No. 94-558

In the Supreme Court of the United States

OCTOBER TERM, 1994

UNITED STATES OF AMERICA, APPELLANT

v.

RAY HAYS, ET AL.

STATE OF LOUISIANA, APPELLANT

v.  

RAY HAYS, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF LOUISIANA

BRIEF FOR THE UNITED STATES

DREW S. DAYS, III
Solicitor General

DEVAL L. PATRICK
Assistant Attorney General

PAUL BENDER
Deputy Solicitor General

IRVING L. GORNSTEIN
Assistant to the Solicitor General

JESSICA DUNSAY SILVER
MARK L. GROSS
Attorneys

Department of Justice
Washington, D.C. 20530
(202)514-2217 

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QUESTIONS PRESENTED

1. Whether a State's intentional creation of a
majority-minority district is always subject to strict
scrutiny.
2. Whether the boundaries of District 4 in Louisiana's
redistricting plan are so highly irregular on their face
that they can be understood only as an effort to
segregate voters into separate districts because of their
race. 3. Whether 1 District 4 is narrowly tailored to further
a compelling interest.

(I)

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II

PARTIES TO THE PROCEEDING       

Plaintiffs are Ray Hays, Edward Adams, Susan Shaw 
Singleton and Gary  Stokely.
Defendants are Edwin Edwards, Governor of the State
of Louisiana; Samuel B. Nunez, President of the   I
Louisiana State Senate, John A. Alario, Speaker of the
Louisiana House of Representatives; W. Fox McKeithen,   
Secretary of State of Louisiana; and Jerry Fowler, the
Commissioner of Elections for the State of Louisiana.
The United States intervened as a defendant.

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TABLE OF CONTENTS

Page

Opinions  below . . . . 1 
Jurisdiction . . . . 2
Constitutional and statutory provisions involved . . . . 2 
Statement . . . . 2
Summary of argument . . . . 10
Argument:
I. Louisiana's redistricting plan is not subject to
  strict scrutiny . . . . 14
   A. Race-conscious redistricting is not always
    subject to strict scrutiny  . . . . 
   B. I District 4 is not so highly irregular on its face
    that it can be understood only as an effort to
    segregate the races for purposes of voting . . . . 20 
II. The State's redistricting plan satisfies strict
  scrutiny . . . . 26
   A. The State had compelling interests in creating
    a second majority-minority district . . . . 27 
   B. The State's plan is narrowly tailored to
    further its compelling interests . . . . 34
Conclusion . . . . 36 
     
TABLE OF AUTHORITIES

Cases:

Allen v. State Board of Elections, 393 U.S. 544 (1969) . . . . 32
Beer v. United States, 425 U.S. 130 (1976)  . . . . 19
Cane v. Worcester County, 35 F.3d 921 (4th Cir. 1994),
petition for cert. pending (No. 94-955) . . . . 21, 29-30
City of Pleasant Grove v. United States, 479 U.S. 462
(1987) . . . . 30
City of Port Arthur v. United States, 459 U.S. 159
(1982) . . . . 30
City of Richmond v. J.A. Croson Co., 488 U.S. 469
(1989) . . . . 9, 12, 27, 34
         
(III)

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IV

Cases-Continued:                

Page

City of Richmond v. United States, 422 U.S. 358
(1975) . . . . 19,30
Davis v. Bandemer, 478 U.S. 109 (1986) . . . . 16, 17
Gaffney v. Cummings,   412 U.S. 735 (1973) . . . . 16
Hunter v. Underwood, 471 U.S. 222 (1985) . . . . 17
Jeffers v. Clinton, 730 F. Supp. 196 (E.D. Ark. 1989),
aff'd mem., 498 U.S. 1019 (1991) . . . . 21,29
Johnson v. DeGrandy, 114 S. Ct. 2647 (1994) . . . . 13,  28,  29
Johnson v. Miller, 864 F. Supp. 1354 (S.D. Ga. 1994),
probable jurisdiction noted, Nos. 94-631, 94-797, 94-929 . . . . 22
Johnson v. Transportation Agency, 480 U.S. 616
(1987) .  . .. 27
Major v. Treen, 574 F. Supp. 325 (E.D. La. 1983) . . . . 2, 6, 31
McCain v. Lybrand, 465 U.S. 236 (1984) . . . .  32
Metro Broadcasting v. FCC, 497 U.S. 547 (1990) . . . . 15
Palmer v. Thompson, 403 U.S. 217 (1971) . . . . 17
Perkins v. Mathews, 400 U.S. 379 (1971) . . . . 32
Presley v. Etowah County Comm'n., 112 S. Ct. 820
(1992) . . . . 33
Regents of the Univ. of Calif. v. Bakke, 438 U.S. 265
(1978) . . . . 31
Shaw v. Hunt, 861 F. Supp. 408 (E.D.N.C.
1994) . . . 27, 28, 33, 35
Shaw v. Reno, 113 S. Ct. 2816 (1993) . . . . 2, 10, 15, 16, 17,
                 18, 20, 21, 22, 27
Thornburg v. Gingles, 478 U.S. 30 (1986) . . . . 12, 19, 28
United Jewish Organizations of Williamsburg, Inc. v.
Carey, 430 U.S. 144 (1977) . . . . 9, 10, 14, 33, 34
United States v. Paradise, 480 U.S. 149 (1987) . . . . 34
Vera v. Richards, 861 F. Supp. 1304 (S.D. Tex.
1994), appeal docketed (No. 94-988) . . . . 22
Voinovich v. Quilter, 113 S. Ct. 1149 (1993) . . . . 24
Washington v. Davis, 426 U.S. 229 (1976) . . . . 20
Wise v. Lipscomb, 437 U.S. 535 (1978) . . . . 36
Wygant v. ,Jackson Bd. of Educ., 476 U.S. 277 (1986) . . . . 27

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V

Constitution, statutes and regulation:         

Page

U.S. Const. Amend. XIV . . . . 2
Equal Protection Clause . . . . 2, 4, 15, 16, 32
Voting Rights Act, 42 U.S.C. 1971 et seq.:
 2, 42 U.S. 1973 . . . . passim
2(a), 42 U.S.C. 1973(a) . . . . 19
5, 42 U.S.C. 1973c . . . . passim
28 C.F.R. 51.3 . . . . 3

Miscellaneous:

Alenikoff & Issacharoff, Race And Redistricting:
Drawing Constitutional Lines After Shaw v. Reno, 92
Mich. L. Rev. 588 (1993) . . . . 18
Pildes & Niemi, Expressive Harms, "Bizarre Districts, "
And Voting Rights: Evaluating Election-District
Appearances After Shaw v. Reno, 92 Mich. L. Rev.
483 (1993) . . . . 18, 22

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IN THE SUPREME COURT OF THE UNITED STATES
      
OCTOBER TERM, 1994

     No. 94-558

UNITED STATES OF AMERICA, APPELLANT
       
v.
    
RAY HAYS, ET AL.

     No. 94-627

STATE OF LOUISIANA, APPELLANT
      
v.
   
RAY HAYS, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
  FOR THE WESTERN DISTRICT OF LOUISIANA

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The second opinion of the three-judge district court
(J.S. App. la-23a) is reported at 862 F. Supp. 119. The
first opinion of the three-judge district court (J.S. App.
39a-109a) is reported at 839 F. Supp. 1188.

(1)

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2
       
JURISDICTION

The judgment of the three-judge court was entered on
December 9, 1994. J.A. 9. A notice of appeal was filed on
December 9, 1994. J .A. 233. This Court noted probable
jurisdiction on December 12, 1994. J.A. 237. The
jurisdiction of this Court rests on 28 U.S.C. 1253.

CONSTITUTIONAL AND STATUTORY PROVISIONS
        INVOLVED

The Equal Protection Clause of the Fourteenth
Amendment provides that "[N]o State shall * * * deny
to any person within its jurisdiction the equal protection
of the laws." The relevant federal statutory provisions
are Sections 2 and 5 of the Voting Rights Act, 42 U.S.C.
1973, 1973c, which appear in the appendix to the
jurisdictional statement at 117a-119a.
       
STATEMENT

This case concerns a challenge to the State of
Louisiana's 1994 congressional redistricting plan. A
three-judge court invalidated the plan after finding that
it violated the standards for race-conscious redistricting
established in Shaw v. Reno, 113 S. Ct. 2816 (1993).
1. The population of the State of Louisiana is more
than 30% black. J. A. 179. From the end of Re-
construction until the 1980's, black voters were not in
the majority in any of Louisiana's congressional
districts, and no black person was elected to Congress.
In 1983, a three-judge court invalidated Louisiana's 1982
congressional redistricting plan on the ground that it
fragmented the minority population in the New Orleans
area in violation of Section 2 of the Voting Rights Act,
42 U.S.C. 1973. Major v. Treen, 574 F. Supp. 325, 341
(E.D. La. 1983) (three-judge court). To remedy that   
violation, a plan was adopted in which blacks constituted

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a majority in a district centered in New Orleans.
Louisiana had a total of eight congressional districts in
that plan. In 1990, a black candidate was elected to
Congress from the New Orleans-based district.
Louisiana's congressional redistricting efforts were
preceded by the State's redistricting of the Board of
Elementary and Secondary Education (B. E. S. E.).
Traditionally, the boundaries of the eight B.E.S.E.
districts had been identical to the boundaries of the
State's congressional districts. The new B.E.S.E. plan
contained one majority-minority district. The State
submitted the plan to the Department of Justice for
preclearance under Section 5 of the Voting Rights Act of
1965, 42 U.S.C. 1973c. Acting on behalf of the Attorney
General (28 C.F.R. 51.3), the Assistant Attorney General
for the Civil Rights Division refused to preclear the
plan. DX 16 (1993 Hearing). The Assistant Attorney
General's objection letter noted that the B.E.S.E. plan
had fragmented the minority population along the
Mississippi River among three majority-white districts,
that polarized voting by whites would preclude blacks
from having an opportunity to elect a candidate of their
choice in any of those districts, and that the State's
black population was large enough and compact enough
to constitute a majority in a second district that included
the minority voters who lived along the Mississippi
River. ibid. The letter concluded that the State had not
shown that its failure to create a second majority-
minority district was free of discriminatory purpose.
Ibid. In response to that objection, the State adopted a
new B.E.S.E. plan that created two majority-minority
districts, which the Assistant Attorney General then
precleared.
As a result of the 1990 Census, Louisiana lost one of
its congressional seats. J.S. App. 55a. In May, 1992, the

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State legislature enacted a districting plan for the seven
remaining seats. Id. at 39a. That plan included two
majority-black districts. One was centered in New
Orleans and was similar to the majority-black district in
the plan used in the 1980s; the other (District 4) was a Z-
shaped district that spanned a large part of the State.
The State's plan was precleared by the Department of
Justice.
Appellees, four voters living in Lincoln Parish,
Louisiana, challenged that plan in 1992 on the ground
that it segregated voters into districts on the basis of
race, in violation of the Equal Protection Clause. J.S.
App. 42a. The district court denied appellees' request
for a preliminary injunction, and the 1992 congressional
elections were held under the State's plan. Ibid. A black
candidate was elected to Congress from District 4.
In December, 1993, following this Court's decision in
Shaw, a three-judge Court ruled in favor of appellees on
the merits. J.S. App. 39a-109a. The court held that "[al
legislature creates a racially-gerrymandered districting
plan when it intentionally draws one or more districts
along racial lines or otherwise intentionally segregates
citizens into voting districts based on their race." Id. at
48a. The court concluded that such an intent could be
proven "inferentially * * * when districts are so
bizarrely shaped that they presumptively bespeak an
impermissible purpose. " Id. at 50a. The court also
concluded that such an intent could be shown "by direct
evidence that a legislature enacted a districting plan
with the specific intent of segregating citizens into
voting districts based on their race." Ibid. The court
found that appellees had proven racial gerrymandering in
both ways. Id. at 51a.
Applying strict scrutiny, the court assumed that the
State had one or more. compelling interests in creating a

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second majority-black district. J.S. App. 79a. The court
went on to hold, however, that the State's plan was not
narrowly tailored to further those interests for two
reasons. First, the court found that District 4, which
was 63% black in voting age population, contained more
black voters than were "reasonably necessary to give
blacks a realistic chance to determine the outcome of
elections there." Id. at 83a-84a. According to the court
black voters would have an opportunity to elect the 
candidate of their choice in a district that is 55% black in
voting age population . Id. at 84a.  Second, the court found 
that "a second black majority district could have been 
drawn that would have done substantially less violence to
traditional redistricting principles." Id. at 85a.
The State appealed. While that appeal was pending, the
State enacted a new redistricting plan (Act 1), with a
newly configured majority-minority District 4. The
Department of Justice precleared Act 1. On June 27,
1994, this Court vacated the district court's judgment
and remanded the case for further proceedings in light of
the new plan. J.S. App. 2a.
2. Appellees filed an amended complaint, challenging
Act 1 on equal protection grounds. J.S. App. 2a. The
United States intervened to defend the plan. The court
held a hearing on July 21 and July 22, 1994. Ibid.
The evidence at trial showed that the plan was drafted
by legislative aide Glenn Koepp, based on instructions he
received from two state senators with leadership roles
on the State Senate redistricting committee. The two
state senators told Koepp to devise a plan that would
respect traditional redistricting values and avoid
unnecessary packing of minority voters in accordance
with the district court's 1993 decision, while still
attempting to create a second majority-black district.
J.A. 32-35, 105-106, 109, 120-121. To accomplish those

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purposes, the senators suggested that Koepp model the
district on congressional District 8 from prior
redistricting plans. District 8 already had the second
highest percentage of black voters of any district. J.A.
37,87,93-94, 105-106.
The State had used versions of old District 8 in every
redistricting plan enacted between 1967 and 1992. J.S.
App. 11 la-114a. Old District 8 generally began in the
western part of the State, included areas along the Red
and Mississippi Rivers as it moved in a south-easterly
direction, and ended beyond Baton Rouge. J.S. App. 111a-
114a. Blacks are geographically concentrated in much of
the area covered by the various configurations of old
District 8, particularly along the Red and Mississippi
Rivers. J.A. 38-39, 62, 82. In 1980, District 8 was 33.2%
black; in 1990, it was 38.4% black. Major v. Treen, 574 F.
Supp. at 328 n.3; J.A. 184. The area along the Red River
Valley is also an important economic region and the
people in that region share common interests. J.A. 71-
72,75-76, 196.
Using old District 8 as a model, Koepp devised new
District 4. As Koepp explained it, "once I started
working with it, * * * putting together parishes in the
old Eighth, it got to be a district that was very close to a
minority district." J.A. 41. And once Koepp extended the
lines to Shreveport, the district was over 50% minority.
Ibid. In devising the district, Koepp tried to keep small
towns, precincts, and parishes intact, retain existing
congressional districts as much as possible, reflect
communities of interest, and place incumbents in
separate districts. J.A. 35, 39-45, 107. To satisfy the one
person, one vote rule and other objectives in the plan, 14
of Louisiana's 64 parishes were divided. J.A. 37, 45-46.
During State Senate redistricting hearings, Koepp
displayed maps of various versions of old District 8 and

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explained that they had been used as the basis for the
new majority-minority district. J.A. 37-38, 164-178. The
State House also held hearings and considered two
additional plans similar to the one drafted by Koepp. SX
7 (maps, H.B. 8, 11); J.A. 194. The House was advised that
those plans were also based on old District 8. J.A. 201.
The House and Senate made several minor adjustments
in Koepp's plan in the Lafayette and St. Landry area to
satisfy an incumbent's concern about the political
makeup of his district and to split fewer small towns.
J.A. 55,94-96,197,227.
As finally enacted, the new district begins in the
northwest part of the State near Shreveport, runs
diagonally southeast along the Red River to Alexandria,
and then further southeast along the Mississippi River
past Baton Rouge. J.S. App. 110a. The district is
approximate] y 55% black in registered voters. J.A. 41.
In recent years, the cultural regions of Louisiana have
become much less distinct and agricultural regions have
become widely dispersed. J.A. 69-70. The adopted plan
recognizes the State's geographic, economic, and
cultural regions as well or better than any of the
alternative plans considered by the legislature, including
those with only one majority-minority district. J.A. 74-
75,84.
Voting in Louisiana is racially polarized, and blacks in
Louisiana have not been elected either to Congress or
the State legislature except from districts in which
blacks have constituted a majority of registered voters.
J.A. 65-67, 181-193. Aware of that reality, the State
legislature created a second majority-minority district
in order to comply with the requirements of Sections 2
and 5 of the Voting Rights Act, and to continue to
remedy Louisiana's history of discrimination in voting.
J.A. 41-43,87-90,104,113-115, 202-219.

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3. On July 22, 1994, the district court held the new
plan unconstitutional. On July 25, 1994, it enjoined
further use of the plan, and required 1994 and subsequent
elections to be held under a plan drawn by the court. J.S.
App. 24a-26a. The court's plan creates only one
majority-black district; all other districts are less than
30% black in registered voters.
The district court issued an opinion explaining its
decision on July 29, 1994. J.S. App. la-23a. The court
found that "[t]he districting map of Louisiana, created
under Act 1, reflects a racial gerrymander." Id. at 3a.
The court specifically found that District 4 "cuts across
historical and cultural divides, splits twelve of its fifteen
parishes and divides four of the seven major cities of the
State." Ibid. The court added that "[t]he statistical
evidence showing the racial composition of the districts
further supports the finding that District Four is so
extremely irregular on its face that it rationally can be
viewed only as an effort to segregate the races for
purposes of voting." Ibid. (internal quotation marks
omitted). That evidence, the court concluded, shifted the
burden to the State to show that District 4 did not
reflect a racial gerrymander. Ibid.
The court then found that the State had failed to
satisfy that burden. J.S. App. 4a-5a. The court found
that the State's assertion that the residents along the
Red River had common interests was a "post hoc
rationalization." The court also found that the State's
claim that it had relied on the design of old District 8
was "mere pretext." Id. at 5a. In reaching those
conclusions, the court relied in large part on the fact 
that "[t]he Senators themselves admitted that race
played a large if not dominant role in the map as it is now
drawn." Id. at 4a. The court also noted that old District
8 had never been challenged and that it was originally

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created for the purpose of ensuring the reelection of an
incumbent congressman. Id. at 5a. The court concluded
that while "other factors" affected the way in which
District 4 was drawn, the "fundamental factor driving
Act 1 was race." Ibid.
The court then held that "[r]ace-conscious
redistricting, while not always unconstitutional, is
always subject to strict scrutiny." J.S. App. 5a. The
court noted that this Court had applied a more
deferential standard to race-conscious redistricting in
United Jewish organizations of Williamsburgh, Inc. v.
Carey, 430 U.S. 144 (1977) (UJO). J.S. App. 5a. The
court concluded, however, that City of Richmond v.
J. A. Croson Co., 488 U.S. 469 (1989), undermined the
holding in UJO, and required strict scrutiny of all race-
conscious redistricting. J.S. App. 6a.
The court went on to hold that the State had not
proven that its consideration of race was supported by a
compelling interest. J.S. App. 6a-7a. The court con-
cluded that Section 5 "cannot be read to compel the
results of Act 1" because there was no showing "that
[the] failure to create a second majority-minority
district would either be a retrogression of minority
strength or have an illegal purpose." J.S. App. 8a. The
court further concluded that a second majority-minority
district was not compelled by Section 2 because proof of a
"numerous and compact minority" is a precondition for a
Section 2 dilution claim and "[t]he evidence convincingly
proves that the State cannot clear [that] hurdle." J.S.
App. 8a. Finally, the district court rejected the State's
assertion that the creation of a majority-minority
district furthered the State's interest in remedying its
history of racial discrimination. Id. at 9a-10a. The court
concluded that "[w]ithout concrete evidence of the
lingering effects of past discrimination * * * we cannot

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agree that the re-segregation of Louisiana by racially
configured voting districts is warranted." Id. at 10a.
The court then addressed the question of remedy. It
stated that it had adopted its own plan because of the
need for prompt action and because the State had already
failed twice to adopt a constitutionally acceptable plan.
J.S. App. 10a.
Chief Judge Shaw issued a separate opinion in which
Judge Wiener concurred. That opinion generally tracked
the court's reasoning. J.S. App. 13a-23a.
On August 11, 1994, this Court stayed the district
court order, permitting the 1994 congressional elections
to proceed under the State's plan. On December 9, 1994,
the district court reentered its judgment to cure a
technical deficiency. On December 12, 1994, this Court
noted probable jurisdiction.
     
SUMMARY OF ARGUMENT

I. A. The district court's holding that all race-
conscious redistricting is suspect is inconsistent with
United Jewish Organizations of Williamsburg, Inc. v.
Carey, 430 U.S. 144 (1977). In that case, five Justices
agreed that the intentional creation of majority-minority
districts is constitutional absent proof that the State's
redistricting plan has the purpose and effect of diluting a
racial group's voting strength. In Shaw v. Reno, 113 S.
Ct. 2816 (1993), the Court held that race-conscious
redistricting is suspect in those rare cases when the
shape of a district is so highly irregular that it can be
understood only as an effort to segregate the races for
voting purposes. The Court in Shaw did not overrule
UJO, but distinguished it on the ground that the plan at
issue in UJO followed traditional districting practices.
UJO therefore remains controlling when a State

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intentionally creates majority-minority districts that
are consistent with its traditional districting practices.
UJO is correct and should not be overruled. The
district court's holding that all race-conscious
redistricting is suspect deprives racial minorities who
share common interests of the same opportunity to
influence redistricting decisions that is accorded to
other groups. It conflicts with the Court's holdings that
plaintiffs challenging a decision on equal protection
grounds must demonstrate a discriminatory effect. It
fails to give sufficient weight to Congress's judgment
that jurisdictions must be conscious of the racial
consequences of their redistricting decisions. And it
ignores the reality that those who redistrict are race-
conscious because race often correlates with voting
behavior.
B. A redistricting plan is suspect under Shaw only if
it departs dramatically from the State's traditional
districting practices. For that reason, the most salient
fact in this case is that District 4 in the State's plan
resembles District 8 in the plans that the State used
between 1967 and 1992.
The district court erred in concluding that the State's
admission that it intended to create a majority-minority
district undermined the State's reliance on old District
8. The inquiry under Shaw is an objective one into
whether the district is highly irregular when compared
to districts drawn according to the State's traditional
districting practices. Even if the State's intent were the
ultimate issue, however, the State's admission that it
intended to create a majority-minority district is not
inconsistent with the State's assertion that it also took
into account the traditional districting values that would
be served by creating a district that resembled prior

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districts. There is nothing suspect about that kind of
balanced approach.
Isolated segments of District 4 are irregular in shape.
The relevant inquiry, however, is whether the district
as a whole is bizarre, not whether isolated segments of it
are. District 4 reflects a con-scientious effort to create
a majority-minority district while simultaneously
pursuing other traditional Louisiana redistricting
interests. It is therefore not suspect under Shaw.
H. In any event, the State's plan satisfies strict
scrutiny because it is narrowly tailored to further the
State's compelling interest in complying with the
Voting Rights Act and ameliorating the present effects
of racially polarized voting.
A. To establish a compelling interest in creating a
majority-minority district in order to comply with the
Voting Rights Act, the State was not required to prove
that the Voting Rights Act ultimately mandated such a
district. Rather, it was sufficient for the State to show
that it had a sound basis for concluding that its failure to
create a second majority-minority district would have
led to a prima facie case against it under the Act. City of
Richmond v. J.A. Croson Co., 488 U.S. 469,500 (1989).
A State clearly has a sound basis for creating a
majority-minority district to comply with Section 2
when (1) the minority group is sufficiently large and
compact to constitute a majority in a district; (2) the
minority group is politically cohesive; (3) whites usually
vote sufficiently as a bloc to defeat the minority's
preferred candidates; and (4) the failure to create a
majority-minority district would leave the minority
group substantially underrepresented when compared
with the group's percentage in the population.
Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986); Johnson

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v. DeGrandy, 114 S. Ct. 2647, 2658-2662 (1994). The
State made each of those showings.
The district court found that blacks in the State are
not sufficiently compact to constitute a majority in a
second district. The relevant inquiry, however, is
whether the proposed majority-minority district is
reasonably compact in light of the State's traditional
practices. Since District 4 is similar in compactness to
districts drawn by the State in the same general area,
the compactness requirement was satisfied.
The State also had a sound basis for believing that it
would have difficulty satisfying its burden under Section
5 of showing that the failure to create a second majority-
minority district was free of discriminatory purpose. In
addition to the factors already discussed, the Attorney
General had objected on discriminatory purpose grounds
to a redistricting plan for the State Board of Elementary
and Secondary Education, which had included one
majority-minority district out of eight. The district
court questioned the validity of that objection. Since
there was no evidence that the objection was clearly
insupportable, however, the State could properly rely on
it. 
The State also had a compelling interest in
ameliorating the effect that racially polarized voting
continues to have on the opportunity of minority voters
to elect a candidate of their choice. Faced with the kind
of extreme and pervasive bloc voting present in
Louisiana, the State could properly seek to insure a fair
allocation of political power.
B. The State's plan is narrowly tailored. It creates
the number of majority-minority districts that its
interests in complying with the Voting Rights Act and
fairly allocating political power justify. It does not
needlessly pack minority voters into the majority-

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minority districts. And it gives sufficient weight to
other redistricting interests.

ARGUMENT

I. LOUISIANA'S REDISTRICTING PLAN IS NOT
SUBJECT TO STRICT SCRUTINY

A. Race-Conscious Redistricting Is Not Always Subject
To Strict Scrutiny

In enacting its congressional redistricting plan, the
State intended to create a second majority-minority
district. The district court viewed that intent alone as a
sufficient basis for subjecting Act 1 to strict scrutiny.
The court's core holding was that "[r]ace-conscious
redistricting, while not always unconstitutional, is
always subject to strict scrutiny." J.S. App. 5a.
That holding is inconsistent with United Jewish
Organizations of Williamsburgh, Inc. v. Carey, 430 U.S.
144 (1977). In UJO, the State "deliberately used race in a
purposeful manner" to create majority-minority dis-
tricts. Id. at 165. Seven of the eight Justices parti-
cipating voted to uphold the State's plan without
subjecting it to strict scrutiny.  Five Justices
specifically agreed that the intentional creation of
majority-minority districts does not give rise to an equal
protection claim, absent proof that it has the intent and
effect of diluting the majority's voting strength. See
ibid. (White, J. joined by Stevens, J. and Rehnquist, J.);
id. at 179-180 (Stewart, J., concurring, joined by Powell,
J.). Because the plan at issue in UJO was consistent
with traditional redistricting principles, id. at 168, UJO
did not resolve the question of what constitutional
standard would apply to plans that departed from such
principles in order to create majority-minority districts.

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15

In Shaw, this Court addressed that issue, holding that
a redistricting plan that is "so extremely irregular on
its face that it rationally can be viewed only as an effort
to segregate the races for purposes of voting" is subject
to strict scrutiny. 113 S. Ct. at 2824. Such a plan is
constitutional only if it is narrowly tailored to further a
compelling interest. Id. at 2825. The Court "express[ed]
no view as to whether `the intentional creation of
majority-minority districts, without more' always gives
rise to an equal protection claim." Id. at 2828. The
Court did not, however, purport to overrule UJO.
Instead, it distinguished UJO on the ground that the
State in that case had "adhered to traditional districting
principles." Id. at 2829. The Court also explicitly and
repeatedly limited its holding to those "rare" cases in
which districts are so highly irregular that they can be
understood only in racial terms. Id. at 2824, 2825, 2826,
2828, 2830. The district court's holding in this case that
Louisiana's intent to create a majority-minority district
automatically triggered strict scrutiny is therefore in
conflict with UJO and not supported by Shaw.
The Court's holding in UJO is correct and should not
be overruled. That is true for several reasons. First, a
holding that all race-conscious districting is automati-
cally suspect would be inconsistent with the central
purpose of the Equal Protection Clause-to insure equal
treatment regardless of race. In most contexts, the
principle of equal treatment is fully effectuated by
considering each person as an individual, without regard
"to his or her race. Metro Broadcasting v. FCC, 497
U.S. 547, 602 (1990) (O'Connor, J. dissenting).
Redistricting, however, presents a different situation.
In adopting redistricting plans, States do not treat
people as individuals, but as members of groups.
Redistricting "inevitably has and is intended to have

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16

substantial political consequences." Gaffney v. Cum-
mings, 412 U.S. 735, 753 (1973). Because of those politi-
cal consequences, groups with distinctive political
interests seek to influence the way in which district
lines are drawn. The groups participating in the
redistricting process include not only political parties,
groups with the same business interests, groups made up
of people with similar socio-economic status, and issue-
oriented groups, but also racial, ethnic, and religious
groups. In redistricting, a State inevitably seeks to
"reconcile the competing claims of [those] groups."
Davis v. Bandemer, 478 U.S. 109, 147 (1986) (O'Connor,
J., concurring in the judgment).
Under the Equal Protection Clause, a State must be
free to give the same consideration to the claims of racial
minority groups that seek to influence redistricting as
to the claims of any other interest group. For example,
if, as the district court indicated, a State may properly
seek to accommodate the political interests of North
Louisiana Irish, mainline Protestants, South Louisiana
Catholics, and Creoles (J.S. App. 17a), it must have the
same freedom to accommodate the political interests of
blacks who live along the Red and Mississippi Rivers. If
all race-conscious redistricting were subject to strict
scrutiny, however, racial minority groups sharing
common interests would have less opportunity to
influence redistricting than other groups. That result
cannot be squared with the central purpose of the Equal
Protection Clause. As Justice Stevens has stated, "[i]f it
is permissible to draw boundaries to provide adequate
representation for rural voters, for union members, for
Hasidic Jews, for Polish Americans, or for Republicans,
it necessarily follows that it is permissible to do the
same thing for members of the very minority group
whose history in the United States gave birth to the

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17

   Equal Protection Clause." Shaw, 113 S. Ct. at 2844-2845
   (Stevens, J., dissenting).
    The holding in Shaw is not at odds with that
   conclusion. The showing required in Shaw to invoke
    strict scrutiny-that a majority-minority district is so
   highly irregular on its face that it can be understood
    only as an effort to segregate the races for voting
   purposes-indicates that the State has taken action on
   behalf of a racial minority group that it is unwilling to
   take on behalf of any other group. That sort of
   preference for racial interests triggers special equal
   protection concerns. When a State follows traditional
   districting practices in creating a majority-minority
   district, however, no such special concerns are raised.
    The district court's holding that all race-conscious
   redistricting triggers strict scrutiny is also
   inconsistent with this Court's holdings that a plaintiff
   challenging a decision under the Equal Protection
   Clause must show that the decision has discriminatory
   consequences. Davis v. Bandemer, 478 U.S. at 127
   (plurality opinion); id. at 161 (Powell, J., concurring in
   part and dissenting in part); Hunter v. Underwood, 471
   U.S. 222,227 (1985); Palmer v. Thompson, 403 U.S. 217,
   224-225 (1971). Shaw did not eliminate that requirement.
   Instead, the Court there identified two race-based
   injuries that it believed could be traced to a plan that is
   so highly irregular that it can be understood only as an
   effort to segregate the races for voting purposes. The
   Court concluded that such a plan imposes harm because
   it conveys the message "that members of the same racial
    group-regardless of their age, education, economic
   status, or the community in which the[y] live-think
    alike, share the same political interests, and will prefer
   the same candidates at the polls." 113 S. Ct. at 2827. And
   the Court concluded that such a plan also inflicts harm

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18

because ''[w]hen a district obviously is created solely to
effectuate the perceived common interests of one racial
group, elected officials are more likely to believe that
their primary obligation is to represent only the
members of that group, rather than their constituency
as a whole." Ibid.
Whether or not. the Court was right in attributing
those consequences to the creation of highly irregular
districts (see 113 S. Ct. at 2848 n.9 (Souter, J.,
dissenting)), the court did not suggest in Shaw that
such effects would occur when the creation of a majority-
minority district is consistent with traditional
districting practices. To the contrary, the premise of
Shaw is that "race-conscious redistricting that
`segregates' by drawing odd-shaped lines is qualitatively
different from race-conscious redistricting that affects
groups in some other way." Id. at 2838 (White, J.,
dissenting). As commentators have noted, the harms
identified by Shaw flow from the fact that highly
irregular majority-minority districts may convey the
message to the public that race has submerged all other
redistricting values-a message that is not conveyed by
more regular majority-minority districts. Pildes &
Niemi, Expressive Harms, "Bizarre Districts, " And
Voting Rights: Evaluating Election-District Appear-
ances After Shaw v. Reno, 92 Mich. L. Rev. 483, 526
(1993); See also, Alenikoff & Issacharoff, Race And
Redistricting: Drawing Constitutional Lines After
Shaw v. Reno, 92 Mich. L. Rev. 588, 613-614 (1993)
(extremely irregular majority-minority districts may be
racially divisive in a way that more compact majority-
minority districts are not).
Treating all race-conscious redistricting as automa-
tically suspect also gives insufficient weight to
Congress's judgment that States should be conscious of

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19

the racial consequences of their redistricting decisions.
Section 5 of the Voting Rights Act compels covered
jurisdictions, like Louisiana, to create majority-
minority districts when that is necessary in order to
avoid retrogression in minority voting strength or when
the failure to draw such a district would reflect
purposeful racial discrimination. Beer v. United States,
425 U.S. 130, 140-142 (1976); City of Richmond v. United
States, 422 U.S. 358, 378-379 (1975). Similarly, Section 2
of the Voting Rights Act requires all state and local
jurisdictions to draw majority-minority districts if the
failure to do so would lead to discriminatory "results."
42 U.S.C. 1973(a); Thornburg v. Gingles, 478 U.S. 30
(1986). To view the intentional drawing of majority-
minority districts as suspect in all circumstances would
ignore this legal context in which redistricting
authorities must operate and would undermine Con-
gress's decision to require such districts where
necessary to avoid discriminatory results.
Such a rule would also place States in a legal
straitjacket in which they would face litigation with
minority voters if they do not create a majority-minority
district and litigation from others if they do. The result
would be the functional equivalent of a requirement that
States and localities must preclear all their re-
districting plans in federal court before they can safely
implement them. It is one thing to put States in that
position in the relatively rare circumstances in which
they contemplate drawing highly irregularly-shaped
majority-minority districts. It is another thing to
create that dilemma every time a State or locality
contemplates creating a majority-minority district.
Finally, as this Court noted in Shaw, "redistricting
differs from other kinds of state decisionmaking in that
the legislature always is aware of race when it draws

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20

district lines, just as it is aware of age, economic status,
religious and political persuasion, and a variety of other
demographic factors." 113 S. Ct. at 2826. Because
experience shows that race is often highly correlated
with voting behavior, it is unrealistic to expect
legislators to ignore that reality when they engage in
the highly political task of redistricting. Id. at 2835
(White, J., dissenting) ("[I]t can hardly be doubted that
legislators routinely engage in the business of making
electoral predictions based on group characteristics-
racial, ethnic, and the like."); id. at 2844 (Stevens, J.,
dissenting) ("Politicians have always relied on
assumptions that people in particular groups are likely
to vote in a particular way when they draw new district
lines."). Thus, if legislators are candid in their
discussions concerning redistricting plans, a holding
that all race-conscious redistricting is automatically
suspect would subject a very large number of
redistricting plans at all levels of government to strict
scrutiny. Cf. Washington v. Davis, 426 U.S. 229, 248
(1976) (noting that the consequence of treating all state
laws with a discriminatory effect as suspect would be to
raise serious questions about, and perhaps invalidate, a
wide range of state laws).
In sum, the State's intent to create a second majority-
minority district did not trigger strict scrutiny in this
case. The district court erred in holding otherwise.

