OF AUTHORITIES—Continued

Page

Ronald Smothers, The South; Blacks Feel Like

Wallflowers, As No Candidates Woo Them, The

New York Times Al (Feb. 29, 1992) .........00000..... 18

S. Rep. No. 162, 89th Cong., lst Sess. (1965) ........ 4

T. Alexander Aleinikoff, A Case for Race-

Consciousness, 91 Colum. L. Rev. 1060, 1091-

Es RETR CREW NY 19

The Federalist No. 51 (James Madison) (Clinton

NN UI Bk es dacereeniien aes 3

STATUTES AND ORDINANCES

420.5.C. § 1978............. Sire setae agatsaatccmmeceuseie dates cae

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

Nos. 94-558 and 94-627

UNITED STATES OF AMERICA,

Petitioner,

Ray Hays, et al.,

Respondents.

On Appeal from the United States District Court

for the Western District of Louisiana

BRIEF OF THE NATIONAL BAR ASSOCIATION,

THE NATIONAL BLACK CAUCUS

OF STATE LEGISLATORS, AND THE LEAGUE

OF UNITED LATIN AMERICAN CITIZENS

AS AMICI CURIAE IN SUPPORT OF PETITIONER

INTEREST OF AMICI CURIAE

Each of the amici is a national organization actively

participating on behalf of its constituents.

The National Bar Association (“Association”), founded

in 1925, is a professional membership organization which

represents more than 21,000 African American attorneys,

judges and law students in the United States. Its purposes

include achieving equal opportunities for minorities in the

legal profession and protecting the civil and political rights

of all citizens. The Association has a particular interest

in this case because of its belief in the protection of minor-

ity voting rights as a means of solving America’s racial

problems.

The League of United Latin American Citizens

(“LULAC”), the nation’s largest Hispanic organization,

is concerned with advancing the civil rights and promoting

the educational, economic and social well being of His-

panic Americans in the United States. Founded in 1929,

LULAC has approximately 33,000 dues-paying members.

LULAC has often appeared as plaintiff or amicus in liti-

gation before this Court and in many other federal and

state courts to vindicate the rights of minorities, particu-

larly Hispanics, who are denied the full enjoyment of

their constitutional rights.

In 1977, ninety African American state legislators

founded the National Black Caucus of State Legislators

(“NBCSL”). Today NBCSL represents some 540 mem-

bers in forty-three states, the U.S. Virgin Islands and the

District of Columbia. The primary mission of the NBCSL

is to develop, conduct and promote educational, research

and training programs to enhance the effectiveness of its

members as they consider legislation and public policy

issues which impact. either directly or indirectly, upon

the “general welfare” of African American constituents

within their respective jurisdictions.

SUMMARY OF ARGUMENT

This case involves two highly significant and controver-

sial issues—race and the fundamental constitutional right

to have meaningful participation in the political process

by virtue of the vote.

The District Court Panel erred because this case impli-

cates the Fifteenth Amendment’s voting rights clause, not

the Fourteenth Amendment’s equal protection clause. To

the extent the Fourteenth Amendment is applicable, Dis-

trict No. 4 is subject to intermediate scrutiny, not strict

scrutiny. In this regard, District No. 4 presents none of

the concerns associated with a racial classification or

quota; thus heightened scrutiny is not triggered. More-

over, following the case of United Jewish Organizations

v. Carey, 430 U.S. 144 (1977) intermediate scrutiny is

the proper test to judge majority-minority voting districts

Even if strict scrutiny is applied, pursuant to Shaw vy.

, 113 S. Ct. 2816 (1993), compli-

Reno, 509 US.

ance with the permissive provisions of the Voting Rights

Act to create a second majority-minority district consti-

tutes a compelling state interest. To hold otherwise would

open the door to equal protection challenges in districts

where there is a majority of any one race. Moreover, ad-

herence to a traditionally shaped district clearly reflects

respect for political subdivisions and satisfies the require-

ment for compactness as established in Thornburg vy.

Gingles, 478 U.S. 30 (1986), and respect for traditional

and historical boundaries as settled in Reynolds v. Sims,

377 U.S. 533 (1964).

ARGUMENT

I. FIFTEENTH AMENDMENT JURISPRUDENCE IS

SUFFICIENT TO DETERMINE THE CONSTITU-

TIONALITY OF A _ REDISTRICTING PLAN

ADOPTED PURSUANT TO THE VOTING RIGHTS

ACT

Introduction

Justice is the end of government. It is the end of civil

society. It ever has been and ever will be pursued

until it be obtained, or until liberty be lost in the

pursuit.'

This country has consistently struggled with the con-

cept of justice as it relates to the governance and treatment

of its people. While born to be the model democracy,

the soul of America has toiled for over two hundred

years to ensure its citizenry the fundamental constitutional

right to vote. Reynolds v. Sims, 377 U.S. 533, 555

(1964). It is telling that the constitution has been

amended on four separate occasions in an attempt to

secure the right to vote. See U.S. Const. amend. XV,

XIX, XXIV, and XXVI. In the struggle for the franchise,

there can be no dispute that no other race or minority

1 The Federalist No. 51 at 324 (James Madison) (Clinton Rossi-

ter 1961).

has been subjected to more obstructions—from grandfather

clauses to the medievalist intimidation of life and limb—

than African Americans. See e.g., Dudley O. McGovney,

The American Suffrage Medley (1949); Kirk Harold

Porter, A History of Suffrage in the United States (1918).

Specifically, with respect to Louisiana, this struggle has

made its way to the chamber of this Court on numer-

ous occasions. See Beer v. United States, 425 US.

130 (1976) (New Orleans city council member districts’

reapportionment plan reflected African American voting

strength); South Carolina v. Katzenbach, 383 U.S. 301,

308 n.2 (1966) (literacy test held unconstitutional, Louis-

liana on record as supporting such tests); Louisiana v.

United States, 380 U.S. 145 (1965) (interpretation test

held unconstitutional; citizenship test ordered postponed;

monthly reports ordered on voting registration of African

Americans); Anderson v. Martin, 375 U.S. 399 (1964)

(placing “Negro” on ballot next to candidate’s name held

unconstitutional).

In fact, Louisiana’s history of disenfranchisement of

African Americans comprises the worst record this country

has seen. See United States v. State of Louisiana,

225 F. Supp. 353, 363-97 (E.D. La. 1965); H.R. Rep.

No. 439, 89th Cong., Ist Sess. at 12-17 (1965); S. Rep.

