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No. 98-405: Reno v. Bossier Parish School Board | |||||||||||
Back to Jurisdictional Statement (HTML)
No. 98-405
2. The Bossier Parish School District, which is coterminous with BossierParish, is the only school district in Bossier Parish. 3. Bossier Parish is governed by a police jury, which consists of twelvepolice jurors elected in non-partisan elections from single-member districtsto four-year, concurrent terms with a majority vote requirement. 4. The Bossier Parish School District is governed by a school board, whichconsists of twelve members elected in nonpartisan elections from single-memberdistricts to four-year, concurrent terms with a majority vote requirement.No black person ever has been elected to the Bossier Parish School Board. 5. According to the 1990 Census, Bossier Parish had a total population of86,088 of whom 65,812 (76.45 percent) were non-Hispanic white persons and17,301 (20.1 percent) were non-Hispanic black persons. 6. According to the 1980 Census, Bossier Parish had a total voting age populationof 60,904 of whom 48,130 (79.03 percent) were non-Hispanic white personsand 10,726 (17.61 percent) were non-Hispanic black persons.
In the Supreme Court of the United States
OCTOBER TERM, 1997
JANET RENO, APPELLANT
v.
BOSSIER PARISH SCHOOL BOARD
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
APPENDIX TO THE
JURISDICTIONAL STATEMENT
SETH P. WAXMAN
Solicitor General
Counsel of Record
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
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
APPENDIX A
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 94-1495 (LHS (USCA), GK, JR)
BOSSIER PARISH SCHOOL BOARD, PLAINTIFF
v.
JANET RENO, ATTORNEY GENERAL, DEFENDANT,
GEORGE PRICE, ET AL., INTERVENOR-DEFENDANTS
[Filed: May 1, 1998]
Before: SILBERMAN, Circuit Judge, and KESSLER and ROBERTSON, District Judges.
Opinion for the Court filed by Judge ROBERTSON
ROBERTSON, District Judge: This case is before us on remand from the UnitedStates Supreme Court for further proceedings consistent with the Court'sdecision of May 12, 1997, 117 S. Ct. 1491. The parties have agreed thatthe record should not be reopened for the taking of additional evidence,1but they have submitted additional briefs. After reviewing the record incompliance with the Supreme Court's opinion, we adhere to our decision ofNovember 18, 1995 granting preclearance under § 5 of the Voting RightsAct of 1965, 42 U.S.C. § 1973c, to the Bossier Parish School Board'sredistricting plan ("the Jury plan"). The facts bearing upon ourconclusion are all set forth in the opinions issued with our original judgment,907 F. Supp. 434 (D.D.C. 1995). The reasons for our decision to adhere tothat judgment are set forth below.
In compliance with the Supreme Court's instructions, we have consideredthe relevance of certain "§ 2 evidence" in evaluating theschool board's intent for § 5 purposes. We have considered whetherthe plan in question "has a dilutive impact . . . [making] it 'moreprobable' that the jurisdiction adopting that plan acted with an intentto retrogress than 'it would be without the evidence.'" 117 S. Ct.at 1501. We have applied the multi-part test articulated in Arling- tonHeights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S. Ct.555 (1977), to evaluate the school board's purpose. And, we have "address[ed]appellants' additional arguments that [we] erred in refusing to considerevidence that the board was in violation of an ongoing injunction to remedyany remaining vestiges of [a] dual [school] system." 117 S. Ct. at1503 (internal quotations omitted).
I.
Before carrying out the tasks assigned to us on remand, and particularlybefore applying the Arlington Heights test to the record before us, it isnecessary to decide what question we are answering. The Supreme Court wasclearly interested in our view as to whether considering all of the evidence,the school board has carried its burden of proving that it did not intendto retrogress. The Court "le[ft] open for another day the questionwhether the § 5 purpose inquiry ever extends beyond the search forretro- gressive intent." Justice O'Connor's opinion for the Court suggestedthat we might consider that question on remand.2 Justices Breyer and Ginsburgwere clearly uncomfortable with leaving the question for another day, "forotherwise the District Court will find it difficult to consider the evidencethat we say it must consider," 117 S. Ct. at 1504.
We are not certain whether or not we have been invited to answer the questionthe Court left for another day, but we decline to do so in this case, becausethe record will not support a conclusion that extends beyond the presenceor absence of retrogressive intent. We can imagine a set of facts that wouldestablish a "non-retrogressive, but nevertheless discriminatory, purpose,"but those imagined facts are
not present here. The question we will answer, accordingly, is whether therecord disproves Bossier Parish's retrogressive intent in adopting the Juryplan.
We must next decide what we mean by "retrogression." The controllinglaw is clear-up to a point. "Retrogression, by definition, requiresa comparison of a jurisdiction's new voting plan with its existing plan. . . [citation omitted]. It also necessarily implies that the jurisdiction'sexisting plan is the benchmark. . . ." 117 S. Ct. at 1497. Intervenorargues that to search for retrogression in a jurisdiction that has neverelected a black person to its school board is a fool's errand, because "itwould appear impossible to retrogress from zero." Brief on remand ofdefendant-intervenors, at 35. But the test of retrogressive intent, in ourview, need not depend on the number of black persons elected. The languageof Beer v. United States, 425 U.S. 130, 96 S. Ct. 1357 (1976), is just asapplicable to the "purpose" inquiry as to the "effect"inquiry. Thus, a plan has an impermissible purpose under § 5 if itis intended to "lead to a retrogression in the position of racial minoritieswith respect to their effective exercise of the electoral franchise."Beer, 425 U.S. at 141, 96 S. Ct. at 1364. That test is broad enough to identify"retrogression" regardless of the outcome of an election, if (toimagine an example not present in this case) polling places were locatedso that they are less convenient to black voters than before the change,or if (for an example closer to the facts of this case) downward adjustmentswere made in the percentage of black voters in one or more districts.
II.
In applying the standard set forth above to the record of this case we adhereto our earlier attempt to fashion a method of analysis, set forth in ourearlier opinion, 907 F. Supp. at 445-446, that acknowledges the difficultyof the school board's burden to prove the absence of discriminatory intent.Thus, we begin again with the observation that the school board's resortto the pre-cleared Jury plan (which it mistakenly thought would easily bepre-cleared) and its focus on the fact that the Jury plan would not requireprecinct splitting, while the NAACP plan would, were "legitimate, non-discriminatorymotives" entitling the school board to a finding that it had presenteda prima facie case for preclearance.
The first Arlington Heights factor is "the impact of the official action-whetherit 'bears more heavily on one race than another.'" 429 U.S. at 266,97 S. Ct. at 564. In this case, the question is whether the Jury plan bearsmore heavily on blacks than the pre-existing plan. The intervenor, referringto stipulations of record, argues that
the board knew that the black population was growing in the northern portionof the county, where District 4 of the 1980's plan already had a black votingage population of 42.1 percent. . . . Faced with that information . . .the board chose a plan that extended District 4 to the southeast and decreasedthe black voting age population to 40.9 percent. . . . The board offeredno race-neutral explanation for these changes. Therefore the board failedto carry its burden of proving that such changes were not intended to havetheir forseeable effect: 'to worsen the position of minority voters.'
Brief on Remand of Defendant-Intervenors, at 36-37. That percentage shiftin dilution, even though it applies to only one of the twelve districtsin question, might indeed be enough to rebut the non-discriminatory reasonsadvanced by the school board, were it not for the fact that the partieshave stipulated the point away, agreeing that this reduction, and the reductionof the black population in another district from 36.9 percent to 36.1 percent,are de minimis. Stip. ¶ 252.
The intervenor points to a number of other allegedly dilutive impacts ofthe Jury plan in support of its discriminatory intent argument: that someof the new districts have no schools, that the plan ignores attendance boundaries,that it does not respect communities of interest, that there is one outlandishlylarge district, that several of them are not compact, that there is a lackof contiguity, and that the population deviations resulting from the juryplan are greater than the limits (± 5 %) imposed by Louisiana law.Two of those points-failure to respect communities of interest and cuttingacross attendance boundaries -might support a finding of retrogressive intent,if there were any corroborating evidence that the school board had deliberatelyattempted to break up voting blocks before they could be established orotherwise to divide and conquer the black vote. In the absence of such evidencein this record, however, the point is too theoretical, and too attenuated,to be probative.
The second Arlington Heights factor is the historical background of theschool board's adoption of the jury plan. That background is summarizedat 907 F. Supp. 455-56 and provides powerful support for the propositionthat the Bossier Parish School Board in fact resisted adopting a redistrictingplan that would have created majority black districts. Part of that historyis the school board's resistance to court-ordered desegration, and particularlyits failure to comply with the order of the United States District Courtin Lemon v. Bossier Parish School Board, 240 F. Supp. 709 (W.D. La. 1965),aff'd 370 F.2d 847 (5th Cir. 1967), cert. denied, 388 U.S. 911 (1967), thatit maintain a bi-racial committee to "recommend to the School Boardways to attain and maintain a unitary system and to improve education inthe parish." Stip. ¶ 111. All of that history is admissible toprove intent. The intent it proves in this case, we think, is a tenaciousdetermination to maintain the status quo. It is not enough to rebut theSchool Board's prima facie showing that it did not intend retrogression.
The remaining Arlington Heights factors do not require extended discussion.The specific sequence of events leading up to the school board's decisionto adopt the jury plan is discussed in our previous decision at 907 F. Supp.at 448. It does tend to demonstrate the school board's resistance to theNAACP plan; it does not demonstrate retrogressive intent. Evidence in therecord tending to establish that the board departed from its normal practices,see 907 F. Supp. at 457, establishes rather clearly that the board did notwelcome improvement in the position of racial minorities with respect totheir effective exercise of the electoral franchise, but is not evidenceof retrogressive intent. As for the contemporary statements of participantsin the board's decision and other details of legislative history, the severalstatements made by school board members were discussed at 907 F. Supp. 447-448and 907 F. Supp. 459. They do not establish retrogressive intent.
SILBERMAN, Circuit Judge, concurring: The Supreme Court remanded part ofthis case primarily because it was uncertain whether we had considered the"dilutive impact" of the Board's redistricting plan as relevantevidence in determining whether it had been adopted for a discriminatorypurpose within the meaning of § 5. The term "dilution" hasbecome a rather confusing word of art in § 2 cases, 42 U.S.C. §1973. See Abrams v. Johnson, 117 S. Ct 1925, 1935-38 (1997); see also Thornburgv. Gingles, 478 U.S. 30 (1986). The Supreme Court never explic- itly definedwhat it meant by evidence of "dilutive impact"-a phrase that neitherthe Court, any court of appeals, nor this district court has used in connectionwith § 2 before-in this case. A careful reading of the opinion suggests,however, that the Court meant only that the plan the Board adopted had lessmajority black districts than that which could have been created. See Renov. Bossier Parish Sch. Bd., 117 S. Ct. 1491, 1503 (1997). We, of course,never rejected such evidence; it was the premise of the government's case."Here defendant argues that the School Board has failed to providean adequate reason explaining why it declined to act on a proposal featuringtwo majority-black districts." Bossier Parish Sch. Bd. v. Reno, 907F. Supp. 434, 449 (D.D.C. 1995).
To be sure, we did say we would "not permit § 2 evidence to provediscriminatory purpose. . . ." Id. at 445 (emphasis added). But wenever said that any evidence that would be relevant in a § 2 case wouldbe excluded in a § 5 case. Indeed, in footnote 6 we specifically excluded"evidence relevant only to [a] § 2 inquiry," id. at 445 n.6,necessarily implying that some evidence could go to both. The Supreme Courtitself recognized that only "some of this '§ 2 evidence' may berelevant" in a § 5 case, Reno, 117 S. Ct. at 1501, and, furthermore,"[t]hat evidence of a plan's dilutive impact may be relevant to the§ 5 purpose inquiry does not, of course, mean that such evidence isdispositive of [proves] that inquiry." Id. at 1502.
The phrase "dilutive impact" was not used in our opinion-nor forthat matter in the dissent-because it was not an issue in the case. Thatthe NAACP offered an alternate plan whereby more majority black districtswould be created was undisputed. (In that regard, I believe the government'sfilings in the Supreme Court were deceptive .)3 The real issue in the casewas whether Bossier Parish had an affirmative obligation to create the maximumnumber of black majority districts. I take it the Supreme Court agrees withus that it did not. "At one point, the District Court correctly statedthat 'the adoption of one nonretrogressive plan rather than another nonretrogressiveplan that contains more majority-black districts cannot by itself give riseto the inference of discriminatory intent.'" Id. at 1503, quoting BossierParish, 907 F. Supp. at 450.
As for the Arlington Heights framework which the Supreme Court said shouldbe applied to determine whether the Board had a discriminatory purpose,it should be readily apparent that our previous opinion, without citingthe case, did just that. We carefully considered "the historical backgroundof the [jurisdiction's] decision"; "[t]he specific sequence ofevents leading up to the challenged decision"; "[d]epartures fromthe normal procedural sequence"; and "[t]he legislative or administrativehistory, especially . . . [any] contemporary statements by members of thedecisionmaking body." Id. at 1503, quoting Arlington Heights v. MetropolitanHousing Corp., 429 U.S. 252, 267-68 (1976). The Court does not indicatethat our review of that evidence was in any way inadequate except that itnotes that we did not indicate how we viewed the claim that Bossier Parishwas in supposed violation of an injunction issued by the western districtof Louisiana to unify the school system. We do so now.
KESSLER, District Court Judge, dissenting.
This case is before us on remand from the United States Supreme Court forfurther proceedings consistent with its May 12, 1997 decision in Reno v.Bossier Parish Sch. Bd., et al., 117 S. Ct. 1491. Upon further review andconsideration of the record in accordance with the Supreme Court's mandate,I am forced once again to conclude that I cannot in good conscience agreewith the result reached by my colleagues. Instead, I remain convinced that"the School Board's decision to adopt the Police Jury redistrictingplan was motivated by discriminatory purpose", Bossier Parish Sch.Bd. v. Reno, et al., 907 F. Supp. 434, 463 (D.D.C. 1995) (Kessler, J., dissenting),and should thus be denied preclearance under the Voting Rights Act of 1965,42 U.S.C. § 1973c ("Voting Rights Act").
I.
In its opinion, the Supreme Court confirmed that "a violation of §2 [of the Voting Rights Act] is not grounds in and of itself for denyingpreclearance under § 5 [of the Act]." 117 S. Ct. at 1500. TheCourt stated that nevertheless, such "[§ 2] evidence of a plan'sdilutive impact may be relevant to our § 5 purpose inquiry". 117S. Ct. at 1502. The Court emphasized that § 2 evidence, while potentiallyrelevant to the § 5 purpose inquiry, is not dispositive of that inquiry.Consequently, the Court directed us to consider and weigh the relevanceof "evidence of the dilutive impact of the Board's redistricting plan".Id. at 1503.
The Supreme Court also directed us, in conducting our inquiry into the SchoolBoard's motivation, to apply the framework articulated in Arlington Heightsv. Metro. Hous. Dev. Corp., et al., 429 U.S. 252 (1977). The Arlington Heightsframework has been used both to evaluate "whether invidious discriminatorypurpose was a motivating factor" in a government body's decisionmakingand also, "at least in part, to evaluate purpose in [the Court's] previous§ 5 cases." 117 S. Ct. at 1502 (citing City of Pleasant Grovev. United States, 479 U.S. 462, 469-70 (1987)).
My colleagues have limited their § 5 purpose inquiry to a search forintent to retrogress and have declined to consider whether the § 5inquiry ever extends beyond that search for retrogressive intent. I readthe Supreme Court's mandate more broadly. The Supreme Court stated that,while it did not assume "that the Board enacted the Jury plan withsome nonretrogressive, but nevertheless discriminatory, 'purpose'[, t]heexistence of such a purpose, and its relevance to § 5, are issues tobe decided on remand." 117 S. Ct. at 1501. Given the clarity of thesewords, I fail to see how we can avoid carrying out the Supreme Court's directiveto (1) inquire into the existence of "some nonretrogressive, but neverthelessdiscriminatory, 'purpose'"; and (2) determine the relevance of sucha purpose (should one exist) to our § 5 inquiry.
Finally, the Supreme Court directed us to address the government's argumentsthat the District Court "erred in refusing to consider evidence thatthe Board was in violation of an ongoing injunction" to attain a unitarysystem of education in the Parish.4 117 S. Ct. at 1503.
II.
The majority finds that School Board has made out its prima facie case forpreclearance. The School Board states that it adopted the Police Jury planfor at least two nondiscriminatory motives-the "plan offered the twinattractions of guaranteed preclearance and easy implementation". 907F. Supp. at 447. To make out its prima facie case, "the School Boardmust demonstrate that the proposed change will have no retrogressive effect,and that the change was undertaken without a discriminatory purpose. Proofof nondiscriminatory purpose must include 'legitimate reasons' for settlingon the given change." Id. at 446 (citing Richmond v. United States,422 U.S. 358, 375 (1975).
I find that the reasons given by the School Board for adopting the PoliceJury plan are not at all "legitimate". The majority, in its earlieropinion, conceded that the School Board did not favor the Police Jury planuntil "the redistricting process began to cause agitation within theblack community", 907 F. Supp. at 447, since the plan "wreakedhavoc with the incumbencies of four of the [twelve] School Board membersand was not drawn with school locations in mind." Id.
The conclusions I reached in my original dissent are as valid now as theywere then:
The Policy Jury plan only became "expedient" when the School Boardwas publicly confronted with alternative plans demonstrating that majority-blackdistricts could be drawn, and demonstrating that political pressure fromthe black community was mounting to achieve such a result. The common-senseunderstanding of these events leads to one conclusion: The Board adoptedthe Police Jury plan-two years before the next election-in direct responseto the presentation of a plan that created majority-black districts. Facedwith growing frustration of the black community at being excluded from theelectoral process, the only way for the School Board to ensure that no majority-blackdistricts would be created was to quickly adopt the Police Jury plan andput the issue to rest. This sequence of events of "public silence andprivate decisions," culminating in the Board's hasty decision, is evidenceof the Board's discriminatory purpose.
907 F. Supp. at 457-58 (Kessler, J., concurring in part and dissenting inpart) (footnote omitted).
The School Board has thus failed to establish a prima facie case that is"supported by 'credible and credited evidence'". 907 F. Supp.at 446 (citation omitted). Its proffered reasons for acceptance of the PoliceJury plan are clearly pretextual. This conclusion alone permits us to denypreclearance to the School Board's plan.
A more thorough evaluation of the School Board's intent, under the purposeprong of § 5, only reinforces the necessity of this conclusion andoutcome.
III.
The parties agree that the School Board's proposed redistricting plan willnot have a retrogressive effect. Resolution of this case thus turns on whetherthe School Board can demonstrate by a preponderance of the evidence thatit did not adopt the plan with an unlawful purpose. The Supreme Court leftit to us to decide whether our "purpose" inquiry is limited toa search for retrogressive intent, or whether our inquiry should extendbeyond that search.
The Voting Rights Act was enacted by Congress "to 'attac[k] the blightof voting discrimination' across the Nation." 117 S. Ct. at 1496-97(quoting S. Rep. No. 97-417, 2d Sess., p. 4 (1982) U.S. Code Cong. &Admin. News 1982 pp. 177, 180; South Carolina v. Katzenbach, 383 U.S. 301,308 (1966)). Before implementing a change in "any voting qualificationor prerequisite to voting, or standard, practice, or procedure with respectto voting", a jurisdiction must first obtain either administrativepreclearance from the Attorney General or judicial preclearance from theDistrict Court for the District of Columbia. 42 U.S.C. § 1973c. Section5 of the Act imposes on a jurisdiction the burden of proving that its proposedchange "does not have the purpose and will not have the effect of denyingor abridging the right to vote on account of race or color." 42 U.S.C.§ 1973c. It is well-settled that a plan has an impermissible effectunder § 5 only if it "would lead to a retrogression in the positionof racial minorities with respect to their effective exercise of the electoralfranchise." 117 S. Ct. at 1497 (quoting Beer v. United States, 425U.S. 130, 141 (1970)). We must decide whether a plan has an impermissiblepurpose under § 5 only if the jurisdiction intends the plan to "leadto a retrogression", or if an impermissible purpose also includes a"nonretrogressive, but nevertheless discriminatory purpose".
The Supreme Court stated that "Congress enacted § 5, not to maintainthe discriminatory status quo, but to stay ahead of efforts by the mostresistant jurisdictions to undermine the Act's purpose of 'rid[ding] thecountry of racial discrimination.'" 117 S. Ct. at 1509 (Stevens, Souter,JJ., dissenting in part and concurring in part). If we were to deny preclearanceunder § 5 only to those new plans enacted specifically with a retrogressivepurpose, however, we would commit ourselves to granting § 5 preclearanceto a "resistant" jurisdiction's nonretrogressive plan even ifthe record demonstrated an intent by that jurisdiction to perpetuate anhistorically discriminatory status quo by diluting minority voting strength.
Since "a new plan enacted with the purpose of unconstitutionally dilutingminority votes is an unconstitutional plan," 117 S. Ct. at 1505 (Breyer,Ginsburg, JJ., concurring in part and concurring in the judgment) (citationsomitted), a construction of § 5 that limits its purpose inquiry toa search for retrogressive intent could require us to preclear nonretrogressivebut nevertheless unconstitutional voting plans. Such a result is clearlyinconsistent with the purpose of both the Voting Rights Act in general and§ 5 in particular. Along with Justices Breyer and Ginsburg, I do not"believe that Congress would have wanted a § 5 Court (or the AttorneyGeneral) to approve an unconstitutional plan adopted with an unconstitutionalpurpose." Id. at 1506.
I thus join Justices Breyer, Ginsburg, Stevens, and Souter in concludingthat "the 'purpose' inquiry does extend beyond the search for retrogressiveintent." Id. at 1505.
IV.
The Supreme Court stated that § 2 "evidence of the dilutive impactof the Board's redistricting plan" may be relevant in a § 5 proceedingto establish a jurisdiction's "intent to retrogress". Id. at 1501.As stated above, however, I find that our § 5 purpose inquiry shouldextend beyond a search for the jurisdiction's intent to retrogress; I willthus assess the relevance of § 2 evidence to establish not only whetherthe School Board acted with an intent to retrogress, but also whether itacted with the unconstitutional purpose of diluting minority voting strength.Thus, pursuant to the Court's mandate, I believe we must first considerevidence that would be relevant to the § 2 inquiry on dilutive impact,and second, determine the relevance of that evidence to our § 5 purposeinquiry.
Plaintiffs claiming vote dilution under § 2 must first establish thatthe racial group "is sufficiently large and geographically compactto constitute a majority in a single-member district". Id. at 1498(citations omitted). In this case, the School Board received, in additionto the plan presented on September 3, 1992, two other plans demonstratingthat "it is possible to draw majority-black districts in Bossier Parishwhich are fully consistent with traditional districting principles."Bossier Parish Sch. Bd. v. Reno, et al., 907 F. Supp. 434, 454 n. 3 (D.D.C.1995) (Kessler, J., concurring in part and dissenting in part). Furthermore,the School Board has admitted that it is "obvious that a reasonablycompact black-majority district could be drawn in Bossier City." Id.(quoting Stip. ¶ 36.)
Second, § 2 plaintiffs must establish that the group is "politicallycohesive". In order "to ascertain whether minority members constitutea politically cohesive unit and to determine whether whites vote sufficientlyas a bloc usually to defeat the minority's preferred candidates", theSupreme Court has directed courts to inquire into the existence of raciallypolarized voting. Thornburg v. Gingles, 478 U.S. 30, 56 (1986). Here, theStipulations clearly demonstrate that Parish is racially polarized. 907F. Supp. at 454 (citing Stip. ¶¶ 181-96). Such racial polarizationindicates that blacks in Bossier Parish are a "politically cohesive"group.
Third, § 2 plaintiffs must establish that the white majority usuallyvotes as a bloc to defeat the minority's preferred candidate. 117 S. Ct.at 1498 (citations omitted). Parties stipulate, in the record before us,that no black person has been elected to the Bossier Parish School Boarddespite the fact that 20.1% of the population is black.5 (Stip.¶¶153, 5.) Stipulations ¶¶ 181-95 discuss racially polarized votingpatterns in Bossier Parish. Analysis of several elections illustrated that,in at least two elections, "the black candidates were the choice ofthe black voters in these elections, but were not the choice of the whitevoters." (Stip. ¶ 186; see also Stip. ¶¶ 181-95.)
Fourth, plaintiffs claiming § 2 vote dilution "must also demonstratethat the totality of the circumstances supports a finding that the votingscheme is dilutive." 117 S. Ct. at 1498 (citing Johnson v. DeGrandy,512 U.S. 997, 1011, (1994); Gingles, 478 U.S. at 50-51). Gingles spellsout the typical factors which may be relevant to a totality analysis ofa § 2 claim. 478 U.S. at 44-45. They include:
(1) "[T]he history of voting-related discrimination in the State orpolitical subdivision". Id. at 44. Parties' Stipulations ¶¶213-47 discuss the extensive history of official and voting-related discriminationin Bossier Parish.
(2) "[T]he extent to which voting in the elections of the State orpolitical subdivision is racially polarized". Id. at 44-45. As alreadynoted, the Stipulations clearly demonstrate that voting in Bossier Parishis racially polarized. 907 F. Supp. at 454 (citing Stip. ¶¶ 181-96).
(3) "[T]he extent to which the State or political subdivision has usedvoting practices or procedures that tend to enhance the opportunity fordiscrimination against the minority group". Gingles, 478 U.S. at 45.See, e.g., Stip. ¶¶ 228-29, which discuss the implementation bythe State of Louisiana in 1968 and 1971 of voting procedures, includingthe adoption of at-large elections and multi-member districts, which theAttorney General found diluted black voting strength.
(4) "[T]he exclusion of members of the minority group from candidateslating processes". Gingles, 478 U.S. at 45. We have no evidence indicatingthat black individuals have been excluded from candidate slating processes.
(5) "[T]he extent to which minority group members bear the effectsof past discrimination in areas such as education, employment, and health,which hinder their ability to participate effectively in the political process".Id. at 45. The parties have stipulated that:
Education, income, housing and employment are considered standard measuresof socioeconomic status. These factors repeatedly have been found to translateinto political efficacy . . . Black citizens of Bossier Parish suffer amarkedly lower socioeconomic status than their white counterparts. Thislower socioeconomic status is traceable to a legacy of racial discriminationaffecting Bossier Parish's black citizens.
(Stip.¶¶ 198-99.)
(6) "[T]he use of overt or subtle racial appeals in political campaigns".Gingles, 478 U.S. at 45. We have no evidence demonstrating that racial appealshave been used in political campaigns.
(7) "[T]he extent to which members of the minority group have beenelected to public office in the jurisdiction". Id. The record beforeus shows that no black candidate has been elected to the Bossier ParishSchool Board. (Stip.¶ 153.)
The Gingles Court noted that "there is no requirement that any particularnumber of factors be proved, or that a majority of them point one way orthe other." Id. (quoting S.Rep. at 29, U.S. Code Cong. & Admin.News 1982, p. 207).
Finally, § 2 plaintiffs "must also postulate a reasonable alternativevoting practice to serve as the benchmark "undiluted" voting practice."117 S. Ct. at 1498 (citing Holder v. Hall, 512 U.S. 874, 881 (1994) (pluralityopinion)). The School Board has been given several plans showing that itis possible to draw majority-black districts in Bossier Parish in a mannerconsistent with traditional districting principles. 907 F. Supp. at 454.
Having considered "evidence of the dilutive impact of the Board's redistrictingplan", 117 S. Ct. at 1503, I conclude that it overwhelmingly demonstratesthe following: the black voting population in Bossier Parish is sufficientlylarge and geographically compact to constitute a majority in at least twosingle-member districts; black voters are politically cohesive; the whitemajority votes sufficiently often as a bloc to enable it repeatedly to defeatthe blacks' preferred candidates; and finally, the totality of the circumstancessupports a finding that the School Board's plan is dilutive.6
It would be impossible to ignore the weight and the relevance of this §2 evidence to the School Board's intent to dilute the voting strength ofblacks in Bossier Parish.
V.
The Supreme Court has also directed us to apply the framework, articulatedin Arlington Heights v. Metro. Hous. Dev. Corp., et al., 429 U.S. 252 (1977),to evaluate the School Board's purpose in adopting the Police Jury plan.117 S. Ct. at 1503.
In Part II of my initial dissent, I discussed in detail the Arlington Heightsframework and applied it to this record. See 907 F. Supp. at 453-60 (Kessler,J., concurring in part and dissenting in part). Based on that analysis,I believed then, and for the same reasons still believe now, that:
[T]he only conclusion that can be drawn from the evidence is that the BossierSchool Board acted with discriminatory purpose. The adopted plan has a substantialnegative impact on the black citizens of Bossier Parish. The sequence ofevents leading up to the decision show conclusively how the School Boardexcluded the black community from the redistricting process and rushed toadopt the Police Jury plan only when faced with an alternative plan thatprovided for black representation. The plan itself ignores and overridesa number of the School Board's normally paramount interests. And the statementsof some School Board members certainly lend strength to the other evidence. . . We cannot blind ourselves to the reality of the situation and therecord before us.
Id. at 460 (Kessler, J., concurring in part and dissenting in part).
The majority has, consistent with the Supreme Court's mandate, also appliedthe Arlington Heights analysis to the record. It examines each of the ArlingtonHeights factors, however, only for the purpose of finding evidence of retrogressiveintent. This is far too limited and narrow an inquiry. Since our §5 purpose inquiry should, in my opinion, extend beyond a search for retrogressiveintent, so too should our Arlington Heights analysis.
In its analysis of the impact of the Jury plan7 (the "important startingpoint" for assessing discriminatory intent under Arlington Heights),the majority states that the plan's failure to respect communities of interestand the fact that it cuts across attendance boundaries "might supporta finding of retrogressive intent, if there were any corroborating evidencethat the school board had deliberately attempted to break up voting blocksbefore they could be established or otherwise to divide and conquer theblack vote." Majority Op. at 6-7 (emphasis added). I find nothing inArlington Heights nor in the Supreme Court's opinion in Bossier that supportsthe imposition of the additional requirement of "corroborating evidence"of a jurisdiction's "deliberate[ ] attempt[ ] to . . . divide and conquerthe black vote" before evidence of dilutive or disparate impact canbe considered relevant to an Arlington Heights examination of purpose.
In considering the historical background of the School Board's decision,the majority found that the School Board has resisted court-ordered desegregationand failed to comply with the Court's order in Lemon v. Bossier Parish Sch.Bd., 240 F. Supp. at 709. The majority admits the existence of "powerfulsupport for the proposition that the Bossier Parish School Board in factresisted adopting a redistricting plan that would have created majorityblack districts", and concluded that "[a]ll of that history .. . proves in this case, we think, [] a tenacious determination to maintainthe status quo." What the majority overlooks or ignores is that thestatus quo which the School Board is so anxious to maintain is a discriminatoryone. Furthermore, the record demonstrates that the School Board hopes tomaintain that discriminatory status quo by unconstitutionally diluting blackvoting strength. Thus, the majority's conclusion (that the School Boardacted with an intent to maintain the discriminatory status quo) leads todenial of preclearance to the Jury plan under the purpose prong of §5.
The majority also finds that "[e]vidence in the record tending to establishthat the board departed from its normal practices establishes rather clearlythat the board did not welcome improvement in the position of racial minoritieswith respect to their effective exercise of the electoral franchise, butis not evidence of retrogressive intent". Majority Op. at 8 (citationsomitted). Such an "improvement in the position of racial minorities",however, is precisely what is necessary to redress the current discriminatorystatus quo in Bossier Parish. Limiting their inquiry to a search for retrogressiveintent only permits my colleagues to all but concede that the School Boardacted with a nonretrogressive but nevertheless discriminatory intent. Theynevertheless grant preclearance under § 5 to the School Board's plan,even though "the purpose part of § 5 prohibits a plan adoptedwith the purpose of unconstitutionally diluting minority voting strength,whether or not the plan is retrogressive in its effect." 117 S. Ct.at 1506 (Breyer, Ginsburg, JJ., concurring in part and concurring in thejudgment).
VI.
Finally, the Supreme Court directed us to "address [the Government's]additional arguments that [the District Court] erred in refusing to considerevidence that the Board was in violation of an ongoing injunction 'to remedyany remaining vestiges of [a] dual [school] system'". 117 S. Ct. at1503.
My initial dissent considered this evidence and found it relevant sinceArlington Heights states that "the historical background of the challengeddecision" is properly part of the purpose inquiry. 429 U.S. at 267.Since 1965, the Bossier Parish School Board has been the defendant in Lemonv. Bossier Parish School Board, Civ.Act. No. 10,687 (W.D. La., filed Dec.2, 1964). My dissent noted that, "[t]o this day, the School Board remainsunder direct federal court order to remedy any remaining vestiges of segregationin its schools", and discussed the Board's dismantling of a BiracialCommittee "in direct violation of a federal court order". Id.at 456. Ultimately, I found that "this history reveals an insidiouspattern which cannot be ignored, and must inform our decision today . .. [T]he Bossier Parish School Board's actions effectively eliminate theblack community from the political process." Id.
I thus again conclude that the School Board's decision to adopt the PoliceJury redistricting plan was motivated by a discriminatory, if not necessarilyretrogressive, purpose. The evidence overwhelmingly indicates that the BossierParish School Board is one of those "most resistant jurisdictions"whose efforts Congress sought to combat when it enacted § 5 of theVoting Rights Act.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civ.A. No. 94-1495 (LHS (USCA), GK, JR)
BOSSIER PARISH SCHOOL BOARD, PLAINTIFF
v.
JANET RENO, ATTORNEY GENERAL, DEFENDANT,
GEORGE PRICE, ET AL., INTERVENOR-DEFENDANTS
[Filed: May 1, 1998]
ORDER
For the reasons set forth in the opinion issued today by this three-judgecourt, it is this 1st day of May, 1998,
ORDERED that plaintiff Bossier Parish School Board is given pre-clearancefor its election plan adopted on October 1, 1992, and that it shall havea declaratory judgment to that effect.
/s/ JAMES ROBERTSON
JAMES ROBERTSON
United States District
Judge for the Court
APPENDIX B
In the Supreme Court of the United States
OCTOBER TERM, 1996
Nos. 95-1455, 95-1508
JANET RENO, ATTORNEY GENERAL, APPELLANT
v.
BOSSIER PARISH SCHOOL BOARD, ET AL.
GEORGE PRICE, ET AL., APPELLANTS
v.
BOSSIER PARISH SCHOOL BOARD, ET AL.
[Argued: Dec. 9, 1996
Decided May 12, 1997*]
Justice O'CONNOR delivered the opinion of the Court.
Today we clarify the relationship between § 2 and § 5 of the VotingRights Act of 1965, 79 Stat. 437, 439, as amended, 42 U.S.C. §§1973, 1973c. Specifically, we decide two questions: (i) whether preclearancemust be denied under § 5 whenever a covered jurisdiction's new voting"standard, practice, or procedure" violates § 2; and (ii)whether evidence that a new "standard, practice, or procedure"has a dilutive impact is always irrelevant to the inquiry whether the coveredjuris- diction acted with "the purpose . . . of denying or abridgingthe right to vote on account of race or color" under § 5. We answerboth in the negative.
I
Appellee Bossier Parish School Board (Board) is a jurisdiction subject tothe preclearance require- ments of § 5 of the Voting Rights Act of1965, 42 U.S.C. § 1973c, and must therefore obtain the approval ofeither the United States Attorney General or the United States DistrictCourt for the District of Columbia before implementing any changes to avot- ing "qualification, prerequisite, standard, practice, or procedure."The Board has 12 members who are elected from single-member districts bymajority vote to serve 4-year terms. When the 1990 census revealed widepopulation disparities among its districts, see App. to Juris. Statement93a (Stipulations of Fact and Law ¶ 82), the Board decided to redrawthe districts to equalize the population distribution.
During this process, the Board considered two redistricting plans. It considered,and initially re- jected, the redistricting plan that had been recentlyadopted by the Bossier Parish Police Jury, the parish's primary governingbody (the Jury plan), to govern its own elections. Just months before, theAttorney General had precleared the Jury plan, which also contained 12 districts.Id. at 88a (Stipulations, ¶ 68). None of the 12 districts in the Board'sexisting plan or in the Jury plan contained a majority of black residents.Id. at 93a (Stipulations, ¶ 82) (under 1990 population statistics inthe Board's existing districts, the three districts with highest black concentrationscontain 46.63%, 43.79%, and 30.13% black residents, respectively); id. at85a (Stipulations, ¶ 59) (popula- tion statistics for Jury plan, withnone of the plan's 12 districts containing a black majority). Because theBoard's adoption of the Jury plan would have main- tained the status quoregarding the number of black-majority districts, the parties stipulatedthat the Jury plan was not "retrogressive." Id. at 141a (Stipulations,¶ 252) ("The . . . plan is not retrogressive to minority votingstrength compared to the existing benchmark plan . . ."). AppellantGeorge Price, president of the local chapter of the NAACP, presented theBoard with a second option-a plan that created two districts each containingnot only a majority of black residents, but a majority of voting-age blackresidents. Id. at 98a (Stipulations, ¶ 98). Over vocal opposition fromlocal residents, black and white alike, the Board voted to adopt the Juryplan as its own, reasoning that the Jury plan would almost certainly beprecleared again and that the NAACP plan would require the Board to split46 electoral precincts.
But the Board's hopes for rapid preclearance were dashed when the AttorneyGeneral interposed a formal objection to the Board's plan on the basis of"new information" not available when the Justice Department hadprecleared the plan for the Police Jury-namely, the NAACP's plan, whichdemon- strated that "black residents are sufficiently numer- ous andgeographically compact so as to constitute a majority in two single-memberdistricts." Id. at 155a-156a (Attorney General's August 30, 1993, objec-tion letter). The objection letter asserted that the Board's plan violated§ 2 of the Act, 42 U.S.C. § 1973, because it "unnecessarilylimit[ed] the oppor- tunity for minority voters to elect their candidatesof choice," id. at 156a, as compared to the new alterna- tive. Relyingon 28 C.F.R. § 51.55(b)(2) (1996), which provides that the AttorneyGeneral shall withhold preclearance where "necessary to prevent a clearviolation of amended Section 2 [42 U.S.C. § 1973]," the AttorneyGeneral concluded that the Board's re- districting plan warranted a denialof preclearance under § 5. App. to Juris. Statement 157a. The AttorneyGeneral declined to reconsider the decision. Ibid.
The Board then filed this action seeking pre- clearance under § 5 inthe District Court for the District of Columbia. Appellant Price and othersintervened as defendants. The three-judge panel granted the Board's requestfor preclearance, over the dissent of one judge. 907 F. Supp. 434, 437 (D.D.C.1995). The District Court squarely rejected the appellants' contention thata voting change's alleged failure to satisfy § 2 constituted an independentreason to deny preclearance under § 5: "We hold, as has everycourt that has considered the question, that a political subdivision thatdoes not violate either the 'effect' or the 'purpose' prong of section 5cannot be denied preclearance because of an alleged section 2 violation."Id. at 440-441. Given this holding, the District Court quite properly expressedno opinion on whether the Jury plan in fact violated § 2, and its refusalto reach out and decide the issue in dicta does not require us, as JusticeSTEVENS insists, to "assume that the record discloses a 'clear violation'of § 2." See post, at 1507-1508 (opinion dissenting in part andconcurring in part). That issue has yet to be decided by any court. TheDistrict Court did, however, reject appellants' related argument that acourt "must still consider evidence of a section 2 violation as evidenceof discriminatory purpose under section 5." Id. at 445. We noted probablejurisdiction on June 3, 1996. 517 U.S. ___, 116 S. Ct. 1874, 135 L.Ed.2d171.
II
The Voting Rights Act of 1965 (Act), 42 U.S.C. § 1973 et seq., wasenacted by Congress in 1964 to "attac[k] the blight of voting discrimination"across the Nation. S. Rep. No. 97-417, 2d Sess., p. 4 (1982) U.S. Code Cong.& Admin. News 1982 pp. 177, 180; South Carolina v. Katzenbach, 383 U.S.301, 308, 86 S. Ct. 803, 808, 15 L.Ed.2d 769 (1966). Two of the weap- onsin the Federal Government's formidable arsenal are § 5 and § 2of the Act. Although we have con- sistently understood these sections tocombat dif- ferent evils and, accordingly, to impose very dif- ferent dutiesupon the States, see Holder v. Hall, 512 U.S. 874, 883, 114 S. Ct. 2581,2587, 129 L.Ed.2d 687, (1994) (plurality opinion) (noting how the two sections"differ in structure, purpose, and application"), appel- lantsnevertheless ask us to hold that a violation of § 2 is an independentreason to deny preclearance under § 5. Unlike Justice STEVENS, post,at 1509-1510, and n. 5 (opinion dissenting in part and concurring in part),we entertain little doubt that the Department of Justice or other litigantswould "routinely" attempt to avail themselves of this new reasonfor denying preclearance, so that recognizing § 2 violations as a basisfor denying § 5 preclearance would inevitably make compliance with§ 5 contingent upon compliance with § 2. Doing so would, for allintents and purposes, replace the standards for § 5 with those for§ 2. Because this would contradict our longstanding interpretationof these two sections of the Act, we reject appellants' position.