B. District 4 Is Not So Highly Irregular On Its Face That
It Can Be Understood Only As An Effort To
Segregate The Races For Purposes Of Voting

The district court also subjected the State's plan to
strict scrutiny on the ground that District 4 was "so
extremely irregular on its face that it rationally can be
viewed only as an effort to segregate the races for

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21

purposes of voting." J. S., App. 3a. The court erred in
reaching that conclusion as well.
1. The question whether a district is so highly
irregular on its face that it can be understood only as an
effort to segregate the races for purposes of voting is not
a purely factual issue that a court can decide based
entirely on intuition or aesthetic reactions. That
inquiry must be guided by meaningful legal standards.
Four principles are particularly important here.
First, the manner in which the State has drawn and
continues to draw other districts is the most appropriate
benchmark for determining whether a particular
majority-minority district is "bizarre." See Cane v.
Worcester County, Maryland, 35 F.3d 921, 927 n.6 (4th
Cir. 1994), petition for cert. pending (No. 94-955); cf.
Jeffers v. Clinton, 730 F. Supp. 196 (E.D. Ark. 1989), aff'd
mem., 498 U.S. 1019 (1991). As previously discussed, a
State should have the same leeway to accommodate the
interests of racial minority groups with common
interests as it has to accommodate other interest
groups. For that reason, only majority-minority
districts that are much more unusual in shape than
districts drawn by the State to accommodate other
political interests trigger strict scrutiny. Moreover, as
previously noted, the Court in Shaw concluded that a
district is suspect when it conveys a message that
excessive consideration has been given to race. That
perception will be shaped by how the State ordinarily
redistricts, not by some model redistricting ideal.
Practical considerations also necessitate reliance on the
State's own redistricting standards. The only alterna-
tive to that approach would be a wholly subjective "I
know it when I see it" test.
Second, Shaw described suspect districts as
"extremely irregular" and "bizarre." 113 S. Ct. at 2824-

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22

2825. Districts that are only "somewhat irregular" are
not suspect. Id. at 2826. A district is therefore suspect
under Shaw only if it departs dramatically from the
State's traditional redistricting practices.
Third, Shaw held that a district is suspect only when
it is so extremely irregular "on its face" that it can be
understood only in racial terms. 113 S. Ct. at 2824. The
terms "on its face" clearly mandate an objective inquiry
into the nature of the district, not a subjective inquiry
into the legislature's intent. Johnson v. Miller, 864 F.
Supp. 1354, 1395 & n.2 (S.D. Ga. 1994) (Edmondson, J.,
dissenting), probable jurisdiction noted, Nos. 94-631, 94-
797, 94-929; see also Pildes & Niemi, supra, 92 Mich. L.
Rev. at 508.
Finally, the relevant inquiry under Shaw is whether
the district is bizarre. The fact that isolated segments of
a district are irregular does not make the district itself
bizarre. Vera v. Richards, 861 F. Supp. 1304, 1345 (S.D.
Tex. 1994), appeal docketed (No. 94-988).
2. Application of these legal standards leads to the
conclusion that District 4 should not have been subjected
to strict scrutiny. The most salient fact in this case is
that District 4 resembles a majority-white district used
in previous State redistricting plans. For 25 years (from
1967-1992), District 8 usually began in the western part
of the State, included areas along the Red and
Mississippi Rivers as it moved southeast, and ended
beyond Baton Rouge. J.S. App. 111a-114a. District 4
includes the same general area. Id. at 110a. District 4
most closely resembles District 8 in the congressional
plans used in 1967-1970 and 1971-1972. Id. at 112a, 113a.
Because District 4 is consistent with the State's
redistricting traditions, it is not suspect under Shaw.
In addition, the population along the Red River Valley
which is included in District 4 shares common social and

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23

economic interests. That evidence reinforces the
conclusion that District 4 is not so irrational on its face
that it can be understood only in racial terms.
Isolated segments of District 4 are irregular. But as
we have discussed, the relevant inquiry under Shaw is
whether the district as a whole is bizarre, not whether
isolated segments of it are. When viewed as a whole,
District 4 is not such a dramatically irregular departure
from State districting practices as to make it suspect
under Shaw.
3. The district court rejected the State's reliance on
the fact that District 4 resembles old District 8 and
encompasses a community of interest along the Red and
Mississippi Rivers as "post hoc rationalization" and
"mere pretext. " J.S. App. 5a. In reaching those
conclusions, the court relied in large part on the
admissions of state legislators that race played a large
role in the drawing of District 4. Ibid. As we have noted,
however, Shaw mandates an objective inquiry into
whether a district conveys the impression that racial
considerations have been pursued to the exclusion of
other redistricting values, not a subjective inquiry into
the legislature's intent. The resemblance of District 4
to old District 8 and the presence of a community of
interest along the Red and Mississippi Rivers are
powerful objective indications that District 4 would not
be understood as being driven by racial considerations to
the exclusion of other redistricting values. Those
factors are therefore of critical relevance in evaluating
appellees' Shaw claim. Conversely, the fact that state
legislators conceded that the State intended to draw a
majority-minority district is not determinative of a
Shaw claim. Under Shaw, there is nothing suspect
about a State's desire to draw a majority-minority
district.

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24

Even if the legislature's actual intent were the
relevant subject of inquiry, the district court misunder-
stood what the State sought to prove by introducing
evidence that it modelled District 4 on District 8 and
that it included persons in District 4 who had common
interests other than their race. The point of that
evidence was not to show that race played no role in the
drawing of District 4; it admittedly played an important
one. Rather, the point was to show that the State was
attempting to draw a majority-minority district in a way
that was consistent with other traditional redistricting
interests. The State's acknowledgement that it intended
to create a majority-minority district is not in any way
inconsistent with its assertion that it also took into
account the traditional districting values of using
districts that resemble prior districts and including
persons with common interests. That acknowledgement
therefore provides no basis for the court's finding that
the State's reliance on those other factors was
pretextual.
In rejecting the State's reliance on old District 8, the
district court also attributed significance to the fact that
District 8 was "never challenged" and "was crafted for
the purpose of ensuring the reelection of Congressman
Gillis Long." J.S. App. 5a. Legislation that has not
been challenged, however, is presumptively consti-
tutional. Voinovich v. Quilter, 113 S. Ct. 1149, 1156-1157
(1993). Nor does it denigrate the State's reliance on old
District 8 to note that the district was originally drawn
to protect an incumbent congressman. To the contrary,
that fact indicates that the shape of District 8 reflects
the State's traditional districting practices. The
district court therefore erred in failing to treat that
district as a benchmark for determining whether
District 4 reflected such a dramatic departure from the

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25

State's traditional practices as to be suspect under
Shaw.
4. The district court made only a conclusory finding
that District 4 was bizarre. J.S. App. 3a. Chief Judge
Shaw, joined by Judge Weiner, elaborated on why, in
their opinion, District 4 should be viewed as bizarre. J.S.
App. 15a-17a. Their reasons are unpersuasive.
Chief Judge Shaw first found that District 4 is not
compact because it is 250 miles long and spans 14
parishes. J.S. App. 15a-16a. Other districts in the
current State plan, however, are also long and span
numerous parishes. District 6 is about 200 miles long
and spans 18 parishes; District 5 is about 190 miles long
and spans 17 parishes; and District 3 is about 175 miles
long and spans 15 parishes. J.S. App. 110a. In the court's
plan (J.S. App. 38a), District 4 is about 200 miles long and
spans 12 parishes, and District 3 is about 175 miles long
and spans 13 parishes. See also U.S. Exh. 4 (District 5 in
1969-70 plan contained 17 parishes; District 5 in 1971-
1972 plan contained 19 parishes; District 5 in 1973-1982
plan contained 20 parishes). Because Louisiana is
comparatively large and has 64 parishes, but only seven
congressional districts, some of its districts will
necessarily be long and contain numerous parishes.
There is nothing bizarre or even unusual about that.

Judge Shaw next found that District 4 does not respect
political subdivisions because it splits 12 parishes and
four cities. J.S. App. 16a-17a. In Louisiana, however,
parish and city lines have never been sacrosanct in
congressional redistricting. The three plans used
between 1971 and 1992 all divided seven parishes. U.S.
Exhs. 4, 6; PX 5, J.S. App. 65a. The court's own plan
divided six. Congressional redistricting plans through-
out the twentieth century have split the city of New
Orleans. The number of parishes and cities split by

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26

District 4 does not constitute such an extraordinary
departure from the State's usual redistricting practices
as to trigger strict scrutiny,
Chief Judge Shaw also found that the State's plan did
not follow the traditional principle of respect for
commonality of interests because District 4 combines
different ethnic, religious, and agricultural groups. J.S.
App. 15a, 17a. Any plan with only seven districts in a
State as diverse as Louisiana, however, must combine
different groups in districts to some extent. As already
noted, District 4 unites a large number of residents who
share common economic and social interests. The
State's decision to give greater weight to the com-
monalities of interest reflected in District 4 than to the
ethnic, religious, and agricultural factors favored by
Judge Shaw does not show that District 4 is bizarre.
In sum, suspect treatment is reserved for truly
bizarre districts that, on their face, evidence a single-
minded pursuit of racial goals, with little or no
consideration for other districting values. District 4 is
not such a district. It reflects an acknowledged effort to
create a majority-minority district, while simulta-
neously pursuing other traditional Louisiana districting
values. It is therefore not suspect under Shaw.

II. THE STATE'S REDISTRICTING PLAN SATISFIES
STRICT SCRUTINY

Even if the district court were right in subjecting the
State's plan to strict scrutiny, it erred in concluding
that strict scrutiny was not satisfied. The State's plan
is narrowly tailored to further the State's compelling
interests in complying with the Voting Rights Act and
ameliorating the effect that racial polarization has on
the opportunity of minority voters to elect candidates of
their choice.

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27

A. The State Had Compelling Interests In Creating a
Second Majority-Minority District

1. State has a compelling interest in complying
with Sections 2 and 5 of the Voting Rights Act. See
Shaw, 113 S. Ct. at 2830. The district court did not
suggest otherwise. Instead, it held that, for the State to
invoke that compelling interest as a justification for its
actions, there must be "findings of * * * statutory
violations." J.S. App. 7a. The district court therefore
reviewed the evidence de novo to determine whether the
State's creation of District 4 was "compelled" by Section
2 or Section 5. J.S. App. 7a, 9a. Based on the application
of that standard, the court found that the creation of
District 4 was not justified by the need to comply with
Section 2 or Section 5. J.S. App. 7a-9a.
The district court's approach is inconsistent with this
Court's precedents. To invoke the Voting Rights Act as
a justification for its actions, the State was not required
to prove that the Act ultimately required the drawing of
a second majority-minority district. Rather, the State
was required to show only that it had a "strong basis in
evidence" for its actions-a standard that is satisfied if
the State had a sound basis for believing that its failure
to draw a second majority-minority district would have
led to a prima facie case against it. City of Richmond v.
J.A. Croson Co., 488 U.S. 469, 500 (1989); Wygant v.
Jackson Bd. of Educ., 476 U.S. 267, 277 (1986) (plurality
opinion); id. at 292-293 (O'Connor, J., concurring);
Johnson v. Transportation Agency, 480 U.S. 616,652-653
(1987) (O'Connor, J., concurring in the judgment). That
standard gives States a margin of safety that will
encourage their voluntary compliance with the Voting
Rights Act, while still insuring that States do not resort
to race-based action casually or gratuitously. Johnson,
480 U.S. at 652-653 (O'Connor, J., concurring in the

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28

judgment); Wygant, 476 U.S. at 290-291 (O'Connor, J.,
concurring).  The actual  violation standard adopted by
the district court imposes an unfair burden of omni-
science upon the States.  Shaw v. Hunt, 861 F. Supp. 408,
439-440 n.26 (E.D.N.C. 1994).  Under the correct
standard, Louisiana's creation of a second majority-
minority was justified by both Section 2 and Section 5.
a.  In Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986),
the Court established three preconditions for a Section 2
vote dilution claim.  Plaintiffs must show that (1) the 
minority population is sufficiently large and compact to
constitute a majority in a single-member district, (2) the
minority group is politically cohesive, and (3) whites
usually vote sufficiently as a bloc to defeat the 
minority's preferred candidate.  In Johnson v. 
DeGrandy, 114 S. Ct. 2647, 2658-2662 (1994), the Court
further held that the extent to which the minority
population has an opportunity to elect candidates in
proportion to their percentage in the population is 
important evidence bearing on the ultimate issue
whether a redistricting plan violates Section 2.  114 S.
Ct. at 2664 (O'Connor, J., concurring) ("[A] court must
always consider the relationship between the number of 
majority-minority voting districts and the minority 
group's share of the population."). In light of Gingles and
DeGrandy, a State would clearly have a reasonable basis
for creating a majority-minority district to comply with
Section 2 when the State legitimately believes that each
of the three Gingles preconditions could be established
against it and when, without such a district, the 
minority group remains substantially underrepresented
when compared to the group's proportion of the

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29

population. See Shaw v. Hunt, 861 F. Supp. at 440-441
& n.28. 1.
The State made that showing here. There is over-
whelming evidence that blacks are politically cohesive in
Louisiana and that whites usually vote sufficiently as a
bloc to defeat their preferred candidates. No black
candidate has ever won election to Congress or the
Louisiana legislature except from a district in which
blacks have constituted a voting majority. In the five
most recent primary and run-off elections in old District
8, more than 87% of the blacks, on average, supported the
black candidate, while less than 10% of the whites, on
average, supported that candidate. SX 15. In addition,
since blacks constitute 30% of the State's population,
creating only one majority-minority district out of seven
(14%) would leave the minority population very
substantially underrepresented when compared to that
group's share of the population.
That leaves only the question whether the minority
population is sufficiently large and compact to constitute
a majority in a district. The district court found that no
compact district could be drawn because the minority
population outside New Orleans is too dispersed. J.S.
App. 8a & n.4. The Gingles compactness requirement,
however, does not demand compactness in any absolute
sense. Rather, the question in circumstances like those
presented here is whether the proposed majority-
minority district is reasonably compact in light of a
State's traditional districting practices. Jeffers v.
Clinton, 730 F. Supp. at 207; Cane v. Worcester County,

___________________(footnotes)

1 In some circumstances, even when a State's existing plan
provides proportional representation, the State may need to create
an additional majority-minority district in order to comply with
section 2. See DeGrandy, 114 S. Ct. at 7658-7676.

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30

35 F.3d at 926-927 n.6. As already noted, District 4
(54% black) is similar in compactness to previous
districts drawn by the State in the same geographic
area. Gingles requires no more. 2.
Moreover, the question here is not whether plaintiffs
bringing a Section 2 suit would necessarily have been
successful in satisfying the compactness requirement,
but whether the State could have legitimately believed
that they would be. Given the similarity in compactness
between District 4 and old District 8, the State acted
reasonably in seeking to comply with Section 2.
b. The State also had a sound basis for concluding
that the creation of a second majority-minority district
was necessary to comply with Section 5. Section 5
forbids a jurisdiction from implementing a redistricting
plan unless it can show that the plan has neither a
discriminatory purpose nor a discriminatory effect. 42
U.S.C. 1973c. Thus, even when a redistricting plan is
not retrogressive, a State cannot obtain preclearance
unless it makes the further showing that the plan is free
of discriminatory purpose. City of Pleasant Grove v.
United States, 479 U.S. 462, 469, 471 & n.11 (1987); City
of  Port Arthur v. United States, 459 U.S. 159, 168 (1982);
City of Richmond v. United States, 422 U.S. 358,378-379
(1975).
In this case, the State reasonably concluded that it
would be unable to satisfy its burden under Section 5 to
show that a redistricting plan with only one majority-
minority district was free of discriminatory purpose.

___________________(footnotes)

2 According to the district court, the State's expert
"confirmed" that the minority population outside New Orleans was
too dispersed to satisfy the compactness requirement. J.S. App. 8a
n.4. In fact, however, the State's expert testified that District 4
was reasonably compact. J.A. 127.

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31

The State could not ignore the fact that a three-judge
court had found that the State's 1982 redistricting plan
diluted black voting strength. Major v. Treen, supra.
The State also knew that Louisiana voting remained
racially polarized to an extraordinary degree. SX 15.
And the State had previously drawn majority-white
districts similar in shape and location to District 4.
Those facts reasonably led the State to conclude that it
would have difficulty showing that a failure to draw a
second majority-minority district similar to District 4
was based on legitimate redistricting considerations
rather than an intent to dilute the black vote.
The State could also take into account the fact that the
Attorney General had already objected to its re-
districting plan for the statewide Board of Elementary
and Secondary Education (B.E.S.E.), a plan that had
included only one majority-minority district out of eight.
The Attorney General's objection letter stated that the
State's B.E.S.E. plan had fragmented minority con-
centrations among three majority white districts, that
this fragmentation had not been justified in terms of
neutral districting principles, and that the application of
such neutral principles would have resulted in two
majority-minority districts. See DX 16 (1993 Hearing).
The district court apparently believed that the State
could not rely on the existence of the Attorney General's
objection to its B.E.S.E. plan, but was required to show
that the objection was a legally valid one. J.S. App. 7a &
n.3. That approach was incorrect. Congress has
delegated to the Attorney General primary responsi-
bility for evaluating whether state redistricting
schemes in jurisdictions covered by Section 5 violate the
voting rights of racial minorities. A State always has
the option to seek preclearance in the District Court for
the District of Columbia if the Attorney General

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32

determines that the State's plan is discriminatory. But
Congress clearly contemplated that the States would not
always have to take that step before revising their plans
to accommodate the Attorney General's objection. The
whole point of permitting the States to seek
administrative preclearance was to provide an
expeditious alternative to district court preclearance
actions. McCain v. Lybrand, 465 U.S. 236, 246-247
(1984). That benefit would be lost if the States could not
generally rely on the Attorney General's "adminis-
trative finding" of discrimination. Regents of the Univ.
of Calif. v. Bakke, 438 U.S. 265, 305 (1978) (opinion of
Powell, J.) (Section 5 objection by the Attorney General
is sufficient to give a state a compelling interest in
taking race-based remedial action).
Moreover, Congress determined that substantive
Section 5 determinations would be made by either the
Attorney General or the District Court for the District
of Columbia. McCain v. Lybrand, 465 U.S. at 246-247.
Congress assigned local federal courts a limited
procedural role in the Section 5 enforcement scheme-to
enjoin voting changes that have not been precleared.
Allen v. State Board of Elections, 393 U.S. 544, 558-560
(1969). As the Court explained in Perkins v. Mathews,
400 U.S. 379, 385 (1971), "What is foreclosed to such
district court is what Congress expressly reserved for
consideration by the District Court for the District of
Columbia or the Attorney General-the determination
whether a covered change does or does not have the
purpose or effect `of denying or abridging the right to
vote on account of race or color.'" The effect of the
district court's approach in this case is to transfer
substantive Section 5 review from the Attorney General
and the District Court for the District of Columbia to

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33

local federal district courts in contravention of
Congress's intent.
Because a State has its own responsibilities under the
Equal Protection Clause, it may not defer entirely to the
Attorney General's Section 5 analysis. Given the
Attorney General's important role in the Section 5
statutory scheme, however, a State should be able to act
on the assumption that the Attorney General has
correctly objected to its plan, unless the objection is
clearly insupportable. Shaw v. Hunt, 861 F. Supp. at
443 & n.34; see UJO, 430 U.S. at 175 (Brennan, J.,
concurring in part) (the Attorney General's judgment
that a particular districting scheme complies with the
remedial objectives of the Voting Rights Act is entitled
to "considerable deference"); cf. Presley v. Etowah
County Comm'n, 112 S. Ct. 820, 831 (1992) (a court must
defer to the Attorney General's construction of Section
5, unless Congress has clearly expressed a contrary
intent or the Attorney General's construction is
unreasonable).
In this case, appellees have identified no such short-
coming in the Attorney General's B.E.S.E. objection.
That objection, together with the evidence discussed
above, reasonably led the State to conclude that its
failure to create a second majority-minority district
would be found to violate Section 5.
2. Independent of its obligations under the Voting
Rights Act, the State also had a compelling interest in
ameliorating the effect that racially polarized voting has
on the opportunity for minority voters in Louisiana to
elect the candidates of their choice. In UJO, Justices
White, Rehnquist and Stevens stated that a State is not
"powerless to minimize the consequences of racial
discrimination by voters when it is regularly practiced
at the polls." 430 U.S. at 167. Where such discrimina-

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34

tion exists, a State may seek to achieve a "fair allocation
of political power between white and nonwhite voters."
Ibid. No other Justices in UJO addressed that issue.
The analysis of the three Justices, however, is fully
consistent with this Court's decision in Croson, which
recognized that a State has a compelling interest in
remedying identified discrimination within its
jurisdiction, even when it has no federal statutory duty
to do so. 488 U.S. at 491-493, 509. The approach of the
three Justices in UJO should therefore be followed here.
Applying that analysis leads to the conclusion that
polarized voting in Louisiana gives the State a
compelling interest in creating a second majority-
minority district. As we have noted, racially polarized
voting in Louisiana is persistent and extreme. Based on
the evidence before it, the State had every reason to
believe that unless it created an additional district in
which blacks constituted a majority, bloc voting by
whites would preclude minority voters from having any
realistic chance to elect a second representative of their
choice and would leave them substantially under-
represented compared to their percentage of the
population. In those circumstances, the State had a
compelling interest in creating a second majority-
minority district in order to achieve a fair allocation of
political power between white and nonwhite voters.
  
B. The State's Plan Is Narrowly Tailored To Further Its
   Compelling Interests

The district court's opinion does not address the issue
of narrow tailoring. District 4, however, easily satisfies
narrow tailoring standards.
Relying on United States v. Paradise, 480 U.S. 149,
171 (1987) (plurality opinion), courts have focused on
three narrow tailoring requirements in the redistricting

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35

context. First, a State may not create more majority-
minority districts than either the Voting Rights Act or
the State's interest in fairly allocating political power
justify. Shaw v. Hunt, 861 F. Supp. at 446; J.S. App. 82a.
Second, a State may not needlessly pack substantially
more minority voters into a district than are reasonably
necessary to give the minority group an opportunity to
elect the candidate of its choice. Ibid. And third, a State
may not create an extremely irregular district when a
far more regular district would be equally effective in
serving the State's compelling interest and the creation
of the more compact district would not compromise the
State's other legitimate redistricting interests. 3. J, S.
App. 84a-87a,
The State's plan in this case does not run afoul of any
of those requirements. The plan creates the number of
majority-minority districts justified by the State's
interests in complying with the Voting Rights Act and
fairly allocating political power. Nor does the plan
needlessly pack minority voters into District 4. Blacks
constitute 55% of the registered voters in the district,
very close to the minimum percentage necessary to
provide minority voters with an opportunity to elect a
candidate of their choice. J.S. App. 83a-84a. And for the
reasons already discussed, the location and shape of
District 4 is fully consistent with the State's traditional
districting practices. 4.

___________________(footnotes)

3 As explained in our jurisdictional statement (at 11-14) in
United States v. Vera, No. 94-988, the narrow tailoring principle
does not require a State to draw the most compact district
possible. A State may legitimately give priority to redistricting
interests other than compactness, such as protecting incumbents.

4 The State contends that the district court erred in imposing a
permanent redistricting plan, without first giving the State a
chance to propose a remedial plan. We agree. The court justified

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36

CONCLUSION

The district court's judgment should be reversed.
Respectfully submitted.

DREW S. DAYS, III
Solicitor General

DEVAL L. PATRICK
Assistant Attorney General

PAUL BENDER
Deputy Solicitor General

IRVING L. GORNSTEIN
Assistant to the Solicitor General

JESSICA DUNSAY SILVER
MARK L. GROSS
Attorneys

JANUARY 1995

___________________(footnotes)

its decision to adopt its own plan on the ground that prompt action
was needed and the State had already failed to adopt a consti-
tutionally acceptable plan twice. J.S. App. 10a. Those factors
might well have justified the court's decision to impose an interim
plan for the upcoming elections. There was no justification,
however, for the court's decision to impose a permanent plan
without first affording the State a chance to propose its own plan.
Wise v. Lipscomb, 437 U.S. 535, 539 (1978).

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No. 94-558

In the Supreme Court of the United States

UNITED STATES OF AMERICA, APPELLANT

v.

RAY HAYS, ET AL.

STATE OF LOUISIANA, ET AL., APPELLANTS

v.

RAY HAYS, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE WESTERN DISTRICT OF LOUISIANA

REPLY BRIEF FOR THE UNITED STATES

DREW S. DAYS, III
Solicitor General
Department of Justice
Washington, D.C. 20530
(202)514-2217

---------------------------------------- Page Break ----------------------------------------

TABLE OF AUTHORITIES

Cases:

Page

City of Richmond v. J.A. Croson Co., 488 U.S. 469
(1989) . . . . 8 
DeWitt v. Wilson, 856 F. Supp. 1409 (E.D. Cal. 1994),
juris. statement filed, No. 94-275 (Aug. 8, 1994) . . . . 3, 5 
Gomillion v. Lightfoot, 364 U.S. 339 (1960) . . . . 2
Johnson v. Miller, 864 F. Supp. 1354 (S.D. Ga. 1994),
prob. juris. noted, 115 S. Ct. 713 (1995) (Nos. 94-631,
94-797 & 94-929) . . . . 3, 4
Rogers v. Lodge, 458 U.S. 613 (1982) . . . . 11 
Shaw v. Hunt, 861 F. Supp. 408 (E.D.N.C. 1994), juris.
statements filed, Nos. 94-923 & 94-924 (Nov. 21, 1994) . . . . 3, 4
Shaw v. Reno, 113 S. Ct. 2816 (1993) . . . . 2, 6
Vera v. Richards, 861 F. Supp. 1304 (S.D. Tex, 1994),
juris. statements filed, Nos. 94-805 (Oct. 31, 1994),
94-806 (Nov. 2, 1994) & 94-988 (Dec. 1, 1994) . . . . 3, 4 
Village of Arlington Heights v. Metropolitan Housing
Dev. Corp., 429 U.S. 252 (1977) . . . . 2
Wilson v. Eu, 823 P.2d 545 (Cal. 1992) . . . . 5 
Wright v. Rockefeller, 376 U.S. 52 (1964) . . . . 2
Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986) . . . . 8, 9 

Constitution and statutes:

Page

U.S. Const. Amend. XIV (Equal Protection Clause) . . . . 2 
Voting Rights Act of 1965, 42 U.S.C. 1973 et seq.:
2, 42 U.S.C. 1973 . . . . 8, 9
5, 42 U.S.C. 1973c . . . . 8, 10, 11

(I)

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IN THE SUPREME COURT OF THE UNITED STATES
      
OCTOBER TERM, 1994

     No. 94-558

UNITED STATES OF AMERICA, APPELLANT
       
v.
    
RAY HAYS, ET AL.

     No. 94-627

STATE OF LOUISIANA, ET AL.) APPELLANTS
       
v.
    
RAY HAYS, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE WESTERN DISTRICT OF LOUISIANA

REPLY BRIEF FOR THE UNITED STATES

1. We argue in our opening brief (Br. 14-20) that
the district court erred in holding that "[r]ace-
conscious redistricting, while not always unconsti-
tutional, is always subject to strict scrutiny." J.S.
App. 5a. While agreeing that race-conscious re-
districting is not always subject to strict scrutiny,
Br. 23-24, appellees nevertheless advocate a very

(1)

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2

similar standard. Relying on Village of Arlington
Heights v. Metropolitan Housing. Dev. Corp., 429
U.S. 252, 266 (1977), appellees contend (Br. 19-20)
that strict scrutiny is appropriate any time that race
is "a motivating factor" in determining a district's
boundaries.
As we have discussed in our opening brief (Br.
15-20), redistricting presents a unique setting for
applying the Equal Protection Clause. In redistrict-
ing, States must reconcile the competing claims to
political influence of different politically cohesive
groups. Members of a racial minority often form such
a competing group. If a State's intent to draw district
lines to accommodate the interests of a politically
cohesive racial minority always triggered strict
scrutiny-while accommodating the interests of
other politically cohesive groups did not-it would
put racial minority groups at a severe competitive
disadvantage in the redistricting process. Far from
furthering equal protection goals, application of
strict scrutiny whenever redistricting accommodates
the political interests of racial minorities would
seriously undermine those goals. *

___________________(footnotes)

* The other cases relied upon by appellees do not support
their view that strict scrutiny applies to any district created
With race as a motivating factor. In Gomillion v. Light foot, 364
U.S. 339 (1960), the municipal lines were bizarre and had the
effect of depriving blacks of the right to vote in municipal
elections. The claim at issue in Wright v. Rockefeller, 376 U.S.
52, 53-54 (1964) was that the district lines were irrational and
had the effect of reducing the political power of a racial
minority group. Appellees' assertion that, following this
Court's decision in Shaw v. Reno, 113 S. Ct. 2816 (1993), all of
the district courts have held that strict scrutiny applies to any
district created with race as a motivating factor is also
incorrect. Besides the district court in this case, only one other

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3

Application of appellees' proposed approach would
also cause a dramatic increase in the number of
redistricting plans subject to strict scrutiny. Guided
by political considerations, a sense of fairness, or
a desire to comply with the Voting Rights Act,
jurisdictions at all levels of government often create
majority-minority districts. Appellees' proposed
approach would subject all those districts to strict
scrutiny.
Appellees attempt to minimize the practical
consequences of their position by claiming that in
this case, the North Carolina case, and the Georgia
case, strict scrutiny "was applied to only one
district ," and that "[e]ven in Texas, only three of that
State's thirty districts were subjected to strict
scrutiny," Br, 25 & n.4. That claim is misleading.
In this case, the district court applied strict
scrutiny to only one Louisiana district. But that is
only because `the district court concluded that
appellees did not challenge the majority-minority
district in New Orleans. J.S. App. 41a. Had that

___________________(footnotes)

district court has adopted that standard. See Shaw v. Hunt,
861 F. Supp. 408 (E.D.N.C. 1994), juris. statements filed, Nos.
94-923 & 94-924 {Nov. 21, 1994). The other three district courts
have rejected that standard. See Johnson v. Miller, 864 F.
Supp. 1354, 1371-1374 (S.D. Ga. 1994) (strict scrutiny applies
when race is the overriding factor in the creation of a district),
prob. juris. noted, 115 S. Ct. 713 (1995) (Nos. 94-631, 94-797 &
94-929); Vera v. Richards, 861 F. Supp. 1304, 1344-1345 (S.D.
Tex. 1994) (strict scrutiny applies only to districts that reflect
an extraordinary departure from the State's traditional
redistricting practices), juris. statements filed, Nos. 94-805
(Oct. 31, 1994), 94-806 (Nov. 2, 1994) & 94-988 (Dec. 1, 1994);
DeWitt v. Wilson, 856 F. Supp. 1409, 1411-1413 (E.D. Cal. 1994)
(strict scrutiny applies only to dramatically irregular
districts), juris. statement filed, No. 94-275 (Aug. 8, 1994).