No. 162, 89th Cong., Ist Sess. at 9-10 (1965). Given

Louisiana’s long history of disenfranchisement of African

Americans, the Voting Rights Act of 1965, as amended

(“Voting Rights Act”) identified Louisiana. with a small

number of other states, as appropriate for remedial ac-

tion. Thus, the case at hand should be considered in

light of the historic struggle for the fundamental right

to vote.

A. The Fifteenth Amendment, by its Very Language,

Applies to Redistricting Plans Compelled by the

Voting Rights Act

The Fifteenth Amendment reads:

SECTION 1. The right of citizens of the United

States to vote shall not be denied or abridged by the

fad

United States or any State on account of race, color,

or previous conditions of servitude.

SECTION 2. The Congress shall have power to

enforce this article by appropriate legislation.

The Fifteenth Amendment, as recognized by this Court,

has always been self-executing. South Carolina, 383 U.S.

at 325; see Guinn v. United States, 238 U.S. 347 (1915).

Indeed, this Court has firmly established that when Con-

gress enacts a law to enforce the Fifteenth Amendment

it “may use any rational means to effectuate the constitu-

tional prohibition of racial discrimination in voting.”

South Carolina, 383 U.S. at 324. This Court has also

recognized that Congress’ authority to carry out the man-

dates of the Fifteenth Amendment is not limited to for-

bidding violations of the Fifteenth Amendment, but is

“complete in itself, may be exercised to its utmost extent,

and acknowledges no limitations, other than are pre-

scribed in the constitution.” South Carolina, 383 US.

at 327 (quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.)

1 (1824) (Marshall, J.)). In this regard, the Voting

Rights Act was enacted in 1965 to effectuate the purpose

of the Fifteenth Amendment. S. Rep. No. 162, 89th

Cong., Ist Sess. at 2 (1965).

The case before this Court arises from federal and state

action taken in compliance with the Voting Rights Act,

which was enacted by Congress as an expression of its

remedial powers under the Fifteenth Amendment. Spe-

cifically, the U.S. Attorney General and the State of

Louisiana worked together to intentionally create a sec-

ond majority-minority Congressional district (“District

No. 4”) that would further allow African Americans

residing in Louisiana to have a more meaningful vote at

the Congressional level. See Revnolds, 377 U.S. at 554-

55. The Respondents’ claim that District No. 4’s bizarre

shape intentionally and disproportionately segregates vot-

ers by race. Mot. to Affirm at 1. This issue perforce in-

vokes the Fifteenth Amendment, since it is the only con-

stitutional provision specifically enacted to control those

instances where race and franchise are both at issue.

Louisiana, 380 U.S. at 156.

Consequently, the constitutional question is whether

District No. 4 abridges or denies any citizen’s right to

vote based upon race, color, or previous conditions of

servitude. Existing case precedent compels a finding that

District No. 4 is permissible under the Fifteenth Amend-

ment.

In cases where voters raised a racial segregation claim,

this Court has indeed applied the Fifteenth Amendment.

For instance, in Gomillion v. Lightfoot, 364 U.S. 339

(1960), this Court ruled that a twenty-eight sided elec-

toral district, which eliminated all but four of four hun-

dred African American voters was unconstitutional under

the Fifteenth Amendment.” In the present case, Respond-

ents argue that District No. 4 1s bizarrely shaped. Mot.

to Affirm at |. Unlike the electoral district in Gomillion,

however, District No. 4 was not designed to exclude a race

of voters thereby providing no other expression of their

franchise. The redistricting plan in Gomillion resulted in

the total exclusion of African Americans from the demo-

cratic process. In the case at hand, the composition of

District No. 4 is 45% white and 55“- African Amert-

can. Thus, contrary to the facts in Gomillion, no par

ticular race in District No. 4 has had its right to vote

abridged or eliminated.

In City of Richmond v. United States, 422 U.S. 353,

371 (1975), this Court again applied the Fifteenth

Amendment. Specifically, Fifteenth Amendment jurispru-

dence was applied to the city of Richmond's annexation

plan, which reduced the percentage of African Americans

eligible to vote in city elections. This Court reversed the

2In Wright v. Rockefeller, 376 U.S. 52 (1964), this Court again

examined an allegation that voting rights were abridged based upon

the segregation of the races. In that proceeding, bizarrely shaped

Congressional districts separated races, vet the Court held that on

the issue of race, the Petitioners had failed to meet their burden

of proof. Thus, this Court in Wright did not decide whether the

Fourteenth or Fifteenth Amendment controlled.

lower court and found that African Americans’ right to

vote was neither denied nor abridged under §5 of the

/oling Rights Act,” inasmuch as African Americans’ po-

litical st-ength was not undervalued or underrepresented.

3y stark contrast, District No. 4 is comprised of approxi-

mately 45% white voters and 55% African American

voters. Indeed, District No. 4’s configuration is similar

in effect to the City of Richmond annexation, inasmuch

as it reduced the African American population from

52% to 42%. The issue in City of Richmond, as it

should be in this case, was whether any person’s right to

vote had been abridged or denied. In the case at bar the

answer, based upon the holding in the City of Richmond,

is no. Clearly the political strength of the affected group,

white voters in District No. 4, is not undervalued or un-

derrepresented, particularly when five out of seven of

Louisiana’s Congressional districts enjoy a white majority

population.

The conclusion that white Louisianans are neither un-

dervalued nor underrepresented is further supported by

this Court’s ruling in United Jewish Organizations v.

Carey, 430 U.S. 144, 166 n.24 (1977) (“UJO”). In

UJO this Court held that the rights of white voters re-

siding in the majority-minority districts were not abridged

because:

| T |he.white voter who as a result of the 1974 plan

is in a district more likely to return a nonwhite

representative will be represented, to the extent that

voting continues to follow racial lines, by legislators

elected from majority white districts. The effect of

the reapportionment on whites in districts where non-

white majorities have been increased is thus miti-

gated by the preservation of white majority dis-

tricts in the rest of the county. Of course, if voting

does not follow racial lines, the white voter has little

reason to complain that the percentage of nonwhites

in his district has been increased. (citation omitted)

‘Voting Riwhts Act °5 trock he Fifteenth Amendment. Beer,

425 U.S. at 147, n. 4

In sum, this Court recognized in UJO, that unlike the

racial explosion of the franchise in Gomillion, the New

York redistricting plan did not totally exclude the other

racial group from participation in the political process

It is clear that the Three-Member Panel in the Western

District of Louisiana, from which this appeal originates,

has misinterpreted Shaw; to that end, total consideration

of the Fourteenth Amendment was employed to the ex-

clusion of the Fifteenth Amendment. See Hays v. State

of Louisiana, 862 F. Supp. 119 (W. D. La. 1994). The

District Court Panel misinterpreted Justice O’Connor’s

Suggestion that Gomillion and Wright may be more ap-

propriately considered in the context of the Fourteenth

Amendment’s equal protection clause. Shaw v. Reno, 509

U.S. ——, 113 S. Ct. 2816, 2829-26 (1993). It would

have been more instructive for the court below to have

closely scrutinized the lineage of cases Justice O’Connor

employs in her dictum to interpret Gomillion and Wright.‘

The failure of the court below to carefully scrutinize Shaw

has resulted in the Three-Member Panel totally ignoring

Fifteenth Amendment jurisprudence, which, if allowed to

stand, would render the Fourteenth Amendment supreme

over the Fifteenth Amendment. This result is inapposite

to fundamental constitutional jurisprudence and interpre-

tation.

