No. 98-405

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

JANET RENO, ATTORNEY GENERAL, APPELLANT

v.

BOSSIER PARISH SCHOOL BOARD

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

BRIEF FOR APPELLANT IN OPPOSITION
TO MOTION TO DISMISS OR AFFIRM

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

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

BRIEF FOR APPELLANT IN OPPOSITION
TO MOTION TO DISMISS OR AFFIRM



1. Appellee argues (Motion to Affirm (Mot.) 9-14) that this case is mootbecause the next regularly scheduled election for Bossier Parish SchoolBoard will not be held until 2002, after the Board should have adopted anew redistricting plan following the 2000 census. The Board's current plan,however, will remain in effect and will govern future elections unless anduntil it is replaced by another lawful plan. Thus, if the Board holds aspecial election because of a vacancy, the current plan will be used. SeeLa. Rev. Stat. Ann. § 18:602(2)(A) (1979) (special elections in caseof vacancies). And should the Board fail to adopt a new election plan followingthe 2000 census in time for the 2002 elections, or fail to obtain preclearancefor a new plan under Section 5 of the Voting Rights Act of 1965, 42 U.S.C.1973c, then the current plan would also be used for the 2002 elections.See City of Rome v. United States, 446 U.S. 156, 182-183 (1980). This caseis therefore similar to numerous cases in which the Court has held that,when a challenged election practice may be used in future elections, thechallenge remains a live controversy despite the holding of the election.See Anderson v. Celebrezze, 460 U.S. 780, 784 & n.3 (1983); Storer v.Brown, 415 U.S. 724, 737 & n.8 (1974); Rosario v. Rockefeller, 410 U.S.752, 755 (1973).

Moreover, the Attorney General and the private appellants retain a liveinterest in the outcome of this litigation. If the district court's judgmentis reversed, then the Board will presumably move expeditiously to preparea new plan for preclearance and to hold new elections under that plan ifit is precleared. Should the Board fail to do so, then voters or the AttorneyGeneral might be entitled to an injunction under Section 5 requiring specialelections under a valid plan (either one previously precleared or one fashionedby the federal courts). See Berry v. Doles, 438 U.S. 190 (1978); Lopez v.Monterey County, 519 U.S. 9, 18, 21 (1996). The district court's preclearanceof the Board's 1992 plan also directly affects the Attorney General's preclearancereview of future plans submitted by the Board, for if the lower court'sjudgment granting preclearance is not set aside, then the Attorney Generalwill have to use the 1992 plan as the benchmark from which to measure retrogressionfor future redistricting submissions by the School Board. See 28 C.F.R.51.54(b).1
Neither Watkins v. Mabus, 502 U.S. 954 (1991), nor Hall v. Beals, 396 U.S.45 (1969), supports appellee's contention that a challenge to a voting practicebecomes moot once the election is held. In Watkins, this Court held thatvoters' Section 5 challenge to special absentee ballot procedures orderedby the district court for an election to the Mississippi legislature becamemoot once the election was held. See 502 U.S. at 954-955. In that case,however, the district court ordered the special ballot procedures as aninterim remedy because the Attorney General had objected to the State's1991 plan, and elections had to be held under the previously precleared1982 plan after considerable delay; the court made clear that the absenteeballot procedures were to be used "[s]olely for the September 17[,1991] primary election for the Mississippi Legislature." 91-434 J.S.App. 6. There was no reasonable likelihood that the absentee ballot procedureswould be used again, since future elections, even if held under the 1982plan, could be planned for in due course. In Hall v. Beals, the Court heldthat a challenge to a state statute imposing a durational-residency requirementfor voting became moot when the state legislature repealed the challengedrequirement, 396 U.S. at 48; in this case, by contrast, the Board's planremains on the books.2

2. Appellee contends (Mot. 14-19) that the district court did not limitits inquiry to retrogressive intent, but rather properly found an absenceof a nonretrogressive, yet nevertheless discriminatory, purpose to the Board'splan. That contention cannot withstand scrutiny. After summarily statingthat the "record will not support a conclusion that extends beyondthe presence or absence of retrogressive intent" (J.S. App. 3a), thecourt made clear that "[t]he question we will answer, accordingly,is whether the record disproves Bossier Parish's retrogressive intent inadopting the Jury plan." Id. at 4a. The district court never againaddressed whether the evidence showed a nonretrogressive but discriminatorypurpose.