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4

district been challenged, it would have been subject to
strict scrutiny under appellees' motivating factor
approach. In North Carolina, both majority-minority
districts were subjected to strict scrutiny by the
district court, not just one. Shaw v. Hunt, 861 F.
Supp. 408, 473-474 (E.D.N.C. 1994), juris. statements
filed, Nos. 94-923 & 94-924 (Nov. 21, 1994). In Georgia,
only one of the three majority-minority districts was
subjected to strict scrutiny, but that is because the
plaintiffs in that litigation challenged only one of the
three districts. Johnson v. Miller, 864 F. Supp. 1354,
1359 (S.D. Ga. 1994), prob. juris. noted, 115 S. Ct. 713
(1995) (Nos. 94-631, 94-797 & 94-929). Had plaintiffs
challenged all three districts, and had the court
applied appellees' proposed test, all three majority-
minority districts would have been subjected to strict
scrutiny. Id. at 1366-1377.
In Texas, it is true that only three of the State's
congressional districts were subjected to strict
scrutiny, Vera v. Richards, 861 F. Supp. 1304, 1337-
1344 (S.D. Tex. 1994), juris. statements filed, Nos.
94-805 (Oct. 31, 1,994), 94-806 (Nov. 2, 1994) & 94-988
(Dec. 1, 1994). The court expressly found, however,
that race was a motivating factor in 16 additional
districts challenged by the plaintiffs in that case. Id.
at 1325-1328. The court failed to subject those
districts to strict scrutiny only because it limited
strict scrutiny to districts that, in its view, reflected
an extraordinary departure from the State's
traditional redistricting practices. Id. at 1344-1345.
Appellees also do not discuss the California case.
There, the State's redistricting plans for Congress,
state Assembly, and state Senate "attempted to
reasonably accommodate the interests of every
`functionally, geographically compact' minority group

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5

of sufficient voting strength to constitute a majority
a single-member district." DeWitt v. Wilson, 856
Supp. 1409, 1411 (E.D. Cal. 1994), juris. statement
filed, No. 94-275 (Aug. 8, 1994). Had the court applied
appellees' proposed standard in that case, it would
have subjected virtually all of the 54 majority-
minority legislative districts (14 congressional, 27
state Assembly, 13 state Senate) to strict scrutiny.
See Wilson v. Eu, 823 P.2d 545, 580-596 (Cal. 1992).
Because the court concluded that strict scrutiny does
not apply when race is considered in the context of
traditional redistricting principles, however, no
California districts were subjected to strict scrutiny.
DeWitt, 856 F. Supp. at 1415.
Faced with the difficulty of advocating a pure
motivating factor analysis in the redistricting
context, appellees ultimately retreat from that
position to some extent. According to appellees (Br.
24), because "[m]embers of one race can * * * forma
cohesive and compact community,] * * * race may
be a legitimate consideration in helping to determine
the boundaries of a particular community." Thus,
race can be a factor in determining district
boundaries as long as it does not become "the
touchstone for an electoral district." Ibid. At
another point, appellees propose a slightly different
formulation (Br. 34): Strict scrutiny is triggered
when "the fundamental factor driving [a district] was
race." As we have explained in our brief in United
States v. Johnson, Nos. 94-929, 94-631 & 94-797, in
addition to being too difficult to administer, a
fundamental factor test is subject to the same
objections as a motivating factor test: It would put
politically cohesive racial minority groups at a severe
disadvantage in the redistricting process, and it

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6

would also subject most majority-minority districts
to strict scrutiny.
For those reasons, both of appellees' proposed
standards are inappropriate. Instead, as we have
argued, when a State intentionally creates a district
in which members of a politically cohesive racial
minority constitute a majority, that district is not
subject to strict scrutiny unless it is "so extremely
irregular on its face that it rationally can be viewed
only as an effort to segregate the races for purposes
of voting." Shaw, 113 S. Ct. at 2824.
In this case, there is overwhelming evidence that
blacks in District 4 are politically cohesive. See U.S.
Br. 29. District 4 is also not highly irregular or
bizarre. U.S. Br. 22-26. Accordingly, District 4
should not have been subjected to strict scrutiny.
2. We argue in our opening brief (Br. 21) that the
question whether a district is bizarre must be decided
in the context of the practices of the State in which
the district is created. The relevant inquiry is
whether the district is bizarre when compared to
other districts created through the State's
traditional districting practices. Because District 4
resembles and is actually modelled on various ver-
sions of old District 8 (U.S. Br. 22), it is not bizarre
within the meaning of Shaw.
a. Appellees do not appear to challenge our
contention that the bizarreness inquiry is a
comparative one, They contend instead that District
4 should be subjected to strict scrutiny because it
differs from old District 8 in numerous respects (Br.
31-32). As the relevant maps demonstrate, however,
the resemblance between District 4 and old District 8
is unmistakable. Both districts are located in the
same general area of the State and both run in the

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7

same general direction along the Red and Mississippi
Rivers. When compared to old District 8, District 4
is not at all bizarre.
b. As we explain in our opening brief, rather than
using old District 8 as the benchmark for
determining whether District 4 is bizarre in the
context of Louisiana districting practices, the
district court undertook an inquiry that was
apparently based on its own views of proper
redistricting criteria. The court found that District
4 is bizarre because, in the court's view, it is
not sufficiently compact, splits too many parishes
and large cities, and divides various political
communities. See U.S. Br. 25-26.
Appellees do not defend most of the district court's
bizarreness analysis. Instead, they seek to justify
the district court's finding based entirely on the
evidence that District 4 splits parishes and cities,
See Appellees' Br. 29-30. But as we have noted (Br.
25), there is nothing remarkable about District 4's
splitting of parishes and cities. Previous Louisiana
plans have split as many as seven parishes and two
major cities, ibid.; State's Br, 27-28 & n.33, The fact
that District 4 splits 12 parishes and two major cities
does not constitute a sufficient departure from prior
practices to justify a finding that District 4 is
bizarre.
Appellees insist (Br. 29-30) that the difference is
that this time parishes and cities were divided in
order to help create a majority-minority district. As
we have discussed, however, there is nothing suspect
about an intent to create a district in which a
politically cohesive minority constitutes a majority
as long as the shape of the district does not depart
dramatically from the State's districting practices.

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8

Because the minority group members in District 4
are politically cohesive and the district is not bizarre
under that standard, District 4 should not have been
subjected to strict scrutiny.
  3. We argue in our opening brief that even
assuming strict scrutiny is applicable, the State's
plan satisfies that standard because it is narrowly
tailored to comply with Sections 2 and 5 of the Voting
Rights Act. In deciding this question, the district
court inquired into whether the failure to draw a
second majority-minority district would actually
violate Section 2 or 5. The relevant inquiry, however,
" is whether the State had a firm basis for believing
that District 4 may have been necessary to comply
with those statutory prohibitions. Application of that
standard leads to the conclusion that the State
established a compelling interest sufficient to justify

District 4. See U.S. Br. 27-33.
Appellees argue (Br. 35-39) that the district court's
actual violation standard is the correct one for
judging the constitutionality of the State's plan. But
as we have noted, this Court has already rejected the
view that a State seeking to comply with federal
nondiscrimination requirements must prove that its
actions are actually required by federal law. U.S. Br.
27-28. Instead, this Court has made clear that the
State may engage in race-conscious action when it
has a firm basis for believing that such action may be
required by federal law. See City of Richmond v.
J.A. Croson Co., 488 U.S. 469,500 (1989), and Wygant
v. Jackson Bd. of Educ., 476 U.S. 267, 277 (1986)
(opinion of Powell, J.). The firm basis in evidence
standard (rather than a standard requiring proof that
an actual violation would have occurred) is appro-
priate in order to encourage voluntary compliance

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9

with federal nondiscrimination law. Wygant, 476
U.S. at 290-291 (O'Connor, J., concurring in part and
concurring in the judgment). Appellees make no
effort to reconcile their standard with Croson and
Wygant.
Appellees argue (Br. 35-39) that the standard we
propose immunizes constitutional violations so long
as they are committed with a "pure heart." Under
the standard we propose, however, a State's sub-
jective belief that the Voting Rights Act may require
a majority-minority district is not alone sufficient to
justify the creation of such a district: However pure,
the State's belief must also be objectively reasonable
in light of the circumstances.
4. Appellees argue (Br. 39-49) that even under the
standard we propose, a second majority-minority
district is not justified by Section 2. As we have
noted, however, the evidence shows that (1) blacks
who live along the Red and Mississippi Rivers are
politically cohesive, (2) whites in that area vote as
a bloc against the candidates preferred by blacks,
(3) the black community living along the Red and
Mississippi Rivers is sufficiently large and compact
to constitute a majority in a district, and (4) absent
the creation of such a district, blacks would be very
substantially underrepresented in the Louisiana
congressional delegation when compared to their
percentage in the State's population. See U.S. Br. 29-
30. That evidence is sufficient to show that the State
had a firm objective basis for its conclusion that a
second majority-minority district was needed to
comply with Section 2.
Appellees contend (Br. 46-48) that the district
court's finding that the compactness requirement
was not satisfied precludes any reliance on Section 2.

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10

The district court's finding, however, was based on a
subjective "eye of the beholder" test of compactness.
See Appellees' Br. 47. That is not the right legal
standard for judging compactness. As we have
explained (Br. 29-30), the relevant inquiry is whether
District 4 is reasonably compact in light of the
State's traditional redistricting practices. Because
District 4 is reasonably compact when compared to
old District 8, it satisfies the compactness require-
ment. Appellees point to no evidence that would
justify a different conclusion.
Appellees also contend (Br. 48-49) that there was
insufficient evidence of racially polarized voting in
Louisiana. But as we have shown, the evidence
of polarized voting was overwhelming. See U.S. Br.
29. Appellees' assert (Br. 48) that the district
court rejected the evidence presented by the United
States' expert on that issue. In fact, however, the
district court interrupted the examination of that
expert to state that it was already convinced by his
report that racial polarization existed and that
further examination on that issue was therefore
unnecessary. J.A. 67.
5. Appellees also argue (Br. 41) that the evidence
was insufficient to justify the State's belief that a
second majority-minority district was necessary to
comply with Section 5, The evidence established,
however, that (1) the State had impermissibly diluted
minority voting strength in its 1980s congressional
redistricting plan, (2) the Attorney General had
objected to the State's recent Board of Elementary
and Secondary Education plan on the ground that the
State's failure to create a second majority-minority
district reflected purposeful discrimination, and (3)
the State had created majority-white districts in

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11

prior congressional redistricting plans that were
similar in compactness to District 4. See U.S. Br. 31;
State's Br. 36-37. That evidence was sufficient to
provide the State with a firm basis for believing that
it would have difficulty satisfying its burden under
Section 5 to show that its failure to create a second
majority-minority district was free of discriminatory
purpose.
Appellees' only response (Br. 41) is that none of the
pieces of evidence noted above is sufficient by itself to
prove that a plan with only one majority-minority
district would have reflected purposeful discrimi-
nation. If the State had attempted to obtain
preclearance for a plan with only one majority-
minority district, however, each item of evidence
noted above would not have been viewed in isolation.
The question would have been whether the totality of
the relevant facts raised an inference of purposeful
discrimination. Rogers v. Lodge, 458 U.S. 613, 618
(1982). The State would, moreover, have had to
shoulder the burden of proof on that issue. In those
circumstances, the State's decision to comply
voluntarily with Section 5 by drawing a second
majority-minority district was entirely reasonable
and supported by a strong basis in evidence.
6. Finally, we have argued (Br. 33-34) that the
State could constitutionally draw a second majority-
minority district in order to further its compelling
interest in ameliorating the consequences that
racially polarized voting continue to have on the
opportunity for minority voters to elect candidates of
their choice. Appellees contend (Br. 49) that because
the district court found that the compactness
requirement was not satisfied, there was no need for
the court to address the State's asserted interest in

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12

redressing the effects of racially polarized voting. As
we have already discussed, however, the district
court erred in concluding that the compactness
requirement was not satisfied.
In addition, the assumption underlying appellees'
position is that the only compelling interest that a
State may assert is compliance with federal law.
That assumption is incorrect. As we have explained
(Br. 33-34), independent of its responsibilities under
the Voting Rights Act, a State has a compelling
interest in remedying the effects of racial discrimi-
nation within its borders. That interest fully
justifies the State's decision to create a second
majority-minority district.
       
*****

For the reasons stated in our opening brief as well
as those stated herein, the district court's judgment
should be reversed.

Respectfully submitted.

DREW S. DAYS, III
Solicitor General

APRIL 1995

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No. 94-558

In the Supreme Court of the United States

OCTOBER TERM, 1994

UNITED STATES OF AMERICA, APPELLANT

v.

RAY HAYS, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF LOUISIANA

JURISDICTIONAL  STATEMENT

DREW S. DAYS, III
Solicitor General

DEVAL L. PATRICK
Assistant Attorney General

PAUL BENDER
Deputy Solicitor General

IRVING L. GORNSTEIN
Assistant to the Solicitor General

JESSICA DUNSAY SILVER
MARK L. GROSS
Attorneys

Department of Justice
Washington, D.C. 20530
(202)514-2217

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QUESTIONS PRESENTED

1. Whether the intentional creation of a majority-
minority district is always subject to strict scrutiny.
2. Whether the boundaries of District 4 in Louisi-
ana's redistricting plan are so bizarre on their face
that they can be understood only as an effort to segre-
gate voters into separate districts because of their
race. 3. Whether the State's creation of District 4 is
narrowly tailored to further a compelling interest.

(1)

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II

PARTIES TO THE PROCEEDING

Plaintiffs are Ray Hays, Edward Adams, Susan
Shaw Singleton and Gary Stokely.
Defendants are Edwin Edwards, Governor of the
State of Louisiana; Samuel B. Nunez, President of
the Louisiana State Senate; John A. Alario, Speaker
of the Louisiana House of Representatives; W. Fox
McKeithen, Secretary of State of Louisiana; and
Jerry Fowler, the Commissioner of Elections for the
State of Louisiana,
The United States intervened as a defendant.

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TABLE OF CONTENTS                                   

Page                    

Opinions below . . . . 1
Jurisdiction . . . . 1
Constitutional and statutory provisions involved . . . . 2 
Statement . . . . 2
The questions presented are substantial . . . . 10 
Conclusion . . . . 21 
Appendix A . . . . 1a
Appendix B . . . . 24a 
Appendix C . . . . 39a
Appendix D . . . . 110a 
Appendix E . . . . 115a
Appendix F . . . . 117a

     TABLE OF AUTHORITIES

Cases:

Beer v. United States, 425 U.S. 130 (1976) . . . . 11 
Cane V. Worcester County, Maryland, No. 94-1579
  (4th Cir. Sept. 16, 1994) . . . . 13
City of Richmond V. J.A. Croson Co., 488 U.S. 469
(1989) . . . . 8, 18, 20
City of Richmond V. United States, 422 U.S. 358
(1975) . . . . 19
DeWitt V. Wilson, No. CIV-S-93-575 (E.D. Cal.
June 27, 1994) . . . . 12
Jeffers v. Clinton, 730 F. Supp. 196 (E.D. Ark.
1989), aff'd mem., 498 U.S. 1019 (1991) . . . . 13, 19
Johnson v. Miller, No. 194-008 (S.D. Ga. Sept. 12,
1994) . . . . 12, 15
Major V. Treen, 574 F. Supp. 325 (E.D. La. 1983) . . . . 2, 20
Regents of the Univ. of Calif. V. Bakke, 438 U.S.
265 (1978) . . . . 19
        
(III)

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IV

Cases-Continued:              

Page

Shaw v. Hunt, No. 92-202-CIV-5-BR (E.D.N.C.
Aug. 1, 1994) . . . . 12, 18, 19
Shaw V. Reno, 113 S. Ct. 2816 (1993) . . . . 2, 11, 13, 15, 17
Thornburg v. Gingles, 478 U.S. 30 (1986) . . . . 18
United Jewish Organizations of Williamsburg,
Inc. V. Carey, 430 U.S. 144 (1977) . . . . 8, 10, 20
Vera V. Richards, C.A. No. H-94-0277 (S.D. Tex.
Aug. 17, 1994) . . . . 12
Wygant V. Jackson Bd. of Educ., 476 U.S. 267
(1986) . . . . 18

Constitution, statutes, and regulation:

U.S. Const. Amend. XIV (Equal Protection
  Clause) . . . . 2, 3
Voting Rights Act of 1965, 42 U.S.C. 1973 et seq.:
   2,42 U.S.C. 1973 . . . . 2, 7, 9, 11, 17, 18
    5,42 U.S.C. 1973c . . . . 2, 3, 5, 8, 11, 17, 19
28 C.F.R. 51.3 . . . . 3

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IN THE SUPREME COURT OF THE UNITED STATES
      
OCTOBER TERM, 1994

No.

UNITED STATES OF AMERICA, APPELLANT
      
v.
    
RAY HAYS, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
  FOR THE WESTERN DISTRICT OF LOUISIANA

JURISDICTIONAL STATEMENT

OPINIONS BELOW

The second opinion of the three-judge district court
(App., infra, la-23a) is not yet reported. The first
opinion of the three-judge district court (App., infra,
39a-109a) is reported at 839 F. Supp. 1188, vacated,
114 S. Ct. 2731.

JURISDICTION

The judgment of the three-judge court was entered
on July 26, 1994. App., infra, 24a-26a. A notice of
appeal was filed on July 26, 1994. App., infra, 115a-
116a. The jurisdiction of this Court is invoked under
28 U.S.C. 1253.
         
(1)

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2

  CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED

The Equal Protection Clause of the Fourteenth
Amendment provides that "[N] o State shall * * *
deny to any person within its jurisdiction the equal
protection of the laws." The relevant statutory pro-
visions are Sections 2 and 5 of the Voting Rights
Act, 42 U.S.C. 1973, 1973c, which are reproduced in
the Appendix, infra, 117a-119a.

        STATEMENT

This case concerns a challenge to a congressional
redistricting plan adopted by the State of Louisiana
which contains two majority-minority districts. A
three-judge court invalidated the plan after finding
that one of those districts violated the standards for
race-conscious redistricting established in Shaw V.
Reno, 113 S. Ct. 2816 (1993). The United States, a
defendant-intervenor below, has appealed from that
judgment. The State of Louisiana has also appealed.
1. The population of the State of Louisiana is
more than 30 % black. Blacks comprise 28 of
Louisiana's voting age population and nearly 28%
of its registered voters. From Reconstruction until
the 1980s, black voters had not been in the majority
in any of that State's congressional districts. As a
result of litigation following the 1980 census, a three-
judge court ordered redistricting which resulted in
blacks constituting a majority in one of the State's
eight congressional districts. Major V. Treen, 574
F. Supp. 325 (E.D. La. 1983) (three-judge court).
In 1991, Louisiana redistricted the eight districts
of the Board of Elementary and Secondary Education
(B.E.S.E.). Traditionally, the boundaries of the
eight B.E.S.E. districts had been similar to the bound-

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3
                                   
aries of the State's congressional lines. The new
B.E.S.E. plan created only one majority-minority dis-
trict. Louisiana, a State covered by Section 5 of the
Voting Rights Act of 1965, 42 U.S.C. 1973c, submitted
the plan to the Justice Department for preclearance.
Acting on behalf of the Attorney General (28 C.F.R.
51.3 ), the Assistant Attorney General for the Civil
Rights Division interposed an objection under Sec-
tion 5, stating that the State's minority population
was large enough and compact enough to create two
majority-minority districts, and that the State had
not carried its burden of showing that its decision to
create only one such district did not have a discrimi-
natory purpose. DX 16-17. In response to that ob-
jection, the State adopted a new plan that created
two majority-minority districts, which the Assistant
Attorney General then precleared.
As a result of the 1990 Census, Louisiana lost one
of its congressional seats. App., infra, 55a. In May,
1992, the State legislature enacted a districting plan
for the seven remaining seats. Id. at 39a. That plan
included two majority-black districts: One was cen-
tered in the City of New Orleans and was similar to
the majority-black district in the plan used in the
1980s; the other (District 4) was a Z-shaped district
that began in the northwest corner of the State, went
east along the State's northern border, ran south
down the Mississippi River to the center of the State,
and ended with three western extensions. Id. at 4 la,
62a-63a. The State's plan was precleared by the
Department of Justice.
Appellees, four voters living in Lincoln Parish,
Louisiana, challenged that plan on the ground that it
segregated voters into districts on the basis of race,
in violation of the Equal Protection Clause. App.,

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4

infra 42a. In December, 1993, a three-judge court
ruled in favor of appellees. Id. at 39a-109a. The
court held that "[a] legislature creates a racially-
gerrymandered districting plan when it intentionally
draws one or more districts along racial lines or oth-
erwise intentionally segregates citizens into voting
districts based on their race." Id. at 48a. In the
court's view, that intent may be proven "indirectly
or inferentially * * * when districts are so bizarrely
shaped that they presumptively bespeak an imper-
missible purpose" or "by direct evidence that a legis-
lature enacted a districting plan with the specific
intent of segregating citizens into voting districts
based on their race." Id. at 50a. The court found
that appellees had proven racial gerrymandering in
both ways. Id. at 51a.
Applying strict scrutiny, the court assumed that
the State had one or more compelling interests in
creating a second majority-black district. App., infra,
79a. The court went on to hold, however, that the
State's plan was not narrowly tailored to further
those interests for two reasons. First, the court found
that the plan packed more black voters into District
4 than was "reasonably necessary to give blacks a
realistic chance to determine the outcome of elections
there." Id. at 83a. The court noted that while blacks
clearly have a realistic chance to elect candidates of
their choice in a district that is 5570 black in voting
age population, District 4 was 63% black in Vot-
ing age population. Id. at 83a-84a. Second, the court
found that "a second black majority district could
have been drawn that would have done substantially
less violence to traditional redistricting principles."
Id. at 85a.
The State appealed. While that appeal
ing, the State passed a new redistricting plan (Act

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5

1), with a newly configured majority-minority Dis-
trict 4. That plan was precleared by the Department
of Justice under Section 5. On June 27, 1994, this
Court vacated the district court's judgment and
remanded the case for further proceedings in light of
the new plan. App., infra, 2a.
2. Appellees then filed an amended complaint,
challenging new District 4 on equal protection
grounds. App., infra, 2a. The United States inter-
vened to defend the plan. The court then held a two-
day trial. Ibid.
The evidence at trial showed that the legislative
aide who drafted the new plan, Glenn Koepp, was
given instructions by two state senators to attempt
to devise a plan that would accommodate the con-
cerns expressed in the district court's 1993 opinion,
while still creating a second majority-black district.
Koepp Test., 7/21/94 A.M. Tr. 5-8. To accomplish
these purposes, the senators suggested that Koepp
model the district on old District 8, a district that
the State had used in plans in the 1970s. Id. at 11.
Old District 8 generally began in the western part
of the State, included areas along the Red and Mis-
sissippi Rivers as it moved in a southeast direc-
tion, and ended beyond Baton Rouge. App., infra,
111a-114a. One version of old District 8 in use from
1971-1972 ran from the western border of the State
all the way east to Lake Ponchartrain. Id. at 112a.
During redistricting hearings, the state Senate was
shown maps of various versions of old District 8.
State's Exh. 1 (Senate Comm. Tr. 236-253, 270).
Blacks are geographically concentrated in much
of the area covered by the various configurations of
old District 8, particularly along the Red and Mis-
sissippi Rivers. Koepp Test., 7/21/94 A.M. Tr. 13-

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6

14; Hillard Test., 7/21/94 P.M. Tr. 67. The area
along the Reel River Valley is also an important
economic region and the people in that region share
common interests. Hillard Test., 7/21/94 P.M. Tr.
47-48.
Using old District 8 as a model, Koepp devised
new District 4. The new district begins in the north-
west part of the State near Shreveport, runs diagon-
ally southeast along the Red River to Alexandria,
and then further southeast along the Mississippi River
past Baton Rouge. App., infra, 110a. The district
is approximately 55% black in registered voters.
Koepp Test., 7,/21/94 A.M. Tr. 17. In devising the
district, Koepp tried to keep small towns, precincts,
and parishes intact, retain existing districts as much
as possible, reflect communities of interest, and sep-
arate incumbents. Id. at 8, 14-26; Brinkhaus Test.,
7/22/94 A.M. Tr. 11, 31-32. To satisfy the one
person, one vote rule and other objectives in the plan,
14 of Louisiana's 64 parishes were divided. Koepp
Test., 7/21/94 A.M. Tr. 11. The plan used in the
1980s had divided seven parishes. App., infra, 65a.
The legislature made several minor adjustments
in the plan to satisfy incumbents' concerns about
the political makeup of their districts. Koepp Test.,
7/21/94 A.M. Tr. 48; Bagneris Test., 7/21/94 P.M.
Tr. 119. Those adjustments made District 4 some-
what more irregular. State's Exh. 11.
Voting in Louisiana is racially polarized, and
blacks in Louisiana have not been elected to Congress
except from districts in which blacks have constituted
a majority of registered voters. Engstrom Test.,
7/21/94 P.M. Tr. 16-18; State's Exh. 13. Aware of
that reality, the state legislature attempted to create   

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7

a second majority-minority district in order to comply
with the requirements of Sections 2 and 5 of the
Voting Rights Act, and to continue to remedy Louisi-
ana's history of discrimination in voting. Koepp
Test., 7/21/94 A.M. Tr. 18-22; Bagneris Test.,
7/21/94 P.M. Tr. 106-107, 110; Brinkhaus Test.,
7/22/94 A.M. Tr. 6,24-27.
3. On July 25, 1994, the district court held the
new plan unconstitutional. App., infra, 24a-26a. The
district court enjoined further use of the plan, and
required 1994 elections to be held under a plan drawn
by the court. Ibid. The court did not afford the par-
ties an opportunity to examine or raise objections to
its plan. The court's plan creates one majority-black
district; all other districts are less than 30% black
in registered voters. Id. at 33a. Under the court's
plan, Cleo Fields, who currently represents the ma-
jority-black district the court found unconstitutional
in its first opinion, is paired with a white incumbent
in a district that is more than 70% white. No other
incumbents are paired.
The district court issued an opinion explaining
its decision on July 29, 1994. App., infra, la-23a.
That opinion also readopts the court's first opinion.
Id. at 2a. The court first found that "the bizarre
and irregular shape of District Four raises an infer-
ence that the Louisiana Legislature classified its citi-
zens along racial lines and segregated them into
voting districts accordingly." Id. at 3a. That find-
ing, the court held, shifted the burden to the State
and the United States to rebut that inference. Ibid.
After reviewing all the evidence, the court con-
cluded that "Act 1 can only be explained credibly as
the product of race-conscious decisionmaking." App.,
                                                             
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8

infra, 4a. In support of that conclusion, the court
relied primarily on the fact that the legislators who
testified admitted that race played a "large if not
dominant role in the map as it is now drawn." Ibid.
The court rejected the State's contention that non-
racial considerations also played an important role
in the drawing of District 4. In the court's view,
the State's assertion that the residents along the Red
River had common interests was a "post hoc rational-
ization." Id. at 4a-5a. The court also concluded that
the State's assertion that it relied on the design of
old District 8 was "mere pretext. " Id. at 5a. While
the court acknowledged that "other factors" affected
the way in which District 4 was drawn, the court
concluded that the "fundamental factor driving Act
1 was race." Ibid.
The court then held that "[r] ace-conscious redis-
tricting, while not always unconstitutional, is always
subject to strict scrutiny." App., infra, 5a. The court
noted that this Court had applied a more deferential
standard to race-conscious redistricting in United
Jewish Organizations of Williamsburg, Inc. v. Carey,
430 U.S. 144 (1977) ( UJO). App., infra, 5a. The
court concluded, however, that City of Richmond v.
J.A. Croson Co., 488 U.S. 469 (1989), undermined
the holding in UJO, and required strict scrutiny of
all race-conscious redistricting. App., infra, 6a.
The court went on to hold that the State had not
proven that its consideration of race was supported
by a compelling interest. App., infra, 6a-7a. The
court concluded that Section 5 "cannot be read to
compel the results of Act 1" because "[n] either the
State nor the Department of Justice offered any
evidence suggesting that failure to create a second
majority-minority district would either be a retro-

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9

gression of minority strength or have an illegal pur-
pose or effect." Id. at 8a. The court further con-
cluded that a second majority-minority district was
not compelled by Section 2 because proof of a "numer-
ous and compact minority" is a precondition for a
Section 2 dilution claim and "the evidence convinc-
ingly proves that the State cannot clear [that] hur-
dle." App., infra, 8a. Finally, the district court re-
jected the State's assertion that the creation of a
majority-minority district furthered the State's inter-
est in remedying its history of racial discrimination.
Id. at 9a-10a. The court concluded that "[w]ithout
concrete evidence of the lingering effects of past dis-
crimination * * * we cannot agree that the resegre-
gation of Louisiana by racially configured voting dis-
tricts is warranted." Id. at 10a.
Turning to the question of remedy, the court stated
that it had adopted its own plan because of "the late-
ness of the hour, the dismal history of the Legislature
in two previous attempts, foot-dragging by the de-
fendants in the appeals and the risk that Louisiana
might be without Congressional representation in
January 1995." App., infra, 10a. The court noted
that its plan "split only 6 parishes," followed "tradi-
tional lines," divided only one town, and "ignore [d]
all political considerations." Id. at 10a-11a.
Chief Judge Shaw issued a separate opinion, also
joined by Judge Wiener, which generally tracked the
findings and conclusions of the court. App., infra,
13a-23a. Chief Judge Shaw believed that District 4
"completely disregards the traditional districting
principles of compactness, respect for political sub-
divisions, and respect for commonality of interests."
Id. at 15a. He also stressed that the "old eighth dis-
trict was never challenged on constitutionality" and

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10

therefore has "no application to this case." Id. at
18a. On August 11, 1994, this Court stayed the district
court order, permitting the 1994 congressional elec-
tions to proceed under the State's plan.

THE QUESTIONS PRESENTED ARE SUBSTANTIAL

The Court should note probable jurisdiction of this
appeal. The district court has seriously misconstrued
this Court's decision in Shaw and has decided several
related questions that are of substantial importance
in voting rights litigation now pending throughout the
country. Unless reversed, the court's decision will
significantly hamper state efforts to comply volun-
tarily with the Voting Rights Act. Full briefing and
argument is therefore warranted.
1. The district court held that "race conscious re-
districting, while not always unconstitutional, is al-
ways subject to strict scrutiny." App., infra, 5a.
That holding is inconsistent with United Jewish Or
ganizations of Williamsburgh, Inc. v. Carey, 430
U.S. 144 (1977). In UJO, seven of the eight Justices
participating voted to uphold a plan that deliberately
created majority-minority districts without subject-
ing that plan to strict scrutiny.  Five justices spe-
cifically agreed that the proposed plan has the intent 
and effect of diluting the majority's voting strength.
See id. at 165 (opinion of White, J. joined by Stevens
& Rehnquist, JJ.): id. at 179-180 (Stewart, J. joined
by Powell, JJ., concurring).
In adverting to that issue in Shaw, this Court 
"express[ed] no view as to whether "the intentional
creation of majority-minority districts, without

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11

more,' always gives rise to an equal protection claim."
113 S. Ct. at 2828. The Court did not purport to
overrule UJO. Instead, it distinguished UJO on the
ground that the State in that case had "adhered to
traditional districting principles," Id. at 2829. This
Court also repeatedly stated in Shaw that its holding
was limited to those rare cases when a State creates
a, district that is "so extremely irregular on its face
that it rationally can be viewed only as an effort to
segregate the races for purposes of voting." Id. at
2824 (emphasis added) ; id. at 2825, 2826, 2828,
2830. The district court's holding that Louisiana's
admitted intent to create a majority-minority district
automatically triggered strict scrutiny is therefore in
conflict with UJO and unsupported by Shaw.
The district court's holding has widespread impli-
cations. As Justice White has stated, "bloc voting by
race * * * is a fact of life well known to those re-
sponsible for drawing electoral district lines. These
lawmakers are quite aware that the districts they
create will have a white or a black majority; and
with each new district comes the unavoidable choice
as to the racial composition of the district." Beer v.
United States, 425 U.S. 134, 144 (1976) (White, J.,
dissenting). In such circumstances, a holding that
the intentional use of race to draw district lines is
automatically suspect has the potential to make a
wide range of redistricting plans at all levels of gov-
ernment constitutionally suspect.
Moreover, Sections 2 and 5 of the Voting Rights
Act often require race-conscious redistricting. Under
the district court's decision in this case, however,
race-conscious redistricting undertaken to comply
with Sections 2 and 5 will invariably be treated as
constitutionally suspect. The inevitable result will

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12

be to chill voluntary compliance by the States with
those important statutes.
In addition to the district court in this case, four
other three-judge courts have addressed the question
whether race-conscious redistricting always triggers
strict scrutiny. Those decisions reflect a full range
of views on when strict scrutiny is required. In
DeWitt v. Wilson, No. CIV-S-93-535 (E.D. Cal.
June 27, 1994), slip op. 4, the district court held
that "in redistricting, consciousness of race does not
give rise to a claim of racial gerrymandering when
race is considered along with traditional redistricting
principles, such as compactness, contiguity, and polit-
ical boundaries." In Vera v. Richards, C.A. No. H-
94-0277 ( S.D. Tex. Aug. 17, 1994), the court reached
the same conclusion. That court held that strict scru-
tiny is appropriate only when a district is "highly
irregular" and ignores "traditional districting cri-
teria." Slip op. 92. In contrast, in Shaw v. Hunt,
No. 92-202-CIV-5-BR (E.D.N.C. Aug. 1, 1994), slip
op. 40-41, the district court held that strict scrutiny
is appropriate whenever "racial considerations played
a `substantial' or `motivating' role in the line-
drawing process, even if they were not the only fac-
tors that influenced that process." Finally, in John
son v. Miller, No. 194-008 (S.D. Ga. Sept. 12, 1994),
slip op. 37, the court held that strict scrutiny is
applicable when race is the "overriding, predominant
force determining the lines of the district," but does
not apply when race is "one factor among many of
equal or greater significance." That wide divergence
of views on the threshold question of when strict
scrutiny is required reinforces the conclusion that the
issue is one that warrants this Court's plenary con-
              
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13

sideration. This case presents an appropriate vehicle
for resolving that issue.
2. The district court went cm to find that District
4 is "bizarre" and "can only be explained credibly as
the product of race-conscious decisionmaking." App.,
infra, 3a. This case therefore also raises the ques-
tion of the proper approach in determining that im-
portant Shaw issue.
a. Because the Constitution does not require a
State to tailor its districts to any absolute measure of
compactness, Shaw, 113 S. Ct. at 2827, the manner
in which the State has drawn and continues to draw
other districts is a proper benchmark for determining
whether a particular majority-minority district is
"bizarre." A bizarre district is one that reflects an
extraordinary departure from a State's usual dis-
tricting practices. See Cane v. Worcester County,
Maryland, No. 94-1579 (4th Cir. Sept. 16, 1994),
slip op. 9 n.6; cf. Jeffers v. Clinton, 730 F. Supp.
196, 207 (E.D. Ark. 1989), aff'd mem., 498 U.S.
1019 (1991 ). The manner in which the State has
drawn other districts is also relevant in deciding
whether a particular majority-minority district "on
its face * * * rationally can be viewed only as an
effort to segregate the races for purposes of vot-
ing." Shaw, 113 S. Ct. at 2824. When a district
resembles districts that a State has drawn for rea-
sons having nothing to do with creating a majority-
minority district, it is improper to conclude that such
a district can only be understood as a racial gerry-
mander.
Application of these principles leads to the conclu-
sion that Louisiana's District 4 should not have been
subjected to strict scrutiny under Shaw. First, that
district resembles the Eighth District in congres-
sional plans that the State used from 1967-1972.