Interestingly, Justice Harlan spoke to the fallacy of

inflating the Fourteenth Amendment when he said:

Had the Court paused to probe more deeply into the

matter, it would have found that the Equal Protection

4 Neither City of Mobile v. Bolden, 446 U.S. 55 (1980), Personnel

Administrators of Mass. et al. v. Feeney, 442 U.S. 256 (1979), nor

Whitcomb v. Chavis, 403 U.S. 124 (1971) involved claims of race

segregation, rather Mobile and Whitcomb involved dilution of voting

rights, which O’Connor suggested Shaw was not such a case. Shaw,

1135 S/ Ct. at 2829-30. Even more inapposite, Feeney involved a

claim of gender discrimination.

Clause was never intended to inhibit the States in

choosing any democratic method they pleased for the

apportionment of their legislatures.

Reynolds, 377 U.S. at 590-91. (Harlan, J., dissenting)

Justice Harlan recognized that the Fourteenth and Fif-

teenth Amendments to the Constitution were added for

specific purposes. This Court in Gomillion and City of

Richmond also respected the distinct missions of these

amendnients. Thus, consideration of majority-minority

districts within the context of the equal protection clause

works to nullify not only the remedial nature of the

Voting Rights Act but also the import of the Fifteenth

Amendment. See South Carolina v. Katzenbach, 383 U.S.

301 (1966).

Fifteenth Amendment jurisprudence is not only suf-

ficiently developed to ferret_out actual racial segregation,

such as in Gomillion, but also to comprehend whether:

(i) an affected group’s right to vote has been denied or

abridged: or (ii) the affected group’s political strength has

been undervalued or underrepresented. City of Richmond

v. United States, 422 U.S. 353 (1975); see also City of

Mobile v. Bolden, 466 U.S. 55 (1980); City of Rome v.

United States, 446 U.S. 156 (1980). Thus, there is no

need to intertwine the Fourteenth Amendment with voting

rights cases involving race, because Fifteenth Amendment

jurisprudence has developed sufficient constitutional prin-

ciples to handle issues involving race and voting.

Simply put, the test to establish a Fifteenth Amendment

violation is whether a racial group has been totally ex-

cluded from the political process. In UJO, this Court

concluded that the white voters in a majority-minority dis-

trict had not been excluded from the political process

because they had effective representation in other districts.

In Gomillion, this Court understood that the elimination

of all but four African American voters from an electoral

district constituted total exclusion from the political proc-

ess. Conversely, in City of Richmond, this Court realized

that an annexation plan which reduced the population of

African Americans from 52% to 42% did not result in

their exclusion from the political process. In the case at

bar, whites have 45% of the voting population in Dis-

trict No. 4. Accordingly, in light of the above case law,

there can be no argument advanced that whites in District

No. 4 have been excluded from meaningful participation

in the political process.

The District Court Panel has committed judicial error

by failing to consider the Fifteenth Amendment. No case,

including Shaw, holds that the Fifteenth Amendment is

no longer applicable in voting rights cases. To overlook

this fatal flaw in the Hays District Court’s decision will

essentially vitiate the Fifteenth Amendment as well as the

remedial aspects of the Voting Rights Act.

II. NOTWITHSTANDING THE FIFTEENTH AMEND-

MENT’S APPLICATION, FOURTEENTH AMEND-

MENT EQUAL PROTECTION JURISPRUDENCE

WOULD COMPEL INTERMEDIATE SCRUTINY BE

APPLIED TO DISTRICT NO. 4

A. The Three-Judge Panel Misinterpreted Shaw’s Dis-

cussion of Irregular Shape

The Three-Judge Panel erroneously concluded that

“[r]ace-conscious redistricting, while not always unconsti-

tutional, is always subject to strict scrutiny.” Hays, 862

F. Supp. at 124. Employing strict scrutiny, the Three-

Judge Panel found District No. 4 constituted a racial

classification and therefore declared its formation viola-

tive of the Fourteenth Amendment’s equal protection

clause. 7d. at 125. This ruling misapplies Shaw and is

at odds with settled equal protection jurisprudence.

The Three-Judge Panel misinterprets Shaw as holding

that strict scrutiny is to be applied to any irregularly

shaped electoral district. To the contrary, Fourteenth

Amendment jurisprudence requires the application of in-

termediate scrutiny to District No. 4.

Specifically, the Three-Judge Panel failed to compre-

hend that a Shaw claim is narrowly limited to specific

circumstances, particularly when Shaw is considered in the

context of Wright. In Wright, maps and oral evidence

were introduced to prove that the newly created district

constituted racial gerrymandering.” This Court, how-

ever, ruled that this evidence was insufficient to establish

a racial gerrymandering cause of action. Id. at 55. Thus,

strict scrutiny was not applied. This is consistent with

Justice O’Connor’s interpretation of Wright which sug-

gests that when a race of people lives in one community,

a reapportionment plan which concentrates this race in

one district may be legitimate. Shaw, 113 S. Ct. at 2826.

Moreover, Justice O’Connor further concluded that

Wrights’s irregularly shaped district, which separated races

to a significant extent, did not necessarily violate the

equal protection clause based upon the compactness of

the districts and maintenance of the integrity of political

subdivision. /d.

Petitioners argue that District No. 4 follows the lines

of the “old eighth” district thereby satisfying the history and

traditional elements established in Reynolds. Reynolds,

377 U.S. at 578 (maintenance of political subdivisions

recognized as legitimate state action). In addition, Peti-

tioner asserts that the District No. 4 comports with the

state’s districting practices. Sol. Gen. J.S. at 19 (Sept.