The district court's discussion of the evidence under the framework of Villageof Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S.252 (1977), related only to retrogressive intent. When the court analyzedwhether the 1992 plan bore more heavily on blacks than on whites, it examinedonly the "percentage shift in dilution" of blacks' voting strengthin one particular district; that is, it considered only whether the plansignificantly reduced the percentage of blacks in that district from thepercentage under the previous plan, which could amount to retrogression.See J.S. App. 5a-6a.3 The court also rejected other points raised by theintervenors to show that the Board enacted the plan with an unlawful purposebecause, it stated, they would not "support a finding of retrogressiveintent." Id. at 6a. The district court also precleared the 1992 plandespite finding that the Board's history included a "resistance tocourt-ordered desegregation" because that evidence was "not enoughto rebut the School Board's prima facie showing that it did not intend retrogression."Id. at 7a. The district court acknowledged "[e]vidence in the recordtending to establish that the board departed from its normal practices"in adopting the 1992 plan, but the court found that evidence not probativebecause it "is not evidence of retrogressive intent." Ibid. Thecourt likewise dismissed the evidence of the contemporaneous statementsof Board members because the statements "do not establish retrogressiveintent." Id. at 8a.
To the extent the district court may have examined the Board's discriminatorybut nonretrogressive intent, that examination was plainly insufficient,as we have explained (J.S. 21-26). The district court did not address theevidence of such intent under the Arlington Heights framework, as JudgeKessler pointed out (J.S. App. 13a, 24a). Nor did the district court considerthe point that the Board's discriminatory intent should preclude preclearanceof the plan, even if the Board might have had some legitimate reason forenacting the plan, such as preserving precincts, as appellee suggests (Mot.15-16). See City of Pleasant Grove v. United States, 479 U.S. 462, 469 (1987)(reiterating that a covered jurisdiction has the burden to prove "theabsence of discriminatory purpose" on its part).

The claimed motive of preserving precincts, moreover, is plainly insufficientto save the 1992 plan, for the record of events makes clear that it couldnot have motivated the Board to adopt that plan. There is no evidence thatthe Board was concerned about preserving precincts before the black communityof the Parish began to request that a majority-black district be drawn.In fact, the Board anticipated the necessity of splitting precincts in orderto adopt a plan that would best serve its legitimate objectives (includingpreserving the seats of incumbents, a goal that was sacrificed in the 1992plan, see J.S. 23). In September 1991, after the Attorney General preclearedthe Police Jury plan, the Board rejected one member's suggestion that itadopt the Police Jury plan, and the Board's cartographer, Gary Joiner, toldthe Board that it would have to work with the Police Jury to alter precinctlines for its own plan. J.S. App. 174a. The Board did not move to adoptthe Police Jury plan for another year, but rather continued to explore otheroptions. And although appellee notes (Mot. 4) that the Board was theoreticallyrequired by statute to adopt a plan before December 31, 1992, there is noevidence that this factor actually constrained the Board's consideration,and the district court made no finding to that effect. To the contrary,because the next regular Board elections were not scheduled until October1994, the Board had ample time in which to adopt a plan, as its cartographerreminded the members. J.S. App. 172a-173a. The Board did not make the abruptdecision to switch course and adopt the Police Jury plan until September1992, only two weeks after the NAACP presented a plan that demonstratedthat majority-black districts could be created. Id. at 180a.

