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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
OCTOBER TERM, 1998

JANET RENO, ATTORNEY GENERAL, APPELLANT

v.

BOSSIER PARISH SCHOOL BOARD

GEORGE PRICE, ET AL., APPELLANTS

v.

BOSSIER PARISH SCHOOL BOARD

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

REPLY BRIEF FOR THE FEDERAL APPELLANT

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




In the Supreme Court of the United States
OCTOBER TERM, 1998

No. 98-405
JANET RENO, ATTORNEY GENERAL, APPELLANT
v.
BOSSIER PARISH SCHOOL BOARD

No. 98-406
GEORGE PRICE, ET AL., APPELLANTS
v.
BOSSIER PARISH SCHOOL BOARD

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

REPLY BRIEF FOR THE FEDERAL APPELLANT

1. Justiciability.
Appellee argues (Bd. Br. 8-11)1 that this case is moot because the nextregularly scheduled School Board election will not be held until 2002, bywhich time it should have adopted a new redistricting plan. As we have explainedin our brief in opposition to appellee's motion to dismiss or affirm (at1-3), appellants retain a live interest in the outcome of this litigation.In Section 5 of the Voting Rights Act of 1965, 42 U.S.C. 1973c, Congressgranted voters (and the Attorney General) a statutory right against theimplementation of voting changes that have not been properly precleared.2Thus, if this Court reverses the district court's preclearance judgment,voters in Bossier Parish might well be entitled to a special election heldunder a lawful plan that complies fully with Section 5. That lawful planmight be developed by the Board and precleared by the Attorney General orthe district court, or (should the Board fail to hold a special electionon its own initiative) elections might be ordered by a federal court undera plan fashioned by that court as a remedy for the Board's violation ofSection 5.
Appellee suggests (Bd. Br. 11) that, if the district court's preclearancejudgment is reversed and new elections are ordered, minority voters in theParish would receive no benefit because its previous 1980s plan was littledifferent from the 1992 plan, in terms of its effect on minority votingrights. That argument proceeds from the incorrect assumption that therewould be no objection to holding elections under the 1980s plan. In fact,the 1980s plan is severely malapportioned. See J.S. App. 171a-172a. It isappropriate to assume that, if the district court's judgment is reversedand the Board then chooses or is ordered to hold a special election, theBoard would not hold the election under an unconstitutional plan; and, ifthe Board attempted to do so, use of the 1980s plan would likely be promptlychallenged in district court. Cf. J.A. 41-42 (prior equal-apportionmentchallenge to implementation of 1980s plan).
Even if this case were moot, the appropriate action would be for the Courtto vacate the lower court's judgment and to remand the case with instructionsto dismiss the complaint. See Gov't Br. in Opp. to Mot. to Dism. or Aff.2-3 n.1. Appellee erroneously relies (Bd. Br. 11-12 n.10) on U.S. BancorpMortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 26 (1994) to arguethat the Court should dismiss the appeals rather than vacate and remand.In that case, however, the controversy became moot because the parties hadvoluntarily settled the case. In such a situation, "the losing partyhas voluntarily forfeited his legal remedy by the ordinary processes ofappeal or certiorari, thereby surrendering his claim to the equitable remedyof vacatur." Id. at 25. The Court reaffirmed, however, that "[a]party who seeks review of the merits of an adverse ruling, but is frustratedby the vagaries of circumstance, ought not in fairness be forced to acquiescein the judgment." Ibid. That is the case here, where the governmentand the Price appellants have appealed twice from the district court's decisionto preclear the 1992 plan.