26, 1994). Respondents contend that District No. 4 fails

the compactness requirement because it is 250 miles long.

Mot. to Affirm at 17. But other districts in the current

state plan are also long. Opp’n to Mot. to Affirm at 6-7

(Nov. 18, 1994). Moreover, “[iJt is similar to pre-

vious districts drawn by the state in the geographic area.”

Id. It is also comparable in its length to other districts

drawn by the state in this very plan. Jd. The Hays Court

failed to consider these factors in the context of their

finding that District No. 4 is bizarre. Thus, the Three-

Judge Panel committed judicial error by failing to con-

sider applicable law.

5 This ruling was also made in spite of “statistics [showing] that

the Eighteenth District contained 86.3% Negroes and Puerto

Ricans: the Nineteenth, 28.5%; the Twentieth, 27.5%: and the

Seventeenth, 5.1%.” Id. at 54.

The Three-Judge Panel also failed to carefully consider

Shaw in light of the import of UJO. UJO held that the

purposeful use of race in the creation of a majority-

minority electoral district did not violate the equal pro-

tection clause. Justice White, writing for this Court in

UJO, 430 U.S. at 161 concluded:

Implicit in Beer and City of Richmond, then, is the

proposition that the Constitution does not prevent a

State subject to the Voting Rights Act from deliber-

ately creating or preserving black majorities in par-

ticular districts in order to ensure that its reappor-

tionment plan complies with § 5. That proposition

must be rejected and § 5 held unconstitutional to the

extent if we are to accept petitioners’ view that racial

criteria may never be used in redistricting or that

they may be used, if at all, only as a specific remedy

for past unconstitutional apportionments. We are

unwilling to overturn our prior cases, however. Sec-

tion 5, and its authorization for racial redistricting

where appropriate to avoid abridging the right to

vote on account of race or color, are constitutional.

Contrary to petitioners’ first argument, neither the

Fourteenth nor the Fifteenth Amendment mandates

any per se rule against using racial factors in district-

ing and apportionment. Nor is petitioners’ second

argument valid. The permissible use of racial criteria

is not confined to eliminating the effects of past dis-

criminatory districting of apportionment. (footnote

omitted) (emphasis added).

Indeed, Justice O’Connor acknowledged that race con-

sciousness is not always race discrimination. Shaw, 113

S. Ct. at 2826. She distinguishes UJO’s sanctioning of a

majority-minority race conscious district, however, as a

case involving vote dilution. Jd. at 532. Thus, Justice

O’Connor concludes that UJO did not overrule the racial

classification cases of Wright and Gomillion. in Wright

and Gomillion the shape of the districts were highly

bizarre. In Wright, Justice Harlan described the reappor-

tionment plan as having zigzagging and tortuous bound-

aries. Wright, 376 U.S. at 58. Whereas in Gomillion the

— 7 _- —

district was twenty-eight sided. Gomillion, 364 U.S. at

341.

Justice O’Connor properly identifies Gomillion as a

case in which redistricting was accomplished for the pur-

pose of segregating African Americans from an electoral

district. In Gomillion, a redistricting plan resulted in a

twenty-eight sided electoral district which excluded all but

four of four hundred African Americans.” By identifying

the purposeful use of race in irregularly shaped districts

to segregate voters by race, Justice O’Connor elevated the

new equal protection claim to that of a Bakke-type quota.

Richard H. Pildes and Richard G. Niemi, Expressive

Harm, ‘Bizarre Districts and Voting Rights: Evaluating

Election-District Appearances After Shaw v. Reno, 92

Mich. L. Rev. 483, 504-16 (1993).

The significance of the ruling in Gomillion, and its in-

herent limitations, was completely misunderstood by the

Three-Judge Panel below. A failure to have a truly com-

pact district which can be identified and isolated to one

small area is not a signal that the redistricting plan, in and

of itself, should fail. Both of these concepts are relative

in their terminology and usage.’ As the record shows, the

Justice Department argues that Congressional District No.

6 “Segregation” and “apartheid” should never be used lightly nor

outside their specific context. To use these words out of context is

to belittle the struggle for human rights, including voting rights

in Louisiana, which gave rise to the terminology. As Nobel Leaure-

ate, Elie Wiesel, persuasively attests, the term holocaust (in which

six million Jews were systematically murdered) cannot be directly

compared to any other human experience.

*7As Richard H. Pildes and Richard G. Niemi in Expressive

Harms, ‘Bizarre Districts’ and Voting Rights: Evaluating Election-

District Appearances After Shaw v. Reno, 92 Mich. L. Rev. at 541

(1993) state:

. the language of ‘appearance’ obscures the fact that dis-

tricts might be oddly shaped along several different dimensions.

In the absence of a clear conceptual understanding of what

dimensions of district appearance are relevant, the basis for

judging districts will be unclear. Different observers will find

different aspects of the districts to be troubling.

4’s shape is not dispositive of either racial intent or

compactness. Instead of analyzing District No. 4 in light

of cases such as Gomillion and Wright, the majority in

Hays filled its decision with loosely worded rhetoric. Thus,

the Three-Judge Panel was in error. Accordingly, the

Hay’s Panel inappropriately applied strict scrutiny to

District No. 4, which is inconsistent with UJO.°

Instructive to the case at bar is Justice Stevens’ dissent

in Shaw, which stated that the equal protection clause

does not impose any requirement that a Congressional

district must be compact. Shaw, 113 S. Ct. at 2843-44.

Nor does the equal protection clause, suggests Justice

Stevens, prevent a state from purposely drawing a Con-

gressional district to benefit a group belonging to a mi-

nority race.” Jd. Significantly, he explains that:

8 More recently, in Metro Broadcasting, this Court also applied in-

termediate scrutiny to Congressionally mandated remedial acts which

employed race-based classifications. Specifically, this Court in Metro

Broadcasting used intermediate scrutiny to uphold a Congressionally

mandated affirmative action law which promoted racial diversity in

the communications field. Metro Broadcasting v. FCC, 497 U.S. £47,

564-65 (1990).

%If the equal protection doctrine is applied in this case, the

doctrine should be found to require upholding District No. 4 as the

second majority-minority Congressional district in Louisiana. In

1976, the Court upheld a reapportionment plan for New Orleans

which made African Americans the voting majority in one district

and the population majority in another. Beer, 425 U.S. at 142.

