Nos. 98-405 and 98-406
In the Supreme Court of the United States
OCTOBER TERM, 1998
JANET RENO, ATTORNEY GENERAL, APPELLANT
v.
BOSSIER PARISH SCHOOL BOARD
GEORGE PRICE, ET AL., APPELLANTS
v.
BOSSIER PARISH SCHOOL BOARD
ON APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
REPLY BRIEF FOR THE FEDERAL APPELLANT
SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
In the Supreme Court of the United States
OCTOBER TERM, 1998
No. 98-405
JANET RENO, ATTORNEY GENERAL, APPELLANT
v.
BOSSIER PARISH SCHOOL BOARD
No. 98-406
GEORGE PRICE, ET AL., APPELLANTS
v.
BOSSIER PARISH SCHOOL BOARD
ON APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
REPLY BRIEF FOR THE FEDERAL APPELLANT
1. Justiciability.
Appellee argues (Bd. Br. 8-11)1 that this case is moot because the next
regularly scheduled School Board election will not be held until 2002, by
which time it should have adopted a new redistricting plan. As we have explained
in our brief in opposition to appellee's motion to dismiss or affirm (at
1-3), appellants retain a live interest in the outcome of this litigation.
In Section 5 of the Voting Rights Act of 1965, 42 U.S.C. 1973c, Congress
granted voters (and the Attorney General) a statutory right against the
implementation of voting changes that have not been properly precleared.2
Thus, if this Court reverses the district court's preclearance judgment,
voters in Bossier Parish might well be entitled to a special election held
under a lawful plan that complies fully with Section 5. That lawful plan
might be developed by the Board and precleared by the Attorney General or
the district court, or (should the Board fail to hold a special election
on its own initiative) elections might be ordered by a federal court under
a plan fashioned by that court as a remedy for the Board's violation of
Section 5.
Appellee suggests (Bd. Br. 11) that, if the district court's preclearance
judgment is reversed and new elections are ordered, minority voters in the
Parish would receive no benefit because its previous 1980s plan was little
different from the 1992 plan, in terms of its effect on minority voting
rights. That argument proceeds from the incorrect assumption that there
would be no objection to holding elections under the 1980s plan. In fact,
the 1980s plan is severely malapportioned. See J.S. App. 171a-172a. It is
appropriate to assume that, if the district court's judgment is reversed
and the Board then chooses or is ordered to hold a special election, the
Board would not hold the election under an unconstitutional plan; and, if
the Board attempted to do so, use of the 1980s plan would likely be promptly
challenged in district court. Cf. J.A. 41-42 (prior equal-apportionment
challenge to implementation of 1980s plan).
Even if this case were moot, the appropriate action would be for the Court
to vacate the lower court's judgment and to remand the case with instructions
to dismiss the complaint. See Gov't Br. in Opp. to Mot. to Dism. or Aff.
2-3 n.1. Appellee erroneously relies (Bd. Br. 11-12 n.10) on U.S. Bancorp
Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 26 (1994) to argue
that the Court should dismiss the appeals rather than vacate and remand.
In that case, however, the controversy became moot because the parties had
voluntarily settled the case. In such a situation, "the losing party
has voluntarily forfeited his legal remedy by the ordinary processes of
appeal or certiorari, thereby surrendering his claim to the equitable remedy
of vacatur." Id. at 25. The Court reaffirmed, however, that "[a]
party who seeks review of the merits of an adverse ruling, but is frustrated
by the vagaries of circumstance, ought not in fairness be forced to acquiesce
in the judgment." Ibid. That is the case here, where the government
and the Price appellants have appealed twice from the district court's decision
to preclear the 1992 plan.
2. The Proper Scope of Section 5.
a. Appellee's attempt to argue that the purpose prong of Section 5 is limited
to retrogressive intent leads it to the remarkable assertion that there
is little if any connection between Section 5 and the Fifteenth Amendment.
Bd. Br. 25-28; see Bd. Br. 27 ("there is very little congruence between
the Constitution and § 5"); Bd. Br. 28 n.21 ("nothing in
the legislative history indicates that § 5 reaches 'racially motivated
voting changes' that violate the Constitution"). The Voting Rights
Act of 1965 itself, however, stated that its principal animating purpose
was "[t]o enforce the fifteenth amendment to the Constitution of the
United States." Pub. L. No. 89-110, 79 Stat. 437.3
The weakness of appellee's effort to divorce Section 5 from the Fifteenth
Amendment is amply demonstrated by the outlandish consequences of its argument.