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14

App., infra, 110a-112a. The plans in use between
1973 and 1992 also contained a district in the same
general area. Id. at 113a-114a. In none of these
districts did blacks constitute a voting majority.
Given that history, District 4 cannot be considered
bizarre on its face. Nor can it be understood solely
as an effort to segregate voters on the basis of race.
Quite apart from its resemblance to old District 8,
the shape of District 4 fits comfortably within the
State's ordinary districting practices. As the map
of the State's plan illustrates (App., infra, 110a),
District 4 is reasonably compact and contiguous. It
is generally wide and straight. Unlike old District
4, it does not meander over disconnected parts of the
State, nor is it comprised of a series of "fingers"
reaching out from the core. District 4 follows the
Red River and then the Mississippi River, two im-
portant geographical features in the State, and the
population that is concentrated along those rivers
shares common interests.
District 4 is not a square or circle. Shaw, how-
ever, does not treat as suspect any deviation from
geometric regularity. Suspect treatment is reserved
for truly bizarre districts that, on their face, evidence
a single-minded pursuit of racial goals, with little or
no consideration for other districting values. District
4 is not such a district. It reflects a conscientious
effort to create a majority-minority district, while
simultaneously pursuing other traditional Louisiana
districting values. It is therefore not suspect under
Shaw. 1.

___________________(footnotes)

1 The relevant inquiry under Shaw is whether the district
as a whole is bizarre, not whether isolated segments of it are.
Virtually every redistricting plan will have some lines that,
when viewed in isolation, look quite irregular, and this plan
is no exception. It is worth noting that some of the less regu-

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15

b. The district court rejected the State's reliance
on the fact that District 4 resembles old District 8
and encompasses a community of interest along the
Red and Mississippi Rivers as "post hoc rationaliza-
tion" and "mere pretext." App., infra, 5a. In reach-
ing that conclusion, the court relied primarily on the
admissions of state legislators that race played a
large role in the drawing of District 4. Ibid. The
district court's analysis is flawed for two reasons.
First, the relevant inquiry under Shaw is whether
a. district is so bizarre on its face that it can be
understood only as a racial gerrymander. 113 S. Ct.
at 2824. Those terms mandate an objective inquiry,
not an inquiry into the legislature's subjective intent
based on after-the-fact statements made by legisla-
tors. Johnson v. Miller, slip op. 7-8 ( Edmondson, J.,
dissenting). The resemblance of District 4 to old
District 8 and the presence of a community of inter-
est along the Red and Mississippi Rivers are objective
indications that District 4 is not bizarre and cannot
be understood solely as an effort to segregate voters
on the basis of race. Those factors are therefore of
crucial relevance in evaluating appellees' Shaw claim.
Conversely, the fact that state legislators conceded
that the State intended to draw a majority-minority
district is not determinative of a Shaw claim. Under
Shaw, there is nothing suspect about a State's desire
to draw a majority-minority district.
Second, the district court seems to have misunder-
stood what the State sought to prove by introducing

___________________(footnotes)

lar lines at the mid-point of District 4 were constructed to
satisfy the political preferences of incumbent legislators, a
routine consideration in the enactment of redistricting plans;
other unusual looking lines in the district follow oddly shaped
precinct lines. Koepp Test., 7,/21/94 A.M. Tr. 30, 48; Bagneris
Test., 7/21/94 P.M. Tr. 119; Brinkhaus Test., 7/22/94 A.M.
Tr. 9, 14.

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16

evidence that District 4 resembles old District 8 and
includes persons with common interests. The point
of the evidence was not to show that race played no
role in the drawing of District 4; it admittedly played
an important one. Rather, the point of that evidence
was to show that the State was attempting to draw
a majority-minority district in a way that was con-
sistent with other traditional redistricting interests.
The State's acknowledgement that it intended to cre-
ate a majority-minority district is not at all incon-
sistent with its assertion that it also took into account
the traditional districting values served by creating
a district that resembled prior districts and that
included persons with common interests. That ac-
knowledgement provides no basis for the court's find-
ing that the State's reliance on those other factors
was pretextual. 2.
The reasons given by Chief Judge Shaw for find-
ing the State's plan suspect under Shaw are equally
unpersuasive. Chief Judge Shaw concluded that the
State's plan "completely disregards" the traditional
districting principle of respect for political subdivi-
sions because District 4 splits 12 parishes and four
cities. App., infra, 15a-17a. In Louisiana, however,
parish and city lines have never been sacrosanct. The

___________________(footnotes)

2  In rejecting the State's reliance on old District 8, the dis-
trict court also attributed significance to the fact that it was
"never challenged" and "was crafted for the purpose of en-
suring the reelection of Congressman Gillis Long." APP.,
infra, 5a. Legislation that has not been challenged, however,
is presumptively constitutional. Moreover, if old District   8
was drawn to ensure the reelection of an incumbent non-
minority Congressman, then, in the absence of any significant
demographic changes in the region, it calls into question the
conclusion that District 4, which follows similar lines and
directions, can be understood only as an effort to segregate
black and white residential areas.

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17

1980 redistricting plan divided seven parishes, and
the court's own plan divided six. Id. at 10a-lla, 65a.
Congressional redistricting plans throughout the
twentieth century have split the city of New Orleans.
U.S. Exh. 4. District 4's splitting of parish and city
lines does not make it bizarre.
Chief Judge Shaw also concluded that the State's
plan completely disregards the traditional principle
of "respect for commonality of interests" because
District 4 includes different religious groups and dif-
ferent agricultural interests. App., infra, 15a, 17a.
With only seven districts, however, it is impossible
for Louisiana to create districts composed of persons
who have similar interests on every conceivable so-
cial and economic issue. Uncontradicted evidence
shows that persons in District 4 share some impor-
tant common interests. Hillard Test., 7/21/94 P.M.
Tr. 47-48. Chief Judge Shaw's view that the State
should have given greater weight to religious and
agricultural differences reflects his own redistricting
preferences. It does not show that District 4 is
bizarre.
3. Even if the district court were right in sub-
jecting District 4 to strict scrutiny, it erred in con-
cluding that the State did not have a compelling in-
terest in drawing a second majority-minority district.
In Shaw, this Court provided some general guidance
on how to determine whether a State has a compelling
interest in creating a majority-minority district. 113
S. Ct. at 2830-2832. This case provides an opportu-.
nity to provide more concrete guidance on that cen-
tral issue.
a. A State has a compelling interest in complying
with Sections 2 and 5 of the Voting Rights Act. See
Shaw, 113 S. Ct. at 2830. The district court did not
suggest otherwise. Instead, reviewing the evidence

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18

de novo, the district court concluded that the State's
creation of District 4 was not compelled by Section 2
or Section 5. App., infra, 6a-9a. Under this Court's
decisions, however, a State is not required to show
that its actions were in fact required by law in order
to take remedial action. A State need only show that
it had a "strong basis in evidence" for its actions-
a standard that is satisfied if the State reasonably
believes that its failure to take the measure would
lead to a prima facie case of discrimination against
it. City of Richmond v. J.A. Croson Co., 488 U.S.
469, 500 (1989) ; Wygant v. Jackson Bd. of Educ.,
476 U.S. 267, 292-293 (1986) (O'Connor, J., con-
curring in part and concurring in the judgment).
With regard to Section 2, a State would have a
compelling interest in creating a majority-minority
district when the three preconditions for a vote dilu-
tion claim set forth in Thornburg v. Gingles, 478
U.S. 30, 50-51 (1986), are present. See Shaw v.
Hunt, slip op. 62-64. Strong evidence that each of
those preconditions existed was present here. The
record demonstrates that blacks in Louisiana are
politically cohesive and that unless they constitute a
majority in a district, their candidates of choice will
be defeated by whites voting as a bloc. The record
also shows that the concentration of minorities along
the Red and Mississippi Rivers is sufficiently large
and compact to constitute a majority in a district.
Accordingly, the State had a reasonable basis for con-
cluding that the creation of a second majority-
minority district was required in order to comply
with Section 2.
The district court found that a second majority-
minority district was not compelled by Section 2
because no geographically compact district could be
drawn. App., infra, 8a. The Gingles compactness

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19

requirement, however, does not demand compactness
in any absolute sense. Rather, the question in cir-
cumstances like those presented here is whether the
proposed majority-minority district is reasonably
compact in light of a State's traditional redistricting
practices. Jeffers v. Clinton, 730 F. Supp. at 207.
As already noted, District 4 is similar in compact-
ness to previous districts drawn by the State in the
same general area. Gingles requires no more.
The State also had a reasonable basis for conclud-
ing that the creation of a second majority-minority
district was required by Section 5. By 1992, the
Department of Justice had already refused Section 5
preclearance to the B.E.S.E. plan on the ground that
the State had not shown that its failure to create
a second majority-minority district was free of dis-
criminatory purpose. DX 16-17. From that experi-
ence, the State reasonably believed that it would also
have difficulty satisfying its burden to show that its
failure to create a second majority-minority congres-
sional district complied with Section 5.
The district court apparently believed that the
State could not rely on the Attorney General's objec-
tion to its B.E.S.E. plan, but was required to show
that the objection was in fact a legally valid one.
App., infra, 7a & n.3. That approach was incorrect.
The Attorney General is required under Section 5
to object to a redistricting plan when the State is
unable to demonstrate that it is free of discrimina-
tory purpose. City of Richmond v. United States,
422 U.S. 358, 372-373 (1975). The Attorney Gen-
eral's objection based on such a determination con-
stitutes an "administrative finding of discrimina-
tion." Regents of the Univ. of Calif. v. Bakke, 438
U.S. 265, 305 (1978) (opinion of Powell, J.); Shaw
v. Hunt, slip op. 67-69. Such a finding provides the

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20

State with a basis for believing that remedial action
is necessary. Ibid.
b. Independent of its obligations under the Voting
Rights Act, the State had a compelling interest in
ameliorating the effect that racially polarized voting
has had on the opportunity for minority voters in
Louisiana to elect the candidates of their choice. See
Croson, 488 U.S. at 491-493 (opinion of O'Connor,
J.). When whites persist in voting as a bloc against
minority preferred candidates, a State can take steps
through redistricting to "alleviate the consequences
of racial voting at the polls." UJO, 430 U.S. at 166-
168 (opinion of White, J., joined by Stevens & Rehn-
quist, JJ. ).
The district court determined that there are no
lingering effects of discrimination that would justify
such remedial action. App., infra, 10a. That deter-
mination ignores the persistence of racially polarized
voting in the State. As recently as 1983, Louisiana
was ordered by a federal court to create its first
majority-minority district in the New Orleans area
in order to comply with the Voting Rights Act. Major
v. Treen, supra. And based on the evidence before it,
the State had every reason to believe that unless it
created an additional district in which blacks con-
stituted a majority, bloc voting by whites would
preclude minority voters from having any realistic
chance to elect a second representative of their
choice. 3.

___________________(footnotes)

3 The district court's opinion does not address the issue of
narrow tailoring. We nonetheless note that the State's plan
could not be more narrowly tailored to further its compelling
interests. It creates a second majority-black district in the
very place in which minority voters are geographically con-
centrated, and it does so in a way that is consistent with the
State's other redistricting interests. Nor does the plan need-

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21

4. As already noted, there are now five decisions
by three-judge courts addressing the issues raised
by Shaw. In addition to Louisiana, the States in-
volved are California, Georgia, Texas, and North
Carolina. All of those cases involve congressional
redistricting; all either have been or will be appealed
to this Court. The present case raises, in a straight-
forward way, the most important questions left
undecided by Shaw. It clearly warrants plenary con-
sideration by this Court.

CONCLUSION

The Court should note probable jurisdiction.

Respectfully submitted.

Drew S. DAYS, III
Solicitor General

DEVAL L. PATRICK
Assistant Attorney General

PAUL BENDER
Deputy Solicitor General

IRVING L. GORNSTEIN
Assistant to the Solicitor General

JESSICA DUNSAY SILVER
MARK L. Gross
Attorneys

SEPTEMBER 1994

___________________(footnotes)

     lessly pack minority voters into the district: blacks constitute
    55% of the registered voters in the district, very close to the
    minimum percentage necessary to provide minority voters
   with an opportunity to elect a candidate of their choice.

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APPENDIX  A

[Filed Jul. 29, 1994]

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
  SHREVEPORT DIVISION

No. 92-1522

RAY HAYS, ET AL., PLAINTIFFS
      
versus

STATE OF LOUISIANA, ET AL., DEFENDANTS

Before Wiener, Circuit Judge, Shaw, Chief District
Judge and Walter, District Judge. Walter, J., Wiener
and Shaw, JJ. concurring, with Shaw concurring
specially with whom Wiener, J. concurs:

By order dated June 27, 1994, this case was re-
manded from the United States Supreme Court for
further proceedings. For the following reasons, Act
1 of the Second Extraordinary Session of the 1994
Louisiana Legislature is null and void. The State of
Louisiana is hereby enjoined from holding any future
Congressional elections based upon the redistricting
scheme embodied by Act 1.

(1a)

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2a

I

STATEMENT OF THE CASE

Ray Hays, Edward Adams, Susan Singleton, and
Gary Stokely ("Plaintiffs") brought this suit in state
court in August 1992 challenging Act 42 of 1992.
The case was removed to this Court by the State of
Louisiana. After one trial and an evidentiary hear-
ing, we struck down Act 42 as an impermissible
racial gerrymander violative of Plaintiffs' equal pro-
tection rights. The State of Louisiana et al. ("De-
fendants") pursued their appeal directly to the Su-
preme Court. Meanwhile, during an extraordinary
session, the Louisiana Legislature enacted Act 1, re-
pealing Act 42 and creating a new Congressional
redistricting scheme. Plaintiffs filed supplemental
pleadings seeking to amend their complaint. The
amended pleadings challenged Act 1 and sought in-
junctive relief. As the case was on appeal to the Su-
preme Court, the motions were returned unsigned for
lack of jurisdiction. On June 27, 1994, the Supreme
Court vacated our judgment of December 29, 1993;
remanded the case to this Court "for further consid-
eration in light of Act 1 of the Second Extraordinary
Session of the 1994 Louisiana Legislature and the
parties' filings in this Court concerning Act l." Con-
sistent with that order, this Court permitted the pre-
viously filed amended complaint and a two-day trial
was held to determine the constitutionality of Act 1.

II

FINDINGS OF FACT AND
CONCLUSIONS OF LAW

In the interest of brevity, we reiterate and adopt
by reference our December 28, 1993 opinion. Our

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3a

conclusions regarding Plaintiffs' standing to bring
an equal protection challenge are adopted as well.
With that in mind, we make the following findings:

A

"The Act (1) speaks for itself"

The districting map of Louisiana, created under
Act 1, reflects a racial gerrymander. Specifically the
bizarre and irregular shape of District Four raises
the inference that the Louisiana Legislature classi-
fied its citizens along racial lines and segregated
them into voting districts accordingly. The district
cuts across historical and cultural divides, splits
twelve of its fifteen parishes and divides four of the
seven major cities of the State. The statistical evi-
dence showing the racial composition of the districts
further supports the finding that District Four is "so
extremely irregular on its face that it rationally can
be viewed only as an effort to segregate the races for
purposes of voting," Shaw v. Reno, 113 S. Ct. 2816
(1993). 1. Plaintiffs, by submitting the new map with
their supplemental pleadings, stated a claim upon
which relief can be granted under the Equal Protec-
tion Clause. We ordered the State of Louisiana and
Defendant-Intervenor United States to begin the trial
by rebutting this inference.

Defendants offered the testimony of two State
Senators, the State Senate's assistant secretary, a
geographer, and a sociologist in an effort to explain
the shape of the district on other than impermissible

___________________(footnotes)

l The State now concedes that Act 42 was bizarre. In our
opinion of December 28, 1993, we called for major surgery.
Act 1 is at best a cosmetic makeover.

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4a

racial grounds. Those persons involved directly with
the formation of Act 1 acknowledged that the crea-
tion of a second majority-minority district was the
specific intent of the Legislature. Two race-neutral
explanations were submitted by the defense. First,
the geographer opined that as District Four followed
the Red River valley, it endowed all its residents with
a commonality of interest. Second, the various wit-
nesses asserted that District Four was inspired by
"the old Eighth" district thereby satisfying the con-
cept of "traditional" districting principles.

The starting point, following the 1990 census, was
to redistrict for seven congressional districts, instead
of eight, Louisiana having lost one member of Con-
gress. Next, the State sought to comply with the
Constitutional requirement of one man-one vote. In
this case, each district should contain, as closely as
practicable, 603,853 citizens. The State's evidence
clearly shows what happened next: Misinterpreting
our opinion of December 1993 as approving a racially
gerrymandered district if it contained no more than
55% minority registered voters; and remaining con-
vinced that the Department of Justice would not pre-
clear any plan that did not contain two majority/
minority districts, the Legislature embarked on an
endeavor to comply with those demands and still se-
cure adoption. These were the only inflexible fea-
tures given to the cartographer/demographer in
charge of generating the seven districts.

After reviewing the evidence, we find that Act 1
can only be explained credibly as the product of race-
conscious decisionmaking. The Senators themselves
admitted that race played a large if not dominant
role in the map as it is now drawn. The Red River
                      
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5a

valley theory is clearly a post hoc rationalization simi-
lar to the Mississippi River theory offered to support
Act 42 and equally unbelievable. The State did not
imitate the "old Eighth" for tradition's sake. 2. The
"old Eighth," certainly bizarre, before Shaw and
never challenged, was crafted for the purpose of en-
suring the reelection of Congressman Gillis Long.
New District Four was drafted with the specific in-
tent of ensuring a second majority-minority Con-
gressional district. The State's purported reliance on
District Four's similarity to the "old Eighth" is mere
pretext. Although the witnesses highlighted other
factors that carved the contours of the awkward dis-
trict, the fundamental factor driving Act 1 was race.

B

ACT 1 IS SUBJECT TO STRICT SCRUTINY

   Race-conscious redistricting, while not always un-
  constitutional, is always subject to strict scrutiny.
  This conclusion has troubled legislators, scholars, liti-
  gators, and judges alike. T. Alexander Aleinikoff,
  Samuel Issacharoff, Race and Redistricting: Draw-
  ing Constitutional Lines After Shaw v. Reno, 92
  Mich. L. Rev. 588, 602 ( "Aleinikoff"). The problem
  is caused by the incomplete constitutional status of
  affirmative action plans in the voting rights realm.
  In United Jewish Organization, v. Carey, 430 U.S.
  144 (1977 ), the Supreme Court applied a more def-
  erential standard to what the plurality deemed
   benign" measures. One year later, the Court decided
   Regents of the University of California v. Bakke,
    438 U.S. 265 (1978) following the theory that "the
  
___________________(footnotes)

 2 In fact, District Four incorporates the "old Eighth" only
   in part. It shoves the top further north into Shreveport, fur-
   ther south into Baton Rouge and shortens it to the east.

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6a

right not to be injured on the basis of one's skin color
was a personal right secured by the Constitution,
and the asserted lack of an invidious purpose could
not be a sufficient reason for reducing the level of
judicial scrutiny applied to measures that disadvan-
taged persons on the basis of race." Aleinikoff, 92
Mich. L. Rev. at 592. Eleven years later, City of
Richmond v. J.A. Croson Co., 488 U.S. 469 (1989)
confirmed the motion that, since Bakke, the scrutiny
applied under the Fourteenth Amendment Equal Pro-
tection Clause will not vary based on the race of the
preferred group. 488 U.S. at 493. Shaw is consistent
with the more recent equal protection precedents,
focusing on individual rights as opposed to UJO's
group-based approach. Aleinikoff, 92 Mich. L. Rev.
at 600. By not overruling UJO, Shaw W. Reno can
be read to ratify "the earlier group-based decisions
which focus on whether electoral schemes `dilute' the
voting strength of protected minorities [while mak-
ing clear] that the fact of non-dilution does not im-
munize districting plans from constitutional chal-
lenge." Id.

"A racial classification, despite purported motiva-
tion, is presumptively invalid and can be upheld only
upon an extraordinary justification." Personnel Ad-
ministrator of Massachusetts v. Feeny, 442 U.S. 256,
272, 99 S. Ct. 2282, 2293 (1979). Therefore, such
legislation must be narrowly tailored to further a
compelling government interest if it is to pass con-
stitutional muster.   

C

COMPELLING GOVERNMENTAL INTEREST

Defendants have proved no compelling govern-
mental interest in distinguishing among citizens of

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7a

Louisiana because of their race. Defendants contend
that incumbency politics, the Voting Rights Act, and
remedying past legal and social or continuing social
discrimination justified the racial segregation of
voters. We disagree.

We note at the outset that incumbency politics can-
not justify racial classifications. Adhering to federal
anti-discrimination laws and remedying past or con-
tinuing discrimination could constitute compelling
governmental interests if the State could "demon-
strate a strong basis in evidence for its conclusion
that remedial action was necessary." Crosot, 488
U.S. at 510, 109 S. Ct. at 730. Such a basis may be
drawn from judicial, legislative, or administrative
findings of constitutional or statutory violations.

1

Voting Rights Act

The State Legislature believed that the Voting
Rights Act compelled the creation of a second major-
ity-minority districts. 3. A careful review of those stat-
utes and the caselaw interpreting them reveals that
the State's belief was misplaced.
Under Section 5 of the Voting Rights Act, 42
U.S.C.  1973c, the State has an affirmative duty to

___________________(footnotes)

3 This belief was encouraged, if not demanded, by the De-
partment of Justice, under an actual or implied threat of
withholding Section 5 pre-clearance. The shield became a
sword. Whether the Attorney General had the right to with-
hold pre-clearance may be open to question, but she certainly
had the power, and the threat, whether issued by her or some
middle level bureaucrat, was a matter of real concern to the
State. Litigation in the District of Columbia, and everywhere
else is expensive. We hold, however, that a real concern is
not a compelling one.

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8a

avoid retrogression or enactment of a plan that has
the purpose or effect of denying or abridging the
right to vote because of race or color. Neither the
State nor the Department of Justice offered any evi-
dence suggesting that failure to create a second
majority-minority district would either be a retro-
gression of minority strength or have an illegal pur-
pose or effect. Not surprisingly, we can find no sup-
port for such a claim either. Section 5 cannot be read
to compel the results of Act 1.

A Voting Rights Act Section 2 violation occurs
when, under the totality of the circumstances, a
State's apportionment scheme has the effect of dimin-
ishing or abridging the voting strength of a protected
class. In Thornburg v. Gingles, 478 U.S. 30, 106
S. Ct. 2752 (1986), the Supreme Court enumerated
three conditions to a Section 2 "dilution" claim: (1)
a numerous and compact minority, that is (2) politi-
cally cohesive, and (3) subject to majority bloc vot-
ing usually defeating the minority's preferred candi-
date. 438 U.S. at 50-51, 106 S. Ct. at 2766. The
evidence convincingly proves that the State cannot
clear the first Gingles hurdle. 4. Accordingly, Section 2
cannot serve as a-compelling justification- for Act 1.
Certainly the Voting Rights Act would permit the
creation of a second majority-minority district, but
the fact that such a district is permitted does not

___________________(footnotes)

4 Despite a minority population of approximately 30 %,
demographic distribution is simply too diffuse (See Gov't
Exhibit 2) to generate a majority voting age population in
any district outside of the Orleans Parish region. The State's
own expert confirmed that Louisiana's minority population is
simply not sufficiently concentrated to meet Gingles minimum
requirements.

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9a

compel its creation. Shaw demands that we distin-
guish between what the Voting Rights Act requires 
and what it permits.  113 S.Ct. at 2830.  As for any
arguments that Section 2 compels maximization of
minority voting strength, the Supreme Court recently
held:
  
(R)eading Section 2 to define dilution as any
failure to maximize tends to obscure the very
object of the statute and to run counter to its
textually stated purpose. One may suspect vote
dilution from political famine, but one is not
entitled to suspect (much less infer) dilution
from mere failure to guarantee a political feast.
. . . Failure to maximize cannot be the measure
of Section 2.

Johnson v. DeGrandy, - Us. -, - S.  Ct.
  1994 WL 285792 (1994). Hence, the State
did not have a basis in law or fact to believe that the
Voting Rights Act required the creation of two
majority-minority districts. 5.

2

Remediation of Pastor Present Discrimination

Defendants elicited testimony that the sordid his-
tory of unconstitutional treatment of black citizens in
Louisiana prompted the State to tinker with district
lines in order to ensure minority control at the polls.
Using the disease as a cure is a dangerous antidote,
one that must be absolutely warranted before being
administered. Ironically, one witness contended that

___________________(footnotes)

5 A strong basis under Gingles does exist, however, to war-
rant the creation of a majority-minority district in the Orleans
Parish region, where one has existed since 1983. See Major
v. Treen, 574 F. Supp. 325 (E.D. La. 1983).

---------------------------------------- Page Break ----------------------------------------

10a

the days of "white" and "colored" water fountains
and bus seats justify distinct "white" and "African-
American" congressional districts. What the defense
failed to establish is where the Civil Rights Act of
1964 and the Voting Rights Act of 1965 have failed
to accomplish what the State now sets out to do.
Without concrete evidence of the lingering effects of
past discrimination or continuing legal prejudice in
voting laws and procedures, coupled with specific
remedies, we cannot agree that the re-segregation of
Louisiana by racially configured voting districts is
warranted; 6. Croson and Bakke dictate this result.
Finally, we refuse to accept the explanation that
citizen response to issues such as education, crime
and health care is driven by skin pigmentation.
Legitimation of that notion would herald the demise
of equal protection.   

III

THE COURT'S PLAN

Our strong preference is to leave to the Legislature
the task of drawing election districts. We reluctantly
set our hands to the task, considering the lateness of
the hour, the dismal history of the Legislature in two
previous attempts, foot-dragging by `the defendants
in the appeals and the risk that Louisiana might be
without Congressional representation in January
1995, The districts that we drew split only 6 parishes

___________________(footnotes)

6 We also note, that accepting arguendo the remediation
argument as compelling, the defendants utterly failed to
demonstrate how gerrymandering could remedy the problems
asserted as compelling interests. That is exactly the problem
with a sweeping remedy to an amorphous concept. Without
properly defining the compelling interest, it is impossible for
the State to narrowly tailor any plan.

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lla

of the sixty-four, followed traditional lines, only one
town of approximately 3000 was divided, and the
plan met all Constitutional one man-one vote require-
ments. It did ignore all political considerations. And,
instructed by Gingles, we did not carve districts along
race lines, except in District 2, where the Constitu-
tion and fairness requires us to consider it. 7.

IV

CONCLUSION

The Equal Protection Clause demands strict scru-
tiny of government use of race as a dividing line.
This is an individual right in addition to any group-
based protections that the Amendment affords. When
voting districts are carefully planned like racial
wards, an individual injury occurs. All citizens are
stigmatized by the notion that their "interests" can
be defined by race or will be represented adequately
only if a member of their racial "group" holds a
particular office. To reinforce such racial notions by
operation of law seems to fly in the face of Justice
Thurgood Marshall's expressed hope in his argument
in Cooper v. Aaron that we "learn to live together
with fellow citizens, and above all to learn to obey
the law."

I find a contrary position strangely at odds with
the desires so eloquently voiced, not so long ago, in
Shreveport, in Jackson, in Selma, in countless towns
across the South, at schools and lunch counters, at
voter registrar's offices. They stood there, black and
white, certain in the knowledge that the Dream was
coming; determined that no threat, no spittle, no

___________________(footnotes)

7 See Major v. Treen, note 5 supra.

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12a

blow, no gun, no noose, no law could separate us
because of the color of our skin. To say now: "Sep-
arate " "Divide " "Segregate " is to negate their
sacrifice, mock their dream, deny that self-evident
truth that all men are created equal and that no
government may deny them the equal protection of its
laws.

The validity of equal protection and the systemic
legitimacy of our electoral process are threatened
when a State sculpts voting districts along race lines.
As here, when the State cannot, or has not, offered
and supported an extraordinary justification for
these questionable measures, the race-conscious enact-
ments must fall.

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13a

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
  SHREVEPORT DIVISION

Civil Action Number 92-1522

RAY HAYS, ET AL., PLAINTIFFS

versus

EDWIN W. EDWARDS, in his official
capacity as Governor of the State of
Louisiana, ET AL., DEFENDANTS

SHAW, Chief District Judge, concurring:

I concur in the able opinion of the majority. It
is an honest effort to provide a suitable plan for Con-
gressional districts in Louisiana within the restraints
of the Constitution. I would, however, like to add
a few words which may be somewhat repetitive but
which address matters in our December 28, 1993
ruling which we have adopted by reference as well
as additional findings supported by the evidence. Ap-
plying the same constitutional analysis to Act 1
has led us to a similar conclusion.

Again, this Court is called upon to answer the same
question: "Does a state have the right to create a
second racial majority/minority Congressional district
by racial gerrymandering?"

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14a

The United States Supreme Court has answered
that question for this Court in Shaw v. Reno, 1. "Yes,
but only if the plan is narrowly tailored to further
a compelling state interest."

For the following reasons, this Court finds that
the Congressional Redistricting Plan embodied in Act
1 and District 4, in particular, is the product of
racial gerrymandering and is not narrowly tailored
to further any compelling governmental interests.
The plaintiffs' right to equal protection as guaranteed
by the United States Constitution is violated by this
redistricting plan, and as such, the plan is null and
void.    

Racial Gerrymandering

As stated in our previous opinion, racial gerry-
mandering is defined as the intentional segregation
of voters on the basis of race. This Court is called
upon to first determine whether the redistricting plan
is the result of racial gerrymandering.

At trial, the witnesses for the State readily ad-
mitted that the purpose of District 4 was to create
a second black majority district. The testimony of
the state legislators and the State Senate Assistant
Secretary confirmed that the district lines were
driven by the fact that the black population in the
State of Louisiana was sufficiently dispersed through
the State that it was impossible to create a second
majority black district without skewing the lines into
a long irregular shape, as demonstrated by District
4 of the plan.
The districting plan embodied in Act 1 is highly
irregular in its shape. Though it may be less bizarre

___________________(footnotes)

1508 U.S. -, 113 S. Ct. -, 125 L. Ed. 2d 511 (1993).

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15a

than the plan created in Act 42, the physiognomy of
District 4 still strongly suggests that the Legisla-
ture engaged in racial gerrymandering in creating
the district. Looking at District 4 on a map of
Louisiana, it appears as if someone knocked over
an inkwell somewhere around Waskom, Texas, spill-
ing ink aimlessly across the map of Louisiana. There
is simply nothing regular about the contours of Dis-
trict 4.

This Court acknowledges that the appearance or
beauty of a district is irrelevant to a constitutional
analysis; however, the irregularity in shape of a
district is suspect and can indicate racial gerry-
mandering.