Section 5, 42 U.S.C. § 1973c, was enacted as
"a response to a common practice in some jurisdictions of staying onestep ahead of the federal courts by passing new discriminatory voting lawsas soon as the old ones had been struck down. . . . Congress therefore decided,as the Supreme Court held it could, 'to shift the advantage of time andinertia from the perpetrators of the evil to its victim,' by 'freezing electionprocedures in the covered areas unless the changes can be shown to be nondiscriminatory.'"Beer v. United States, 425 U.S. 130, 140, 96 S. Ct. 1357, 1363, 47 L.Ed.2d629 (1976) (quoting H.R. Rep. No. 94-196, pp. 57-58 (1970)).
In light of this limited purpose, § 5 applies only to certain Statesand their political subdivisions. Such a covered jurisdiction may not implementany change in a voting "qualification, prerequisite, standard, practice,or procedure" unless it first obtains either administrative preclearanceof that change from the Attorney General or judicial preclearance from theDistrict Court for the District of Columbia. 42 U.S.C. § 1973c. Toobtain judicial preclearance, the jurisdiction bears the burden of provingthat the change "does not have the purpose and will not have the effectof denying or abridging the right to vote on account of race or color."Ibid.; City of Rome v. United States, 446 U.S. 156, 183, n. 18, 100 S. Ct.1548, 1565, n. 18, 64 L.Ed.2d 119 (1980) (covered jurisdic- tion bears burdenof proof). Because § 5 focuses on "freez[ing] election procedures,"a plan has an impermissible "effect" under § 5 only if it"would lead to a retrogression in the position of racial minoritieswith respect to their effective exercise of the elec- toral franchise."Beer, supra, at 141, 96 S. Ct. at 1364.
Retrogression, by definition, requires a comparison of a jurisdiction'snew voting plan with its existing plan. See Holder, supra, at 883, 114 S.Ct. at 2587 (plurality opinion) ("Under § 5, then, the proposedvoting practice is measured against the existing voting practice to determinewhether retrogression would result from the proposed change"). It alsonecessarily implies that the jurisdiction's existing plan is the benchmarkagainst which the "effect" of voting changes is measured. In Beer,for example, we concluded that the city of New Orleans' reapportionmentof its council districts, which created one district with a majority ofvoting-age blacks where before there had been none, had no discriminatory"effect." 425 U.S. at 141-142, 96 S. Ct. at 1364 ("It isthus apparent that a legislative reapportionment that enhances the positionof racial minorities with respect to their effective exercise of the electoralfranchise can hardly have the 'effect' of diluting or abridging the rightto vote on account of race within the meaning of § 5"). Likewise,in City of Lockhart v. United States, 460 U.S. 125, 103 S. Ct. 998, 74 L.Ed.2d863 (1983), we found that the city's new charter had no retrogressive "effect"even though it maintained the city's prior practice of electing its councilmembers at-large from numbered posts, and instituted a new practice of electingtwo of the city's four council members every year (instead of electing allthe council members every two years). While each practice could "havea discriminatory effect under some circumstances," id. at 135, 103S. Ct. at 1004, the fact remained that "[s]ince the new plan did notincrease the degree of discrimination against [the city's Mexican-Americanpopulation], it was en- titled to § 5 preclearance [because it wasnot retro- gressive]," id. at 134, 103 S. Ct. at 1004 (emphasis added).
Section 2, on the other hand, was designed as a means of eradicating votingpractices that "minimize or cancel out the voting strength and politicaleffec- tiveness of minority groups," S. Rep. No. 97-417, supra, at28, U.S. Code Cong. & Admin. News 1982 pp. 177, 205. Under this broadermandate, § 2 bars all States and their political subdivisions frommain- taining any voting "standard, practice, or procedure" that"results in a denial or abridgement of the right . . . to vote on accountof race or color." 42 U.S.C. § 1973(a). A voting practice is impermissiblydilutive within the meaning of § 2
"if, based on the totality of the circumstances, it is shown that thepolitical processes leading to nomination or election in the State or politicalsubdivision are not equally open to participation by [members of a classdefined by race or color] in that its members have less opportunity thanother members of the electorate to participate in the political processand to elect representatives of their choice." 42 U.S.C. § 1973(b).
A plaintiff claiming vote dilution under § 2 must initially establishthat: (i) "[the racial group] is sufficiently large and geographicallycompact to constitute a majority in a single-member district"; (ii)the group is "politically cohesive"; and (iii) "the whitemajority votes sufficiently as a bloc to enable it . . . usually to defeatthe minority's preferred candi- date." Thornburg v. Gingles, 478 U.S.30, 50-51, 106 S. Ct. 2752, 2766-2767, 92 L.Ed.2d 25 (1986); Growe v. Emison,507 U.S. 25, 40, 113 S. Ct. 1075, 1084, 122 L.Ed.2d 388 (1993). The plaintiffmust also demon- strate that the totality of the circumstances supportsa finding that the voting scheme is dilutive. Johnson v. DeGrandy, 512 U.S.997, 1011, 114 S. Ct. 2647, 2657, 129 L.Ed.2d 775 (1994); see Gingles, supra,at 44-45, 106 S. Ct. at 2762-2764 (listing factors to be con- sidered bya court in assessing the totality of the cir- cumstances). Because the veryconcept of vote dilution implies-and, indeed, necessitates-the existenceof an "undiluted" practice against which the fact of dilutionmay be measured, a § 2 plaintiff must also postulate a reasonable alternativevoting practice to serve as the benchmark "undiluted" voting practice.Holder v. Hall, 512 U.S. at 881, 114 S. Ct. at 2586 (plurality opinion);id. at 950-951, 114 S. Ct. at 2621-2622 (Blackmun, J., dissenting).
Appellants contend that preclearance must be denied under § 5 whenevera covered jurisdiction's redistricting plan violates § 2. The upshotof this position is to shift the focus of § 5 from nonretro- gressionto vote dilution, and to change the § 5 benchmark from a jurisdiction'sexisting plan to a hypothetical, undiluted plan.
But § 5, we have held, is designed to combat only those effects thatare retrogressive. See supra, at 1496-1497. To adopt appellants' position,we would have to call into question more than 20 years of pre- cedent interpreting§ 5. See, e.g., Beer, supra; City of Lockhart, supra. This we declineto do. Section 5 already imposes upon a covered jurisdiction the difficultburden of proving the absence of discrimina- tory purpose and effect. See,e.g., Elkins v. United States, 364 U.S. 206, 218, 80 S. Ct. 1437, 1445,4 L.Ed.2d 1669 (1960) ("[A]s a practical matter it is never easy toprove a negative"). To require a jurisdiction to litigate whether itsproposed redistricting plan also has a dilutive "result" beforeit can implement that plan-even if the Attorney General bears the burdenof proving that "result"-is to increase further the serious federalismcosts already implicated by § 5. See Miller v. Johnson, 515 U.S. 900,--, 115 S. Ct. 2475, 2493, 132 L.Ed.2d 762 (1995) (noting the "federalismcosts exacted by § 5 preclearance").
Appellants nevertheless contend that we should adopt their reading of §5 because it is supported by our decision in Beer, by the Attorney General'sregulations, and by considerations of public policy. In Beer, we held that§ 5 prohibited only retrogressive effects and further observed that"an ameliorative new legislative apportionment cannot violate §5 un- less the new apportionment itself so discriminates on the basis ofrace or color as to violate the Con- stitution." 425 U.S. at 141, 96S. Ct. at 1364. Al- though there had been no allegation that the re- districtingplan in Beer "so . . . discriminate[d] on the basis of race or coloras to be unconstitutional," we cited in dicta a few cases to illustratewhen a re- districting plan might be found to be constitutionally offensive.Id. at 142, n. 14, 96 S. Ct. at 1364, n. 14. Among them was our decisionin White v. Regester, 412 U.S. 755, 93 S. Ct. 2332, 37 L.Ed.2d 314 (1973),in which we sustained a vote dilution challenge, brought under the EqualProtection Clause, to the use of multimember election districts in two Texascounties. Ibid. Appellants argue that "[b]ecause vote dilution standardsunder the Constitution and Section 2 were generally coextensive at the timeBeer was decided, Beer's discussion meant that practices that violated Section2 would not be entitled to pre- clearance under Section 5." Brief forFederal Appel- lant 36-37.
Even assuming, arguendo, that appellants' argu- ment had some support in1976, it is no longer valid today because the applicable statutory and con-stitutional standards have changed. Since 1980, a plaintiff bringing a constitutionalvote dilution chal- lenge, whether under the Fourteenth or Fifteenth Amendment,has been required to establish that the state or political subdivision actedwith a discrimina- tory purpose. See City of Mobile v. Bolden, 446 U.S.55, 62, 100 S. Ct. 1490, 1497, 64 L.Ed.2d 47 (1980) (plurality opinion)("Our decisions . . . have made clear that action by a State that isracially neutral on its face violates the Fifteenth Amendment only if motivatedby a discriminatory purpose"); id. at 66, 100 S. Ct. at 1499 ("[O]nlyif there is purposeful discrimination can there be a violation of the EqualProtection Clause of the Fourteenth Amendment"); see also ArlingtonHeights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265, 97S. Ct. 555, 563, 50 L.Ed.2d 450 (1977) ("Proof of racially dis- criminatoryintent or purpose is required to show a violation of the Equal ProtectionClause"). When Congress amended § 2 in 1982, it clearly expressedits desire that § 2 not have an intent component, see S. Rep. No. 97-417,at 2, U.S. Code Cong. & Admin. News 1982 pp. 177, 178 ("Th[e 1982]amendment is designed to make clear that proof of discriminatory intentis not required to establish a violation of Section 2"). Because nowthe Constitution requires a showing of intent that § 2 does not, aviolation of § 2 is no longer a fortiori a violation of the Constitution.Congress itself has acknowledged this fact. See id. at 39 ("The VotingRights Act is the best example of Congress' power to enact implementinglegislation that goes beyond the direct prohibitions of the Con- stitutionitself").
Justice STEVENS argues that the subsequent diver- gence of constitutionaland statutory standards is of no moment because, in his view, we "didnot [in Beer] purport to distinguish between challenges brought under theConstitution and those brought under the [Voting Rights] statute."Post, at 1510 (opinion dissenting in part and concurring in part). Our citationto White, he posits, incorporated White's standard into our exception fornonretrogressive apportionments that violate § 5, whether or not thatstandard continued to coincide with the constitutional standard. In essence,Justice STEVENS reads Beer as creating an exception for nonretrogressiveappor- tionments that so discriminate on the basis of race or color as toviolate any federal law that happens to coincide with what would have amountedto a constitutional violation in 1976. But this reading flatly contradictsthe plain language of the exception we recognized, which applies solelyto apportionments that "so discriminat[e] on the basis of race or coloras to violate the Constitution." Beer, supra, at 141, 96 S. Ct. at1364 (emphasis added). We cited White, not for itself, but because it embodiedthe current con- stitutional standard for a violation of the Equal Pro-tection Clause. See also id. at 142, n. 14, 96 S. Ct. at 1364, n. 14 (notingthat New Orleans' plan did "not remotely approach a violation of theconstitutional standards enunciated in" White and other cited cases)(emphasis added). When White ceased to represent the current understandingof the Constitution, a violation of its standard-even though that standardwas later incorporated in § 2-no longer constituted grounds for denialof preclearance under Beer.
Appellants' next claim is that we must defer to the Attorney General's regulationsinterpreting the Act, one of which states:
"In those instances in which the Attorney General concludes that, asproposed, the submitted change is free of discriminatory purpose and retro-gressive effect, but also concludes that a bar to implementation of thechange is necessary to prevent a clear violation of amended Section 2, theAttorney General shall withhold Section 5 pre- clearance." 28 C.F.R.§ 51.55(b)(2) (1996).
Although we normally accord the Attorney General's construction of the VotingRights Act great defer- ence, "we only do so if Congress has not expressedits intent with respect to the question, and then only if the administrativeinterpretation is reasonable." Presley v. Etowah County Comm'n, 502U.S. 491, 508, 112 S. Ct. 820, 831, 117 L.Ed.2d 51 (1992). Given our longstandinginterpretation of § 5, see supra, at 1496-1498, 1498-1500, which Congresshas declined to alter by amending the language of § 5, Arkansas BestCorp. v. Commissioner, 485 U.S. 212, 222, n. 7, 108 S. Ct. 971, 977, n.7, 99 L.Ed.2d 183 (1988) (placing some weight on Congress' failure to expressdisfavor with our 25-year interpretation of a tax statute), we believe Congresshas made it sufficiently clear that a violation of § 2 is not groundsin and of itself for denying preclearance under § 5. That there maybe some suggestion to the contrary in the Senate Report to the 1982 VotingRights Act amendments, S. Rep. No. 97-417, supra, at 12, n. 31, U.S. CodeCong. & Admin. News 1982 pp. 177, 189, does not change our view. Withthose amendments, Congress, among other things, renewed § 5 but didso without changing its applicable standard. We doubt that Congress woulddepart from the settled interpretation of § 5 and impose a demonstrablygreater burden on the jurisdictions covered by § 5, see supra, at 1498,by dropping a footnote in a Senate Report instead of amending the statuteitself. See Pierce v. Under-wood, 487 U.S. 552, 567, 108 S. Ct. 2541, 2551,101 L.Ed.2d 490 (1988) ("Quite obviously, reenacting precisely thesame language would be a strange way to make a change"). See also Cityof Lockhart, 460 U.S. 125, 103 S. Ct. 998, 74 L.Ed.2d 863 (1983) (reachingits holding over Justice Marshall's dissent, which raised the argument nowadvanced by appellants regarding this passage in the Senate Report).
Nor does the portion of the House Report cited by Justice STEVENS unambiguouslycall for the incor- poration of § 2 into § 5. That portion ofthe Report states
"many voting and election practices currently in effect are outsidethe scope of [§ 5] . . . because they were in existence before 1965.. . . Under the Voting Rights Act, whether a discriminatory practice orprocedure is of recent origin affects only the mechanism that triggers relief,i.e., litigation [under § 2] or preclearance [under § 5]."H.R. Rep. No. 97-227, p. 28 (1981).
The obvious thrust of this passage is to establish that pre-1965 discriminatorypractices are not free from scrutiny under the Voting Rights Act just becausethey need not be precleared under § 5: Such practices might still violate§ 2. But to say that pre-1965 practices can be reached solely by §2 is not to say that all post-1965 changes that might violate § 2 maybe reached by both § 2 and § 5 or that "the substantive standardsfor § 2 and § 5 [are] the same," see post, at 1511 (opiniondissenting in part and concurring in part). Our ultimate conclusion is alsonot undercut by statements found in the "postenactment legislativerecord," see post, at 1511, n. 9, given that "the views of a subsequentCongress form a hazardous basis for inferring the intent of an earlier one."United States v. Price, 361 U.S. 304, 313, 80 S. Ct. 326, 332, 4 L.Ed.2d334 (1960). We therefore decline to give these sources controlling weight.
Appellants' final appeal is to notions of public policy. They assert thatif the district court or Attorney General examined whether a covered juris-diction's redistricting plan violates § 2 at the same time it ruledon preclearance under § 5, there would be no need for two separateactions and judicial re- sources would be conserved. Appellants are undoubt-edly correct that adopting their interpretation of § 5 would servejudicial economy in those cases where a § 2 challenge follows a §5 proceeding. But this does not always happen, and the burden on judicialre- sources might actually increase if appellants' position prevailed because§ 2 litigation would effectively be incorporated into every §5 proceeding.
Appellants lastly argue that preclearance is an equitable remedy, obtainedthrough a declaratory judgment action in the district court, see 42 U.S.C.§ 1973c, or through the exercise of the Attorney General's discretion,see 28 C.F.R. § 51.52(a) (1996). A finding that a redistricting planviolates § 2 of the Act, they contend, is an equitable "defense,"on the basis of which a decisionmaker should, in the exercise of its equitablediscretion, be free to deny pre- clearance. This argument, however, is anattempt to obtain through equity that which the law-i.e., the settled interpretationof § 5-forbids. Because "it is well established that '[c]ourtsof equity can no more disregard statutory and constitutional requirementsand provisions than can courts of law,'" INS v. Pangilinan, 486 U.S.875, 883, 108 S. Ct. 2210, 2216, 100 L.Ed.2d 882 (1988) (citing Hedges v.Dixon County, 150 U.S. 182, 192, 14 S. Ct. 71, 74-75, 37 L.Ed. 1044 (1893)),this argument must fail.
Of course, the Attorney General or a private plain- tiff remains free toinitiate a § 2 proceeding if either believes that a jurisdiction'snewly enacted voting "qualification, prerequisite, standard, practice,or procedure" may violate that section. All we hold today is that preclearanceunder § 5 may not be denied on that basis alone.
III
Appellants next contend that evidence showing that a jurisdiction's redistrictingplan dilutes the voting power of minorities, see supra, at 1498, is at leastrelevant in a § 5 proceeding because it tends to prove that the jurisdictionenacted its plan with a discriminatory "purpose." The districtcourt, reasoning that "[t]he line [between § 2 and § 5] cannotbe blurred by allowing a defendant to do indirectly what it cannot do directly,"907 F. Supp. at 445, rejected this argument and held that it "willnot permit section 2 evidence to prove discriminatory purpose under section5." Ibid. Because we hold that some of this "§ 2 evidence"may be relevant to establish a jurisdiction's "intent to retrogress"and cannot say with confidence that the district court considered the evidenceproffered to show that the Board's reapportionment plan was dilutive, wevacate this aspect of the district court's holding and remand. In lightof this conclusion, we leave open for another day the question whether the§ 5 purpose inquiry ever extends beyond the search for retrogressiveintent. See Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 465,n. 5, 109 S. Ct. 1904, 1911, n. 5, 104 L.Ed.2d 506 (1989) (declining todecide an issue that "is not necessary to our decision"). Reservingthis question is particularly appropriate when, as in this case, it wasnot squarely addressed by the decision below or in the parties' briefs onappeal. See Brief for Federal Appellant 23; Brief for Appellant Price et.al. 31-33, 34-35; Brief for Appellee 42-43. But in doing so, we do not,contrary to Justice STEVENS' view, see post, at 1508 (opinion dissentingin part and concurring in part), necessarily assume that the Board enactedthe Jury plan with some non-retrogressive, but nevertheless discriminatory,"purpose." The existence of such a purpose, and its relevanceto § 5, are issues to be decided on remand.
Although § 5 warrants a denial of preclearance if a covered jurisdiction'svoting change "ha[s] the purpose [or] . . . the effect of denying orabridging the right to vote on account of race or color," 42 U.S.C.§ 1973c, we have consistently interpreted this language in light ofthe purpose underlying § 5-"to insure that no voting-procedurechanges would be made that would lead to a retrogression in the posi- tionof racial minorities." Beer, 425 U.S. at 141, 96 S. Ct. at 1364. Accordingly,we have adhered to the view that the only "effect" that violates§ 5 is a retro- gressive one. Beer, 425 U.S. at 141, 96 S. Ct. at 1363-1364;City of Lockhart, 460 U.S. at 134, 103 S. Ct. at 1004.
Evidence is "relevant" if it has "any tendency to make theexistence of any fact that is of consequence to the determination of theaction more probable or less probable than it would be without the evidence."Fed. Rule Evid. 401. As we observed in Arlington Heights, 429 U.S. at 266,97 S. Ct. at 563-564, the im- pact of an official action is often probativeof why the action was taken in the first place since people usually intendthe natural consequences of their actions. Thus, a jurisdiction that enactsa plan having a dilutive impact is more likely to have acted with a discriminatoryintent to dilute minority voting strength than a jurisdiction whose planhas no such impact. A jurisdiction that acts with an intent to dilute minorityvoting strength is more likely to act with an intent to worsen the positionof minority voters-i.e., an intent to retrogress-than a juris- diction actingwith no intent to dilute. The fact that a plan has a dilutive impact thereforemakes it "more probable" that the jurisdiction adopting that planacted with an intent to retrogress than "it would be without the evidence."To be sure, the link between dilutive impact and intent to retrogress isfar from direct, but "the basic standard of relevance . . . is a liberalone," Daubert v. Merrell Dow Pharma- ceuticals, Inc., 509 U.S. 579,587, 113 S. Ct. 2786, 2794, 125 L.Ed.2d 469 (1993), and one we think ismet here.
That evidence of a plan's dilutive impact may be relevant to the §5 purpose inquiry does not, of course, mean that such evidence is dispositiveof that inquiry. In fact, we have previously observed that a juris- diction'ssingle decision to choose a redistricting plan that has a dilutive impactdoes not, without more, suffice to establish that the jurisdiction actedwith a discriminatory purpose. Shaw v. Hunt, 517 U.S. --, --, n. 6, 116S. Ct. 1894, 1904, n. 6, 135 L.Ed.2d 207 (1996) ("[W]e doubt that ashowing of discriminatory effect under § 2, alone, could support aclaim of discriminatory purpose under § 5"). This is true whetherthe jurisdiction chose the more dilutive plan because it better comportedwith its traditional districting principles, see Miller v. Johnson, 515U.S. at --, 115 S. Ct. at 2491-2492 (rejecting argument that a jurisdiction'sfailure to adopt the plan with the greatest possible number of majorityblack districts establishes that it acted with a discriminatory purpose);Shaw, supra, at -- - --, 116 S. Ct. at 1903-1904 (same), or if it chosethe plan for no reason at all. Indeed, if a plan's dilutive impact weredispositive, we would effectively incorporate § 2 into § 5, whichis a result we find unsatisfactory no matter how it is packaged. See PartII, supra.
As our discussion illustrates, assessing a juris- diction's motivation inenacting voting changes is a complex task requiring a "sensitive inquiryinto such circumstantial and direct evidence as may be available."Arlington Heights, 429 U.S. at 266, 97 S. Ct. at 564. In conducting thisinquiry, courts should look to our decision in Arlington Heights for guidance.There, we set forth a framework for analyzing "whether invidious discriminatorypurpose was a motivating factor" in a government body's decisionmaking.Ibid. In addition to serving as the framework for examining discriminatorypurpose in cases brought under the Equal Protection Clause for over twodecades, see, e.g., Shaw v. Reno, 509 U.S. 630, 644, 113 S. Ct. 2816, 2825,125 L.Ed.2d 511 (1993) (citing Arlington Heights standard in context ofEqual Protection Clause challenge to racial gerry- mander of districts);Rogers v. Lodge, 458 U.S. 613, 618, 102 S. Ct. 3272, 3276, 73 L.Ed.2d 1012(1982) (evaluating vote dilution claim under Equal Pro- tection Clause usingArlington Heights test); Mobile, 446 U.S. at 70-74, 100 S. Ct. at 1501-1503(same), the Arlington Heights framework has also been used, at least inpart, to evaluate purpose in our previous § 5 cases. See Pleasant Grove,479 U.S. at 469-470, 107 S. Ct. at 798-799 (considering city's history inreject- ing annexation of black neighborhoods and its depar- ture from normalprocedures when calculating costs of annexation alternatives); see alsoBusbee v. Smith, 549 F. Supp. 494, 516-517 (D.D.C. 1982), summarily aff'd,459 U.S. 1166, 103 S. Ct. 809, 74 L.Ed.2d 1010 (1983) (referring to ArlingtonHeights test); Port Arthur v. United States, 517 F. Supp. 987, 1019, aff'd,459 U.S. 159, 103 S. Ct. 530, 74 L.Ed.2d 334 (1982) (same).
The "important starting point" for assessing dis- criminatoryintent under Arlington Heights is "the impact of the official actionwhether it 'bears more heavily on one race than another.'" 429 U.S.at 266, 97 S. Ct. at 564 (citing Washington v. Davis, 426 U.S. 229, 242,96 S. Ct. 2040, 2048-2049, 48 L.Ed.2d 597 (1976)). In a § 5 case, "impact"might include a plan's retrogressive effect and, for the reasons discussedabove, its dilutive impact. Other considerations rele- vant to the purposeinquiry include, among other things, "the historical background ofthe [juris- diction's] decision"; "[t]he specific sequence ofevents leading up to the challenged decision"; "[d]epartures fromthe normal procedural sequence"; and "[t]he legislative or administrativehistory, especially . . . [any] contemporary statements by members of thedecisionmaking body." Id. at 268, 97 S. Ct. at 565.
We are unable to determine from the District Court's opinion in this casewhether it deemed irrele- vant all evidence of the dilutive impact of there- districting plan adopted by the Board. At one point, the District Courtcorrectly stated that "the adoption of one nonretrogressive plan ratherthan another nonretrogressive plan that contains more majority- black districtscannot by itself give rise to the inference of discriminatory intent."907 F. Supp., at 450 (emphasis added). This passage implies that the DistrictCourt believed that the existence of less dilutive options was at leastrelevant to, though not dispositive of, its purpose inquiry. While thislan- guage is consistent with our holding today, see supra, at 1501-1502,the District Court also declared that "we will not permit section 2evidence to prove discriminatory purpose under section 5." Ibid. Withthis statement, the District Court appears to endorse the notion that evidenceof dilutive impact is irrelevant even to an inquiry into retrogressive intent,a notion we reject. See supra, at 1501-1502.
The Board contends that the District Court actu- ally "presumed thatwhite majority districts had [a dilutive] effect," Brief for Appellee35, and "cut directly to the dispositive question 'started' by theexistence of [a dilutive] impact: did the Board have 'legitimate, nondiscriminatorymotives' for adopting its plan[?]" Id. at 33. Even if the Board werecorrect, the District Court gave no indication that it was assuming theplan's dilutive effect, and we hesitate to attribute to the District Courta rationale it might not have employed. Because we are not satisfied thatthe District Court considered evidence of the dilutive impact of the Board'sredistricting plan, we vacate this aspect of the District Court's opinion.The District Court will have the opportunity to apply the Arlington Heightstest on remand as well as to address appellants' additional arguments thatit erred in refusing to consider evidence that the Board was in violationof an ongoing injunction "to 'remedy any remaining vestiges of [a]dual [school] system'," 907 F. Supp., at 449, n. 18.
* * * * *
The judgment of the District Court is vacated and the case is remanded forfurther proceedings con- sistent with this decision.
It is so ordered.
Justice THOMAS, concurring.
Although I continue to adhere to the views I ex- pressed in Holder v. Hall,512 U.S. 874, 891, 114 S. Ct. 2581, 2591, 129 L.Ed.2d 687 (1994) (opinioncon- curring in judgment), I join today's opinion because it is consistentwith our vote dilution precedents. I fully anticipate, however, that asa result of today's holding, all of the problems we have experienced in§ 2 vote dilution cases will now be replicated and, indeed, exacerbatedin the § 5 retrogression inquiry.
I have trouble, for example, imagining a reap- portionment change that couldnot be deemed "retro- gressive" under our vote dilution jurisprudenceby a court inclined to find it so. We have held that a reapportionment planthat "enhances the position of racial minorities" by increasingthe number of majority-minority districts does not "have the 'effect'of diluting or abridging the right to vote on account of race within themeaning of § 5." Beer v. United States, 425 U.S. 130, 141, 96S. Ct. 1357, 1364, 47 L.Ed.2d 629 (1976). But in so holding we studiouslyavoided addressing one of the necessary consequences of increasing majority-minoritydistricts: Such action necessarily decreases the level of minority influencein surrounding districts, and to that extent "dilutes" the voteof minority voters in those other districts, and perhaps dilutes the influenceof the minority group as a whole. See, e.g., Hays v. Louisiana, 936 F. Supp.360, 364, n. 17 (W.D. La. 1996) (three-judge court) (noting that plaintiffs'expert "argues convincingly that our plan, with its one black majorityand three influence districts, empowers more black voters statewide thandoes" a plan with two black-majority districts and five "bleached"districts in which minority influence was reduced in order to create thesecond black-majority district); cf. Johnson v. De Grandy, 512 U.S. 997,1007, 114 S. Ct. 2647, 2655, 129 L.Ed.2d 775 (1994) (noting that dilutioncan occur by "fragmenting the minority voters among several districts. . . or by packing them into one or a small number of districts to minimizetheir in- fluence in the districts next door").
Under our vote dilution jurisprudence, therefore, a court could strike downany reapportionment plan, either because it did not include enough majority-minority districts or because it did (and thereby diluted the minority votein the remaining districts). A court could presumably even strike down anew reapportionment plan that did not significantly alter the status quoat all, on the theory that such a plan did not measure up to some hypotheticalideal. With such an indeterminate "rule," § 5 ceases to bepri- marily a prophylactic tool in the important war against discriminationin voting, and instead becomes the means whereby the Federal Government,and particularly the Department of Justice, usurps the legitimate politicaljudgments of the States. And such an empty "rule" inevitably forcesthe courts to make political judgments regarding which type of apportionmentbest serves supposed minority inter- ests-judgments that the courts areill-equipped to make.
I can at least find some solace in the belief that today's opinion willforce us to confront, with a re- newed sense of urgency, this fundamentalincon- sistency that lies at the heart of our vote dilution jurisprudence.
Beyond my general objection to our vote dilution precedent, the one portionof the majority opinion with which I disagree is the majority's new sug-gestion that preclearance standards established by the Department of Justiceare "normally" entitled to deference. See ante, at 1499.* Section5 sets up alternative routes for preclearance, and the primary route specifiedis through the District Court for the District of Columbia, not throughthe Attorney General's office. See 42 U.S.C. § 1973c (generally requiringDistrict Court preclearance, with a proviso that covered jurisdictions mayobtain preclearance by the Attorney General in lieu of the District Courtpreclearance, but providing no authority for the Attorney General to precludejudicial preclearance). Requiring the District Court to defer to adversepreclearance decisions by the Attorney General based upon the very preclearancestandards she articulates would essentially render the independence of theDistrict Court preclearance route a nullity.
Moreover, given our own "longstanding interpreta- tion of § 5,"see ante, at 1499, deference to the particular preclearance regulation addressedin this case would be inconsistent with another of the Attorney General'sregulations, which provides: "In making determinations [under §5] the Attorney General will be guided by the relevant decisions of theSupreme Court of the United States and of other Federal courts." 28C.F.R. § 51.56 (1996). Thus, while I agree with the majority's decisionnot to defer to the Attorney General's standards, I would reach that resulton different grounds.
Justice BREYER, with whom Justice GINSBURG joins, concurring in part andconcurring in the judg- ment.
I join Parts I and II of the majority opinion, and Part III insofar as itis not inconsistent with this opinion. I write separately to express mydisagree- ment with one aspect of the majority opinion. The majority saysthat we need not decide "whether the § 5 purpose inquiry everextends beyond the search for retrogressive intent." Ante, at 1501.In my view, we should decide the question, for otherwise the District Courtwill find it difficult to evaluate the evidence that we say it must consider.Cf. post, at 1512 (STEVENS, J., dissenting in part and concurring in part).Moreover, the answer to the question is that the "purpose" inquirydoes extend beyond the search for retrogressive intent. It includes thepurpose of unconstitutionally diluting minority voting strength.
The language of § 5 itself forbids a change in "any voting qualificationor prerequisite to voting, or stan- dard, practice, or procedure with respectto voting" where that change either (1) has the "purpose"or (2) will have the "effect" of "denying or abridging theright to vote on account of race or color." 42 U.S.C. § 1973c.These last few words reiterate in context the language of the 15th Amendmentitself: "The right of citizens . . . to vote shall not be denied orabridged . . . on account of race [or] color. . . ." This use of constitutionallanguage indicates that one purpose forbidden by the statute is a purposeto act uncon- stitutionally. And a new plan enacted with the pur- pose ofunconstitutionally diluting minority votes is an unconstitutional plan.Mobile v. Bolden, 446 U.S. 55, 62-63, 66, 100 S. Ct. 1490, 1497-1498, 1499,64 L.Ed.2d 47 (1980) (plurality opinion); ante, at 1499.
Of course, the constitutional language also applies to § 5's prohibitionthat rests upon "effects." The Court assumes, in its discussionof "effects," that the § 5 word "effects" doesnot now embody a purely con- stitutional test, whether or not it ever didso. See ante, at 1497-1498; City of Rome v. United States, 446 U.S. 156,173, 177, 100 S. Ct. 1548, 1559-1560, 64 L.Ed.2d 119 (1980). And that fact,here, is beside the point. The separate argument about the meaning of theword "effect" concerns how far beyond the Constitution's requirementsCongress intended that word to reach. The argument about "purpose"is simply whether Congress intended the word to reach as far as the Constitutionitself, embodying those purposes that, in relevant context, the Constitutionitself would forbid. I can find nothing in the Court's discussion that showsthat Congress intended to restrict the meaning of the statutory word "purpose"short of what the Constitution itself requires. And the Court has previouslyexpressly indicated that minority vote dilution is a harm that § 5guards against. Allen v. State Bd. of Elections, 393 U.S. 544, 569, 89 S.Ct. 817, 833-834, 22 L.Ed.2d 1 (1969).
Consider a hypothetical example that will clarify the precise legal questionhere at issue. Suppose that a covered jurisdiction is choosing between twonew voting plans, A and B. Neither plan is retrogressive. Plan A violatesevery traditional districting prin- ciple, but from the perspective of minorityrepre- sentation, it maintains the status quo, thereby meet- ing the "effects"test of § 5. See ante, at 1497-1498. Plan B is basically consistentwith traditional districting principles and it also creates one or two newmajority-minority districts (in a state where the number of such districtsis significantly less than proportional to minority voting age population).Suppose further that the covered jurisdiction adopts Plan A. Without anyother proposed evidence or justification, ordinary principles of logic andhuman experience suggest that the jurisdiction would likely have adoptedPlan A with "the purpose . . . of denying or abridging the right tovote on account of race or color." § 1973c. It is reasonable toassume that the Constitution would forbid the use of such a plan. See Rogersv. Lodge, 458 U.S. 613, 617, 102 S. Ct. 3272, 3275, 73 L.Ed.2d 1012 (1982)(Fourteenth Amendment covers vote dilution claims); Mobile, supra, at 66,100 S. Ct. at 1499 (plurality opinion) (same). And compare id. at 62-63,100 S. Ct. at 1497- 1498 (intentional vote dilution may be illegal underthe Fifteenth Amendment), and Gomillion v. Light- foot, 364 U.S. 339, 346,81 S. Ct. 125, 129-130, 5 L.Ed.2d 110 (1960) (Fifteenth Amendment coversmunicipal boundaries drawn to exclude blacks), with Mobile, supra, at 84,n. 3, 100 S. Ct. at 1509, n. 3 (STEVENS, J., concurring in judgment) (Mobileplurality said that Fifteenth Amendment does not reach vote dilution); Voinovichv. Quilter, 507 U.S. 146, 159, 113 S. Ct. 1149, 1158, 122 L.Ed.2d 500 (1993)("This Court has not decided whether the Fifteenth Amendment appliesto vote-dilution claims . . ."); Shaw v. Reno, 509 U.S. 630, 645, 113S. Ct. 2816, 2825-2826, 125 L.Ed.2d 511 (1993) (endorsing the Gomillionconcurrence's Four- teenth Amendment approach); Beer v. United States, 425U.S. 130, 142, n. 14, 96 S. Ct. 1357, 1364, n. 14, 47 L.Ed.2d 629 (1976).Then, to read § 5's "purpose" language to require approvalof Plan A, even though the jurisdiction cannot provide a neutral explanationfor its choice, would be both to read § 5 contrary to its plain languageand also to believe that Congress would have wanted a § 5 court (orthe Attorney General) to approve an unconstitutional plan adopted with anunconstitutional purpose.
In light of this example, it is not surprising that this Court has previouslyindicated that the purpose part of § 5 prohibits a plan adopted withthe purpose of unconstitutionally diluting minority voting strength, whetheror not the plan is retrogressive in its effect. In Shaw v. Hunt, for example,the Court doubted "that a showing of discriminatory effect under §2, alone, could support a claim of discriminatory purpose under § 5."517 U.S. --, n. 6, 116 S. Ct. at 1904, n. 6 (1996) (emphasis added). Theword "alone" suggests that the evidence of a discriminatory effectthere at issue-evidence of dilution-could be rele- vant to a discriminatorypurpose claim. And if so, the more natural understanding of § 5 isthat an unlawful purpose includes more than simply a purpose to retrogress.Otherwise, dilution would either disposi- tively show an unlawful discriminatoryeffect (if retrogressive) or it would almost always be irrelevant (if notretrogressive). Either way, it would not normally have much to do with unlawfulpurpose. See also the discussions in Richmond v. United States, 422 U.S.358, 378-379, 95 S. Ct. 2296, 2307-2308, 45 L.Ed.2d 245 (1975) (annexationplan did not have an impermissible dilutive effect but the Court remandedfor a determination of whether there was an imper- missible § 5 purpose);Pleasant Grove v. United States, 479 U.S. 462, 471-472, and n. 11, 107 S.Ct. 794, 800, and n. 11, 93 L.Ed.2d 866 (1987) (purpose to minimize futureblack voting strength is imper- missible under § 5); Port Arthur v.United States, 459 U.S. 159, 168, 103 S. Ct. 530, 536, 74 L.Ed.2d 334 (1982)(a plan adopted for a discriminatory purpose is invalid under § 5 evenif it "might otherwise be said to reflect the political strength ofthe minority community"); post, at 1512 (STEVENS, J., dissenting inpart and concurring in part).
Miller v. Johnson, 515 U.S. 900, 115 S. Ct. 2475, 132 L.Ed.2d 762 (1995),also implicitly assumed that § 5's "purpose" stretched beyondthe purely retrogressive. There, the Justice Department pointed out thatGeorgia made a choice between two redistricting plans, one of which (callit Plan A) had more majority-black districts than the other (call it PlanB). The Department argued that the fact that Georgia chose Plan B showeda forbidden § 5 discriminatory purpose. The Court rejected this argument,but the reason that the majority gave for that rejection is important. TheCourt pointed out that Plan B em- bodied traditional state districting principles.It reasoned that "[t]he State's policy of adhering to other districtingprinciples instead of creating as many majority-minority districts as possibledoes not support an inference" of an unlawful discriminatory purpose.Id. at --, 115 S. Ct. at 2492. If the only relevant "purpose"were a retrogressive purpose, this reasoning, with its reliance upon traditionaldistrict- ing principles, would have been beside the point. The Court wouldhave concerned itself only with Georgia's intent to worsen the positionof minorities, not with the reasons why Georgia could have adopted one oftwo potentially ameliorative plans. Indeed, the Court indicated that anameliorative plan would run afoul of the § 5 purpose test if it violatedthe Con- stitution. Ibid. See also Shaw v. Hunt, supra, at -- - --, 116S. Ct. at 1903-1904.
In sum, the Court today should make explicit an assumption implicit in itsprior cases. Section 5 prohibits a covered state from making changes inits voting practices and procedures where those changes have the unconstitutional"purpose" of unconstitu- tionally diluting minority voting strength.
Justice STEVENS, with whom Justice SOUTER joins, dissenting in part andconcurring in part.
In my view, a plan that clearly violates § 2 is not entitled to preclearanceunder § 5 of the Voting Rights Act of 1965. The majority's contraryview would allow the Attorney General of the United States to place herstamp of approval on a state action that is in clear violation of federallaw. It would be astonishing if Congress had commanded her to do so. Infact, however, Congress issued no such command. Surely no such command canbe found in the text of § 5 of the Voting Rights Act.1 Moreover, afair review of the text and the legislative history of the 1982 amendmentto § 2 of that Act indicates that Congress intended the Attorney Generalto deny preclearance under § 5 whenever it was clear that a new votingpractice was prohibited by § 2. This does not mean that she must makean independent inquiry into possible violations of § 2 whenever a requestfor preclearance is made. It simply means that, as her regulations provide,she must refuse preclearance when "necessary to prevent a clear violationof amended section 2." 28 C.F.R. § 51.55(b)(2) (1996).
It is, of course, well settled that the Attorney General must refuse topreclear a new election procedure in a covered jurisdiction if it will "leadto a retrogression in the position of racial minorities with respect totheir effective exercise of the electoral franchise." Beer v. UnitedStates, 425 U.S. 130, 141, 96 S. Ct. 1357, 1364, 47 L.Ed.2d 629 (1976).A retrogressive effect or a retrogressive purpose is a sufficient basisfor denying a preclearance request under § 5. Today, however, the Courtholds that retrogression is the only kind of effect that will justify denialof preclearance under § 5, ante, at 1496-1501, and it assumes that"the § 5 purpose inquiry [never] extends beyond the search forretrogressive intent." Ante, at --. While I agree that this actionmust be remanded even under the Court's miserly interpretation of §5, I disagree with the Court's holding/assumption that § 5 is concernedonly with retrogressive effects and purposes.
