Whether the district court erred in concluding that, because Bossier ParishSchool Board's 1992 redistricting plan was not enacted with a retrogressivepurpose, it was not enacted with "the purpose * * * of denying or abridgingthe right to vote on account of race," within the meaning of Section5 of the Voting Rights Act of 1965, 42 U.S.C. 1973c.

PARTIES TO THE PROCEEDING
Bossier Parish School Board was the plaintiff in the district court andis the appellee in this Court. Janet Reno, the Attorney General of the UnitedStates, was the defendant in the district court and is the appellant inthis Court. Defendant-intervenors George Price, et al., have filed a separatenotice of appeal from the judgment of the district court and are filinga separate jurisdictional statement.




In the Supreme Court of the United States
OCTOBER TERM, 1997

No.
JANET RENO, APPELLANT
v.
BOSSIER PARISH SCHOOL BOARD

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JURISDICTIONAL STATEMENT

OPINIONS BELOW

The opinion of the district court that is the subject of this appeal (App.1a-28a)1 is not yet published, but is available at 1998 WL 293272. An earlieropinion of the district court (App. 78a-144a) is reported at 907 F. Supp.434. This Court's opinion on appeal from the district court's initial decision(App. 29a-77a) is reported at 117 S. Ct. 1491.

The judgment of the three-judge district court was entered on May 4, 1998.2A notice of appeal was filed on July 6, 1998 (the Monday following Friday,July 3, a federal holiday). App. 242a-243a. The jurisdiction of this Courtis invoked under 42 U.S.C. 1973c.
STATUTE INVOLVED
Section 5 of the Voting Rights Act of 1965, 42 U.S.C. 1973c, is reproducedat App. 244a-246a.

The State of Louisiana and all of its political subdivisions, includingappellee Bossier Parish School Board (appellee or Board), are jurisdictionscovered by the "preclearance" requirements of Section 5 of theVoting Rights Act of 1965, 42 U.S.C. 1973c. See 28 C.F.R. Pt. 51, App. Section5 provides that a covered jurisdiction may not implement any change in electionpractices unless it has first submitted the proposed change to the AttorneyGeneral and the Attorney General has not interposed an objection to thechange within 60 days, or unless it has obtained a declaratory judgmentfrom the United States District Court for the District of Columbia thatthe proposed change "does not have the purpose and will not have theeffect of denying or abridging the right to vote on account of race or color."App. 244a-245a.
The Board submitted its 1992 redistricting plan to the Attorney General,but the Attorney General objected to it. The Board then filed suit in theDistrict Court for the District of Columbia, and that court precleared theplan in 1995, concluding that neither a prohibited purpose nor a prohibitedeffect was present. App. 78a-144a. On appeal, this Court held that a redistrictingplan has a prohibited "effect" under Section 5 only if the proposedchange would be retrogressive, i.e., if it would weaken the position ofracial minorities in the jurisdiction with respect to their effective exerciseof the electoral franchise. App. 33a-45a. With respect to the prohibited"purpose" under Section 5, by contrast, the Court reserved "thequestion whether the § 5 purpose inquiry ever extends beyond the searchfor retrogressive intent" and requires consideration whether the jurisdictionacted with the intent to discriminate against minorities, but not necessarilyto make their position worse than before, and stated that "[t]he existenceof such a purpose, and its relevance to § 5, are issues to be decidedon remand." App. 45a-46a. On remand, the district court declined toconsider any discriminatory purpose other than retrogression, App. 3a, andprecleared appellee's election plan because no retrogressive purpose hadbeen shown, App. 5a-8a. The question presented on this appeal is whethera covered jurisdiction's discriminatory, but not retrogressive, purposein enacting an election plan-such as its purpose to maintain and entrencha system that unconstitutionally dilutes a racial minority's votes-barspreclearance under Section 5, and accordingly whether the district courterred as a matter of law in preclearing appellee's election plan based onthe lack of evidence of retrogressive intent.
1. This case involves a redistricting plan adopted in 1992 by Bossier ParishSchool Board. Bossier Parish is located in northwestern Louisiana. The Parish'sprimary governing body, the Police Jury, and the Parish's School Board eachconsist of 12 members elected from single-member districts by majority voteto four-year terms. App. 145a. There is no legal requirement, however, thatthe 12 Police Jury districts and the 12 School Board districts be the same,and the districts for the two bodies were different throughout the 1980s.App. 150a-151a.
The School Board and the Parish each have a history of racial discriminationbeginning before the Civil War and continuing to the present. App. 210a-220a.That discrimination has affected both the administration of the school systemby the Board and the drawing of voting districts for elections to both theBoard and the Police Jury.
As for the administration of the school system, de jure segregation prevailedin Louisiana's schools long after this Court's decision in Brown v. Boardof Education, 347 U.S. 483 (1954). App. 216a. In 1965, the Board was placedunder a court order to eliminate the vestiges of racial discrimination inits school system. Lemon v. Bossier Parish Sch. Bd., 240 F. Supp. 709, 715-716(W.D. La. 1965), aff'd, 370 F.2d 847 (5th Cir.), cert. denied, 388 U.S.911 (1967). The Board repeatedly sought to evade its desegregation obligationsthrough a variety of devices, and it remains subject to the Lemon court'sdesegregation decree, its 1979 request for termination having been denied.App. 216a-217a. The Board has also violated the court's order to maintaina biracial committee to recommend ways to attain and maintain a unitaryschool system. App. 182a-183a. The Board has continued to assign disproportionatenumbers of black teachers to schools with predominantly black enrollment,and the schools in Bossier Parish have become increasingly segregated byrace since the 1980s. App. 217a-218a.
As for the Parish's electoral systems, in 1990, black persons comprised20.1% of the total population of Bossier Parish and 17.6% of the votingage population. App. 145a-146a. The black population of the Parish is concentratedin two areas: more than 50% of the black residents live in Bossier City,and the remaining black population is concentrated in four populated areasin the northern rural part of the Parish. App. 146a-147a. The parties havealso stipulated to facts showing that voting in the Parish is racially polarized,and that both black and white voters prefer candidates of their own race.App. 201a-206a. (One Police Juror estimated that at least 80% of white andblack voters vote for candidates of their own race. App. 201a.) The partieshave also stipulated that it is feasible to draw two reasonably compactmajority-black districts in the Parish using traditional districting featuressuch as roads, streams, and railroads. App. 154a-155a, 192a-194a. Nevertheless,the Police Jury has never had a districting plan that contained any majority-blackdistricts, App. 79a, and black voters have historically been unable to electcandidates of their choice to political positions in the Parish, App. 195a-206a.3

