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Nos. 98-405 and 98-406: Reno v. Bossier Parish School Board

Nos. 98-405 and 98-406

In the Supreme Court of the United States

JANET RENO, ATTORNEY GENERAL, APPELLANT

v.

BOSSIER PARISH SCHOOL BOARD

GEORGE PRICE, ET AL., APPELLANTS

v.

BOSSIER PARISH SCHOOL BOARD

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

REPLY BRIEF ON REARGUMENT
FOR THE FEDERAL APPELLANT

SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217






In the Supreme Court of the United States

No. 98-405
JANET RENO, ATTORNEY GENERAL, APPELLANT

v.

BOSSIER PARISH SCHOOL BOARD

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

REPLY BRIEF ON REARGUMENT
FOR THE FEDERAL APPELLANT


1. The Proper Scope of Section 5

a. Appellee contends (Bd. Br. 1-4)1 that the purpose prong of Section 5of the Voting Rights Act of 1965, 42 U.S.C. 1973c, bars only new votingpractices with the purpose to worsen the electoral position of minorities,and that this limitation is found in the statutory term "abridge."Contary to appellee's contention (Bd. Br. 9), however, this Court has neverheld that "abridge" in Section 5 refers only to retrogression.As we have pointed out (Gov't Rearg. Br. 3-4), such a construction wouldbe untenable, for Sections 2(a) and 3(c) of the Act also use "abridge,"see 42 U.S.C. 1973(a), 1973a(c), and yet those provisions are not limitedto prohibiting retrogression. Further, Section 5 was phrased to echo theFifteenth Amendment, which provides that the right to vote "shall notbe denied or abridged" on account of race, U.S. Const. Amend. XV, §1, but it could not be seriously maintained that the Fifteenth Amendmentprohibits only retrogressive practices.2
Appellee also suggests (Bd. Br. 4-6) that Section 5 could not have beenintended to prevent the perpetuation of unconstitutional discriminationbecause it is reactive to changes proposed by a covered jurisdiction. Appelleereasons that, if preclearance were denied on the ground that the new votingpractice would perpetuate discrimination, the denial would simply leavethe prior discrimination in place. That argument ignores the reality ofmost changes to election laws, which are set in motion by a need to addresssome change in circumstances. Redistricting (as in this case) provides auseful example. Appellee was under a constitutional obligation to redistrictbecause its 1980s plan was malapportioned. Section 5 prevented it from adoptinga plan with a racially discriminatory purpose. The constitutional imperativeof reapportionment, however, prevented it from doing nothing.3

b. Appellee's effort to distance Section 5 from the Constitution leads itto decidedly odd assertions about the function that Congress intended forthe preclearance remedy. Appellee suggests (Bd. Br. 7) that Congress intendedthe elimination of discrimination to be accomplished entirely by the suspensionof tests and devices in Section 4 of the Act, 42 U.S.C. 1973b, and designedSection 5 preclearance merely as a backstop against any retrogression fromthe new and improved, nondiscriminatory state. That argument is misconceived.As we have explained (Gov't Rearg. Br. 10-13), Congress has always understoodSection 5 as preventing both retrogression and conscious attempts to perpetuatediscrimination by new means. Thus, when Congress reenacted Section 5 in1970, it was well aware that Section 4 had not by itself eliminated allracially discriminatory infringements of the right to vote, and the HouseJudiciary Committee stated that extension of Section 5 was "essential"both to safeguard gains achieved and "to prevent future infringementsof voting rights based on race or color." H.R. Rep. No. 397, 91st Cong.,1st Sess. 5 (1969); see also City of Rome v. United States, 446 U.S. 156,182 (1980).
Appellee further argues (Bd. Br. 12 n.6) that, although there were jurisdictionsthat had successfully prevented any black citizens from registering or votingin their elections before Section 5 was enacted, it would nonetheless havebeen theoretically possible for those jurisdictions to bring about retrogression.According to appellee, in sum, no matter how bad things were in 1965, theycould always have been worse. But even if we assume arguendo that a jurisdictionthat had for years successfully prevented a single black citizen from registeringto vote might somehow have brought about a further erosion of blacks' rightto vote, it is scarcely conceivable that Congress intended Section 5 tohave only the minuscule function of barring such "retrogression."By that hypothesis, Section 5 would have been least significant in the jurisdictionswith the worst history of official racial discrimination in voting.