Before explaining my disagreement with the Court, I think it important toemphasize the three factual predicates that underlie our analysis of theissues. First, we assume that the plan submitted by the Board was not "retrogressive"because it did not make matters any worse than they had been in the past.None of the 12 districts had ever had a black majority and a black personhad never been elected to the Bossier Parish School Board (Board). App.to Juris. Statement 67a. Second, because the majority in both the DistrictCourt and this Court found that even clear violations of § 2 must beprecleared and thus found it unnecessary to discuss whether § 2 wasviolated in this action, we may assume that the record discloses a "clearviolation" of § 2. This means that, in the language of §2, it is perfectly clear that "the political processes leading to nominationor election [to positions on the Board] are not equally open to participationby members of [the African-American race] in that its members have lessopportunity than other members of the electorate to . . . elect representativesof their choice." 42 U.S.C. § 1973(b).2 Third, if the Court iscorrect in assuming that the purpose inquiry under § 5 may be limitedto evidence of "retrogressive intent," it must also be willingto assume that the documents submitted in support of the request for preclearanceclearly establish that the plan was adopted for the specific purpose ofpreventing African-Americans from obtaining repre- sentation on the Board.Indeed, for the purpose of analyzing the legal issues, we must assume thatJudge Kessler, concurring in part and dissenting in part, accurately summarizedthe evidence when she wrote:
"The evidence in this case demonstrates over- whelmingly that the SchoolBoard's decision to adopt the Police Jury redistricting plan was motivatedby discriminatory purpose. The adoption of the Police Jury plan bears heavilyon the black community because it denies its members a reasonable opportunityto elect a candidate of their choice. The history of discrimination by theBossier School System and the Parish itself demonstrates the Board's continuedrefusal to address the concerns of the black community in Bossier Parish.The sequence of events leading up to the adoption of the plan illustratethe Board's discriminatory purpose. The School Board's substantive departuresfrom traditional districting principles is similarly probative of discriminatorymotive. Three School Board members have acknowledged that the Board is hostileto black representation. Moreover, some of the purported rationales forthe School Board's decision are flat-out untrue, and others are so glaringlyinconsistent with the facts of the case that they are obviously pretexts."907 F. Supp. 434, 463 (D.D.C. 1995).
If the purpose and the effect of the Board's plan were simply to maintainthe discriminatory status quo as described by Judge Kessler, the plan wouldnot have been retrogressive. But, as I discuss below, that is not a sufficientreason for concluding that it com- plied with § 5.
I
In the Voting Rights Act of 1965, Congress enacted a complex scheme of remediesfor racial discrimi- nation in voting. As originally enacted, § 2 ofthe Act was "an uncontroversial provision" that "simply restated"the prohibitions against such discrimina- tion "already contained inthe Fifteenth Amendment," Mobile v. Bolden, 446 U.S. 55, 61, 100 S.Ct. at 1496-1497 (1980) (plurality opinion). Like the consti- tutional prohibitionsagainst discriminatory district- ing practices that were invalidated incases like Gomillion v. Lightfoot, 364 U.S. 339, 81 S. Ct. 125, 5 L.Ed.2d110 (1960), and White v. Regester, 412 U.S. 755, 93 S. Ct. 2332, 37 L.Ed.2d314 (1973), § 2 was made applicable to every State and political subdivisionin the country. Section 5, on the other hand, was highly controversial becauseit imposed novel, extraordinary remedies in certain areas where discriminationhad been most flagrant. See South Carolina v. Katzen- bach, 383 U.S. 301,334-335, 86 S. Ct. 803, 821-822, 15 L.Ed.2d 769 (1966).3 Jurisdictions likeBossier Parish in Louisiana are covered by § 5 because their historyof discrimination against African-Americans was a matter of special concernto Congress. Because these jurisdictions had resorted to various strategiesto avoid complying with court orders to remedy dis- crimination, "Congresshad reason to suppose that [they] might try similar maneuvers in the futurein order to evade the remedies for voting discrimination contained in theAct itself." Id. at 335, 86 S. Ct. at 822. Thus Congress enacted §5, not to maintain the discriminatory status quo, but to stay ahead of effortsby the most resistant jurisdictions to undermine the Act's purpose of "rid[ding]the country of racial discrimination." Id. at 315, 86 S. Ct. at 812("The heart of the Act is a complex scheme of stringent remedies aimedat areas where voting discrimination has been most flagrant").
In areas of the country lacking a history of per- vasive discrimination,Congress presumed that voting practices were generally lawful. Accordingly,the burden of proving a violation of § 2 has always rested on the partychallenging the voting practice. The situation is dramatically differentin covered jurisdictions. In those jurisdictions, § 5 flatly prohibitsthe adoption of any new voting procedure unless the State or political subdivisioninstitutes an action in the Federal District Court for the District of Columbiaand obtains a declaratory judgment that the change will not have a discriminatorypurpose or effect. See 42 U.S.C. § 1973c. The burden of proving compliancewith the Act rests on the jurisdiction. A proviso to § 5 gives theAttorney General the authority to allow the new procedure to go into effect,but like the immigration statutes that give her broad discretion to waivedeportation of undesirable aliens, it does not expressly impose any limiton her discretion to refuse preclearance. See ibid. The Attorney General'sdiscretion is, however, cabined by regulations that are presumptively validif they "are reasonable and do not conflict with the Voting RightsAct itself," Georgia v. United States, 411 U.S. 526, 536, 93 S. Ct.1702, 1708, 36 L.Ed.2d 472 (1973). Those regulations provide that preclearancewill generally be granted if a proposed change "is free of discriminatorypurpose and retrogressive effect"; they also provide, however, thatin "those instances" in which the Attorney General concludes "thata bar to implementation of the change is necessary to prevent a clear violationof amended section 2," preclearance shall be withheld.4 There is nobasis for the Court's speculation that litigants would so "'routinely,'"ante, at 1497, employ this 10-year old regulation as to "make compliancewith § 5 contingent upon compliance with § 2." Ante, at 1497.Nor do the regulations require the jurisdiction to assume the burden ofproving the absence of vote dilution, see ante, at -- - --. They merelypreclude preclearance when "necessary to prevent a clear violationof . . . section 2." While the burden of disproving discriminatorypurpose or retrogressive effect is on the submitting jurisdiction, if theAttorney General's conclusion that the change would clearly violate §2 is challenged, the burden on that issue, as in any § 2 challenge,should rest on the Attorney General.5
The Court does not suggest that this regulation is inconsistent with thetext of § 5. Nor would this be persuasive, since the language of §5 forbids pre- clearance of any voting practice that would have "thepurpose [or] effect of denying or abridging the right to vote on accountof race or color." 42 U.S.C. § 1973c. Instead the Court restsits entire analysis on the flawed premise that our cases hold that a change,even if otherwise unlawful, cannot have an effect prohibited by § 5unless that effect is retrogressive. The two cases on which the Court relies,Beer v. United States, 425 U.S. 130, 96 S. Ct. 1357, 47 L.Ed.2d 629 (1976),and City of Lockhart v. United States, 460 U.S. 125, 103 S. Ct. 998, 74L.Ed.2d 863 (1983), do hold (as the current regulations provide) that proofthat a change is not retrogressive is normally sufficient to justify preclearanceunder § 5. In neither case, however, was the Court confronted withthe question whether that showing would be sufficient if the proposed changewas so discriminatory that it clearly violated some other federal law. Infact, in Beer-which held that a legislative reapportionment enhancing theposition of African-American voters did not have a discriminatory effect-theCourt stated that "an ameliorative new legislative apportionment cannotviolate § 5 unless the new apportionment itself so discriminates onthe basis of race or color as to violate the Constitution." 425 U.S.at 141, 96 S. Ct. at 1364.6 Thus, to the extent that the Beer Court addressedthe question at all, it suggested that certain nonretrogressive changesthat were nevertheless discriminatory should not be precleared.
The Court discounts the significance of the "un- less" clausebecause it refers to a constitutional violation rather than a statutoryviolation. According to the Court's reading, the Beer dictum at most precludespreclearance of changes that violate the Constitution rather than changesthat violate § 2. This argument is unpersuasive. As the majority notes,the Beer Court cites White v. Regester, 412 U.S. at 766, 93 S. Ct. at 2339-2340,which found un- constitutional a reapportionment scheme that gave African-Americanresidents "less opportunity than did other residents in the districtto participate in the political processes and to elect legislators of theirchoice." Because, in 1976, when Beer was decided, the § 2 standardwas coextensive with the constitutional standard, Beer did not purport todistinguish between challenges brought under the Constitution and thosebrought under the statute. Rather Beer's dictum suggests that any changesthat violate the standard established in White v. Regester should not bepre- cleared.7
As the Court recognizes, ante, at 1499, the law has changed in two respectssince the announcement of the Beer dictum. In 1980, in what was perceivedby Congress to be a change in the standard applied in White v. Regester,a plurality of this Court concluded that discriminatory purpose is an essentialelement of a constitutional vote dilution challenge. See Mobile v. Bolden,446 U.S. 55, 62, 100 S. Ct. 1490, 1497 (1980). In reaction to that decision,in 1982 Congress amended § 2 by placing in the statute the languageused in the White opinion to describe what is commonly known as the "results"standard for evaluating vote dilution challenges. See 96 Stat. 134 (nowcodified at 42 U.S.C. §§ 1973(a)-(b)); Thornburg v. Gingles, 478U.S. 30, 35, 106 S. Ct. 2752, 2758, 92 L.Ed.2d 25 (1986).8 Thus Congresspreserved, as a matter of statutory law, the very same standard that theCourt had identified in Beer as an exception to the general rule requiringpreclearance of nonretrogressive changes. Because in 1975, Beer requireddenial of preclearance for voting plans that violated the White standard,it follows that Congress in preserving the White standard, intended alsothat the Attorney General should continue to refuse to preclear plans violatingthat standard.
That intent is confirmed by the legislative history of the 1982 Act. TheSenate Report states:
"Under the rule of Beer v. United States, 425 U.S. 130, 96 S. Ct. 1357,47 L.Ed.2d 629 (1976), a voting change which is ameliorative is not objec-tionable unless the change 'itself so discriminates on the basis of raceor color as to violate the Constitution.' 425 U.S. at 141 [96 S. Ct. at1364]; see also 142 n. 14 [96 S. Ct. at 1364, n. 14] (cit- ing to the dilutioncases from Fortson v. Dorsey [379 U.S. 433, 85 S. Ct. 498, 13 L.Ed.2d 401(1965),] through White v. Regester.). In light of the amendment to section2, it is intended that a section 5 objection also follow if a new votingpro- cedure itself so discriminates as to violate section 2." S. Rep.No. 97-417, p. 12, n. 31 (1982) U.S. Code Cong. & Admin. News 1982 pp.177, 189.
The House Report conveys the same message in different language. It unequivocallystates that whether a discriminatory practice or procedure was in existencebefore 1965 (and therefore only subject to attack under § 2), or isthe product of a recent change (and therefore subject to preclearance under§ 5) "affects only the mechanism that triggers relief." H.R.Rep. No. 97-227, p. 28 (1981). This statement plainly indicates that theCommittee understood the substantive standards for § 2 and § 5violations to be the same whenever a challenged practice in a covered jurisdictionrepresents a change subject to the dic- tates of § 5.9 Thus, it isreasonable to assume that Congress, by endorsing the "unless"clause in Beer, contemplated the denial of pre-clearance for any changethat clearly violates amended § 2. The major- ity by belittling thislegislative history, abrogates Congress' effort, in enacting the 1982 amendments,"to broaden the protection afforded by the Voting Rights Act."Chisom v. Roemer, 501 U.S. 380, 404, 111 S. Ct. 2354, 2368, 115 L.Ed.2d348 (1991).
Despite this strong evidence of Congress' intent, the majority holds thatno deference to the Attorney General's regulation is warranted. The Courtsuggests that had Congress wished to alter "our longstanding interpretation"of § 5, Congress would have made this clear. Ante, at 1496-1498. Butnothing in our "settled interpretation" of § 5, ante, at1500, is inconsistent with the Attorney General's reading of the statute.To the contrary, our precedent actually indicates that nonretrogressiveplans that are otherwise discriminatory under White v. Regester should notbe precleared. As neither the language nor the legislative history of §5 can be said to conflict with the view that changes that clearly violate§ 2 are not entitled to preclearance, there is no legitimate basisfor refusing to defer to the Attorney General's regulation. See Presleyv. Etowah County Comm'n, 502 U.S. 491, 508, 112 S. Ct. 820, 831, 117 L.Ed.2d51 (1992).
II
In Part III of its opinion the Court correctly concludes that this actionmust be remanded for further proceedings because the District Court erroneouslyrefused to consider certain evidence that is arguably relevant to whetherthe Board has proved an absence of discriminatory purpose under § 5.Because the Court appears satisfied that the disputed evidence may be probativeof an "'intent to retro- gress,'" it concludes that it is unnecessaryto decide "whether the § 5 purpose inquiry ever extends beyondthe search for retrogressive intent." Ante, at 1501. For two reasons,I think it most unwise to reverse on such a narrow ground.
First, I agree with Justice BREYER, see ante, at 1505, that there is simplyno basis for imposing this limitation on the purpose inquiry. None of ourcases have held that § 5's purpose test is limited to retrogressiveintent. In Pleasant Grove v. United States, 479 U.S. 462, 469-472, 107 S.Ct. 794, 798-801, 93 L.Ed.2d 866 (1987), for instance, we found that thecity had failed to prove that its annexation of certain white areas lackeda discriminatory purpose. Despite the fact that the annexation lacked aretrogressive effect, we found it was subject to § 5 preclearance.Ibid.; see also id. at 474-475, 107 S. Ct. at 801-802 (Powell, J., dissenting)(contending that the majority erred in holding that a discriminatory purposecould be found even though there was no intent "to have a retrogressiveeffect"). Furthermore, limiting the § 5 purpose inquiry to retrogressiveintent is inconsistent with the basic purpose of the Act. Assume, for example,that the record unambiguously disclosed a long history of deliberate exclusionof African- Americans from participating in local elections, including aseries of changes each of which was adopted for the specific purpose ofmaintaining the status quo. None of those changes would have been motivatedby an "intent to regress," but each would have been motivatedby a "discriminatory purpose" as that term is commonly understood.Given the long settled understanding that § 5 of the Act was enactedto prevent covered jurisdictions from "contriving new rules of variouskinds for the sole purpose of perpetuating voting discrimination,"South Carolina v. Katzenbach, 383 U.S. at 335, 86 S. Ct. at 822, it is inconceivablethat Congress intended to authorize preclearance of changes adopted forthe sole purpose of perpetuating an existing pattern of discrimination.
Second, the Court's failure to make this point clear can only complicatethe task of the District Court on remand. If that court takes the narrowapproach sug- gested by the Court, another appeal will surely follow; ifa majority ultimately agrees with my view of the issue, another remand willthen be necessary. On the other hand, if the District Court does not limitits consideration to evidence of retrogressive intent, and if it thereforerules against the Board, respondents will bring the case back and the Courtwould then have to resolve the issue definitively.
In sum, both the interest in orderly procedure and the fact that a correctanswer to the issue is pellu- cidly clear, should be sufficient to persuadethe Court to state definitively that § 5 preclearance should be deniedif Judge Kessler's evaluation of the record is correct.
Accordingly, while I concur in the judgment insofar as it remands the actionfor further proceedings, I dissent from the decision insofar as it failsto authorize proceedings in accordance with the views set forth above.
APPENDIX C
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civ. A. No. 94-1495 (LHS (USCA), CRR, GK)
BOSSIER PARISH SCHOOL BOARD, PLAINTIFF
v.
JANET RENO, ATTORNEY GENERAL, DEFENDANT
and
GEORGE PRICE, ET AL., DEFENDANT-INTERVENORS
[Filed: November 2, 1995]
BEFORE: SILBERMAN, Circuit Judge, RICHEY, and KESSLER, District Judges
MEMORANDUM OPINION
OF THREE-JUDGE COURT
UNDER THE VOTING RIGHTS ACT
SILBERMAN, Circuit Judge.
INTRODUCTION
Plaintiff, Bossier Parish School Board, seeks pre- clearance under section5 of the Voting Rights Act, 42 U.S.C. § 1973c, for its proposed redistricting.We shall grant the requested preclearance.
I.
Bossier Parish is located in northwestern Louisi- ana, bordered on the northby Arkansas. As reported by the 1990 census, Bossier Parish's populationis 86,088, of whom 20.1% are black. Blacks constitute 17.6% of the votingage population of Bossier Parish and 15.5% of its registered voters. BossierCity, the Parish's most populous city, is located in the central westernportion of the Parish and has a population of 52,721, of whom 17.95% areblack. The black popu- lation is also concentrated in Benton, Plain Dealing,Haughton, and in the unincorporated community of Princeton.
Bossier Parish is governed by a Police Jury, the 12 members of which areelected from single-member districts for consecutive four-year terms. Atno time in Parish history have the Police Jury electoral districts includeda district with a majority of black voters. Since 1983, however, a blackpolice juror, Jerome Darby, has been elected three times from a majority-whitedistrict, the last time unopposed.1
The Police Jury undertook to redraw its electoral districts because of populationshifts, as reflected in the 1980 census, that resulted in widely divergentpopulations among the existing districts. In Novem- ber 1990, the PoliceJury hired a cartographer, Gary Joiner, to assist in the process. At a publichear- ing on the Police Jury redistricting, black residents inquired aboutthe possibility of creating majority- black districts, and were told thatthe black popu- lation of Bossier Parish was too far-flung to create anysuch district. On April 30, 1991, the Police Jury unanimously adopted oneof the plans prepared by their cartographer as the final plan. The planserved the police jurors' incumbency concerns, and roughly provided foran even distribution of population among the districts. That same day, ConcernedCitizens, a group of black residents of Bossier Parish, submitted a letterto the Police Jury complaining about the manner in which the redistrictingplan was prepared and adopted. The plan was forwarded to the Attorney Generalon May 28, 1991, and, on July 29, 1991, the Attorney General preclearedit. On January 11, 1994, the Police Jury unanimously voted to maintain theredistricting plan precleared by the Attorney General.
The Bossier Parish School Board is constituted much like the Police Jury.2The School Board has 12 members elected from single-member districts toconsecutive four-year terms. Both the Police Jury and School Board electoraldistricts have majority voting requirements: a candidate must receive amajority of the votes cast, not merely a plurality, to win an election.In the School Board's history, no black candidate has been elected to membershipon the Board, though, as is discussed infra, one black School Board memberwas appointed to a vacant seat in 1992.
The Board, like the Police Jury, was also required to redraw its districtsafter the 1990 census. In fact, members of the Board had approached thePolice Jury about the prospect of jointly redistricting, but were rebuffedby police jurors with incumbency concerns divergent from those of the SchoolBoard members.3 The next scheduled election for the School Board was notuntil November 1994, and the School Board did not undertake the task ofredistricting with particular urgency. In May 1991, the Board hired thesame car- tographer who had assisted the Police Jury with its redistricting,Gary Joiner. When he was hired, Joiner informed the Board that one readilyavailable option was the Police Jury plan which had already been pre- clearedby the Attorney General and which, if adopted by the Board, was sure tobe precleared again. When he was hired, Joiner estimated that the redistrictingwould require 200 to 250 hours of his time.
At a Board meeting in September 1991, Board mem- ber Thomas Myrick suggestedthat the Board adopt the Police Jury plan. Myrick had participated in anumber of meetings with Joiner and police jurors during their redistricting.No action was taken on Myrick's proposal.
On March 25, 1992, George Price, president of the local chapter of the NAACPand a defendant-intervenor in this case, wrote to the Board to express theNAACP's desire to be involved in every aspect of the redistricting process.Price received no response to his letter and, on August 17, 1992, wroteagain, this time to say that the NAACP would dispute any plan that did notprovide for majority-black districts. At an August 20, 1992 meeting of theSchool Board, Price presented a number of proposals concerning the managementof the school district to the School Board, including the appointment ofa black to fill the vacancy on the Board created by a Board member's departure.Sometime during August 1992, Board members met individually with Joinerto review different options for redistricting.4
During the summer of 1992, the NAACP Re- districting Project in Baltimore,Maryland prepared a redistricting plan for the School Board that includedtwo majority-black districts. Price presented the results of these efforts,a partial plan demonstrating the possibility of two majority-black districts,to a School Board official. Price was told that the School Board would notconsider a plan that did not set forth all 12 districts. Price brought justsuch a plan to the September 3, 1992 meeting of the School Board. At thatmeeting, both Joiner and Bossier Parish District Attorney, James Buller,dismissed the NAACP plan because the plan required splitting a number ofvoting precincts.5
Under Louisiana law, school board districts must contain whole voting precincts(i.e., they may not split voting precincts). See Louisiana Revised Statutes,Title 17, § 71.3E.(1) ("The boundaries of any election districtfor a new apportionment plan from which members of a school board are electedshall contain whole precincts established by the parish governing authority.. . ."). While there has been dispute over the matter, the partieshave stipulated that school boards redistricting around the time the BossierParish School Board was redistricting were "free to request precinctchanges from the Police Jury necessary to accomplish their redistrictingplans." [Stip ¶ 23.] Defendant-intervenors' witness, David Creed,testified that he himself had routinely drawn redistricting plans that splitprecincts. The largest number of precincts that Creed had ever split waseight-far fewer than the 46 precinct splits resulting under the NAACP planthat was presented to the Board or any other plan proffered since by defendantor defendant- intervenors. In any event, the School Board never approachedthe Police Jury to request precinct changes.
On September 10, 1992, the School Board inter- viewed candidates for theone vacant seat on the School Board. By a six-to-five vote, the School Boardappointed the only black candidate, Jerome Blunt. Defendant-Intervenorscontend that this appointment came despite "bitter opposition fromwhite voters." [D-I Br. at 15.] On September 17, 1992, Blunt was swornin as a Board member. His term in office lasted six months, ending in aspecial-election defeat to a white candidate. The vacant seat to which Bluntwas appointed represented a district with the population that was 11% black.
At the same meeting during which Blunt took the oath of office, the SchoolBoard passed a motion of intent to adopt the Police Jury plan. The SchoolBoard announced that a public meeting would be held on September 24, 1992,with final action to be taken on the plan on October 1, 1992.
At the September 24, 1992 meeting, the School Board meeting room was filledto overflowing. Price presented the Board with a petition signed by morethan 500 residents of the Parish asking that the Board consider alternativeredistricting plans. Addi- tionally, a number of black residents addressedthe Board to express their opposition to the proposed Police Jury plan.No one spoke in support of the plan. On October 1, 1992, the School Boardunanimously adopted the Police Jury plan. Although he had taken office intime to vote on the plan, Jerome Blunt abstained. One other School Boardmember, Barbara W. Gray, was absent and did not vote.
The plan adopted by the School Board pits two pairs of incumbents againsteach other, leaving two districts with no incumbents. The plan does notdistribute the school district's schools evenly among the electoral districts:some have several schools, others have none.
On January 4, 1993, the School Board submitted its proposed redistrictingplan to the Attorney General. On March 5, 1993, the Attorney General requestedmore information on the redistricting plan, which the School Board provided.On August 30, 1993, the Attorney General interposed a formal objection tothe School Board's plan. The Attorney General's letter indicated that, whilethe identical Police Jury plan had been precleared, the Attorney Generalobjected on the basis of "new information." The Attorney Generalnoted that an alternative plan which showed "that black residents aresufficiently numerous and geographically compact so as to constitute a majorityin two single-member districts" and which was preferred by membersof the black community had been presented to and rejected by the SchoolBoard. The Attorney General further cited the School Board's failure to"accommodate the requests of the black community."
The Attorney General's objection letter stated that, while the School Boardwas not required to "adopt any particular plan, it is not free to adopta plan that unnecessarily limits the opportunity for minority voters toelect their candidates of choice." The Attorney General rejected theSchool Board's argument that the Louisiana statute concerning splittingprecincts was sufficient reason not to create majority-black districts.
On September 3, 1993, the School Board unani- mously voted to seek reconsiderationof the objection from the Attorney General. On December 20, 1993, the AttorneyGeneral denied the Board's request for reconsideration. The School Boardfiled this action on July 8, 1994. On April 10 and 11, 1995, this matterwas tried before a single judge of this panel, pursuant to an agreementof the parties. The record of those proceedings has been provided to theother two judges on the panel and closing argument was conducted be- forethe entire panel on July 27, 1995.
In the course of this litigation, defendant-inter- venors have preparedtwo more plans that provide for two majority-black districts. Both planswere pre- pared by defendant-intervenor's witness, William Cooper. The firstplan (Cooper I) provides for one majority-black district in the northwesterncorner of the parish and one in Bossier City. The second plan (Cooper II)is not materially different. Neither of these plans was before the SchoolBoard when it adopted the Police Jury plan.6
II.
For a political subdivision subject to section 5 to obtain preclearanceof a voting change, it must prove that the proposed change "does nothave the purpose and will not have the effect of denying or abridging theright to vote on account of race or color." 42 U.S.C. § 1973c.All parties agree that the "effect" prong of section 5 requiresa showing of retro- gression. See Beer v. United States, 425 U.S. 130, 141,96 S. Ct. 1357, 1364, 47 L.Ed.2d 629 (1976). And, all parties agree thatthe School Board's proposed redis- tricting will not have a retrogressiveeffect. The case, then, turns on whether plaintiff can by a pre- ponderanceof the evidence demonstrate that the redistricting plan was enacted withoutdiscrimina- tory purpose.
The School Board claims to have proved that a variety of nondiscriminatorypurposes animated the School Board when they adopted the Police Jury plan.The School Board adopted the Police Jury plan because it had been preclearedby the Attorney General and would provide an easy way to avoid the controversythat increasingly surrounded the redis- tricting process. Further, the PoliceJury plan re- quired that no precincts be split, avoiding the diffi- cultyand expense that would have accompanied any other plan, and particularlythe only other plan the School Board had seen: the NAACP plan. The SchoolBoard have throughout the litigation proffered a series of other purposessaid to have motivated the decision to adopt the Police Jury plan. Amongthese were a desire to adhere to traditional districting principles andto avoid racial gerrymandering.
Defendant asserts that preclearance should be denied for at least one ofseveral reasons. Defendant argues that we should deny preclearance becausethe School Board's redistricting plan violates section 2 of the Voting RightsAct. If we conclude that we may not engage in the section 2 inquiry in thissection 5 case, defendant contends that we may nonetheless consider theSchool Board's violation of section 2 as evidence of its discriminatorypurpose. Defendant and defendant-intervenors further argue that we shoulddeny preclearance based on "direct" and "in- direct"evidence that the School Board acted with a discriminatory purpose.
III.
A.
Defendant and defendant-intervenors maintain that preclearance must be deniedif the School Board's plan runs afoul of section 2 of the Voting RightsAct.7 We hold, as has every court that has considered the question, thata political subdivision that does not violate either the "effect"or the "purpose" prong of section 5 cannot be denied preclearancebecause of an alleged section 2 violation.
Defendant puts before us many arguments for the inclusion of section 2 inthis section 5 action. De- fendant contends that the statutory languageof section 2 and section 5 are in significant part so indis- tinguishableas to require the importation of section 2 into section 5. It is also arguedthat the legislative history of section 2 makes clear that Congress, inamending section 2, intended that voting practices be denied section 5 preclearancewhere those voting practices violate section 2. Defendant finally con- tendsthat this court should defer to defendant's own regulations, which interpretsection 5 as requiring denial of preclearance where a proposed change vio-lates section 2.
Defendant has presented many, if not all, of these arguments to other courtsand to other panels of this court without any success. Defendant acknowl-edges these prior cases, but claims that they are distinguishable from theone before us. We, like our predecessors, reject defendant's latest-andby now rather shopworn-effort to squeeze section 2 into section 5.
We are unconvinced by defendant's casual effort to equate the standardsof section 2 and section 5. In its brief, defendant asserts that "thereis no meaningful distinction between the plain meaning of the term [sic]'effect' and 'result.'" [Def. Br. at 28.] To reach this facile conclusion,one must willfully blind oneself to the fact that the term "results"in subsection (a) of section 2 is defined by reference to the language setforth in subsection (b) of section 2. 42 U.S.C. § 1973. None of thelanguage that modifies "results" in section 2 appears in section5.
Not only are the two sections drafted with different language, even a cursoryreview of the case law apply- ing the two statutory sections as writtenand as applied over the years makes clear that the two sec- tions servevery different functions.
Section 5 of the Voting Rights Act establishes an extraordinary procedurein our federal system. Before a "covered jurisdiction"-i.e., aState or one of its political subdivisions which is subject to section 5-maychange a "voting qualification or prerequisite to voting, or standard,practice, or procedure with respect to voting," it must have the changeprecleared by either this court or the Attorney General.8 Id. § 1973c.Preclearance in this court comes in the form of "a declaratory judgmentthat such qualification, prerequisite, standard, practice, or proceduredoes not have the purpose and will not have the effect of denying or abridgingthe right to vote on account of race or color, or in contravention of theguarantees set forth in . . . this title." Id. § 1973c.
The Supreme Court has read the "effect" prong of section 5 torequire that "no voting-procedure changes would be made that wouldlead to a retro- gression in the position of racial minorities with respectto their effective exercise of the electoral franchise." Beer v. UnitedStates, 425 U.S. 130, 141, 96 S. Ct. 1357, 1364, 47 L.Ed.2d 629 (1976).This "nonretrogression" interpretation has repeatedly been reassertedby the Supreme Court, most recently in Miller v. Johnson, -- U.S. --, --,115 S. Ct. 2475, 2493, 132 L.Ed.2d 762 (1995).
This formulation relates directly to section 5's function. Section 5 wasenacted in response to the efforts of jurisdictions to avoid compliancewith the Voting Rights Act by adopting new, viola- tive schemes as quicklyas the old ones could be struck down. See Beer, 425 U.S. at 140, 96 S. Ct.at 1363. "'By freezing election procedures in the covered areas unlessthe changes can be shown to be non-discriminatory,' section 5 ensures thata plaintiff seeking to challenge an existing voting scheme in federal courtunder section 2 will have a stationary target to attack." New Yorkv. United States, 874 F. Supp. 394, 400 (D.D.C.1994) (quoting Beer, 425U.S. at 140, 96 S. Ct. at 1363 (internal citations omitted)).
Section 2 of the Voting Rights Act uses plainly different language and servesa different function from that of section 5. Under section 2, a "votingqualification or prerequisite to voting or standard, practice, or procedure"in any political subdivision (not just a covered jurisdiction) may be challengedwhere it "results in a denial or abridgement of the right of any citizenof the United States to vote on account of race or color." 42 U.S.C.§ 1973(a). Sub- section (b) of section 2 provides that a voting pro-cedure has the prohibited result where
based on the totality of circumstances, it is shown that the political processesleading to nomination or election in the State or political subdivisionare not equally open to participation by members of a class of citizensprotected by subsection (a) of this section in that its members have lessopportunity than other members of the electorate to partici- pate in thepolitical process and to elect repre- sentatives of their choice.
Id. § 1973(b). Subsection (b) contains a different standard from theretrogression standard found by the Supreme Court in section 5; as courtshave since recognized, section 2 can be violated without any discriminatorypurpose and irrespective of whether the disputed voting practice is betteror worse than whatever it is meant to replace. See Thornburg v. Gingles,478 U.S. 30, 42-47, 106 S. Ct. 2752, 2761-64, 92 L.Ed.2d 25 (1986). Sections2 and 5 are substantially different, both on their face and in the mannerin which they have been interpreted and applied. See Holder v. Hall, 512U.S. 874, --, 114 S. Ct. 2581, 2587, 129 L.Ed.2d 687 (1994) ("To besure, if the struc- ture and purpose of section 2 mirrored that of section5, then the case for interpreting sections 2 and 5 to have the same applicationin all cases would be convincing. But the two sections differ in structure,purpose, and application." (footnote omitted)).
Moreover, the two sections differ as to the alloca- tion of the burden ofproof. In an action under section 5, the burden of proof is on the politicalsubdivision seeking to enact a voting change. In a section 2 action, onthe other hand, the burden of proof is on the party challenging a votingpractice. See, e.g., Hall v. Holder, 955 F.2d 1563, 1573-74 (11th Cir.1992),rev'd on other grounds, 512 U.S. 874, 114 S.Ct. 2581, 129 L.Ed.2d 687 (1994);Solomon v. Liberty County, 899 F.2d 1012, 1036 (11th Cir.1990) (en banc)(Tjoflat, J., specially concurring); cert. denied, 498 U.S. 1023, 111 S.Ct. 670, 112 L.Ed.2d 663 (1991); see also Burton v. Sheheen, 793 F. Supp.1329, 1351-52 (D.S.C.1992) (de- clining to import section 2 into section5 because, inter alia, of the differing burdens of proof), vacated on othergrounds sub nom. Statewide Reapportionment Advisory Comm. v. Theodore, 508U.S. 968, 113 S. Ct. 2954, 125 L.Ed.2d 656 (1998); City of Port Arthur v.United States, 517 F. Supp. 987, 1005 n. 119 (D.D.C. 1981) (rejecting claimthat section 2 action can collaterally estop section 5 action because, interalia, burdens of proof in each case are different), aff'd, 459 U.S. 159,103 S. Ct. 530, 74 L.Ed.2d 334 (1992). That crucial procedural differencestrongly suggests the inappropriateness of importing section 2 standardsinto section 5.
Defendant's reliance on the legislative history of the amendments to section2 is similarly unavailing. Where the language of a statutory regime is unam-biguous, as it is here, we need not resort to that regime's legislativehistory. See Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112S. Ct. 1146, 1149, 117 L.Ed.2d 391 (1992). Even if the lan- guage of sections2 and 5 did not plainly contemplate two different and independent inquiries,we would not be persuaded that what little legislative history defendanthas discovered is sufficient to justify the radical expansion of an alreadysignificant encroach- ment on the prerogatives of States and their sub-divisions. Defendant bases its recourse to legislative history in a footnotefrom the Senate Report that accompanied the 1982 amendments to section 2:"In light of the amendment to Section 2, it is intended that a Section5 objection also follow if a new voting procedure itself so discriminatesas to violate Section 2." S. Rep. No. 97-417, 97th Cong., 2d Sess.at 12 n. 31 (1982) U.S.Code Cong. & Admin. News 1982 pp. 177, 189. Defendantalso provides quotes to this effect from two sponsors of the 1982 amendments.The footnote appears in a report that accompanied the 1982 overhaul of section2 that was precipitated by and intended to repudiate Mobile v. Bolden, 446U.S. 55, 100 S. Ct. 1490, 64 L.Ed.2d 47 (1980). Georgia v. Reno, 881 F.Supp. 7, 13 (D.D.C. 1995). In Mobile, a plurality of the Supreme Court heldthat proof of discriminatory purpose was required for a section 2 violation."The [footnote] cited by the defendants was intended merely to emphasizethat proof of the requisite unlawful effect is in itself sufficient undereither section, regardless of motive." Id. At that time, section 2was wholly rewritten to provide that no proof of discriminatory purposeis required in actions brought under it; section 5 remained-and remainstoday-as it had been written in 1975. In the face of the palpably differentstandards plainly embodied in sections 2 and 5, we think it not plausiblethat Congress would indicate its desire to raise the hurdle to preclearanceby adding the requirements of section 2 to section 5 in a Senate Reportfootnote. Accord Arizona v. Reno, 887 F. Supp. 318 (D.D.C.1995). Had Congressplainly expressed this intention, we would be bound to follow. It did notand we are not.
The Department argues in its brief-although it appeared to retreat fromthis contention at closing argument-that an additional reason for the courtto import section 2 into section 5 is that the Department of Justice haspromulgated regulations stating that preclearance under section 5 oughtto be denied where the proposed voting change violates section 2. See 28C.F.R. § 51.55(b)(2) ("In those instances in which the AttorneyGeneral concludes that, as proposed, the submitted change is free of discriminatorypurpose and retrogressive effect, but also concludes that a bar to implementationof the change is necessary to prevent a clear violation of amended section2, the Attorney General shall withhold section 5 pre- clearance.").The Department asserts that "the Attorney General's interpretationsof the Act are entitled to great deference." [Def. Br. at 31.] Wher-ever else the Attorney General's interpretation of section 5 of the VotingRights Act may be entitled to deference, it certainly is not in this court.We will not defer to the Attorney General where, under the statute, an actionseeking preclearance may be brought here in the first instance. See LittonFin. Printing Div. v. NLRB, 501 U.S. 190, 203, 111 S. Ct. 2215, 2223, 115L.Ed.2d 177 (1991) (citing Local Union 1395, Int'l Brotherhood of Elec.Workers v. NLRB, 797 F.2d 1027, 1030-31 (D.C. Cir. 1986)); Kelley v. EPA,15 F.3d 1100, 1108 (D.C. Cir. 1994) ("Even if an agency enjoys authorityto determine such a legal issue administratively, deference is withheldif a private party can bring the issue independently to federal court undera private right of action."), cert. denied sub nom. American BankersAss'n v. Kelley, 513 U.S. 1110, 115 S. Ct. 900, 130 L.Ed.2d 784 (1995);cf. Michigan Citizens for an Indep. Press v. Thornburgh, 868 F.2d 1285,1293 (D.C. Cir.), aff'd, 493 U.S. 38, 110 S. Ct. 398, 107 L.Ed.2d 277 (1989).
As we have noted, all courts to have considered the question have decidedthat section 2 may not be imported in section 5. See Texas v. United States,Civ. Act. No. 94-1529, Mem. Op. at 1-3, 1995 WL 769160 (D.D.C. July 10,1995); Arizona v. Reno, 887 F. Supp. at 320-21; Georgia v. Reno, 881 F.Supp. at 13-14; New York v. United States, 874 F. Supp. 394 (D.D.C. 1994);see also Burton v. Sheheen, 793 F. Supp. at 1350-53. Defendant would distinguishthese cases, insisting that the other panels refused to import section 2into section 5 cases because the only alleged section 2 violation was theaddition of judgeships to an already existing, already violative systemfor the election of judges.9 See Texas; Arizona; Georgia; New York. [Def.Br. at 34.] In this case, defendant contends that the proposed voting changeis itself a violation of section 2 and that preclearance must thereforebe denied. We are not persuaded. The reasoning used by the prior courtsis just as applicable here, regardless of whether a given voting changeis styled as an addition to a system that allegedly violates section 2 ora violation of section 2 itself. The statute does not provide for importationof section 2 into section 5, and the particular circumstances of a givensection 5 preclearance action can make no difference whatso- ever.
In its discussion of the importation of section 2 into section 5, defendantmakes no mention of Miller v. Johnson. In Miller, the Attorney General deniedpre- clearance for the Georgia General Assembly's con- ressional redistrictingplan until it provided for three majority-black districts. -- U.S. at --,115 S. Ct. at 2489. In finding that the General Assembly had made race the"predominant factor" in its redistricting and thereby violatedthe Equal Protection Clause, the Court held that the manner in which theAttorney General had employed section 5 of the Voting Rights Act was "insupportable,"and that the Attorney General's incorrect interpretation of section 5 couldnot be a compelling state interest sufficient to sur- vive strict scrutiny.Id. -- U.S. at --, 115 S. Ct. at 2492. Although much of the discussion inMiller con- cerns the Equal Protection clause, Miller is very much a statutoryinterpretation case. The Supreme Court, rather than decide the constitutionalquestion of whether compliance with the Voting Rights Act could serve asa compelling state interest, expressly repudiated the Department's interpretationof section 5. Id. -- U.S. at -- - --, 115 S. Ct. at 2490-91. The Court notedthat the purpose of section 5 is to avoid retrogression in the positionof minority voters, and stated that the "Justice Department's maximiza-tion policy seems quite far removed from this pur- pose." Id. -- U.S.at --, 115 S. Ct. at 2493. "In utilizing § 5 to require Statesto create majority- minority districts wherever possible, the Departmentof Justice expanded its authority under the statute beyond what Congressintended and we have upheld." Id. The Supreme Court further observedthat it had upheld section 5 in South Carolina v. Katzenbach, 383 U.S. 301,86 S. Ct. 803, 15 L.Ed.2d 769 (1966), as a
necessary and constitutional response to some states' "extraordinarystratagem[s] of contriving new rules of various kinds for the sole purposeof perpetuating voting discrimination in the face of adverse federal courtdecrees." . . . But [its] be- lief in Katzenbach that the federalismcosts exacted by § 5 preclearance could be justified by those extraordinarycircumstances does not mean they can be justified in the circumstances ofthis case.10
Id. (quoting Katzenbach, 383 U.S. at 335, 86 S. Ct. at 822).
Although Miller makes no explicit reference to the injection of section2 into section 5, the import of the opinion on this issue is clear. So longas the standard for the "effect" prong of section 5 remains "nonretro-gression," the only way for defendant to require the creation of additionalmajority-black districts before preclearance will be granted is to importthe stan- dards of section 2 into the section 5 preclearance process. Thevery language with which the Attorney General objected to the School Board'sredistricting plan makes plain that section 2's standards informed the AttorneyGeneral's objection to the School Board's plan. Miller,11 however, makescrystalline what was already clear: section 2 and its standards have noplace in a section 5 preclearance action. See also Texas v. United States,Civ. Act. No. 94-1529, Mem. Op. at 2-3.