Under appellee's theory, if in 1965 a town had (by law or practice) effectively
barred all blacks from voting in town elections, and had then, after the
enactment of the Voting Rights Act, enacted legislation with the purpose
of accomplishing the same result--for example, by altering the jurisdiction's
boundaries to exclude all blacks from residency (cf. Gomillion v. Lightfoot,
364 U.S. 339 (1960))-the Attorney General or the federal courts would have
been required to preclear that voting change, because it would not have
had the purpose or effect of making the position of blacks in the town worse.
Or, if an all-white town enacted legislation prohibiting blacks from voting,
that legislation would also have to be precleared for the same reason, even
though it would flatly violate the Fifteenth Amendment (cf. City of Pleasant
Grove v. United States, 479 U.S. 462 (1987)).4 The Court should reject a
construction of Section 5 that leads to results so demonstrably at odds
with Congress's intent.5
We have also pointed out (Gov't Opening Br. 20-23) that appellee's theory
is inconsistent with the specific purpose behind the preclearance requirement
of Section 5, to eliminate the pattern by which jurisdictions simply replaced
one unconstitutional voting practice, struck down by the courts, with another
one designed to accomplish the same result, requiring further litigation
by the Attorney General and private parties to enjoin the replacement plan.
Appellee argues (Bd. Br. 40 n.30) that a district court would not permit
a covered jurisdiction to substitute one discriminatory plan for another.
A jurisdiction might well try to accomplish just such substitution, however.
Under standard rules governing constitutional litigation, if a district
court strikes down one voting plan as unconstitutional, it is up to the
covered jurisdiction in the first instance to develop a new plan. See Chapman
v. Meier, 420 U.S. 1, 27 (1975). The government and voters would then be
required to go back to the district court, and would bear the burden to
prove that the substitute plan was unconstitutional in order to prevent
its implementation-exactly the unsatisfactory situation before Section 5
was enacted. Even if the jurisdiction's effort was eventually stymied by
the district court, it would have successfully delayed minority voters'
enjoyment of the full exercise of their right to vote. That prospect is
impossible to square with Congress's specific objective in Section 5, "to
shift the advantage of time and inertia from the perpetrators of the evil
to its victims." South Carolina v. Katzenbach, 383 U.S. 301, 328 (1966).
b. The plain language of Section 5 prohibits enforcement of a voting change
enacted with the "purpose" of "denying or abridging the right
to vote on account of race" (42 U.S.C. 1973c)-language that straightforwardly
reaches a voting change enacted with the purpose to discriminate against
black voters. Appellee presents several unpersuasive arguments to avoid
the thrust of this language. It argues (Bd. Br. 26), for example, that "on
account of race," as used in Section 5, cannot refer to unconstitutional,
purposeful racial discrimination because Congress used the same language
in amended Section 2 of the Act, 42 U.S.C. 1973, which does not contain
a purpose requirement. But Section 2 does reach purposeful racial discrimination
in official voting practices, see City of Mobile v. Bolden, 446 U.S. 55,
60-61 (1980) (plurality opinion) (emphasizing close connection between Section
2 and Fifteenth Amendment), even though, like Section 5, it reaches more
broadly as well. The fact that neither statute reaches only purposeful discrimination
hardly suggests that purposeful discrimination is outside either one.6
Appellee also argues (Bd. Br. 19-20) that, because Beer v. United States,
425 U.S. 130, 141 (1976), held that the effect prong of Section 5 reaches
only voting changes having a retrogressive effect, the purpose prong must
also be limited to changes enacted with the intent to retrogress. We have
explained, however, that Beer's construction of the effect prong of Section
5 reflects concerns about that statute's reach beyond the moorings of the
Constitution. See Gov't Opening Br. 29-32. Beer does not suggest that the
separate purpose prong of Section 5 fails to reach all voting changes enacted
with an unconstitutional, racially discriminatory purpose. To the contrary,
the Court observed in Beer that a voting change "could be a substantial
improvement over its predecessor in terms of lessening racial discrimination,
and yet nonetheless continue so to discriminate on the basis of race or
color as to be unconstitutional." 425 U.S. at 142 n.14.