2. The Proper Scope of Section 5.
a. Appellee's attempt to argue that the purpose prong of Section 5 is limitedto retrogressive intent leads it to the remarkable assertion that thereis little if any connection between Section 5 and the Fifteenth Amendment.Bd. Br. 25-28; see Bd. Br. 27 ("there is very little congruence betweenthe Constitution and § 5"); Bd. Br. 28 n.21 ("nothing inthe legislative history indicates that § 5 reaches 'racially motivatedvoting changes' that violate the Constitution"). The Voting RightsAct of 1965 itself, however, stated that its principal animating purposewas "[t]o enforce the fifteenth amendment to the Constitution of theUnited States." Pub. L. No. 89-110, 79 Stat. 437.3
The weakness of appellee's effort to divorce Section 5 from the FifteenthAmendment is amply demonstrated by the outlandish consequences of its argument.Under appellee's theory, if in 1965 a town had (by law or practice) effectivelybarred all blacks from voting in town elections, and had then, after theenactment of the Voting Rights Act, enacted legislation with the purposeof accomplishing the same result--for example, by altering the jurisdiction'sboundaries to exclude all blacks from residency (cf. Gomillion v. Lightfoot,364 U.S. 339 (1960))-the Attorney General or the federal courts would havebeen required to preclear that voting change, because it would not havehad the purpose or effect of making the position of blacks in the town worse.Or, if an all-white town enacted legislation prohibiting blacks from voting,that legislation would also have to be precleared for the same reason, eventhough it would flatly violate the Fifteenth Amendment (cf. City of PleasantGrove v. United States, 479 U.S. 462 (1987)).4 The Court should reject aconstruction of Section 5 that leads to results so demonstrably at oddswith Congress's intent.5
We have also pointed out (Gov't Opening Br. 20-23) that appellee's theoryis inconsistent with the specific purpose behind the preclearance requirementof Section 5, to eliminate the pattern by which jurisdictions simply replacedone unconstitutional voting practice, struck down by the courts, with anotherone designed to accomplish the same result, requiring further litigationby the Attorney General and private parties to enjoin the replacement plan.Appellee argues (Bd. Br. 40 n.30) that a district court would not permita covered jurisdiction to substitute one discriminatory plan for another.A jurisdiction might well try to accomplish just such substitution, however.Under standard rules governing constitutional litigation, if a districtcourt strikes down one voting plan as unconstitutional, it is up to thecovered jurisdiction in the first instance to develop a new plan. See Chapmanv. Meier, 420 U.S. 1, 27 (1975). The government and voters would then berequired to go back to the district court, and would bear the burden toprove that the substitute plan was unconstitutional in order to preventits implementation-exactly the unsatisfactory situation before Section 5was enacted. Even if the jurisdiction's effort was eventually stymied bythe district court, it would have successfully delayed minority voters'enjoyment of the full exercise of their right to vote. That prospect isimpossible to square with Congress's specific objective in Section 5, "toshift the advantage of time and inertia from the perpetrators of the evilto its victims." South Carolina v. Katzenbach, 383 U.S. 301, 328 (1966).
b. The plain language of Section 5 prohibits enforcement of a voting changeenacted with the "purpose" of "denying or abridging the rightto vote on account of race" (42 U.S.C. 1973c)-language that straightforwardlyreaches a voting change enacted with the purpose to discriminate againstblack voters. Appellee presents several unpersuasive arguments to avoidthe thrust of this language. It argues (Bd. Br. 26), for example, that "onaccount of race," as used in Section 5, cannot refer to unconstitutional,purposeful racial discrimination because Congress used the same languagein amended Section 2 of the Act, 42 U.S.C. 1973, which does not containa purpose requirement. But Section 2 does reach purposeful racial discriminationin official voting practices, see City of Mobile v. Bolden, 446 U.S. 55,60-61 (1980) (plurality opinion) (emphasizing close connection between Section2 and Fifteenth Amendment), even though, like Section 5, it reaches morebroadly as well. The fact that neither statute reaches only purposeful discriminationhardly suggests that purposeful discrimination is outside either one.6
Appellee also argues (Bd. Br. 19-20) that, because Beer v. United States,425 U.S. 130, 141 (1976), held that the effect prong of Section 5 reachesonly voting changes having a retrogressive effect, the purpose prong mustalso be limited to changes enacted with the intent to retrogress. We haveexplained, however, that Beer's construction of the effect prong of Section5 reflects concerns about that statute's reach beyond the moorings of theConstitution. See Gov't Opening Br. 29-32. Beer does not suggest that theseparate purpose prong of Section 5 fails to reach all voting changes enactedwith an unconstitutional, racially discriminatory purpose. To the contrary,the Court observed in Beer that a voting change "could be a substantialimprovement over its predecessor in terms of lessening racial discrimination,and yet nonetheless continue so to discriminate on the basis of race orcolor as to be unconstitutional." 425 U.S. at 142 n.14.