In what may by now be a conditioned response, defendant argues that evenif we decide that a section 2 action cannot be brought in a section 5 preclearanceproceeding, we must still consider evidence of a section 2 violation asevidence of discriminatory pur- pose under section 5. We again disagree.As we have said, the statutory language sets forth differing standards forthe two sections. The line cannot be blurred by allowing a defendant todo indirectly what it cannot do directly. The federalism costs already exactedby section 5 are seriously increased if, under the guise of "purpose"evidence, alleged section 2 vio- lations must be countered by the politicalsubdivision whenever it seeks preclearance. See New York v. United States,874 F. Supp. at 399 ("Were we to accept defendant's theory that discriminatoryintent may always be inferred from the existence of an allegedly discriminatorysystem, nearly every section 5 pre- clearance proceeding could potentiallybe transformed into full-blown section 2 litigation. We think a rule creatingsuch a state of affairs both unwarranted and unwise."). And, Millerforecloses the permitting of section 2 evidence in a section 5 case. Asa panel of this court recently noted,
the Court [in Miller] reaffirmed that the "pur- pose" prong ofsection 5 must be analyzed within the context of section 5's purpose, which"has always been to insure that no voting-procedure changes would bemade that would lead to a retrogression in the position of racial minoritieswith respect to their effective exercise of the electoral franchise."
Texas v. United States, Civ. Act. No. 94-1529, Mem. Op. at 2 (July 10, 1995)(quoting Miller, -- U.S. at --, 115 S. Ct. at 2493). Given the variety ofgood reasons not to import section 2 into section 5, we will not permitsection 2 evidence to prove discriminatory purpose under section 5.12
B.
The parties agree that the proposed redistricting will not result in retrogressionof minority vot- ing strength in Bossier Parish, and thus, that the "effect"prong of Section 5 is not in issue. The statute requires a covered politicalsubdivision seek- ing a declaratory judgment to prove that the proposedvoting change "does not have the purpose and will not have the effectof denying or abridging the right to vote." 42 U.S.C. § 1973c(emphasis added).
Plaintiff bears the burden of proving that it did not adopt the Police Juryplan with a discriminatory purpose. Rome v. United States, 446 U.S. 156,183, 100 S. Ct. 1548, 1565, 64 L.Ed.2d 119 (1980) ("Under [section]5, the city bears the burden of proving lack of discriminatory purpose andeffect."). All courts agree that the entity seeking preclearance hasthe burden of proving that the proposed change has neither a discriminatoryeffect nor a discriminatory purpose. How this plays itself out in litigationhas been left largely unexplored. But it must be recognized that placinga burden of proving nondiscrimination on the plaintiff is anomalous underour law; the plaintiff is put in the position of proving a negative.13
Courts have devised complex burden-shifting regimes for litigation underTitle VII and section 2 of the Voting Rights Act. In an action under TitleVII, a plaintiff complaining of discrimination in the em- ployment contextmust set forth a prima facie case of discrimination. At that point, theburden shifts to the employer to prove that the complained-of employmentaction was undertaken for other, nondiscriminatory reasons. The burden thenshifts back to the plaintiff to prove that the employer's offered reasonsare pre- textual. See, e.g., Johnson v. Transportation Agency, 480 U.S.616, 628, 107 S. Ct. 1442, 1450, 94 L.Ed.2d 615 (1987); McDonnell DouglasCorp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L.Ed.2d 668(1973). Similarly, courts in section 2 cases have held that once the plaintiffestablishes a prima facie case of vote dilution, the burden shifts to thepolitical subdivision to prove that the voting regime does not result in,or have as its purpose, discrimination. See, e.g., Hall v. Holder, 955 F.2d1563, 1573-74 (11th Cir. 1992), rev'd on other grounds, 512 U.S. 874, 114S. Ct. 2581, 129 L.Ed.2d 687 (1994); Solomon v. Liberty County, 899 F.2d1012, 1036 (11th Cir. 1990) (en banc) (Tjoflat, J., specially concurring).In actions under both Title VII and section 2, the burden-shifting regimeswere enacted in order to alleviate the difficulty for plain- tiffs of provingthat defendants acted with discrimina- tory intent. These procedural servicesthus do not appear appropriate to a section 5 case.
To be sure, something like a burden shifting must occur in this, as in everyother, civil case. Once the Board makes out its prima facie case, it isentitled to preclearance unless its prima facie case is rebutted. See Director,Office of Workers' Compensation Pro- grams, Dept. of Labor v. GreenwichCollieries, 512 U.S. 267, --, 114 S. Ct. 2251, 2259, 129 L.Ed.2d 221 (1994)("[W]hen the party with the burden of persua- sion establishes a primafacie case supported by 'credible and credited evidence,' it must eitherbe re- butted or accepted as true"). If it is rebutted, then we mustweigh the School Board's evidence against that proffered on the other side.If the evidence is equally convincing on either side, the School Board-bearingthe risk of nonpersuasion-must lose. See McCain v. Lybrand, 465 U.S. 236,257, 104 S. Ct. 1037, 1050, 79 L.Ed.2d 271 (1984) (in the preclearance process,"the burden of proof (the risk of non-persuasion) is placed upon thecovered jurisdiction"). If, however, the School Board's evidence ismore persuasive than the evidence proffered against it, the School Boardis entitled to preclearance. To make out a prima facie case for preclearance,the School Board must dem- onstrate that the proposed change will have noretro- gressive effect, and that the change was undertaken without a discriminatorypurpose. Proof of nondis- criminatory purpose must include "legitimaterea- sons" for settling on the given change. Richmond v. United States,422 U.S. 358, 375, 95 S. Ct. 2296, 2306, 45 L.Ed.2d 245 (1975). When theprima facie case has been made by the School Board, defendant must offerevidence in rebuttal in order to prevent pre- clearance.14
The School Board has offered a host of non- discriminatory reasons for adoptingthe Police Jury plan. We are satisfied that at least two of these are "legitimate,nondiscriminatory motives," New York, 874 F. Supp. at 400.15
The Police Jury plan offered the twin attractions of guaranteed preclearanceand easy implementation (because no precinct lines would need redrawing).The School Board did not like the Police Jury plan when it was first presentedto them, and there were certainly reasons not to. The Police Jury plan wreakedhavoc with the incumbencies of four of the School Board members and wasnot drawn with school locations in mind. When, however, the redistrictingprocess began to cause agitation within the black community, and when itbecame obvious that any plan adopted by the School Board would give riseto con- troversy and division (and we find that by the time the NAACP'sredistricting plan had been presented to the School Board, the Board couldvery reason- ably foresee this), the Police Jury plan became, as Board memberMyrick described it, "expedient." Any port will do in a storm,and when the clouds over the School Board's redistricting process beganto grow ominous, the only close port was the already pre- cleared PoliceJury plan.
Defendant and defendant-intervenors contend that the Police Jury plan itselfwas precleared by the Attorney General only because relevant informationwas withheld from the Attorney General. In order for this to be evidencethat the School Board adopted the Police Jury plan with an impermissiblepurpose, the School Board would have to have known that such informationhad been withheld from the Attorney General, and that but for that withholding,the Attorney General would not have precleared the Po- lice Jury plan. Weknow of no evidence even suggest- ing the School Board had any knowledgethat the Police Jury plan had been precleared illegitimately if in factit had been.
Further, the Police Jury plan would require no splitting of precincts. Whilethe evidence on the effect of a school board's efforts to redistrict ina way that splits precincts is confused, what is uncontro- verted is thatchanging precincts is neither guaran- teed nor free. The NAACP plan presentedto the School Board-the only other plan available to the school board atthe time-split at least 46 precincts. Defendant-intervenors' witness, DavidCreed, who testified that precinct-splitting was quite common and that hehimself had drawn several redistricting plans that split precincts, [D-IExh. F at 2-3], had never drawn a plan that split more than eight pre- cincts.[Tr. II, at 119.] Splitting precincts would have required assistance fromthe Police Jury-a body that had rebuffed the School Board's earlier overturesfor coordinated efforts. And, the splitting of precincts would have costmoney. Evidence was presented that each precinct split would cost $850,and even if this number was substantially overstated, no one suggests thatprecincts can be split for free. When the School Board began the redistrictingprocess, it likely anticipated the necessity of splitting some precincts.It hired the Police Jury's cartographer with the expectation that he wouldspend a substantial amount of time on the project, and it was given mapsof the then-existing precincts and told it would have to work with the PoliceJury with respect to the precincts. Nonetheless, the School Board entirelyreasonably could have, when faced with the NAACP's plan, arrived quicklyat the conclusion that zero precinct splits was significantly more desirablethan 46.
Moreover, in the midst of the controversy, at the behest of the black community,and over the "bitter opposition" of some white constituents, theSchool Board itself appointed a black member to its only vacant seat intime to participate in and vote on the adoption of the Police Jury plan.Defendant tries to minimize this fact by noting that the vote was only sixto five, that Jerome Blunt was appointed to a district that was 89% white,and that Blunt promptly lost in a special election six months later. ThatBlunt was appointed by a bare majority tells us nothing more than that atleast a majority of the white Board members were responsive to the blackcommunity and were not opposed to black representation on the School Board.That Blunt lost his next election can- not, we think, be fairly laid atthe School Board's door, particularly given that the district to which hewas appointed-again, at the behest of George Price and others-was the onlyone with a vacancy. This appointment, particularly when its timing and con-text are considered, indicates that a majority of the white Board membersnot only were not opposed to black representation on the School Board, butaf- firmatively brought it about for the first time in Parish history.
The School Board thus has presented a prima facie case for preclearance.Defendant seeks to rebut this case by presenting what it styles as "direct"and "indirect" evidence of discriminatory purpose.
The "direct" evidence presented by defendant and defendant-intervenorsconsists of the alleged state- ments of three School Board members. We concludethat none of the statements attributed to these Board members, if they werein fact made, show that the Board acted with a discriminatory motivation.The first statement offered by defendant is perhaps the most troubling.S.P. Davis, an attorney representing a plaintiff-intervenor in the Lemonsuit, testified that Board member Henry Burns told him that, while Burnshimself had no opposition to the idea, other members of the Board were "hostileto black repre- sentation on the School Board."16 Plaintiffs did notcross-examine Davis on this point, so we do not know more specifically whatDavis understood Burns to mean by "black representation." Thephrase is subject to at least two interpretations. We would be troubledindeed if Burns was referring to hostility on the part of other Board membersto the presence of black persons as members of the School Board. But, becauseat least six of the School Board members proved their lack of hostilityto this sort of black representation by appointing a black Board member,we do not believe that Burns meant this. If Burns meant, by "blackrepresentation," that other members of the School Board were opposedto the intentional drawing of majority-black districts in order to ensureblack representation on the Board, that is hardly an indication of discriminatorypurpose unless section 5 imposes an affirmative obligation to draw additionalmajority-black districts. There are a host of entirely legitimate reasonsto oppose this sort of district- drawing. A Board member could, for example,be opposed to districts that split numerous precincts or that violated traditionaldistricting principles.
Board member Barry Musgrove's alleged statement to George Price that, whileMusgrove was not personally opposed, other Board members were hostile todrawing majority-black districts is also relied upon by defendant. Musgrovedenies making this statement, [Tr. I, at 56.], but we will assume for thisanalysis that he said what Price says he said. But again, this statementis not evidence of discriminatory purpose. A Board member could have anynumber of perfectly legitimate reasons to oppose the drawing of majority-blackdistricts, particularly in the manner of the NAACP plan. Without more thanPrice's testimony, we will not assume the worst and credit the unnamed SchoolBoard members with an untoward motivation when the statement lends itselfjust as easily to a nondiscriminatory interpretation.
The last Board-member statement emphasized by defendant is that of ThomasMyrick, as testified to by intervenors George Price and Thelma Harry, thatMyrick would not let his seat be taken. But, we do not attribute a racistmotivation to the perfectly under- standable expression by an incumbentof the strong desire not to have his district so changed that his constituencyis obliterated. Even if Myrick's statement was an indication of a discriminatorypur- pose on Myrick's part-which we do not think it was-on this record itwould be inappropriate to attribute such a purpose to the other nine membersof the Board who voted to adopt the Police Jury plan.17
The "indirect" evidence defendant most heavily relies upon isthe "sequence of events leading to the school board's adoption of thepolice jury plan." [Def. Br. at 15.] Defendant argues that these eventsraise an inference that the plan was adopted with a discriminatory purpose.Defendant notes that when the Police Jury plan was first presented to theBoard, the Board declined to adopt it, in part because it pitted two pairsof incumbents against each other. Defendant also emphasizes the Board'sunwillingness to permit participation in the redistricting process by GeorgePrice and the NAACP; most of the re- districting work done by the Boardwas not done publicly. And, defendant argues, and regards as the nail inthe School Board's coffin, that the Board "rushed to adopt the policejury plan" only after it "was confronted with the NAACP's plan."[Def. Br. at 18.] If the only evidence before us were that sum- marizedhere and relied on so heavily by the defendant, we would still have difficultyfollowing its inferential leap. We think that assuming that the quick rejectionof the NAACP plan is probative of a discriminatory purpose requires at leastthat the Board have regarded the NAACP plan as a plausible plan. We haveno evidence that the plan was, as an objective matter, plausible (afterall, it split 46 precincts and is no longer seriously put forward by eitherdefendant or defendant-intervenors). And, we have no indication that theSchool Board itself thought the plan plausible. The existence of the NAACPplan demonstrated to the Board that its efforts to redistrict would be subjectto exacting review and vociferous criticism. The swift selection of theonly plan around that bore the imprimatur of the Attorney General resemblesnot a brazen stroke in the name of racist redistricting but an under- standable,if not necessarily laudable, retreat from a protracted and highly chargedpublic battle. In light of this, and mindful of the Board's demonstrablewill- ingness to ensure black representation on the Board (the creationof a majority-black district would not necessarily lead to the electionof a black Board member, while the appointment of a black Board member unavoidablywould), we think defendant and defendant-intervenors' inference is unjustified.18
At bottom, defendant's argument that the School Board's adoption of thePolice Jury plan rather than something like the NAACP plan runs afoul ofsection 5 is indistinguishable from an argument rejected by the Court inMiller v. Johnson. Here, defendant argues that the School Board has failedto provide an adequate reason explaining why it declined to act on a proposalfeaturing two majority-black districts. In Miller, the "key to theGovernment's position . . . is and always has been that Georgia failed toproffer a nondiscriminatory purpose for its refusal in the first two submissionsto take the steps necessary to create a third majority-minority district."-- U.S. at --, 115 S. Ct. at 2492. The Supreme Court described this positionas "insupportable" and stated that Georgia's adherence to "otherdistricting principles instead of creating as many majority-minority districtsas possible does not support an inference that the plan 'so discriminateson the basis of race or color as to violate the Constitution,' and thuscannot provide any basis under § 5 for the Justice Department's objection."Id. -- U.S. at --, 115 S. Ct. at 2492 (citations omitted). We note that,in Miller, the Department of Justice denied preclearance until the GeorgiaAssembly had drawn three of 11 (or 27%) black majority districts in a Statewith a population that is 27% black. The Supreme Court agreed with the districtcourt that the Department of Justice was engaged improperly in "black-maximization"on a theory of section 5 that the Supreme Court rejected. Id. Here, defendantdenied preclearance noting that the Board had adopted the Police Jury planwhen it had before it a plan that provided for two of 12 (or 18%) majority-blackdistricts in a parish with a voting-age population that is 17.6% black.The key to defendant's position in this case, similarly, is that the SchoolBoard has not provided an adequate explanation for adopting the preclearedPolice Jury plan when it had before it the NAACP plan. As Miller makes clear,the adoption of one nonretrogressive plan rather than another nonretrogressiveplan that contains more majority-black districts cannot by itself give riseto the inference of discriminatory purpose. Defendant here, as it did inMiller, pursues a theory the result of which is that no political subdivisionpresented with a plan that provides for x number of majority- black districtscan ever adequately explain its rea- sons for adopting a plan that providesfor x minus n majority-black districts. The Miller Court rejected this theoryof section 5, and we will not resuscitate it here.
Accordingly, we grant plaintiff Bossier Parish School Board the requesteddeclaratory judgment.
[Maps included as an appendix to the opinion, but omitted from this appendix,are reproduced at 907 F. Supp. at 451-452; the originals are U.S. Exhs.76A and 77F.]
KESSLER, District Judge, concurring in part and dissenting in part.
I concur in the holding of section III(A) of the majority opinion, namely,that section 2 of the Voting Rights Act may not be imported into section5. 42 U.S.C. § 1973c. The statute does not compel such a reading, andall three-judge panels which have ad- dressed the issue have concluded thatsection 2 requirements are not part of section 5. See Texas v. United States,Civ. No. 94-1529, Slip. op. at 2, 1995 WL 456338 (D.D.C. Apr. 24, 1995);Arizona v. Reno, 887 F. Supp. 318, 321-22 (D.D.C. 1995); Georgia v. Reno,881 F. Supp. 7, 13-14 (D.D.C. 1995); New York v. United States, 874 F. Supp.394, 400 (D.D.C. 1994). Sections 2 and 5 are undoubtedly "designedto complement and reinforce each other," Arizona, 887 F. Supp. at 321,but because they "differ in structure, purpose and application,"Holder v. Hall, 512 U.S. 874, --, 114 S. Ct. 2581, 2587, 129 L.Ed.2d 687(1994) (opinion of Kennedy, J.), the inquiries into each section are independent.Our colleagues in Arizona, recently considered the identical issue, andour holding today with respect to sections 2 and 5 is consistent with thatopinion: The School Board may receive clearance under section 5 withoutdemonstrating that its re- districting decision complies with section 2,and the Department may not withhold preclearance merely by establishinga section 2 violation. See Arizona, 887 F. Supp. at 323-24.
As to section III(B) of the majority opinion, how- ever, I cannot in goodconscience agree with the result reached by my two colleagues. The extensiverecord demonstrates that the Bossier Parish School Board did not act with"legitimate, nondiscriminatory motives." New York, 874 F. Supp.at 400. Rather, in light of the impact the School Board's decision willhave on the black community, the long history of discrimination and segregationin the Bossier Parish school system, the perpetuation of the exclusion ofblacks from full participation in the electoral process, the significanttiming of events that led up to the School Board's decision, and the noticeabledepar- tures from normal procedure, I am convinced that the School Boardacted with "the purpose . . . [of] abridging the right to vote on accountof race or color" in violation of the Voting Rights Act, 42 U.S.C.§ 1973c. Accordingly, I would deny pre- clearance, and I respectfullydissent.
I.
Under section 5 of the Voting Rights Act, the bur- den of proving that theadopted plan does not have a discriminatory purpose rests squarely withthe Bossier Parish School Board. Rome v. United States, 446 U.S. 156, 183n. 18, 100 S. Ct. 1548, 1565 n. 18, 64 L.Ed.2d 119 (1980); Georgia v. UnitedStates, 411 U.S. 526, 538, 93 S. Ct. 1702, 1709, 36 L.Ed.2d 472 (1973).As stated succinctly by the majority, if the evidence is equally convincingon either side, the School Board-bearing the risk of nonpersuasion-mustlose. Maj. Op. 446; see McCain v. Lybrand, 465 U.S. 236, 257, 104 S. Ct.1037, 1050, 79 L.Ed.2d 271 (1984) (in the preclearance process,
"the burden of proof (the risk of nonpersuasion) is placed upon thecovered jurisdiction").1 In this case, the evidence is far from beingequally convincing on either side. Not only does the evidence fail to proveabsence of discriminatory purpose, it shows that racial purpose fueled theSchool Board's decision.
II.
The Supreme Court has told us that "[d]etermining whether invidiouspurpose was a motivating factor demands a sensitive inquiry into such circumstantialand direct evidence of intent as may be available." Village of ArlingtonHeights v. Metropolitan Hous- ing Development Corp., 429 U.S. 252, 266,97 S. Ct. 555, 564, 50 L.Ed.2d 450 (1977). Such evidence, the Court stated,includes the impact the state's action has on protected minority groups;the historical background of the challenged decision; the specific sequenceof events leading up to that decision; any substantive departure from thenormal process; and the legislative or administrative history of the deci-sion. Id. 429 U.S. at 266-268, 97 S. Ct. at 564-565. See also Busbee v.Smith, 549 F. Supp. 494, 516-517 (1982), aff'd, 459 U.S. 1166, 103 S. Ct.809, 74 L.Ed.2d 1010 (1983). Applying this legal standard to the recordbefore us, I find that the evidence demonstrates conclusively that the BossierSchool Board acted with discriminatory purpose.2
A.
In Arlington Heights, the Court said that when analyzing the government'spurpose, "an important starting point . . . [is the] impact of an officialaction-whether it 'bears more heavily on one race than another.'" ArlingtonHeights, 429 U.S. at 266, 97 S. Ct. at 563 (quoting Washington v. Davis,426 U.S. 229, 242, 96 S. Ct. 2040, 2049, 48 L.Ed.2d 597 (1976)). The Board'sadoption of a redistricting plan with no majority-black districts undoubtedly"bears more heavily" on the black community in Bossier Parishthan on the white community, because it effectively prevents black votersfrom electing candi- dates of their choice to the School Board.
In Bossier Parish, voting is racially polarized, Stips. ¶¶ 181-196.No black person has ever been elected to the Bossier Parish School Board,Stip ¶ 153, despite the fact that 20.1% of the population of BossierParish is black, Stip. ¶ 5, and almost 30% of its public schools areblack. Stips. ¶¶ 5, 134. Given this context, black voters maywell require a majority-black district in order to have a fair chance ofelecting candidates of their choice. Further, "[b]ecause it is sensibleto expect that at least some blacks would have been elected [to the Board],the fact that none have ever been elected is important evi- dence of purposefulexclusion." Rogers v. Lodge, 458 U.S. 613, 623-24, 102 S. Ct. 3272,3279, 73 L.Ed.2d 1012 (1982). As one federal court of appeals noted, "nothingis as emphatic as zero." United States v. Hinds County School Board,417 F.2d 852, 858 (5th Cir. 1969). The fact is, the Board's plan presentsthe black minority of Bossier Parish with no realistic opportu- nity toelect any candidates of its choice to any of the board seats.
Moreover, as Defendant-Intervenors demonstrated, it was clearly possibleto draw a redistricting plan for the Bossier Parish Schools with one ortwo majority-black districts, and still respect traditional districtingprinciples.3 The School Board admits that it is "obvious that a reasonablycompact black- majority district could be drawn in Bossier City." Stip.¶ 36. But rather than consider either of the alternative proposalsbrought before it or direct their own cartographer to draft one, the SchoolBoard adopted a plan "which guaranteed that blacks would remain underrepresentedon the [School Board] by comparison to their numerical strength in the en-larged community." City of Port Arthur v. United States, 517 F. Supp.987, 1022 (D.D.C. 1981), aff'd, 459 U.S. 159, 103 S. Ct. 530, 74 L.Ed.2d334 (1982). This conscious decision to adopt a plan that effectively excludesminority voters from the political process is probative of discriminatoryintent.
B.
The Supreme Court has held specifically that "the historical backgroundof the challenged decision" is properly part of the purpose inquiryunder the Voting Rights Act. Arlington Heights, 429 U.S. at 267, 97 S. Ct.at 564. Here, the history of discrimination and racism in and out of theschool system demonstrates that the School Board's vote was yet anotherchapter in its long-standing refusal to address the concerns of the blackcommunity of Bossier Parish. Evidence of historical discrimination "isrelevant to drawing an inference of purposeful discrimination, particularlyin cases such as this one where the evidence shows that discriminatory practiceswere commonly utilized . . . and that they were replaced by laws and practiceswhich, though neutral on their face, serve to maintain the status quo."Rogers, 458 U.S. at 625, 102 S. Ct. at 3279.4
It is undisputed that Louisiana and the Bossier school system have a historyof segregation and racial discrimination predating the Civil War. Followingthe passage of the Thirteenth Amendment, Louisiana began what the SupremeCourt has called "unremitting and ingenious" defiance of the Consti-tution, South Carolina v. Katzenbach, 383 U.S. 301, 309, 86 S. Ct. 803,808, 15 L.Ed.2d 769 (1966), by pass- ing laws designed to disenfranchiseblack voters. Stip. ¶ 216. One law prohibited elected officials fromhelping illiterates. Another statute required all voters to use complexapplication forms, prohibited explanation of application questions, andfacilitated wholesale purges by party officials of voters who managed toregister successfully. Id. The new laws reduced black registration by 90percent in the state, leaving only 10 percent of adult black males eligibleto vote. Stip. ¶ 216. Two years later, in 1889, Louisiana's ConstitutionalConvention imposed a "grandfather" clause and educational andproperty qualifications for voter registration. Both provisions were designedto limit black political participation, Stip. ¶ 217, and both succeeded:black males constituted just 4 percent of the state's population. See UnitedStates v. State of Louisiana, 225 F. Supp. 353, 373 (E.D. La. 1963).
In 1921, pursuant to state law, the state Democratic party established anall-white primary. Stips. ¶¶ 220, 222. That same year, the Legislaturereplaced the grandfather clause with a requirement that an applicant "givea reasonable interpretation" of any section of the federal or stateconstitution in order to vote. Stip. ¶ 221. After the all-white primarywas struck down by a federal court, the Democratic party adopted an anti-single-shotlaw, and a majority vote requirement for party officers. Major v. Treen,574 F. Supp. 325, 341 (E.D. La. 1983). The "reasonable interpretation"requirement was finally held unconstitutional by the United States SupremeCourt in 1965. Louisiana v. United States, 380 U.S. 145, 85 S. Ct. 817,13 L.Ed.2d 709 (1965).
In the Bossier school system it was much of the same. Despite the SupremeCourt's decision in Brown v. Board of Education, 347 U.S. 483, 74 S. Ct.686, 98 L.Ed. 873 (1954), de jure segregation was the rule in Louisianapublic schools, and federal courts were forced to order school districtsto comply with federal law. Stip. ¶ 235. Since 1965, the Bossier ParishSchool Board has been the defendant in Lemon v. Bossier Parish School Board,Civ. Act. No. 10,687 (W.D. La., filed Dec. 2, 1964) in which it was foundliable for intentionally segregating the public schools in violation ofthe Fourteenth Amendment. Lemon v. Bossier Parish Sch. Bd., 240 F. Supp.709 (W.D. La. 1965), aff'd, 370 F.2d 847 (5th Cir. 1967), cert. denied,388 U.S. 911, 87 S. Ct. 2116, 18 L.Ed.2d 1350 (1967).
Throughout the late 1960's and early 1970's, the school board sought tolimit or evade its desegre- gation obligations. At one point, the SchoolBoard sought to assign black children of Barksdale Air Force Base personnelto black schools without a right to transfer to white schools, claimingthat they were "federal children" and not within the "jurisdiction"of the school district. Stip. ¶ 237. Circuit Judge Wisdom rejectedthe School Board's "new and bizarre excuse" for rationalizingits denial of the constitutional right of black school children to equaleducational opportunities. Bossier Parish School Board v. Lemon, 370 F.2d847, 849 (5th Cir. 1967).
In 1969, the Fifth Circuit rejected the school board's "freedom ofchoice" plan in Hall v. St. Helena Parish Sch. Bd., 417 F.2d 801 (5thCir. 1969), and in 1970, after "protracted litigation," rejectedanother inadequate remedial plan proposed by the district in Lemon v. BossierParish Sch. Bd., 421 F.2d 121 (5th Cir. 1969).
In 1971, the court held unconstitutional the School Board's plan to assignstudents to one of two schools in Plain Dealing based on their test scores.Lemon v. Bossier Parish Sch. Bd., 444 F.2d 1400 (5th Cir. 1971). In 1979,the School Board filed a motion seeking a declaration of unitary statusand a release from fur- ther court supervision. The motion was denied, andthe school district has yet to be declared a unitary system. Stip. ¶239. Since 1980, despite the School Board's continuing duty to desegregate,the number of elementary schools with predominately black enrollments hasincreased from one to four. To this day, the School Board remains underdirect federal court order to remedy any remaining vestiges of segregationin its schools.
The Board has also failed to honor the Lemon court's order to maintain aBiracial Committee to "recommend to the School Board ways to attainand maintain a unitary system and to improve education in the parish."Stip. ¶ 111. The committee met only 2 or 3 times, and only the blackmembers attended. For decades following the court's order, the Board ignoredthis requirement altogether. Stip. ¶ 112. In 1993, the Board finallyestablished a similar committee, but disbanded it after three months because,according to School Board Member Barry Musgrove, "the tone of the committeemade up of the minority members of the committee quickly turned toward becominginvolved in policy." Stip. ¶ 116. What exactly the Committee wassupposed to become involved in, if not policy, is unclear. What is clearis that the Board's unilateral dismantling of the Committee was in directviolation of a federal court order to address the concerns of the blackcommunity.
The School Board's adoption of the Police Jury plan must be evaluated inthe framework of this long history of official discrimination. It may seemunduly harsh to consider racism and discrimination dating back to the CivilWar, but this history reveals an insidious pattern which cannot be ignored,and must inform our decision today. Like the school boards and legislaturesbefore it, the Bossier Parish School Board's actions effectively eliminatethe black com- munity from the political process. So long as black votershave no electoral power, they have no voice, and the School Board can safelyignore their con- cerns.
C.
The Supreme Court has told us that "the specific sequence of eventsleading up to the challenged de- cision may shed some light on the decisionmaker'spurpose." Arlington Heights, 429 U.S. at 267, 97 S. Ct. at 564. Here,the sequence of events leading up to the adoption of the Police Jury plansupplies further proof of discriminatory purpose.
The redistricting process began in May, 1991, when the Board decided todevelop its own plan rather than adopt the one accepted by the Police Jury.Given the fact that the next School Board election was not scheduled untilOctober, 1994, there was no need for hasty Board action. The Board hiredGary Joiner, a cartographer, who had drawn the Police Jury plan. He washired to perform 200-250 hours of work, far more time than would be neededsimply to recreate the Police Jury plan. Stip. ¶ 86. On July 29, 1991,the Police Jury plan was precleared by the Justice Department. On September5, 1991, however, the School Board decided not to adopt the Police Juryplan, largely because it would pit incumbents against each other. Over thecourse of the next year, School Board members considered a number of redistrictingoptions. Mr. Joiner met privately with School Board members and demonstrateddifferent possibilities to them on his computer. Stip. ¶ 96. Thesemeetings were not open to the public nor were there any recorded minutesor published notice of the meetings.
While the School Board was meeting and planning in private, the black communitywas trying, unsuc- cessfully, to participate in public. In March of 1992,George Price, on behalf of a coalition of black com- munity groups, wrotethe School Board asking to participate in its redistricting process. Stip.¶ 93. Neither the Board nor the Superintendent responded to this request.Id. In August of 1992, Mr. Price sent another letter asking specificallyto be involved in every aspect of the redistricting process. Again, no response.Stip. ¶ 94.
Frustrated by the School Board's unresponsive- ness, Price contacted theNAACP Redistricting Project in Baltimore. The Project developed a partialplan for Price to present to the School Board that consisted of two majority-blackdistricts. Stip. ¶ 98. The plan did not show the other ten districtsthat made up the Parish. When Price showed this plan to a school districtofficial, he was told that the plan was unacceptable because it only showedtwo districts. Price went back to the NAACP and a new plan was drawn up.
Then, on September 3, 1992, when Price appeared on behalf of the black communityat a public hearing and presented a new plan showing all twelve districts,including two majority-black districts, the Board dis- missed it summarily,claiming-incorrectly-that they could not consider any plan that split precinctlines.5 Stip. ¶ 102.
At its next meeting, on September 17, 1992, without any further consultationwith its cartographer or attempt to address the concerns of the black com-munity, the School Board passed a motion of intent to adopt the Police Juryplan, which had no majority- black districts. At that meeting, Mr. Priceagain presented the NAACP proposal. Stip. ¶ 106. Instead of discussingthe plan with Mr. Joiner, or asking him to further analyze the possibilityof drawing black- majority districts without splitting precincts (the SchoolBoard's purported reason for rejecting the plan), the Board simply passedthe motion of intent to adopt the Policy Jury plan at the next School Boardmeeting. Id.
One week later, on September 24, 1992, an overflow crowd attended a publichearing on the redistricting plan. Fifteen people spoke against the SchoolBoard's proposed plan, most of whom objected because it would dilute minorityvoting strength. Not a single person spoke in favor of the plan. Stip. ¶108. At this hearing, Mr. Price presented the Board with a petition signedby more than 500 Bossier Parish citizens, asking the Board to consider analternative redistricting plan. Id.
Despite the one-sided input from Bossier citizens, and despite the factthat the Board was under no time pressure to decide the issue, the Boardvoted one week later to adopt the Police Jury plan. As with the meetingsof September 3 and September 17, the Board's minutes of the October 1, 1995meeting re- flect little substantive consideration of the Police Jury plan,other than to approve the Police Jury plan as quickly as possible.6 BoardMember Myrick testi- fied that the Board adopted the plan that evening becauseit was "expedient."
The Police Jury plan only became "expedient" when the School Boardwas publicly confronted with alternative plans demonstrating that majority-blackdistricts could be drawn, and demonstrating that political pressure fromthe black community was mounting to achieve such a result. The common-senseunderstanding of these events leads to one conclusion: The Board adoptedthe Police Jury plan-two years before the next election-in direct responseto the presentation of a plan that created majority-black districts. Facedwith growing frus- tration of the black community at being excluded fromthe electoral process, the only way for the School Board to ensure thatno majority-black districts would be created was to quickly adopt the PoliceJury plan and put the issue to rest. This sequence of events of "publicsilence and private decisions,"7 culminat- ing in the Board's hastydecision, is evidence of the Board's discriminatory purpose.
D.
The fact that the Board adopted a plan which de- parts substantively fromits earlier districting plans and which ignores factors it has usually consideredof paramount concern, is probative of discriminatory purpose, "particularlyif the factors usually con- sidered important by the decision-maker stronglyfavor a decision contrary to the one reached." Arlington Heights, 429U.S. at 267, 97 S. Ct. at 564. The most glaring example is that the adoptedplan forced incumbents to run against each other. In- cumbency protectionhas always, understandably, been a high priority for both the Police Juryand School Board. That was the reason there were different redistrictingplans in effect for each entity during the 1980s. That was also the reasonthe Police Jury refused to conduct a joint redistricting effort with theschool board after 1990.
Moreover, the plan adopted by the Board contra- venes other traditionaldistricting principles. For example, it creates one district containingalmost half of the geographic area in the Parish. Stip. ¶ 140. Severalof its districts are not compact, according to the Board's own consultant.Stip. ¶ 139. In ad- dition, the plan creates election districts withoutany schools in them and ignores school attendance boundaries. Stip. ¶141. Finally, the plan does not respect communities of interest in BossierParish. Stips. ¶¶ 135-137.
Perhaps if the Board had ignored one or two of these standard redistrictingcriteria, it would not be noteworthy, but when the Board's plan plainlyvio- lates a whole number of redistricting principles, we have further evidencefrom which to infer that the Board's decision was fueled by discriminatorypur- pose.
E.
In setting forth the evidentiary categories to be evaluated in determiningwhether invidious purpose was a motivating factor, the Supreme Court inAr- lington Heights noted that its listing of such cate- gories was notexhaustive. 429 U.S. at 268, 97 S. Ct. at 565. Thereafter, in Rogers v.Lodge, 458 U.S. 613, 102 S. Ct. 3272, 73 L.Ed.2d 1012 (1982), the Courtcon- sidered additional political and sociological factors that underscoredthe state's discriminatory purpose. In Rogers, the Court struck down BurkeCounty, Georgia's at-large election system, holding that it violated theFourteenth and Fifteenth Amendments because the state had acted with discriminatorypurpose. The Court considered important the fact that "lingering effectsof past discrimination," caused socioeconomic disparity between whitesand blacks. Id. 458 U.S. at 626, 102 S. Ct. at 3280 (citations omitted).The Court also said that it was important to consider the educational disparitybetween whites and blacks. Id. 458 U.S. at 624, 102 S. Ct. at 3279. Here,it is undisputed that black citizens in Bossier Parish suffer a markedlylower socioeconomic status than their white counterparts, and that the differenceis traceable to the legacy of racial discrimination in the Parish. Stip.¶ 200.
According to the 1990 Census,8 the poverty rate for blacks (44.7%) is nearlyfive times the rate for whites (9.1%). The per capita income of blacks ($5,260)is only 40% of that enjoyed by whites ($12,966). The unemployment rate forblacks age 16 and over (22.4%) is nearly four times that for whites. Thepercentage of blacks over 25 without a high school degree (40.6%) is overtwice the rate of whites (16.7%). Only 4.8% of whites age 25 and older haveless than a ninth grade education, while 22.8% of blacks in the same agecategory have less than a ninth grade education. Almost 84% of whites 25years or older were at least high school graduates, compared to only 58.7%of blacks. Also, 17% of whites 25 years or older had at least four yearsof college, compared to only 8.1% of blacks. In 1990, only 2.9% of the whitelabor force were unemployed, while 9.1% of the black labor force was unemployed.Finally, whites are five times as likely to own a car as blacks, a significantfact in a rural parish where voting places may be distant from people'shomes.
It is also undisputed that the depressed socio- economic and educationallevels of blacks within Bossier Parish make it hard for them to obtain neces-sary electoral information, organize, raise funds, campaign, register, andturn out to vote, and this in turn causes a depressed level of politicalparticipation for blacks within Bossier Parish. Stip. ¶ 213. Like thestate representative in Burke County in Rogers, the School Board membersin Bossier Parish "have retained a system which has minimized the abilityof [Bossier Parish] Blacks to participate in the political system."458 U.S. at 626, 102 S. Ct. at 3280 (citations omitted).
Thus, the additional factors identified by the Supreme Court in Rogers,are met foursquare in this case. As the Court explained in Rogers, "[n]eces-sarily, an invidious discriminatory purpose may often be inferred from thetotality of the relevant facts, including the fact, if it is true, thatthe law bears more heavily on one race than another." 458 U.S. at 618,102 S. Ct. at 3276 (quoting Washington v. Davis, 426 U.S. at 242, 96 S.Ct. at 2049).
F.
We also have before us statements made by three School Board members aboutminority representation on the Board. School Board member Henry Burns saidthat while he "personally favors having black representation on theboard, other school board members oppose the idea." U.S. Exh. 106 ¶17. School Board member Barry Musgrove said that "while he sympathizedwith the concerns of the black com- munity, there was nothing more he coulddo . . . on this issue because the Board was 'hostile' toward the idea ofa black majority district." Id. And School Board member Thomas Myricktold George Price of the NAACP that "he had worked too hard to get[his] seat and that he would not stand by and 'let us take his seat awayfrom him.'" U.S. Exh. 106 ¶ 29, D-I Exh. E ¶ 19.
These statements standing alone would certainly be insufficient to showdiscriminatory purpose. How- ever, considered in the context of the SchoolBoard's discriminatory past, the efforts to preserve segrega- tion and excludeblack representation from the Board, the sequence of events leading up tothe Board's decision, and the anomalous nature of the plan itself, the statementsadd further proof of improper motive. While the majority is correct thatthe statements are subject to different interpretations, Maj. Op. at 447-448,given all the evidence previously set forth showing discriminatory purpose,and the efforts of the past fifty years to desegregate the schools, it seemsfair to conclude that at least some School Board Members were openly "hostile"to black representation on the school board.9
* * * * *
For all the foregoing reasons, the only conclusion that can be drawn fromthe evidence is that the Bossier School Board acted with discriminatorypur- pose. The adopted plan has a substantial negative impact on the blackcitizens of Bossier Parish. The sequence of events leading up to the decisionshow conclusively how the School Board excluded the black community fromthe redistricting process and rushed to adopt the Police Jury plan onlywhen faced with an alternative plan that provided for black repre- sentation.The plan itself ignores and overrides a number of the School Board's normallyparamount interests. And the statements of some School Board members certainlylend strength to the other evi- dence. "Justice is blind; but courtsnevertheless do see what there is clearly to be seen."10 We cannotblind ourselves to the reality of the situation and the record before us.The Bossier School Board acted with discriminatory purpose in adopting thePolice Jury Plan.11
III.
In the face of this considerable evidence, the School Board has offeredseveral reasons for its adoption of the Police Jury plan. Even the majorityadmits that a number of these reasons "clearly were not the real reasons,"Maj. Op. at 446, n. 14, i.e., the School Board lied.
For example, at one point, the School Board argued that it adopted the PoliceJury plan (on October 1, 1992) to comply with Shaw v. Reno, 509 U.S. 630,113 S. Ct. 2816, 125 L.Ed.2d 511 (1993) (decided June 28, 1993), which wasdecided nine months after the Board adopted its plan. Although the Boarddoes not lie as fragrantly in its remaining rationales, they are equallyunconvincing.
The School Board claims that it could not adopt any plan with majority-blackdistricts because such a plan would require precinct-splitting, which violatesstate law and would be prohibitively expensive. The evidence shows conclusively,however, that through- out the redistricting process, the School Board waswilling to split precincts to do just that, i.e., to split precincts solong as it was for the protection of incumbents. It was only after the blackcommunity presented its alternative plan that the School Board profferedthe "no precinct-splitting" rationale.