In an effort to avoid the force of that language in Beer, appellee suggests
(Bd. Br. 35) that Beer merely observed that "a reapportionment which
satisfies § 5 may nonetheless violate the Constitution." But the
Court in Beer, immediately after the language quoted above, proceeded to
observe that the government had "made no claim" that the districts
at issue in that case were unconstitutional. See 425 U.S. at 142 n.14. The
Court discussed the Constitution precisely because of its relevance to the
standards for preclearance under Section 5. The Court also stated in Beer
that an ameliorative plan "cannot violate § 5 unless [it] so discriminates
on the basis of race or color as to violate the Constitution." Id.
at 141 (emphasis added). Thus, the Court's discussion about unconstitutional
voting changes related directly to its construction of Section 5. Congress,
moreover, codified that precise discussion in Beer when it subsequently
reenacted Section 5 in 1982. See Gov't Opening Br. 29.
Furthermore, if appellee's exceedingly narrow construction of Section 5's
purpose prong were correct, it is difficult to see why Congress would have
adopted it.7 As a practical matter, the purpose prong as so construed would
add little if anything to the retrogression analysis required under the
effect prong. In almost every case, the Section 5 inquiry would be effectively
exhausted by an analysis of the effects of a voting change to determine
whether the change was retrogressive. If the change was retrogressive, then
preclearance would be denied without any consideration of the change's purpose;
but if the change did not have a retrogressive effect, then (in appellee's
view) preclearance could be denied only if the covered jurisdiction had
enacted the voting change in an unsuccessful effort to achieve retrogression.
Nothing in the text, legislative history, or decisions of this Court construing
Section 5 suggests that the purpose prong has such a trivial reach, limited
to the case of the incompetent retrogressor.8 Cf. United States v. Albertini,
472 U.S. 675, 682-683 (1985) (rejecting construction of statute that would
render clause "almost superfluous").
c. Appellee's effort to wave away this Court's precedents fares no better.
On this point we refer the Court to our opening brief (at 24-29), but we
note that appellee's effort (Bd. Br. 28-29) to recharacterize City of Pleasant
Grove, supra, is particularly strained. In that case, the Court denied preclearance
to annexations by an all-white town of vacant land and land populated only
by whites for the purpose of "provid[ing] for the growth of a monolithic
white voting block, thereby effectively diluting the black vote in advance."
479 U.S. at 472. The Court could not have decided the case on the basis,
suggested by appellee (Bd. Br. 29), that the annexation of land then populated
only by whites could have made "minority voters worse off than they
were prior to the annexation," for there were no minority voters in
the City of Pleasant Grove to be made "worse off."9
Appellee appears to acknowledge (Bd. Br. 30 & n.23) that Busbee v. Smith,
549 F. Supp. 494 (D.D.C. 1982), aff'd mem., 459 U.S. 1166 (1983), rejected
the position it is now advancing, but it suggests that the Court should
disregard that decision because the Court mistakenly overlooked the possibility
that the voting change considered there caused minor retrogression in one
of the two districts at issue. We have explained (Gov't Opening Br. 27-28),
however, that the appeal in Busbee was presented to this Court on precisely
the opposite assumption, viz., that the plan at issue had no retrogressive
purpose or effect.10 Nor did the government argue in that case that the
lower court's decision should be affirmed on the alternate basis that the
plan in fact had a retrogressive effect. Appellee's reading of Busbee should
be rejected because "[q]uestions which merely lurk in the record are
not resolved" by summary affirmances, and "no resolution of them
may be inferred." Illinois State Bd. of Elections v. Socialist Workers
Party, 440 U.S. 173, 183 (1979) (citations and internal quotation marks
omitted).
d. Finally, to avoid the conclusion that Section 5 reaches unconstitutional,
intentional vote dilution, appellee argues (Bd. Br. 19) that vote dilution
is an inherently relative concept, and so suggests that the Department of
Justice, in concluding that the 1992 plan was dilutive, must have been comparing
that plan to the NAACP plan.11 In determining whether a plan has an unconstitutional,