The Court concluded that given the evidence of racial voting blocs,

it was probable that one or two African Americans would be elected

to the city council. Jd. Thus, in a city where the populace elected

five councilmembers by district and two in at large elections, and

the African American population was 35%, the possibility that two

African Americans could be elected to the city council showed that

the reapportionment plan met the mandates of the Voting Rights

Act. Id. In 1995, justice similarly requires that Louisiana’s second

majority-minority Congressional district, District No. 4, be found

constitutional. Where there are seven Congressional districts in

Louisiana, (a state which has denied African Americans the right

to vote for most of the state’s history), African Americans (who

constitute 28% of the voting age population) should be provided

with a meaningful opportunity to select the candidate of their choice

15 -

The duty to govern impartially . . . is not violated

when the majority acts to facilitate the election of a

member or a group that lacks such power because it

remains underrepresented in the state legislature—

whether that group is defined by political affiliation,

by common economic interests, or by religious, ethnic,

or racial characteristics.

Id. at 2844.

Critical to Justice Stevens’ analysis of invidious

intent is the idea that the majority acts to its own detri-

ment to benefit the minority. The gravamen of Stevens’

argument recognizes the strength of the majority in com-

parison to the minority and that the minority relies upon

the majority for fair treatment. This imbalance of power

clearly controls whether an equal protection violation can

be brought to bear in those instances. The beneficent ac-

tion of the majority is dispositive of a benign purpose—

which is inapposite to the purpose underlying the invidious

discrimination demonstrated in Hirabayashi v. United

States, 320 U.S. 81 (1943). Under Justice Stevens’ ap-

proach, District No. 4 would be upheld since it is the State

of Louisiana acting for the benefit of its African American

constituents. |

In light of UJO and Gomillion, District No. 4 does not

constitute a racial classification sufficient to require strict

scrutiny. There are none of the characteristics of exacting

political expulsion, as was present in Gomillion. Con-

versely, similar to the districts in UJO, District No. 4

was created to provide minority voters with a meaningful

opportunity for participation in the political process. The

Hays Panel failed to properly consider this case law

when rushing to the conclusion that District No. 4 con-

in two of the seven districts. “Legislators represent people, not

trees or acres .... [T]he right to elect legislators in a free and

unimpaired fashion is a bedrock of our political system.” Reynolds,

377 U.S. at 562. African Americans in Louisiana need District No. 4

to secure their voting rights. More importantly, this Congressional

district will lessen racial polarization and racial stigmas, creating

a strong, equitable democracy.

stituted a racial classification. Thus, the lower court in-

appropriately applied strict scrutiny.

B. District No. 4 is not an Antecedent to Stereotyping,

Stigmas, and Racial Polarization

In contrast to Justice Stevens, Justice O’Connor is con-

cerned that overt state action, whether or not it benefits

minorities, leads to stereotyping, stigmas and racial polar-

ization. Justice O'Connor in Shaw, 113 S. Ct. at 2824-

25, states that racial classifications “threaten to stigmatize

individuals by reason of their membership in a racial

group and to incite hostility.” Jd. at 2825. Justice O’Con-

nor also extends these premises to maintain that a reap-

portionment plan can be “so irrational on its face that it

immediately offends principles of racial equality.” /d. at

2829. Justice O’Connor cites Richmond _v. J.A. Croson

Co., 488 U.S. 469 (1989), Wygant v. Jackson Bd. of

Educ., 476 U.S. 267 (1986), and Regents of the Univ.

of California v. Bakke, 438 U.S. 265 (1978), for the

proposition that the use of race in remedial measures

produces negative consequences.

Neither Bakke, Wygant, nor Croson are instructive

with respect to the impact a majority-minority Congres-

sional district will have upon race relations or upon the

favored race’s self-esteem. More importantly, none of these

cases involve voting rights. Justice Souter, dissenting in

Shaw, recognized that in contrast to the context of Croson

(competitive bidding contracts) and Wygant (teacher lay-

offs), a state’s drawing of electoral districts almost always

“require[s] some consideration of race for legitimate rea-

sons where there is a racially mixed population.” Shaw,

113 S. Ct. at 1845.

Indeed, in the context of voting rights, this Court

in UJO spoke directly to the issue of stereotypes, stigmas,

and race relations. Justice White announced the deci-

sion of the Court. Importantly, Justices Stevens and

Rehnqust, joined with Justice White’s ruling that:

There is no doubt that in preparing the 1974 legisla-

tion, the State deliberately used race in a purposeful

manner. But its plan represented no racial slur or

stigma with respect to whites or any other race, and

we discern no discrimination violative of the Four-

teenth Amendment nor any abridgment of the right

to vote on account of race within the meaning of the

Fifteenth Amendment.

UJO, 430 U.S. at 165. Empirical studies support UJO,

and further palliate the validity of using Bakke, Wygant,

and Croson in the context of voting rights.

Importantly, consider a general maxim concerning prej-

udice as set forth by a group of psychologists from San

Diego University:

[D]iscriminatory behaviors are more likely to be seen

as evidence of prejudice when directed toward mem-

bers of less powerful groups than when directed

toward members of more powerful groups.

Miriam J. Rodin, Judy M. Price, Jeff B. Bryson, and

Francisco J. Sanchez. Asymmetry in Prejudice Attribu-

tion, 26 J. Exper. Soc. Psy. 481, 482 (Mar. 3, 1989).

The authors of Asymmetry in Prejudice Attribution go on

to conclude that “the asymmetry effect in prejudice at-

tribution occurs because discriminatory behaviors pro-

duce an inference of greater ill-will when enacted by

members of more empowered groups, and a perception

that these behaviors cause greater harm to members of the

less empowered groups.” Jd. at 503. District No. 4’s

creation is not the result of racial majority taking advan-

tage of a political or racial minority. Consequently, the

circumstances by which stigmas and stereotypes are ad-

vanced are not present.

C. District No. 4 is Beneficial Because it Includes

Traditionally Excluded Minorities into the Political

Process

Louisiana Congressional District No. 4 is beneficial

inasmuch as it includes minorities more directly in

the democratic/political system while not excluding from

or diluting the strength of any race.” Inclusion of

racial diversity and balance in Louisiana Congressional

District No. 4 is in stark contrast to the cases in

which whites excluded minorities from the political proc-

ess. See e.g., Guinn v. United States, 238 U.S. 347

(1915) (invalidation of grandfather clauses); Gomillion

v. Lightfoot, 364 U.S. 339 (1960) (boundaries drawn

to exclude all but four of four hundred African American

voters). Clearly, there is a significant difference between

cases in which whites exclude minorities, and this case

in which the majority (the U.S. Congress, U.S. Attorney

General and State of Louisiana) is including African

Americans more directly and meaningfully in the demo-

cratic process.