2. After the 1990 census revealed that its districts were malapportioned,the Police Jury began the process of redistricting. "At the time ofthe 1990-1991 redistricting process, some Police Jurors were specificallyaware that a contiguous black-majority district could be drawn both in northernBossier Parish and in Bossier City," and "it was obvious thata reasonably compact black-majority district could be drawn within BossierCity." App. 154a-155a. Nonetheless, during public meetings in April1991, white Police Jurors and the Police Jury's cartographer told citizensthat it was impossible to create such districts because the black populationwas too dispersed. App. 160a-162a. On April 30, 1991, the Police Jury adopteda redistricting plan that, like all of its predecessors, contained no majority-blackdistricts. App. 163a-164a.
On May 28, 1991, the Police Jury submitted its redistricting plan to theDepartment of Justice for preclearance under Section 5. The Police Jurydid not provide the Department with information then available to it showingthat reasonably compact majority-black districts could be created. Nor didit provide a copy of a letter from the Concerned Citizens of Bossier Parish,a local organization, protesting the Police Jury's exclusion of black citizensfrom the redistricting process, despite the organization's express requestthat the letter be included in the Police Jury's submission. On July 29,1991, based on the information submitted to it, the Department of Justiceprecleared the plan for Police Jury elections. App. 165a-167a.

3. The School Board initially proceeded without urgency on its own redistrictingprocess, as its next elections were not scheduled to occur until October1994. App. 172a. The Board hired Gary Joiner, the Police Jury's cartographer,to develop a redistricting plan. Joiner estimated that he would spend 200to 250 hours on the project. App. 173a. On September 5, 1991, Joiner presentedthe already-precleared Police Jury plan to the Board, along with precinctmaps (because, Joiner explained, the Board would have to work with the PoliceJury if it wanted to alter precinct lines). App. 174a.
The Board did not at that time adopt the Police Jury plan, which reflecteddifferent priorities than those of the Board. First, police juries "areconcerned with road maintenance, drainage, and in some cases garbage collection,and the level of demand for such services in each district is a concern.* * * [B]oard members, by contrast, are typically concerned with havinga public school or schools in each district." App. 151a. The districtlines in the Police Jury plan do not correspond with school attendance zones,and some of the Police Jury districts contain no schools. App. 191a. Second,the Police Jury plan did not correspond to the distribution of Board incumbents;if adopted by the Board, that plan would have created two districts thatpitted Board incumbents against each other and two other districts thatcontained no Board incumbents. App. 181a.
Beginning in March 1992, representatives of local black community groups(including defendant-intervenor George Price, president of the local chapterof the NAACP) requested that representatives of the black community be includedin the Board's redistricting process. The Board did not respond to thoserequests. App. 175a-176a. On August 20, 1992, at a time when no other planhad been publicly released, Price presented a partial plan, consisting oftwo majority-black districts, that had been developed by the NAACP. App.177a, 192a. Price was told, however, that the Board would not consider aplan that did not also draw the other ten districts. App. 177a. Accordingly,at a Board meeting held on September 3, 1992, Price presented an NAACP planthat depicted all 12 districts and included two majority-black districts.Ibid.
The Board refused to consider Price's new plan, ostensibly because "the[NAACP] plan's district lines crossed existing precinct lines, and thereforeviolated state law." App. 177a-179a. The Board's cartographer and attorneyknew at the time, however, that crossing existing precinct lines did notlegally preclude the Board from considering the plan. App. 179a. Althoughstate law prohibits school boards themselves from splitting precincts, App.149a, school boards may and do "request precinct changes from the PoliceJury necessary to accomplish their redistricting plans." App. 151a.The Board had itself anticipated that it would be necessary to split precinctsin fashioning a redistricting plan; Joiner had given the Board precinctmaps at the start of the redistricting process, and had told the Board membersthat they "would have to work with the Police Jury to alter the precinctlines." App. 174a.
At the next Board meeting on September 17, 1992, only two weeks after Pricehad presented the NAACP plan, the Board passed a motion of intent to adoptthe Police Jury plan that it had initially rejected. The Board's actionto adopt the Police Jury plan precipitated overflow citizen attendance ata Board hearing on September 24, 1992, at which many citizens vocally opposedthe plan. Price explained to the Board that, in light of the NAACP plandemonstrating the feasibility of drawing one or more reasonably compactmajority-black districts, the Department of Justice's preclearance of thePolice Jury plan did not guarantee its preclearance for Board elections.The Board nevertheless adopted the Police Jury plan at its next meetingon October 1, 1992. App. 180a-181a.
There was evidence that several Board members preferred the Police Juryplan because they did not want black representation on the Board. Boardmember Barry Musgrove said that "the Board was 'hostile' toward theidea of a black majority district." App. 83a n.4. Board member HenryBurns stated that, although he personally favored "having black representationon the board, other school board members oppose[d] that idea." Ibid.Thomas Myrick, a white Board member who represented a district containingportions of predominantly black communities, told Price that he (Myrick)"had worked too hard to get [his] seat and that he would not standby and 'let us take his seat away from him.'" Ibid.
The Board submitted the 1992 plan to the Attorney General for preclearance.On August 30, 1993, the Attorney General interposed an objection to theBoard's plan, citing new information that had not been provided when thePolice Jury submitted the same plan, such as community objections to theplan, the Board's refusal to engage in efforts to accommodate the concernsof the black community, and the feasibility of a majority-black district.App. 233a-237a.