racially discriminatory purpose, however, the Justice Department does not
simply compare it to other, possible plans; indeed, in this case, the Department
informed the Board that it "is not required by Section 5 to adopt any
particular plan." J.S. App. 235a. Rather, the Department undertakes
a fact-intensive, case-specific analysis based on Village of Arlington Heights
v. Metropolitan Housing Development Corp., 429 U.S. 252, 265-266 (1977),
of the circumstances under which district boundary choices have been made,
to determine whether or not those choices reflect an intent to minimize
or cancel out minority voting strength within particular communities. That
analysis takes into account whether legitimate, nondiscriminatory governmental
purposes support the jurisdiction's asserted reasons for selecting those
boundary lines. And while Section 5 does place the burden on the covered
jurisdiction to show that its plan lacks a discriminatory purpose, Congress
plainly did not intend that burden to be impossible for a covered jurisdiction
to meet.12 If the covered jurisdiction puts forward evidence showing that
its voting change is not retrogressive and raising no concerns under the
Arlington Heights framework for analyzing discriminatory purpose, the voting
change is likely to be precleared, either by the Attorney General or the
court, at least absent other evidence.13
3. The Board's Discriminatory Intent In Adopting The 1992 Plan.
Appellee argues (Bd. Br. 12-13) that the district court did not rule that
the purpose prong of Section 5 is limited to retrogressive intent, but also
considered whether the Board had a discriminatory (but not retrogressive)
intent in adopting the 1992 plan, and found (Bd. Br. 43-50) that no such
discriminatory intent was present. We have explained that the district court's
opinion, although unclear, is better understood as limiting the scope of
its inquiry to retrogressive intent. Gov't Opening Br. 41-42. Even if the
district court did consider the question of discriminatory (but not retrogressive)
intent, any findings that it may have made on that question cannot be sustained,
because they were not made pursuant to the appropriate legal analysis, and
are clearly erroneous in any event.
a. As we have explained (Gov't Opening Br. 42-43), the district court failed
to apply the analytical framework established in Arlington Heights, 429
U.S. at 265-266, to determine whether the Board acted with a discriminatory
(but not retrogressive) purpose. The court's discussion of the evidence
under Arlington Heights related only to retrogressive intent, and it made
only summary reference to the question of an otherwise discriminatory intent.
Moreover, any finding that the Board acted without a discriminatory intent
is impossible to square with other findings of the district court, such
as its acknowledgment that the Board was motivated by a "tenacious
determination to maintain the status quo," that the Board "departed
from its normal practices," and that the Board "did not welcome
improvement in the position of racial minorities." J.S. App. 7a. At
a minimum, therefore, a remand would be required for the district court
to evaluate the evidence under the correct legal standard.14
b. In any event, appellee's effort to defend the district court's "finding"
falls well wide of the mark. Appellee makes essentially three arguments.
First, it contends that the Board was required to adopt the Police Jury
plan, and to reject any other plan, because of its supposed obligation to
adopt a plan before December 31, 1992, without splitting any precincts.
Bd. Br. 44-46. Second, it argues that the Board properly rejected the NAACP
plan because that plan would have required the creation of an inordinate
number of new precincts in order to develop majority-black districts. Bd.
Br. 47-48. Third, it maintains that the 1992 plan did not dilute black voting
strength. Bd. Br. 3-4 n.3, 6 n.5, 44. All three arguments fail.
First, the supposed need to develop a plan that would avoid any precinct
splits could not have motivated the Board to adopt the Police Jury plan.
The Board initially had little interest in adopting the Police Jury plan
because that plan failed to respect its traditional priorities in redistricting-
incumbency protection and location of schools in districts. See Gov't Opening
Br. 36.15 But the Board's cartographer Gary Joiner predicted at trial that,
as a practical matter, any plan other than the Police Jury plan that would
be, as he put it, "as strong as this one" (meaning the Police
Jury plan) would require splitting precincts. See J.A. 271.16 And indeed,
when Joiner met with the Board in September 1991, after the Police Jury
had adopted its plan, he distributed precinct maps because, he explained,
the Board would have to "work with the Police Jury to alter precinct
lines." J.S. App. 174a. Nothing in the record suggests that Joiner
and the Board believed that they could not ask the Police Jury to alter
precincts after December 31, 1992, or that at the time they believed themselves
under an obligation to redistrict before that date (since the next Board
election was not until 1994). See id. at 172a, 173a.
Second, in criticizing the NAACP plan for requiring the creation of too
many new precincts, appellee mistakenly assumes that the relevant question
is why it rejected the NAACP plan; but the pertinent question is whether
it acted with discriminatory intent when it adopted the Police Jury plan,
instead of (for example) exploring some other option that would not have
minimized blacks' electoral opportunity. In fact, the Board could have drawn
a plan containing two majority-black districts with as few as 46 total precincts-
only 3 precincts more than the number in 1990, and 10 precincts fewer than
in the Police Jury plan. J.A. 236-237. Furthermore, appellee significantly
exaggerates both the number and the cost of additional precincts that would
have been required by the NAACP plan. Appellee asserts (Bd. Br. 4) that
the NAACP plan would have split existing precincts 65 times, but it is important
to understand that this does not mean that 65 new precincts would have been
created, for many areas cut out of existing precincts could have been consolidated
with each other or with other precincts-an option that Louisiana law permits.