In an effort to avoid the force of that language in Beer, appellee suggests(Bd. Br. 35) that Beer merely observed that "a reapportionment whichsatisfies § 5 may nonetheless violate the Constitution." But theCourt in Beer, immediately after the language quoted above, proceeded toobserve that the government had "made no claim" that the districtsat issue in that case were unconstitutional. See 425 U.S. at 142 n.14. TheCourt discussed the Constitution precisely because of its relevance to thestandards for preclearance under Section 5. The Court also stated in Beerthat an ameliorative plan "cannot violate § 5 unless [it] so discriminateson the basis of race or color as to violate the Constitution." Id.at 141 (emphasis added). Thus, the Court's discussion about unconstitutionalvoting changes related directly to its construction of Section 5. Congress,moreover, codified that precise discussion in Beer when it subsequentlyreenacted Section 5 in 1982. See Gov't Opening Br. 29.
Furthermore, if appellee's exceedingly narrow construction of Section 5'spurpose prong were correct, it is difficult to see why Congress would haveadopted it.7 As a practical matter, the purpose prong as so construed wouldadd little if anything to the retrogression analysis required under theeffect prong. In almost every case, the Section 5 inquiry would be effectivelyexhausted by an analysis of the effects of a voting change to determinewhether the change was retrogressive. If the change was retrogressive, thenpreclearance would be denied without any consideration of the change's purpose;but if the change did not have a retrogressive effect, then (in appellee'sview) preclearance could be denied only if the covered jurisdiction hadenacted the voting change in an unsuccessful effort to achieve retrogression.Nothing in the text, legislative history, or decisions of this Court construingSection 5 suggests that the purpose prong has such a trivial reach, limitedto the case of the incompetent retrogressor.8 Cf. United States v. Albertini,472 U.S. 675, 682-683 (1985) (rejecting construction of statute that wouldrender clause "almost superfluous").
c. Appellee's effort to wave away this Court's precedents fares no better.On this point we refer the Court to our opening brief (at 24-29), but wenote that appellee's effort (Bd. Br. 28-29) to recharacterize City of PleasantGrove, supra, is particularly strained. In that case, the Court denied preclearanceto annexations by an all-white town of vacant land and land populated onlyby whites for the purpose of "provid[ing] for the growth of a monolithicwhite voting block, thereby effectively diluting the black vote in advance."479 U.S. at 472. The Court could not have decided the case on the basis,suggested by appellee (Bd. Br. 29), that the annexation of land then populatedonly by whites could have made "minority voters worse off than theywere prior to the annexation," for there were no minority voters inthe City of Pleasant Grove to be made "worse off."9
Appellee appears to acknowledge (Bd. Br. 30 & n.23) that Busbee v. Smith,549 F. Supp. 494 (D.D.C. 1982), aff'd mem., 459 U.S. 1166 (1983), rejectedthe position it is now advancing, but it suggests that the Court shoulddisregard that decision because the Court mistakenly overlooked the possibilitythat the voting change considered there caused minor retrogression in oneof the two districts at issue. We have explained (Gov't Opening Br. 27-28),however, that the appeal in Busbee was presented to this Court on preciselythe opposite assumption, viz., that the plan at issue had no retrogressivepurpose or effect.10 Nor did the government argue in that case that thelower court's decision should be affirmed on the alternate basis that theplan in fact had a retrogressive effect. Appellee's reading of Busbee shouldbe rejected because "[q]uestions which merely lurk in the record arenot resolved" by summary affirmances, and "no resolution of themmay be inferred." Illinois State Bd. of Elections v. Socialist WorkersParty, 440 U.S. 173, 183 (1979) (citations and internal quotation marksomitted).
d. Finally, to avoid the conclusion that Section 5 reaches unconstitutional,intentional vote dilution, appellee argues (Bd. Br. 19) that vote dilutionis an inherently relative concept, and so suggests that the Department ofJustice, in concluding that the 1992 plan was dilutive, must have been comparingthat plan to the NAACP plan.11 In determining whether a plan has an unconstitutional,racially discriminatory purpose, however, the Justice Department does notsimply compare it to other, possible plans; indeed, in this case, the Departmentinformed the Board that it "is not required by Section 5 to adopt anyparticular plan." J.S. App. 235a. Rather, the Department undertakesa fact-intensive, case-specific analysis based on Village of Arlington Heightsv. Metropolitan Housing Development Corp., 429 U.S. 252, 265-266 (1977),of the circumstances under which district boundary choices have been made,to determine whether or not those choices reflect an intent to minimizeor cancel out minority voting strength within particular communities. Thatanalysis takes into account whether legitimate, nondiscriminatory governmentalpurposes support the jurisdiction's asserted reasons for selecting thoseboundary lines. And while Section 5 does place the burden on the coveredjurisdiction to show that its plan lacks a discriminatory purpose, Congressplainly did not intend that burden to be impossible for a covered jurisdictionto meet.12 If the covered jurisdiction puts forward evidence showing thatits voting change is not retrogressive and raising no concerns under theArlington Heights framework for analyzing discriminatory purpose, the votingchange is likely to be precleared, either by the Attorney General or thecourt, at least absent other evidence.13