4. On July 8, 1994, the Board filed a declaratory judgment action in theUnited States District Court for the District of Columbia, seeking preclearanceof its 1992 election plan. The government opposed preclearance, arguingthat the Board had not shown either that the plan lacked a discriminatoryeffect or that it lacked a discriminatory purpose. The government did notargue, however, that the 1992 plan had either the purpose or effect of makingthe position of blacks worse than before it was enacted.4
On November 2, 1995, a divided three-judge district court granted preclearance.App. 78a-144a. With respect to the government's argument that the PoliceJury plan had a discriminatory effect, the court held that a voting changecannot be denied preclearance under the "effect" analysis of Section5 solely on the ground that the change would "result[] in a denialor abridgment of the right * * * to vote on account of race or color,"in violation of Section 2 of the Voting Rights Act, 42 U.S.C. 1973. App.89a-102a.5 The court also ruled that the Board, in adopting the Police Juryplan, did not have a racially discriminatory purpose that would bar preclearance.App. 102a-114a. In reaching that conclusion, the court acknowledged thatthe Board had "offered several reasons for its adoption of the PoliceJury plan that were clearly not [its] real reasons." App. 106a n.15.The court nonetheless found "legitimate, non-discriminatory motives"for the Board's adoption of the Police Jury plan: "The Police Juryoffered the twin attractions of guaranteed preclearance and easy implementation(because no precinct lines would need redrawing)." App. 106a.
Judge Kessler concurred in part and dissented in part, and would have deniedpreclearance. App. 115a-144a. Although she agreed with the majority thatevidence of a Section 2 violation does not per se prevent Section 5 preclearance,she dissented from the majority's conclusion that the Board acted with legitimate,nondiscriminatory motives. App. 115a. Taking into account evidence that,she maintained, was relevant to the intent analysis under Village of ArlingtonHeights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266 (1977),she found that "the evidence demonstrates conclusively that [the Board]acted with discriminatory purpose." App. 117a, 118a.

5. The government appealed to this Court, and argued that a voting changemay not be precleared under Section 5 if the change would violate Section2. This Court disagreed with the government on that point and held, in agreementwith the district court, that a voting change may not be denied preclearanceunder Section 5 for having a discriminatory "effect" solely becausethe change would "result" in a violation of Section 2. App. 33a-45a.The Court explained that "a plan has an impermissible effect under§ 5 only if it would lead to a retrogression in the position of racialminorities with respect to their effective exercise of the electoral franchise."App. 35a (internal quotation marks omitted).
The Court also held, however, that evidence that a voting change would violateSection 2 by diluting minority voting strength is relevant to whether thatchange has a discriminatory purpose, and whether it should be denied preclearance.App. 45a-51a. The Court stated that, even if the only discriminatory purposethat requires denial of preclearance under Section 5 is a retrogressivepurpose, evidence of vote dilution is relevant to that analysis. App. 47a.The Court remanded the case to the district court for further considerationas to whether the Board had a discriminatory purpose in adopting the 1992plan. App. 50a-51a. In remanding the case, the Court "[left] open foranother day the question whether the § 5 purpose inquiry ever extendsbeyond the search for retrogressive intent," and stated that "[t]heexistence of such a purpose, and its relevance to § 5, are issues tobe decided on remand." App. 45a-46a.6