Although Shrew discusses the concept of bizarre or
irregular shape as a means of demonstrating or in-
ferring racial gerrymandering, the high court in no
way indicated that shape alone was a determining
factor in a finding of racial gerrymandering.

This Court finds, aside from the irregularity of
the shape of this district, the evidence at trial clearly
supported a finding of racial gerrymandering. The
Louisiana Legislature abandoned traditional district-
ing principles to arrive at a Plan which created two
majority black voting districts. Act 1, like Act 42,
completely disregards the traditional districting prin-
ciples of compactness, respect for political subdivi-
sions, and respect for commonality of interests.

a. Compactness

District 4, under Act 1, begins in Caddo Parish,
and includes the Parishes of DeSoto, Red River,
Sabine, and Natchitoches, all located in clearly de-

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16a

fined North Louisiana, and ends in Ascension Parish,
after cutting through the French region of Louisiana
called "Acadiana," which includes Lafayette, St.
Martin, St. Landry, and Evangelize Parishes.  The
district is approximately 250 miles long, and me-
anders through 15 parishes, making it considerably
longer than any other district in the State.  District
4 cuts up four major population centers of Louisiana,
including Shreveport, Alexandria, Lafayette, and
Baton Rouge, in its efforts to capture sufficient
pockets of African-American voters, paying no re-
spect to parish lines. 2. The district points fingers out
into Caddo, Rapides, and Lafayette Parishes, while
taking small bites out of St. Martin and Iberville
Parishes. A district that stretches over as much
territory, touching so many media and population
centers, cannot be said to be compact.
   
b. Respect f or Political Subdivisions

Although Act 1 is an improvement from Act 42,
the state legislature continues to disregard the parish
lines in fashioning a plan to create a second minority
district.

In the creation of District 4, the State found it
necessary to fragment twelve of the fifteen parishes
comprising District 4, splitting sixteen parishes under
the plan. District 4 is made up of pieces and parts
of twelve parishes and splits four of the State's

___________________(footnotes)

2  This court notes that District 4 covers, not only four
major population centers of Louisiana, but includes four
separate and major media centers of this state. Congressional
candidates would be required to spend substantial amounts
of money and time covering the voters in four major areas
of the state.

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17a

largest cities, outside of New Orleans-Shreveport,
Baton Rouge, Lafayette, and Alexandria. Clearly,
Act 1 has no respect for Louisiana's political sub-
divisions.

c. Commonality of Interests

To say that District 4 comprises voters with com-
mon interests violates all traditional north-south,
ethno-religious, economic and historical distinctions
in Louisiana which created this State's diverse
personality.

District 4 includes North Louisiana English-
Scotch-Irish, mainline Protestants, South Louisiana
French-Spanish-German Roman Catholics, traditional
rural black Protestants, and Creoles. The district
encompasses North, Central, and South Louisiana,
each of which has its own unique identity, interests,
culture, and history. The agricultural regions of Dis-
trict 4 include cotton, soybean, rice, sugar cane, and
timber. Such diverse agricultural constituency have
few common interests. We continue to question
how one Congressional representative could ade-

quately represent the varying interests of residents
in such far-flung areas of the State.

A district which disregards commonality of inter-
ests and stretches across the State in a hap-
hazard manner without regard to political subdivi-
sions can only be explained as the result of racial
gerrymandering.

Justification for Defendant's Plan

The State attempted to put forth a race-neutral
explanation for its plan by the use of a geographer
who testified that District 4 was drawn along the

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18a

Red River Valley demonstrating a commonality of
interest. The State failed in its burden of proof to
show that the Red River Valley region in the State
of Louisiana demonstrated a commonality of interests.

Secondly, the State offered as support for its plan,
that District 4 of the plan was modeled after the
old eighth district in Louisiana which was created
for and represented by Congressman Gillis Long.

This Court is not swayed by the assertion that
the tradition of the past regarding the old eight  
district is binding on this Court, due to the fact  
that the old eighth district was never challenged on
constitutionality by any court in the United States
This Court is not called upon to determine the con
stitutionality of the old eighth district, and does no
rely on the fact that such a district existed in Louisi
ana. What was done by the Louisiana Legislature
in the old eighth has no application to this case
before this Court, and cannot be used as a comparable
for the plan before this Court.

Accordingly, this Court finds that the only explan-
ation of the State's Redistricting Plan was racial
gerrymandering. The State intentionally segregate
voters into Congressional districts on the basis o
race, in order to intentionally create a second black
majority voting district.

Narrowly Tailored

A racially gerrymandered plan is subject to strict
scrutiny, and as such it violates the Equal Protection
Clause of the Fourteenth Amendment unless it is 
narrow] y tailored to further a compelling govern
mental interest.

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19a

Compelling Governmental Interest

Again, the State advances two possible compelling
state interests to justify their racial gerrymander-
ing: (1) compliance with the Voting Rights Act,
and (2) remedying the effects of past discrimination.

a. Compliance with the Voting Rights Act

Section 5 of the Voting Rights Act provides that
a state has an affirmative duty to avoid retrogression
or to avoid enactment of a plan that has the purpose
or effect of denying or abridging the right to vote
on account of race.

The defendants established that the Louisiana Leg-
islature was operating under the belief that a second
majority-black district was mandated by the Depart-
ment of Justice to avoid retrogression, and obtain
preclearance. Without commenting further regard-
ing the role of the Department of Justice in affecting
the plan enacted in Act 1, this Court finds no evi-
dence to support a finding that a second majority-
black district is required by Section 5 of the Voting
Rights Act, to avoid retrogression. Prior to the
census, Louisiana's Congressional delegation had only
one black representative out of eight congressmen.
Certainly, one congressman out of seven cannot con-
stitute retrogression. Section 5 of the Voting Rights
Act does not constitute a compelling governmental
interest in this case.

Additionally, Section 2 of the Voting Rights Act
prohibits a plan that has the effect of diminishing
or abridging the voting strength of a protected class.

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20a

However, this claim must fall in the face of the
Supreme Court's ruling in Thornburg v. Gingles. 3.  

This Court finds that Section 2 of the Voting
Rights Act is not implicated by this plan. Although
the Voting Rights Act would permit a second minor-
ity district, such a district is not compelled by the
Act.   

b. Remedy Past Discrimination

The State advanced, as justification for its racially
gerrymandered district, the belief that the creation
of a second minority district in Louisiana is mandated
to remedy the past discrimination which has existed
in Louisiana.

This Court struggled with the concept of how to
define "past discrimination" in Louisiana. Certainly,
the history of Louisiana, as of most states in the
deep South with respect to its treatment of blacks,
is indelibly imprinted in our memories. This State,
having inflicted great atrocities against minorities,
has made great strides in remedying past discrimina-
tion, being ever vigilant of its current existence in
the attitudes of many of its residents today. Louisi-
ana, in the sense of its history, will always have a
history of past discrimination. However, this Court
must determine whether this State has a history of
past legal discrimination in the voting laws and pro-
cedures which compels it to make reparations and
remediation.

The Civil Rights Act of 1964 and the Voting Rights
Act of 1965 have mandated the elimination of ob-
stacles to minority participation at the polls. Since

___________________(footnotes)

3478 U.S. 30, 106 S. Ct. 2752 (1986).

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21a

those turbulent times in Louisiana, and through the
efforts of many black and white leaders in this State,
we have seen the elimination of poll taxes, literacy
tests, and violence to reduce or prohibit African-
American participation in our elections process. Lou-
isiana has minority representation in nearly every
level of government, in almost every area of the
State. Speaking only in the sense of the voting rights
of minorities in Louisiana, this Court finds that there
exist no significant obstacles for minorities in this
State to participate in the elections process which
have not been remedied by the Civil Rights Act of
1964 and the Voting Rights Act of 1965. Accord-
ingly, the concept of remedying past discrimination
is not a compelling governmental interest in the re-
cent history of Louisiana in the area of voting rights.

This Court acknowledges the great benefits that
are derived by an increase in minority representa-
tion in government, not only for those who are repre-
sented but also to the process of government itself.
Given the opportunity to serve, minorities have shown
that they perform admirably. A greater number of
African-American leaders in the government process
not only provide positive role models for all black
citizens, but their efforts in government will insure
that the legal obstacles to minority advancement in
all areas of life will be eliminated. However, to dis-
regard the rights of all citizens of the State of Lou-
isiana would violate the Equal Protection Clause of
the United States Constitution, and such a plan would
do further violence to the ultimate goal of a color-
blind system.

Although we found that the evidence presented at
the hearing did not support the contention that the

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22a

Legislature was operating pursuant to a compelling
state interest, even if there had been satisfactory
evidence at trial that there is a compelling state in-
terest in creating a second majority-minority Con-
gressional district, the plan embodied by Act 1 was
not narrowly tailored to effect that interest. The
fact that outside of the Orleans Parish area, the
minority black population is relatively dispersed
throughout the rest of the State, elicited the question
of whether it was even possible to develop a district-
ing plan that creates a second majority-minority dis-
trict and is narrowly tailored, in the sense that the
plan in total does not unduly burden the rights of
third parties.
     
The Court Imposed Plan

This Court, with the assistance and guidance of
our appointed special master, devised a Congressional
Districting Plan. This plan was created from a com-
puter program which included the demographics of
the State of Louisiana. This Court started with the
goal of creating seven Congressional districts, re-
maining true to the "one man, one vote" require-
ment, and the constraints of Shaw and Gingles.

After considering every combination available, this
Court reached the conclusion that the diffused popu-
lation of black voters in Louisiana, outside of Dis-
trict 2, makes it impossible to draw a Congressional
plan which contains two minority-majority districts
and passes constitutional muster. Act 1 clearly does
not.       

Conclusion

While this Court finds that the creation of a second
minority-majority district in Louisiana is permissive

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23a

and advantageous, we do not find it compelling,
under the constraints of the Constitution.

This Court applauds the Louisiana Legislature in
its efforts to create a second minority district; how-
ever, such efforts run aground of the Constitution
and the dictates of Shaw v. Reno.

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24a

APPENDIX B

[Filed Jul. 25, 1994]

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
  SHREVEPORT DIVISION

Civil Action No. CV 92-1522S

RAY HAYS, ET AL., PLAINTIFFS

versus

EDWIN W. EDWARDS, in his official
capacity as Governor of the State of
Louisiana, ET AL., DEFENDANTS

ORDER

IT is ORDERED that Plaintiffs' Motion for Judg-
ment as a Matter of Law be and it is hereby
GRANTED.

IT IS FURTHER ORDERED that Act 1 of the
Second Special Session of the 1994 Louisiana Legisla-
ture (the Act) is unconstitutional, in that it violates
the Equal Protection Clause of the Fourteenth
Amendment of the United States Constitution, and
the redistricting plan embodied in the Act is null and
void.

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25a

IT IS FURTHER ORDERED that the State of
Louisiana is permanently enjoined from holding any
elections under the Act.

IT IS FURTHER ORDERED that, although we
do not invalidate the 1992 congressional elections, the
term of office of each member of the United States
House of Representatives from Louisiana who repre-
sents a district created under the plan in Act 42 of
1992 of the State of Louisiana, and each district cre-
ated under such plan, shall expire, ipso facto, at noon
on the 3rd day of January, 1995, and such terms of
office and such districts shall not be extended or
carried over into the next Congress in any manner
whatsoever.

IT IS FURTHER ORDERED that a congressional
redistricting plan for the State of Louisiana is
hereby provided, as set forth in Appendix A, on the
basis of which all congressional elections for the
seven (7) United States Representatives from the
State of Louisiana to the One Hundred Fourth Con-
gress shall be conducted, with the dates for qualify-
ing and for holding such elections to be established
by the cognizant officials of the State of Louisiana
according to law; and that all subsequent elections
of United States Representatives from the State of
Louisiana shall be conducted under the plan provided
by this court until and unless a congressional district-
ing plan enacted by the State of Louisiana according
to law is submitted to this court and is determined
by it to be constitutionally valid.

IT IS FURTHER ORDERED that, as prevailing
parties in all phases of this case to date, the Plain-
tiffs are entitled to recover all reasonable costs, at-
torneys' fees and expenses, including reasonable ex-

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26a

pert witness fees, pursuant to 42 U.S.C. 1988, in
amounts to be determined by reference to United
States Magistrate Judge Roy S. Payne for review
and recommendations; provided, however, that such
determination shall not prevent this Order from be-
coming final immediately upon its being filed.

This court reserves the right to issue, and intends
to issue, a memorandum opinion consistent with this
Order.

FOR THE COURT:

/s/ Donald E. Walter
DONALD E. WALTER
District Judge   

[Judgment Entered 7-26-94]

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27a

LOUISIANA CONGRESSIONAL DISTRICTS
The State of Louisiana is divided into the following
seven Congressional Districts:

       DISTRICT 1

District 1 is composed of Precincts 3-G, 5-G, 8-G,
9-G, 1O-G, 1-H, 2-H, 3-H, 4-H, 5-H, 6-H, 7-H, 8-H,
9-H, l-K, 2-K, 3-K, 4-K, 5-K, 6-K, 7-K, 8-K, 9-K,
1O-K, 11-K, 12-K, 13-KA, 15-K, 16-K, 17-K, 18-K,
19-K, 20-K, 25-K, 27-K, 28-K, 34-K, 1, 2, 3, 4, 5,
6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20,
21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33,
34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46,
51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63,
64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76,
77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89,
90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102,
103, 105, 106, 116, 117, 118, 119, 120, 121, 122,
123, 124, 125, 126, 127, 128, 129, 130, 132, 134,
135, 136, 137, 170, 171, 174B, 175, 176, 177, 178,
182, 183, 184, 185, 193, 194A, 195, 210, 211, 225,
226, 227, 228, 229, 230, 231, and 234 of Jefferson
Parish; Precincts 3-20, 4-8, 4-9, 4-10, 4-10A, 4-11,
4-12, 4-13, 4-13A, 4-14, 4-14A, 4-15, 4-16, 4-16A,
4-17, 4-17A, 4-18, 4-18A, 4-19, 4-20, 4-20A, 4-21,
4-21A, 4-22, 4-23, 5-12, 5-13, 5-14, 5-15, 5-16, 5-17,
5-18, 5-19, 7-33A, 7-40, 7-41, 7-42, 12-4, 13-1, 14-1,
14-2, 14-3, 14-4, 14-8, 14-9, 14-10, 14-11, 16-2, 17-1,
17-17, 17-18, 17-18A, 17-18B, 17-19, 17-19A, 17-20,
and 17-21 of Orleans Parish; St. Tammany Parish;
Tangipahoa Parish; and Washington Parish.

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28a

DISTRICT 2

District 2 is composed of Precincts l-G, 2-G, 4-G,
6-G, 7-G, 11-G, 13-KB, 14-K, 21-K, 22-K, 23-K, 24-K,
26-K, 29-K, 30-K, 31-K, 32-K, 33-K, l-W, 2-W, 3-W,
4-W, 5-W, 6-W, 7-W, 8-W, 9-W, 104, 107, 115,
131, 133, 138, 150, 151, 152, 153, 154, 155, 156,
157A. 157B, 172, 173, 174A, 179A, 179B, 180, 181,
186, 187, 188, 189, 190, 192, 192, 194B, 196, 197,
198, 212, 213A, 213B, 213C, 214, 215, 232, 233,
235, 236, 237, 246A, and 246B of Jefferson Parish
and Precincts 1-1, 1-2, 1-5, 1-6, 1-7, 2-1, 2-2, 2-3,
2-4, 2-5, 2-6, 2-6A, 2-7, 3-1, 3-3, 3-4, 3-5, 3-6,
3-7, 3-8, 3-9, 3-10, 3-12, 3-13, 3-14, 3-15, 3-16, 3-17,
3-18, 3-19, 4-2, 4-3, 4-4, 4-5, 4-6, 4-7, 5-1, 5-2, 5-3,
5-4, 5-5, 5-6, 5-7, 5-8, 5-9, 5-10, 5-11, 6-1, 6-2, 6-4,
6-5, 6-6, 6-7, 6-8, 6-9, 7-1, 7-2, 7-4, 7-4A, 7-5, 7-6,
7-7, 7-8, 7-9, 7-9A, 7-10, 7-11, 7-12, 7-13, 7-14, 7-15,
7-16, 7-17, 7-18, 7-19, 7-20, 7-20A, 7-21, 7-22, 7-23,
7-24, 7-25, 7-25A, 7-26, 7-26A, 7-27, 7-27A, 7-27B,
7-28, 7-28A, 7-29, 7-30, 7-31, 7-32, 7-33, 7-34, 7-35,
7-36, 7-36A, 7-37, 7-37A, 7-38, 7-38A, 7-39, 8-1, 8-2,
8-4, 8-5, 8-6, 8-7, 8-8, 8-9, 8-10, 8-11, 8-12, 8-13,
8-14, 8-15, 8-16, 8-17, 8-18, 8-19, 8-20, 8-21, 8-22,
8-23, 8-24, 8-25, 8-25A, 8-26, 8-26A, 8-27, 8-27A,
8-28, 8-29, 8-30, 9-1, 9-2, 9-3, 9-3A, 9-3B, 9-4, 9-5,
9-5A, 9-6A, 9-6B, 9-6C, 9-6D, 9-6E, 9-6F, 9-7, 9-8,
9-8A, 9-8B, 9-9, 9-10, 9-11, 9-12, 9-13, 9-14, 9-15,
9-16, 9-17, 9-18, 9-19, 9-20, 9-21, 9-22, 9-23, 9-24,
9-25, 9-25A, 9-26, 9-26A, 9-27, 9-28, 9-28A, 9-28B,
9-28C, 9-28D, 9-28E, 9-28F, 9-29, 9-29A, 9-30, 9-30A,
9-31, 9-31A, 9-31B, 9-31C, 9-31D, 9-31E, 9-32, 9-33,
9-33A, 9-34, 9-34A, 9-35, 9-35A, 9-36, 9-36A, 9-36B,
9-36C, 9-37, 9-37A, 9-38, 9-38A, 9-38B, 9-39, 9-39A,
9-39B, 9-40, 9-40A, 9-40B, 9-40C, 9-41, 9-41A, 9-41B,

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29a

9-41C, 9-41D, 9-42, 9-42A, 9-42B, 9-42C, 9-42D,
9-42E, 9-43, 9-43A, 9-43B, 9-43C, 9-43D, 9-43E, 9-43F,
9-43G, 9-43H, 9-431, 9-43J, 9-43K, 9-43L, 9-43M,
9-43N, 9-44, 9-44A, 9-44B, 9-4C, 9-44D, 9-44E,
9-44F, 9-44G, 9-44H, 9-441, 9-44J, 9-44K, 9-44L,
9-44M, 9-44N, 9-440, 9-44P, 9-44Q, 9-45, 9-45A,
10-3, 10-4, 10-5, 10-6, 10-7, 10-8, 10-9, 10-10, 10-11,
10-12, 10-13, 10-14, 11-1, 11-2, 11-3, 11-4, 11-5, 11-6,
11-7, 11-8, 11-9, 11-10, 11-11, 11-12, 11-13, 11-14,
11-15, 11-16, 11-17, 11-18, 11-19, 12-1, 12-2, 12-3,
12-5, 12-6, 12-7, 12-8, 12-9, 12-10, 12-11, 12-12,
12-13, 12-14, 12-15, 12-16, 12-17, 12-18, 12-19, 12-20,
13-2, 13-3, 13-4, 13-5, 13-6, 13-7, 13-8, 13-9, 13-10,
13-11, 13-12, 13-13, 13-14, 13-14A, 13-15, 13-16,
14-5, 14-6, 14-7, 14-12, 14-13, 14-13A, 14-14, 14-15,
14-16, 14-17, 14-18, 14-18A, 14-19, 14-20, 14-21,
14-22, 14-23, 14-24, 14-24A, 14-25, 14-26, 14-26A,
15-1, 15-2, 15-3, 15-4, 15-5, 15-6, 15-7, 15-8, 15-9,
15-10, 15-11, 15-11A, 15-12, 15-12A, 15-13, 15-13A,
15-13B, 15-14, 15-14A, 15-14B, 15-14C, 15-14D,
15-14E, 15-14F, 15-14G, 15-15, 15-15A, 15-15B,
15-16, 15-17, 15-17A, 15-17B, 15-18, 15-18A, 15-18B,
15-18C, 15-18D, 15-18E, 5-18F, 15-19, 15-19A,
15-19B, 15-19C, 16-1, 16-1A, 16-3, 16-4, 16-5, 16-6,
16-7, 16-8, 16-9, 17-2, 17-3, 17-4, 17-5, 17-6, 17-7,
17-8, 17-9, 17-10, 17-11, 17-12, 17-13, 17-13A, 17-14,
17-15, and 17-16 of Orleans Parish.

DISTRICT 3

District 3 is composed of Precints 13, 14, 15, 16A &
16B, 27A, 27B, 28, 29, 31, 32, 33, 34, 35A, 35B, 36,
37, 40, 41, and 42 of Ascension Parish; Assumption
Parish; Iberia Parish; Precinct 1-GI, l-LA, l-LB,
2-L, 216, 217, 238, 247, 248, 249, and 250 of Jeffer-

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30a

son Parish; Lafourche Parish; Plaquemines Parish;
St. Bernard Parish; St. Charles Parish; St. James
Parish; St. John the Baptist Parish; Precincts 1-1,
1-2, 1-3, 1-4, 1-5, 1-6, 1-7, 2-1 & 2-3, 2-2, 2-4, 3-1,
3-2, 3-3, 3-4, 3-5, 3-6, 3-7, 3-8, 3-9, 4-1, 4-2, 4-3, 4-4,
4-5, 4-6, 5-1, 5-2, 5-3 & 5-4, 6-1, 6-2, 6-3, 6-4, 7-1,
7-2, 7-3, 7-4, 8-1, 8-2, 8-3, 8-4, 9-1, 9-4, and 9-5 of
St. Martin Parish; St. Mary Parish; and Terrebonne
Parish.     

DISTRICT 4

District 4 is composed of Precincts 1-1, 1-3, 1-4, 1-6,
1-7, 2-6-O, 3-1, 4-1, 4-2, 4-3, 5-2, 5-2A*, 5-5, and 5-10
of Allen Parish; Beauregard Parish; Bienville Par-
ish; Bossier Parish; Caddo Parish; Claiborne Parish;
De Soto Parish; Natchitoches Parish; Red River Par-
ish; Sabine Parish; Vernon Parish; and Webster
Parish.     

DISTRICT 5

District 5 is composed of Avoyelles Parish; Caldwell
Parish; Catahoula Parish; Concordia Parish; East
Carroll Parish; Precincts 1-2, 1-13-0, 1-13-1, 4-1-2R,
4-1-3R, 4-1C, 4-2-O, 4-2-1, 4-3, 4-4, 5-1, 5-2-O, 5-2-1,
5-2-2, 5-3, 5-4C, 5-4R, and 5-5 of Evangelize Parish;
Franklin Parish; Grant Parish; Jackson Parish;
La Salle Parish; Lincoln Parish; Madison Parish;
Morehouse Parish; Ouachita Parish; Rapides Parish;
Richland Parish; Tensas Parish; Union Parish; West
Carroll Parish; and Will Parish.
      
DISTRICT 6

District 6 is composed of Precincts 1, 2A & B, 3, 4A,
4B, 5A, 5B, 6, 7A, 8A & 8B, 9, 10A & 10B, 11A &
11B, 12, 21A & 21B, 22A, 22B, and 23 of Ascension

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31a

Parish; East Baton Rouge Parish; East Feliciana
Parish; Iberville Parish; Livingston Parish; Pointe
Coupee Parish; St. Helena Parish; West Baton Rouge
Parish; and West Feliciana Parish.

DISTRICT 7

District 7 is composed of Acadia Parish; Precincts
1-2, 1-5, 2-1, 2-2-C, 2-2-O, 2-3, 2-4-C, 2-4-O, 2-5,
2-6-C, 3-2, 5-1, 5-3, 5-3A*, 5-4-C, 5-4-O, 5-4-X* ,
5-4-Y*, 5-6, 5-7, 5-8, 5-8A*, 5-9, 5-11, 5-12 and 5-13
of Allen Parish; Calcasieu Parish; Cameron Parish;
Precincts 1-1, 1-3, 1-4-OR, 1-4-1R, 1-4C, 1-5-O, 1-5-l,
1-6, 1-7, 1-8-O, 1-8-1, 1-8-2, 1-9-0C, 1-9, 1C, 1-9-2-C,
1-9-3C, 1-9R, 1-10-0, 1-10-1, 1-11, 1-12, 1-14, 1-15,
1-16, 1-17-OR, 1-17-lR, 1-17C, 1-18-OC, 1-18-1C,
1-18R, 1-19, 2-1, 2-2, 2-3, 2-4, 2-5, 3-l-O, 3-l-1, 3-2-O,
3-2-1, 3-2-2, 3-3, 3-4, 3-5, 3-6-O, 3-6-1, 3-6-2, 3-7, 3-8,
4-l-OR, and 4-1-lR of Evangelize Parish; Jefferson
Davis Parish; Lafayette Parish; St. Landry Parish;
Precincts 9-2, and 9-3 of St. Martin Parish; and Ver-
milion Parish.

The precincts enumerated herein are the precincts
existing on April 17, 1994 established by the respec-
tive parish governing authority and used by the
Louisiana Legislature in Act 1 of the Second Extraor-
dinary Session of 1994.

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32a

DB : LA SEN 1994 

Congressional District Statistics
        Total Population
     
Total   Ideal       %
District   Number Popu-   Popu-  District District
Name   Members lation   lation  Variance Variance
District 1   1   602,842   602,853  -11  0.00%
District 2   1  602,877  602,853   24  0.00%
District 3   1  602,839  602,853  -14  0.00%
District 4   1  602,876  602,853   23  0.00%
District 5   s.  602,933  602,853   80  0.01%
District 6   1  602,774  602,853  -79  -0.01%
District 7   1  602,832  602,853  -21  0.00%

PLANWIDE STATISTICS:

Range of populations:   602,774 to 602,933
Ratio range:      1.0003
Absolute range:     -79 to 80
Absolute overall range:   159
Relative range:     -0.01 to 0.01%
Relative overall range:   0.03%
Absolute mean deviation:  36.00
Relative mean deviation:  0.01%

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33a - 38a

[TABLE CHART OMITTED]

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39a

APPENDIX C
    
[Filed Dec. 28, 1993]

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
  SHREVEPORT DIVISION

No. 92-CV-1522

RAY HAYES, ET AL., PLAINTIFFS

versus

STATE OF LOUISIANA, ET AL., DEFENDANTS

Before WIENER, Circuit Judge, SHAW, Chief Dis-
trict Judge, and WALTER, District Judge.

MEMORANDUM OPINION

WIENER, Circuit Judge:

Plaintiffs Ray Hayes, et al. (Plaintiffs) challenge
the congressional redistricting plan (the Plan)
adopted by the Louisiana State Legislature (the
Legislature ) when, following the 1990 census, it en-
acted Act 42 of 1992 (Act 42). 1. In its present pos-

___________________(footnotes)

1 A technical distinction can be drawn between the terms
"apportionment" and "reapportionment," on the one hand,
and "districting" and "redistricting" on the other:

apportionment and reapportionment involve the alloca-
tion [by Congress] of a finite number of representatives

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40a

ture, this case considers the constitutionality of the
Plan, admittedly designed inter alia to increase the
number of black representatives in Louisiana's con-
gressional delegation from one out of eight to two
out of seven. The Plaintiffs insist that the Plan ac-
complishes this result by employing impermissible
racial gerrymandering to create a new majority-
black voting district, thereby violating the Equal
Protection Clause of the United States Constitution.
In simplest form, this case poses the question,
"Does a state have the right to create a racial ma-
jority-minority congressional district by racial gerry-
mandering?" In simplest form, the answer-largely
supplied by the United States Supreme Court's opin-
ion in Shaw v. Reno 2. , rendered during the pendency
of this case-is "Yes, but only if the state does it
right."
Finding that the Plan in general and Louisiana's
Congressional District 4 in particular are products of
racial gerrymandering and are not narrowly tailored
to further any compelling governmental interest, we
continue that the Legislature did not "do it right."
We hold, therefore, that Plaintiffs' right to equal
protection as guaranteed by the U.S. Constitution is

___________________(footnotes)

among a fixed number of pre-established areas. District-
ing and redistricting . . . refer to the process by which
the lines separating legislative districts are drawn [by
states].

See Major v. Treen, 574 F. Supp. 325, 328 (E.D. La. 1983)
(quoting Backstrom et al., Issues in Gerrymandering: An
Exploratory Measure of Partisan Gerrymandering Applied
to Minnesota, 62 Min. L. Rev. 1121, 1121 n.1 (1978). For
simplicity, however, we use both terms interchangeably.

2 Shaw v. Reno, 508 U.S. -, 113 s. ct. -, 125 L. Ed. 2d
511 (1993).

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41a

violated by the Plan. Consequently, we declare Act
42 of 1992 to be unconstitutional and the redistrict-
ing plan embodied therein to be null and void; enjoin
the State of Louisiana from holding any future con-
gressional elections based on the Plan; and, although
we do not invalidate the 1992 congressional elections
held thereunder, hold that the term of office of each
member of the United States House of Representa-
tives from Louisiana who represent a district created
under the Plan shall expire, ipso facto, at noon on
the 3rd day of January, 1995, 3. such terms of office
not to be extended or carried over into the next Con-
gress in any manner whatsoever.

I
  
STATEMENT OF THE CASE

The Plan comprises five majority-white districts
(Districts 1, 3, 5, 6 & 7) and two majority-black dis-
tricts (Districts 2 and 4). 4. District 2 has a minority
voting age population of 5670, while District 4 has a
minority voting age population of 63%. New Dis-
trict 2 covers essentially the same geographic area
as did old District 2 in the previous plan: almost the
entire population of Orleans Parish and roughly one-
third of the population of Jefferson Parish. District
2 is not challenged in the instant lawsuit, nor else-
where to our knowledge. Rather, District 4, appear-
ing for the first time in Act 42, is the primary focus
of this constitutional challenge.
Shortly after the enactment of Act 42, the Plain-
tiffs filed this suit seeking to have 1) the Plan de-

___________________(footnotes)

3 See U.S. Const. amend. XX, 1.

4 See Table, Appendix A.

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42a

clared unlawful, 2 ) the Defendants enjoined from
using the Plan in the impending congressional elec-
tions, 3) the Legislature ordered to create a new plan
that would not segregate state residents into voting
districts on the basis of race, and 4) the Defendants
preliminarily enjoined "from taking any action in
preparation for the primary or general elections for
the U.S. House of Representatives  . . . . " In their
complaint the Plaintiffs-who are black, white, and
Asian residents of either District 4 or District 6-
allege that the Plan violates Section 3 of the Lousi-
ana State Constitution, Section 2 of the Voting Rights
Act, and the Fifth, Fourteenth and Fifteenth Amend-
ments of the United States Constitution.
As required by the Voting Rights Act, the chief
judge of the United States Court of Appeals for the
Fifth Judicial Circuit appointed the instant panel to
hear this case. It was tried on August 26 and 27,
1992 (the Trial). At the conclusion of the Trial, we
issued an interlocutory Memorandum Ruling and Or-
der (the 1992 Order) in which we denied Plaintiffs'
request for an injunction, allowed the 1992 Congres-
sional elections to go forward under the Plan, refused
to consider Plaintiffs' state and federal constitutional
claims, and took Plaintiffs' Voting Rights Act claims
under advisement. We also requested post-trial brief-
ing on the question whether the Plan dilutes the vot-
ing strength of either blacks or whites in contraven-
tion of the Voting Rights Act.
Being aware of an essentially identical case origi-
nating in North Carolina-now known as Shaw v.
Reno-which had progressed further than had the in-
stant case, we held this one under submission until
the results of Shaw became known. On June 29,
1993, the Supreme Court rendered its decision in

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43a

Shaw, profoundly affecting this case and similar ones
pending in other states. We requested the parties and
invited amici curiae to file supplemental briefs, gen-
erally discussing the implications of Shaw and spe-
cifically addressing whether-in the terminology of
Shaw-the Plan was "narrowly tailored to further
a compelling government interest." In August 1993,
we held two additional days of trial (the Evidentiary
Hearing) to assist us in determining whether the
Plan is in fact the product of racial gerrymandering,
and, if so, whether it should nonetheless be sustained
because it is narrowly tailored to further a compel-
ling state interest.   

II

PRELIMINARY LEGAL MATTERS

A. Standing

Early in this case Defendants suggested that the
white Plaintiffs intrinsically lack standing to chal-
lenge the Plan. The Defendants evidently believe that
only historically disadvantaged minorities have stand-
ing to attack state laws that separate citizens on the
basis of race. But that is not the case.
In Shaw, the Supreme Court reaffirmed the im-
portant principle "that equal protection analysis is
not dependent on the race of those benefited or bur-
dened by a particular classification." 5. "The guaran-
tees of the Fourteenth Amendment extend to all per-
sons. Its language is explicit: `No state shall  . . . . 
deny to any person within its jurisdiction the equal
protection of the laws.' The guarantee of equal pro-

___________________(footnotes)

5 Id. at 531 (citing Richmond v. J. A. Croson Co., 488 U.S.
469, 494, 109 S. Ct. 706, 102 L. Ed. 2d 854 (1989) (internal
quotations omitted).