c. Appellee also strains to avoid the import of this Court's precedents.Concerning City of Pleasant Grove v. United States, 479 U.S. 462 (1987),appellee speculates that Pleasant Grove's annexation of an all-white enclavemight have been intended to cause retrogression because, appellee asserts(Bd. Br. 20), Pleasant Grove had 32 black residents. But every Justice onthis Court, as well as the district court, decided Pleasant Grove on theassumption that the town was all-white at the time of the annexation, andthat assumption was shared by the parties litigating the case. See 479 U.S.at 465 n.2 (opinion of the Court); id. at 475 (Powell, J., dissenting);City of Pleasant Grove v. United States, 568 F. Supp. 1455, 1456 n.3 (D.D.C.1983). Pleasant Grove's officials had been unaware of the presence of anyblack residents of the town, see 479 U.S. at 465 n.2, and so they couldnot have acted with the purpose to worsen the existing voting strength ofthose residents. The officials' objective was to maintain the status quo.See id. at 472.4
Appellee also misapprehends the holding of City of Richmond v. United States,422 U.S. 358 (1975). Appellee observes (Bd. Br. 10-11) that the allegeddiscriminatory purpose behind the annexation at issue in that case was apurpose to reduce the voting strength of blacks in Richmond from its pre-annexationlevel; indeed, the Court held that, if the annexation was in fact designedfor that purpose, then it should be denied preclearance-even though thevery same reduction in the voting strength of blacks in Richmond was permissibleunder Section 5's effect prong, as applied in the annexation context. See422 U.S. at 378. That holding of City of Richmond, however, conclusivelydemonstrates that appellee's reading of Section 5 is wrong. If appelleewere correct that the purpose and effect prongs of Section 5 must be coterminous,then City of Richmond could not have been correctly decided. That case standsfor the proposition that a jurisdiction's "purpose" to achievea particular outcome (there, a particular reduction in minority voting strength)may require denial of preclearance under the purpose prong, even when nonpurposefulofficial action with exactly the same "effect" does not requiredenial of preclearance under the effect prong. Thus, while appellee arguesthat, "[i]f the result is legitimate, it is difficult to understandwhy it becomes illegitimate simply because it is intended," Bd. Br.12, the Court rejected that very position when it explained in City of Richmondthat "it could be forbidden by § 5 to have the purpose and intentof achieving only what is a perfectly legal result under that section."422 U.S. at 378.5

d. Appellee persistently accuses the Department of Justice of pursuing a"maximization" policy requiring covered jurisdictions to createas many majority-black districts as possible.6 This case, however, has nothingto do with maximization. When the Department interposed an objection toappellee's 1992 plan, it made clear that appellee was "not requiredby Section 5 to adopt any particular plan." J.S. App. 235a. The Departmentdetected a discriminatory purpose in the plan, not just because it providedfor no majority-black districts (much less any "maximum" possiblenumber), but also because appellee had manipulated the redistricting processto override the concerns of the black community, and had failed even toconsider whether blacks would be represented fairly under the 1992 planwhen (as appellee later stipulated) it was "obvious" that at leastone reasonably compact, majority-black district could be drawn using traditionaldistricting criteria. Id. at 154a-155a.
The Department of Justice analyzed appellee's plan under the purpose prongas it analyzes all voting changes submitted for preclearance, by applyingthe factors set forth in Village of Arlington Heights v. Metropolitan HousingDevelopment Corp., 429 U.S. 252, 265-266 (1977). The "impact"of the plan is an "important starting point" for determining whetherthere is a constitutional violation, see id. at 266, but it is never theentirety of the purpose analysis, and in this case, other Arlington Heightsfactors are especially compelling, particularly the "sequence of eventsleading up to the challenged decision," see id. at 267. That sequenceincluded appellee's sudden decision to sacrifice its traditional districtingpriorities, including incumbency protection, for a plan it had previouslyfound ill-suited for school board elections, when it was presented withevidence that a majority-black district was feasible and desired by theblack community.7