The majority agrees that when "the School Board began the redistrictingprocess, it likely anticipated the necessity of splitting some precincts."Maj. Op. at 447. The School Board hired Mr. Joiner at the beginning of theprocess to develop the plan, fully intending that he would split precincts(that is why he needed between 200-250 hours to complete the job). At theSeptember 5, 1991 School Board meeting, the first School Board meeting afterthe Police Jury plan had been precleared by the Department, Mr. Joiner presentedproposed maps that showed split precincts. Further, it is now undisputedby the School Board that splitting precincts does not violate state law.While the School Board itself may not split precincts, police juries havethe authority to establish and modify precinct lines, Stips. ¶¶13-23, and many do so when requested by a school board. The Bossier ParishPolice Jury itself created 13 new precincts in 1991, Stip. ¶ 60, andthe School Board has stipulated that the Police Jury was currently consideringconsolidating some of its precincts for other reasons. Stip. ¶ 61.
Once again, it was only after being presented with the black community'splan, and the possibility of a majority-black district in the ensuing election,that the Board totally reversed itself and "arrived quickly,"Maj. Op. at 447, at the conclusion that it was against splitting districts.Nor did the School Board voice its concern about too many precinct splitscausing higher election costs in its initial submission to the Department.U.S. Exh. 102 at 9 (testimony of Blunt). Moreover, the Board never estimatedthe cost of splitting precincts before it voted to adopt the Police Juryplan. Id. Obviously, "cost" did not actually motivate the SchoolBoard's decision at the time it was made. The focus of our inquiry is whatmotivated the Board at the time of its decision, not whether post-decisionrationales would have been legitimate reasons. The Board's excuses on thesignificant subject of precinct-splitting are clearly not justified.
The final reason offered by the School Board is that the Police Jury planguaranteed preclearance, that is, the Department would approve the SchoolBoard's plan because it was identical to the Police Jury plan which wasprecleared on July 29, 1991. It is clear, however, that "guaranteedpreclearance" was not the School Board's motive as it began the redistrictingprocess, because if so, it would not have waited until October 1, 1992-almost14 months later-to adopt the Police Jury plan. If guaranteed preclearancewas what the Board wanted, it would have acted soon after the Police Juryplan was precleared by the Justice Department on July 29, 1991. As withthe precinct- splitting issue, this rationale also surfaced only after theSchool Board was faced with alternative plans that could conceivably leadto majority-black districts and an elected black member.12 The evidenceshows that School Board members adopted the Police Jury plan not becauseit "guaranteed preclearance," but because given growing dissatisfactionin the black community, it was the only way to ensure that there would beno black majority districts.
The Board's rationales simply do not withstand a common-sense reading ofthe record. Some of the rationales are untrue on their face, and othersdo not bear even minimum scrutiny. Most of the alleged justifications areabsent from the public record, so the School Board asks us to accept theirpost-hoc rationalizations rather than focus on their motive at the timeof the decision. "[I]nvidious purpose may often be inferred from thetotality of the relevant facts." Washington v. Davis, 426 U.S. 229,242, 96 S. Ct. 2040, 2048.
The evidence is clear that racial purpose was "a motivating factorin the [Board's] decision" to adopt the Police Jury plan. ArlingtonHeights, 429 U.S. at 265-266, 97 S. Ct. at 563 (emphasis added). The burdenof proof is on the School Board to show absence of discriminatory purpose,Rome v. United States, 446 U.S. 156, 183 n. 18, 100 S. Ct. 1548, 1565 n.18, 64 L.Ed.2d 119 (1980), and it has woefully failed to satisfy that burden.Its rationales are so flagrantly pre- textual as to further corroboratethe conclusion that the School Board acted with discriminatory purpose.
IV.
The School Board claims that the Supreme Court's recent decision in Millerv. Johnson, -- U.S. --, 115 S. Ct. 2475, 132 L.Ed.2d 762 (1995), precludesit from adopting any majority-black districts because such districts wouldconstitute "racial gerrymander- ing" in violation of the EqualProtection Clause. The School Board's reading of Miller is erroneous fora number of reasons.
First, this is simply not a Miller case. We do not have any plan with majority-blackdistricts to evaluate, no less a plan where, as in Miller, "race wasthe overriding and predominant force in the districting determination."Id. -- U.S. at --, 115 S. Ct. at 2485. Since the School Board chose to adoptthe Police Jury plan, it would be sheer speculation on the basis of thisrecord to determine whether "race was the predominant factor motivating,"id. -- U.S. at --, 115 S. Ct. at 2485, some other hypothetical redistrictingplan. Defendant and Defendant-Inter- venors are not even arguing that anyparticular plan should have been adopted by the School Board. How, in theabsence of any concrete plan, can a court decide whether a plaintiff hasproven that the government "subordinated traditional race-neutral districtingprinciples, including but not limited to compactness, contiguity, [and]respect for political subdivisions or communities"? Id. -- U.S. at--, 115 S. Ct. at 2488. The court would be speculating, and the prohibitionagainst advisory opinions prohibits us from answer- ing such hypotheticallegal questions. See Flast v. Cohen, 392 U.S. 83, 96-97, 88 S. Ct. 1942,1950-51, 20 L.Ed.2d 947 (1968) (such suits lack the "clash of adver-sary argument exploring every aspect of a multi- faceted situation embracingconflicting and demand- ing interests").
The Court was extraordinarily sensitive in Miller "to the complex interplayof forces that enter a legislature's redistricting calculus." Miller,-- U.S. at --, 115 S. Ct. at 2488. It recognized that legisla- tures engagedin this difficult process "will, for example, almost always be awareof racial demo- graphics; but it does not follow that race pre- dominatesin the redistricting process." Id. (citations omitted). The Court alsounderstood the delicate line-drawing that fact-finders would have to engagein:
"The distinction between being aware of racial considerations and beingmotivated by them may be difficult to make. This evidentiary difficulty,together with the sensitive nature of redistricting and the presumptionof good faith that must be accorded legislative enactments, requires courtsto exercise extraordinary caution in adjudicating claims that a state hasdrawn district lines on the basis of race. The plaintiff's burden is toshow, either through circumstantial evidence of a district's shape and demographicsor more direct evidence going to legislative purpose, that race was thepredominant factor motivating the legislature's decision . . .".
Id.
It would be impossible, without an actual plan, without "circumstantialevidence of a district's shape and demographics," without a showingthat "the legislature subordinated traditional race-neutral districtingprinciples . . . to racial considerations," for a court to make theinformed and sophisticated judgment called for by the Supreme Court in Miller.If and when the School Board does adopt a plan with one or more majority-blackdistricts, the court may then determine whether that plan violates Miller.
Second, the Court made clear in Miller by its re- peated citations to anddiscussion of Arlington Heights, that it was not altering the legal standardby which we assess violations of Section 5. See, e.g., Miller, -- U.S. at--, 115 S. Ct. at 2487 (quoting Arlington Heights for proposition that inpurpose in- quiry, courts must look at impact and "other evidence ofrace-based decisionmaking"). See also id. -- U.S. at --, 115 S. Ct.at 2483. Plaintiffs must still prove the absence of discriminatory purpose,applying the standards set forth in Arlington Heights and related casesin the voting rights area, such as Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980) and Rogers v. Lodge, 458 U.S. 613, 102 S.Ct. 3272. As the evidence shows, the School Board has made no such showing.The School Board would, through its reading of Miller, essentially undercutthe vitality of Arlington Heights in a Section 5 case. That was not theintent of the Supreme Court.
Third, assuming arguendo, the existence of some hypothetical plan whichcontains one or more majority-black districts (we do not know which sincewe do not have a plan before us), the record makes clear that it is possibleto draw at least one such district in Bossier Parish, consistent with Millerand Shaw v. Reno, 509 U.S. 630, 113 S. Ct. 2816, 125 L.Ed.2d 511 (1993).By affirming the race-conscious California redistricting plan in DeWittv. Wilson, 856 F. Supp. 1409 (E.D. Cal. 1994) (decided the same day as Miller),aff'd, -- U.S. --, 115 S. Ct. 2637, 132 L.Ed.2d 876 (1995), the SupremeCourt made clear that considering race in redistricting, by itself, doesnot automatically trigger strict scrutiny. In DeWitt, the district courtfound that the California plan "evidences a judicious and proper balancingof the many factors appropriate to redistricting, one of which was the considerationof the application of the Voting Rights Act's objective of assuring thatminor- ity voters are not denied the chance to effectively influence thepolitical process." 856 F. Supp. at 1413-14.
As noted earlier, Miller recognizes that "tradi- tional race-neutraldistricting principles [such as] compactness, contiguity, and 'respect forpolitical subdivisions' . . . can defeat a claim that a district has beengerrymandered on racial lines." Miller, -- U.S. at --, 115 S. Ct. at2488 (citations omitted). As discussed in detail above, see Section II(D),supra, the alternative plans presented to the School Board and this courtdo rely upon "traditional districting prin- ciples." The districtsin the illustrative plans are contiguous, reasonably compact, and respectcom- munities with actual shared interests. See Testi- mony of Price; Testimonyof Hawkins; Stips. ¶¶ 181-95. Moreover, at least one of the alternativeplans would unite a predominantly black residential area, which is splitunder the Board's plan. "[W]hen members of a racial group live togetherin one community, a reapportionment plan that concentrates members of thegroup in one district and excludes them from others may reflect wholly legitimatepurposes." Shaw v. Reno, 509 U.S. at --, 113 S. Ct. at 2826 (1993).Thus, assuming these districts existed-and they do not-the School Boardcould not meet its burden under Miller to show that race rather than traditionaldistricting principles was the predominant force.
For all of these reasons, the School Board's re- liance on Miller v. Johnsonis unpersuasive.
V.
The evidence in this case demonstrates overwhelm- ingly that the SchoolBoard's decision to adopt the Police Jury redistricting plan was motivatedby discriminatory purpose. The adoption of the Police Jury plan bears heavilyon the black community be- cause it denies its members a reasonable opportunityto elect a candidate of their choice. The history of discrimination by theBossier School System and the Parish itself demonstrates the Board's continuedrefusal to address the concerns of the black com- munity in Bossier Parish.The sequence of events leading up to the adoption of the plan illustratethe Board's discriminatory purpose. The School Board's substantive departuresfrom traditional districting principles is similarly probative of discriminatorymotive. Three School Board members have acknowl- edged that the Board ishostile to black representa- tion. Moreover, some of the purported rationalesfor the School Board's decision are flat-out untrue, and others are so glaringlyinconsistent with the facts of the case that they are obviously pretexts.
* * * * * *
Sometimes we need to step back and look at first principles. Congress passedthe Voting Rights Act to combat the "unremitting and ingenious defianceof the Constitution" by several states, South Carolina v. Katzenbach,383 U.S. 301, 309, 86 S. Ct. 803, 808, Louisiana among them. The BossierSchool Board continues to resist the Constitution, through its in- genious,if subtle, discrimination against the black citizens of Bossier Parish.We are long past the point where discrimination can be easily proven byuse of racial epithets, racial categories or openly exclusion- ary votingrequirements. "The Voting Rights Act was aimed at the subtle, as wellas the obvious, state regulations which have the effect of denying citizenstheir right to vote because of their race." Allen v. State Board ofElections, 393 U.S. 544, 565, 89 S. Ct. 817, 831, 22 L.Ed.2d 1 (1968). Inthis case, the School Board's decision to adopt the Police Jury plan wasa thinly-veiled effort to deny black voters a meaningful opportunity forrepresentation on the School Board.
The burden is on the School Board to show lack of discriminatory purpose.Because the School Board's proffered reasons are pretextual, it has notmet its burden under section 5 of the Voting Rights Act, and its requestfor pre-clearance must be denied.
APPENDIX D
[CAPTION OMIITTED]
FINAL STIPULATIONS OF FACT AND LAW
The parties in the above-captioned case respectfully submit the followingstipulations of fact and law.
STIPULATIONS OF FACT
Background, Method of Election, and Demographics
1. Bossier Parish is located in northwest Louisiana, bordered at the northby the State of Arkansas. The parish seat is Benton, but the major cityis Bossier City. Benton is in the northern part of the parish, and BossierCity is in the south-central portion.
7. According to the 1980 Census, Bossier Parish has a total population of80,721 of whom 63,127 (78.2 percent) were non-Hispanic white persons and15,024 (18.61 percent) were non-Hispanic black persons.
8. According to the 1980 Census, Bossier Parish had a total voting age populationof 54,545 of whom 43,620 (79.97 percent) were non-Hispanic white personsand 9,315 (17.08 percent) were non-Hispanic black.
9. There are four municipalities located in Bossier Parish: Benton (theparish seat), Bossier City, Haughton and Plain Dealing (one very small portionof the City of Shreveport is also located in Bossier Parish).
10. According to the 1990 Census, Bossier City had a total population of52,721 persons, of whom 9,463 (17,95%) were non-Hispanic black persons.Bossier City had a total voting age population of 37,455 of whom 5,659 (15.11%)were non-Hispanic black persons. Thus, more than 50 percent of the blackpopulation of Bossier Parish is concentrated within the City of Bossier.The remainder is concentrated in the areas of Benton (2,047 residents, ofwhom 41.3 percent are non-Hispanic black persons); Plain Dealing (1,074residents, of whom 33.0 percent are non-Hispanic black persons); (Haughton(1,664 residents, of whom 464, or 27.9 percent are non-Hispanic black persons);and the unincorporated community of Princeton (635 persons, of whom 500,or 78.5% are non-Hispanic black persons).
Section 5 Preclearance Review
11. On May 28, 1991, the Bossier Parish Police Jury submitted its 1991 redistrictingplan to the Department of Justice for preclearance under Section 5 of theVoting Rights Act, 42 U.S.C. 1973c. The plan featured twelve single-memberdistricts, all twelve of which had a majority of white persons. During the1990-1991 Police Jury redistricting process leading up to the preclearancesubmission, no alternative plan featuring black-majority districts had beenpresented. An April 30, 1991 letter detailing complaints regarding the redistrictingprocess from the Concerned Citizens of Bossier Parish, a local black organization,was not included in the preclearance submission. In a letter dated July29, 1991, the Department of Justice precleared the Police Jury plan.
12. On January 4, 1993, the Bossier Parish School Board submitted its redistrictingplan to the Justice Department for preclearance review. The plan submittedwas identical to the Police Jury Plan precleared in 1991. During the 1991-1992redistricting process leading up to that submission, an alternative planwas presented which demonstrated that two black-majority districts couldin fact be drawn within Bossier Parish. During that same period of time,police jury elections occurred under the new police jury redistricting planwhich shed light on voting patterns within Bossier Parish. In a letter datedAugust 30, 1993, the Justice Department objected to the School Board plan.
Redistricting in Bossier Parish, Louisiana
13. Louisiana state law provides that the parish governing body has theauthority to draw, cut, or consolidate election precincts. In Bossier Parish,that body is the Police Jury. State law also provides that precincts mustbe wholly contained within a police jury or other election district.
14. Pursuant to the relevant state laws in effect at the time, the parishpolice jury was to draw its redistricting plan (where necessary due to populationshifts and the one-person, one-vote requirement) in 1991, making what precinctadjustments were necessary to accomplish that redistricting. Once policejury districts and election precincts were drawn by the police jury, theparish school board would be able to conduct its own redistricting (if necessary).
15. State law further provided that police juries could not subdivide precinctsduring 1991, except for subdivisions occasioned by redistricting, whichcould be adopted during a 45-day "window" between April 1, 1991and May 15, 1991. Louisiana R.S. 18:532.1 H(1).
16. Louisiana Revised Statutes 18:532.1 H(2) allows a parish to divide aprecinct into two or more precincts by visible features which are censustabulation boundaries during April 1, 1991 through May 15, 1991.
17. Louisiana Revised Statues 18:532.1 H(2)(d) provides that if the Departmentof Justice should object to a parish reapportionment plan, then that parishmay divide a precinct into two or more precincts by visible features whichare census tabulation boundaries "in order to satisfy said objectionsof the Department of Justice."
18. There are no requirements for minimum populations in a precinct, eitherby total population, voting age population, or registered voters.
19. State law further provided that after redistricting in 1991, parishescould not consolidate precincts until January 1, 1993. Louisiana R.S. 18:532.1H(2).
20. Pursuant to the same statutory scheme, school boards in Louisiana normallywould redistrict after the police jury. Where, as in Bossier Parish, schoolboards had the same number of seats as the police jury in a particular parish,that school board could not change, split or consolidate the precincts establishedby the police jury, but instead had to use those precincts as units forredistricting.
21. Louisiana Revised Statutes, Title 17, Section 71.3E(1) and (2) readsas follows:
"E.(1) The boundaries of any election district for a new apportionmentplan from which members of a school board are elected shall contain wholeprecincts established by the parish governing authority under R.S. 18:532or 532.1.
(2)(a) Notwithstanding the provisions of R.S. 17:71(E)(1) or any other lawto the contrary, if a school board is unable to meet the federal guidelineof plus or minus five percent deviation in the creation of its reapportionmentplan through the use of whole precincts, the school board may, in the creationof its reapportionment plan, divide a precinct into portions which are boundedby visible features which are census tabulation boundaries. No such precinctshall be divided into more than two school board districts. No school boarddistrict shall contain more than two divided precincts.
(b) The provisions of this Paragraph shall be applicable only in cases inwhich the number of members of the school board is not equal to the numberof members of the parish governing authority of the parish in which theschool board is domiciled.
(c) The provisions of this Paragraph shall not be construed as authorityfor a school board which has adopted or accomplished reapportionment oris able to reapportion itself using whole precincts to divide precincts.Any plan adopted by a school board in contravention of this Subsection shallbe null and void.
(d) The provisions of this Paragraph shall become null and void on December31, 1992, unless a school board received an objection letter to its reapportionmentplan from the Department of Justice. In such event the school board shalluse the provisions of this Paragraph to satisfy the objections of the Departmentof Justice if said objections would require a precinct to be divided andthe provisions of this Paragraph shall be null and void after such reapportionmentis complete."
22. Nonetheless, it is quite common for parish school boards in Louisiana,even those with the same number of members as their parish police jury,to draw redistricting plans different from the respective police jury redistrictingplans. For example, of the nine school board redistricting plans drawn by
plaintiff's expert Gary Joiner in which the school board and police juryhad the same number of members, five have different plans. Indeed, BossierParish had different redistricting plans for its school board and policejury throughout the 1980s.
23. Moreover, school boards redistricting during the early 1990s were alwaysfree to request precinct changes from the Police Jury necessary to accomplishtheir redistricting goals. In fact, the DeSoto Parish and Vernon ParishSchool Boards employed this method successfully during their recent redistrictings.Joiner testified at deposition that such a practice "is not unheardof, it has been done in other places."
24. School boards and police juries have different needs and different reasonsfor redistricting, and thus have legitimate reason for drawing differentredistricting plans. For example, police juries are concerned with roadmaintenance, drainage, and in some cases garbage collection, and the levelof demand for such services in each district is a concern. School boardmembers, by contrast, are typically concerned with having a public schoolor schools in each district. The current (1991) Bossier Parish Police JuryPlan does not have a public school in each district.
25. Louisiana Revised Statutes, Title 17, Section 71.3E(1) and (2) is raciallyneutral. Its purpose is solely to promote electoral uniformity and stability.1
Bossier Parish Police Jury History and Redistricting Process
26. Incumbency protection considerations come into play in the redistrictingof the Bossier Parish Police Jury, and did so in 1982. Incumbency protectionhas always been a consideration for the Police Jury. Among the primary redistrictingcriteria employed by the Police Jury during the 1980s redistricting processwere one-person, one-vote considerations and respecting each incumbent'swishes regarding the configuration of his own district. According to PoliceJuror James Elkins and then-Parish Administrator James Ramsey, incumbencyprotection also was the reason the Parish Police Jury and School Board chosedifferent redistricting plans in the 1980s.
27. Jerome Darby, who is black, was elected to the Police Jury in 1983.He currently is serving his third term as a Police Juror.
28. The Police Jury has a President and Vice President, who are electedfrom among the Police Jury members to one-year terms. For at least severaldecades, it has been the custom that the Vice President ascends to the Presidencyupon the vote of the full Police Jury. Police Juror Burford testified atdeposition that such a succession is "almost automatic." Evenwhen a sitting President took the rare step of running for reelection tothe Presidency, the Police Jury followed the tradition of voting the VicePresident into the Presidency. In the last 30 years, every white sittingVice President eligible to serve as a Police Juror the following year hasbeen elevated to the Presidency.
29. Jerome Darby is the only black Police Juror ever to serve as Vice President.In January 1991, the Police Jury voted not to elevate Darby to the Presidency.This occurred just a few months before the adoption of the 1991 Police Juryredistricting plan.
30. Paul Caplis, a sitting Police Juror at that time, has testified at depositionthat Darby was passed over for the Presidency "solely because he wasblack." Bob Burford, also on the Police Jury at that time, describesthe Police Jury vote to deny Darby the Presidency as a "miscarriageof justice" which constituted "failing to recognize him as anequal." Asked why he thought the majority of Police Jurors voted againstDarby, Burford replied that, although none of Darby's opponents explicitlytold Burford so, Burford "thought it was because he was black."Burford, in fact, has served as President though he has served less timeon the Police Jury that Darby. Indeed, every Police Juror elected to officein 1983 or before has become President, except Jerome Darby.
31. There are other indications that the Police Jury operated in an atmosphereof racial prejudice. For example, in response to a deposition question,Police Juror "Pete" Glorioso identified the Shreveport Times asthe newspaper with the largest circulation in the area; when asked to identifythe newspaper read most widely by blacks, he answered, "[A]ny one thatthey could get free." He further added that "some papers throwaway free papers," and that at one time the Bossier Press "threwall the free papers to every household."
32. United States Exhibit 1 lists the members of the Bossier Parish PoliceJury, and their corresponding districts, at the time of the 1990-1991 redistrictingprocess. James Elkins was President at that time. Except for Jerome Darby,every Police Juror at that time was white.
33. At the November 13, 1990 meeting of the Bossier Parish Police Jury,the Jury authorized a contract with Gary Joiner of Petroleum Graphics todevelop a redistricting plan. Mr. Joiner had been interviewed by ParishAdministrator James Ramsey, who had arranged for Joiner to make a presentationto the Police Jury. Ramsey told Joiner that Joiner was required to "workwith twelve members" of the Police Jury, by which he meant that Joinerhad to be responsive to their concerns. To that end, Ramsey suggested thatJoiner begin his work by holding one-on-one meetings with individual PoliceJurors, at which each Juror could give Joiner input regarding the changesto be made to his own district.
34. Police Jurors were aware of the black population percentages in thedistricts under the redistricting plan proposed and adopted in 1991. Underthe plan finally adopted, one district (District 7) is 43 percent blackin total population, and another (District 4) is 45 percent black.
35. No member of the Police Jury ever asked Gary Joiner if it were possibleto adjust district lines in either of those districts to raise the blackpercentage to a level over 50 percent.
36. At the time of the 1990-1991 redistricting process, some Police Jurorswere specifically aware that a contiguous black-majority district couldbe drawn both in northern Bossier Parish and in Bossier City. At the timeof the 1990-1991 redistricting process, it was obvious that a reasonablycompact black-majority district could be drawn within Bossier City. "Contiguous"here means that all units of geography in the district have some commonborder with some adjacent unit.
37. During the 1990-1991 redistricting process, Police Jurors had a generalunderstanding that the Voting Rights Act requires jurisdictions to createdistricting plans which fairly reflect black voting strength.
38. During the 1990-1991 redistricting process, Police Jurors were awarethat election precincts could be split by district lines for a number ofreasons, including (a) compliance with one person, one vote and (b) compliancewith the Voting Rights Act. During the 1990-1991 redistricting process,Police Jurors were told by Joiner at public Police Jury meetings that theycould split election precinct lines. They also were aware that the planthey adopted in 1991 split precincts. At the April 30, 1991 public PoliceJury meeting at which the final redistricting plan was adopted, Gary Joinertold the Police Jury members that "approximately 10" precinctswere split in the plan. Precinct realignments are a normal practice withinBossier Parish, occurring every three or four years. Bossier Parish hasmade a number of such precinct realignments within the last ten years.
39. While one of the redistricting criteria set by the Police Jury duringthe 1990-1991 redistricting process was the inclusion of minority input,the sole black Police Juror, Jerome Darby, initially was excluded from theReapportionment Committee. At the December 6, 1990 meeting of the PoliceJury's Finance Committee, a Technical Advisory Reapportionment Committeewas selected to work with Gary Joiner on redistricting. Given Mr. Joiner'sprevious emphasis on inclusion of minority input as a redistricting criterion,Police Juror Jerome Darby considered it likely that if the redistrictingstandards were followed, he, as the sole black Police Juror, would be includedon the Committee. Indeed, at that time, Darby had recently attended a reapportionmentseminar in Monroe, Louisiana. No member of the committee (other than Joiner)had attended such a seminar.
40. Police Juror Hammack moved that the committee consist of a representativefrom the District Attorney's office, the Registrar of Voters, the Tax Assessor,Mr. Ramsey (the Parish Administrator), two jurors (Mr. Caplis as the ruralrepresentative and Mr. Burford as the city representative) and Mr. Joiner.All of these individuals were white. Upon a vote of ten ayes to one nay,the motion carried. Mr. Darby, the only black member of the Police Jury,voted against the motion. Darby felt personally insulted by his exclusionfrom the Committee.
41. At the full Police Jury meeting five days later on December 11, 1990,after black Police Juror Darby protested his exclusion from the Committeeas a denial of "equal representation," the Police Jury voted toinclude Darby plus one other Juror, James Elkins, on the Committee. Elkinstestified at deposition that he has "no earthly idea" why theJury voted to respond to Darby's request by placing Elkins, as well as Darby,on the Committee.
42. The following chart reflects the population characteristics as of the1990 Census of the Police Jury districting plan adopted in the 1980s:
District Total Pop. Deviation Black Pop. Black %
1 10,108 40.90% 1,845 18.25
2 10,099 40.77% 1,423 14.09
3 7,906 10.20% 1,889 23.89
4 6,154 -14.22% 2,833 46.03
5 7,569 5.50% 922 12.18
6 10,545 46.98% 954 9.04
7 5,278 -26.43% 2,749 52.04
8 5,776 -19.49% 801 13.86
9 6,835 -4.73% 1,262 18.46
10 5,645 -21.31% 1,801 31.90
11 4,983 -30.54% 539 10.81
12 5,185 -27.73% 363 7.00
None of the Police Jury districts was majority black in voting age populationin 1990. Following the instructions of the Police Jury, Gary Joiner usedthe 1980s as a starting point for drawing a new redistricting plan. ThePolice Jury's goal was to change that plan as little as a possible to adjustfor population shifts and keep the mean population deviations of the districtsbelow plus or minus five percent. By changing his own district as littleas possible, each Police Juror hoped to retain constituents familiar withhim, thus maximizing his chances for reelection.
43. Protection of incumbents played a critical role in the 1990-1991 redistrictingof the Police Jury. As a general matter, district lines were changed sothat they came between the residences of Police Jurors, and incumbency wasalways a consideration. Incumbency considerations were behind the PoliceJury's rejection of the School board's suggestion in 1990 that the bodieshold joint redistricting processes. During the 1990-1991 Police Jury redistrictingprocess, the boundary between Districts 11 and 12 was deliberately drawnin such a way as to prevent incumbents Hammack and Elkins from residingwithin the same district. Hammack also asked Police Juror Caplis to agreeto change the lines separating their districts so that a potential candidate,Eddie Shell, would be placed in an open district (caused by the retirementof one of the incumbents) rather than in Hammack's district; Caplis agreedto accommodate Hammack, and the change was make. Police Juror Burford'sdistrict boundary was deliberately moved across Old Minden Road in BossierCity to ensure that Burford was not placed in the same district with BradCummings, a potential opponent. Several Police Jurors discussed electionprecinct realignments with Voter Registrar William Johnston, but the PoliceJurors were most concerned with the configuration of precincts within theirown individual districts. The 1991 Police Jury plan protected all incumbentswho intended to run for reelection by keeping their residences in separatedistricts.
44. At the January 15, 1991 meeting of the Bossier Parish Police Jury, Mr.Joiner presented each Police Juror with a questionnaire and asked that eachof them complete it, making notations of items to be addressed during reapportionment.He also told the members of his plan to interview each member individuallyand as a group in several open meetings.
45. Between the January 15, 1991 meeting and the final adoption of the PoliceJury plan on April 30, 1991, each of the twelve Police Jurors met with GaryJoiner in Joiner's office to view proposed redistricting plans on Joiner'sredistricting computer. Present at each meeting were Joiner and from oneto three Police Jurors. The intent of the meetings was to find out if anyincumbents had concerns with their own districts. To that end, Joiner encouragedgroups of incumbents who lived in neighboring districts to come to him sothat their concerns as incumbents could be worked out together. At thesemeetings, each Police Juror focused primarily on the configuration of hisown district. These meetings with Joiner were not open to the public.
46. The 1990-1991 redistricting process thus took place in two phases. Thefirst was a closed phase in which individual Police Jurors met with Joinerto discuss the plan, and Joiner devised a proposed plan with which all PoliceJurors could agree. This phase took place away from public scrutiny. Oncethe Jurors agreed on a plan, the plan would be shown to the public. Exceptfor some minor changes discussed at a Police Jury meeting on the day theplan was adopted, the plan agreed upon by the Police Jurors during the closedphase of the process was identical to the plan ultimately adopted.
47. Black Police Juror Jerome Darby met once with Joiner in Joiner's officea few weeks before the plan's final passage. By the time Darby met withJoiner, Joiner already had met with almost all the other Jurors and haddrawn the proposed plan. Joiner told Darby that, under the proposed plan,there was a possibility for three minority individuals to be elected tothe Police Jury. Joiner also told him at that time that the proposed planwas the best that could possibly be drawn for blacks in Bossier Parish,and that it was impossible to draw a black-majority district.
48. During this time period, school board member Tom Myrick also met severaltimes with Joiner in Joiner's office, accompanied by one or more policejurors. Myrick lives near Benton, in an area close to a heavy concentrationof black population. This area would likely be included in any majority-blackdistrict to be drawn in the norther part of Bossier Parish.
49. The result of the private meetings with Joiner were maps of proposedredistricting plans which were presented from public review at public meetingsheld by the Police Jury. The proposed maps were made available for inspectionby the public at the Police Jury office, but not until the day of the publicmeeting. No extra copies of these maps were available for members of thepublic to take home with them. Joiner stated that the Police Jury's commonprocedure was to allow members of the public to make their own copies. Themap of the proposed plan on display at the public meetings which was ultimatelyadopted was too large to be copied.
50. These public meetings were held at 2:00 p.m. on weekdays, when manyblack residents of the parish were at work. Black citizens previously hadasked that these Police Jury meetings take place at night, but those requestswere not granted.
51. The public meetings were advertised in one newspaper. The Police Juryinstructed its staff to place advertisements in the "minority media."The Police Jury, however, placed advertisements only in the Bossier Tribune,its usual legal advertiser. The Bossier Tribune is not a widely read newspaperin Bossier Parish, and is not part of "minority media."
52. The first public Police Jury meeting to discuss proposed redistrictingplans was held on April 8, 1991. Mr. Joiner presented three plans duringthis meeting. The data revealed that the ideal population for a Police Jurydistrict is 7,174. None of the plans had a black-majority district. Mr.Joiner represented that the black population was not sufficiently concentratedin the parish to draw even one black-majority district. Mr. Joiner furtherinformed the Police Jury that subdividing precincts would be permissiblefrom April 1, 1991 through May 15, 1991. According to Joiner, the PoliceJury likely was previously aware of this fact; the Jury was a member ofthe statewide Police Jury Association (which lobbied to get this statutory"window" approved) and was thus in "constant communication"with the Baton Rouge election office.
53. At the April 25, 1991 Bossier Parish Police Jury meeting, Gary Joinerpresented three plans to the Police Jury. These alternative plans drawnby Joiner were called Plan 5, Plan 8, and Plan 9. A number of members ofthe black community attended and asked about the creation of a black-majoritydistrict. Joiner stated that the wide distribution of blacks in the parishmade a black-majority district "statistically impossible." Atdeposition, Joiner acknowledged that he knew at that time that drawing twoblack-majority districts within Bossier Parish was "statistically"possible, in that you could create two majority-black districts at a censusblock level with the correct population, ignoring precinct considerations.
54. Police Jurors responded to questions regarding a black-majority districtat the April 25, 1991 meeting. To repeated questions suggesting the possibilityof creating a black-majority district, Police Jurors would impatiently snap,"Don't you understand? We already told you it can't be done!",or words to that effect. Police Juror Glorioso demanded, "Why are youasking for this? You're already being represented adequately!"
55. Black resident Octavia Coleman, on behalf of a number of the black attendees,asked for a copy of the map of Joiner's proposed plan. Joiner said thatthe display map he had was too large to copy, and that residents would haveto come down to the Police Jury office to see it.
56. A number of black attendees asked about the creation of a black-majoritydistrict based in the town of Haughton. In response, Joiner pointed outthat moving the (heavily black) Princeton area into District 4 (43 percentblack under the adopted plan), which includes Plain Dealing, would cause"the problem" that telephone service would be long dis- tancewithin that district. Under the plan ultimately adopted, however, District4 includes both Plain Dealing and an area adjacent to the corporate limitof Benton, and telephone service is long distance between these two towns.The Police jury did not explore the subject of a black-majority districtany further at the April 25, 1991 meeting. Upon Police Juror Whittington'smotion, the Police Jury decided that Plan 9 would be studied further andpursued as a final plan for adoption at the April 30, 1991 meeting.
57. In 1991, there was no legal impediment to the drawing of black-majoritydistricts in the Bossier Parish Police Jury redistricting plan.
58. At the April 30, 1991 meeting of the Bossier Parish Police Jury, Mr.Joiner presented "Plan 9" to the members. Mr. Joiner made twochanges to Plan 9 after the April 25, 1991 meeting. Neither of the changeswere in response to the concerns raised by black residents at prior meetings,nor were they made to increase electoral opportunities for black votersin the parish. The Police Jury minutes reflect that the 1990 Census populationstatistics for Plan 9 are:
District Total Pop. Deviation Black Pop. Black %
1 7,372 2% 2,056 27.89
2 7,484 4% 737 9.85
3 6,847 -4% 1,728 25.24
4 6,949 -3% 3,122 44.93
5 7,561 5% 734 9.71
6 7,444 3% 274 3.68
7 6,992 -2% 3,068 43.88
8 6,899 -3% 1,471 21.32
9 7,219 0% 1,000 13.85
10 7,452 3% 2,004 26.89
11 7,019 -2% 504 7.18
12 6,850 -4% 603 8.80
However, Joiner testified at deposition that the actual figures are different,and that the total deviation range of Plan 9 as ultimately adopted by thePolice Jury is 11.75 percent.
59. The plan submitted by the Bossier Parish Police Jury to the JusticeDepartment for preclearance was as follows:2
District Total Pop. Deviation Black Pop. Black %
1 7,187 0.18% 2,069 28.8
2 7,429 3.55% 728 9.8
3 6,856 -4.43% 1,737 25.3
4 6,903 -3.78% 3,120 45.2
5 7,607 6.04% 734 9.6
6 7,444 3.76% 274 3.7
7 6,992 -2.54% 3,068 43.9
8 6,899 -3.83% 1,471 21.3
9 7,219 0.63% 1,080 15.0
10 7,452 3.88% 2,004 26.9
11 7,019 -2.16% 504 7.2
12 7,081 -1.30% 592 8.4
60. Precinct lines also were discussed at the April 30, 1991 meeting. Joinerinformed the Police Jury that the proposed final plan, through splittingexisting precincts, created 13 new voting precincts and thus increased administrativecosts for elections. Joiner had discussed the number of precinct cuts occasionedby his proposed plans earlier in the redistricting process.
61. At the April 30 meeting, however, Joiner also informed them that precinctchanges could be made after January 1, 1993 so as to consolidate some precinctsand thus reduce administrative costs. In fact, according to Joiner, in hisprivate meetings with Police Jurors, and with School Board member Myrick,the redistricting was discussed "in the hopes of consolidating"precincts, and the Bossier Parish Police Jury is at the present time consideringimplementing such consolidations. This anticipation of consolidating precinctsas soon as practicable existed throughout the Police Jury redistrictingprocess.
62. At this time, it was also Joiner's understanding that even before January1, 1993, administrative costs could be reduced by placing the machines andpoll workers of two precincts at one polling place. This would reduce thenumber of poll workers which would need to be hired by the parish.
63. After about 30 minutes of discussion before the public, the Police Jurycut off discussion to retire into executive session. After returning fromexecutive session, upon Mr. Caplis' motion, Plan 9 was adopted with oneabstention (unrelated to racial concerns), and the Police Jury authorizedthe preparation of the plan for submission to the Department of Justicefor Section 5 review.
64. Mr. Darby explains that he voted for the redistricting plan becausehe was led to believe by Mr. Joiner and the other Police Jurors that itwas impossible to create a black-majority district that would receive Section5 preclearance from the Department of Justice. That was his understandingat the time of the 1990-1991 redistricting process and the subsequent 1991Section 5 preclearance review by the Department of Justice. Having sincebeen shown that it was at that time possible to have drawn two reasonablycompact majority-black districts, Darby has reversed his position and nowbelieves that he was deliberately misled in this regard during the 1990-1991redistricting process. But for these misrepresentations, he would have votedagainst the plan finally adopted by the Police Jury.
65. On April 30, 1991, the Police Jury received a letter from the ConcernedCitizens of Bossier Parish, a black organization, protesting the lack ofopenness in the redistricting process. The letter alleged that black citizenswere denied information regarding the redistricting which they had requestedfrom the Police Jury. The letter also protested the Police Jury's decisionto go into executive session to discuss redistricting at a public PoliceJury meeting. Black residents state that at the April 30, 1991 Police Jurymeeting, black residents specifically asked that the letter be placed inthe Parish's Section 5 submission to the Department of Justice.
66. Police Juror James Elkins, Parish Administrator James Ramsey, and GaryJoiner were among those responsible for making the Section 5 submissionto the Justice Department. Though Joiner played a role, the submission wasmailed from the courthouse. Police Juror Burford testified at depositionthat as a rule, the Police Jury was "very, very careful to keep correspondence"it received. Parish officials involved in the redistricting process, includingPolice Juror Burford, acknowledged that the April 30, 1991 Concerned Citizensletter normally would have been included with the submission. The April30, 1991 letter was not included with the submission sent by he Police Jury.
67. At the May 14, 1991 Bossier Parish Police Jury meeting, Mr. Darby referredto the April 30 Concerned Citizens letter regarding reapportionment procedures.
68. The Police Jury sent its Section 5 submission of the 1991 redistrictingplan to the Department of Justice on May 22, 1991. The Department of Justicereceived the Bossier Parish Police Jury redistricting plan on May 28, 1991.Additional information was received by the Department on July 19, 1991.In a July 29, 1991 letter from John R. Dunne, Assistant Attorney Generalfor Civil Rights, to Mr. James Ramsey, Mr. Dunne informed the Police Jurythat the Attorney General did not interpose any objection to the 1991 PoliceJury redistricting plan.
69. During the course of the 1990-1991 redistricting process, some PoliceJurors rejected the idea of drawing any black-majority districts in the1991 redistricting plan. The reasons given by Police Jurors for this rejectionvary. Police Juror Burford testified at deposition that among other things,he felt it would be desirable to have Jerome Darby continue on the Juryas a black member elected from a white-majority district, and to maintaina number of other white-majority districts with sizeable black populations,but to avoid the creation of a district with a black-majority. Police JurorGlorioso testified that the Police Jury never seriously considered the ideaof creating a black-majority district because there was already one blackperson sitting on the Jury.
70. While some Police Jurors testified at deposition that a plan containinga black-majority district would have crossed too many precinct lines, therebycreating new precincts and raising election costs, the Police Jurors havebeen told by Joiner at the April 30, 1991 meeting that the plan they wereadopting in 1991 created at least ten new precincts, and thus raised electioncosts. Actually, 20 new precincts were created when the 1991 Police Juryplan was drawn. Moreover, at the time of the adoption of the 1991 plan,Police Jurors did not know and did not seek to learn the number of precinctsthat would have to be split to create a black-majority district. Joinernever informed the Police Jury of an exact number of additional split precinctsthat would be caused by drawing a black-majority district, and no PoliceJuror ever asked for this information. To Joiner's knowledge, the PoliceJury never gave him a maximum number of precinct splits they deemed acceptable.The plan ultimately adopted by the Police Jury was not the redistrictingalternative with the lowest number of splits.
71. Joiner testified at deposition that any factors arguing against thecreating of a majority-black district "would be lumped under"the general category of concerns regarding the splitting of precincts.