J.A. 380 (La. Rev. Stat. § 18:425.1 (West Supp. 1999)).17 Such consolidations
could have addressed any significant concern about increased costs. The
record gives no indication, moreover, that the Board explored the costs
that would be occasioned by such precinct splits, or ways to alleviate them.
Finally, in an effort to wriggle out of its concession and stipulations
to the effect that the 1992 plan did dilute blacks' voting strength in the
Parish (see Gov't Opening Br. 38-39), appellee argues that the record does
not establish either that it was obvious that a reasonably compact majority-black
district could be drawn in the Parish, or that the Parish experienced racially
polarized voting. Both suggestions are wrong, even aside from the stipulations.
Contrary to appellee's assertion (Bd. Br. 3-4 & n.3), Board members
were aware that blacks were concentrated in certain areas, and most members
also knew where those areas were. J.A. 94-100, 104-105, 109-110, 113-114,
116-124.
In addition, while Dr. Engstrom's report (J.A. 163-174) acknowledged the
data limitations for doing ecological regression and extreme-case analyses
for most of the elections he analyzed (almost all of the elections involved
too few precincts for a reliable ecological regression analysis and no precinct
that was homogeneously black), that does not suggest that his report could
not validly conclude that racially polarized voting exists in the Parish.
A regression analysis of the only interracial parish-wide race for local
office in recent years (the 1988 primary election for the 26th Judicial
District Court) revealed a high degree of racial polarization: 79.2% of
black voters supported the unsuccessful black candidate, while only 28.9%
of white voters did so. J.S. App. 202a-203a; J.A. 166-167. Dr. Engstrom
explained (J.A. 165-167) that it is appropriate to consider the results
of parish-wide elections where, as here, many districts contain too few
precincts to obtain reliable estimates using ecological regression analysis
of elections held in individual districts, and appellee introduced no expert
testimony to the contrary, even on remand. Moreover, Dr. Engstrom was able
to conclude, by examining results in homogeneously white precincts, that,
in several School Board and other elections, white voters did not support
black candidates. J.A. 168-170, 172-174. In fact, "[o]f the 14 elections
since 1980 in which black candidates [ran] against white candidates for
a single-member district or for mayor, only two candidates * * * won,"
and those successes were affected by a unique circumstance, the presence
of Barksdale Air Force Base. See J.S. App. 206a-207a; Gov't Opening Br.
4-5 n.2.
4. Appellee's Effort To Introduce Extra-Record Information.
Appellee continues to attempt to rely on extra-record information showing
that, since the enactment of the 1992 plan, blacks have been elected to
the School Board (Bd. Br. 5-6). Appellee was expressly offered the opportunity
to reopen the record on remand to introduce evidence about the 1996 elections,
but expressly declined to do so. J.S. App. 1a. It should not now be allowed
to avoid the consequences of that decision.
As the district court concluded (J.S. App. 1a-2a & n.1), without being
subjected to adversary testing and placed in context, those election results
have no probative value.18 They have not been subjected to the expert analysis
of racial polarization and voter turnout that was conducted regarding previous
elections. See id. at 201a-210a. Without such close analysis, it is impossible
to draw reliable conclusions about the 1996 and 1998 election results. As
this Court has previously cautioned, the fact that some blacks have been
elected does not mean that either racially polarized voting or vote dilution
has suddenly disappeared. See Thornburg v. Gingles, 478 U.S. 30, 75-76 (1986).
Also, "the fact that racially polarized voting is not present in one
or a few individual elections does not necessarily negate the conclusion
that the district experiences legally significant bloc voting." Id.
at 57. Success of a minority candidate may be attributable to "special
circumstances, such as the absence of an opponent [or] incumbency,"
ibid.; it may also be attributable to an effort to influence the outcome
of ongoing voting-rights litigation, see id. at 76 n.37.
Indeed, there is reason to believe that a full analysis would lead to the
conclusion that such "special circumstances" were present in the
1998 elections of all three black Board Members. Our limited review of the
1998 election results shows that one of the successful candidates, Kenneth
Wiggins, was first appointed by the Board in 1997 to fill a vacant seat
(which might have been an effort to influence this litigation), and then
won election as an incumbent in 1998. Julian Darby and Vassie Richardson
ran unopposed as incumbents in 1998. Darby was previously elected in 1996
from a district that, we have explained, has historically been somewhat
less influenced by racial polarization because of the presence of Barksdale
Air Force Base,19 and his only opponent in the 1996 election was also black,
a situation that is of limited utility in analysis of racially polarized
voting patterns. In 1996, Richardson won election, in a district with the
highest percentage of black voting-age population in the Parish, by only
35 votes, out of 1683 votes cast. Also, in three other Board elections held
in 1996 and 1998, black candidates were defeated by white candidates.20
This Court should therefore decline to draw any conclusions about racially
polarized voting or vote dilution from the 1996 and 1998 elections.