e. In the end, appellee is reduced to making arguments against Section 5itself. Appellee argues that local federal district courts hearing conventionalconstitutional challenges to voting practices are better suited than thepreclearance district court in the District of Columbia to evaluate theissue of a covered jurisdiction's discriminatory intent (Bd. Br. 2, 14);that authority to evaluate new voting practices for their discriminatorypurpose should not be lodged with the Attorney General at all (id. at 17);that, by requiring the covered jurisdiction to obtain preclearance beforeimplementing a new voting practice, Section 5 effects an unprecedented intrusionon state sovereignty (ibid.); and that covered jurisdictions should notbe "second-class citizens who must affirmatively disprove their guilt"(id. at 24). These were, of course, the arguments raised against Section5 by its opponents in Congress, but they were rejected by Congress in 1965,1970, 1975, and 1982. They were also raised against Section 5's constitutionalityin South Carolina v. Katzenbach, 383 U.S. 301, 334-335 (1966), and wererejected in that case.
Finally, it simply is not the case that, in 34 years of evaluating preclearancesubmissions for discriminatory intent, the preclearance court and the AttorneyGeneral have exercised a "standardless power" (Bd. Br. 17). Rather,the court and the Attorney General have evaluated discriminatory purposeunder standards consistent with the Arlington Heights framework. In Section5 declaratory judgment actions, the preclearance court has never limitedits purpose analysis to a search for retrogressive purpose (other than inthis case). The Attorney General's approach to the statute has been thesame. See Gov't Rearg. Br. 13. Appellee has failed to show that this consistentapproach over 34 years has rendered the statutory scheme unworkable or damagedthe Nation's constitutional structure.

2. Burden of Proof

Appellee has made no argument based on the text or legislative history ofSection 5 that the burden of proof on the question of purpose should restwith the government. Indeed, appellee acknowledges (Bd. Br. 24) that a coveredjurisdiction has the burden of proof on the question of retrogressive purpose,as well as effect, and that the text of the statute requires that conclusion.But if we are correct that Section 5 forbids implementation of a new practicewith a discriminatory but nonretrogressive purpose (as well as a retrogressivepurpose), then it is impossible to read the statute as requiring the governmentto bear the burden of proof on the nonretrogressive purpose, while requiringthe jurisdiction to prove the absence of a retrogressive purpose.
Appellee argues only (Bd. Br. 22-24) that, because the government previouslyassumed the burden to prove a "clear violation" of the "results"standard of Section 2 as a basis for denial of preclearance under Section5, the government should be deemed to have assumed the burden of proof onthe question of purpose as well. As we have explained (Gov't Rearg. Br.19 n.11), the government's assumption of the burden of proof on the Section2 results issue was intertwined with its position that a clear violationof Section 2's results standard required denial of preclearance, which thisCourt held to be erroneous. That the government erred in one aspect of itsconstruction of Section 5 once is hardly a basis for creating new errorin the different context here. The government has always taken the positionthat the covered jurisdiction bears the burden of proof on purpose in Section5 preclearance actions, and the Attorney General has consistently appliedthat burden of proof in administrative preclearance proceedings as well.See Georgia v. United States, 411 U.S. 526 (1973).8 And although appelleesuggests (Bd. Br. 25) that placing the burden of proof on the governmentis necessary to avoid constitutional doubts about Section 5, the Court longago turned aside the argument that placement of the burden of proof on thecovered jurisdictions creates any constitutional difficulty. See South Carolinav. Katzenbach, 383 U.S. at 335.

* * * * *

For the foregoing reasons, as well as those set forth in our earlier briefs,the judgment of the district court should be reversed.
Respectfully submitted.

SETH P. WAXMAN
Solicitor General


AUGUST 1999


1 In this brief, "Bd. Br." refers to appellee's principal brieffiled on reargument; "Gov't Rearg. Br." refers to the government'sprincipal brief filed on reargument; and "Gov't Opening Br." refersto the government's original brief on the merits filed in March 1999.

2 To avoid the problem that "abridge" in the Fifteenth Amendmentis not limited to retrogression, appellee suggests that "abridge"as used in the Amendment necessarily requires another kind of comparison,namely, a comparison of a racially discriminatory voting practice to a specific,hypothetical state of enhanced minority voting strength (Bd. Br. 4). Thatargument is incorrect. Although the specific concept of vote dilution requirescomparison to an undiluted state, see Holder v. Hall, 512 U.S. 874, 880(1994) (opinion of Kennedy, J.), it is quite possible to find an unconstitutionalimpairment of voting rights on account of race without pointing to a specific,alternative, nondiscriminatory state. For example, if a State were to createa new political entity with boundaries similar to those in Gomillion v.Lightfoot, 364 U.S. 339 (1960), those boundaries would demonstrate the existenceof a racially discriminatory purpose, even if it was not certain what linesthe State would have drawn if it had acted without a discriminatory purpose.
Under Village of Arlington Heights v. Metropolitan Housing Development Corp.,429 U.S. 252 (1977), the relative impact of any decision on minority andwhite voters is an "important starting point" for determiningthe existence of discriminatory intent, id. at 266-267, but it is not theentirety of the analysis, and Arlington Heights does not require a comparisonwith an ideal, nondiscriminatory state as a predicate to a finding of discriminatoryintent. Of course, the presence of a readily apparent nondiscriminatoryalternative might be important evidence that the State had engaged in racialdiscrimination, but it is the infection of the jurisdiction's decisionmakingby a racially discriminatory purpose, rather than a contrast with an idealstate, that supplies the constitutional violation. Indeed, it is well establishedthat an unconstitutional impairment of the right to vote on account of racemay be found even when it would be permissible for the jurisdiction to accomplishprecisely the same result for racially neutral reasons. See Gov't Rearg.Br. 8. Conversely, discriminatory intent is not established by the merefact that a voting plan has a relatively adverse impact on minorities (muchless by the fact that the plan fails to maximize the voting strength ofminorities). There may be many nondiscriminatory reasons why a jurisdictionmight fail to adopt a voting practice that would enhance minority votingstrength. The jurisdiction might be pursuing traditional, nondiscriminatorypriorities, or the possibility for minority enhancement might not be readilyapparent because minority citizens might not draw attention to it. Appelleetherefore seriously errs in arguing (Bd. Br. 11) that effect counts foreverything, and purpose for little if anything, in voting rights.