Inclusion of minorities into the American fabric is at

the heart cf Brown v. Board of Education, and the line

of anti-segregation cases that followed. Inclusion of Afri-

can Americans in the democratic process will lessen stere-

otypes and racial polarization; it will grant an opportunity

for an important and unique voice to be heard and under-

stood, as well as important issues to be addressed and

understood.** District No. 4 presents none of the racial

10 There is no racial qucta involved here inasmuch as there is no

guarantee that District No. 4 will necessarily correlate to the elec-

tion of a minority to Congress. Given the nationwide malaise to-

ward voting, there is no guarantee that on election day minorities

will turn out in sufficient numbers to vote as a majority. Ronald

Smothers, The South; Blacks Feel Like Wallflowers As No Candi-

dates Woo Them, The New York Times, Al (Feb. 29, 1992

Furthermore, because of the significant difference in the cycles

of political alienation between whites and African Americans,

there is a very good chance in District No. 4, (which is 55%

African Americans and 45% white), that whites may constitute

the majority of voters. Cedric Herring, James S. House, and

Richard P. Mero, Racially Based Changes in Political Alienation

in America, 72(1) Soe. Sci. Q. 128 (March 1991).

'’ Although it is clear that whites have difficulties accepting

changes which benefit minorities, it is equally as clear that this

initial discomfort should be replaced with a better understanding

of minority issues and concerns, as well as understanding why

measures such as majority-minority districts are necessary. Cardell

stereotyping, stigmas or polarization concerns which would

require heightened scrutiny. Accordingly, legal precedent

demonstrates and empirical studies suggest that in the

context of voting rights, Bakke, Wygant, and Croson pro-

vide no support for rejection of District No. 4.

Nothing surrounding the creation of District No. 4

would compel an equal protection strict scrutiny analysis.

The use of race was not motivated by the racial stereo-

types or stigmas that were condemned in Gomillion and

Brown v. Board of Educ. (Brown I), 347 US. 483

(1954), or led this Court to reach the decision it had

centuries ago in the Dred Scott or Plessy v. Ferguson de-

cisions. Dred Scott v. Sanford, 60 U.S. (19 How.) 393

(1857); Plessy v. Ferguson, 163 U.S. 537 (1896). Con-

sequently, when the facts surrounding the creation of Dis-

trict No. 4 are considered within the context of UJO,

Wright and the City of Richmond, only an intermediate

level of scrutiny is required.

III. EVEN IF STRICT SCRUTINY IS APPLIED TO

THE REDISTRICTING PLAN, COMPLIANCE

WITH THE FEDERALLY MANDATED VOTING

RIGHTS ACT, WHICH WAS ENACTED PURSUANT

TO §2 OF THE FIFTEENTH AMENDMENT, CON-

STITUTES A SUFFICIENT COMPELLING STATE

INTEREST

Assuming arguendo that strict scrutiny applies to this

case, a compelling interest must be established in order

to uphold District No. 4. Respondents argue that no com-

pelling interest exists for the creation of District No. 4,

yet, Respondents concede that compliance with a manda-

tory provision of the Act constitutes a compelling in-

K. Jacobson, The Bakke Decision, 27(4) J. Confi. Resol. 687, 690-91

(Dec. 1983): T. Alexander Aleinikoff, A Cuse for Race-Concious-

ness, 91 Colum. L. Rev. 1060, 1091-1093 (1991) (quoting Randell

Kennedy, Persuasion and Distrust: A Comment on the Affirmative

Action Debate, 99 Harv. L. Rev. 1327, 1331 (1986)); Jon Hurwitz

and Mark Peffley, Traditional Verse Sor ial Values As Antecedents

of Racial Stereotyping and Policy Conservatism, 14(4) Polit. Beh.

395 (1992).

terest. Mot. to Affirm 22. More specifically, Respondents

remain resolute in their assertion that compliance with

various provisions of the Voting Rights Act, where not

required, fails to constitute a sufficient compelling inter-

est. Id.

Implicit in Respondents’ argument, however, is the no-

tion that there is no compelling state interest in the state’s

proactive compliance with a permissive provision of the

Voting Rights Act. That is, if no further violation exists,

then proactive compliance with the Voting Rights Act

by the state no longer constitutes a compelling interest.

While some support for this inference may exist in Shaw *

the case cannot be read to stand for the proposition that

compliance with a federally mandated statute, enacted

pursuant to § 2 of the Voting Rights Act cannot constitute

a compelling state interest.* Such a restrictive reading

constitutes a misreading of Shaw and effectuates a signifi-

cant change to the Voting Rights Act. Indeed, such a

reading of Shaw would place this Court in the role of both

the federal and state legislatures.”

As stated ante, the Shaw majority introduced the strict

scrutiny test for redistricting plans that are “so bizzare on

[their] face that [they are] ‘unexplainable on grounds

other than race.’” Shaw, 113 S. Ct. at 2825. This Court

12 Shaw, 113 S. Ct. at 2830. (“But in the context of a Four-

teenth Amendment challenge, courts must bear in mind the dif-

ference between what the law permits, and what is required.’’)

13 The Court has clearly recognized that “[t]he right to vote

freely for the candidate of one’s choice is of the essence of a

democratic society, and any restrictions on that right strike at the

heart of representative government.” Reynolds, 377 U.S. at 555.

14This Court has recognized that “State legislatures are, his-

torically, the fountainhead of representative government in this

country.” Reynolds, 377 U.S. at 564. Moreover, in Voinovich v.

Quilter, 507 U.S. , 113 S. Ct. 1149, 1156 (1993), Justice O’Con-

nor recognized that “it is the domain of the States, not the federal

courts, to conduct apportionment in the first place.” See also South

Carolina, 383 U.S. at 327 (under the Fifteenth Amendment Congress

may act to the extent of its powers).

recognized in Shaw that compliance with the pre-

scriptions of the various provisions under the Voting

Rights Act would constitute a sufficient compelling inter-

est.° Citing Beer v. United States, 425 U.S. 130 (1976)

as support, Justice O'Connor acknowledged that compliance

with the “nonretrogression principle” contained within § 5

exemplified a possible compelling interest. Stated in the

positive, in UJO Justice White noted that “where reappor-

tionment increased the percentage of districts where mem-

bers of racial minorities protected by the Act were in the

majority” the nonretrogression test was satisfied. UJO,430

U.S. at 159. And, citing this Court’s decisions in Wright

and Reynolds, Justice O'Connor further recognized that

maintaining “the integrity of various political subdivisions”

and providing for “compact districts” are sufficient com-

pelling interests. Shaw, 113 S. Ct. at 2830. Nothing in

Shaw, Reynolds or Wright suggests that this is the only

violation possible under §5 of the Voting Rights Act.