72. Several Police Jurors testified at deposition that a black-majoritydistrict would contain unacceptably narrow or otherwise oddly-shaped lines.They claimed to base this conclusion on their examination of black populationconcentrations within the parish on Gary Joiner's computer, or on theirown personal knowledge of black concentrations within the parish. PoliceJuror Burford testified that Joiner did not show him anything to supportthis conclusion. According to the deposition testimony of Police Jurorsinvolved in the process, at no time during the 1990-1991 redistricting processdid any Police Juror see a map of a black-majority district showing theactual boundary lines of such a district. No parish official who testifiedhas any knowledge that Mr. Joiner ever drew such a district, nor that anyPolice Juror ever asked him to attempt to do so. Further, at least somePolice Jurors acknowledged that any such concerns relating to shape wouldnot apply to a black-majority district contained within Bossier City.
73. Several Police Jurors admit that it was not their understanding at thetime of the 1990-1991 redistricting that there was anything potentiallyillegal about drawing oddly-shaped black-majority districts.
74. Police Juror Burford admitted that if a district in the Police Juryplan ultimately adopted was in his view oddly-shaped, that he would "havea problem" with it only if it were drawn specifically to achieve aparticular racial proportion.
75. Former Parish Administrator Ramsey testified at deposition that a black-majoritydistrict in the northern part of the parish would have to include Bentonand Plain Dealing, which are too different to be joined, and whose blackcommunities would oppose being combined into a district. Ramsey testifiedthat neither he nor any of the Police Jurors ever asked the black communitiesof either of those two towns whether they would oppose being combined intoa single district; that black citizens inquiring at Police Jury meetingsabout black-majority districts were not asked about this point; and thathe really did not know if black persons in either of those two towns wouldprefer a plan with all white-majority districts over being combined intoa single district. Even if this truly had been a concern, it would of coursebe inapplicable to a black-majority district within Bossier City.
76. The plan ultimately adopted contains a (white-majority) northern parishdistrict which includes Benton and Plain Dealing. Former Parish AdministratorJames Ramsey testified that this created a "bad situation" forthe Juror representing the district.
77. One Police Juror testified at deposition that a black-majority districtin Bossier Parish would have had to be 30 miles in length, which would beunacceptably long. The Police Jurors were aware at the time of redistrictingthat the current (1991) Police Jury plan contained a white-majority districtwhich was approximately 30 miles long. The district in question was furtherelongated as a result of negotiations among several of the Police Jury incumbents.The elongation was designed to ensure an incumbent's reelection. PoliceJurors were aware that a black-majority district contained within BossierCity would be considerably shorter than 30 miles long.
78. The plaintiff's expert felt that it was unlikely that the Police Jurycould have drawn two black-majority districts in Bossier Parish while stillprotecting all incumbents who were running for reelection.
79. At the November 9, 1993 public Police Jury meeting, George Price, representingthe local NAACP chapter, called for the Bossier Parish Police Jury and SchoolBoard "to publicly meet and develop a redistricting plan that willincrease the number of minorities on these boards and that more accuratelyreflect the make-up of this parish." Price also called upon the policejury to "seize" the opportunity to "assign and employ moreblacks throughout the parish." Price had previously sent a letter tothe Police Jury on October 7, 1993 which included the concern that the 1991Police Jury redistricting plan did not reflect "the make-up of ourparish." Once the idea of redrawing the police jury districts was presented,the Police Jury dismissed it real quickly. On January 11, 1994, the PoliceJury passed unanimously a motion to make public the Police Jury's intentionto maintain its current district lines. This was the only Police Jury meetingat which the Police Jury passed such a resolution.
Bossier Parish School Board Redistricting Process
80. In 1992 the Bossier Parish School Board undertook its obligation topresent a redistricting plan for preclearance. It hired Mr. Gary Joinerto assist in the effort. Mr. Joiner met with the Board and explained whathe perceived to be the requirements of the Voting Rights Act of 1965. Inthe course of his explanation, he told the board about the Police Jury planand told the Board that because the Police Jury and the School Board werethe same size and because both used twelve single-member districts the adoptionof the Police Jury plan was a viable option. He also told the Board thatthe Police Jury plan had been precleared and that the same plan from theSchool Board would unquestionably get preclearance as well. Mr. James Bullers,Bossier Parish District Attorney and legal counsel for the Board, concurredin that opinion.
81. The Bossier Parish School Board adopted a different plan from the PoliceJury for the 1980s due to incumbency protection considerations.
82. The Bossier Parish School Board districts in effect during the 1980swere malapportioned after the 1990 Census. The district population figuresafter the 1990 Census were:
District Total Pop. Deviation Black Pop. Black %
1 9,233 28.71% 1,230 13.32
2 7,889 9.97% 1,291 16.36
3 13,598 89.56% 1,501 11.04
4 6,552 -8.66% 3,055 46.63
5 6,498 -9.42% 962 14.80
6 7,963 11.00% 1,579 19.83
7 5,867 -18.21% 2,569 43.79
8 6,516 -9.17% 1,149 17.63
9 6,229 -13.17% 1,374 22.06
10 6,054 -15.61% 1,824 30.13
11 4,085 -43.05% 460 11.26
12 5,604 -21.88% 387 6.91
83. The School Board was not under the same time constraints to redistrictas the police jury following the availability of the 1990 Census. The nextscheduled School Board elections were not until October 1994. At the October18, 1990 meeting of the Bossier Parish School Board, the School Board unanimouslyvoted to authorize Dr. Peterson to "convey to the police jury thatthe School Board would agree to work with a professional demographer tohopefully end with the same geographical boundary lines."
84. The Police Jury was not interested in pursuing the redistricting processjointly with the School Board because of incumbency protection considerations.
85. One School Board member, Tom Myrick, did participate in the Police Juryredistricting process. Myrick met with Joiner, who drew the Police Juryplan, some five times during the Police Jury process. On these occasions,Myrick was accompanied by at least two of the Police Jury members, RickAvery and Tommy Scarborough, all of whom represent districts, portions ofwhich could be used to create a black-majority district north of BossierCity. Myrick was only concerned with the configuration of his own district.Joiner gave Myrick a map of the Police Jury plan at that time.
86. The School Board took up the subject of redistricting again at its May2, 1991 meeting. The Police Jury had just adopted its plan on April 30,1991, and Joiner attended the meeting at the invitation of the Superintendentof Schools, W.T. Lewis. Joiner discussed the demographic changes in theparish since the 1980s redistricting. Joiner also discussed the concentrationsof black population of the parish. Joiner stated that while in the futuresome majority-black School Board districts could be created, at that timethere were no concentrations of black population heavy enough to createa majority-black district. Joiner further explained that, unlike the PoliceJury, the School Board had more than adequate time to draw its districtssince members would not run in the new districts until 1994. By unanimousvote, the Board engaged Mr. Joiner for the redistricting project, whichJoiner estimated would take 200 to 250 hours.
87. Joiner's estate of his time included developing alternative plans, andSchool Board members considered drawing a plan different from the PoliceJury at the start of the process. No member of the all white School Boardexpressed interest in drawing black-majority districts. The discussionsabout drawing a plan different from the Police Jury plan focused on concernsabout equalizing population among the districts and not on achieving a racialbalance.
88. The Board did not give any specific redistricting criteria to Joinerother than to draw a plan that meets all the legal requirements. Joinernever used school attendance zones for the purpose of drawing a map. Theidea of keeping "communities" together was not specifically statedto Joiner as a criterion for redistricting.
89. At the September 5, 1991 Bossier Parish School Board meeting, Joinerdistributed configuration maps of the new precincts for the Bossier ParishPolice Jury, which had been precleared by the Justice Department on July29, 1991, along with the police jury redistricting plan. Joiner told theSchool Board members that he provided the precinct maps because they wouldhave to work with the Police Jury to alter the precinct lines. The SchoolBoard could not itself alter these precinct lines and that would limit itsredistricting options. Joiner also said he planned on meeting with SchoolBoard members in small groups to develop a plan that would meet Departmentof Justice approval.
90. At this point, Board member Tom Myrick suggested adopting the PoliceJury plan.
91. The Police Jury plan did not pair Myrick with another School Board incumbentor announced School Board candidate, and placed Myrick in a white-majoritydistrict. Myrick lives in the area which would be included in the northernparish black-majority district under the various alternative plans.
92. Following the October 17, 1991 School Board meeting, Joiner distributedmaps to the Board illustrating the relationship of the present Bossier ParishSchool Board districts to the districts approved by the Bossier Parish PoliceJury, so that School Board members could see how their present districtswould be affected if they adopted the police jury plan. No other alternativeplans were discussed at this time. The School Board members gave no considerationat this time to the creation of a minority voting district.
93. By the spring of 1992, it had come to the attention of the local chapterof the NAACP that the School Board was in the planning stages of the reapportionmentof School Board districts. On March 25, 1992, George Price, as Presidentof the local chapter of the NAACP, wrote to Superintendent Lewis requestingthat, in light of the fact that there were no minorities on the Board, theNAACP wished to be included in all phases of the redistricting process.Price's letter was distributed to the members of the Board. The Board didnot respond to Price's letter and took no action to include the NAACP inthe redistricting process.
94. After hearing no response from the School Board, Price wrote again toSuperintendent Lewis on August 17, 1992, to request that the Bossier ParishBranch of the NAACP be allowed to come before the Bossier Parish SchoolBoard and present their views on the redistricting. Price also stated thatthe NAACP would oppose any plan that, like the police jury plan, dilutedminority voting strength.
95. At the August 20, 1992 meeting of the Bossier Parish School Board, Price,representing the NAACP, addressed the Board regarding immediate concernsthat affect blacks in the Bossier Parish School system. At this meeting,Price presented the board with nine proposals: 1) the appointment of a blackto fill the current vacancy on the Board; 2) development of an early recruitmentprogram for black teachers; 3) diligence in recruiting, hiring, retaining,and promoting blacks; 4) offering alternative certification to liberal artsmajors; 5) development of a reassignment and transfer program to insureparity or equalization of minorities at all schools; 6) organizing a recruitmentprogram with predominately black colleges; 7) encouraging Parish graduatesto pursue education as a major and return to Bossier to work and live; 8)encouraging the Superintendent and Board to be actively involved in allcommunities; and 9) guaranteeing participation of every Parish citizen inreapportionment of School Board districts. No specific action was takenby the school Board in response to Price's presentation.
96. At some point during the school Board redistricting process, Joinermet with the School Board members with his computer at a time other thana regularly scheduled Board meeting. While all of the School Board membersremember the meeting, no one remembers the date. Board member Barry Musgrovebelieves the meeting occurred in August of 1992. No School Board meetingminutes reflect such a meeting, and there was no notice to the public ofthe meeting. At this meeting, Joiner had his computer set up and individualmembers or groups of members gathered around him as he demonstrated alternativeredistricting plans or "scenarios" for creating districts. Thisis the only time that the Board was shown alternative "scenarios."
97. Despite the NAACP's repeated requests to participate in the redistrictingprocess, it was not given notice of such a meeting and thus did not attend.In considering the adoption of a redistricting plan and after listeningto the comments of concerned citizens, the school board consulted only withits attorney and cartographer and did not consult with any special interestgroup or racial organization, either white or black.
98. Frustrated by the School Board's lack of responsiveness to his requestto become part of the redistricting process, Price contacted the NAACP RedistrictingProject in Baltimore in the summer of 1992. The Project developed a partialplan for Price to present to the School Board that consisted of two districtswhich reflected the black voting strength in Bossier Parish. The NAACP alternativeplan distributed the population in those two district as follows:
District Total Pop. Deviation Black Pop. Black VAP
1 6,913 -3.6% 56.8% 50.6%
2 6,854 -4.5% 62.6% 58.9%
99. The NAACP did not draw a complete plan because they were most interestedin demonstrating ways to more fairly reflect black voting strength and didnot want to raise issues as to the other districts: the School Board wasfree to draw them in any way they chose. When Price showed this plan toa school district official, he was told that the plan was unacceptable andthat he would need to come up with a plan that contained all twelve districts.Price relayed this information back to the NAACP Redistricting Project,which then drew a plan for all twelve districts.
100. At the September 3, 1992 meeting of the Bossier Parish School Board,Mr. Price, speaking for the NAACP, Men's Club of Bossier, Voter's League,Concerned Citizens, Bossier Housing Tenant Coalition and the Concerned Parentsof Plain Dealing, presented a map of all twelve districts and made a statementon behalf of the NAACP. Price stated that black-majority districts couldbe created for the Bossier Parish School Board. The School Board membersstated that they would need to see a bigger map before they would analyzeit. The NAACP alternative plan distributed the population as follows:
District Total Pop. Deviation Black Pop. Black %
1 6,874 -4.18% 3,908 56.85
2 6,875 -4.17% 4,311 62.71
3 6,886 -4.01% 2,595 37.69
4 7,289 1.60% 645 8.85
5 7,002 -2.40% 522 7.46
6 7,188 0.20% 1,000 13.91
7 6,823 -4.89% 555 8.13
8 7,457 3.94% 950 12.74
9 7,427 3.53% 584 7.86
10 7,414 3.35% 1,116 15.05
11 7,395 3.08% 514 6.95
12 7,458 3.96% 601 8.06
101. District 3 contained Barksdale Air Force Base. One census block constitutingmost or all of the base contains 3,327 people. Most of these people arenot registered to vote in Bossier Parish. The distribution of the populationin District 3 without the census block which includes the military basedis:
District Total Pop. Black Pop. Black VAP
3 3,559 53.5% 51.0%
102. Both Gary Joiner and Parish District Attorney James Bullers were presentat the meeting. Both summarily dismissed the NAACP plan. The stated reasonsfor their dismissal was that the plan's district lines crossed existingprecinct lines, and therefore violated state law. Joiner and Bullers wereaware of the option of obtaining precinct line changes from the police jury.
103. At the September 17, 1992 School Board meeting, Jerome Blunt was swornin as the first black person to serve on the School Board. Blunt was appointedby a vote of 6-5 by the School Board following a resignation. The NAACPhad lobbied the School Board for the appointment of black person.
104. The narrow vote in favor of Blunt's appointment was contemporaneouswith the 1992 School Board redistricting process. Board member MichelleRodgers testified at deposition that three white constituents called herto express bitter opposition to Blunt's appointment. These constitutes chargedthat Rodgers supported him only because he was black, and that she had "boweddown" to the NAACP.
105. Blunt served in the office only six months. Blunt was defeated in aspecial election by a white candidate, Juanita Jackson. The district inwhich he ran was 11 percent black in population, according to the 1990 Census.
106. At the September 17, 1992 Bossier Parish School Board meeting, Price,speaking for the NAACP, Men's Club of Bossier, Voter's League, ConcernedCitizens, Bossier Housing Tenant Coalition and the Concerned Parents ofPlain Dealing, again presented for consideration the redistricting plandeveloped by the NAACP. Also at the September 17, 1992 Bossier Parish SchoolBoard meeting, the School Board unanimously passed a motion of intent toadopt the Police Jury plan. It was announced that the plan would be on display,a public meeting would be held on September 24, 1992 and final action wouldbe taken at the October 1, 1992 School Board meeting. The board did notdirect Joiner to conduct any further study of the NAACP plan. The Boarddid not delay any further action on the adoption of the Police Jury planuntil Joiner had more time to study the NAACP plan, despite the fact thatJoiner had previously told the School Board that there was no reason forhaste, because the next School Board election was in October 1994.
107. Blunt did not participate in any discussion about the redistrictingprocess. In his opinion, the board had already made up its mind to adoptthe Police Jury plan by the time he took office.
108. A public hearing was held on September 24, 1992. All of the membersof the Board were present except Susan Barrera and Boyce Hensley, DistrictAttorney Bullers was also present. Forty people registered their attendance,although the room, which has a capacity of 75 persons, was overflowing.Fifteen people, the majority of whom were black, addressed the Board. Allblack residents voiced their opposition to the School Board's adoption ofthe police jury plan because, they alleged, it diluted black minority votingstrength. Price, as the President of the NAACP, presented a petition whichcontained over five hundred signatures, constituting the largest petitionreceived by the School Board since at least 1990. Price requested that theSchool Board give the plan developed by the NAACP its utmost considerationand that it be used as a foundation for the creation of three districtsthat increase the possibility of blacks to be elected to the School Board.Price also admonished the School Board to be cautious about abdicating itsresponsibility to Gary Joiner, who is not a lawyer. Price advised the boardof the supremacy clause of the United States Constitution and that the statelaw governing precinct alterations could not supersede compliance with theVoting Rights Act. He also stated that the Justice Department's preclearanceof the Police Jury plan in 1991 did not preclude an objection to the SchoolBoard's adoption of the plan in light of the submission of the NAACP planto the Board which demonstrated that it was possible to draw a plan thatdid not dilute minority voting strength. He also told the Board that thefact that the Police Jury plan was precleared did not immunize the PoliceJury or the School board if they adopted the plan from litigation underSection 2 of the Voting Rights Act.
109. At the October 1, 1992 School Board meeting, the Bossier Parish SchoolBoard passed a resolution adopting the Police Jury plan. The vote was 10ayes, 1 abstention and 1 absent. Jerome Blunt, the School Board's only blackmember, abstained. Blunt abstained because he felt that by abstaining, hewould draw more attention to the fact that the plan diluted black votingstrength. Barbara W. Gray was absent. The plan adopted has two districtsin which incumbents are pitted against each other and two districts in whichno incumbents reside. The population figures for the adopted plan are:
District Total Pop. Deviation Black Pop. Black %
1 7,187 0.18% 2,069 28.79
2 7,429 3.55% 728 9.80
3 6,856 -4.43% 1,737 25.34
4 6,903 -3.78% 3,120 45.20
5 7,607 6.04% 734 9.65
6 7,444 3.76% 274 3.68
7 6,992 -2.54% 3,068 43.88
8 6,899 -3.83% 1,471 21.32
9 7,219 0.63% 1,080 14.96
10 7,452 3.88% 2,004 26.89
11 7,019 -2.16% 504 7.18
12 7,081 -1.30% 592 8.36
110. The School Board proceeded to adopt its final plan on October 1, 1992.The plan was not submitted to the Justice Department for preclearance untilJanuary 4, 1993.
111. In its order of October 1, 1970, modifying the April 29, 1970 decree,the court in Lemon v. Bossier Parish School Board, C.A. No. 10.687 (W.D.La), a school desegregation case, mandated the establishment of a Bi-RacialAdvisory Review Committee. The committee was to be comprised of an equalnumber of back and white members. The purpose of the committee was to "recommendto the School Board ways to attain and maintain a unitary system and toimprove education in the parish." The court directed the school boardto supply the committee with information requested by the committee.
112. The establishment of a Bi-Racial Committee to "analyze and makerecommendations as to whether or not the present desegregation plan is tobe reviewed, and if so, how," was also incorporated into the consentdecree on April 12, 1976, in the Lemon case. The Committee, however, metonly two or three times, and only the black members of the Committee attended.The Committee never met again after the first scheduled meetings in 1976.
113. Shortly after the School board's redistricting plan was submitted tothe Justice Department for Section 5 review, another committee, this timecalled the "Community Affairs Committee," was formed at the requestof the black community. The committee held its first meeting on January26, 1993.
114. It was originally the Board's intent to use the Community Affairs Committeeto satisfy its requirement under the 1976 consent decree in the Lemon schooldesegregation case, to have a "Bi-Racial Committee." Pursuantto the Consent Decree, the bi-Racial Committee was "charged with theresponsibility of investigating, consulting and advising the court and schoolboard periodically with respect to all matters pertinent to the retentionof a unitary school system."
115. One of the purposes of the committee was to address the concerns ofthe black community. The concerns involved the following goals: 1) developand maintain an early recruiting program, starting at least at the sophomorelevel of college, and include lay persons from the community in this process;2) demonstrate diligence in recruiting, hiring, retaining, and promotingAfrican Americans in the Bossier Parish School System; 3) develop a reassignmentand transfer program designed to insure parity or equalization of minoritiesat all schools; (Elementary, Middle, and High) so that black children cansee people from their ethnic background working as professionals; 4) organizeand maintain a recruitment program with Grambling State, Southern University,Xavier University, and Dillard University to increase numerically the numberof black teachers in the Bossier Parish School System; 5) establish andmaintain a tracking system of Bossier Parish graduates so as to counseland encourage as many as possible to pursue education as a major, and toreturn to Bossier Parish to work and live; and 6) encourage the Superintendentand each School Board member to become actively involved in all communities,and to bring and receive information calculated to improve the Bossier ParishSchool System on behalf of all citizens.
116. The School board disbanded the Committee after three months. Boardmember Musgrove stated that the reason the committee was disbanded was because,"the tone of the committee made up of the minority members of the committeequickly turned toward becoming involved in policy."
117. This action created strong resentment on the part of the black community.On July 14, 1993, a coalition of black groups, including the NAACP, ConcernedCitizens of Bossier Parish, the Men's Club of Bossier, and the Voting Leagueof Bossier Parish, sent a letter to the Board requesting a response as tothe steps the Board planned to take regarding the following concerns: 1)the establishment of a community advisory group which would supply inputto the School Board concerning educational matters; 2) recruitment and placementof black teachers and administrators in the Bossier Parish School System;3) plans to address the low math/ science scores of black children and toprovide scores of Bossier Parish students, along racial lines; 4) the updatedstatus of the Bossier Parish School Board Redistricting Plan; 5) the needto establish a committee to study the possibility of including a black historyyear round program in the Bossier Parish School System; 6) the need to providethe policy and procedure for bidding on contractual services provided tothe School system; and 7) the need to provide a list of recent contractorsthat have completed work for the Bossier Parish School System.
118. On March 5, 1993, the Justice Department acting pursuant to its responsibilitiesunder Section 5 of the Voting Rights Act, issued a timely request for additionalinformation concerning the Bossier Parish School Board's redistricting plan.The school board provided additional information.
119. On August 30, 1993, the Attorney General interposed a timely objectionto the 1992 redistricting plan for the election of Bossier Parish SchoolBoard members. The letter informed the School Board that while the JusticeDepartment was aware that it precleared the identical redistricting planfor the Bossier Parish Police Jury districts in 1991, it had taken intoaccount "new information," particularly the 1991 Police Jury electionsheld under the 1991 redistricting plan and the 1992 redistricting processfor the School Board. An alternative plan which demonstrated "thatblack residents are sufficiently numerous and geographically compact soas to constitute a majority in two single-member districts" and whichwas preferred by members of the black community was rejected by the SchoolBoard and the Board "engaged in no efforts to accommodate the requestsof the black community." The letter further acknowledged that while"the School Board is not required by Section 5 to adopt any particularplan, it is not free to adopt a plan that unnecessarily limits the opportunityfor minority voters to elect their candidates of choice." The AttorneyGeneral also rejected the School Board's argument that state law preventingsplitting of precincts precludes adoption of a redistricting plan with majority-blackdistricts, noting that state law allows Police Juries to realign precincts.
120. At the September 3, 1993 School Board meeting, in executive session,the Board discussed its options in light of the Attorney General's objection.All of the School Board members had been given copies of the objection letter.The Attorney General's letter articulated the reasons for the objectionand specifically pointed out the Board's option of consulting with the PoliceJury in an attempt to change precinct lines to allow the drawing of a planwhich fairly reflects minority voting strength.
121. There was no discussion of precinct realignment or conducting a furtherstudy of the potential to draw black-majority districts. The Board votedunanimously at that meeting to ask the Justice Department to reconsiderthe objection.
122. In a letter dated September 3, 1993, District Attorney Bullers requestedreconsideration of the objection.
123. At the September 16, 1993 School Board meeting, NAACP President Priceagain addressed the board representing a coalition of black organizations,and requested that the School Board reconsider its decision to ask the JusticeDepartment to withdraw the objection, because the Police Jury plan adoptedby the Board diluted black voting strength. The Board never responded toPrice's suggestion.
124. Price again appeared before the School Board on November 18, 1993 todiscuss the concerns that had been raised by the black community in itsletter of July 14, 1993 and to which the School Board had failed to respond.School Board member Musgrove admitted that there is a need for a betterrelationship between the Board and the minority community.
125. In a letter dated December 20, 1993, the Attorney General denied theBossier Parish School Board's request for reconsideration of the objection.The letter concluded that "given the apparent pattern of racially polarizedvoting in parish elections, black voters will be unable to elect a candidateof their choice to the school board under the objected-to redistrictingplan." The letter also referenced the failure of the School Board "toaccommodate the request of the black community that the board develop aplan with two black-majority districts." The letter also noted that,despite the fact the original August 30, 1993 objection letter noted that"the school board could have, but did not, seek a realignment of votingprecincts by the Bossier Parish Police Jury that would have facilitatedthe development of a plan that fairly reflects black voting strength,"the School Board made no attempt at this potential solution to its statelaw concerns. The letter noted the School Board's argument, made for thefirst time in its request for reconsideration, that under Shaw v. Reno,113 S. Ct. 2816 (1993), the NAACP plan "is 'so irrational on its facethat the plan could be understood only as an effort to segregate votersinto separate voting districts because of their race.'" The letterstated, however, that the Board provided no explanation or basis for thisconclusion. "Moreover, the Board does not appear to dispute the factthat black residents are sufficiently numerous and geographically compactin the parish so that two black-majority districts could be created. Youcontend only that it is not possible to do so given current precinct configurations."Accordingly, the School Board's reliance on Shaw v. Reno, was deemed "pretextual."
126. Following the January 20, 1994, School Board meeting, at the requestof Board member Barry Musgrove, the School Board requested that Gary Joinerreview the redistricting plan to see if there was any possibility that hemay have missed any alternative configurations.
127. At the March 17, 1994, School Board meeting, Price inquired into thestatus of Joiner's progress at developing alternative proposals. In a letterdated March 18, 1994, District Attorney Bullers requested from Joiner areport regarding the status of his attempts to develop alternative redistrictingproposals. No School Board member has ever requested that Joiner producemaps or otherwise demonstrate any of his attempts to draw black-majoritydistricts for the Bossier Parish School Board.
128. At no time during the redistricting process, including up to the presenttime, did the Bossier Parish School Board or any other representative ofthe School Board ever direct Gary Joiner to approach the Police Jury torequest that the precinct lines be redrawn to enable the creation of majority-blackSchool Board districts.
Geographic Compactness and Analysis of Alternative Plans
129. Dr. George Castille is qualified as an expert in Louisiana geography.He is competent to analyze maps and accompanying statistics and to testifyto that analysis.
130. William S. Cooper is qualified as an expert in redistricting and geographicinformation system software as it relates to redistricting. He is competentto draw and analyze maps, to analyze accompanying statistics, and to testifyto that analysis.
131. The boundary markers used in the 1992 Bossier Parish School Board redistrictingplan are roads, streams, railroads, and corporate limit lines. Within BossierCity, the School Board's plan also uses the limits of Barksdale Air ForceBase.
132. The use of corporate limit lines as election district boundaries isproblematic, in that corporate limits are usually arbitrary, and often divideracial concentrations or other communities of interest. This division canoccur when corporate lines are not revised frequently enough to accommodateurban growth. It can also occur as a result of selective, discriminatorypolicies regarding annexation and deannexation. People can have common interestsfor redistricting purposes even though they are split by corporate boundaries.
133. One factor to be avoided in redistricting is "fracturing,"defined by plaintiff's expert Gary Joiner as drawing boundary lines to dividea "population that has a traditional cohesiveness, lives in the samegeneral area, [and] has a lot of commonalities," where this divisionis effected with "a purposeful intent to splinter . . . to fracturethat population into adjoining white districts."
134. Among the considerations in determining "commonalities" withina district (or between two areas) are socioeconomic commonalities amongthe residents thereof.
135. Black persons in Benton and in Plain Dealing have some commonalitiesof interest.
136. The community of Benton has expanded outside the corporate limits inseveral areas, and the corporate limits fragment those black neighborhoodsthat straddle the corporate line. By following the corporate limits, theproposed plan's district boundary lines fragment black neighborhoods, splittingthem between Districts 3 and 4. One cluster of black families lives alongShaffers Road on the east side of Benton, and a large black subdivisionhas developed along Highway 162 just north of the Benton Community ClubCemetery. Another group of black residents is located immediately northof the Benton corporate limits at the end of Second Street.
137. In the school board's proposed plan, the area within Bossier City boundedby Shaver, Beckett, Fuller and McArthur Streets is included within District8 rather that District 7 located immediately to the west. The boundary used,a railroad track, separates this neighborhood from a larger black residentialarea on the District 7 side of the line. A nearby road could have been usedas the boundary marker, keeping the two adjacent communities together.
138. Plaintiff's expert Gary Joiner testified at deposition that thoughhe could not be certain without further inquiry, this boundary line "appearsto be an example of fracturing." Joiner also testified that it is likelythat there are "numerous options" available to avoid this instanceof fracturing short of causing another precinct split.
139. Plaintiff's expert Gary Joiner employs, as a standard part of his redistrictingmapping work, one test for compactness: the "Swartzburg major-minoraxis test." This test is run on Joiner's computer. Joiner ran thistest on the former and current Police Jury plans. At least four of the twelvePolice Jury districts drawn in the 1991 Police Jury plan failed this compactnesstest. Joiner suggested at deposition that at least two of the twelve districts(Districts 10 and 12) would fail this compactness test because they were"elongated." Joiner also stated that Districts 1 and 4 of theplan were not compact either.
140. Former Parish Administrator Ramsey, who was involved in the redistrictingprocess, noted that the northern parish district (District 4) in the 1991Police Jury plan takes up almost half of the geographic area of the parish.According to Ramsey, this district contains an inordinate number of roadsand drainage areas to be maintained, and is "impossible to represent."
141. The plan adopted by the school board in 1992 does not have a publicschool in each district. The district lines do not correspond with schoolattendance zones within Bossier Parish.
142. Black students comprise approximately 29 percent of the student enrollmentin the Bossier Parish school system. As of March 24, 1994, there are fiveschools in the Bossier Parish School District in which the majority of thestudents are black: Bossier Elementary (77.1% black), Butler Elementary(74.2% black), Plain Dealing Elementary (77.7% black), Plain Dealing Middle/SeniorHigh School (76.9% black), and Plantation Park Elementary School (51.9%black). Bossier and Butler Elementary Schools are the only two schools withinthe proposed Bossier City black-majority district in the NAACP School Boardre- districting plan (or within similar alternative dis- tricts drawn byWilliam Cooper). Plain Dealing Elementary and Plain Dealing High Schoolare the only schools within the proposed black-majority district in thenorthern portion of the parish under the NAACP plan (or similar alternativedistricts drawn by Cooper). Indeed, the two Plain Dealing schools are theonly two schools north of Benton in the Bossier Parish school system.
143. During the 1992 redistricting process for the Bossier Parish SchoolBoard, black citizens offered an alternative redistricting plan which createdtwo black-majority districts, one in the northern part of the parish, andone within Bossier City. This plan, the "NAACP Plan," demonstratesthat, using Census blocks, two contiguous districts with a black votingage population majority can be drawn within Bossier Parish for the BossierParish School Board.
144. The NAACP Plan employs the same types of physical and artificial featuresas in the School Board's plan: roads, streams, railroads, corporate limits,and, within Bossier City, the limits of Barksdale Air Force Base. The NAACPPlan uses streams to a greater extent than the School Board Plan; the districtboundaries correlate with streams in at least 14 locations, as opposed toonly 6 in the School Board Plan. Overall, in the use of logical, traditionalfeatures such as roads, streams, etc., as boundary markers, the NAACP Planis not significantly different from the School Board plan.
145. Census blocks are certainly irregular and varied in shape within BossierParish.
146. Curves in the NAACP Plan District 2 lines occur immediately north ofPlain Dealing, within the Bodcau Wildlife Management Area in the east centralpart of the parish, and in the areas immediately north and east of the BlackBayou Reservoir. All of these district curves represent boundaries whichfollow local stream patterns and rural roads. Irregularly shaped Censusblocks (and therefore irregularly shaped district boundaries) are more likelyto occur in rural parishes within hilly terrain, such as Bossier Parish,than in relatively flat areas such as in the southwestern part of Louisiana.
147. After the School Board adopted its proposed plan, defendant-intervenors'expert, William Cooper, drew other plans containing two black-majority districts,one in the northern part of the parish and one within Bossier City. Mapsand descriptions of these plans are included as exhibits to the direct testimonyof William Cooper. These plans include one drawn for the recent Knight v.McKeithen litigation (Cooper, Exh. 1); and one drawn with a view towardmaximizing compactness (Cooper, Exh. 3). Both these plans, particularlythe latter, also demonstrate that, using Census blocks, two contiguous black-majoritydistricts can be drawn within Bossier Parish for the Bossier Parish SchoolBoard. Both plans comply with the principles of one person, one vote, fairlyreflecting minority voting strength, and contiguity.
148. The northern parish minority district in the Cooper Plan, District8, is similar in shape and location to District 2 of the NAACP Plan, butis less elongated and more compact. The two are sufficiently similar sothat the possibility of creating a district like the Cooper District 8 wasreadily discernible. However, Cooper District 8 is shorter and more compact.
149. District 4 in the 1991 Police Jury Plan (the Proposed School BoardPlan) is similar to District 8 shown in Exhibits 1 and 3 to the direct testimonyof William Cooper, to the extent that both are large districts centeredin the north-central portion of the parish. District 4 in the Proposed SchoolBoard Plan has a land area of 424 square miles, 49.6 percent of the entireBossier Parish area. District 8C in Exhibit 3 has a land area of 252 squaremiles, 29.5 percent of the entire parish area. District 4 in the ProposedSchool board Plan is 33.5 miles long from the extreme northwest to the extremesoutheast. District 8C from Exhibit 3 is 34.5 miles long from the extremenorthwest to the extreme southeast. Thus, each alternative minority districtfor northern Bossier Parish shown in Exhibits 1 and 3 is virtually identicalin length to the School Board's proposed district configuration and covers40 percent less land area.
150. The minority district configuration within Bossier City used by Cooperis an acceptable configuration from the standpoint of district shape.
151. Using the current precinct lines in Bossier Parish in place at thetime of the 1992 School Board redistricting, the NAACP Plan creates 46 precinctsplits, and the Cooper Plan causes 27. Using the 1990 precinct lines inexistence at the time of the 1990-1991 Police Jury redistricting, the NAACPPlan causes 22 precinct splits, and the Cooper Plan causes 25.
152. It is impossible to draw, on a precinct level, a black-majority districtin Bossier Parish without cutting or splitting existing precinct lines.
History of Black Electoral Success in Bossier Parish after 1980
153. No black candidate ever has been elected to the Bossier Parish SchoolBoard. Since 1980, black candidates have run for election to the SchoolBoard on four occasions.
154. In the October 17, 1981 primary election for School Board DistrictC (28.1 percent black in total population based upon the 1980 Census), blackcandidate Floyd Coleman received 389 votes (38.5 percent), white candidateAnnie Johnston received 401 votes (39.7 percent), white candidate Ken Larsenreceived 150 votes (14.8 percent) and white candidate Nonnie Moak received71 votes (7.0 percent). Coleman was defeated in the November 28, 1981 runoffelection, in which he received 584 votes (40.5 percent) and his white opponent,Annie B. Johnston, was elected with 858 votes (59.5 percent).
155. In the September 27, 1986 election for School Board District J (30.1percent black in total population based upon the 1990 Census), black candidateJeff Darby was defeated. Darby received 343 votes (45.7 percent) and hiswhite opponent, Ruth Sullivan (who was the incumbent) was elected with 408votes (54.3 percent).
156. In the October 6, 1990 election for School Board District J (30.1 percentblack in total population based upon the 1990 Census), black candidate JohnnyGipson was defeated. Gipson received 430 votes (46.8 percent) and his whiteopponent, Ruth Sullivan (who was the incumbent), was reelected with 489votes (53.2 percent), a difference of 59 votes. District J has a white majorityand consists of two precincts.
157. In the April 3, 1993 special election for School Board District K (11.3percent black in total population based upon the 1990 Census), a black candidate,Jerome Blunt (who was the appointed incumbent), was defeated. Blunt received93 votes (23.9 percent) and his white opponent, Juanita Jackson, was electedwith 296 votes (76.1 percent).
158. Since 1980, black candidates also have sought election to the BossierParish Police Jury; only one black candidate has been elected to the BossierParish Police Jury since 1980.
159. In the October 22, 1983 election for Police Jury District 7 (29.3 percentblack in total population based on the 1980 Census), black candidate JamesAbrams received 358 votes (22.1 percent), white candidate Jerry Baker received385 votes (23.8 percent) and white candidate Pete Glorioso won with 875votes (54.1 percent).
160. In the October 22, 1983 election for Police Jury District 10, blackcandidate Jerome Darby received 407 votes (33 percent), black candidateJohnny Gipson received 260 votes (21 percent), and white candidate Tom McDanielreceived 568 votes (46 percent). Darby prevailed in the November 19, 1983runoff election with 328 votes (53.2 percent) to McDaniel's 289 votes (46.8percent).
161. In 1983, Police Jury District 10 was 37.9 percent black in total populationbased upon the 1980 Census, and consisted of two precincts: 2-15 and 2-16.Precinct 2-15 included Barksdale Air Force Base and population areas adjacentto the base; precinct 2-16 also was comprised of population areas adjacentto the base.
162. Many of the residents in and around Barksdale Air Force Base are militarypopulation who do not vote. Police Jurors have testified that, as a result,the proportion of actual voters on election day in District 10 who are blackis closer to 45 percent, and may even be a majority.3 As a further resultof the inclusion of the military base area in District 10, many of the whitevoters in that district are from areas outside Bossier Parish and outsideLouisiana. According to police jurors, because of that area's distinctivecharacter, black community leaders "have a good chance" of beingelected in the district. The circumstances described above are unique tothis area of the parish and therefore to districts that include this area.
163. According to the plaintiff's expert, most of the Air Force base personneldo not vote in Bossier Parish. Out of approximately 6,000 military personneland dependents, it is not unusual to have only 100 or so votes cast in alocal election. In effect, Darby's local neighborhood is electing the PoliceJuror for that district; in that sense, the district is a "stealthdistrict," according to Joiner. Many military retirees also settlepermanently in this area. The bulk of these retirees are not from BossierParish originally, and thus would tend on average to vote in a less polarizedway.
164. In the October 24, 1987 primary election for Police Jury District 10,the black incumbent, Jerome Darby, was reelected with 506 votes (60.5 percent).Another black candidate, Johnny Gipson, received 146 votes (17.4 percent)and the white candidate, Tom McDaniel, received 185 votes (22.1 percent).
165. In the only election held to date under the 1991 redistricting planfrom the Police Jury (on October 19, 1991), black incumbent Jerome Darbywas reelected without opposition.
166. In the October 19, 1991 election for Police Jury District 7 (43.87percent black in total population according to the 1990 Census), the whiteincumbent, Pete Glorioso was reelected with 1,099 votes (64.5 percent).His black opponent, Leonard Kelly, received 604 votes (35.5 percent).
167. Black candidates experienced limited success in municipal electioncontests against white opponents in Bossier Parish during the 1980s. Intwo instances in which a black candidate was elected to municipal officein the 1980s, however, he was unsuccessful in seeking reelection in the1990s.
168. Bossier City, which includes more than half the population of BossierParish, is the largest municipality wholly contained in the parish. Accordingto the 1990 Census, Bossier City had a total population of 52,721 of whom40,895 (77.57 percent) were non-Hispanic white persons and 9,463 (17.95percent) were non-Hispanic black persons.
169. In the March 30, 1985 election for Bossier City Council District 3(17 percent black in total population based on the 1990 Census), black candidateOdis Easter was defeated with 214 votes (17.2 percent) to white candidateWanda Bennett's 1,033 votes (82.8 percent).
170. In the April 1, 1989 election for Bossier City Councilman at Large(two positions), black candidate Don Rushing came in last with 2,222 votes(11.84 percent) against three white candidates.
171. In the April 1, 1989 election for Bossier City Council District 4 (18.9percent black in total population based on the 1990 Census), black candidateEarl Smith came in last with 137 votes (7.4 percent) against two white candidates.
172. In the April 1, 1989 election for Bossier City Council District 2 (25.6percent black in total population based on the 1990 Census), black candidateJeff Darby advanced to the runoff after receiving 356 votes (33.27 percent)against two white candidates. In the April 29, 1989 runoff, Darby was electedwith 631 votes (51.47 percent) against his white opponent, Donald Brown,who received 595 votes (48.5 percent). At the time of the election, District2 was similar in configuration to Police Jury District 10 and included BarksdaleAir Force Base and adjacent population.
173. In the October 16, 1993 special election for Bossier City Council District2 (which was reduced to 24.3 percent black in total population under the1993 redistricting plan), black incumbent Jeff Darby was defeated with 416votes (46.7 percent) to 474 votes (53.3 percent) received by his white opponent,Jim Sawyer. Under the 1993 plan, much of the Barksdale Air Force Base areawas removed from the district.
174. Black candidates also have run against white candidates from municipaloffice in Haughton. According to the 1980 Census, Haughton had a total populationof 1,510 of whom 1,034 (68.48%) were non-Hispanic white persons and 456(30.20%) were non-Hispanic black persons. In Haughton, elections for theBoard of Aldermen are at large, in which five seats are to be filled andeach voter has five votes to cast.