6. On remand, the parties rested on the original record. App. 1a. The governmentargued that a redistricting plan may not be precleared if it was enactedwith a discriminatory (albeit not necessarily retrogressive) purpose, andthat the evidence showed that the Board had adopted the 1992 plan with thediscriminatory purpose of blocking advances in minority voting strengthand maintaining a discriminatory status quo, which diluted blacks' votingstrength in Bossier Parish. The district court, again divided, again preclearedthe Board's plan. App. 1a-28a.
As to the central legal question left open by this Court and remitted tothe district court on remand-namely, whether Section 5 requires denial ofpreclearance of a plan enacted with a discriminatory but nonretrogressivepurpose-the court stated, "We are not certain whether or not we havebeen invited to answer the question the Court left for another day, butwe decline to do so in this case." App. 3a. The majority also remarkedthat the record in this case "will not support a conclusion that extendsbeyond the presence or absence of retrogressive intent." Ibid. Althoughthe majority stated that it could "imagine a set of facts that wouldestablish a 'non-retrogressive, but nevertheless discriminatory purpose,'"it believed that "those imagined facts are not present." App.3a-4a. Thus, the majority addressed only whether the Board had enacted theplan with the intent to retrogress. It did not address whether the evidencedemonstrated that the School Board had enacted the plan with the purposeof maintaining an electoral system that unconstitutionally dilutes the votesof blacks in the Parish, nor did it apply the Arlington Heights frameworkto analyze evidence of such a purpose to dilute blacks' votes.
The court adhered to its previous view that the Board's adoption of thePolice Jury plan was supported by two "legitimate, non-discriminatorymotives": the Board's belief that the plan would be easily precleared(because it had already been precleared by the Attorney General for usein Police Jury elections) and its "focus on the fact that the Juryplan would not require precinct splitting, while the NAACP plan would."App. 5a. Those two motives, the court concluded, were sufficient to establisha "prima facie case for preclearance." Ibid.
The majority then considered, under the rubric of Arlington Heights, supra,factors that might be relevant to establish the Board's retrogressive intent.First, it considered whether there was evidence that the plan "bearsmore heavily on one race than another." App. 5a. It found that factorinconclusive, because, having limited its analysis to evidence of retrogressiveintent, it could not find evidence that "the Jury plan bears more heavilyon blacks than the pre-existing plan," ibid. (emphasis added); evenif the 1992 plan was dilutive of black voting strength, it was no more dilutivethan the previous plan, App. 5a-6a. As for the historical background tothe Board's adoption of the 1992 plan, the court acknowledged that thishistory, including the Board's history of resistance to school desegregation,provided "powerful support for the proposition that [appellee] in factresisted adopting a redistricting plan that would have created majorityblack districts." App. 6a-7a. But, the court stressed, all that historyproved only "a tenacious determination to maintain the status quo.It is not enough to rebut the School Board's prima facie showing that itdid not intend retrogression." App. 7a. Similarly, the sequence ofevents leading up to the adoption of the plan "does tend to demonstratethe school board's resistance to the [NAACP plan]," and evidence ofthe Board's deviation from its normal practices "establishes ratherclearly that the board did not welcome improvement in the position of racialminorities with respect to their effective exercise of the electoral franchise,"but neither established retrogressive intent. App. 7a.
Judge Kessler again dissented. App. 12a-27a. She "remain[ed] convincedthat the School Board's decision to adopt the Police Jury redistrictingplan was motivated by discriminatory purpose," App. 12a (internal quotationmarks omitted), and that the Board's "proffered reasons for acceptanceof the Police Jury plan are clearly pretextual," App. 15a. She agreedwith the government that evidence of a discriminatory, albeit nonretrogressive,purpose requires denial of preclearance under Section 5; otherwise, "wewould commit ourselves to granting § 5 preclearance to a resistantjurisdiction's nonretrogressive plan even if the record demonstrated anintent by that jurisdiction to perpetuate an historically discriminatorystatus quo by diluting minority voting strength." App. 17a (internalquotation marks omitted). After reviewing evidence of vote dilution in BossierParish, Judge Kessler concluded that "[i]t would be impossible to ignorethe weight and the relevance of this § 2 evidence to the School Board'sintent to dilute the voting strength of blacks in Bossier Parish."App. 22a-23a. And she reiterated her previous conclusion, based on applicationof the Arlington Heights framework to the facts of this case, that "theonly conclusion that can be drawn from the evidence is that [appellee] actedwith discriminatory purpose." App. 23a (brackets omitted).
THE QUESTION PRESENTED IS SUBSTANTIAL
In the face of evidence that Bossier Parish School Board enacted its 1992election plan in order to entrench a status quo that denies black citizensof the Parish an equal opportunity to elect representatives of their choiceand to hinder improvement in the political position of blacks in the Parish,the district court precleared the plan because the record did not demonstratethat the Board intended to make the position of blacks worse than before.Thus, the district court effectively concluded that a voting change shouldbe precleared even if the enacting covered jurisdiction adopted the changewith the purpose of perpetuating an election system that unconstitutionallydilutes racial minorities' votes. Because the district court's ruling restson a fundamental misconception about the scope of Section 5 of the VotingRights Act and threatens seriously to impair enforcement of the Act, thisCourt should note probable jurisdiction.
1. Section 5 of the Voting Rights Act of 1965 prohibits a covered jurisdictionfrom implementing a new voting plan unless it first obtains a declaratoryjudgment from the District Court for the District of Columbia, or an administrativedetermination from the Attorney General, that the new procedure "doesnot have the purpose and will not have the effect of denying or abridgingthe right to vote on account of race or color." 42 U.S.C. 1973c. Whenit is only the effect of a voting plan, and not its purpose, that may barpreclearance, this Court has held that, for preclearance to be denied, theplan must do more than continue a pre-existing abridgment of the right tovote on account of race; it must make things worse-it must have a retrogressiveeffect. App. 33a-45a. But when a voting plan has the purpose of "denyingor abridging the right to vote" on account of race, and in fact accomplishesthat purpose by perpetuating an electoral system that unconstitutionallydilutes the votes of racial minorities, the plain language of the statuteprecludes enforcement of the plan.
This Court has consistently ruled, in accordance with that statutory language,that a voting plan is not entitled to preclearance if it was enacted withthe intent to discriminate against racial minorities, and that the prohibiteddiscriminatory purpose preventing preclearance is not limited to an intentto make the position of racial minorities worse. Most recently, in Cityof Pleasant Grove v. United States, 479 U.S. 462 (1987), the Court deniedpreclearance to the annexation, by a city with an all-white population,of two parcels of land, one vacant and one inhabited only by a few whites.The Court affirmed the district court's ruling that the City of PleasantGrove had failed to show that its annexations were untainted by a discriminatorypurpose, id. at 469, even though it was agreed that the change could notpossibly have been retrogressive of the position of black voters in theCity at the time of the annexation, since there were no such black votersthere, id. at 470-471. The Court squarely rejected the contention that "animpermissible purpose under § 5 can relate only to present circumstances,"id. at 471, and affirmed the denial of preclearance on the basis of theCity's "impermissible purpose of minimizing future black voting strength,"id. at 471-472 (emphasis added). "One means of thwarting this process[of black political empowerment]," the Court held, "is to providefor the growth of a monolithic white voting block, thereby effectively dilutingthe black vote in advance. This is just as impermissible a purpose as thedilution of present black voting strength." Id. at 472 (emphasis added).7
Similarly, in City of Richmond v. United States, 422 U.S. 358 (1975), theCourt concluded that, if an annexation plan was motivated by a discriminatorypurpose, it must be denied preclearance, even if the plan does not havea prohibited effect on minorities' franchise. Although the Court concludedin that case that the annexation plan did not have a discriminatory effecton the position of minorities, it ruled that the inquiry could not stopat that point, because the district court had found that the annexationplan "was infected by the impermissible purpose of denying the rightto vote based on race through perpetuating white majority power to excludeNegroes from office through at-large elections." Id. at 373. The Courtremanded for further proceedings on the issue of the City of Richmond'sintent, and it stressed that, even though the effect of the annexation mighthave been permissible, nonetheless "[a]n official action, whether anannexation or otherwise, taken for the purpose of discriminating againstNegroes on account of their race has no legitimacy at all under our Constitutionor under the statute. Section 5 forbids voting changes taken with the purposeof denying the vote on the grounds of race or color." Id. at 378.
This Court's summary affirmance of the district court's denial of preclearancein Busbee v. Smith, 549 F. Supp. 494 (D.D.C. 1982), aff'd, 459 U.S. 1166(1983), also establishes that a voting change must be denied preclearanceif it was enacted with a discriminatory purpose, even if that purpose wasnot necessarily retrogressive, i.e., intended to make the position of minoritiesworse. The redistricting plan at issue in Busbee was concededly not retrogressivein effect; indeed, it increased black voting strength. 549 F. Supp. at 516.The district court, however, relying upon evidence of Georgia's intent toavoid the creation of a majority-black district in the Atlanta area, deniedSection 5 preclearance. Id. at 516-518. The court explained that the redistrictingplan was "being denied Section 5 preclearance because State officialssuccessfully implemented a scheme designed to minimize black voting strengthto the extent possible, [and] the plan drawing was not free of raciallydiscriminatory purpose." Id. at 518. It therefore denied preclearancebased squarely on its finding that Georgia had acted with a discriminatory,but not retrogressive, intent.
On its appeal from the district court's judgment, the State included thefollowing question in its jurisdictional statement: "Whether a Congressionalreapportionment plan that does not have the purpose of diminishing the existinglevel of black voting strength can be deemed to have the purpose of denyingor abridging the right to vote on account of race within the meaning ofSection 5 of the Voting Rights Act." 82-857 Juris. Stmt. I. The Statealso argued that, "[a]bsent a purpose to diminish the existing levelof black voting strength or to despoil theretofore enjoyed voting rights,[a voting change] cannot have a discriminatory purpose within the meaningof Section 5." Id. at 22. In response, the government noted that "[t]hecore of [the State's] argument is that the only discriminatory purpose thatviolates Section 5 is a purpose to * * * cause retrogression," andargued that this reading of Section 5 was foreclosed by City of Richmond,supra. 82-857 Mot. to Aff. 5-6 & n.6. Thus, this Court's summary affirmancein Busbee necessarily rejected the contention that a voting plan enactedwith a nonretrogressive, yet discriminatory, purpose may be precleared and"prevent[s] lower courts from coming to opposite conclusions on [thatissue]." Mandel v. Bradley, 432 U.S. 173, 176 (1977).
In addition, in Beer v. United States, 425 U.S. 130, 141 (1976), the Courtstated that even an ameliorative election plan can violate Section 5 ifit "so discriminates on the basis of race or color as to violate theConstitution." That part of the Court's decision in Beer was expresslynoted with approval in the definitive Senate Report accompanying Congress's1982 extension of Section 5 without change. See S. Rep. No. 417, 97th Cong.,2d Sess. 12 n.31 (1982).8 Congress's reenactment of Section 5 "withoutchanging its applicable standard," App. 42a, amounts to a codificationof the Court's reading of Section 5 in Beer. See also City of Port Arthurv. United States, 459 U.S. 159, 168 (1982) (even if electoral scheme mightreflect political strength of a minority group, "the plan would neverthelessbe invalid [under Section 5] if adopted for racially discriminatory purposes").
The Court's decisions in these cases are fully consistent with Congress'soverarching purpose in enacting and extending Section 5, which was to giveeffective protection to the constitutional right against purposeful racialdiscrimination in voting, secured by the Fifteenth Amendment. See SouthCarolina v. Katzenbach, 383 U.S. 301, 325-326 (1966); City of Rome v. UnitedStates, 446 U.S. 156, 173-178 (1980). Congress required certain jurisdictionsto obtain preclearance of their voting changes precisely because those jurisdictionshad a "demonstrable history of intentional racial discrimination invoting" in violation of the Fifteenth Amendment, and because theirvoting changes carried a "risk of purposeful discrimination."Id. at 177. Thus, although there has been disagreement over "how farbeyond the Constitution's requirements Congress intended [Section 5] toreach," this Court has never expressed doubt that Congress intendedSection 5's preclusion of discriminatory voting changes "to reach asfar as the Constitution itself." App. 57a (Breyer, J.) To hold otherwisewould be to conclude that Section 5--one of the federal government's principalweapons in its arsenal against unconstitutional racial discrimination invoting, enacted by Congress under its authority to enforce the FifteenthAmendment because previous methods of protecting voting rights had provenineffective (City of Rome, 446 U.S. at 174)--does not in fact reach long-entrenchedracial discrimination in voting that violates that Amendment.
It is particularly implausible that Congress would have intended that theAttorney General give preclearance to voting changes enacted with a raciallydiscriminatory purpose. Congress enacted Section 5 because case-by-caselitigation by the Justice Department against unconstitutional discriminationin voting had proven insufficient; jurisdictions affected by judgments outlawinga particular device had simply switched to other discriminatory mechanismsnot covered by the decree. South Carolina v. Katzenbach, 383 U.S. at 309,313-315; see also S. Rep. No. 417, supra, at 5. In Section 5, Congress gavethe Attorney General the means to ensure that one discriminatory electionsystem does not follow another. In 30 years of enforcement of the VotingRights Act, the Department of Justice has always read Section 5 to requirecovered jurisdictions to show that their voting changes were enacted withoutan unconstitutionally discriminatory purpose, and it has never limited itspurpose analysis on preclearance review to a search for "retrogressiveintent." The Attorney General's published procedures for Section 5submissions do not even recognize the concept of "retrogressive intent,"but rather make clear that "the Attorney General will consider whetherthe change is free of discriminatory purpose and retrogressive effect inlight of, and with particular attention being given to, the requirementsof the 14th, 15th, and 24th amendments to the Constitution." 28 C.F.R.51.55(a). That longstanding and consistent construction of Section 5 bythe Attorney General is entitled to "particular deference" inlight of her "central role" in administering Section 5, see DoughertyCounty Bd. of Educ. v. White, 439 U.S. 32, 39 (1978), and a holding to thecontrary of that construction would effect a fundamental change in the operationof the Act.