Relying upon recent decisions in the area of equal

protection jurisprudence, Justice O'Connor further recog-

nizes that “eradicating the effects of past racial discrimina-

tion” may constitute another compelling interest. Shaw,

113 S. Ct. at 2831. Indeed, Justice White explicitly ac-

knowledged the remedial nature of the Voting Rights

Act in UJO.*

Shaw clearly states that compliance with a federal stat-

ute constitutes a compelling interest. There is nothing in

Shaw that indicates a proactive compliance stance or retro-

active compliance stance (upon finding a violation) con-

15 “The States certainly have a very strong interest in complying

with federal antidiscrimination laws that are constitutionally valid

as interpreted and as applied.” Shaw, 113 S. Ct. at 2830.

16 Citing South Carolina, 383 U.S. 301 (1966), this Court stated:

It is apparent from the face of the Act, from its legislative

history, and from our cases that the Act itself was broadly

remedial in the sense that it was ‘designed by Congress to

banish the blight of racial discrimination in voting... .

UJO, 4380 U.S. at 156.

a ee, 8 > 1% a i

trols the characterization of the compelling interest. Con-

sequently, creation of a second majority-minority district

indeed can constitute a compelling interest. While Justice

O’Connor cites to Croson and Wygant as instructive of

the evidentiary requirements to support a compelling state

interest, her reference to the cases can in no way be read

so as to extinguish the concept that the permissive pro-

visions in the Voting Rights Act, which permit states to

proactively seek pre-clearance from the Attorney General

or a Three-Judge Panel, are insufficient in and of them-

selves, to establish a compelling state interest.’ Such a

reading of Shaw would constitute an abrogation of vari-

ous provisions in the Voting Rights Act.

In addition, in Voinovich v. Quilter, this Court recog-

nized that states need not wait for a violation before

complying with the Voting Rights Act. Voinovich, 113

S. Ct. at 1156-57. Any reading of the Voting Rights Act

which denies states the ability to prospectively comply

with the Voting Rights Act constitutes an abrogation of

the permissive provisions contained within the Act absent

the clear guidance of the Congress. If this Court holds

that such action fails the compelling interest prong, this

Court will in effect undermine further efforts on the part

of states to come into compliance with the Voting Rights

Act on a prospective basis.

17 Section 5 of the Voting Rights Act establishes a state may

may seek pre-clearance in order to determine that a “qualification,

prerequisite, standard practice, or procedure will not have the effect

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

color....” 42 U.S.C. § 1973c.

18 Established jurisprudence clearly sets forth the power and

authority of Congress in this particular realm. In South Carolina

v. Katzenbach, this Court recognized the extent and reach of

Congressional authority to fashion remedial legislation pursuant

to the Fifteenth Amendment. Specifically, this Court rejected the

petitioner’s argument that Congress was limited to crafting gen-

eral legislation prohibiting violations of the Fifteenth Amendment

and that courts were empowered and obliged to create specific

remedies to such violations. South Carolina, 383 U.S. at 327.

FT RE TO

Justice Douglas, in Hirabayashi, recognized that a pro-

active stance towards creating a remedy is a compelling

interest, particularly “where the peril is great.” Viewed

in its proper perspective, and in light of the long history

attendant to this state in obstructing sufferage rights for

various segments of its citizenry, such an approach on the

part of the state legislature makes good sense. Such an

action, effectuating an effective and viable redistricting

plan, should constitute a compelling interest—whether

done for the first time or for the second time.” In Beer,

this Court recognized that states are not required to wait

for a violation to occur before taking action to address

the issue of redistricting.”

19In his concurring opinion in Hirabayashi, Justice Douglas

recognized that a governmental entity need not wait for the harm

to occur. Hirabayashi, 320 U.S. at 107 (“. . . nor should the mili-

tary be required to wait until espionage or sabotage becomes effec-

tive before it moves. ... Certainly we cannot say ... [the mili-

tary] should have procrastinated.”) It is interesting to note, that

Hirabayashi is one of the few equal protection cases in which this

Court found that the government acted pursuant to a compelling

interest even though the compelling interest involved internment

of Japanese-Americans during World War II solely upon the basis

of their ancestry. This action was taken after the bombing of

Pearl Harbor by the Japanese.

20 Indeed, Louisiana has a historical context which predisposes it

to complying with the Voting Rights Act in a proactive manner.

“To be specific, the new remedies of the Act are imposed on

three States—Alabama, Louisiana, and Mississippi—in which

federal courts have repeatedly found substantial voting dis-

crimination.”

South Carolina, 383 U.S. at 327.

21 By “prohibiting the enforcement of a voting procedure change

until it has been demonstrated to the United States Department

of Justice or to a three-judge federal court that the change does

not have a discriminatory effect, Congress desired to prevent

States from ‘undofing] or defeat[ing] the rights recently won’

by Negroes.” Beer, 425 U.S. at 140 (citing H.R. Rep. No. 91-397,

p. 8). Moreover, the Court went on to state that “Section 5 was

intended to insure that [the gains thus far achieved in minor-

tory political participation] shall not be destroyed through new

Ultimately, Respondents’ argument relies heavily upon

the racial composition of District No. 4. and the equal

protection clause to provide a basis for challenging such

a district. This approach suffers from three severe flaws.

The first problem with this approach is the implicit sub-

sumption of the Fifteenth Amendment into the Fourteenth

Amendment, such that the race component of the Fif-

teenth Amendment no longer has any meaning as com-

pared to the equal treatment component of the Fourteenth

Amendment.

The second problem with such an approach is that it

sets precedent for an equal protection challenge based

upon the racial composition and complexion of a district.

Accordingly, any district which involves such a racial com-

position is open to equal protection challenges by white

and black inhabitants of the district. Thus, the minority

constituents of a newly created majority white district

could bring an equal protection challenge, arguing that

the racial composition of the district violates their right

to participate in a “color-blind electoral process.” Shaw,

113 S. Ct. at 2827. This would in turn create a judicial

and political quagmire with no clear solution in sight. It

is only when Respondents’ line of argument is carried to

its logical conclusion that the flaws within the argument

become manifest.