3. The Board's Discriminatory Intent In Adopting The 1992 Plan.
Appellee argues (Bd. Br. 12-13) that the district court did not rule thatthe purpose prong of Section 5 is limited to retrogressive intent, but alsoconsidered whether the Board had a discriminatory (but not retrogressive)intent in adopting the 1992 plan, and found (Bd. Br. 43-50) that no suchdiscriminatory intent was present. We have explained that the district court'sopinion, although unclear, is better understood as limiting the scope ofits inquiry to retrogressive intent. Gov't Opening Br. 41-42. Even if thedistrict court did consider the question of discriminatory (but not retrogressive)intent, any findings that it may have made on that question cannot be sustained,because they were not made pursuant to the appropriate legal analysis, andare clearly erroneous in any event.
a. As we have explained (Gov't Opening Br. 42-43), the district court failedto apply the analytical framework established in Arlington Heights, 429U.S. at 265-266, to determine whether the Board acted with a discriminatory(but not retrogressive) purpose. The court's discussion of the evidenceunder Arlington Heights related only to retrogressive intent, and it madeonly summary reference to the question of an otherwise discriminatory intent.Moreover, any finding that the Board acted without a discriminatory intentis impossible to square with other findings of the district court, suchas its acknowledgment that the Board was motivated by a "tenaciousdetermination to maintain the status quo," that the Board "departedfrom its normal practices," and that the Board "did not welcomeimprovement in the position of racial minorities." J.S. App. 7a. Ata minimum, therefore, a remand would be required for the district courtto evaluate the evidence under the correct legal standard.14
b. In any event, appellee's effort to defend the district court's "finding"falls well wide of the mark. Appellee makes essentially three arguments.First, it contends that the Board was required to adopt the Police Juryplan, and to reject any other plan, because of its supposed obligation toadopt a plan before December 31, 1992, without splitting any precincts.Bd. Br. 44-46. Second, it argues that the Board properly rejected the NAACPplan because that plan would have required the creation of an inordinatenumber of new precincts in order to develop majority-black districts. Bd.Br. 47-48. Third, it maintains that the 1992 plan did not dilute black votingstrength. Bd. Br. 3-4 n.3, 6 n.5, 44. All three arguments fail.
First, the supposed need to develop a plan that would avoid any precinctsplits could not have motivated the Board to adopt the Police Jury plan.The Board initially had little interest in adopting the Police Jury planbecause that plan failed to respect its traditional priorities in redistricting-incumbency protection and location of schools in districts. See Gov't OpeningBr. 36.15 But the Board's cartographer Gary Joiner predicted at trial that,as a practical matter, any plan other than the Police Jury plan that wouldbe, as he put it, "as strong as this one" (meaning the PoliceJury plan) would require splitting precincts. See J.A. 271.16 And indeed,when Joiner met with the Board in September 1991, after the Police Juryhad adopted its plan, he distributed precinct maps because, he explained,the Board would have to "work with the Police Jury to alter precinctlines." J.S. App. 174a. Nothing in the record suggests that Joinerand the Board believed that they could not ask the Police Jury to alterprecincts after December 31, 1992, or that at the time they believed themselvesunder an obligation to redistrict before that date (since the next Boardelection was not until 1994). See id. at 172a, 173a.
Second, in criticizing the NAACP plan for requiring the creation of toomany new precincts, appellee mistakenly assumes that the relevant questionis why it rejected the NAACP plan; but the pertinent question is whetherit acted with discriminatory intent when it adopted the Police Jury plan,instead of (for example) exploring some other option that would not haveminimized blacks' electoral opportunity. In fact, the Board could have drawna plan containing two majority-black districts with as few as 46 total precincts-only 3 precincts more than the number in 1990, and 10 precincts fewer thanin the Police Jury plan. J.A. 236-237. Furthermore, appellee significantlyexaggerates both the number and the cost of additional precincts that wouldhave been required by the NAACP plan. Appellee asserts (Bd. Br. 4) thatthe NAACP plan would have split existing precincts 65 times, but it is importantto understand that this does not mean that 65 new precincts would have beencreated, for many areas cut out of existing precincts could have been consolidatedwith each other or with other precincts-an option that Louisiana law permits.J.A. 380 (La. Rev. Stat. § 18:425.1 (West Supp. 1999)).17 Such consolidationscould have addressed any significant concern about increased costs. Therecord gives no indication, moreover, that the Board explored the coststhat would be occasioned by such precinct splits, or ways to alleviate them.
Finally, in an effort to wriggle out of its concession and stipulationsto the effect that the 1992 plan did dilute blacks' voting strength in theParish (see Gov't Opening Br. 38-39), appellee argues that the record doesnot establish either that it was obvious that a reasonably compact majority-blackdistrict could be drawn in the Parish, or that the Parish experienced raciallypolarized voting. Both suggestions are wrong, even aside from the stipulations.Contrary to appellee's assertion (Bd. Br. 3-4 & n.3), Board memberswere aware that blacks were concentrated in certain areas, and most membersalso knew where those areas were. J.A. 94-100, 104-105, 109-110, 113-114,116-124.
In addition, while Dr. Engstrom's report (J.A. 163-174) acknowledged thedata limitations for doing ecological regression and extreme-case analysesfor most of the elections he analyzed (almost all of the elections involvedtoo few precincts for a reliable ecological regression analysis and no precinctthat was homogeneously black), that does not suggest that his report couldnot validly conclude that racially polarized voting exists in the Parish.A regression analysis of the only interracial parish-wide race for localoffice in recent years (the 1988 primary election for the 26th JudicialDistrict Court) revealed a high degree of racial polarization: 79.2% ofblack voters supported the unsuccessful black candidate, while only 28.9%of white voters did so. J.S. App. 202a-203a; J.A. 166-167. Dr. Engstromexplained (J.A. 165-167) that it is appropriate to consider the resultsof parish-wide elections where, as here, many districts contain too fewprecincts to obtain reliable estimates using ecological regression analysisof elections held in individual districts, and appellee introduced no experttestimony to the contrary, even on remand. Moreover, Dr. Engstrom was ableto conclude, by examining results in homogeneously white precincts, that,in several School Board and other elections, white voters did not supportblack candidates. J.A. 168-170, 172-174. In fact, "[o]f the 14 electionssince 1980 in which black candidates [ran] against white candidates fora single-member district or for mayor, only two candidates * * * won,"and those successes were affected by a unique circumstance, the presenceof Barksdale Air Force Base. See J.S. App. 206a-207a; Gov't Opening Br.4-5 n.2.