2. Under the principles outlined above, the district court's preclearanceof the Police Jury plan was legally erroneous. Despite this Court's instructionthat "[t]he existence of such a [non-retrogressive, but nonethelessdiscriminatory] purpose, and its relevance to § 5, are issues to bedecided on remand," App. 46a, the district court declined to decidewhether the Board had acted with such a purpose, and instead limited itsinquiry to "whether the record disproves [appellee's] retrogressiveintent in adopting the Jury plan," App. 4a, a claim the governmenthad never made. The district court's erroneous truncation of its legal analysisled it improperly to preclear the 1992 plan, notwithstanding its own factualfindings and the underlying stipulated record, which plainly support, ifthey do not compel, a conclusion that the Board acted with discriminatoryintent in adopting that plan.
First, the district court's own evaluation of the Board's motivation foradopting the Police Jury plan leads to the conclusion that the Board actedwith a discriminatory purpose. The district court readily acknowledged thatthe Board was motivated by "a tenacious determination to maintain thestatus quo." App. 7a. It also accepted that the record "establishesrather clearly that the board did not welcome improvement in the positionof racial minorities with respect to their effective exercise of the electoralfranchise." Ibid. The district court's previous decision in this casealso recognized that the Board had initially disliked the Police Jury plan,for valid reasons, and that it turned to that plan only after the redistrictingprocess "began to cause agitation within the black community."App. 106a. Thus, while the district court characterized the 1992 plan asa "close port" available in a "storm," ibid., the "storm"was merely the Board's realization that the black community was seekingimprovement in its political position, something the Board was determinedto oppose.
Second, the record amply supports a conclusion that the Board adopted thePolice Jury plan in order to prevent any advance in the political positionof blacks-as the district court would surely have found, had it engagedin the proper analysis of the Board's intent under the well-settled frameworkof Village of Arlington Heights v. Metropolitan Housing Development Corp.,429 U.S. 252, 265-267 (1977).9 Under the Arlington Heights framework forevaluating intent, the "important starting point" is whether theimpact of the official action "bears more heavily on one race thananother." Id. at 266. As this Court noted in its prior opinion in thiscase, a "jurisdiction that enacts a plan having a dilutive impact [onblacks' votes] is more likely to have acted with a discriminatory intent."App. 47a. On remand, it was undisputed that the Police Jury plan had a dilutiveimpact on blacks' exercise of the franchise; the Board conceded in its briefon remand that "the School Plan did dilute black voting strength."Board Br. 21 (filed Oct. 23, 1997). See also App. 201a-206a (stipulationsestablishing that white majority in Parish usually votes sufficiently asa bloc to defeat black minority's preferred candidate).
Arlington Heights also instructs that the historical background of a decisionis particularly relevant "if it reveals a series of official actionstaken for invidious purposes." 429 U.S. at 267; see also Rogers v.Lodge, 458 U.S. 613, 625 (1982). The district court did not doubt that theBoard's history included a litany of actions taken for a discriminatorypurpose, most notably "the school board's resistance to court-ordereddesegregation" and its "failure to * * * maintain a bi-racialcommittee to recommend to the School Board ways to attain and maintain aunitary system and to improve education in the parish." App. 7a (internalquotation marks and citation omitted). It found that history irrelevant,however, because it proved at most "a tenacious determination to maintainthe status quo," rather than retrogression, ibid.--even though thatstatus quo was the vestige of de jure segregation in the Parish's publicschools, and the denial of an equal opportunity for black voters to electrepresentatives of their choice.
Arlington Heights holds further that substantive changes in a decisionmaker'sposition are relevant "particularly if the factors usually consideredimportant by the decisionmaker strongly favor a decision contrary to theone reached." 429 U.S. at 267. The district court indeed found "[e]videncein the record tending to establish that the board departed from its normalpractices" in adopting the 1992 plan. App. 7a. Under "normal practices,"the Board surely would not have rushed to adopt a redistricting plan withtwo districts that pitted incumbents against each other, and two other districtsthat contained no incumbent. See App. 178a. It is therefore unsurprisingthat the Board initially found the Police Jury plan unsuitable for its purposesand adopted it only upon realizing that it provided the only readily availableplan to prevent improvement in the political position of blacks in the Parish.10
The district court's cursory statement that "[it] can imagine a setof facts that would establish a 'non-retrogressive, but nevertheless discriminatory,purpose,' but those imagined facts are not present here" (App. 3a-4a)is unsupported-and unsupportable-by any analysis of the Arlington Heightsfactors. As Judge Kessler correctly pointed out, the majority "examine[d]each of the Arlington Heights factors * * * only for the purpose of findingevidence of retrogressive intent." App. 24a. Thus, the majority followedmost of its findings establishing that the Board did not want blacks inthe Parish to improve their voting strength with a statement that such evidencedid not show the intent to retrogress. See pp. 13-14, supra. The lower court'sfailure to apply the Arlington Heights framework to the broader questionof discriminatory intent was error.