* * * * *
For the foregoing reasons, and for those set forth in our opening brief,
the judgment of the district court should be reversed.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
APRIL 1999
1 As used in this reply brief, "Bd. Br." refers to appellee's
brief on the merits in this Court.
2 In a related context, this Court has consistently held that "[t]he
. . . injury required by Art. III may exist solely by virtue of 'statutes
creating legal rights, the invasion of which creates standing.'" Lujan
v. Defenders of Wildlife, 504 U.S. 555, 578 (1992); see Trafficante v. Metropolitan
Life Ins. Co., 409 U.S. 205, 208-212 (1972).
3 See also South Carolina v. Katzenbach, 383 U.S. 301, 324-327 (1966) (explaining
that Congress enacted Section 5 to enforce the Fifteenth Amendment); id.
at 337 (upholding Section 5 as "a valid means for carrying out the
commands of the Fifteenth Amendment"); S. Rep. No. 162, 89th Cong.,
1st Sess., Pt. 3, at 17 (1965) (joint statement of 12 members of Judiciary
Committee) ("The proposed legislation implements the explicit command
of the 15th amendment."); H.R. Rep. No. 439, 89th Cong., 1st Sess.
6 (1965) ("The bill, as amended, is designed primarily to enforce the
15th amendment to the Constitution of the United States and is also designed
to enforce the 14th amendment.").
4 In suggesting that such results would be unexceptionable, appellee argues
(Bd. Br. 20) that Beer v. United States, 425 U.S. 130 (1976), held that
"[d]eliberate maintenance of an at-large system for purely discriminatory
reasons does not offend § 5." See also Bd. Br. 23 n.17 (noting
that Beer held that New Orleans' maintenance of two at-large seats did not
implicate Section 5). The discussion in Beer to which appellee refers concerned
the distinct principle, unrelated to this case, that voting practices that
are not changed are not subject to Section 5 at all. See 425 U.S. at 138-139.
That argument is unavailing in this case; the 1992 School Board plan at
issue here is, of course, a voting change. For the same reason, appellee
errs in arguing (Bd. Br. 38) that the Attorney General and this Court were
"forced to preclear the two at-large seats retained in the Beer reapportionment
plan." The Attorney General and the Court were not forced to preclear
those seats; rather, they were not subject to preclearance at all, because
their retention did not constitute a voting change. See 425 U.S. at 139.
It is true, of course, that because Section 5 is limited to voting changes,
it cannot be used to root out all unconstitutional voting discrimination.
Congress's decision to tailor the powerful remedy of preclearance to voting
changes, however, reflects its particular purpose in Section 5 to prevent
covered jurisdictions from avoiding the dictates of the Constitution by
replacing one unconstitutional voting plan with another. See Gov't Opening
Br. 20-23.
5 Appellee erroneously contends that Beer and City of Lockhart v. United
States, 460 U.S. 125 (1983), concluded that Section 5 "did not in any
way prohibit" the perpetuation of existing discrimination (see Bd.
Br. 22-23 & n.17). Both cases evaluated the plans at issue only under
the effect prong of Section 5, and not the purpose prong, and found no retrogressive
effect. While it is true that a voting change may be denied preclearance
under the effect prong of Section 5 only if it makes the position of minorities
worse than before, no decision of this Court suggests that a voting change
should be precleared if it has the purpose of reinforcing existing racial
discrimination in official voting practices. See South Carolina, 383 U.S.
at 315-316 (noting that purpose of Section 5 was to prevent covered jurisdictions
from "perpetuat[ing]" voting discrimination).
6 Moreover, when the 1982 Senate Report to which appellee cites explained
that the phrase "on account of race" does not refer to purposeful
discrimination, it stressed that Section 5 expressly covers voting changes
enacted with the purpose to discriminate on account of race, by its use
of the separate term "purpose." The point made by the Senate Report
was that enactments having the "effect" (or "result")
of denying or abridging the right to vote "on account of race"
should be covered in Section 2, and that, in the context of effects as well,
the phrase "on account of race" does not refer to purposeful discrimination.