3. Finally, appellee argues (Mot. 19-28) that Section 5 requires the AttorneyGeneral and this Court to preclear voting changes enacted with a raciallydiscriminatory intent (as long as those changes do not have a retrogressiveeffect). The plain language of Section 5, however, states that a coveredjurisdiction is entitled to preclearance only if it shows a new voting practice"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. The language of Section 5 tracks the text of the Fifteenth Amendmentitself, which prohibits purposeful racially discriminatory practices invoting, whether or not retrogressive. See City of Mobile v. Bolden, 446U.S. 55, 61-65 (1980) (opinion of Stewart, J.). The statutory text alsodoes not indicate that the prohibited purpose is limited to a retrogressiveintent. This Court has held that the "effect" prong of Section5 is limited to a determination whether the new voting practice is retrogressive.J.S. App. 35a; see also Beer v. United States, 425 U.S. 130, 140 (1976).But the debate over the "effect" prong has involved how far beyondthe Constitution itself Congress intended Section 5 to reach; there is noreason to doubt that Congress intended Section 5 to reach "as far asthe Constitution itself." J.S. App. 57a (Breyer, J.).

Appellee's argument rests heavily on an effort to recharacterize this Court'sdecision in Beer, supra (see Mot. 24-28). Appellee acknowledges (Mot. 24-25)that, in Beer, this Court stated that a voting change can violate Section5 if it "so discriminates on the basis of race or color as to violatethe Constitution." 425 U.S. at 141.4 It suggests, however, that atthe time of the decision in Beer, this Court believed that adoption of asingle-member districting plan would violate the Constitution only if theplan was enacted with a retrogressive purpose. Beer (which involved a single-memberdistrict-ing plan) did not remotely suggest, however, that constitutionalvote-dilution claims involving single-member districts would require a differentshowing of purpose than the showing required for vote-dilution claims involvingmulti-member districts. Prior to Beer, this Court had held multi-memberdistricts unconstitutional without any discussion of retrogression. SeeWhite v. Regester, 412 U.S. 755, 765-770 (1973). Whereas an intent to makethe position of minorities worse would indeed be evidence of discriminatoryintent, it is not required to show that unconstitutional purpose.

Appellee's efforts to avoid the effect of City of Pleasant Grove, supra,and Busbee v. Smith, 549 F. Supp. 494 (D.D.C. 1982), aff'd mem., 459 U.S.1166 (1983), are also without merit. Appellee argues (see Mot. 28-29) thatCity of Pleasant Grove is consistent with a requirement of retrogressiveintent, but as we have pointed out (J.S. 16), retrogression could not havebeen at issue there, because the City had no black voters; indeed, the Courtspecifically rejected the argument made there that, "since the annexationscould not possibly have caused an impermissible effect on black voting,it makes no sense to say that [the City] had a discriminatory purpose."479 U.S. at 471. Appellee appears to acknowledge (Mot. 28 n.11) that thisCourt rejected the position it is now advancing in Busbee v. Smith, butmaintains that summary decision is entitled to little precedential value.5But while this Court treats its own summary decisions as less demandingof adherence than its fully articulated decisions, lower courts are notfree to do the same, see Mandel v. Bradley, 432 U.S. 173 (1977), and sothe district court's failure to adhere to Busbee warrants the Court's plenaryconsideration of this appeal.

4. The issue presented on this appeal is one of considerable importancethat requires resolution. Beginning shortly after the release of censusdata in approximately April 2001, thousands of state and local jurisdictionscovered by Section 5 will be adopting new redistricting plans and submittingthem for preclearance to either the Department of Justice or the UnitedStates District Court for the District of Columbia. In every one of thosesubmissions, the intent of the submitting jurisdiction will potentiallybe at issue. It is essential for both the submitting jurisdictions and theauthorities making preclearance determinations to know whether the inquiryrequired by Section 5 reaches beyond retrogressive intent and is coextensivewith the Constitution, and requires the jurisdictions to prove that theydid not act with an intent to discriminate against racial minorities.
* * * * *
For the foregoing reasons, and for those set forth in our jurisdictionalstatement, the Court should note probable jurisdiction.

Respectfully submitted.