3. The district court's decision to preclear the 1992 plan cannot be sustainedby its determination that two of the Board's proffered explanations foradopting that plan-"guaranteed preclearance" by the Attorney Generaland "easy implementation (because no precinct lines would need redrawing)"-werelegitimate and nondiscriminatory reasons. See App. 5a, 106a. First, therecord clearly demonstrates that these reasons were pretextual. As JudgeKessler pointed out, proper application of the Arlington Heights frameworkto the facts of this case "leads to one conclusion: the Board adoptedthe Police Jury plan * * * to ensure that no majority-black districts wouldbe created." App. 15a.
But even if the district court were correct that the Board's proffered reasonsfor its adoption of the 1992 plan were not pretextual, the court's decisionto preclear the plan would still be erroneous as a matter of law, becausethe record clearly demonstrates that the Board also acted with a discriminatoryintent in adopting the 1992 plan. A jurisdiction seeking preclearance hasthe burden to prove "the absence of discriminatory purpose" onits part. City of Rome, 446 U.S. at 172 (emphasis added); City of PleasantGrove, 479 U.S. at 469. Because the presence of a discriminatory purposerequires denial of preclearance, a jurisdiction's election plan is not entitledto preclearance if a discriminatory purpose significantly contributed tothe adoption of the plan, even if nondiscriminatory reasons also playeda part in motivating the jurisdiction. The fact that the jurisdiction mayhave had some legitimate reason for enacting the plan does not permit thecourt to ignore its discriminatory motivation in doing so.
The Board's hope for "guaranteed preclearance" of the 1992 plandoes not disprove a discriminatory purpose on its part. First, the hopefor guaranteed preclearance might have been equivalent to a discriminatorypurpose. Given the Board's history of racial discrimination, it would bereasonable to conclude that the Board turned to the Police Jury plan inpart because it expected that the plan's "guaranteed preclearance"would enable it to continue in place a discriminatory status quo withoutdetection or objection by the Attorney General. Second, the record showsthat, even if guaranteed preclearance was an important and race-neutralreason motivating the Board, it was not the only significant factor thatinduced the Board to adopt the Police Jury plan. Since that plan had beenprecleared for Police Jury elections on July 29, 1991, the School Boardcould have adopted it at its September 5, 1991, meeting, yet it continuedto consider adopting another plan for more than a year. See pp. 6-7, supra.In fact, the Board turned to the Police Jury plan only after the positionof the black community had become apparent. See pp. 7-8, supra. There must,therefore, have been another motivating factor behind the Board's decision,which can only be explained as the Board's desire to prevent blacks frommaking effective use of their voting strength.
Similarly, concerns over splitting precincts did not persuade the Boardto adopt the Police Jury plan either initially or during its efforts todraw a plan that satisfied its interests regarding incumbencies and schoollocations. Instead, the Board abruptly abandoned that search, more thantwo years before the next election, only when the NAACP plan demonstratedthe possibility of drawing majority-black districts in the Parish. The Boardalso made no attempt to examine measures that would have reduced the numberof precinct splits in a plan that would have provided for some black electoralopportunity. See App. 180a. Thus, even if one favorable feature about thePolice Jury plan was that it did not require precinct splitting, that doesnot mean that the Board acted without a discriminatory purpose in adoptingit.