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44a

tection cannot mean one thing when applied to one
individual and something else when applied to a per-
son of another color. If both are not accorded the
same protection, then it is not equal." 6. White citi-
zens thus clearly have standing to challenge redis-
tricting plans under the Equal Protection Clause of
the Fourteenth Amendment, just as do black citizens,
Hispanic citizens, Asian citizens, Native American
citizens, and citizens of any other race. We reject
out of hand the implication that, although all are
equal under the law, "some . . . are more equal than
others." 7.

B. Survival of Plaintiffs' Equal Protection Claim

The Defendants assert that the Plaintiffs' equal
protection claim does not conform to the structure of
the argument approved by the Court in Shaw and,
consequently, that the Plaintiffs fail to state an equal
protection claim under Shaw. The Defendants also
argue that our 1992 Order, in which we denied Plain-
tiffs' state and federal constitutional claims, effec-
tively disposed of the Plaintiffs' Equal Protection
Clause claim with finality; and that we therefore
may only consider the Plaintiffs' claim that the Plan

___________________(footnotes)

6 Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 290-91,
98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978). Indeed, laws that
entail overt racial classifications are subject to strict scrutiny,
even when they burden or benefit different races equally.
See, e.g., Powers v. Ohio, 499 U.S. -, 111 S. Ct. 1364, 113
L. Ed. 2d 411 (1991). "[R]acial classifications do not become
legitimate on the assumption that all persons suffer them in
equal degree." Powers, 113 L. Ed. 2d at 425.

7 George Orwell, Animal Farm 123 (Penguin Books 1972)
(1946).

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45a

violates the Voting Rights Act. We disagree with
both of these assertions.
Although Shaw had not yet been decided at the
time the Plaintiffs initiated the instant suit, the al-
legations in the Plaintiffs' complaint are clearly suf-
ficient to make out a cognizable claim of racial gerry-
mandering under Shaw. The narrow holding of
Shaw is that a citizen states a claim under the Equal
Protection Clause by alleging that the reapportion-
ment scheme adopted by his state is so irrational on
its face, so bizarrely shaped and convoluted, "that it
can only be understood as an effort to segregate vot-
ers into separate voting districts because of their
race  . . . . " 8. There is no question that the Plaintiffs
make such allegations in their complaint.
For example, the Plaintiffs allege that "[t] he adop-
tion of Act 42. . . has resulted in the creation of at
least two of seven districts which are devoid of any
commonality of interest . . . geographical compact-
ness, contiguousness [sic], consistency with existing
political, societal, governmental or economic districts
or jurisdictional boundaries, other than the racial des-
ignation of the majority therein." Similarly, the
plaintiffs allege that "Act 42 created two amorphous
districts which embody a scheme for segregation of
voters by race in order to meet a racial quota for
representation of the State of Louisiana in the United
States House of Representatives." And again, Plain-
tiffs allege that "[t] he defendants enacted and intend
to implement Act 42 with the intent to create a Con-
gressional Plan concentrating voters of a particular

___________________(footnotes)

8 Shaw, 125 L. Ed. 2d at 536 (indicating that irregular
shapes may imply impermissible racial gerrymandering). See
also id. at 528-29.

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46a

race in designated districts  . . . . " We find that these
statements clearly amount to allegations that the
State of Louisiana "adopted a reapportionment
scheme so irrational on its face that it can be under-
stood only as an effort to segregate voters into sep-
arate voting districts because of their race." 9. We
conclude that the Plaintiffs have stated an Equal Pro-
tection Clause claim essentially identical to the claim
alleged by the plaintiffs in Shaw.
Moreover, our 1992 Order, denying Plaintiffs' state
and federal constitution claims, worked a temporary
dismissal of Plaintiffs' equal protection claim, not a
final one. It was clearly an interlocutory ruling.
In an order dated June 29, 1993 (1993 Order) we
requested supplemental briefing to clarify the rele-
vance of Shaw to the instant case and to appear at
the Evidentiary Hearing to elucidate whether the
Plan was "narrowly tailored to further a compelling
government interest," as required by the Court in
Shaw. Of necessity our 1993 Order modified our
1992 Order and reactivated the Plaintiffs' equal pro-
tection claim in light of Shaw. As such a resuscita-
tion is specifically contemplated and authorized by
Rule 54(b) of the Federal Rules of Civil Procedure, 10.
the Plaintiffs' equal protection claim persists and de-
mands adjudication by this court.

___________________(footnotes)

9 Shaw, 125 L. Ed. 2d at 536.

10 Rule 54 (b) of the Federal Rules of Civil Procedure reads
in pertinent part: "[A]ny order or other form of decision,
however designated, which adjudicates fewer than all the
claims . . . shall not terminate the action as to any of the
claims . . . and the order . . . is subject to revision at any
time before the entry of judgment adjudicating all the claims
. . . " Fed. R. Civ. P. 54(b).

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47a

III

FINDINGS OF FACT AND
CONCLUSIONS OF LAW

As the findings of fact and conclusions of law in
this case are inextricably intertwined, we do not
present them in separate sections. Such separate pre-
sentation would increase the length and redundancy
of our discussion. Rather, our language will indi-
cate whether we find a particular observation to be
a finding of fact or a conclusion of law. To the ex-
tent that a finding of fact is also a conclusion of law,
we adopt it as both a finding of fact and a conclu-
sion of law. To the extent that a conclusion of law
is also a finding of fact, we also embrace it as both a
conclusion of law and a finding of fact.

A. Racial Gerrymandering: General

Plaintiffs allege that the Plan is a product of racial
gerrymandering. Consequently, as noted above, this
case fails squarely within the ambit of Shaw v. Reno.
In Shaw, the Court held that plaintiffs state a jus-
ticiable claim. under the Equal Protection Clause by
alleging that a redistricting scheme is "so irrational
on its face that it can be understood only as an effort
to segregate voters into separate voting districts be-
cause of their race  . . . . 11. As Shaw was an appeal
of the district court's dismissal of the plaintiff's case
for failure to state a claim, however, the Court did
not have to resolve that claim; it had only to recog-
nize it. Thus, the roadmap sketched by the Court-
as helpful as it is-leaves some questions to be an-
swered in cases such as this.

___________________(footnotes)

11 Shaw V. Reno, 125 L. Ed. 2d. at 536,

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48a

1. Racial Gerrymandering Defined

A legislature creates a racially-gerrymandered dis-
tricting plan when it intentionally draws one or more
districts along racial lines or otherwise intentionally
segregates citizens into voting districts based on their
race. l2. Thus, "racial gerrymandering" refers to the
intentional, not the accidental, segregation of voters
on the basis of race. 13.

2. Racially Gerrymandered Plans are Subject to
Strict Scrutiny

The bedrock principle underlying the Court's deci-
sion in Shaw is that racially gerrymandered redis-
tricting plans are subject to the same strict scrutiny
that applies to other state legislation classifying citi-

___________________(footnotes)

12 See, e.g., Wright v. Rockefeller, 376 U.S. 52, 66-67, 84
S. Ct. 603, 11 L. Ed. 2d 512 (1964) (in which the Court ex-
amined whether the plaintiffs had sustained their burden of
proving "that the New York legislature was either moti-
vated by racial considerations or in fact drew districts on
racial lines"). See also Shaw, 125 L. Ed. 2d. 511 (in which
"racially gerrymandering" and "intentional segregation of
voters into separate voting districts" are used interchange-
ably throughout).

13 For example, if a legislature devises a redistricting plan
that separates river districts from mountain districts, and
more blacks happen to live along the rivers, and more whites
happen to live in the mountains, then the plan is not a product
of racial gerrymandering, even though it entails some coin-
cidental segregation. In short, de facto or accidental segre-
gation is not constitutionally suspect, but state-sponsored in-
tentional segregation is, irrespective of the legislature's under-
lying motives.

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49a

zens on the basis of race. 14. As such, racially gerry-
mandered plans violate the Equal Protection Clause
of the Fourteenth Amendment unless they are nar-
rowly tailored to further a compelling governmental
interest. l5.
Such plans receive "careful scrutiny under the
Equal Protection Clause regardless of the motiva-
tions underlying their adoption." l6. This intense scru-
tiny is justified by the grave danger that is posed to
our constitutional order and national community
when a state creates and administers laws based on
the race of its citizens. 17.

___________________(footnotes)

    14 Shaw v. Reno, 125 L. Ed. 2d 511; accord City of Mobile
   v, Bolden, 446 U.S. 55, 67, 100 S. Ct. 1490, 64 L. Ed. 2d 47
   (1980) (indicating that claims of racial discrimination in
   the reapportionment context are resolved in the same way as
   other claims of racial discrimination); Washington v. Davis,
   426 U.S. 229, 240, 96 S. Ct. 2040, 48 L. Ed. 2d (1976) (re-
   ferring to Wright v. Rockefeller, 376 U.S. at 58, and pointing
   out that every member of the Court believed that plaintiffs
   stated a claim by alleging that "boundaries were purposefully
   drawn on racial lines"). In its supplemental brief to this
   court, the United States (which entered this case as amicus
   curiae) agrees that racially gerrymandered redistricting plans
   must. be strictly scrutinized.
    
15  See Shaw, 125 L. Ed. 2d at 528.
    
16  Id. at 527. Thus, even if benign or benevolent motives
   underlie a legislature's decision to racially gerrymander a
   redistricting plan, that plan is still subject to strict judicial
   scrutiny. As discussed below, good motives may allow a plan
   to survive strict scrutiny, if they rise to the level of a com-
   pelling state interest, and if the plan is narrowly tailored to
   further such an interest. But such motives-however un-
    spotted-do not automatically exempt the plan from what
    amounts to a presumption of unconstitutionality.
    
17 In Wright v. Rockefeller, ,Justice Douglas discusses the
   dangers of' racial gerrymandering. Wright v. Rockefeller,

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50a

3. Racial Gerrymandering May be Proved
Either Inferentially or Directly

We have already noted the narrow holding of Shaw:
a plaintiff may state a claim under the Equal Protec-
tion Clause by alleging that the reapportionment
scheme adopted by his state is so irrational on its
face "that it can only be understood as an effort to
segregate voters into separate voting districts because
of their race . . . . " 18. Shaw primarily deals with the
problem of proving racial gerrymandering indirectly
or inferentially. Racial gerrymandering-says the
Court in Shaw can be inferred when districts are
so bizarrely shaped that they presumptively bespeak
an impermissible purpose.
But racial gerrymandering may-a +-also
be proved by direct evidence that a legislature en-
acted a districting plan with the specific intent of
segregating citizens into voting districts based on
their race. If everyone-or nearly everyone-in-
volved in the design and passage of a redistricting
plan asserts or concedes that design of the plan was
driven by race, then racial gerrymandering may be

___________________(footnotes)

376 U.S. 52, 66-67 (Douglas, J., dissenting  ("when racial
. . . lines are drawn by the State, the multiracial . . . com-
munities that our Constitution seeks to weld together as one
become separatist; antagonisms that relate to race . . . rather
than to political issues are generated; communities seek not
the best representative but the best racial . . . partisan.").
In Shaw, Justice O'Connor echoes these same concerns. Shaw,
125 L. Ed. 2d. at 529 (Redistricting plans that segregate
citizens primarily on the basis of race bear "an uncom-
fortable resemblance to political apartheid.").

18 Shaw, 125 L. Ed. 2d at 536; see id. at 528-29 (indicating
that irregular shapes may reflect impermissible racial gerry-
mandering).

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51a

found without resorting to the inferential approach
approved by the Court in Shaw. l9. The Court recog-
nized in Shaw that "[n] o inquiry into legislative pur-
pose is necessary when the racial classification ap-
pears on the face of the statute." 20. The same is
equally true when virtually unanimous, essentially
uncontroverted direct trial evidence establishes racial
classification, as it did here. In this case, we find over-
whelming evidence-both indirect and direct-that
the Plan is a product of racial gerrymandering.

4. Intent Distinguished from Motive

In a brief aside, we draw on the familiar crime of
homicide as a didactic analogy to clarify the impor-
tant distinction between intent and motive for pur-
poses of this case. By definition, one who knowingly
cocks, aims, and fires a loaded gun at another has
the intent to kill or cause great bodily harm. That is
the purpose for shooting. But the shooter may have
any number of motives for intentionally shooting the
victim: to eliminate a romantic rival; to collect in-
surance proceeds; to avenge some actual or perceived
wrong; to repel aggression; to prevent the victim
from perpetrating a crime or misdeed; and on and
on. The applicable motive is the goal sought to be
accomplished through the intentional killing of the
victim.

___________________(footnotes)

19 See id. at 528-29, 536 (regardless of how a racial gerry-
mander is created, it should receive strict scrutiny); accord
City of Mobile v. Bolden, 446 U.S. 55, 67, 100 S. Ct. 1490, 64
L. Ed. 2d 47 (1980).

20  125 L. Ed. 2d at 525 (citing Personnel Administrator of
Massachusetts v. Feeney, 442 U.S. 256, 272, 99 S. Ct. 2282,
60 L. Ed. 2d 870 (1979)),

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52a

We belabor the distinction between intent and
motive because it provides a more recognizable way
of looking at two separate aspects of this case: 1 )
the intent of the Legislature in creating the Plan on
the basis of race (racial gerrymandering) ; 2) the
motives of the Legislature or of individual or groups
of legislators- whether compelling or not-for en-
gaging in racial gerrymandering. Whatever the
motivations of the Legislature or of the individual
legislators who passed the Plan, the evidence over-
whelmingly indicates that the specific intent of the
Legislature-as an independent, collective organism
-was indisputably to enact a plan that included two
black and five white majority districts.
At the Evidentiary Hearing so much of the testi-
mony purporting to discuss the intent of the Legis-
lature, or those who sought to influence Louisiana's
1992 redistricting, confounded and confused intent
or purpose with motive or goal. More telling (and
more candid ) was the testimony at the Trial, a year
earlier, concerning the motive for creating a second
majority-black congressional district. That testimony
differed markedly from its counterpart at the Evi-
dentiary Hearing. In both proceedings the testimony
on motive was considerably less uniform than was the
virtually unanimous testimony regarding the Legis-
lature's intent to create a second safe, black majority
district. At least by implication, however, four im-
mutable elements provided a common point of depar-
ture for all witnesses: 1) Louisiana had an unavoid-
able legal obligation to reapportion its congressional
delegation; 2) reapportionment had to be in strict
compliance with the constitutional imperative of one-
person, one-vote, meaning that each of Louisiana's
seven congressional districts had to contain roughly

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53a

603,000 residents; 3) given its failure to adopt a re-
apportionment plan in 1991, the Legislature would
have to adopt a plan in its 1992 session that would be
`certain to receive immediate preclearance so that the
congressional election, scheduled for the fall of that
year, could be held; and 4) to obtain timely preclear-
ance, I.e., voluntarily and not by court decree, any
plan would have to include two safe, black majority
districts. 21.

___________________(footnotes)

21 Even though the Legislature put itself under severe time
constraints by failing to redistrict in 1991, the United States
Department of Justice not a party to this litigation-must
be regarded as an active player in this case. As Louisiana
is covered by Section 5 of the Voting Rights Act, the Legisla-
ture must either (1) have any proposed plan precleaned by
the Department of Justice, or (2) seek a judgment from the
Unite States District Court for the District of Columbia
declaring that the plan "does not have the purpose and will
not have the effect of denying or abridging the right to vote
on account of race or color . . . . " Voting Rights Act of 1965,
42 U.S.C.  1973 (c). The testimony at the Trial and at the
Evidentiary Hearing reflected overwhelmingly that the At-
torney General's Office (AGO) had let it be known that pre-
clearance would not be forthcoming for any plan that did not
include at least two "safe" black districts out of seven. But
neither Section 2, nor Section 5 of the Voting Rights Act
justifies the  ACO's insistence upon two black districts.
To challenge a redistricting plan under Section 2 success-
fully, plaintiffs who are members of a cognizable racial group
must demonstrate that their group is numerous enough and
geographically compact enough to be a majority in a district.
Growe v. Emison, 507 U.S. -, 113 s. ct. -, 122 L. Ed. 2d
388, 403 (1993) (extending the threshold requirements elab-
orated in Thornburg v. Gingles, 478 U.S. 30, 46-47, 106 S. Ct.
2752, 92 L. Ed. 2d 25 (1986), to single member, as well as
multimember, districts). Obviously, however, black voters in
District 4  do not constitute a geographically compact body as
required by Gingles. Neither would any district resembling

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54a

B. Shaw v. Reno: Inferential Proof of Racial
Gerrymandering

Shaw deals primarily with proving racial gerry-
mandering inferentially. We proceed to examine the

 ___________________(footnotes)

District 4 be geographically compact. Consequently, the AGO
cannot legitimately claim that Section 2 of the Voting Rights
[Act] compels the creation of any redistricting plan that con-
tains a tortured district like District 4. Unless a second geo-
graphically compact black majority district is possible, the
State's failure to create one does not violate Section 2. Growe,
122 L. Ed. 2d at 404. This is not to say that Section 2 forbids
the creation of such a plan; simply that Section 2 does not
require it. Voinovich v. Quilter, 507 U.S. ____, 113 s. ct.
____, 122 L. Ed. 2d 500, 513-14 (1993). Consequently, the
AGO cannot rely on Section 2 of the Voting Rights Act to force
a state to adopt a plan containing an additional majority-
minority district with a geographically dispersed black ma-
jority.
Additionally, Section 2 of the Voting Rights Act expressly
states that "[n]othing in this section establishes a right to
have members of a protected class elected in numbers equal
to their proportion in the population." Voting Rights Act of
1965, Section 2, 42 U.S.C.  1973. Section 2 refuses to trans-
form the individual right to vote into a group right to elect.
Thus, Section 2 emphatically does not authorize the AGO to
reject plans that fail to "give full effect" to minority voters,
or otherwise to create a de facto requirement of proportional
representation by rejecting all plans that fail to maximize
the concentration of minority voters. The text of Section 2
of the Voting Rights Act expressly declares that proportional
representation is not required.
Neither can Section 5 of the Voting Rights Act-on the
basis of the 1990 Census-justify the AGO's insistence that
Louisiana adopt a congressional redistricting plan with two
safe, black-majority districts. In Beer v. United States, the
Supreme Court stated that "the purpose of Section 5 has al-
ways been to insure that no voting-procedure changes would
be made that would lead to a retrogression in the position of

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55a

indirect or circumstantial evidence of racial gerry-
mandering in the instant case.

___________________(footnotes)

racial minorities with respect to their effective exercise of
the electoral franchise." Beer v. United States, 425 U.S. 130,
141, 96 S. Ct. 1357, 47 L. Ed. 2d 629 (1976) (emphasis
added); accord Shaw, 125 L. Ed. 2d at 533. In this case,
however. a redistricting Plan for the State of Louisiana that
provided for one black majority district would have satisfied
the requirement of nonretrogression.
As a result of the 1990 Census, Louisiana lost a seat in the
United States House of Representatives: previously it had
eight seats, now it has seven. Thus, even if the Legislature
had adopted a plan with a single black majority district, that
plan would have satisfied the Section 5 nonretrogression prin-
ciple: whereas before black majority districts comprised one-
eight of all districts, under a new plan with one black ma-
jority district, such districts would constitute one-seventh of
all districts, an increase of nearly two percent. Thus, the
Section 5 nonretrogression principle does not, on the instant
facts, require Louisiana to adopt a redistricting plan with a
second blackmajority district. Any suggestion by the AGO
to the contrary was incorrect.
In summary, neither Section 2 nor Section 5 of the Voting
Rights Act justify the AGO's insistence that Louisiana adopt
a plan with two safe, black majority districts. Yet members
of the Legislature uniformly believed that they needed to
create such a redistricting  plan to secure preclearance. The
letters sent by the Office of the Assistant Attorney General
(AAGO) in response to redistricting plans for the Louisiana-.
Senate and the Board Of Elementary and Second Educa-
tion (BESE) show how Louisiana legislators got this mis-
taken impression.
In these letters, the A AGO acknowledged that the plans
"appear[ed] to have no retrogressive effect" and met "in
large part . . . Section 5 preclearance requirements." Yet
the AAGO refused to preclear the plans because-in its ap-
parent judgment-they could have been drawn "in a manner
that would more effectively provide to black voters an equal
opportunity . . . to elect candidates of their choice," there

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56a

1. The Shifting Evidentiary Burden

The Court in Shaw apparently intended to estab-
lish an evidentiary "minuet" for racial gerrymander-

___________________(footnotes)

a euphemism for black candidates. But, again, the Voting
Rights Act does not require that a plan be drawn to maximize
the efficacy of the black vote, and we perceive the AAGO's
insistence upon such a result to be tantamount to an insist-
ence upon proportional representation: an insistence that is
expressly forbidden by Section 2 of the Voting Rights Act.
In one letter the A AGO went so far as to suggest how the
plan should be drawn to secure early preclearance by com-
bining "significant concentrations of black voters in north-
eastern Louisiana and. in the parish  bordering the State of
Mississippi, both along the river and the state's southern
border." Here-in a nutshell-was a blueprint for the highly
irregular district known as District 4: a district that runs
through the length and breadth of the state, a district that
ignores traditional geographical and political boundaries, yet
a district that the A AGO inappropriately hinted would have
to be created if Louisiana was to secure preclearance. What
was the authority for the AAGO's insistence? The answer
presents itself: none.
when State authorities wrote back, explaining the his-
torical, cultural, political, economic, and religious significance
of the north-south divide in Louisiana, as a means of explain-
ing and defending its proposed plan, the AAGO dismissed
the explanation and concluded that lumping black voters to-
gether in a district "transcends the distinction between
northern and southern parishes." What was the authority
for this judgment: again, none ! To reiterate, neither Section
2 nor Section 5 of the Voting Rights Act requires that geo-
graphically dispersed black voters be lumped together to maxi-
mize the efficacy of their vote. That is nothing more than an
AAGO "gloss" on the Voting Rights Act-a gloss unapproved
by Congress and unsanctioned by the courts.
The Department of Justice did not conclude that Louisiana's
concern with preserving its historic parishes was pretextual;
it decided that creating black districts trumped traditional
redistricting criteria. What was the authority for this policy

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57a

ing cases analogous to the one established by Mc-
Donnell Douglas v. Green and Texas Department of
Community Affairs v. Burdine in the Title VII con-
text, 22. After a citizen establishes a cause of action by

___________________(footnotes)

decision ? Yet again, none! As the AAGO concluded that the
State BESE plan was not retrogressive with respect to the
black vote, it necessarily admitted that the plan had no dis-
criminatory effect. See Beer V. United States, 47 L. Ed. 2d
629, 639. Thus, the AAGO could legally reject the plan only
if it determined-and presumably for non-arbitrary reasons
-that the plan reflected discriminatory motives. Georgia v.
United States, 411 U.S. 526, 93 S. Ct. 1702, 36 L. Ed. 2d 472
(1973). But the AAGO did not so conclude.
Rather, the AAGO arrogated the power to use Section 5
preclearance as a sword to implement forcibly its own re-
districting policies, rather than as a shield to prevent lament-
able historical abuses. The Attorney General's Office has no
authority to withhold preclearance for reasons outside the
ambit of the Voting Rights Act. Indeed, because any plan
that entails more racial gerrymandering than is absolutely
necessary to pass Voting Rights Act muster is potentially
unconstitutional, Shaw, 125 L. Ed. 2d at 534, the AGO will
risk encouraging unconstitutional conduct if it pressures
states to gerrymander their districts to maximize the con-
centration of minority voters.

22 McDonnell Douglas v. Green, 411 U.S. 792, 93 S. Ct. 1817,
36 L. Ed. 2d 668 (1973); Texas Dep't of Community Affairs
V. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L, Ed. 2d 207
(1981 ). The three-step McDonnell-Douglas-Burdine "minuet"
structures the basic allocation of burdens and order of pre-
sentation of proof in the Title VII context. Burdine, 450
U.S. at 252-53. This minuet requires (1) the plaintiff to
prove-by a preponderance of the evidence-a prima facie
case of disparate treatment that contravenes Tile VII of the
Civil Rights Act of 1964, (2) the defendant to proffer a
legitimate, nondiscriminatory reason for the employee's re-
jection, and (3) the plaintiff to demonstrate that the defend-
ant's proffered explanation is pretextual. Id. at 253. At the

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58a

alleging that the reapportionment scheme adopted by
his state is so irrational on its face that it can only
be understood as an effort to segregate voters on the
basis of race-thereby creating a presumption of un-
constitutionality 23. the burden shifts to the state to
proffer a legitimate, non-racial explanation for the
irrationally shaped districts in its plan. 24. If, per
chance, the state should answer, generally denying
gerrymandering, and move for summary judgment,
the plaintiff presumably would need to support such
a presumption with summary judgment evidence,
e.g., affidavits and depositions demonstrating legis-
lative intent, violation of redistricting principles, or
the like. But if the state advances a legitimate, non-
racial explanation for the plan's irregularity, then
the factfinder must-as always-weigh the evidence
on both sides and decide whether the plaintiff has met
his burden of demonstrating that the plan's irra-
tional shape reflects racial gerrymandering. 25.

___________________(footnotes)

end of the day, however, the plaintiff has the burden of prov-
ing that a violation of Title VII occurred. See St. Mary's
Honor Center v. Hicks, 509 U.S. -, 113 s. Ct. -, 125
L. Ed. 2d 407 (1993).

23 Shaw, 125 L. Ed. 2d at 536; See also id. at 528-29 (indi-
cating that irregular shapes may imply impermissible racial
gerrymandering).

24 Id.

25 See, e.g., Wright, 376 U.S. 52 (in which the Court held
that the plaintiffs had not "sustained their burden of proving
that . . . [the plan] . . , segregates eligible voters by race and
place of origin in violation of the Equal Protection and Due
Process Clauses . . . . "); accord Whitcomb v. Chavis, 403
U.S. 124, 91 S. Ct. 1858, 29 L. Ed. 2d 363 (1971). To clarify
this minuet further, if a plaintiff comes into court with a
map bearing hideously contorted districts and evidence that

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59a

Although the Court in Shaw does not discuss the
respective burdens borne by the parties in this shift-
ing protocol, Supreme Court precedent clearly indi-
cates that plaintiffs have the ultimate burden of prov-
ing-by a preponderance of the evidence-that the
irregularity of the challenged districts reflects racial
gerrymandering. 26. Proof on the merits would likely
focus on the pretext of the state's proffered non-
discriminatory reasons. Nevertheless, placing the
burden of proof on the plaintiffs reflects a basic
tenet of equal protection analysis: there can be no
violation of the Equal Protection Clause unless those
who complain demonstrate that the state has engaged
in purposeful discrimination. 27. Thus, in this case,
Plaintiffs have the burden of demonstrating by a
preponderance of the evidence that the Legislature
was "motivated by racial considerations" when it

___________________(footnotes)

the state legislature drew those districts on the basis of race,
and if the plaintiff complains that those districts lack a non-
racial explanation-i.e., cannot be explained or understood
without hypothesizing racial gerrymandering-then the plain-
tiff has stated a prima facie case under Shaw. If the state
then introduces evidence that tends to show that the legisla-
ture was actuated by other motives that can explain the
bizarre contours of the districts without resorting to race,
the state has created a competing inference. The factfinder
must then decide, on the basis of all available evidence, who
is right.

26 Id.

27 City of Mobile v. Bolden, 446 U.S. at 66, 100 S. Ct. 1490,
64 L. Ed. 2d 47 (1980) (citing Washington v. Davis, 426 U.S.
229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976)); Plaintiffs also
have the burden of proving the invalidity of a reapportion-
ment plan under Section 2 of the Voting Rights Act. Voino-
vich v. Quilter, 507 U.S. -, 113 s. ct. -, 122 L. Ed. 2d
500, 512 (1993) .

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60a

adopted Act 42. 28. We find that the plaintiffs have met
that burden-comfortably.

2. Plaintiffs' Cause of Action

In addition to stating a cause of action by alleging
extreme irregularity of shape, a plaintiff may, under
Shaw, strengthen the inference that the state engaged
in constitutionally suspect racial gerrymandering by
demonstrating the state's disregard of traditional dis-
tricting principles. 29. As discussed above in section II
B, the Plaintiffs have clearly alleged both that the
Plan-particularly District 4-is highly irregular on
its face, and that the Plan disregards traditional dis-
tricting principles. 30. We therefore conclude that the
Plaintiffs established a cause of action essentially
identical to that alleged by the plaintiffs in Shaw.
It consequently devolved upon the Defendants either
to refute the allegations directly or to provide legiti-
mate, non-racial explanations for the Plan's irrational
shape and its disregard of traditional districting cri-
teria. 31.

___________________(footnotes)

28 Wright, 376 U.S. at 55.

29 Shaw, 125 L. Ed. 2d at 528.

30 For example, Plaintiffs allege that " [t]he adoption of
Act 42, . . has resulted in the creation of at least two of seven
districts which are devoid of any commonality of interest  . . . . 
geographical compactness, contiguousness [sic], consistency
with existing political, societal, governmental or economic
districts or jurisdictional boundaries, other than the racial
designation of the majority therein." See discussion in section
II B of this Memorandum Opinion for other examples of     
Plaintiffs' allegations.                

31  Recalling our pedagogic comparison with homicide, when       
the state attempts to convict a defendant of homicide using    

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61a

3. Defendants' Proffered Justifications

Apparently recognizing the impossibility of directly
refuting high irregularity and violation of traditional
districting criteria, the Defendants attempted to jus-
tify the Plan. During the entire Trial, not one wit-
ness ever suggested that the Legislature's intent in
creating District 4 was anything other than to create
a second district with a super-majority of black vot-
ers by drawing its boundaries along racial lines. In-
deed, most of the testimony of the Defendants' wit-
nesses concerned how numerically large a black ma-
jority was needed to ensure the effectiveness of the
Plan, which everyone conceded to be a product of
racial gerrymandering.
At the Evidentiary Hearing, however, following as
it did on the heels of the Supreme Court's decision in
Shaw, the Defendants-with the benefit of hindsight
-attempted to deny the racial gerrymandering that
they so candidly proclaimed and avidly defended a
year earlier at the Trial. Specifically, the Defendants
now suggest that two non-racial factors played key
roles in the creation of the Plan: partisan/incumbent
politics and socioeconomic commonalities. As discussed
in the following section, we find the Defendant's ex-
planations wholly unconvincing and in many respects
disingenuous.

___________________(footnotes)

circumstantial evidence essentially arguing that the facts
are consistent with homicide, the defendant may attempt to
show that the evidence is consistent with a far more innocent
hypothesis: for example, an accident. The Defendants' op-
portunity to provide legitimate, non-racial explanations for
the Plan's irrational shape is analogous.

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62a

4. Choosing Between the Competing Inferences

Because of the procedural posture of Shaw, the
Court did not have to go beyond reversing the district
court's grant of the defendants' motion to dismiss.
Following a full merits trial here, however, we are
obliged to decide whether the Plaintiffs have carried
their burden of proving-by a preponderance of the
evidence-that the Plan's irregularity and its disre-
gard of traditional redistricting principles reflect ra-
cial gerrymandering. As we find that the only sensi-
ble explanation for the Plan's extreme facial irregu-
larity and is flagrant deviation from traditional dis-
tricting criteria is that the Legislature intentionally
segregated voters into congressional districts based
on their race, we conclude that the Plaintiffs have
overwhelmingly satisfied their burden of proving ra-
cial gerrymandering.

a. Plaintiffs' Inferential Evidence

1. The Plan is Highly Irregular

The most cursory inspection of the districts estab-
lished by Act 42 reveals several of them to be irregu-
lar, and District 4 to be highly irregular. 32. Like the
fictional swordsman Zorro, when making his signa-
ture mark, District 4 slashes a giant but somewhat
shaky "Z" across the state, as it cuts a swath through
much of Louisiana. 33. It begins north of Shreveport-
in the northwestern corner of Louisiana, just east of
the Texas border and flush against the Arkansas bor-
der-and sweeps east along that border, periodically

___________________(footnotes)

32 See Map, Appendix B.

33 Id.

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63a

extending pseudopods southward to engulf small
pockets of black voters, all the way to the Mississippi
River. The district then turns south and meanders
down the west bank of the Mississippi River in a
narrow band, gobbling up more and more black vot-
ers as it goes. As it nears Baton Rouge, the district
juts abruptly east to swallow predominantly black
portions of several more parishes. Simultaneously,
it hooks in a northwesterly arc, appropriating still
more black voters on its way to Alexandria, where it
selectively includes only predominantly black residen-
tial neighborhoods. Finally, at its southern extremity,
the district extends yet another projection-this one
westward towards Lafayette-adding still more con-
centrations of black residents. On the basis of Dis-
trict 4's physiognomy alone, the Plan is thus highly
irregular, suggesting strongly that the Legislature
engaged in racial gerrymandering. 34.

2. The Plan Violates Traditional Redis-
tricting Principles

In Shaw, the Court reiterates the notion that states
are not constitutionally required to adhere to the
traditional redistricting principle of compactness,
contiguity, respect for established political subdivi-
sions, and commonality of interests. 35. The Court also

___________________(footnotes)

34 See generally Shaw, 125 L. Ed. 2d 511,

35 Shaw, 125 L. Ed. 2d at 528-29 (citing Gaffney v. Cum-
mings, 412 U.S. 735, 752, n.18, 93 S. Ct. 2321, 37 L. Ed. 2d
298 (1973) ). The seminal case of Major v. Treen also dis-
cusses these traditional redistricting criteria and applies them
to the Louisiana context. Major v. Treen, 524 F. Supp. 325
(E.D. La. 1983).