4. Appellee's Effort To Introduce Extra-Record Information.
Appellee continues to attempt to rely on extra-record information showingthat, since the enactment of the 1992 plan, blacks have been elected tothe School Board (Bd. Br. 5-6). Appellee was expressly offered the opportunityto reopen the record on remand to introduce evidence about the 1996 elections,but expressly declined to do so. J.S. App. 1a. It should not now be allowedto avoid the consequences of that decision.
As the district court concluded (J.S. App. 1a-2a & n.1), without beingsubjected to adversary testing and placed in context, those election resultshave no probative value.18 They have not been subjected to the expert analysisof racial polarization and voter turnout that was conducted regarding previouselections. See id. at 201a-210a. Without such close analysis, it is impossibleto draw reliable conclusions about the 1996 and 1998 election results. Asthis Court has previously cautioned, the fact that some blacks have beenelected does not mean that either racially polarized voting or vote dilutionhas suddenly disappeared. See Thornburg v. Gingles, 478 U.S. 30, 75-76 (1986).Also, "the fact that racially polarized voting is not present in oneor a few individual elections does not necessarily negate the conclusionthat the district experiences legally significant bloc voting." Id.at 57. Success of a minority candidate may be attributable to "specialcircumstances, such as the absence of an opponent [or] incumbency,"ibid.; it may also be attributable to an effort to influence the outcomeof ongoing voting-rights litigation, see id. at 76 n.37.
Indeed, there is reason to believe that a full analysis would lead to theconclusion that such "special circumstances" were present in the1998 elections of all three black Board Members. Our limited review of the1998 election results shows that one of the successful candidates, KennethWiggins, was first appointed by the Board in 1997 to fill a vacant seat(which might have been an effort to influence this litigation), and thenwon election as an incumbent in 1998. Julian Darby and Vassie Richardsonran unopposed as incumbents in 1998. Darby was previously elected in 1996from a district that, we have explained, has historically been somewhatless influenced by racial polarization because of the presence of BarksdaleAir Force Base,19 and his only opponent in the 1996 election was also black,a situation that is of limited utility in analysis of racially polarizedvoting patterns. In 1996, Richardson won election, in a district with thehighest percentage of black voting-age population in the Parish, by only35 votes, out of 1683 votes cast. Also, in three other Board elections heldin 1996 and 1998, black candidates were defeated by white candidates.20This Court should therefore decline to draw any conclusions about raciallypolarized voting or vote dilution from the 1996 and 1998 elections.
* * * * *
For the foregoing reasons, and for those set forth in our opening brief,the judgment of the district court should be reversed.
Respectfully submitted.