4. For the reasons we have explained, the district court's evaluation ofthe Board's adoption of its redistricting plan was legally flawed. Becauseof the importance of those legal errors for the administration of Section5, plenary review by this Court is warranted. The district court's decisionto preclear an election plan without deciding whether it was infected byan unconstitutional, racially discriminatory motive (and in the face ofevidence that it was) is a significant turn in Section 5 jurisprudence.Future three-judge panels of the District Court for the District of Columbiahearing preclearance cases under Section 5 are likely to follow the analysisof the lower court in this case. See App. 97a-98a n.9 (district court notingthat prior decisions of three-judge preclearance panels are particularlypersuasive because, "in this curious corner of the law," onlythis Court and three-judge panels of the District Court for the Districtof Columbia may consider these questions). Because preclearance cases maybe brought only in the District Court for the District of Columbia, thereis no opportunity for further percolation of these issues in other federalcourts, and because appeals from such cases lie only to this Court, onlythis Court can correct the legal errors of the district court in this case.
Moreover, because the existence of a discriminatory purpose is potentiallyan issue in every preclearance submission, the question whether that prohibitedpurpose is limited to retrogressive intent is of central importance to theAttorney General's administration of Section 5. The existence vel non ofa discriminatory purpose is particularly important in the Attorney General'sevaluation of redistricting plans, and will undoubtedly be a major focusof submissions requesting preclearance of reapportionment plans followingthe upcoming decennial census. The significance of the question presentedfor the administration of Section 5 therefore warrants this Court's plenaryconsideration.

The Court should note probable jurisdiction.
Respectfully submitted.