Third, Respondents’ argument sounds like an attempt

to cap the state’s right to effectuate a remedy of this na-

ture. Respondents’ argument attempts to provide a suffi-

cient basis for establishing a quota as to the number of

majority-minority districts a state may create. This Court

has stated repeatedly that it will not entertain implementa-

tion of racial quotas.” To that end, use of the equal pro-

[discriminatory] procedures and techniques.” Jd. (citing S. Rep.

No. 94-295, p. 9).

22 See e.g., Bakke, 438 U.S. at 289. (“The special admissions

program is undeniably a classification based on race and ethnic

background. ... Whether this limitation is described as a quota

or a goal, it is a line drawn on the basis of race and ethnic status.’ )

tection doctrine to challenge compliance with the Voting

Rights Act necessarily pits one constitutional amendment

against the other in terms of the primary of the amend-

ments. Such an action can only bring about the complete

conflagration of jurisprudence in either sphere. Thus, the

Court should reject Respondents’ argument that permissive

compliance with the Voting Rights Act fails to continue a

compelling interest.

To further buttress Respondents’ argument that no com-

pelling interest exists in creation of a second district, Re-

spondents inquire into whether a vote dilution violation

exists under § 2 of the Voting Rights Act. Such a viola-

tion would provide a justification for creation of District

No. 4. Mot. to Affirm 27. Advancing the first prong

required under Gingles v. Thornburg to establish a dilu-

tion claim, Respondents argue that Petitioner failed to

demonstrate that the minority group is sufficiency “geo-

graphically compact to constitute a majority in a single-

member district.22 Thornburg v. Gingles, 478 U.S. 30,

49 (1986). Respondents advanced this argument based

upon the district’s contours which follow the length of

the Red River. While Petitioner presented evidence that

the district followed the shape of the previous district

and other districts in the plan, the Three-Judge Panel

was not persuaded by the evidence presented. The Panel

found that the state failed to provide sufficient evidence

as to the issue of compactness. Opp’n to Mot. to Affirm

at 5-6.

While the shape and contours of the district have taken

on primary significance vis-a-vis Thornburg v. Gingles, 478

U.S. at 49, the Hays Panel failed to take into considera-

tion the underlying rationale driving the Gingles test. The

(citations omitted). See also, Wygant v. Jackson Bd. of Educ., 476

U.S. 267 (1986) ; City of Richmond v. J.A. Croson Co., 488 U.S. 469

(1989).

22 Petitioners failed to raise the issue of whether District No. 4

satisfies the second and third prong of the Gingles test thus, this

issue will not be addressed here. Opp’n to Affirm 6.

underlying rationale, determining the extent of integra-

tion of the community and its political strength, implies

a reasonable standard which should be taken into con-

sideration when making a determination of compactness.

Moreover, Gingles, when considered in the context of

earlier case law, does not impose an absolute standard

of compactness.

The Gingles test was born out of this Court’s attempt

to give life to the Congressional intent of the subject pro-

vision of the Voting Rights Act. Gingles, 478 USS.

at 47 n.15. The gravamen of the compactness re-

quirement was to keep integrated districts from being

sifted and winnowed to form a new district to the

detriment of the minority group within the popula-

tion. Id. at 50. Thus, the compactness requirement had

a dual role—to demonstrate vote dilution, and to indicate

the degree of integration and political strength of the

affected group present in the particular community. See

Growe, 113 S. Ct. 1149 (1993) (applying Gingles test to

single-member district claims of vote dilution).

Respondents assert that District No. 4 fails the com-

pactness requirement simply because it is 250 miles long.

Mot. to Affirm at 17. This argument goes solely to the

geometric shape of the district and fails to consider the un-

derlying rationale driving the decision in Gingles as stated

above. If the size of the district were dispositive of com-

pactness, reapportionment plans in agrarian and rural

areas would fail simply based upon the square miles in-

volved. Such a mechanical reading of the compactness

requirement would sound a death knell for large districts.

Nothing in Gingles can be read to impose a strict or abso-

lute standard of compactness. In fact, in light of other

dilution cases, Reynolds, and its progeny, Lodge, and

Wright; the opposite reading bears more truth. Geo-

graphic compactness is a relative concept. That is, it is

relative to the setting to which it is applied. Geographic

compactness, as a concept, must have some elasticity. In

light of the variety of settings to which this concept will

be applied, this maxim holds particular weight. In an

urban setting, strict geographical compactness sounds rea-

sonable given the stricter confines of most municipalities.

In a rural setting, the boundaries are far more relaxed than

the urban setting, thereby requiring a somewhat relaxed

standard of compactness. This is the lesson that can be

gleaned from the dilution cases, and in particular Rey-

nolds, and its progeny, Lodge, Wright, and Growe. These

cases set forth the standards articulated in Gingles. As

such, the requirement for compactness should be tempered

against a reasonable standard that considers factors such

as the nature of the area to be restricted and the historical

context of settlement patterns in that state.~

This reading of Gingles is not without some support.

In an earlier case, Rogers v. Lodge, 458 U.S. 613,

614 (1982) this Court upheld a lower court decision to

split a “large predominantly rural county” where the plain-

tiffs established a vote dilution claim. The judicially cre-

ated districts were established in order to remedy vote

dilution which was exacerbated by the at-large election

system. This case is instructive in that it dealt with an

area “approximately two-thirds the size of the State of

Rhode Island.” Zd.

In light of the Three-Judge Panel's misreading of Shaw

and Gingles regarding the establishment of a compelling

interest. this case should be remanded to the Panel for

further evidentiary findings.

24 Voting rights jurisprudence following enactment of the Voting

Rights Act clearly took into consideration the fact that “. . . legis-

latures prefer to follow traditional county and regional lines so that

the demands of blatant partisanship will be tempered by the con-

straints of history and tradition.” Kirkpatrick v. Preisler, 394 U.S.

526, 552 (1969) (Harlan, J., dissenting). However, this require-

ment as initiated in Reynolds, followed in Kirkpatrick, and its

progeny, should not and cannot be blindly considered absent some

temperance or constraints of reasonableness upon the principle.

CONCLUSION

\ For the reasons stated, this court should reverse the

Western District of Louisiana’s decision and uphold the

creation of District No. 4.

Respectfully submitted,

KOTELES ALEXANDER

Counsel of Record

BRIAN J. MURPHY

MILDRED E. STEWARD

ALEXANDER, APONTE

& MARKS, LLP

Lee Plaza—Suite 805

8601 Georgia Avenue

Silver Spring, Maryland 20910

(301) 589-2222

Attorneys for Amici Curiae

sia

Be NS ri a

See etee

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