175. The April 7, 1984 Haughton Alderman election featured 11 candidates,three of whom were black. Black candidate James Bell, who received the highestnumber of votes (396), was elected along with two white candidates, ConradIsom and Shirley Stephens, who received 357 and 341 votes, respectively.Black candidate Cashie Cole, Jr., who received 237 votes, was forced intoa run-off with three white candidates-John D. Garland, Jr. (213 votes),Billy Joe Maxey (230) votes) and M.H. Walker, Jr. (228 votes). The thirdblack candidate, Johnny Ruffin, who received 211 votes, did not receiveenough votes to advance to the runoff.
176. In the May 5, 1984 runoff election for Haughton Alderman, Cashie ColeJr. was elected with 236 votes, but he subsequently lost his bid for reelection.In October 1992, he finished sixth out of a field of seven candidates withonly 13.9 percent of the votes cast.
177. In the October 1991 election for Haughton Mayor, black candidate MarkHill placed last with 67 votes (10.8 percent). White candidate George J.Hunter received 97 votes (15.6 percent) and the white incumbent, Cecil L.Blackstock, was reelected with 458 votes (73.6 percent).
178. According to the 1990 Census, the Town of Benton had a total populationof 2,047 of whom 1,166 (56.96 percent) were non-Hispanic white persons,846 (41.33 percent) were non-Hispanic black persons and 35 (1.71 percent)were other minorities.
170. In the March 10, 1992 election for Mayor of Benton, black CandidateThelma Harry received 218 votes (36.2 percent), white candidate Joe Stickellwas elected with 378 votes (62.8 percent) and another white candidate, RonnyP. Vaughn, received 6 votes (1.0 percent).
180. Black candidates have won elections in Bossier Parish from majority-whitedistricts.
Racially Polarized Voting Patterns
181. Police Juror Burford's understanding in 1991 was that at least 80 percentof black and white voters voted from candidates of their own race, and thatthe crossover rate, i.e., voting for candidates of the other race, was generally20 percent although sometimes it could be even lower. To some extent, votingpatterns in Bossier Parish are affected by racial preferences.
182. As one element of proof of the existence of racially polarized votingin Bossier Parish, the United States presented the analysis and testimonyof Dr. Richard Engstrom. Dr. Engstrom is a professor of political scienceat the University of New Orleans with extensive experience in the statisticalanalysis of electoral behavior. Dr. Engstrom has been recognized as an expertwitness in this field in numerous vote dilution cases in federal courtsand has served as court-appointed expert in this regard.
183. Dr. Engstrom's analysis covered the only parish-wide election for localoffice in recent years (1988 primary election for a seat on the 26th JudicialDistrict Court), as well as the last three elections for seats on the BossierParish School Board in which voters in the respective districts were presentedwith a choice between black and white candidates (1986, 1990 and 1993).In addition, he examined the vote in the six other elections in the parishduring the 1990s in which voters were presented with a choice between blackand white candidates. Dr. Engstrom's analysis sought to determine the extentto which black voters supported black candidates and the extent to whichwhite voters supported white candidates.
184. Bivariate ecological regression analysis is based upon the correlationbetween the proportion of the votes received in each precinct and the proportionof black or white voters in each such precinct. Based upon his analysisof the 1988 primary election for the seat on the 26th Judicial DistrictCourt, Dr. Engstrom found that there was a very consistent relationshipbetween the percentage of those signing in to vote who were black in eachprecinct and the percentage of the votes received by the black candidate,Bobby Stromile, in the precincts. The estimate of support for Stromile amongblack voters was 79.2 percent, while the estimate of support for Stromileamong white voters was only 28.9 percent.
185. Homogeneous precinct analysis simply tabulates the votes cast in precinctswith overwhelmingly black and overwhelmingly white populations. These analysessupport the estimates produced by ecological regression analysis. In the1988 primary election, over 90 percent of the people signing in to votewere white in 25 of the 43 precincts in Bossier Parish. Stromile receivedonly 31.3 percent of the votes cast in those 25 precincts, while his whiteopponent received 69.9 percent of the vote in those precincts. There wereno homogeneous black precincts in the parish (the highest percentage ofblack voters among those signing in to vote was only 75.1 percent).4
186. Dr. Engstrom examined two elections for School Board District J: onein 1986, in which Jeff Darby was the black candidate who competed with onewhite candidate, and one in 1990, in which Johnny Gipson was the black candidate,who competed against the same white candidate. District J was comprisedof only two precincts and thus does not provide sufficient data to performa regression analysis. Precinct 2-15 was racially mixed and Precinct 2-16was homogeneously white. In Precinct 2-16, 97.4 percent of those signingin to vote in 1990 where white and 99.2 percent of those registered to votein September of 1986 were white (sign-in data by race are not availablefor elections prior to 1988). In both these elections, precinct 2-16 supportedthe white candidate. Gipson received 31. 8 percent of the votes cast inthat precinct in 1990 and Darby received 26.6 percent in 1986. Both Gipsonand Darby won, however, in Precinct 2-15 in their respective elections.In Precinct 2-15, 48.9 percent of those signing in to vote in 1990 wereblack and 48.9 percent of those registered to vote in September 1986 wereblack. Gipson received 73.5 percent of the votes cast in Precinct 2-15 in1990 and Darby received 75.9 percent of the votes cast in that precinctin 1986. The contrast in candidate support as between these two precinctssuggests that the black candidates were the choice of the black voters inthese elections, but were not the choice of the white voters.
187. In the 1993 special election for School Board District K (11.3 percentblack according to the 1990 Census), in which the appointed black incumbent,Jerome Blunt, was defeated by a white opponent, only nine of the 430 peoplewho signed in to vote were black. Even if every vote Blunt received hadbeen cast by a white voter and every black voter who signed in to vote hadcast a ballot for Blunt's opponent, Blunt still would have received only37.1 percent of the white votes in the election. While it is not possibleto determine whether Blunt was the choice of black voters, he clearly wasnot the choice of white voters.
188. Dr. Engstrom also examined the vote in police jury and municipal electionsduring the 1990s in which voters were presented with a choice between blackand white candidates.
189. In the 1991 election for Police Jury District 7, a black candidate,Leonard Kelly, was defeated by the white incumbent, who received 64.5 percentof the vote. A regression analysis of the five precincts produced an estimatedblack vote for Kelly of 41.5 percent and a white vote of 33.8 percent. Onlytwo precincts were racially homogeneous and both were white. He received38.3 percent of the votes in those precincts. Thus, Kelly was not the choiceof either black or white voters.
190. In the 1993 Bossier City special election, Jeff Darby, the black incumbentin District 2, faced one white opponent and black candidate Will Jones ranin District 1 against two white opponents. This was the first election heldunder the new 1993 redistricting plan for the Bossier City Council. Theelection was delayed until October 16, 1993 because the new redistrictingplan had not been precleared in time for the regularly scheduled April 6,1993 election. Turnout was extremely low in these two districts. Fewer than25 percent of the eligible registered voters cast ballots in the District2 contest and approximately 29 percent of the eligible voters in District1 signed in to vote in the election.
191. Bossier City Council District 2 is comprised of three whole precinctsand portions of four others. Based upon Dr. Engstrom's regression analysis,Darby is estimated to have received 61.0 percent of the votes cast by blacksand 41.3 percent of the votes cast by whites. The correlation coefficientfor the relationship between the percentage of the votes received by Darbyand the racial composition of the precincts in District 2 is .549. Thiscoefficient, based on only seven precincts, is not statistically significant.In the homogeneous white precincts, Darby received 45.7 percent of the votescast.
192. All five of the precincts in Bossier City District 1 were homogeneouslywhite. The percentage of people signing in to vote in these precincts whowere black ranged from 2.3 to 8.2. Although it is not possible to determinewhether the black candidate was the choice of black voters, it is clearthat he was not the choice of white voters, having received only 10.1 percentof the votes cast in this election.
193. In the 1992 mayoral election for the Town of Benton, blacks comprised38.3 percent of the people signing in to vote and the black candidate, ThelmaHarry, received 36.2 percent of the votes cast. Because the votes were castin a single precinct, it is not possible to product estimates of the votesby race.
194. In 1992, Cashie Cole, Jr., a black incumbent on the Haughton Boardof Aldermen, was defeated in his bid for reelection. All of the votes castin the election were cast in a single precinct so that no estimates of thevotes by race can be produced. Blacks comprised 25.6 percent of the peoplesigning in to vote and Cole finished sixth in a field of sever candidates,with 13.9 percent of the votes cast in this at-large election.
195. In the 1991 mayoral election in Haughton, also held in the one precinct,25.4 percent of those signing in to vote were black and the black candidate,Mark Hill, finished last among the three candidates, with only 10.8 percentof the votes cast.
196. Of the 14 elections since 1980 in which black candidates have run againstwhite candidates for a single-member district or for mayor, only two candidateshave won. Jerome Darby defeated a white opponent on two occasions in PoliceJury District 10, which included population in and around Barksdale AirForce Base, and Jeff Darby defeated white candidates in Bossier City District2, which also included population in and around Barksdale Air Force Basein 1989, but lost his bid for reelection after much of that population wasremoved from the district in 1993.
Relationship Between Depressed Levels of Socioeconomic Status and PoliticalParticipation Among Black Citizens of Bossier Parish
197. According to pre-election statistics for the April 3, 1993 electionprepared by the Department of Elections and Registration, the total numberof registered voters in Bossier Parish was 40,356 of whom 33,755 (83.6 percent)were white and 6,279 (15.6 percent) were black. Thus, as of the April 3,1993 election, 70.1 percent of the 1990 Census white voting age populationwere registered to vote, while only 58.5 percent of the 1990 Census blackvoting age population were registered to vote. Current voter registrationstatistics reveal similar disparities. As of October 28, 1994, Bossier Parishhad 38,870 registered voters, of whom 32,474 (83.5 percent) were white and6,044 (15.5 percent) were black. Thus, 67.5 percent of the white votingage population were registered to vote, while only 56.3 percent of the blackvoting age population were registered to vote.
198. Turnout statistics prepared by the Department of Elections and Registrationalso reveal a pattern of lower turnout rates among black voters than amongwhite voters in Bossier Parish.
199. Education, income, housing and employment are considered standard measuresof socioeconomic status. These factors repeatedly have been found to translateinto political efficacy.
200. Black citizens of Bossier Parish suffer a markedly lower socioeconomicstatus than their white counterparts. This lower socioeconomic status istraceable to a legacy of racial discrimination affecting Bossier Parish'sblack citizens.
201. According to the 1990 Census, the per capita income of whites in BossierParish in 1989 was $12,966, while the per capita income of blacks in BossierParish in 1989 was $5,260.
202. According to the 1990 Census, the proportion of white families in BossierParish below the poverty level in 1989 was 6.8 percent, and the proportionof black families in Bossier Parish below the poverty level in 1989 was40.2 percent.
203. According to the 1990 Census, the proportion of white persons in BossierParish below the poverty level in 1989 was 8.7 percent, and the proportionof black persons in Bossier Parish below the poverty level in 1989 was 42.7percent.
204. According to the 1990 Census, 4.8 percent of white persons in BossierParish 25 years of age and older had less than ninth grade education, and22.8 percent of black persons 25 years of age and older had less than aninth grade education.
205. According to the 1990 Census, the proportion of white persons in BossierParish 25 years old and over who were at least high school graduates (includingequivalency) was 83.3 percent, and the proportion of black persons in BossierParish 25 years old and over who were at least high school graduates (includingequivalency) was 58.7 percent.
206. According to the 1990 Census, the proportion of white persons in BossierParish 25 years old and over who had a least four years of college was 17.0percent, and the proportion of black persons in Bossier Parish 25 yearsold and over who had at least four years of college was 8.1 percent.
207. According to the 1990 Census, the proportion of white persons in thelabor force of Bossier Parish who were unemployed was 2.9 percent, and theproportion of black persons in the labor force of Bossier Parish who wereunemployed was 9.1 percent.
208. According to the 1990 Census, 4.2 percent of the housing units in BossierParish occupied by white persons had no vehicle available, and 25.9 percentof the housing units occupied by black persons in Bossier Parish had novehicle available.
209. According to the Census, the proportion of occupied housing units inBossier Parish owned by their occupants was 70.6 percent among white personsand 49.4 percent among blacks.
210. According to the 1990 Census, 0.3 percent of owner-occupied housingunits in Bossier Parish with a white householder lacked complete plumbingfor exclusive use, whereas 7.2 percent of owner-occupied housing units witha black householder lacked such facilities. The percentage of black householdswithout access to vehicles (25.9%) is over six times higher than the comparablepercentage (4.2%) for white households.
211. According to the 1990 Census for Bossier Parish, the poverty rate forblack persons (44.7%) is nearly five times the rate for white persons (9.1%).The per capita income of black persons ($5,260) is only 40 percent of thatenjoyed by whites ($12,966). The unemployment rate for black persons aged16 and over (22.4%) is nearly four times that for whites.
212. According to the 1990 Census for Bossier Parish, the socioeconomicdisparities are matched by similarly severe disparities in education. Thepercentage of black persons over 25 without a high school degree (40.6%)is over twice the comparable rate (16.7%) for whites.
213. The depressed socioeconomic and educational levels of black personswithin Bossier Parish, coupled with their limited access to vehicular transportation,makes it harder for blacks to obtain necessary electoral information, organize,raise funds, campaign, register, and turn out to vote, and this in turncauses a depressed level of political participation for black persons withinBossier Parish.
History of Official Racial Discrimination
214. Slavery was sanctioned by law in Louisiana prior to the ratificationof the Thirteenth Amendment and vestiges of discrimination persist whichaffect the rights of black persons to register, to vote or otherwise participatein the democratic process.
215. In 1896, 126,849 black persons and 153,174 white persons were registeredto vote in Louisiana, according to the 1902 Report of the Secretary of Stateof Louisiana.
216. In 1896, the Louisiana legislature adopted two new laws designed todisenfranchise black voters. One law provided a complex new Australian ballotand prohibited election officials from assisting illiterates. The otherrequired all voters to reregister using a complex application from, prohibitedexplanation of application questions, and facilitated wholesale purges byeither registrars or party officials of individual voters who managed toregister successfully. Discriminatory application of the new laws reducedblack registration by 90 percent, leaving only 10 percent of adult blackmales on the rolls. J. Morgan Kousser, The Shaping of Southern Politics:Suffrage Restriction and the Establishment of the One-Party South, 1880-1910(New Haven, Ct., Yale University Press, 1974), 160-63.
217. The State of Louisiana's Constitutional Convention of 1898 imposeda "grandfather" clause as well as educational and property qualificationsfor voter registration which were designed to limit black political participation.
218. Implementation of the disfranchising devices in the 1898 constitutionreduced blacks to about 4 percent of the state's registered voters, althoughthey made up approximately half the state's population. United States v.State of Louisiana, 225 F. Supp. 353, 373 (E.D. La. 1963). See generally,Richard Engstrom, et al., Louisiana, in Quiet Revolution in the South 103-135(Chandler Davidson and Bernard Grofman, eds., 1994).
219. On March 17, 1900, 5,320 black persons and 125,438 white persons wereregistered to vote in Louisiana, according to the 1902 Report of the Secretaryof State of Louisiana.
220. In 1921, the state Democratic Party established, pursuant to statelaw, an all-white primary which was used until 1944.
221. In 1921, the state amended its constitution and replaced the "grandfather"clause with a requirement that an applicant "give a reasonable interpretation"of any section of the federal or state constitution. The United States SupremeCourt in Louisiana v. United States, 380 U.S. 145 (1965), held this "interpretation"test to be one facet of the state's successful plan to disenfranchise itsblack citizens.
222. Following the invalidation of the all-white primary in 1944, the stateadopted such electoral devices as citizenship tests, anti-single-shot laws,and a majority vote requirement for party officers. Major v. Treen, 574F. Supp. 325, 341 (E.D. La. 1983).
223. Following the decision of the U.S. Supreme Court in Brown v. Boardof Education, 347 U.S. 483 (1954), outlawing segregation in public schools,the Louisiana legislature in 1954 established a joint committee chairedby State Senator Willie Rainach. Popularly known as the "SegregationCommittee," the committee's stated purposed was "to provide waysand means whereby our existing social order shall be preserved," inorder "to maintain segregation of the races in all phases of our lifein accordance with the customs, traditions, and laws of our State."United States v. State of Louisiana, 225 F. Supp. 353, 378 (E.D. La. 1963).
224. Senator Rainach was among the founders of the Louisiana Associationof Citizens' Councils, which published in 1956 a pamphlet entitled "VoterQualification Laws in Louisiana-The Key to Victory in the Segregation Struggle."In the pamphlet the organization urged its members to initiate a purge campaignto challenge the right to vote of "the great numbers of unqualifiedvoters who have been illegally registered," and who, according to thepamphlet, "invariably vote in blocks and constitute a menace to thecommunity." The pamphlet's subtitle was: "A Manual of Procedurefor Registrars of Voters, Police Jurors and Citizens Councils." Thestate government distributed the pamphlet to parish registrars with instructionsto follow its guidelines as closely as possible. United States v. Stateof Louisiana, 225 F. Supp. 353, 378 (E.D. La. 1963).5
225. Published congressional hearings on the Voting Rights Act includedquantitative evidence concerning racial discrimination in voter registrationin Louisiana, drawn from the various federal court cases filed by the Departmentof Justice. In addition, the hearings reproduced evidence of racial disparitiesin educational expenditures by the state over several decades together withdocumentation that these disparities were a product of the state's officialpolicy of racial discrimination in education. Hearings Before the Committeeon the Judiciary, United States Senate, Eighty-Ninth Congress, First Session. . . Part 2 (Washington, D.C., G.P.O., 1965), 1103-59, 1189, 1191-92, 1199-1201,1208-10, 1220-21, 1224-26, 1229-34, 1250-52, 1263-70, 1280-81, 1412-41,1447-55, 1479-84. Congress and the federal courts have concluded that sucheducational disadvantages, typically correlated with disparities in socioeconomicstatus, tend to depress voter registration and turnout, as well as otherforms of political participation. S. Rep. No. 97-417, at 29, citing Whitev. Regester, 412 U.S. 755, 768 (1973), and Kirksey v. Board of Supervisors,554 F.2d 139, 145 (5th Cir. 1977) (en banc).
226. In 1954, the year before adoption of the Voting Rights Act, 14 percentof the nonwhite voting-age population in Louisiana was registered to vote,yet 86 percent of the white voting-age population was on the registrationrolls. United States Commission on Civil Rights, Political Participation(Washington, D.C., G.P.O., 1968), 242-43. This disparity was the resultof a series of discriminatory election laws, according to the United StatesSupreme Court, which enjoined further use of the state's requirement thatprospective voters demonstrate to the satisfaction of local registrars thatthey could understand or interpret a passage from the state or federal constitutions.Louisiana v. United States, 380 U.S. 145, 147-51 (1965). This registrationtest, like its predecessors, was racially neutral on its face but had beenadministered in a racially discriminatory manner. Id. at 150, 153.
227. The State of Louisiana and its subjurisdictions, including BossierParish, are subject to the preclearance provision (Section 5) of the VotingRights Act of 1965 because in 1965 the state employed a "test or device,"as defined in the Act, as a prerequisite to register to vote and less than50 percent of the state's voting age population (at the time, 21 years ofage or older) voted in the 1964 presidential election.
228. Since 1965, the United States Attorney General has designated twelveLouisiana parishes, including Bossier Parish, which was designated on March23, 1967, for the appointment of federal examiners pursuant to Section 6of the Voting Rights Act, 42 U.S.C. section 1973d.
229. In 1968, Louisiana altered its policy prohibiting the use of at-largeelections for parish police juries and school boards by the adoption oftwo statutes enabling both types of local governing bodies to use parish-wideelections rather than realign their single-member districts. The state wasrequired by the decision of the U.S. Supreme Court in Allen v. State Boardof Elections, 393 U.S. 544 (1969), to submit these changes for review bythe Department of Justice pursuant to Section 5 of the Voting Rights Act.On June 26, 1969, the Attorney General objected under Section 5 to the twostate enabling acts on the grounds that at-large elections would in manyinstances, if implemented, "have the effect of discriminating againstNegro voters on account of their race." See objection letter of June26, 1969, objecting to Acts 445 and 561 of 1968, and the discussion in Zimmerv. McKeithen, 485 F.2d 1297, 1301-02 n.7 (5th Cir. 1973) (en banc).
230. In 1971, the legislature incorporated multimember districts in theShreveport metropolitan areas, including Bossier Parish, and in other areas,into its redistricting plans for both state senate and house. The AttorneyGeneral objected under Section 5 of the Voting Rights Act, citing both thedilution caused by multi-member districting and the fragmentation of blackvoting strength in each area. The U.S. District Court hearing a constitutionalchallenge to the state's redistricting plan observed that had the AttorneyGeneral not objected, he would have found the districting plan unconstitutionalbecause it was malapportioned, diluted minority voting strength, and employed"gerrymandering in its grossest form." Bussie v. Governor of Louisiana,333 F. Supp. 452, 454 (E.D. La. 1971). The court ordered legislative electionsto be held under its own interim plan, relying exclusively on single-memberdistricts.
231. A U.S. Commission on Civil Rights publication, The Voting Rights Act:Ten Years After (Washington, D.C., 1975), listed 12 parishes, includingBossier Parish, in which minority plaintiffs filed lawsuits challengingpolice jury and school board redistricting plans enacted in the 1970s.
232. The Department of Justice objected to the 1991 redistricting plansfor the Louisiana state house, in part, because the Justice Department determinedthat the district alignments appeared to minimize black voting strengthin and around Bossier Parish.
233. Public accommodations and facilities in the State of Louisiana werenot open to members of both races until the late 1960s.
234. The State of Louisiana maintain a dual university system until at least1981.
235. After 1954, school boards in Louisiana failed to abolish de jure segregationin the public schools voluntarily, and it was necessary to for local federalcourts to issue decrees in order to obtain compliance with federal law.
236. The Bossier Parish School Board is the defendant in Lemon v. BossierParish School Board, C.A. No. 10,687 (W.D. La.), in which it was found liablefor intentionally segregating the public schools of Bossier Parish in violationof the Fourteenth Amendment to the United States Constitution. Lemon v.Bossier Parish School Board, 240 F. Supp. 709 (W.D. La. 1965).
237. The Bossier Parish School Board for years sought to limit or evadeits desegregation obligations. The School Board sought to assign black childrenof Barksdale Air Force Base personnel to black schools without a right totransfer to white schools, claiming that they were "federal children"and not within the "jurisdiction" of the school district. JudgeWisdom rejected the School Board's "new and bizarre excuse for rationalizing[its] denial of the constitutional right of Negro school children to equaleducational opportunities as white children." Bossier Parish SchoolBoard v. Lemon, 370 F.2d 847, 849 (5th Cir. 1967).
238. The Fifth Circuit also rejected the school district's subsequent attemptto implement a "freedom of choice plan," Hall v. St. Helena ParishSchool Board, 417 F.2d 801 (5th Cir. 1969), and after "protracted litigation"subsequently rejected yet another inadequate remedial plan proposed by thedistrict. Lemon v. Bossier Parish School Board, 421 F.2d 121 (5th Cir. 1970).The School Board then attempted to assign students to one of two schoolsin Plain Dealing based on their success on the California Achievement Test.The Fifth Circuit rejected this effort as well. Lemon v. Bossier ParishSchool Board, 444 F.2d 1400 (5th Cir. 1971).
239. In 1979, the School Board filed a motion seeking a declaration of unitarystatus and release from further court supervision. The motion was denied.
240. Notwithstanding the requirements of the order in Lemon concerning thedesegregation of its faculty and staff, since 1980, the School Board hasassigned an increasingly disproportionate number of black faculty to schoolswith predominantly black student enrollments and has reduced the percentageof black teachers in the school district from 14 percent to less than 10percent. As of March 1994, while fewer than 10 percent of the district'steachers were black, the School Board assigned faculties that were morethan 20 percent black to the five predominantly black schools in the district.The School Board assigned a faculty that was more than 70 percent blackto one school, Butler Elementary. The School Board assigned more than halfof its 113 black teachers to seven of its 28 schools and one or fewer blackteachers to ten of its schools.
241. Since, 1980, despite the Bossier Parish School Board's affirmativeduty to desegregate, the number of elementary schools with predominantlyblack student enrollments has increased from one to four.
242. As of the 1993-94 school year, the Bossier Parish School Board assignedpredominantly black student enrollments to five of its 27 regular schools.Despite the fact that the overall racial composition of the school district'sstudent population is 29 percent black, four of these schools have studentbodies that are more than 70 percent black.
243. As of the 1993-94 school year, the School Board also maintained sixschools in which the white enrollment was greater than 80 percent, and twoschools in which the white enrollment is greater than 90 percent. Of the16 regular elementary schools, four had predominantly black student enrollmentsand five had student enrollments that were more than 80 percent white.
244. Blacks and whites today are treated identically by public officialsin registering to vote, filing for public office and voting in primariesand general elections. No black individual or black person representinga black organization has been denied the right to speak to the Bossier ParishSchool Board at its pubic meetings.
245. No black in the past two decades has filed a suit or an official protestalleging that his right to register to vote, file for public office, orto vote in a primary or general election has been hampered or interferedwith.6
246. On July 26, 1991, Gary W. Moore, a resident of Bossier Parish, pledguilty to conspiring to oppress, threaten and intimidate minority individualsof the State of Louisiana in the free exercise and enjoyment of rights,including the right to vote, secured to them under the Constitution andlaws of the United States. As set forth in the Bill of Information to whichMoore pled guilty, Moore willfully conspired to join with others, underthe cover of darkness, to burn numerous crosses at chosen places in andaround Shreveport. July 27, 1991, Shreveport Times, Meridian Star; see also,May 30, 1991. Shreveport Times.
247. On July 26, 1991, Herbert D. Haynes, a resident of Bossier Parish,pled guilty to conspiring to oppress, threaten and intimidate minority individualsof the State of Louisiana in the free exercise and enjoyment of rights,including the right to vote, secured to them under the Constitution andlaws of the United States. As set forth in the Bill of Information to whichHaynes pled guilty, Haynes willfully conspired to join with others, underthe cover of darkness, to burn numerous crosses at chosen places in andaround Shreveport. July 27, 1991, Shreve- port Times, Meridian Star; seealso, May 30, 1991, Shreveport Times.
248. On July 12, 1991, Edward Wayne McGee, a resident of Bossier Parish,pled guilty to conspiring to oppress, threaten and intimidate minority individualsof the State of Louisiana in the free exercise and enjoyment of rights,including the right to vote, secured to them under the Constitution andlaws of the United States. As set forth in the Bill of Information to whichMcGee pled guilty, McGee willfully conspired to join with others, underthe cover of darkness, to burn numerous crosses at chosen places in andaround Shreveport. July 27, 1991, Shreveport Times; July 28, 1991, MeridianStar; see also, May 30, 1991, Shreveport Times.7
S OF LAW
249. Section 5 of the Voting Rights Act of 1965, 42 U.S.C. 1973c, prohibitsa covered jurisdiction like the Bossier Parish School Board from implementingany "voting qualification or prerequisite to voting, or standard, practice,or procedure with respect to voting different from that in force or effecton November 1, 1964" unless and until it has proven to either thisCourt or the Attorney General that the voting change at issue "doesnot have the purpose and will not have the effect of denying or abridgingthe right to vote on account of race or color."
250. In an action for a declaratory judgment under Section 5, the burdenof proof is on the plaintiff. South Carolina v. Katzenbach, 383 U.S. 301,328 (1966).
251. To sustain that burden, the Bossier Parish School Board must demonstratethe absence of both discriminatory purpose and discriminatory effect inthe adopting and maintenance of its 1992 redistricting plan. City of Romev. United States, 446 U.S. 156, 172 (1980); City of Richmond v. United States,422 U.S. 358, 378-379 (1975). In addition, the plan may not be preclearedpursuant to Section 5 if implementation of the plan will result in a violationof Section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973.
252. The 1992 redistricting plan is not retrogressive to minority votingstrength compared to the existing benchmark plan and therefore will nothave a discriminatory effect, as that term has been construed by the SupremeCourt in Beer v. United States, 425 U.S. 130 (1975). The reductions hereare de minimis. But this does not end the inquiry. As this Court has recognized,"nonretrogression is not the only test for compliance with the VotingRights Act." Busbee v. Smith, 549 F. Supp. 494, 516 (D.D.C. 1982).Even if a plan increases black voting strength, plaintiff is not entitledto the declaratory judgment unless it can also demonstrate the absence ofa racially discriminatory purpose. Ibid.
253. The inquiry into whether the plan has a discriminatory purpose requiresan examination into any circumstantial or direct evidence of intent thatis available. Village of Arlington Heights v. Metropolitan Housing DevelopmentCorp., 429 U.S. 252, 266 (1977); Rogers v. Lodge, 458 U.S. 613, 618 (1982)."(I)nvidious discriminatory purpose may often be inferred from thetotality of the relevant facts." Washington v. Davis, 426 U.S. 229,242 (1976). Relevant areas of inquiry include: (1) the historical backgroundof the decision; (2) the sequence of events leading up to the action taken;(3) procedural departures from the customary decisional process; (4) substantivedepartures from the normal process; and (5) the legislative or administrativehistory, including contemporary statements by the members of governing body,minutes of their meetings, and any testimony by the decision makers regardingtheir intent. Village of Arlington Heights v. Metropolitan Housing DevelopmentCorp., supra, 429 U.S. 267-68; see Garza v. County of Los Angles, 918 F.2d763, 771 (9th Cir. 1990). In obtaining a declaratory judgment that the proposedplan is free of any racially discriminatory purpose, the plaintiffs mustshow the absence of such factors.
254. The impact of the official action on the minority group often provides"an important starting point" to the determination of whetherinvidious intent is implicated. Village of Arlington Heights v. MetropolitanHousing Development Corp., supra, 429 U.S. at 266; Busbee v. Smith, supra,549 F. Supp. at 517 (three-judge court). As Justice Stevens observed inWashington v. Davis, "Frequently the most probative evidence of intentwill be objective evidence of what actually happened rather than evidencedescribing the subjective state of mind of the actor. For normally the actoris presumed to have intended the natural consequences of his deeds."426 U.S. at 253 (concurring opinion).
255. The objective of protecting incumbents' opportunities for reelectionis a well recognized political reality of the redistricting process andis not per se evidence of racial animus. Rybicki v. State Board of Electionsof Illinois, 574 F. Supp. 1082, 110-11, n.81 (N.D. Ill. 1982). See alsoBurns v. Richardson, 384 U.S. 73, 89, n.16 (1966). But, where, as here,the motive of protecting incumbency necessarily involves the adoption ofa plan that denies minority voters an equal opportunity to elect their preferredcandidates to the school board, it may be viewed as evidence of raciallydiscriminatory intent. Ketchum v. Byrne, 740 F.2d 1389, 1408 (7th Cir. 1984).It has been held in similar circumstances that "the requirements ofincumbency are so closely intertwined with the need for racial dilutionthat an intent to maintain a safe . . . district for [a white incumbent]is virtually coterminous with a purpose to practice racial discrimination."Rybicki v. State Board of Elections of Illinois, supra, 574 F. Supp. at1109. Here, plaintiffs must demonstrate that such incumbency considerationsdid not prevent the drawing of a minority district.
256. A finding of racially discriminatory purpose does not require a findingof racial hatred or animus. Garza v. County of Los Angeles, supra, 918 F.2dat 778 n.1 (Kozinski, J. concurring in relevant part):
The lay reader might wonder if there can be intentional discrimination withoutan invidious motive. Indeed there can. A simple example may help illustratethe point. Assume you are an anglo homeowner who lives in an all-white neighborhood.Suppose, also, that you harbor no ill feelings toward minorities. Supposefurther, however, that some of your neighbors persuade you that having anintegrated neighborhood would lower property values and that you stand tolose a lot of money on your home. On the basis of that belief, you joina pact not to sell your house to minorities. Have you engaged in intentionalracial and ethnic discrimination? Of course you have. Your personal feelingstoward minorities don't matter; what matters is that you intentionally tookactions calculated to keep them out of your neighborhood.
257. Section 5 preclearance of the Bossier Parish School Board's redistrictingplan also must be denied if the plan violates Section 2 of the Voting RightsAct, as amended, 42 U.S. C. 1973. If this Court concludes that the plaintiffhas failed to meet its burden of proof on the issue of purpose or effect,preclearance must be denied and there will be no need to decide whetherthe plan also violates Section 2 of the Act. However, should this Courtfind that the Bossier Parish School Board has met its burden of proof onthe issues of purpose and retrogression, this Court must also determinewhether the plan constitutes a violation of Section 2 for which Section5 preclearance must be denied. See S. Rep. No. 97-417, 97th Cong., 2d Sess.12 n.31 (1982); 28 C.F.R. 51.55(b)(2).
258. Section 2 of the Voting Rights Act prohibits any denial or abridgmentof the right to vote on account of face or color. Section 2 provides asfollows:
(a) No voting qualification or prerequisite to voting or standard, practice,or procedure shall be imposed or applied by any State or political subdivisionin a manner which results in a denial or abridgement of the right of anycitizen of the United States to vote on account of race or color, on incontravention of the guarantees set forth in section 4(f)(2), as providedin subsection (b).
(b) A violation of subsection (a) is established, if, based on the totalityof circumstances, it is shown that the political processes leading to nominationor election in the State or political subdivision are not equally open toparticipation by members of a class of citizens protected by subsection(a) in that its members have less opportunity than other members of theelectorate to participate in the political process and to elect representativesof their choice. The extent to which members of a protected class have beenelected to office in the State or political subdivision is one circumstancewhich may be considered: Provided, That nothing in this section establishesa right to have members of a protected class elected in numbers equal totheir proportion in the population.
42 U.S.C. 1973 ("Section 2"). See also S. Rep. No. 97-417, 97thCong., 2d Sess. (1982).
259. Absent proof of intentional discrimination, where vote dilution inviolation of Section 2 occurs, "a bloc voting majority must usuallybe able to defeat candidates supported by a politically cohesive, geographicallyinsular minority group." Thornburg v. Gingles, 478 U.S. 30, 49 (1986)(emphasis in original). In Gingles, which involved a challenge to a multimemberdistrict system, the Court enunciated three threshold factors that mustbe present to prove a vote dilution claim under Section 2: (1) the minoritygroup is sufficiently large and geographically compact to constitute a majorityin a single-member district; (2) the minority group is politically cohesive;and (3) the white majority votes sufficiently as a bloc to enable it, inthe absence of special circumstances, usually to defeat the minority's preferredcandidate. 478 U.S. at 49-51. The Supreme Court recently held that theseprerequisites also apply to challenges to redistricting plans under Section2. Growe v. Emison, 113 S. Ct. 1075 (1993); Voinovich v. Quilter, 113 S.Ct. 1149 (1993).
260. When Congress amended Section 2 it intended courts to take "a'functional' view of the political process," and to make "a searchingpractical evaluation of the 'past and present reality.'" Thornburgv Gingles, supra, 478 U.S. at 45; see also Gomez v. City of Watsonville,863 F.2d 1407, 1413 (9th Cir. 1988), cert. denied, 489 U.S. 1080 (1989).
261. The purpose of the geographic compactness criterion is to determinewhether the challenged election plan is causing the violation. As the SupremeCourt explained:
Unless minority voters possess the potential to elect representatives inthe absence of the challenged structure or practice, they cannot claim tohave been injured by that structure or practice. The single-member districtis generally the appropriate standard against which to measure minoritygroup potential . . . because it is the smallest political unit from whichrepresentatives are elected.
Thornburg v. Gingles, supra, 478 U.S. at 50, n.17 (emphasis in original).According to the Supreme Court in Gingles, the issue is whether there isan alternative to the challenged plan that would provide the minority groupwith the potential to elect candidates of choice.
262. Voting is racially polarized when racial minority voters vote differentlyfrom white voters. Thornburg v. Gingles, Supra, 478 U.S. at 53 n.21. TheSupreme Court explains that "[t]he purpose of inquiring into the existenceof racially polarized voting is twofold: to ascertain whether minority groupmembers constitute a politically cohesive until and to determine whetherwhites vote sufficiently as a bloc usually to defeat the minority's preferredcandidates." Thornburg v. Gingles, supra, 478 U.S. at 56. Raciallypolarized voting is legally significant if minority voters are cohesivein support of their candidates and those candidates are usually defeatedby white bloc voting. Ibid. The reasons why those racial differences invoting patterns occur are not relevant to the basic polarization inquiry.Thornburg v. Gingles, supra, 478 U.S. at 61-74; 478 U.S. at 100 (O'Connor,J., concurring).
263. According to the Supreme Court in Gingles, the statistical method ofecological regression analysis, used here by the expert witness for theUnited States, is the standard method for establishing racially polarizedvoting and in most circumstances it produces valid and reliable estimatesof voting behavior for racial groups. See, e.g., Thornburg v. Gingles, supra,478 U.S. at 52-53 & n.20; Campos v. City of Baytown, supra; Citizensfor a Better Gretna v. City of Gretna, 834 F.2d 496 (5th Cir. 1987); Garzav. County of Los Angeles, 756 F. Supp. 1298, 1331-1334 (C.D. Cal.), aff'd,918 F.2d 763 (9th Cir. 1990), cert. denied, 498 U.S. 1028 (1991). In addition,homogeneous precinct analysis (also known as extreme case analysis) andanecdotal testimony can provide further evidence on the polarization issue.See Romero v. City of Pomona, 883 F.2d 1418 1423; Garza v. County of LosAngeles, supra, 756 F. Supp. at 1332.
264. The racial polarization inquiry in vote dilution cases should focuson contest between minority candidates and non-minority candidates. A focuson such elections appropriately ties together the two key Senate Reportfactors: racial polarization and "the extent to which members of theminority group have been elected to public office." S. Rep. No. 97-417,supra, at 29 & n.115. In Citizens for a Better Gretna v. City of Gretna,834 F.2d 496 (5th Cir. 1987), the Fifth Circuit ruled, "implicit inthe Gingles holding is the notion that black preference is determined fromelections which offer the choice of a black candidate." Id. at 503.See also Smith v. Clinton 687 F. Supp. 1310, 1316-17 (E.D. Ark. 1988), summarilyaff'd, 488 U.S. 988 (1988) (three-judge court).
265. Generally, where it is available, the best evidence to measure raciallypolarized voting is the elections conducted for positions within the challengedelection system. Analysis of elections outside the challenged system isappropriate, however, if viable minority candidates have been deterred fromseeking office. Cf. Westwego Citizens for Better Gov't v. City of Westwego,872 F.2d, 1201, 1208-1209 n.9 (5th Cir. 1989); McMillan v. Escambia County,748 F.2d 1037, 1045 (5th Cir. 1984); Garza v. County of Los Angeles, supra,756 F. Supp. at 1329.
266. After the preconditions have been established, the court must examinethe "totality of circumstances" to determine whether minoritygroup members have an equal opportunity to participate in the politicalprocess and elect representatives of their choice. Johnson v. De Grandy,114 S. Ct. 2647 (1994). Typical factors relevant to an inquiry into thetotality of the circumstances include, but are not limited to, the following:
1. the extent of any history of official discrimination in the state orpolitical subdivision that touched the right of the members of the minoritycommunity to register, to vote, or otherwise participate in the democraticprocess;
2. the extent to which voting in the elections of the state or politicalsubdivision is racially polarized;
3. the extent to which the state or political subdivision has used unusuallylarge election districts, majority vote requirements, anti-single-shot provisionsor other voting practices or procedures that may enhance the opportunityfor discrimination against the minority group;
4. if there is a candidate slating process, whether the members of the minoritygroup have been denied access to that process;
5. the extent to which members of the minority group in the state or politicalsubdivision bear the effects of discrimination in such areas as education,employment, and health which hinder their participation in the politicalprocess;
6. whether political campaigns have been characterized by overt or subtleracial appeals; and,
7. the extent to which members of the minority group have been elected tooffice in the jurisdiction.
S. Rep. 97-417, 97th Cong., 2d Sess. 28-29 (1982). In addition, the SenateReport listed two additional factors that may have some probative valueas part of the evidence to establish a violation of Section 2:
whether there is a significant lack of responsiveness on the part of electedofficials to the particularized needs of the members of the minority group.
whether the policy underlying the state or political subdivision's use ofsuch voting qualification, prerequisite to voting or standard, practiceor procedure is tenuous.
S. Rep. 97-417, 97th Cong., 2d Sess. 28-29 (1982). "If present, the[se]other factors . . . are supportive of, but not essential to, a minorityvoter's claim." Thornburg v. Gingles, supra, 478 U.S. at 48-49 n.15(emphasis in original). There is no requirement that all, or any particularnumber of these factors be shown in order to prove a violation of Section2. Rather, the court should "determine, based 'upon a searching practicalevaluation of the 'past and present reality,' . . . whether the politicalprocess is equally open to minority voters." Thornburg v. Gingles,supra, 478 U.S. at 79.