3 In many situations, a covered jurisdiction may be determined or may finditself compelled to change its voting practices because of some new priorityor objective, or some change in circumstances. In Lopez v. Monterey County,119 S. Ct. 693 (1999), for example, the changes in Monterey County's systemof electing judges requiring preclearance were undertaken pursuant to astatewide policy of court consolidation. The option of remaining in place,i.e., retaining a bifurcated court system, was neither realistic nor desiredby either the State or the County. Section 5, however, was enacted to ensurethat the consolidation (and similar changes to election laws) could notbe used to further discrimination.

4 See also Gov't Opening Br. 27-28 (explaining that Busbee v. Smith, 549F. Supp. 494 (D.D.C. 1982), aff'd mem., 459 U.S. 1166 (1983), involved redistrictingwhere retrogression was neither caused nor intended).

5 Appellee also relies (Bd. Br. 5) on City of Lockhart v. United States,460 U.S. 125 (1983), for the proposition that Section 5 is concerned onlywith retrogression, but the Court in that case applied only the effect prongof Section 5, and not the purpose prong, see id. at 130 & n.4, and theCourt's subsequent decision in City of Pleasant Grove, supra, made clearthat the purpose prong reaches beyond a purpose to cause retrogression.

6 Although little would be gained by recapitulating here the dispute inother cases and other records about whether the Department had engaged insuch a maximization policy, we do note that this Court has made quite clearthat such a policy could not be justified as a means to enforce Section5. See Miller v. Johnson, 515 U.S. 900, 923-927 (1995).

7 Appellee also argues (Bd. Br. 13) that "[t]he status quo for anyredistricting plan henceforth submitted for preclearance" is "necessarilynondiscriminatory" because the Department of Justice or the preclearancecourt has "affirmatively found" its redistricting plans to benondiscriminatory. That argument is flawed in several respects. First, whenthe Attorney General declines to interpose an objection, she does not "affirmativelyfind" a plan to be nondiscriminatory. She may decline to object becausethe evidence submitted to her does not provide a basis for suspicion ofdiscrimination, but that may be because relevant evidence is withheld. Forthat reason, and others, Section 5 permits the Attorney General to sue toenjoin a plan even if she has previously precleared it. See 42 U.S.C. 1973c.
In addition, even if a redistricting plan was adopted for nondiscriminatoryreasons in 1970, 1980, or 1990, that does not mean that it is automaticallynondiscriminatory to adopt a similar plan ten years later. Racial demographicsin the jurisdiction may change significantly during the intervening tenyears, and a jurisdiction intent on discrimination may find that minor modificationsto existing district lines are sufficient to prevent any improvement inminority voting strength. In other situations, especially where the numberof districts changes (for example, as a result of reapportionment followingthe decennial census), a jurisdiction may have ample opportunity to manipulateits boundary lines in order to prevent improvement in minority electoralopportunity, without causing retrogression. Appellee therefore errs in arguing(Bd. Br. 13-14) that, because of the anti-retrogression rule, it will beimpossible for a jurisdiction to engage in intentional vote dilution afterthe 2000 Census.

8 Contrary to appellee's suggestion (Bd. Br. 25), there is nothing absurdor impractical about placing the burden of proof on the covered jurisdictionto prove both a lawful purpose and a lawful effect in administrative proceedings.As we have explained (Gov't Rearg. Br. 14-25), a burden of proof is in effecta rule of decision governing the result when the decisionmaker is in doubtor the evidence is in equipoise. A decisionmaker may use such a rule ofdecision even when the proceedings are less formal and adversarial thanjudicial proceedings.