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64a

observes that a state's adherence to traditional dis-
tricting criteria "may serve to defeat a claim that a
district has been gerrymandering on racial lines." 36.
Yet a state's disregard of such criteria, emphasizes
the Shaw opinion, may be evidence of constitutionally-
suspect racial gerrymandering. 37.
Indeed, the Court in Shaw refers to a situation "in
which a State concentrated a dispersed minority pop-
ulation in a single district by disregarding traditional
districting principles  . . . . " as a circumstance in which
racial gerrymandering can be easily inferred, pre-
cisely because the state ignored such principles. 38. As
a state's decision to disregard traditional redistrict-
ing criteria is probative of constitutionally-suspect ra-
cial gerrymandering, we closely examine the Plan's
adherence (or, more accurately, non-adherence ) to
those principles; and we find that, for the most part,
the Plan cavalierly disregards them.

a. Compactness

District 4 snakes narrowly across Louisiana soil
from end to end for more than 600 miles. 39.  A rec-
tangle superimposed on the Z-shaped figure formed
by District 4 would overlay two-thirds of the State.
Additionally, at it winds along its erratic path, Dis-
trict 4 projects myriad diverticulae to encapsulate
small sacs of otherwise widely dispersed black voters.

___________________(footnotes)

36 Id. at 529 (citing Kardner v. Daggett, 462 U.S. 725, 755,
103 S. Ct. 2653, 77 L. Ed. 2d 133 (1983).

37 Id. at 528.

38 Id.

39 See Map, Appendix B.

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65a

No one could claim that District 4 is compact, at
least not with a straight f ace.

b. Contiguity

District 4 was confected to satisfy the traditional
districting criterion of contiguity, but only hypertech-
nically and thus cynically. When displayed on a map
of the State, the district's boundaries seem several
times to narrow to a single point. This impression
reflects reality, for at some places along its attenuated
path, District 4 is no more than 80 feet wide. Such
tokenism mocks the traditional criterion of con-
tiguity. 40.

c. Respect For Political Subdivisions

As one witness explained at the Evidentiary Hear-
ing, there is no more fundamental unit of societal or-
ganization in the history of Louisiana than the par-
ish. 41. Whereas the previous congressional plan di-
vided only seven of modern Louisiana's 64 parishes,
scattering fractions of the same parish in more than
one congressional district, Act 42 splits and scatters
28. District 4 is particularly aggressive in violating
the boundaries of these traditional political and gov-
ernmental units of the State: of the 28 parishes
touched by District 4, only four whole parishes are
included; but the district annexes only shards of 24
additional parishes, usually incorporating none but
the predominantly black fragments of those shattered

___________________(footnotes)

40 In complementary fashion, District 6 maintains contiguity
only by employing gossamer connections at several junctions.

41 A parish is analogous to a county, but it has its roots in,
and takes its name from, the ministrations of the Catholic
Church in early Louisiana history.

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66a

regions. Additionally, for the first time in Louisiana
history, with the advent of Act 42 a districting plan
violates the boundaries of nearly all major munici-
palities in the State. With the exception of Lake
Charles, the Plan fragments all major municipalities
into more than one congressional district, thereby de-
stroying the common representation historically en-
joyed by residents of the same municipality. 42.
   
d. Commonality of Interests

Within its irregular boundaries, District 4 sub-
sumes bits of every religious, ethnic, economic, social,
and topographical type found in Louisiana.
    
(i) Religion and Ethnicity

District 4 violates the traditional north-south ethno-
religious division of the State. Along its circuitous
route, this new district combines English-Scotch-Irish,
mainline Protestants, traditional rural black Protes-
tants, South Louisiana black Catholics, Continental
French-Spanish-German Roman Catholics, sui generic
Creoles, and thoroughly mixed polyglots, each from
an historically discrete and distinctive region of Lou-
isiana, as never heretofore so extensively agglom-
erated.  

(ii ) Economic Base

Cotton and soybean plantations, centers of petro-
chemical production, urban manufacturing complexes,
timberlands, saw mills and paper mills, river barge

___________________(footnotes)

42 Disregarding New Orleans, which comprises the majority
of District 2, the major municipalities of Shreveport, Baton
Rouge, Lafayette, Monroe, Alexandria, and Ruston are all
rent asunder in this manner.

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67a

depots, and rice and sugarcane fields are strung to-
gether to form the eclectic and incoherent industrial
base of District 4. These diverse segments of the
State economy have little in common. Indeed, their
interests more often conflict than harmonize.

(iii) Geography and Topography

Red clay hills and pinelands, hardwood bottom-
lands and forests, alluvial floodlands, coastal plains,
marshes, swamps and wetlands-all are present in
District 4, which-as noted above-stretches more
than half a thousand miles from end to end. What
did the Legislature intend when it created District 4
-this non-traditional, little-in-common nun-district" ?
The indirect evidence overwhelmingly indicates that
the Legislature specifically intended to create a plan
with at least two majority black districts. Given the
pre-existence of District 2, we find beyond cavil that
the Legislature accomplished this by parceling voters
into the remaining six districts on the basis of race,

b. Defendants' Counter-Proof

In contrast. we have been shown no credible evi-
dence supporting the defense witnesses' proffered mo-
tivations of party and incumbency protection and
socioeconomic commonality. Their explanations ring
hollow. We find them to be no more than disingen-
uous, post hoc rationalizations.
In particular, we find that neither partisan nor in-
cumbency politics was a significant factor in the core
decision intentionally to create a plan containing a
second black majority district. At the trial, the De-
fendants never suggested that partisan or incumbent
politics played a role in the determination to create

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68a

District 4. 43. Indeed, Defendants' counsel objected to
Plaintiffs' counsel's questions aimed at eliciting testi-
mony about the Black Caucus-Republican Caucus al-
liance that supported Act 42, arguing that such testi-
mony was political and therefore irrelevant to the
case. Moreover, even though party and incumbency
protection play some role-large or small-in vir-
tually everything done in the legislative branches
(and executive branches, for that matter) of our con-
temporary governments, this universal truism does
not negate the compelling inference that Act 42 in
general, and District 4 in particular, are products of
racial gerrymandering. Additionally, without for a
moment granting that incumbency politics played a
significant role in the decision to create a second ma-
jority black district, we question whether the Defend-
ants could prevail in this litigation even if it had.
The Defendants seem to believe that they can de-
feat a claim of racial gerrymandering under Shaw

___________________(footnotes)

43  At the Evidentiary Hearing, Defendants introduced evi-
dence of the role of incumbency, but it proved irrelevant to
the issue of intentional segregation of voters by race. Such
evidence showed, at most, that incumbency affected only the
general location of the gerrymander that is District 4, i.e., the
effective efforts of Congressional incumbents in "pushing"
the pre-ordained second black majority district generally as
far north and east as possible. Thus it follows largely the
northern boundary of Louisiana with Arkansas and the east-
ern boundary of Louisiana, i.e., the Mississippi River. But,
as Louisiana had already lost one of its eight seats in the
House of Representatives, creating a game of incumbents'
"musical chairs," none should be surprised by the interesting
but irrelevant fact that, once the decision to create a second
minority-majority district had been made, each incumbent
did what he could to keep his traditional geographical base
and see that  the new district was located anywhere but in his.

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69a

if any factor other than race played any cognizable
role in the creation of a challenged redistricting plan.
Although we need not correct such a misconstruction
of Shaw to find racial gerrymandering in this case,
we briefly address this legal issue-obiter dictum-
in hopes of shedding a little additional light on this
difficult area of the law.
The Defendants evidently base their belief-that
the presence of any non-racial motivating factor will
excuse racial gerrymandering-on language found at
the end of the Shaw opinion. There the Court indi-
cates that a plaintiff states a claim under the Equal
Protection Clause by alleging that a reapportionment
plan is so irrational on its face "that it can be un-
derstood only as an effort to segregate voters . . . . " 44.
This emphatically does not mean that if any other
factor influenced the legislature the plaintiff is un-
able to establish a racial gerrymander. Rather, it
means that if the contours and content of a redis-
tricting plan can be wholly explained to be the prod-
uct of one or more factors other than race, then the
defendants have created a competing inference. The
court must then weigh the competing inferences-
as indeed it usually must-to decide whether the
plaintiff has proved his inference by a preponderance
of the evidence. 45. Thus, accurately stated, the ques-
tion posed by Shaw is whether a redistricting plan
can be reasonably conceived as the product of non-
racial factors. in this case the Plan cannot. 46.

___________________(footnotes)

44 Shaw, 125 L. Ed. 2d at 536 (emphasis added).

45 Wright v. Rockefeller, 376 U.S. 52, 57, 84 S. Ct. 603, 11
L. Ed. 2d (1964).

46 At the risk of flaying a dead horse, we point out that
logic demands that the Defendants' reading of Shaw be re-

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70a

No one claims that the contours of District 4 can
be wholly and alternatively explained as a product
of partisan or incumbency politics. Every single wit-
ness who addressed the issue either proclaimed or
acknowledged that the creation of a second black ma-
jority district was the primary factor-or at least a
substantial and important factor-in the creation of
the Plan, We agree. There is no way that a rational
factfinder-looking at the r-nap and reviewing the
credible evidence with care-could conclude that Act
42 can be explained entirely without reference to ra-
cial. gerrymandering.

___________________(footnotes)

jected. Suppose a state legislature came right out and ad-
mitted that it racially gerrymandered districts in a reappor-
tionment plan, thereby obviating the plaintiff's need to show
racial gerrymandering inferentially. Could the state then
say, "but we also drew a few district lines to protect incum-
bents, or to follow a river, or to put a state wildlife park in
the district of a congressman who likes migratory birds,"
and thereby defeat plaintiffs claim because race was not the
only factor involved in the delineation of districts? Race will
never be literally the only factor. So Shaw requires only that
race be an important factor. If the plaintiffs evidence shows
that the plan cannot be understood without postulating that
the legislature was significantly actuated by racial motives,
then the plaintiff has made out a case of racial gerryman-
dering.
The cases of Wright v. Rockefeller and Arlington Heights
V. Metropolitan Hous. Dev. Corp. support this interpretation.
In Wright every member of the court accepted that the plain-
tiffs stated a claim by alleging that the "New York Legisla-
ture was either motivated by racial considerations, or in fact
drew the districts on racial lines." 376 U.S. at 54. Similarly,
the Court in Arlington Heights noted that invidious discrim-
inatory intent need not be the legislature's dominant purpose:
proof that such discriminatory intent was "a motivating
factor" in the legislation is sufficient. 429 U.S. 252, 265, 97
S. Ct. 555, 50 L. Ed. 2d 450 (1977).

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71a

At the Evidentiary Hearing, Dr. Alan Lichtman,
an expert witness for the Defendants, opined that
District 4-which appears so violative of traditional
redistricting principles-actually possesses socioeco-
nomic commonality and coherence. Dr. Lichtman con-
tended that District 4 was distinguishable from other
districts because its residents were relatively poor,
relatively under-educated, and owned fewer tele-
phones and automobiles than did the residents of
other districts established by the Plan. The Defend-
ants offered this evidence to suggest "a rational basis
[for District 4] other than race." 47. We do not gain-
say the conclusions of this witness, but we disagree
that they have significance.
Any able statistician who looks at enough statistical
character sties (multivariate analysis ) can find some-
thing distinctive about any district. In this case Dis-
trict 4 was found to be fairly poor, although poverty
is not particularly distinctive in any region of Lou-
isiana. Had District 4 been a fairly wealthy district,
the Defendants' expert could have opined that the
citizens of District 4 shared the common interest of
wealth. And had District 4 fallen right in the mid-
dle, he could have explained that District 4 was dis-
tinctive in being the most solidly middle class. But
all these observations are irrelevant because we find

___________________(footnotes)

47 The Defendants also offered this evidence to argue (1)
that Act 42 served a compelling state interest by enhancing
the representation for poor people-especially poor black
people and (2) that the Plan adhered to the traditional re-
districting principle of "commonality of interests" and thus
was narrowly tailored.

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72a

them to rise to no level higher than post hoc ration-
alization. 48.
The defendants admit that the socioeconomic pro-
files of the Plan's districts were not actually used by
the Legislature: the census data used in Defendants'
statistical analyses were not even available to the
Legislature when it passed Act 42. More specifically,
freshman Louisiana State Senator Tom Greene testi-
fied that no socioeconomic data was submitted with
the various redistricting plans when they were con-
sidered by the Legislature. Thus, the allegedly dis-
tinctive socioeconomic profile of District 4 is fac-
tually unconvincing, methodologically flawed, irrele-

___________________(footnotes)

48 An additional criticism of Mr. Lichtman's statistical
legerdemain is that the socioeconomic characteristics he ana-
lyzes are themselves strongly correlated with race, a classic
chicken-or-egg fallacy. At this moment in history black people
in the South (and generally in America) are-on the aver-
age-poorer and less well-educated than their white counter-
parts. Moreover, blacks in largely segregated communities
are probably poorer-on the average-than blacks in more
integrated communities. Consequently, racially gerryman-
dered plans, which seek to draw boundaries around various
concentrations of black persons, will inevitably tend to con-
centrate the poorer, less well-educated blacks.
The Defendants' conclusions therefore have a tautological
quality: to prove that factors other than race can explain
District 4, the Defendants analyze socioeconomic factors that
correlate strongly with race, Of course District 4 is relatively
poor and relatively uneducated: it was intentionally filled
with relatively poor and uneducated minorities. To use sta-
tistical parlance, Dr. Lichtman's conclusions are spurious:
they tell us nothing that we could not have predicted based
on the Legislature's decision to pack District 4 with black
voters. For a more scientific discussion of such spurious cor-
relations, see Hubert M. Blalock, Jr., Social Statistics 443-48
(McGraw-Hill 1972).

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73a

vant, and unquestionably a hindsight rationalization
of a plan that everyone understands to have been
principally designed to create two majority-black
districts. More simply, the socioeconomic profile of
District 4 is an effect of District 4's design, not a
cause.
We see, then, that the Defendants' proffer of pro-
tection of incumbent politicians and distinctive socio-
economic profiles as alternative explanations for the
peculiar contours of the Plan simply do not ring true.
Faced with competing inferences, this court-as fact
finder-must determine the credibility of witnesses,
weigh the evidence, and choose between those infer-
ences. 49. Concluding that the facts and inferences
overwhelmingly favor the Plaintiffs, we find that the
Plan is undeniably a child of racial gerrymander-
ing. 50. Defendants must therefore demonstrate that
Act 42 is narrowly tailored to satisfy a compelling

___________________(footnotes)

49 Wright v. Rockefeller, 376 U.S. 52, 57, 84 S. Ct. 603, 11
L. Ed. 2d (1964).

50 In finding that racial gerrymandering exists in this case,
we feel confident that we are faithfully following the Supreme
Court's temper in Shaw. In that case, the Court gives two
examples of fact. patterns in which proving racial gerryman-
dering "will not be difficult at all." Shaw, 125 L. Ed. 2d at
528. One example is when "a State concentrate [s] a dis-
persed minority population in a single district by disregarding
traditional districting principles such as compactness, con-
tiguity, and respect for subdivisions." Id. Those facts squarely
conform to this case. In the instant case, the Louisiana State
Legislature created a serpentine belt 600 miles long to en-
gulf enough blacks (actually, more than enough) to create
a single super-majority district. According to the Court,
this case presents a textbook example of racial gerrymander-
ing that can be easily proved by application of the Shaw
inferential minuet.

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74a

state interest, as required by Shaw and other appli-
cable Equal Protection Clause cases. 5l.

C. Direct Proof of Racial Gerrymandering

We need not even consider the kind of indirect or
inferential proof approbated in Shaw to reach the
same point-a finding of racial gerrymandering. In
this case, we also reach that junction when we con-
sider the great weight of the direct evidence elicited
at both the Trial and the Evidentiary Hearing. 52.
Regardless of whether we reach a finding of racial
gerrymandering by the inferential approach elabo-
rated in Shaw, or by direct testimony and documen-
tary evidence, the Defendants have the burden of
justifying that gerrymandering.
In this case, direct evidence clearly and forcefully
demonstrates that the Plan is a product of racial
gerrymandering. Virtually every witness who testi-
fied at the Trial (all without the benefit of a retro-
spective, self-serving view of Shaw) either affirma-
tively stated or accepted as gospel that the Plan was
drawn with the specific intent of ensuring the crea-
tion of a second, safe, black majority congressional
district: namely, District 4. The Defendants' wit-
nesses either stated or conceded that the districts cre-
ated by Act 42 were racially gerrymandered. Indeed,
those witnesses, both lay and expert, spent most of
their time at the Trial discussing how large the per-
centage of registered black voters needed to be in the
new majority black district to guarantee the efficacy

___________________(footnotes)

51 Shaw, 125 L. Ed. 2d at 528; see also supra note 13.

52 See Shaw, 125 L. Ed. 2d at 528 (implying that however
a racial gerrymander is established, it should receive strict
scrutiny). See also supra note 17 and accompanying text.

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75a

of their racial gerrymander-an efficacy they viewed
as the sine qua non of preclearance.
In response to this court's query whether the
Legislature had created a racial gerrymander, De-
fendants' counsel-Mr. Mongrue-said, "[a]nd [ra-
cial gerrymandering]'s exactly what [the Legisla-
ture] can do  . . . . " Similarly, Mr. Willie Hunter, a
black state legislator and a fact witness for the De-
fendants, testified that the Legislature's intention
"was to create a district where there was an excel-
lent possibility of having another black elected . . . ,
and that to accomplish this they [the legislators]
"looked at numbers [of black voters] period." Pro-
fessor Engstrom, an expert witness for the defense,
stated unabashedly that "race drove . . . [the creation
of] . . . the Districts."
Not surprisingly, the Plaintiffs' witnesses were at
least equally convinced that considerations of race
motivated the creation of Act 42. State Representa-
tive Adley, a white legislator from Northwest Loui-
siana, testified that "the only issue presented to us
was a racial issue" and stated that District 4 was
created "for the sole purpose of making sure that an
additional black district got created regardless of
what it looked like and what parishes it ran through
" Dr. Gary Stokley agreed that "this plan is
[based on] race."
At the more recent Evidentiary Hearing, however,
the Defendants attempted to recast their arguments
in light of Shaw and to gainsay the racial gerry-
mandering that they so readily approbated during
the pre-Shaw Trial. But even at this latter hearing
the witnesses agreed that race was the overarching
factor that drove the actual creation of the Plan, and
that the Legislature had specifically intended to as-

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76a

sort voters into districts based on race. Senator Marc
Morial, a black legislator from New Orleans who
appeared on behalf of the Defendants, testified that
"[i]t was the intent of the Legislature to create . . . . 
[a] . . . second majority black district." This is
perhaps the clearest, most `direct post-Shaw statement    I
of intent, and the best illustration of the difference        I
between intent and motive. Similarly, United States
Congressman James A. Hayes (D. La) stated that
the politics of race "was the major element" that
drove the creation of the Fourth District. Dr. Law-
rence N. Powell, one of Defendants' expert witnesses,
agreed that "the primary determinant" of the shapes
of Districts 2 and 4 was race.
During four full days of testimony, two in 1992
and two more in 1993, some witnesses stated that
race was the only factor, while others said that race
was the primary factor. One witness-apparently
uncomfortable with saying race was the primary
factor-admitted that race was a very important
factor. Not one witness, Plaintiffs' or Defendants',
testified that Act 42 was not largely a product of
racial gerrymandering-not one.
Harking back to our homicide analogy, we note 
that although witnesses at the Evidentary Hearing
voiced various altruistic motives-or accused others
of various ulterior motives-for intentionally employ-
ing racial gerrymandering to create voting districts
on the basis of race, 53. everyone agreed that the intent

___________________(footnotes)

53 Among the positive goals thus voiced were promoting
racial harmony, increasing racial fairness, eradicating ves-
tiges of past de jure segregation, and "obeying the law" in
the sense of complying with the Voting Rights Act in a way
that would justify preclearance, to name a few.

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77a

of the Legislature-analyzed as a whole rather than
from the point of view of its constituent members or
caucuses-was to create a redistricting plan with a
second majority black district.
The evidence showed that the Plan passed the
Legislature by virtue of an uncommon alliance of
legislators: Some who supported the Plan wanted a
second super-majority black district to increase the
number of black representatives in Louisiana's con-
gressional delegation. Other supporters of the Plan
perceived various benefits in the correlative whitening
of some districts that attends the intentional segrega-
tion of black voters into other adjacent districts. 54.
But there is absolutely no doubt that the immediate
intent of the Legislature as a whole was to enact a
plan containing two black majority districts, essen-
tially without regard to any other considerations and
interests.
Viewed in any light, the direct evidence in this
case proves the presence of racial gerrymandering.
Thus, even in the event that we may have somehow
misconstrued the Court's opinion in Shaw, or mis-
applied the inferential minuet established therein,
the direct evidence that Act 42 was a product. of ra-
cial gerrymandering is overwhelming. Two inde-
pendent evidentiary bases (inferential and direct)
thus support our finding that Act 42 reflects racial
gerrymandering. Each is sufficient on its own to
subject Act 42 to strict scrutiny, and each is conse-
quently sufficient to require the Defendants to demon-

___________________(footnotes)

54 Testimony at the trial revealed that Act 42 was passed by
a legislative alliance between the Black and the Republican
Caucuses, historically uncommon bedfellows but, according to
expert testimony, a phenomenon occurring with increasing
frequency across the country.

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78a

strate that Act 42 is "narrowly tailored to further a
compelling governmental interest," as required by
Shaw and other applicable Equal Protection Clause
precedents."

D. Strict Scrutiny of the Plan

Again, the core principle underlying the Supreme
Court's decision in Shaw is that racially gerry-
mandered redistricting plans are subject to the same
strict scrutiny that applies to other state legislation
classifying citizens on the basis of race. 56. To survive
such scrutiny, racially gerrymandered redistricting
plans must be narrowly tailored to further a com-
pelling governmental interest. 57.

1. Compelling Governmental Interest

Defendants advance four possible compelling state
interests to justify their racial gerrymandering:
(1) conformity with Section 2 of the Voting Rights
Act, (2) conformity with Section 5 of the Voting
Rights Act, (3) proportional representation of Loui-
siana blacks in Congress, 58. and (4) remedying the

___________________(footnotes)

55 Shaw, 125 L. Ed. 2d at 528.

56 See supra note 13.

57 Shaw, 125 L. Ed. 2d at 528.

58 At the Trial, Legislator Willie Hunter strongly advo-
cated a second black majority district for the expressed goal
of achieving black proportionality in congress. Without com-
menting-one way or another-on proportional representa-
tion's viability as a "compelling governmental. interest," we
foresee serious constitutional problems in accomplishing that
goal through creation of a second black majority district.
Evidence adduced here demonstrates that, of Louisiana black

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79a

effects of past racial discrimination. Witnesses also
made oblique references to various other admirable
but nebulous-and often question-begging-motives,
like promoting racial harmony and ensuring fairness.
As we conclude, however, that Act 42 is not nar-
rowly tailored to further these or any other compel-
ling state interests, we need not decide here whether
any one or more of them-properly clarified-is such
an interest. For the sake of judicial economy, then,
we do not analyze them in detail. Rather, we assume
-without granting-that one or all of them con-
stitutes a compelling state interest.

2. Narrowly Tailored

By thus assuming-again, without granting-that
the Defendants have articulated one or more compel-
ling state interests that the Plan might further, we
have shifted the focus of our strict scrutiny to the
final aspect of Shaw: whether the Plan is narrowly
tailored. In our final illustrative comparison with
homicide, we note the parallelism between the hypo-
thetical criminal defendant's burden-at common law
 of establishing an affirmative defense-such as
justifiable homicide-and the State's burden here of
establishing the affirmative justification of a compel-

___________________(footnotes)

voting age population outside New Orleans, even the over-
loaded 63% black District 4 would produce the election of
the [black] candidate of choice of fewer than 407. of those
blacks whom the proponents of proportional representation
want to be thus represented in Congress. Consequently, the
Plan would constitute state action that, in effect, grants voting
"proxies" from the black voters residing in Districts 1, 3, 5,
6 and 7 to the black voters of District 4-clearly a disen-
franchisement implicating equal protection and possibly due
process as well.

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80a

ling state interest. 59. But even such affirmative de-
fenses contain crucial limiting elements: the require-
ment of applying only reasonable force in the
self-defense context, and the requirement of narrow
tailoring in the compelling state interest context.
A homicide defendent, relying for acquittal on self-
defense or justifiable homicide, must show not only
that he had a reasonable fear of imminent harm from
the aggressor/victim, but also that he used no more
force than was reasonably necessary under the cir-
cumstances. If a single, deterrent gunshot to the
aggressor/victim's leg happens to cause death from
uncontrollable hemorrhaging, the homicide may well
be justified; but if the defendant fires two or three or
four additional, immediately-fatal shots into vital
areas of that same aggressor/victim's body after he
has been neutralized by the first shot in the leg, the
defendant is likely to find that the affirmative de-
fense is unavailing.

___________________(footnotes)

59 We realize that many states choose to make the absence of
justification an element of the actus reus, thereby imposing
upon the prosecution the burden of proving that the criminal
defendant did not act in self-defense. As the Supreme Court
has lately declined to review whether the Due Process Clause
requires the burden of persuasion in self-defense cases to be
placed on the prosecution, see, e.g., Moran v. Ohio, 469 U.S.
948, 105 S. Ct. 350, 83 L. Ed. 2d 285 (1984) (Brennan, J.,
dissenting), state legislatures remain free to allocate burdens
of proof "by labeling as affirmative defenses" aspects of a case
that could alternatively be considered elements of a crime.
Patterson v. New York, 432 U.S. 197, 210, 97 S. Ct. 2319, 53
L. Ed. 2d 281 (1977); see also McElroy v. Holloway, 451
U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398, 399-400 (Rehn-
quist, J., dissenting). For our purposes, however, such sub-
tleties are irrevelant: as noted above, we are merely using
classic common law homicide/self-defense as an instructive
analogy.

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81a

In close parallel, Shaw tells us that, even in retro-
gression cases under Section 5, the State does not
have carte blanche to engage in racial gerrymander-
ing; its reapportionment plan must not go "beyond
what [is] reasonably necessary" to further the com-
pelling governmental interest. 60. That is the essence
of narrow tailoring in the redistricting context: just
as a homicide defendant may not use excessive force
to stop an aggressor, neither may a state burden the
rights and interests of its citizens more than is rea-
sonably necessary to further the compelling govern-
mental interest advanced by the state.
In this case, uncontroverted evidence from both the
Trial and the Evidentiary Hearing convinces us that
the Plan is not narrowly tailored to satisfy any of
the supposedly compelling state interests advanced
by the Defendants. 61. We reach that conclusion first
because the Plan entails considerably more segrega-
tion than is necessary to satisfy the need for a second
black majority district-even assuming arguendo
that such a second district were itself justified-and
second because the Plan excessively burdens a variety
of third party interests-dramatically so.
In its Shaw opinion, the Supreme Court provides
one example to illustrate how to apply the require-
ment that a racially gerrymandered plan be narrowly
tailored to satisfy one or more compelling state inter-
ests: "A reapportionment plan would not be nar-

___________________(footnotes)

60 Shaw, 125 L. Ed. 2d at 534.

61 As noted above, in this section we assume-arguendo-
that the State has demonstrated a compelling state interest,
although, in fact, we have not so found. Neither could we
on the evidence here presented. That is a judgment for the
Legislature to make and the courts to review.

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82a

rowly tailored to avoiding the goal of retrogression if
the state went beyond what was reasonably necessary
to avoid retrogression." 62. Thus, if providing a single
majority-minority district satisfies the nonretrogres
sion requirement imposed by Section 5 of the Voting
Rights Act, 63. then a racially gerrymandered redis-
tricting plan comprising more than one minority-
majority district is not narrowly tailored to satisfy
the compelling state interest of comporting with Sec-
tion 5. 64. Stated more broadly, as voters have an equal
protection right not to be segregated by their state
legislatures or local governments into various voting
districts on the basis of race, only a plan that segre-
gates to no greater extent than is reasonably neces-
sary to further a compelling governmental interest
can survive constitutional scrutiny. The same can be
said for a plan that supersaturates a majority-
minority district, while concomitantly depleting ad-
jacent majority-majority districts of minority voters.
In this ease, we find that the Plan entails more
constitutionally suspect segregation than necessary,

___________________(footnotes)

62 Shaw, 125 L. Ed. 2d at 534.

63 Beer v.. United States, 425 U.S. 130, 141 (interpreting
Section 5 as prohibiting voting-procedure changes that "lead
to a retrogression in the position of racial minorities  . . . . ").

64 The Court's example clearly indicates that the State of
Louisiana may not justify the Plan, or any other racially gerry-
mandered plan with more than one black majority district,
by reference to the need to comply with the Section 5 non-
retrogression principle. As noted above, because Louisiana
lost a seat in the United States House of Representatives, a
plan with one black majority district would satisfy the Section
5 nonretrogression requirement given no more dramatic shift
in the statewide ratio of white-to-black voters than is demon-
strated by a comparison of the 1980 and 1990 census figures.
See supra note 21.

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83a

and is therefore not narrowly tailored. Continuing to
assume arguendo that some state interest had been
identified which could justify the creation of a second
black-majority district, this Plan would have to be
rejected as insufficiently narrowly tailored. It packs
more black voters into a District 4 than are reason-
ably necessary to give blacks a realistic chance to
determine the outcome of elections there, providing
that they exercise their right to vote. Also, the
boundaries of the district violate traditional district-
ing principles to a substantially greater extent than
is reasonably necessary.
District 4 contains 63% registered black voters,
significantly more than are needed to elect represent-
atives of their choice. To greater or lesser degrees,
all expert witnesses acknowledged-some only reluc-
tantly under cross examination-that 63% black
voting age population was well in excess of the per-
centage needed for reasonable comfort in creating a
safe voting-age majority-minority district. For fur-
ther confirmation that, this is so we need only ask
rhetorically "If 54%, is sufficient in District 2, why
must District 4 be supersaturated with 63% black
voting age citizens?" No evidence was adduced by
the Defendants to demonstrate a substantial differ-
ence between the voting patterns in the areas covered
respectively by Districts 2 and 4-either in white
crossover or black block voting-to rationalize the
54 %-63% disparity in black voting age populations.
Although the witnesses at trial disagreed on the
exact percentage of net white cross-over votes for
black candidates, we find that the evidence supported
an average, net white cross-over vote in non-judicial

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84a

elections of between 10% and 25 %. 65. The evidence
at trial also indicated that minority voter registra-
tion is now comparable to white registration. Clearly,
District 4 need not contain a black voting age popu-
lation of 63% to satisfy the interest of a second
district in which black officials can be readily elected.
And, although it is not the province of this court in
this case to establish the demographic specifications
of the State's congressional redistricting plan, we find
on the basis of the credible testimony and documen-
tary evidence, that in this instance a district with a
black voting age population of not more than 55% 
and probably less-would have been adequate to en-
sure that blacks could elect a candidate of their
choice, assuming they chose to exercise their fran-
chise and assuming the candidate of their choice had
more than a modicum of appeal for non-black voters.
Additional confirmation that the Plan is not nar-
rowly tailored lies in its excessive disregard of tradi-
tional redistricting criteria and its derogation from
third-party interests. Supreme Court precedent indi-
cates that a variety of factors, both relative and ab-
solute, are germane to analyzing whether a govern-
ment measure is narrowly tailored. These factors
include (1) the necessity of the measure, (2) the
efficacy of alternative race-neutral measures, (3) the
availability of more narrowly tailored (less intru-

___________________(footnotes)

65 In other words, on the average-for non-judicial elections
in Louisiana black candidates will gain more votes from
white cross-over voters (whites voting for black candidates )
than they will lose from black cross-over voters (blacks voting
for white candidates) : thus, there is a positive net white
cross-over vote. To put it another way, black voters are-
again on the average-more racially coherent/conscious than
white voters.

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85a

sive ) measures, (4)  the flexibility and duration of
the measure, and (5) the impact of the measure on
the rights of third parties. 66. Relevant Supreme Court
jurisprudence thus suggests that in essence-a plan
is not narrowly tailored if it adversely affects more
interests, if it generally wreaks more havoc, than it
reasonably must to accomplish the articulated com-
pelling state interest. We find that the Plan thus
offends.
Whether under a relative or a comparative analy-
sis, the evidence adduced at Trial and at the Evi-
dentiary Hearing undeniably established that, even in
the face of the black population's wide dispersion in
Louisiana (outside New Orleans), a second black
majority district could have been drawn that would
have done substantially less violence to traditional
redistricting principles. For example, Mare Morial
stated that " [t] here were alternatives which would
have created a more compact black district that were
not enacted  . . . . " Similarly, Congressman Hayes
admitted that a more compact plan could have been
enacted. Freshman United States Congressman Cleo
Fields-the former state senator and incumbent con-
gressman from new District 4, who testified for the
Defendants-also acknowledged that "it would have
been possible to fulfill the desire of a second [black]
majority district . . . and pay more attention than
this District [District 4] does to both compactness
and contiguity."