267. A violation of Section 2 also is shown if the evidence demonstratesthat the challenged election plan was adopted or has been maintained witha discriminatory purpose. Garza v. County of Los Angeles, 918 F.2d 763,770 (9th Cir. 1990), cert. denied, 498 U.S. 1028 (1991); see McMillan v.Escambia County, 748 F.2d 1037, 1046-47 (5th Cir. 1984); United States v.Marengo County Commission, 731 F.2d 1546, 1553 (11th Cir.), appeal dismissed,cert. denied, 469 U.S. 976, (1984); Dillard v. Baldwin County Board of Education,686 F. Supp. 1459, 1460, 1467-69 (M.D. Ala. 1988); S. Rep. No. 97-417, 97thCong., 2d Sess. 27 (1982). Courts since Thornburg have continued to analyzeintentional discrimination claims independently of the "results"test. Garza v. County of Los Angeles, supra, 918 F.2d at 766; see also Overtonv. City of Austin, 871 F.2d 529, 540-541 (5th Cir. 1989); Carrollton Branchof NAACP v. Stallings, 829 F.2d 1547, 1552-1553 (11th Cir. 1987), cert.denied sub nom. Duncan v. City of Carrollton, 485 U.S. 936 (1988); and Brownv. Bd. of Comm'rs of City of Chattanooga, 722 F. Supp. 380 (E.D. Tenn. 1989).Such proof of intentional discrimination also establishes a violation ofthe Fourteenth and Fifteenth Amendments. Rogers v. Lodge, supra, 458 U.S.at 618.
[Original document contains no ¶¶ 268-281.]
282. No redistricting plan can be designed and drawn for the Bossier ParishSchool Board with one or more black-majority districts without splittingand cutting precincts in violation of Louisiana Revised Statutes, Title17, Section 71.3. Under Louisiana law, the Bossier Parish Police Jury isthe governing authority for Bossier Parish and is vested with the authorityand duty of redistricting after each ten year census. Under Louisiana law,the precinct lines it draws may not be cut, split or otherwise violatedby the Bossier Parish School Board if the School Board is the same sizeas the Police Jury. This law is clearly set out in Louisiana Revised Statutes,Title 17, Section 71.3.
283. The majority opinion in Shaw v. Reno, ____ U.S. ____, 125 L.Ed.2d 511(1993), contends that racial gerrymandering separates the citizens on thebasis of race. Shaw stands for the legal proposition that a redistrictingplan which rationally cannot be understood as anything other than an effortto separate voters into different districts on the basis of race, withoutsufficient justification, is a violation of the Equal Protection Clauseof Fourteenth Amendment to the Constitution of the United States.
284. Vote dilution is meaningful only with respect to a norm to be established;in order to decide whether an electoral system has made it harder for minorityvoters to elect candidates they prefer, a court must have an idea in mindof how hard it should be for minority voters to elect their preferred candidatesunder an acceptable system.
285. It is fiction to conclude that only blacks can govern fairly otherblacks.
APPENDIX E
[DOJ Logo] U.S. Department of Justice
Civil Rights Division
Washington, D.C. 20035
Office of the Assistant Attorney General
[Aug. 30, 1993]
Mr. W.T. Lewis
Superintendent of Bossier
Parish Schools
P.O. Box 2000
Benton, Louisiana 71006-2000
Dear Mr. Lewis:
This refers to the 1992 redistricting plan and the renaming of districtsfrom letters to numbers for the Bossier Parish School District in BossierParish, Louisiana, submitted to the Attorney General pursuant to Section5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973c. We receivedyour response to our request for additional information on June 29, 1993.
The Attorney General does not interpose any objection to the renaming ofthe districts from letters to numbers. However, we note that Section 5 expresslyprovides that the failure of the Attorney General to object does not barsubsequent litigation to enjoin the enforcement of the change. See the Proceduresfor the Administration of Section 5 (28 C.F.R. 51.41).
We cannot reach the same conclusion with regard to the proposed redistrictingplan. We have considered carefully the information you have provided, aswell as Census data and information and comments received from other interestedparties. According to the 1990 Census, black residents comprise 20.1 percentof the total population in Bossier Parish. The Bossier Parish School District,which is coterminous with the parish, is governed by a twelve member schoolboard elected from single-member districts. Under both the existing andproposed districting plans, not one of the twelve single-member districtsis majority black in population. Currently, there are no black members onthe school board.
In light of the pattern of racially polarized voting that appears to prevailin parish elections, the proposed plan, adopted by the parish police juryand recommended by the school board's consultant, would appear to provideno opportunity for black voters to elect a candidate of their choice tothe school board. We note that under the proposed plan, the school boarddistrict with the highest black population percentage, District 4, is 45percent black. The information provided in your submission indicates thatprior to the adoption of the proposed redistricting plan, members of theblack community appeared before the school board and requested that theboard draw a redistricting plan that would fairly reflect black voting strengthin the parish by creating two majority black districts.
We are mindful of the fact that we granted Section 5 preclearance to anidentical redistricting plan for the Bossier Parish police jury in July1991. However, in reviewing the submitted redistricting plan for the schoolboard, we have taken into account new information, particularly the 1991police jury elections held under the 1991 redistricting plan and the 1992redistricting process for the school board. During that process, it appearsthat an alternative plan that would have provided for two districts whichare approximately 62 and 56 percent black in total population was presentedto the school board at a public hearing.
Our analysis of this alternative, preferred by members of the black community,shows that black residents are sufficiently numerous and geographicallycompact so as to constitute a majority in two single-member districts. Apparently,the school board rejected this plan and engaged in no efforts to accommodatethe requests of the black community, instead adopting the redistrictingplan adopted by the parish police jury. While the school board is not requiredby Section 5 to adopt any particular plan, it is not free to adopt a planthat unnecessarily limits the opportunity for minority voters to elect theircandidates of choice.
We have considered the school board's explanation that the proposed planwas adopted in order to avoid voter confusion by having the same districtingplans for both school board and police jury elections. In addition, theschool board has indicated that the need to avoid split precincts, pursuantto state law, limited its ability to adopt a redistricting plan with majorityblack districts.
We do not find either of these arguments persuasive. We understand thatduring the 1980's the school board and police jury used different districtingplans as a result of the reapportionment of the respective districts followingthe 1980 Census and no evidence has been presented to show that voter confusionresulted. And while we are aware that state law prohibits precinct splitsin school board redistricting plans, we also note that state law allowspolice juries to realign precincts and such a realignment in Bossier Parishcould have facilitated the development of a school board redistricting planwith majority black districts. The information that you have provided disclosesno evidence that the school board ever sought a precinct realignment thatwould have allowed the drawing of such a plan.
Under Section 5 of the Voting Rights Act, the submitting authority has theburden of showing that a submitted change has neither a discriminatory purposenor a discriminatory effect. See Georgia v. United States, 411 U.S. 526(1973); see also the Procedures for the Administration of Section 5 (28C.F.R. 51.52). In addition, preclearance must be withheld where a changepresents a clear violation of Section 2. 28 C.F.R. 51.55(b)(2). In lightof the considerations discussed above, I cannot conclude, as I must underthe Voting Rights Act, that the proposed redistricting plan meets the Act'spreclearance requirements. Therefore, on behalf of the Attorney General,I must object to the 1992 school board redistricting plan.
We note that under Section 5 you have the right to seek a declaratory judgmentfrom the United States District Court for the District of Columbia thatthe proposed change has neither the purpose nor will have the effect ofdenying or abridging the right to vote on account of race or color. In addition,you may request that the Attorney General reconsider the objection. However,until the objection is withdrawn or a judgment from the District of ColumbiaCourt is obtained, the 1992 redistricting plan continues to be legally unenforceable.Clark v. Roemer, 111 S. Ct. 2096 (1991); 28 C.F.R. 51.10 and 51.45.
To enable this Department to meet its responsibility to enforce the VotingRights Act, please inform us of the course of action the Bossier ParishSchool District plans to take with respect to this matter. If you have anyquestions, you should call Gaye Hume (202-307-6302), an attorney in theVoting Section.
Sincerely,
/s/ JAMES P. TURNER
JAMES P. TURNER
Acting Assistant
Attorney General
Civil Rights Division
APPENDIX F
[DOJ Logo] U.S. Department of Justice
Civil Rights Division
Washington, D.C. 20035
Office of the Assistant Attorney General
[December 20, 1993]
James M. Bullers, Esq.
District Attorney
26th Judicial District
Bossier-Webster Parishes
P.O. Box 69
Benton, Louisiana 71006
Dear Mr. Lewis:
This refers to your request that the Attorney General reconsider the August30, 1993, objection under Section 5 of the Voting Rights Act of 1965, asamended, 42 U.S.C. 1973c, to the 1992 redistricting plan for the BossierParish School District in Bossier Parish, Louisiana. We received your requeston September 7, 1993; supplemental information was received on October 20,1993.
We have reconsidered our earlier determination in this matter based on theinformation and arguments the school board has advanced in support of therequest. According to the 1990 Census, black persons comprise 20.1 percentof Bossier Parish's total population and 17.6 percent of its voting agepopulation. The school board is elected from twelve single-member districts;none of the districts in the 1992 redistricting plan subject to our objectionhave a black majority. As explained in the August 30, 1993, objection letter,our analysis of your initial submission showed that, given the apparentpattern of racially polarized voting in parish elections, black voters willbe unable to elect a candidate of their choice to the school board underthe objected-to redistricted plan. Our review of the redistricting processfurther indicated that the school board made no effort to accommodate therequest of black community that the board develop a plan with two black-majoritydistricts and gave no consideration to such a plan developed by the NAACP.
In support of its request for reconsideration, the school board continuesto argue that it is impossible to draw a redistricting plan with black-majoritydistricts without splitting precincts in violation of state law. We consideredthis argument during our prior review and found this explanation unpersuasive.Our objection letter specifically noted that the school board could have,but did not, seek a realignment of voting precincts by the Bossier ParishPolice Jury that would have facilitated the development of a plan that fairlyreflects black voting strength while addressing these state law concerns.The information made available to us indicates that the school board hasnot requested that the police jury make any necessary realignment of precincts.
In addition, your letter, citing Shaw v. Reno, 113 S. Ct. 2816 (1993), arguesthat the alternative plan developed by the NAACP is "so irrationalon its face that the plan could be understood only as an effort to segregatevoters into separate voting districts because of their race." However,the school board provides no basis in fact nor explanation for this assertion,and our analysis of the plan does not support your conclusion. Moreover,the school board does not appear to dispute the fact that black residentsare sufficiently numerous and geographically compact in the parish so thattwo black-majority districts could be created. You contend only that itis not possible to do so given current precinct configurations, which theschool board has not sought to alter. In these circumstances, Shaw v. Renodoes not provide a legal basis for withdrawing our objection, and the schoolboard's reliance upon that decision appears to be pretextual.
In light of the considerations discussed above, I remain unable to concludethat the Bossier Parish School District has carried its burden of showingthe submitted change has neither a discriminatory purpose nor a discriminatoryeffect. See Georgia v. United States, 411 U.S. 526 (1973); see also theProcedures for the Administration of Section 5 (28 C.F.R. 51.52). Therefore,on behalf of the Attorney General, I must decline to withdraw the August30, 1993, objection to the 1992 redistricting plan for the school board.
As we previously advised, the school board retains the right to seek a declaratoryjudgment from the United States District Court for the District of Columbiathat the objected-to change has neither the purpose nor will have the effectof denying or abridging the right to vote on account of race or color. Inaddition, we remind you that unless and until a judgment from the Districtof Columbia Court is obtained, the objection remains in effect and the objected-tochange continues to be legally unenforceable. Clark v. Roemer, 111 S. Ct.2096 (1991); 28 C.F.R. 51.10 and 51.48(d).
To enable us to meet our responsibility to enforce the Voting Rights Act,please inform us of the action the Bossier Parish School District plansto take concerning this matter. If you have any questions, you should callGaye Hume (202-307-6302), an attorney in the voting Section.
Sincerely,
/s/ JAMES P. TURNER
JAMES P. TURNER
Acting Assistant
Attorney General
Civil Rights Division
APPENDIX G
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 94-1495
(LHS (USCA), GK, JR)
BOSSIER PARISH SCHOOL BOARD, PLAINTIFF
v.
JANET RENO, DEFENDANT,
and
GEORGE PRICE, ET AL., DEFENDANT-INTERVENORS
[Filed: July 6, 1998]
NOTICE OF APPEAL
Notice is hereby given that, pursuant to 28 U.S.C. 1253 (which providesfor appeals directly to the United States Supreme Court from decisions ofthree-judge courts), 28 U.S.C. 2101(b) and 42 U.S.C. 1973c, defendant JanetReno hereby appeals to the United States Supreme Court from the final Orderof the United States District Court for the District of Columbia (three-judgecourt) filed on May 1, 1998 and entered on May 4, 1998, granting preclearanceunder Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C.1973c, for the 1992 redistricting plan of plaintiff Bossier Parish SchoolBoard.
Respectfully submitted,
WILMA LEWIS ANITA HODGKISS
United States Attorney Deputy Assistant
Attorney General
/s/ GAYE L. HUME
ELIZABETH JOHNSON
REBECCA J. WERTZ
GAYE L. HUME
D.C. Bar No. 394539
ROBERT A. KENGLE
JON M. GREENBAUM
Attorneys, Voting
Section
Civil Rights Division
Department of Justice
P.O. Box 66128
Washington, D.C.
20035-6128
202-307-6302
APPENDIX H
Section 5 of the Voting Rights Act of 1965, 42 U.S.C. 1973c, provides:
Whenever a State or political subdivision with respect to which the prohibitionsset forth in section 1973b(a) of this title based upon determinations madeunder the first sentence of section 1973b(b) of this title are in effectshall enact or seek to administer any voting qualification or prerequisiteto voting, or standard, practice, or procedure with respect to voting differentfrom that in force or effect on November 1, 1964, or whenever a State orpolitical subdivision with respect to which the prohibitions set forth insection 1973b(a) of this title based upon determinations made under thesecond sentence of section 1973b(b) of this title are in effect shall enactor seek to administer any voting qualification or prerequisite to voting,or standard, practice, or procedure with respect to voting different fromthat in force or effect on November 1, 1968, or whenever a State or politicalsubdivision with respect to which the prohibitions set forth in section1973b(a) of this title based upon determinations made under the third sentenceof section 1973b(b) of this title are in effect shall enact or seek to administerany voting qualification or prerequisite to voting, or standard, practice,or procedure with respect to voting different from that in force or effecton November 1, 1972, such State or subdivision may institute an action inthe United States District Court for the District of Columbia for a declaratoryjudgment that such qualification, prerequisite, standard, practice, or proceduredoes not have the purpose and will not have the effect of denying or abridgingthe right to vote on account of race or color, or in contravention of theguarantees set forth in section 1973b(f)(2) of this title, and unless anduntil the court enters such judgment no person shall be denied the rightto vote for failure to comply with such qualification, prerequisite, standard,practice, or procedure: Provided, That such qualification, prerequisite,standard, practice, or procedure may be enforced without such proceedingif the qualification, prerequisite, standard, practice, or procedure hasbeen submitted by the chief legal officer or other appropriate officialof such State or subdivision to the Attorney General and the Attorney Generalhas not interposed an objection within sixty days after such submission,or upon good cause shown, to facilitate an expedited approval within sixtydays after such submission, the Attorney General has affirmatively indicatedthat such objection will not be made. Neither an affirmative indicationby the Attorney General that no objection will be made, nor the AttorneyGeneral's failure to object, nor a declaratory judgment entered under thissection shall bar a subsequent action to enjoin enforcement of such qualification,prerequisite, standard, practice, or procedure. In the event the AttorneyGeneral affirmatively indicates that no objection will be made within thesixty-day period following receipt of a submission, the Attorney Generalmay reserve the right to reexamine the submission if additional informationcomes to his attention during the remainder of the sixty-day period whichwould otherwise require objection in accordance with this section. Any actionunder this section shall be heard and determined by a court of three judgesin accordance with the provisions of section 2284 of title 28 and any appealshall lie to the Supreme Court.
APPENDIX I
28 C.F.R. 51.55a (1997)
Consistency with constitutional and statutory requirements.
(a) Consideration in general. In making a determination the Attorney Generalwill consider whether the change is free of discriminatory purpose and retrogressiveeffect in light of, and with particular attention being given to, the requirementsof the 14th, 15th, and 24th amendments to the Constitution, 42 U.S.C. 1971(a)and (b), sections 2, 4(a), 4(f)(2), 4(f)(4), 201, 203(c), and 208 of theAct, and other constitutional and statutory provisions designed to safeguardthe right to vote from denial or abridgement on account of race, color,or membership in a language minority group.
1 Plaintiff nevertheless argued in a reply memorandum that we should takejudicial notice of the results of the 1990 school board election that tookplace subsequent to our original judgment. Why the school board would atfirst decline our invitation to reopen the record and then ask us to takejudicial notice of the election results is a mystery, but in any case wedecline to take judicial notice of the election results. Were we to considerthe election results at all, we would need more information about them.
2 "[W]e do not, contrary to Justice STEVENS' view . . . necessarilyassume that the Board enacted the Jury plan with some non-retrogressive,but nevertheless discriminatory, 'purpose.' The existence of such a purpose,and its relevance to § 5, are issues to be decided on remand."117 S.Ct. at 1491.
3 In its brief on remand, the government, only in passing, refers to theplan's "dilutive impact." Plaintiff asks us to take judicial noticethat two blacks have been elected to the School Board since we granted preclearanceof the plan. While I doubt that we may take notice of this, it seems anomalousto emphasize, as Judge Kessler does, that no black has ever been electedto the Board. See Dissent at 8.
4 The injunction was imposed on the School Board after it was found liablefor intentionally segregating the public schools. See Lemon v. Bossier ParishSch. Bd., 240 F. Supp. 709 (W.D. La. 1965), aff'd 370 F.2d 847 (5th Cir.1967), cert. denied 388 U.S. 911. See also Lemon v. Bossier Parish Sch.Bd., 421 F.2d 121 (5th Cir. 1969); Lemon v. Bossier Parish Sch. Bd., 444F.2d 1400 (5th Cir. 1971).
5 In his concurrence, Judge Silberman refers to the Plaintiff's requestthat we take judicial notice that two black individuals were elected tothe School Board since the closing of the record before the first DistrictCourt opinion. It would be inappropriate in this case to take judicial noticeof this fact. First, the Supreme Court explicitly denied the School Board'srequest to supplement the record in Reno v. Bossier Parish School Board,et al., 517 U.S. 1154 (1996). Second, the parties specifically agreed inthis remand that the record should not be reopened.
6 This conclusion is, of course, only reinforced by the School Board's concessionthat the "plan did dilute black voting strength." (Pl.'s Br. at21.)
7 Plaintiff concedes that "[t]he impact of the School Board plan doesfall more heavily on blacks than on whites". (Pl.'s Br. at 12.)
* Together with No. 95-1508, Price et al. v. Bossier Parish School Boardet al., also on appeal from the same court.
* I do not address the separate question, not presented by this case, whetherthe Department's interpretation of the Voting Rights Act, as opposed toits articulation of standards applicable to its own preclearance determinations,is entitled to deference. The regulation at issue here only purports tobe the latter.
1 As originally enacted, § 5 provided:
"Sec. 5. Whenever a State or political subdivision with respect towhich the prohibitions set forth in section 4(a) are in effect shall enactor seek to administer any vot- ing qualification or prerequisite to voting,or standard, practice, or procedure with respect to voting different fromthat in force or effect on November 1, 1964, such State or subdivision mayinstitute an action in the United States District Court for the Districtof Columbia for a declaratory judgment that such qualification, prerequisite,standard, practice, or procedure does not have the purpose and will nothave the effect of denying or abridging the right to vote on account ofrace or color, and unless and until the court enters such judgment no personshall be denied the right to vote for failure to comply with such qualificationprerequisite, standard, practice, or pro- cedure: Provided, That such qualification,prerequisite, standard, practice, or procedure may be enforced with- outsuch proceeding if the qualification, prerequisite, stan- dard, practice,or procedure has been submitted by the chief legal officer or other appropriateofficial of such State or subdivision to the Attorney General and the AttorneyGeneral has not interposed an objection within sixty days after such submission,except that neither the Attorney General's failure to object nor a declaratoryjudgment entered under this section shall bar a subsequent action to enjoinenforcement of such qualification, pre- requisite, standard, practice, orprocedure. Any action under this section shall be heard and determined bya court of three judges in accordance with the provisions of section 2284of title 28 of the United States Code [28 USCS § 2284] and any appealshall lie to the Supreme Court." 79 Stat. 439.
2 Although the majority in the District Court refused to consider any ofthe evidence relevant to a § 2 violation, the parties' stipulationssuggest that the plan violated § 2. For instance, the parties' stipulatedthat there had been a long his- tory of discrimination against black votersin Bossier Parish, see App. to Juris. Statement 130a-140a; that voting inBossier Parish was racially polarized, see id., at 122a-127a; and that itwas possible to draw two majority black districts without violat- ing traditionaldistricting principles, see id. at 76a, 82a-83a, 114a-115a.
3 Section 4 of the Act sets forth the formula for identifying the jurisdictionsin which such discrimination had occurred, see South Carolina v. Katzenbach,383 U.S. at 317-318, 86 S. Ct. at 812-813.
4 Title 28 C.F.R. § 51.55 (1996) provides:
"Consistency with constitutional and statutory requirements.
"(a) Consideration in general. In making a deter- mination the AttorneyGeneral will consider whether the change is free of discriminatory purposeand retrogressive effect in light of, and with particular attention beinggiven to, the requirements of the 14th, 15th, and 24th amend- ments to theConstitution, 42 U.S.C. 1971(a) and (b), sections 2, 4(a), 4(f)(2), 4(f)(4),201, 203(c), and 208 of the Act, and other constitutional and statutoryprovisions designed to safeguard the right to vote from denial or abridgmenton account of race, color, or membership in a language minority group.
"(b) Section 2. (1) Preclearance under section 5 of a voting changewill not preclude any legal action under section 2 by the Attorney Generalif implementation of the change subsequently demonstrates that such actionis appropriate.
"(2) In those instances in which the Attorney General concludes that,as proposed, the submitted change is free of discriminatory purpose andretrogressive effect, but also concludes that a bar to implementation ofthe change is necessary to prevent a clear violation of amended section2, the Attorney General shall withhold section 5 pre- clearance."
5 Thus, I agree with those courts that have found that the jurisdictionis not required to prove that its proposed change will not violate §2 in order to receive preclearance. See Arizona v. Reno, 887 F. Supp. 318,321 (D.D.C. 1995). Although several three-judge district courts have concludedthat § 2 standards should not be incorporated into § 5, none hasheld that preclearance should be granted when there is a clear violationof § 2; rather, they appear simply to have determined that a §2 inquiry is not routinely required in a § 5 case. See, e.g., Georgiav. Reno, 881 F. Supp. 7, 12-14 (D.D.C. 1995); New York v. United States,874 F. Supp. 394, 398-399 (D.D.C. 1994); cf. Burton v. Sheheen, 793 F. Supp.1329, 1350 (D.S.C. 1992) (holding that although courts are not "obligatedto completely graft" § 2 standards onto § 5, "[i]t wouldbe incongruous for the court to adopt a plan which did not comport withthe standards and guidelines of § 2").
6 In Lockhart the Court disavowed reliance on the amelio- rative characterof the change reviewed in Beer, see 460 U.S. at 134, n. 10, 103 S. Ct. at1004, n. 10. It left open the question whether Congress had altered theBeer standard when it amended § 2 in 1982, id. at 133, n. 9, 103 S.Ct. at 1003, n. 9, and said nothing about the possible significance of aviolation of a constitutional or statutory prohibition against vote dilution.
7 In response to this dissent, the majority contends that, at most, Beerv. United States, 425 U.S. 130, 96 S. Ct. 1357, 47 L.Ed.2d 629 (1976), allowsdenial of preclearance for those changes that violate the Constitution.See ante, at 1499- 1500. Thus, the majority apparently concedes that our"settled interpretation," ante, at 1500, of § 5 supportsa denial of preclearance for at least some nonretrogressive changes.
8 The amended version of § 2 tracks the language in White v. Regester,412 U.S. 755, 766, 93 S. Ct. 2332, 2339-2340, 37 L.Ed.2d 314 (1973).
9 The postenactment legislative record also supports the Attorney General'sinterpretation of § 5. In 1985, the Attorney General first proposedregulations requiring a denial of pre- clearance "based upon violationof Section 2 if there is clear and convincing evidence of such a violation."50 Fed. Reg. 19122, 19131. Congress held oversight hearings in which severalwit- nesses, including the Assistant Attorney General, Civil Rights Division,testified that clear violations of § 2 should not be precleared. SeeOversight Hearings before the Subcommittee on Civil and Constitutional Rightsof the House Committee on the Judiciary, Proposed Changes to RegulationsGoverning Section 5 of the Voting Rights Act, 99th Cong., 1st Sess., 47,149, 151-152 (1985). Following these hearings, the House Judiciary Subcommitteeon Civil and Constitutional Rights issued a Report in which it concluded"that it is a proper interpretation of the legislative history of the1982 amendments to use Section 2 standards in the course of making Section5 determinations." Subcommittee on Civil and Constitutional Rightsof the House Committee on the Judiciary, Voting Rights Act: Proposed Section5 Regulations, 99th Cong., 2d Sess., Ser. No. 9, p. 5 (Comm. Print 1986).Although this his- tory does not provide direct evidence of the enactingCongress' intent, it does constitute an informed expert opinion con- cerningthe validity of the Attorney General's regulation.
1 The district from which Darby was elected in 1983 and 1987 was uniquein Bossier Parish. Many of the white residents of the district resided onor near Barksdale Air Force base and tended not to vote in Bossier Parish.This district, when the largely nonvoting military population is removed,was at least 45% black for the 1983 and 1987 Police Jury elections. In the1991 Police Jury redistricting, however, the Air Force base was removedfrom Darby's district, after which he ran a suc- cessful, unopposed campaign.
2 At all relevant times, the Bossier Parish School Board has been the defendantin a lawsuit seeking the desegregation of the school district's schools.Lemon v. Bossier Parish Sch. Bd., Civ. Act. No. 10,687 (W.D. La., filedDec. 2, 1964). The School Board was found liable for intentionally segregatingits public schools in violation of the Fourteenth Amendment in Lemon v.Bossier Parish Sch. Bd., 240 F. Supp. 709 (W.D. La.1965), aff'd, 370 F.2d847 (5th Cir.), cert. denied, 388 U.S. 911, 87 S. Ct. 2116, 18 L.Ed.2d 1350(1967). In 1979, the School Board sought a declaration of unitary statusand release from continuing court supervision. The Board's motion was deniedand the school district has yet to be declared a unitary system. Of the27 schools in the school district, five have predominately black studentpopulations. [Stip ¶ 242.] The student population of Bossier Parish'sschools is roughly 29% black.
3 Throughout the 1980s, the Police Jury and School Board maintained differentelectoral districts.
4 Testimony was presented that, during the redistricting process, membersof the School Board made statements possibly indicating that the SchoolBoard was undertaking the redis- tricting with a discriminatory intent.S.P. Davis, attorney for Bossier Citizenship Education, Inc., a plaintiff-intervenorin Lemon, and a witness for defendant, testified that Board mem- ber HenryBurns told Davis that "while he personally favors having black representationon the board, other school board members oppose the idea." [U.S. Exh.106, at 17.] George Price testified that Board member Barry Musgrove toldPrice that "while he sympathized with the concerns of the black community,there was nothing more he could do for us on this issue because the Boardwas 'hostile' toward the idea of a black majority district." [D-I Exh.B at ¶ 28.] Price further testified that Board member Thomas Myricktold Price and Thelma Harry, another intervenor and a member of the BentonCity Council, that "he had worked too hard to get [his] seat and thathe would not stand by and 'let us take his seat away from him.'" [Id.at ¶ 29; D-I Exh. E at ¶ 19.]
5 Both the Police Jury plan and the NAACP plan appear in an appendix tothis opinion.
6 Because we hold, as is discussed below, that section 2 of the Voting RightsAct, 42 U.S.C. § 1973, has no place in this section 5 action, muchof the evidence relevant only to the section 2 inquiry is not discussedin this opinion. We, of course, express no opinion on the merits of anycase that may be filed under section 2.
7 Plaintiffs "stipulated" that "[s]ection 5 preclearanceof the Bossier Parish School Board's redistricting plan also must be deniedif the plan violates Section 2 of the Voting Rights Act, as amended, 42U.S.C. 1973." [Stip ¶ 257.] Why plaintiffs would stipulate toa legal conclusion that no court considering the question has ever agreedto is beyond us. That plaintiffs did so stipulate does not, however, putthe question beyond us. See Kamen v. Kemper Fin. Servs., 500 U.S. 90, 99,111 S. Ct. 1711, 1718, 114 L.Ed.2d 152 (1991) ("When an issue or claimis properly before the court, the court is not limited to the parti- cularlegal theories advanced by the parties, but rather retains the independentpower to identify and apply the proper con- struction of governing law.").In any event, plaintiff's strenu- ous argument that Miller v. Johnson, --U.S. --, 115 S. Ct. 2475, 132 L.Ed.2d 762 (1995), is dispositive of thiscase is appar- ently inconsistent with its stipulation.
8 A "covered jurisdiction" is a "State or political sub-division with respect to which the prohibitions set forth in section 1973b(a)of [title 42] based upon determinations made under the first sentence ofsection 1973b(b) of [title 42] are in effect." The prohibitions applyto any State or political sub- division
which (i) the Attorney General determines maintained on November 1, 1964,any test or device, and with respect to which (ii) the Plaintiff's [sic]Director of the Census determines that less than 50 per centum of the personsof voting age residing therein were registered on November 1, 1964, or thatless than 50 per centum of such persons voted in the presidential electionof November 1964.
42 U.S.C. § 1973b(b). A "test or device" is
any requirement that a person as a prerequisite for voting or registrationfor voting (1) demonstrate the ability to read, write, understand, or interpretany matter, (2) demonstrate any educational achievement or his knowledgeof any particular subject, (3) possess good moral character, or (4) provehis qualifications by the voucher of registered voters or members of anyother class.
Id. § 1973b(c). The Bossier Parish School Board is indisputably a "coveredjurisdiction."
9 Defendant also argues that these cases are wrongly decided and that as"the decisions of co-equal panels of this Court do not constitute bindingprecedent on this Court." [Def. Br. at 33.] Although we need not bebound by the decisions of co-equal panels, see In re Korean Air Lines Disaster,829 F.2d 1171, 1176 (D.C. Cir.1987), aff'd sub nom. Chan v. Korean Air Lines,Ltd., 490 U.S. 122, 109 S. Ct. 1676, 104 L.Ed.2d 113 (1989), we certainlycan be persuaded by them, particularly given the three-judge constitutionof these panels and the fact that, in this curious corner of the law, theonly entity besides co-equal panels of this court that can ever considerthese questions is the Supreme Court.
10 The federalism costs of section 5 (even without the im- portation ofsection 2) have been noted throughout its history. See Georgia v. UnitedStates, 411 U.S. 526, 545, 93 S. Ct. 1702, 1713, 36 L.Ed.2d 472 (1973) (Powell,J., dissenting) ("It is indeed a serious intrusion, incompatible withthe basic struc- ture of our system, for federal authorities to compel aState to submit its legislation for advance review."); South Carolinav. Katzenbach, 383 U.S. at 359-60, 86 S. Ct. at 834 (Black, J., dissentingin part) ("[section] 5 which gives federal officials power to vetostate laws they do not like is in direct conflict with the clear commandof our Constitution that 'The United States shall guarantee to every Statein this Union a Republi- can Form of Government'"); Georgia v. Reno,881 F. Supp. at 13 n. 8 (noting that the "extraordinary nature of section5" argued against importing section 2 into section 5).
11 Compare the Attorney General's August 30, 1993 letter ("[T]he proposedplan, adopted by the parish police jury and recommended by the school board'sconsultant, would appear to provide no opportunity for black voters to electa candidate of their choice to the school board." (emphasis added))with sec- tion 2 (a violation of section 2 is proved where "it is shownthat the political processes leading to nomination or election in the Stateor political subdivision are not equally open to participa- tion by [minoritycitizens] in that [they] have less opportunity than other members of theelectorate to participate in the political process and to elect representativesof their choice" (emphasis added)).
12 At closing argument, defendant's counsel was presented with the questionof whether a school board that affirmatively decides not to take race intoaccount in any way could be found to have violated section 5. Counsel statedthat a school board with the history and context of the Bossier Parish SchoolBoard declined to take race into account would indeed violate section 5.This strikes us as double counting. The reason the Bossier Parish SchoolBoard is subject to section 5 at all is, at least in part, because of itshistory and context. Now that it is subject to section 5, defendant wouldagain cite the School Board's history as a reason to saddle it with theadditional burden of affirmatively taking race into account in order toprove that it did not have the proscribed purpose.
13 It is particularly anomalous where the voting change has no retrogressiveeffect and the political subdivision thus bears the burden of proving thatwhen it did nothing bad, it did so with a non-bad motive.
14 A panel of this court recently stated that, in order to prove that ithas not acted with the prohibited intent, the section 5 plaintiff, "[a]sa practical matter," must come forward with evidence of legitimate,nondiscriminatory motives for the proposed changes to the voting laws. Inaddition, the plaintiff must furnish some affirmative evidence that theproposed changes were not motivated by a discriminatory purpose. Once thesection 5 plaintiff has made such a showing, the burden shifts to the AttorneyGeneral, as the party resisting pre- clearance, to provide some evidenceof a discriminatory pur- pose on the part of the legislators who seek tomake the change. In the absence of such a showing, the section 5 plaintiffwill be found to have carried its burden of establishing a lack of dis-criminatory purpose. New York v. United States, 874 F. Supp. at 400. Thatopinion, unfortunately, did not cite any authority for this division ofthe burden of proof.
15 In the course of litigation, the School Board has offered several reasonsfor its adoption of the Police Jury plan that clearly were not real reasons.At one point, the School Board maintained that it adopted the plan (on October1, 1992) to avoid running afoul of Shaw v. Reno, 509 U.S. 630, 113 S. Ct.2816, 125 L.Ed.2d 511 (1993) (decided June 28, 1993).
16 We note the difficulty involved in giving weight to testi- mony as toan out-of-court statement by a third party con- cerning the mental stateof other, unnamed third parties.
17 When asked at oral argument for the best evidence of discriminatory purpose,counsel for defendant-intervenors pointed to the remarks of the school boardmembers. Our dis- senting colleague thinks little of this evidence: "Thesestate- ments standing alone would certainly be insufficient to show discriminatorypurpose." Dissent at 459.
18 Defendant mentions the continuing duty of the School Board to "remedyany remaining vestiges of the dual [school] system" under the orderin Lemon v. Bossier Parish School Board, 240 F.Supp. 709 (W.D. La. 1965),citing in particular the School Board's failure to maintain a biracial committee.We fail to see how this can be in any way related to the School Board'spurpose in adopting the Police Jury plan.
1 While it may be true that this burden-shifting scheme is "anomalousunder our law," Maj. Op. at 445-446, that should have no influenceon our decision. Congress decides how to write the country's statutes, andCongress clearly believed that the states' open defiance of the Equal ProtectionClause-what the Supreme Court called an "insidious and pervasive evil,"-SouthCarolina v. Katzenbach, 383 U.S. 301, 309, 86 S. Ct. 803, 808, 15 L.Ed.2d769 (1966), was serious enough to warrant the "federalism costs,"Maj. Op. at 444, of the Voting Rights Act.
2 It is telling that the majority never once refers to Arling- ton Heightswhen they evaluate the evidence submitted by the Department and Intervenors.See Maj. Op. at 447-449. Indeed, the majority articulates no standard bywhich it decides whether "the School Board's evidence is more persuasivethan the evidence proffered against it." Maj. Op. at 446.
3 In addition to the plan presented to the School Board on September 3,1992, Defendant-Intervenors have presented two other plans that show itis possible to draw majority-black dis- tricts in Bossier Parish which arefully consistent with tradi- tional districting principles.
4 The majority excludes evidence of historical discrimina- tion in the BossierPublic Schools and Bossier Parish because it believes that such "evidence[is] relevant only to the section 2 inquiry." Maj. Op. at 440, n.5.In my view, the majority wrongly believes that once we decide that sections2 and 5 are analytically distinct, we may not use evidence of historicaldiscrimination (which is central to a section 2 inquiry) to decide the "purpose"prong of section 5. But as the panel recently explained in Arizona v. Reno,887 F. Supp. at 323, nothing in the statute or case law leads to that conclusion."Although the inquiry required under the purpose prong of section 5extends into areas that would also be relevant in a section 2 proceeding,"that does not mean that considering evidence of historical discriminationis "tantamount to launching a section 2 proceeding . . . under theguise of section 5." Id. at 323. More importantly, excluding evidenceof historical discrimination contravenes the Supreme Court's explicit directionin Arlington Heights, where the Court stated that among the factors to considerin the "purpose" inquiry is the "historical background ofthe decision . . . particularly if it reveals a series of official actionstaken for invidious purposes." 429 U.S. at 268, 97 S. Ct. at 564. Inshort, the majority ignores the standard the Supreme Court established togovern precisely the type of inquiry we must make in this case.
5 See discussion at pages 443-444, infra.
6 For example, the Board seems to have abandoned its con- cerns about thePolice Jury plan pitting incumbents against each other.
7 Def.-Int. Bf. at 20.
8 Stips. ¶¶ 204, 208, 211.
9 The majority argues that the appointment of Jerome Blunt to fill a vacantseat on the Board "proved [the Members'] lack of hostility to thissort of black representation." Maj. Op. at 447. However, Mr. Bluntwas appointed to represent a district that was only 11% black, and his shorttenure on the job was a stark reminder of the highly polarized voting inBossier Parish, see section II(A), supra. Mr. Blunt's chances of reelectionwere slight, and his short-lived appointment was a far-cry from the fulltenure of an elected black school committee member. The majority notes,however, that the "timing and context" of Blunt's appointmentindicate that the Board acted for legitimate reasons. Maj. Op. at 447. Thefacts suggest the opposite. Blunt was appointed on September 17, 1992-squarelyin the middle of the controversy surrounding the redistricting plan-at thevery meeting where the Board adopted a motion of intent to adopt the PoliceJury plan and after George Price had made his demands for a majority-blackdistrict. Certainly, Board members knew that adopting the Police Jury planwould ignite controversy in the black community. And on the very night ofthat decision, the School Board appointed a black to fill a seat that theyknew he would be unable to hold, hoping to quell the political furor overadoption of the Police Jury plan.
10 Laker Airways Limited v. Pan American World Air- ways, 568 F. Supp. 811,816 (D.D.C. 1983). While Judge Harold Greene made this observation in avery different context (an antitrust case), its pithiness and wisdom applybeyond that context.
11 Because of the paucity of public discussion about the Board's decision(except for those who opposed it), and because the Board left virtuallyno legislative history, we cannot assess the "minutes of its meetings,or reports." Arlington Heights, 429 U.S. at 268, 97 S. Ct. at 565.Given the considerable evi- dence showing discriminatory purpose, however,the Board's failure to document its decisionmaking process is certainlysus- pect.
12 It is hard to accept the majority's unduly charitable char- acterizationof this decision as nothing more than "an under- standable, if notnecessarily laudable, retreat from a highly charged public debate,"Maj. Op. at 449, when the evidence shows overwhelmingly that the black communitywas excluded from that public debate. School Board members did more thansimply retreat from a political debate; in the guise of "expediency,"Dep. of Myrick, they excluded black citizens from the only process thatwould allow that community to elect a candidate of its choice.
1 The Defendant and defendant-intervenors do not dispute this assertion,but maintain that it is irrelevant.
2 The plan submitted by the Police Jury to the Justice Department differedslightly from the Plan reflected in the April 30, 1991 Police Jury minutes.The differences are not material to this case.
3 According to the 1990 Census, the total population of Precinct 2-15 (in1990) is 5,440; the total voting age population of the precinct is 3,703,of whom 61 percent were non-Hispanic white and 32 percent were non-Hispanicblack. The Census block that comprised the Air Force Base portion of theprecinct in 1990 contained a total population of 3,327, of whom 75 percentwere non-Hispanic white and 22 percent were non-Hispanic black. If thatCensus block is removed from the precinct, the total voting age populationis 1,447, of whom 46 percent are non-Hispanic white and nearly 50 percentnon-Hispanic black. As of April 29, 1989, there were 1,229 registered votersin Precinct 2-15, of whom 55 percent were white and 44 percent were black.
4 The plaintiff does not dispute the assertions in paragraphs 183 through185, but maintains that they are irrelevant.
5 The plaintiff does not dispute the assertions in paragraphs 214 through223, but maintains that they are irrelevant.
6 The defendant and defendant intervenors do not dispute this assertion,but maintain that it is irrelevant.
7 The plaintiff does not dispute the assertions in paragraphs 245 through247, but maintains that they are irrelevant.
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