See S. Rep. No. 417, 97th Cong., 2d Sess. 27-28 n.109 (1982).
7 In a particularly unpersuasive example designed to show that its construction
of Section 5's purpose prong is not more narrow than the Constitution, appellee
argues (Bd. Br. 27) that, if a jurisdiction decided to eliminate a majority-black
district "for purely race-neutral reasons," such an action would
have a retrogressive purpose, but not a discriminatory purpose in violation
of the Constitution. It is difficult to see, however, that the jurisdiction's
purpose in enacting such a provision, if "race-neutral," would
be retrogressive (even though the effect might be). As this Court explained
in Personnel Administrator v. Feeney, 442 U.S. 256, 279 & n.24 (1979),
under the analytical framework of Village of Arlington Heights v. Metropolitan
Housing Development Corp., 429 U.S. 252, 265-266 (1977), a prohibited "purpose"
implies that the decisionmaker took action "at least in part 'because
of,' not merely 'in spite of,' its adverse effects upon an identifiable
group." If, therefore, appellee's hypothetical jurisdiction indeed
acted for "race-neutral reasons," it would not have acted "because
of" the plan's retrogressive effect.
8 To the contrary, the design of the statute suggests that the purpose prong
was intended to reach unconstitutional, racially discriminatory enactments,
and that the effect prong was designed to reach in addition those enactments
that, because of their retrogressive effect on minorities' position, would
impede their ability to overcome the remaining effects of past discrimination.
See City of Rome v. United States, 446 U.S. 156, 175-178 (1980). In addition,
some voting changes are more readily susceptible to analysis under the purpose
prong than under the effect prong. For example, when a jurisdiction creates
a new elected office or position, or chooses an election method for a new
governing body, it may be difficult to determine whether the change is retrogressive,
and a purpose analysis may be more fruitful to determine whether the change
implicates Congress's concerns in Section 5. See 28 C.F.R. 51.54(b)(4).
9 Appellee suggests (Bd. Br. 30) that the lower court echoed City of Pleasant
Grove when, in evaluating retrogressive purpose, it considered and rejected
the possibility that the Board might have been motivated to break up black
"voting blocks before they could be established" (emphasis omitted).
This argument, we note, is impossible to square with appellee's other argument-based
on the same language in the district court's opinion-that the district court
was considering discriminatory, and not just retrogressive, intent when
evaluating the evidence (see Bd. Br. 14-15). Moreover, the district court
was expressing the view that a purpose to "divide and conquer the black
vote" (J.S. App. 6a) might actually be a retrogressive purpose if there
were evidence that other aspects of the Board's earlier voting plan permitted
black political gains; but of course that was not so, because the previous
plan was also dilutive of black votes.
10 See 549 F. Supp. at 516 (district court's finding that "there is
no retrogression" and thus, "technically, the voting plan does
not have a discriminatory effect, as that term has been construed under
the Voting Rights Act") (citing Beer); see also Busbee, J.S. at i (question
presented assumes no retrogressive purpose or effect); id. at 7 (arguing
that the plan "significantly enhanced black voting strength" in
one district while "maintaining an influential level of black voters"
in the other); id. at 22 (citing district court finding of no retrogression).
11 In its discussion of this point, appellee introduces the novel concept
of "§ 5 dilution," by which it apparently means retrogression
in the context of redistricting. See Bd. Br. 19-20.
12 There is no basis for appellee's suggestion (Bd. Br. 39) that, if Section
5 does require the Attorney General and the preclearance court to consider
unconstitutional purpose, then the burden should be on the government to
show a constitutional violation. The statute places the burden of demonstrating
the absence of discriminatory purpose on the jurisdiction. See City of Pleasant
Grove, 479 U.S. at 479; City of Rome, 446 U.S. at 183. Appellee's reliance
on Miller v. Johnson, 515 U.S. 900, 916-917 (1995), is misplaced, for that
case arose in the context of litigation by private parties challenging a
districting plan as unconstitutional under the Fourteenth Amendment. In
such constitutional litigation-as generally in civil litigation-the burden
is on the plaintiff to establish all the elements of the cause of action
to prevail. The fact that the Department of Justice--during the time in
which it maintained that a "clear violation" of Section 2 also
required denial of preclearance under Section 5 (see J.S. App. 32a)-assumed
the burden of proving a Section 2 violation (see Bd. Br. 39) does not suggest
that the statute places on the Department the burden of proving a constitutional
violation, and the Department has not previously taken the position that
it has that burden. While the Department previously believed that Beer placed
on it the burden of proving a Section 2 violation in the Section 5 preclearance
context, this Court's decisions, especially City of Pleasant Grove and City
of Rome, make clear that Section 5 places the burden of proving the absence
of discriminatory intent on the covered jurisdiction.