SETH P. WAXMAN
Solicitor General
ANITA S. HODGKISS
Acting Assistant Attorney
General
BARBARA D. UNDERWOOD
Deputy Solicitor General
PAUL R.Q. WOLFSON
Assistant to the Solicitor
General
MARK L. GROSS
LOUIS E. PERAERTZ
Attorneys

SEPTEMBER 1998

1 "App." refers to the separately bound appendix to this jurisdictionalstatement.
2 Although notations on the district court's opinion and order indicatethat they were "filed" on May 1, 1998 (App. 1a, 28a), the districtcourt's docket shows that final judgment was actually entered on May 4,1998. See App. 242a.
3 When the stipulated record was compiled in this case, no black personhad ever been elected to the Board. App. 195a. Of the 14 elections in theParish held between 1980 and 1990 in which a black candidate ran againsta white candidate in a single-member district or for mayor, only two blackcandidates (one for Police Jury, one for Bossier City Council) won; thosecandidates both ran in districts that contained an Air Force base that increasedthe ability of black voters to elect representatives of their choice, ina manner particular to those districts. App. 206a-207a. (That advantagewas diminished after redistricting in the 1990s. App. 80a, 200a.) The blackincumbent Police Juror was reelected, unopposed, in 1991, under the newPolice Jury plan. App. 198a. The black City Councilmember ran against awhite opponent in 1993 and lost. App. 200a.
Before its earlier decision in this case, this Court denied the Board'smotion to supplement the record with the results of elections that occurredafter the Board's adoption of the 1992 redistricting plan at issue here.Reno v. Bossier Parish Sch. Bd., 517 U.S. 1154 (1996). On remand, the partiesagreed to rest on the largely stipulated record that they had compiled.App. 1a. The district court denied the Board's request that it take judicialnotice of the results of elections held since its previous decision, inwhich two black Board members were elected, noting that the Board had agreedto rest on the stipulated record and had declined its invitation to reopenthe record. The court observed that, were it "to consider the resultsat all, [it] would need more information about them." See App. 1a-2an.1, 10a. The district court therefore decided this case on the parties'stipulation that no black person had ever been elected to the Board.
4 The parties stipulated that, because the reductions in the black shareof the population in some districts were de minimis, the plan "is notretrogressive to minority voting strength compared to the existing benchmarkplan and therefore will not have a discriminatory [i.e., retrogressive]effect." App. 221a.
5 Section 2(a) of the Voting Rights Act bars all States and their politicalsubdivisions from maintaining any voting "standard, practice, or procedure"that "results in a denial or abridgment of the right * * * to voteon account of race or color." 42 U.S.C. 1973(a). Under Section 2(b)of the Act, a voting practice results in a denial or abridgment of the rightto vote if, "based on the totality of [the] circumstances, it is shownthat the political processes leading to nomination or election in the Stateor political subdivision are not equally open to participation by [racialminority groups] * * * in that its members have less opportunity than othermembers of the electorate to participate in the political process and toelect representatives of their choice." 42 U.S.C. 1973(b).
6 In separate opinions, Justice Breyer, joined by Justice Ginsburg, andJustice Stevens, joined by Justice Souter, concluded that the purpose inquiryunder Section 5 extends beyond the search for retrogressive intent, and"includes the purpose of unconstitutionally diluting minority votingstrength." App. 56a (Breyer, J., concurring in part and concurringthe judgment); App. 76a (Stevens, J., dissenting in part and concurringin part) (agreeing with Justice Breyer on that point). Justice Breyer observedthat "to read § 5's 'purpose' language to require approval of[a discriminatory, but nonretrogressive plan], even though the jurisdictioncannot provide a neutral explanation for what it has done, would be bothto read § 5 contrary to its plain language and also to believe thatCongress would have wanted a § 5 court (or the Attorney General) toapprove an unconstitutional plan adopted with an unconstitutional purpose."App. 59a. Justice Stevens found it "inconceivable that Congress intendedto authorize preclearance of changes adopted for the sole purpose of perpetuatingan existing pattern of discrimination." App. 76a.
7 In reaching that conclusion, the Court rejected the argument, advancedin dissent, that, "for a city to have a discriminatory purpose withinthe meaning of the Voting Rights Act, it must intend its action to havea retrogressive effect on the voting rights of blacks." City of PleasantGrove, 479 U.S. at 474 (Powell, J., dissenting); see id. at 471 n.11 (opinionof the Court, rejecting dissent's position).
8 There was no conference report on the 1982 extension of the Voting RightsAct; the House of Representatives adopted the version of the legislationpassed by the Senate. See 128 Cong. Rec. 14,933-14,940 (1982). The Courthas described the Senate Report as the "authoritative source"of the legislative history for the 1982 extension of the Act. Thornburgv. Gingles, 478 U.S. 30, 43 n.7 (1986).
9 As this Court explained in its prior opinion in this case, Arlington Heightshas served as the framework for examining discriminatory purpose in equalprotection cases and "has also been used, at least in part, to evaluatepurpose in [the Court's] Section 5 cases." App. 48a-49a (citing Cityof Pleasant Grove, and Busbee, supra).
10 As for the Arlington Heights factor of contemporaneous statements bydecisionmakers (429 U.S. at 267), the district court noted evidence thatsome Board members were hostile to black representation on the Board, butit reaffirmed its earlier conclusion that those statements did not establishdiscriminatory intent. App. 7a-8a, 109a-111a. The government did not contendthat those statements, standing alone, sufficed to prove discriminatoryintent; rather, we argued, as Judge Kessler wrote in her initial dissent,that, when "considered in the context of the School Board's discriminatorypast," "th[ose] statements add further proof of improper motive,"and "it seems fair to conclude that at least some School Board Memberswere openly 'hostile' to black representation on the school board."App. 133a.