SETH P. WAXMAN
Solicitor General


DECEMBER 1998


1 Even if this case were moot, the appropriate action would not be for theCourt to dismiss the appeal (as appellee requests, Mot. 30). Rather, theestablished practice when a case becomes moot on appeal is for this Courtto vacate the lower court's judgment and to remand the case with instructionsto dismiss the complaint, so that the lower court's judgment retains nofurther effect. See Arizonans for Official English v. Arizona, 520 U.S.43, 71 (1997); Watkins v. Mabus, 502 U.S. 954, 955 (1991); United Statesv. Munsingwear, Inc., 340 U.S. 36, 39 (1950). The course of action suggestedby appellee would create an incentive for jurisdictions covered by Section5 to delay the process of obtaining preclearance. A jurisdiction could waitto file a preclearance action until its election plan was nearly due forreapportionment; then, if it obtained an erroneous declaratory judgmentgranting preclearance, the jurisdiction could argue that the government'sappeal should be dismissed because the plan would not be used in futureelections. Section 5, however, was intended to deprive covered jurisdictionsof the advantages of delay and extended litigation. See South Carolina v.Katzenbach, 383 U.S. 301, 335 (1966).

2 Appellee requests (Mot. 7-8) that the Court consider the results of Boardelections held in 1996 and 1998 under the 1992 plan, in which African-Americanswere elected to the Board. The Court should decline to consider such evidenceoutside the record compiled in the district court, as it declined to doon the first appeal in this case. See Reno v. Bossier Parish Sch. Bd., 517U.S. 1154 (1996). The district court invited appellee to reopen the recordon remand to address the 1996 election results, but appellee declined thatinvitation, J.S. App. 1a-2a n.1, and it is bound by that choice. Furthermore,although the results of those elections are subject to public notice, thosebare results (including the race of the winners) cannot dispose of thiscase, for they do not provide sufficient information from which to drawa conclusion about the position of minority voters in Board elections. Withoutfurther information, the mere fact that black candidates have been electedto the Board, even from majority-white districts, does not permit a court(or the Attorney General) to conclude with assurance that the voting strengthof the black community in Bossier Parish is no longer being diluted. Thosebare results, for example, provide no information about voter turnout, unusualfeatures about voting patterns in the districts from which those candidateswere elected, or other circumstances that might have been peculiar to the1996 and 1998 elections. Thus, as the district court concluded, "[w]erewe to consider the election results at all, we would need more informationabout them." Ibid.

3 Appellee suggests (Mot. 16-17) that, when the district court discussedthe 1992 plan's dilutive impact, it must have been addressing discriminatoryintent generally, and not just retrogressive intent, because it understoodthat this Court had used the term "dilutive impact" to refer toa discriminatory plan, rather than a retrogressive plan. That suggestionis plainly wrong, for on the prior appeal in this case, this Court madeclear that evidence of a plan's dilutive impact is relevant to show retrogressiveintent, and it reversed the lower court's earlier refusal to consider suchevidence for that purpose. J.S. App. 45a-47a.

4 Appellee also acknowledges (Mot. 24) that the definitive Senate Reportaccompanying the 1982 extension of Section 5 expressly approves that formulationof Section 5 in Beer (see J.S. 19), but it argues that this legislativehistory should be disregarded because the Court rejected reliance on thesame Report on the prior appeal in this case (see J.S. App. 42a). The aspectof the Senate Report rejected by this Court on the prior appeal, however,involved a different statement in that Report, which suggested that a violationof Section 2 of the Voting Rights Act, by itself, was a ground for denyingpreclearance under Section 5; that statement in the Senate Report was contraryto the Court's earlier construction of Section 5 in Beer. The Court expresseddoubt that, when Congress reenacted Section 5 without change, it would havesilently disapproved the Court's decision in Beer without amending the statutorylanguage. Ibid. This case involves Congress's approval of a different partof the Court's decision in Beer, stating that plans that violate the Constitutionmay not be precleared under Section 5; that congressional ratification deservesgreat weight.

5 Appellee also suggests (Mot. 28 n.11) that the lower-court decision inBusbee may have found retrogression. The appeal in that case, however, waspresented to this Court on precisely the opposite assumption. See 82-857J.S. 11-12 (citing district court findings of no retrogression). In anyevent, "[q]uestions which merely lurk in the record are not resolved"by summary affirmances, and "no resolution of them may be inferred."Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173,183 (1979) (citations and internal quotation marks omitted).