13 Appellee also suggests (Bd. Br. 36-37) that Congress could not have authorized
the Attorney General or the preclearance court to decide constitutional
questions in the Section 5 context and then also authorize a subsequent
constitutional challenge to a precleared voting change. The Attorney General
might, however, not interpose an objection for a variety of reasons, including
the possibility that the covered jurisdiction had not submitted all the
relevant evidence to her (as was the case with the Police Jury's submission
of its plan, see Gov't Opening Br. 6); the government or private parties
might later discover evidence showing that the plan had been enacted with
a discriminatory purpose, and pursue Section 2 or constitutional litigation
on that basis. Further, although private parties are often allowed to intervene
in Section 5 litigation, there is no necessity that they be present, and
preclearance cases in the courts are often litigated only against the government.
By allowing a subsequent constitutional challenge to be brought, even by
private parties, and even after a voting change has been precleared, Section
5 balances the interest of the covered jurisdiction in implementing its
voting change promptly with the interest of voters in being free of unconstitutional
voting changes.
14 Appellee again suggests (Bd. Br. 14) that, when the district court discussed
the 1992 plan's "dilutive impact," it must have been addressing
discriminatory intent generally, and not just retrogressive intent, because
it understood that this Court had used the term "dilutive impact"
to refer to a discriminatory plan, rather than a retrogressive plan. That
suggestion is plainly wrong, for the reason explained in our brief in opposition
to appellee's motion to dismiss or affirm (at 5 n.3).
15 In an effort to avoid the effect of its stipulations that the Board was
traditionally concerned with incumbency protection (J.S. App. 171a, 172a),
appellee suggests (Bd. Br. 48) that one member of each pair of incumbents
placed in the same district under the Police Jury plan had "already"
decided not to run for reelection. The parts of the record on which appellee
relies, however, establish only that one member of each pair had decided
not to run for reelection by the time discovery was taken in 1994-not when
the plan was adopted in 1992. It is hardly surprising that one of each pair
thrown together in a new district eventually decided not to challenge the
other incumbent; but that only shows that the Police Jury plan in fact disserved
incumbency protection, which the record as a whole demonstrates was one
of the Board's traditional priorities.
16 Indeed, given that there was great variation among the size of the precincts
under the Police Jury plan, and that some of them were quite large (one
had 5440 people) while others were quite small (one had 72 people), it would
have been very difficult, if not impossible, to draw any plan other than
the Police Jury plan that would meet equal- apportionment requirements without
breaking at least some of the precincts that formed the building blocks
of that plan. See J.A. 497-499.
17 For the figure of 65 precincts, appellee relies on its Exhibit 11 (J.A.
455-496), a table that was not the subject of testimony or other explanation
below. On its face, the exhibit does not suggest that 65 new precincts would
need to be created under the NAACP plan. The exhibit identifies 65 precinct
"cuts," but 13 of those "cuts" contain no population,
and many others contain very small population totals. The "cuts"
therefore could readily have been remedied by consolidation with other precincts.
18 The fundamental question is what the Board in 1992 expected and desired
to be the consequences, for minority voting rights, of its redistricting
plan. If, as the record otherwise establishes, the Board adopted that plan
with a discriminatory purpose, the fact that its purpose may not have been
entirely successful does not entitle it to preclearance of the plan.
19 See Gov't Opening Br. 4-5 n.2. The Board's District 10 has the same lines
as the district represented by Julian Darby's brother, Jerome, on the Police
Jury. See J.S. App. 196a-198a.
20 In 1996, black candidates were defeated by white candidates in run-off
elections for Districts 1 and 7 (the latter has the second-highest percentage
of black voting age population in the Parish). In 1998, a black candidate
was defeated by a white candidate in District 3. Also, Jerome Blunt, appointed
by the Board in 1992 to fill a vacant seat while the Board was considering
redistricting plans and sworn in on the day that the Board voted its intent
to adopt the Police Jury plan, was shortly thereafter defeated by a white
challenger in a special election. J.S. App. 179a; see id. at 133a-134a n.9
(Kessler, J., dissenting) (observing that Board "appointed [Blunt]
to fill a seat that they knew he would be unable to hold, hoping to quell
the political furor over adoption of the Police Jury plan").