___________________(footnotes)

66 See, e.g., Richmond v. J. A. Croson Co., 488 U.S. 469,
510-511, 109 S. Ct. 706, 102 L. Ed. 2d 854 (1989); United
States v. Paradise, 480 U.S. 149, 1.71, 107 S. Ct. 1053, 94
L. Ed. 2d 203 (1987); Fullilove v. Klutznick, 448 U.S. 448,
510-15.100 S. Ct. 2758, 65 L. Ed. 2d 902 (1980).

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86a

Dr. Alan Litchman-one of the Defendants' expert
witnesses at the Evidentiary Hearing-likewise testi-
fied that, were he to sit down with Dr. Ronald Weber
(the expert on the other side) they "could create a
[second black majority] district that looked better
than this one [district 4] ." And Dr. Weber-the
Plaintiffs' expert witness at both the trial and the
evidentiary hearing-testified that a plan could be
devised that would include a second black majority
district, yet still be significantly more compact and
comport much more closely with other traditional re-
districting principles.
The testimony of freshman state Senator Tom
Greene at the Evidentiary Hearing was perhaps the
most enlightening on this point. He stated that, with
the neutral assistance of the Legislature's redistrict-
ing computer technician, he (Greene) actually created
a plan that evinced greater respect for Louisiana's
traditional parish boundaries than the Plan, and still
included a second majority-black district. Finally,
Mr. Glenn Koepp, who is the Assistant Secretary of
the Senate and the technician in charge of reappor-
tionment activity in Louisiana since, 1981, testified
that computer-supported mathematical modeling pro-
grams gave the State the tools to create several plans
-including several with a second black district-
that would respect traditional redistricting criteria
to a much greater- degree than does the Plan. Thus,
the great weigh of the credible evidence indicates
that the Legislature could have developed and adopted
a redistricting plan-even one with a second major-
ity black district-that reflected greater respect for
traditional redistricting criteria and that was less
disruptive to the traditional political, social, eco-
nomic, ethnic, geographical, and religious organiza-

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87a

tion of the State. In short, substantially less extreme
racially gerrymandered plans are readily available;
plans without. such obviously overbroad, overarching
overkill.
In summary, we hold that the Plan is not narrowly
tailored, either relatively or absolutely. This is so
because it embraces considerably more racial gerry-
mandering-and thus more segregation-than is
needed to satisfy any advanced state interest, and
because the Plan unnecessarily violates a host of his-
torically important redistricting principles, thereby
adversely affecting countless third party interests.
These several and varied interests-some constitu-
tionally protected and others merely important-may
not be callously sacrificed on the altar of political
expediency, particularly when less broadly tailored
plans are conceivable. 67.

___________________(footnotes)

67 We offer no opinion as to how much more narrowly tail-
ored a plan would have to be to survive strict scrutiny. In-
deed, we cannot say whether it is even possible-based on
the 1990 Census-to devise a plan that would have two ma-
jority-minority districts and still be narrowly tailored vel
non. 
Even a plan that under the circumstances is as narrowly
tailored as possible-in a relative sense (i.e., the least invasive
and damaging plan available to further a compelling state
interest ) -may fail to be sufficiently narrowly tailored-on
an absolute basis-to pass constitutional muster. For ex-
ample, when the minority population is spread so evenly
throughout a state that a majority-minority district cannot
be drawn without dramatically impairing the constitutional
rights of the citizens of that state, there may simply be no
constitutionally permissible way to draw such a district, no
matter how defensible the legislature's motives for wishing to
do so, or how bona fide its efforts to tailor the plan narrowly.

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88a

IV

CONCLUSION

We find that the Plan in general and Louisiana's
Congressional District 4 in particular are the prod-
ucts of racial gerrymandering and are not narrowly
tailored to further any compelling governmental in-
terest. We are therefore constrained to conclude that
the Plaintiffs' right to equal protection as guaranteed
by the United States Constitution is violated by the
Plan. Consequently, we declare Act 42 of 1992 to be
unconstitutional and the redistricting plan embodied
therein to be null and void; and we enjoin the State
of Louisiana from holding any future congressional
elections based on the Plan. We do not, however,
invalidate the 1992 congressional elections held there-
under; but we do hold that the term of office of each
member of the United States House of Representa-
tives from Louisiana who represents a district cre-
ated under the Plan-and each district thus created
-shall expire, ipso facto, at noon on the 3rd day of
January, 1995, such terms of office and such districts
not to be extended or carried over into the next Con-
gress in any manner whatsoever.

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89a - 90a

[TABLE CHART OMITTED]

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91a

Walter, District Judge, concurring:

I concur with the result of the majority opinion.
However, since my examination of the case differs
somewhat analytically, I write separately.
This court considered several questions: May a
State enact a race-based reapportionment plan? If
so, under what circumstances are race-conscious
measures allowed ? Finally, how do these require-
ments apply to Act 42.   

I

LAW

[I] n view of the constitution, in the eye of
the law, there is no superior, dominant, ruling
class of citizens. There is no caste here. Our
constitution is color blind, and neither knows nor
tolerates classes among citizens. In respect of
civil rights, all citizens are equal before the law.
The humblest is the peer of the most powerful.
The law regards man as man, and takes no ac-
count of his surroundings or of his color when
his civil rights as guaranteed by the supreme
law of the land are involved  . . . . 
The destinies of the two races, in this country,
are indissolubly linked together, and the inter-
ests of both require that the common government
of all shall not permit the seeds of race hate to
be planted under the sanction of law  . . . . 
The sure guaranty of the peace and security
of each race is the clear, distinct, unconditional
recognition by our governments, national and
state, of every right that inheres in civil free-
dom, and of the equality before the law of all
citizens of the United States, without regard to
race.

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92a

Plessy v. Ferguson, 163 U.S. 537, 558, 16 S. Ct. 1138,
1146 (1896) (Harlan, dissenting).

A

CONSIDERATION OF RACE IN
REDISTRICTING LEGISLATION

Despite the legislation enacted to promote racial
equality, many states remained recalcitrant to the
Civil War amendments' mandates. Among the meth-
ods used by the states to evade the fifteenth amend-
ment were poll taxes, literacy tests, and gerryman-
dered 1. districts. Responding to this perversion, Con-
gress enacted the Voting Rights Act of 1965 "as a
dramatic and severe response to the situation."
Shaw v. Reno, ___ U.S.___, 113 S. Ct. 2816, 2823
(1993). Amended in 1982, section 2 of the Voting
Rights Act prohibits the dilution of a minority
group's voting strength while section 5 mandates pre-
clearance of newly created districts for those states
that employed disenfranchising schemes in the past.
The purpose of the voting rights legislation is to pro-
hibit State efforts to abridge or deny minority repre-
sentation. To this end, when pre-clearance is sought
under section 5, the Department of Justice usually
seeks maximization of minority voting strength to

___________________(footnotes)

1 Gerrymander is "[a] name given to the process of dividing
state or other territory into the authorized civil or political
divisions, but with such a geographical arrangement as to ac-
complish an ulterior or unlawful purpose, as for instance,
to secure a majority for a given political party in districts
where the result would be otherwise if they were divided
according to obvious natural lines." Black's Law Dictionary
(5th Ed.) .

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93a

promote minority representation. 2. Since legislators
are thus obligated to consider racial factors when re-
districting, a delicate balance arises between promo- 
tion of minority suffrage and the color-bland stric- 
tures of equal protection.

B
     
EQUAL PROTECTION

"No State shall . . . deny to any person within its
jurisdiction the equal protection of the laws." U.S.
Const., Amdt. 14 1. Interpreting this clause nearly
a century ago, the Supreme Court held in Plessy v.
Ferguson, 163 U.S. 537, 558, 16 S. Ct. 1138, 1146
(1896 ) that the separate but equal doctrine com-
ported fully with the Fourteenth Amendment. Id. at
548. "The majority [in Plessy] held that persons
could be legally classified and treated in such a man-
ner because of their race when the classifying law
was a reasonable exercise of the police power. This
meant that such laws must be reasonable, good faith
attempts to promote the public good and not be de-
signed to oppress a particular class." John E.
Nowak, Ronald D. Rotunda, Constitutional Law, 618
(1991 ). As the Court itself stated:

___________________(footnotes)

2 It is my opinion that Shaw v. Reno did not fully address
the constitutional or statutory authority behind Department
of Justice pre-clearance requirements that arguably go beyond
the Voting Rights Act. Thus, the Supreme Court may very
well hold the Department of Justice's reliance on minimum
"safe" percentages unconstitutional. I do not reach that ques-
tion today but am troubled by the effect that these demands
are having upon states seeking administrative pre-clearance
rather than a declaratory judgment from the District Court
of the District of Columbia.

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94a

[W] e think the enforced separation of the races,
as applied to the internal commerce of the state,
neither abridges the privileges or immunities of
the colored man, deprives him of his property
without due process of law, nor denies him the
equal protection of the laws, within the meaning
of the fourteenth amendment.

Plessy, 163 U.S. at 548, 16 S. Ct. at 1142.

Fifty-eight years later, Plessy's flawed concept of
equal protection was rejected. Although Brown v.
Board of Education of Topeka, 347 U.S. 483, 74 S. Ct.
686 (1954 ) did not expressly overrule Plessy outside
the realm of education, that case heralded the demise
of separate but equal treatment of the races by the
states. Over the past four decades, the Supreme
Court has confronted the consideration of race in
State and federal legislation and has fashioned spe-
cific guidelines for testing the constitutionality of
such considerations.
The central purpose of the Equal Protection Clause
"is to prevent the States from purposefully discrim-
inating between individuals on the basis of race."
Shaw v. Reno, 113 S. Ct. at 2824. "Classifications
based on race carry a danger of stigmatic harm.
Unless they are strictly reserved for remedial set-
tings, they may in fact promote notions of racial
inferiority and lead to politics of racial hostility."
City of Richmond v. J.A. Croson Company, 488 U.S.
469, 493, 109 S. Ct. 706, 722 (1989). Accordingly,
the Court has "held that the Fourteenth Amendment
requires state legislation that expressly distinguishes
among citizens because of their race to be narrowly
tailored to further a compelling governmental inter-
est." Shaw, 113 S. Ct. at 2825. This test is known

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95a

as strict or heightened scrutiny and is justified be-
cause:

[a]bsent searching judicial inquiry into the jus-
tification for such race-based measures, there is
simply no way of determining what classifica-
tions are `benign' or `remedial' and what classi-
fications are in fact motivated by illegitimate
notions of racial inferiority or simple racial poli-
tics. Indeed, the purpose of strict scrutiny is to
"smoke out" illegitimate uses of race by assur-
ing that the legislative body is pursuing a goal
important enough to warrant use of a highly sus-
pect tool. The test also ensures that the means
chosen "fit" this compelling goal so closely that
there is little or no possibility that the motive
for the classification was illegitimate racial prej-
udice or stereotype.

Croson, 488 U.S. at 493, 109 S. Ct. at 721. These
equal protection principles apply to statutes that "al-
though race-neutral, are, on their face, `unexplain-
able on grounds other than race,'" and classifications
that are ostensibly neutral but are an obvious pretext
for racial discrimination. Shaw, 113 S, Ct. at 2825
(citing Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252, 266, 97 S. Ct. 555,
564, 50 L. Ed.2d 450 (1977) ; Yick Wo v. Hopkins,
118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886)).
Under current equal protection doctrine, "race-
conscious state decisionmaking is [not] impermissible
in all circumstances." Shaw, 113 S. Ct. at 2824 (em-
phasis in original). If State legislation contains ex-
plicit racial classifications, if it is inexplicable on
grounds other than race, or if it contains race-neutral
classifications that serve as mere pretext for racial

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96a

discrimination, then courts are bound to apply the
strict scrutiny regime. The classification must be
justified by a compelling state interest, and then be
narrowly tailored to fit that interest in order to sur-
vive constitutional scrutiny.
         
C
  
RACIAL GERRYMANDERING UNDER
     EQUAL PROTECTION

Redistricting legislation is almost always race-
neutral on its face. Before Shaw, the Supreme Court
had

held that only two types of state voting practices
could give rise to a constitutional claim. The
first involves direct and outright deprivation of
the right to vote, for example by means of a poll
tax or literacy test . . . The second type of un- 
constitutional practice is that which affects the   
political strength of various groups in violation
of the Equal Protection Clause. As for this lat-
ter category, [the Court] insisted that members
of the political or racial group demonstrate that
the challenged action have the intent and effect
of unduly diminishing their influence on the
political process.

Shaw, 113 S. Ct. at 2834 (White, J. dissenting). The
latter category, known as "dilution," arises when
voters are not deprived of the right to vote, but,
through methods such as "cracking," "stacking," and
"packing," certain groups are denied an effective
vote. See, United Jewish Organization-s of Williams-
burg, Inc. v. Carey, 430 U.S. 144, 97 S. Ct. 996, 51
L. Ed.2d 229 ( 1977) ( "UJO" ) ; Voinovich v. Quilter,

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97a

507 Us. -, 113 S. Ct. 1149, 122 L. Ed.2d 500
(1993). Acknowledging UJO and its progeny, Shaw
went further, holding that "district lines obviously
drawn for the purpose of separating voters by race
require careful scrutiny under the Equal Protection
Clause regardless of the motivations underlying their
adoption. " Id. at 2826.
Supporting this holding is the now famous case
of Gomillion v. Lightfoot, 346 U.S. 339, 81 S. Ct.
125, 5 L. Ed.2d 110 (1960) in which the Alabama
legislature redefined the boundaries of Tuskegee, es-
sentially excluding all but a few black citizens from
the district. The result was "a strangely irregular
twenty-eight-sided figure." Id., at 341. The Court
found the scheme repugnant to the Fifteenth Amend-
ment, holding:

 . . . Act 140 was not an ordinary geographic re-
districting measure even within familiar abuses
of gerrymandering. If these allegations upon a
trial remain uncontradicted or unqualified, the
conclusion would be irresistible, tantamount for
all practical purpose to a mathematical demon- 
stration, that the legislation is soley concerned
with segregating white and colored voters  . . . . 
It is difficult to appreciate what stands in the
way of adjudging a statute having this inevita-
ble effect invalid in light of the principles by
which this Court must judge, and uniformly has
judged, statutes that, howsoever speciously de-
fined, obviously discriminate against colored
citizens.

Id. at 341, 342. Therefore, racial gerrymandering,
or legislation that manipulates district lines to
achieve a predetermined racial result is subject to
strict scrutiny.

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98a

D

PROVING A RACIAL GERRYMANDER

"Proof of racially discriminatory intent or purpose
is required to show a violation of the Equal Protec-
tion Clause." Arlington Heights v. Metropolitan
Housing Development Corp., 429 U.S. 252, 265, 97
S. Ct. 555, 563. Such invidious discriminatory intent
or purpose need not be the legislature's dominant or
primary consideration. Rather, proof that invidious
discriminatory purpose was a motivating factor in
the legislation will suffice. Id. Because improper
racial classifications rarely appear on the face of
legislation, the Supreme Court has identified sub-
jects of proper inquiry in determining whether
racially discriminatory intent existed. For example,
legislation that "bears more heavily on one race than
another" may indicate discrimination, Washington v.
Davis, 426 U.S. 229, 96 S. Ct. 2040 (1976), as will
historical patterns, Arlington Heights v. Metropolitan
Housing Development Corp., 429 U.S. 252, 267, 97
S. Ct. 555, 564 (1977), legislative history, Id., irra-
tionality pointing to nothing but racial classification,
Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064
(1886). and direct evidence adduced, as in this case,
before a three judge panel. Shaw stands for the
proposition that bizarre reapportionment schemes
such as that challenged in North Carolina and Act
42 fall into the Yick Wo category and may, in and
of themselves, be evidence of invidious discrimination.
Of course, these indicators may be rebutted by
evidence of wholly legitimate purposes. "The district
lines may be drawn, for example, to provide for com-
pact districts of contiguous territory, or to maintain
the integrity of political subdivisions." Shaw, 113

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99a

S. Ct. at 2826. When such legitimate purposes are
disclosed and accepted by the court, heightened scru-
tiny is inappropriate. However, if the grounds as-
serted are an obvious pretext for racial discrimina-
tion or are simply post hoe arguments contrived to
shield the segregation from judicial inquiry, the court
must pursue the strict scrutiny regime.
          
E

STRICT SCRUTINY: WHEN IS A STATE
  INTEREST COMPELLING AND WHAT
  DETERMINES NARROW TAILORING?

1
   
COMPELLING STATE INTEREST

Few interests will be deemed "compelling" enough
to justify State classifications according to race. The
Supreme Court has given little indication as to what
satisfies this portion of the strict scrutiny regime.
However, the Court has accepted the correction of
past governmental and private sector discrimination,
Richmond v. J.A. Croson, 488 U.S. 469, 109 S. Ct.
706, 102 L. Ed. 854 (1989), ethnic and racial diversi-
fication in the faculty and student bodies of state
operated universities and professional schools, see
Regents Of the University of California v. Bakke,
438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed.2d 750 ( 1978),
and has suggested that States have a "very strong
interest in complying with federal antidiscrimination
laws that are constitutionally valid as interpreted and
applied." Shaw, 1.13 S. Ct. at 2830. Despite the lan-
guage in Bakke, the Court seems unwilling to allow

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100a

any race-based measures outside a remedial setting 3.
Croson, 488 U.S. at 493, 109 S. Ct. at 721.
Although the States and their subdivisions may
take action to remedy discrimination, "they must
identify that discrimination, public or private, with
some specificity before they may use race-conscious
relief." Croson, 488 U.S. at 503, 109 S. Ct. at 727.
That identification occurs when "judicial, legislative,
or administrative findings of constitutional or statu-
tory violations" are made. Bakke, 438 U.S. at 308-
309, 98 S. Ct. at 2757-2758. Otherwise, "the dream
of a Nation of equal citizens in a society where race
is irrelevant to personal opportunity and achieve-
ment would be lost in a mosaic of shifting prefer-
ences based on inherently unmeasurable claims of
past wrongs." Croson, 488 U.S. at 504, 109 S. Ct. at
728.         

2

NARROWLY TAILORED

Once an interest has been properly identified and
accepted as compelling, the court must examine the
classification in order to determine whether it is
narrowly tailored to "fit" the interest involved. In
deciding whether race-conscious remedies are appro-
priate, the court may consider several factors. Among
these are the necessity for the relief and the efficacy
of alternative remedies; the flexibility and duration
of the relief; and the impact of the relief on the
rights of third parties. U.S. v. Paradise, 480 U.S.
149, 169, 107 S. Ct. 1053, 1066, 94 L. Ed.2d 203

___________________(footnotes)

3 Compliance with federal law under the Voting Rights Act
may be viewed as remedial and, therefore a state interest and
perhaps compelling.

---------------------------------------- Page Break ----------------------------------------
         
10la

(1987). However, the relief must not go beyond what                                                        
is reasonably necessary to accomplish the compelling
interests. See, Shaw, 113 S. Ct. at 2831.
Therefore, this court must first determine how
the districts were drawn, that is, whether they were
drawn along race lines or not. To do so, this Court
will examine the factors listed in section D above. If
the State counters with a legitimate non-racial ex-
planation for Act 42's configuration, this Court will
defer to the Legislature and refrain from reviewing
the merits of their decisions. However, if a motivat-
ing factor behind the reapportionment scheme was
racial, strict scrutiny applies. Then we turn to
whether the State had a compelling interest support-
ing racial discrimination. We will expect the State
to provide specific evidence warranting its action
and require a nexus between the action and the inter-
est.. Finally, we will examine whether Act 42 itself
was narrowly tailored to fit the compelling interest
in. light of the factors discussed above.

II

ANALYSIS

A

ACT 42 IS A RACIAL GERRYMANDER

This court found the evidence to indicate over-
whelmingly that the intent of legislature was to di-
vide Louisiana's congressional districts along racial
lines. The inferential evidence and the direct testi-
mony of legislators for both the plaintiffs and the
State allow no other conclusion. It is true that the
State attempted to demonstrate non-racial explana-

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102a

tions for the highly irregular districts. In light of
the testimony at both the trial and evidentiary hear-
ing, these suggestions are but post hoc rationali-
zations.
The evidence before the Court demonstrated that
the State Legislature acted as it did to gain pre-
clearance and contrived the interest of correcting past
discrimination for the purpose of the evidentiary
hearing alone. Finally, as the majority notes above,
most witnesses readily admitted to the availability of
other plans less offensive to traditional districting
patterns and or smaller racial discrepancies.

B

ACT 42 IS SUBJECT TO STRICT SCRUTINY

As our factual findings denote, Act 42 is a clear
example of a racial gerrymander. Specifically, Dis-
trict 4 permits no conclusion other than classic segre-
gation Both the facial irregularity without plausible
non-racial explanation 4. and the explicit testimony

___________________(footnotes)

4 The defense elicited testimony that District 4 actually
represents certain commonalities of interest. Essentially, the
State suggested that certain interests are predominantly
shared by Blacks and therefore District 4 has a sufficient non-
racial justification. This is exactly the type State action that
our color-blind Constitution prohibits. As the Shaw Court
held: 
"A reapportionment plan that includes in one district in-
dividuals who belong to the same race, but who are other-
wise widely separated by geographical and political boun-
daries, and who may have little in common but the color
of their skin, bears an uncomfortable resemblance to
political apartheid. It reinforces the perception that mem-
bers of the same racial group-regardless of their age,
education, economic status, or the community in which

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103a

of the legislators require this finding. Since redis-
tricting along racial lines was a motivating factor,
Act 42 is subject to strict scrutiny. This panel must
now determine whether Act 42 was justified by a
compelling governmental interest and that the means
chosen by the State to effectuate its purpose were
narrowly tailored to the achievement of that goal.

1

COMPELLING INTERESTS

The State advanced two main compelling interests
behind the racial gerrymander. I discussed the find-
ings required by Croson, Wygant, and Bakke when
a State attempts to rely on prior discrimination as

___________________(footnotes)

they live-think alike, share the same political interests,
and will prefer the same candidates at the polls. We have
rejected such perceptions elsewhere as impermissible ra-
cial stereotypes. By perpetuating such notions, a racial
gerrymander may exacerbate the very patterns of racial
bloc voting that majority-minority districting is some-
times said to counteract.
  The message that such districting sends to elected rep-
resentatives is equally pernicious. When a district is ob-
viously created solely to effectuate the perceived common
interests of one racial group, elected officials are more
likely to believe that their primary obligation is to repre-
sent only the members of that group, rather than their
constituency as a whole. This is altogether antithetical to
our system of representative democracy." Id. at 2827.
I agree with what I perceive to be Justice O'Connor's views.
If a multi-cultural State in which voters shared interests not
according to the color of their skin but the content of their
lives and experiences was the Legislature's goal, the tamper-
ing would have resulted in more evenly split districts. The
races would then have to reconcile their differences with one
another and move forward on common ground.

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104a

a foundation for remedial action. I see no reason
why the same analysis should not apply when a state
argues that compliance with federal anti-discrimina-
tion law mandated the jurisdiction's race-based ac-
tion. In order to rely on "remedying past discrim-
ination" and "obeying the law," a State must "dem-
onstrate a strong basis in evidence for its conclusion
that remedial action was necessary." Croson, 488
U.S. at 510, 109 S. Ct. at 730. I examine each pur-
ported interest in turn to see if the State has met
this burden.      

a

Past or Present Discrimination

"Societal discrimination, without more, is too amor-
phous a basis for imposing a racially classified rem-
edy." Wygant, 476 U.S. 276, 106 S. Ct. 1848. The
Supreme Court has firmly held that States must have
"convincing evidence that remedial action is war-
ranted." Id. While there is no doubt that Louisiana
has a sorry history of race relations, the defense did
not provide evidence that the Legislature had before
it the necessary factual predicate warranting a volun-
tary affirmative action redistricting plan. In fact,
the evidence supports the conclusion that the Legis-
lature did not create Act 42 for the purpose of
remedying past discrimination at all. Thus, if the
State does intend to redistrict along racial lines with
the goal of correcting past electoral discrimination,
it must demonstrate what evidence warrants a finding
of discrimination and how a specific plan relates to
the elimination thereof.

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105a

b

Pre-clearance from the Department of Justice

The State legislators acted under the assumption
that failure to create a second majority-minority dis-
trict would result in the denial of pre-clearance by
the Department of Justice. This assumption seems
to be founded upon the rejection of two non-congres-
sional plans by the Department of Justice. However,
both letters from the Civil Rights Division acknowl-
edged that the plans satisfied Section 5 pre-clearance
requirements but rejected the plans because they
could have been drawn more effectively. The Shaw
opinion held that a state interest in complying with
federal law is compelling only as constitutionally in-
terpreted and applied. Additionally, by pointing out
the distinction between what the law requires and
what it permits, the Court stated that even valid
plans under the Voting Rights Act must comport with
the Fourteenth Amendment. Because the Voting
Rights requirements do not give covered jurisdictions
carte blanche to engage in racial gerrymandering in
the name of nonretrogression, the question for this
court is whether the State of Louisiana had a strong
basis in evidence for the belief that failure to create
a second majority-minority district would violate
Section 2 or 5 of the Voting Rights Act.

(1)
       
Section 2 of the Voting Rights Act

Section 2 of the Voting Rights Act of 1965, 42
U.S.C. 19 1973 was enacted to accomplish the guaran-
tees of the Fifteenth Amendment. Specifically, Sec-
tion 2(a) prohibits the imposition of any electoral

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106a

practice or procedure that "results in a denial or
abridgement of the right of any citizen . . . to vote
on account of race or color." This section therefore
rejects State actions that, "interacting with social
and historical conditions, impair the ability of a pro-
tected class to elect its candidate of choice on an
equal basis with other voters." Voinovich v. Quilter,
- U.S. -, 113 S. Ct. 1149, 1155 (1993). If,
under the totality of the circumstances, a State's
apportionment scheme has the effect of diminishing
or abridging the voting strength of a protected class,
a Section 2 violation has occurred. Id. These "dilu-
tion" claims involve three threshold conditions.

First, they must show that the minority group
'is sufficiently large and geographically compact
to constitute a majority in a single member dis-
trict.' Second, they must prove that the minority
group " 'is politically cohesive.' " Third, the
plaintiffs must establish 'that the white majority
votes sufficiently as a bloc to enable it  . . . . 
usually to defeat the minority's preferred candi-
date.'
Id. at 1157 (quoting Gingles, 507 U.S. 30, 50-51, 106
S. Ct. 2752, 2766, 92 L. Ed.2d 25 (1986)). District 4
is evidence alone that the minority population large
enough to constitute a majority in a single member
district is not geographically compact. Without sat-
isfaction of this initial Gingles condition, it is impos-
sible to find that the State had a rational basis to
believe that failure to create a second majority-
minority district would violate Section 2. Reliance
on possibly invalid applications of the Voting Rights
Act by the Department of Justice cannot create a
compelling state interest. If so, the Department of

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107a

Justice and various States could sidestep the holdings
of Croson, Gingles, and Shaw with ease.

(2)

Section 5 of the Voting Rights Act

Similar findings are required under the "nonretro-
gression" analysis of Section 5. If the State had no
basis to believe that one majority-minority district
out of seven districts would constitute retrogression,
then reliance on Section 5 as a compelling interest
is misplaced. "Under [the nonretrogression] prin-
ciple, a proposed voting change cannot be pre-cleared
if it will lead to a retrogression in the position of
racial minorities with respect to their effective exer-
cise of the electoral franchise." Shaw, 113 S. Ct. at
2830 (quoting Beer v. U.S., 425 U.S. 130, 141, 96
S. Ct. 1357, 1364, 47 L. Ed.2d 629 (1976)). On its
face, creating one district out of seven when the
previous ratio was one district out of eight is not
retrogressive. Once again, the legislature appears to
have founded their belief that one district out of
seven is retrogressive completely on the Department
of Justice's previous unrelated rulings and the as-
sumption that a gerrymandered second district was
a requisite to pre-clearance. Without restating the
points made above, I find such an assumption, with-
out additional evidence, uncompelling.
In summary, I find post hoc reliance on past dis-
crimination and warrantless assertions that the Vot-
ing Rights Act mandated a second district, unper-
suasive. This is not to say that the State cannot rely
on those interests to justify future affirmative action.
Rather, I find that the basis forwarded by the State

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108a

to claim these interests as compelling is so slim that
they reek of the pretextual and the contrived.

2

NARROWLY TAILORED

Even if this panel were to overlook the dearth of
Croson-type findings in this case, Act 42 cannot be
termed narrowly tailored to fit the interests above.
Since I concur in the majority opinion, I find no rea-
son to reiterate their conclusions that Act 42 is not
narrowly tailored to fit any compelling interest.

III

CONCLUSION

I am gravely disturbed by the history of racial
discrimination in this country and State, but I be-
lieve that segregation of voters by race will achieve
nothing but more discrimination, more separation,
more animosity and would push Justice Harlan's and
Dr. King's dream for this nation ever further into
the future. One hundred and thirty years ago this
nation endured a bloody civil war to ensure freedom
and equality for all. That pledge, so dearly bought,
remains elusive, but the concept that people defined
only by race should receive separate representation
in the legislative bodies of our government mocks the
goals for which so many have suffered and died. In-
deed, in my opinion, it breathes life into the discred-
ited doctrine announced by the majority in Plessy,
forty years after the Supreme Court administered
what should have been its mortal wound.
The districts created under Act 42 are the crea-
tures of a racial gerrymander. The circumstantial

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109a

and direct evidence supported no other conclusion.
Therefore, strict scrutiny applies to Act 42. Under
that regime, the justifications offered by the State
for its race-based measures were not accompanied
by the requisite factual predicate. Additionally, the
measures taken were not narrowly tailored to fit the
interests, however baseless, advanced by the State.

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110a - 114a 

[TABLE /CHART OMITTED]
     
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115a

APPENDIX E

[Filed Jul. 26, 1994]
      
IN THE
UNITED STATES DISTRICT COURT FOR
WESTERN DISTRICT OF LOUISIANA
   SHREVEPORT DIVISION

Civil Action No. CV 92-1522S

RAY HAYS, EDWARD L. ADAMS,
SUSAN SHAW SINGLETON, AND
GARY STOKLEY, PLAINTIFFS

v.

EDWIN EDWARDS, in his official Capacity as Governor
of the State of Louisiana; SAMUEL B. NUNEZ, in
his official capacity as President of the Louisiana
State Senate; JOHN A. ALARIO, in his official ca-
pacity as Speaker of the House for the State of
Louisiana; W. Fox McKeithen, in his official ca-
pacity as Secretary of State for the State of Lou-
isiana; JERRY FOWLER, in his official capacity as
Commissioner of Elections for the State of Louisi-
ana; and certain UNIDENTIFIED STATE LEGISLA-
TORS, DEFENDANTS

UNITED STATES OF AMERICA,
DEFENDANT-INTERVENOR

NOTICE OF APPEAL

Notice is hereby given that the defendant-
intervenor, United States, hereby appeals to the

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116a

United States Supreme Court from the Judgment of
the United States District Court, Western District of
Louisiana (three-judge court ), entered on July 25,
1994.

This appeal is taken pursuant to 28 U.S.C. 1253.

Respectfully submitted,

DEVAL PATRICK
Assistant Attorney General

      /s/ Richard Jerome
       STEVEN H. ROSENBAUM
       REBECA J. WERTZ
       RICHARD B. JEROME
       STEVEN H. MULROY
       Attorneys, Voting Section
       Civil Rights Division
       Department of Justice
       P.O. BOX 66128
       Washington, D.C. 20035
       (202) 514-8696

MICHAEL D. SKINNER
United States Attorney

/s/ William J. Flanagan
WILLIAM J. FLANAGAN
Assistant U.S. Attorney
United States Courthouse
300 Fannin Street
Shreveport, Louisiana 71101

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117a

APPENDIX F

Section 2 of the Voting Rights Act of 1965, 42
U.S.C. 1973, provides:

(a) No voting qualification or prerequisite to
voting or standard, practice, or procedure shall
be imposed or applied by any State or political
subdivision in a manner which results in a denial
or abridgement of the right of any citizen of the
United States to vote on account of race or color,
or in contravention of the guarantees set forth
in section 1973b (f ) (2) of this title, as provided
in subsection (b) of this section.
(b) A violation of subsection (a) of this sec-
tion is established if, based on the totality of
circumstances, it is shown that the political proc-
esses leading to nomination or election in the
State or political subdivision are not equally open
to participation by members of a class of citizens
protected by subsection (a) of this section in that
its members have less opportunity than other
members of the electorate to participate in the
political process and to elect representatives of
their choice. The extent to which members of a
protected class have been elected to office in the
State or political subdivision is one circumstance
which may be considered: Provided, That noth-
ing in this section establishes a right to have
members of a protected class elected in numbers
equal to their proportion in the population.

Section 5 of the Voting Rights Act, 42 U.S.C.
1973c provides:

Whenever a State or political subdivision with
respect to which the prohibitions set forth in sec-
tion 1973b (a) of this title based upon determina-

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118a

tions made under the first sentence of section
1973b (b) of this title are in effect shall enact
or seek to administer any voting qualification or
prerequisite to voting, or standard, practice, or
procedure with respect to voting different from
that in force or effect on November 1, 1964, or
whenever a State or political subdivision with
respect to which the prohibitions set forth in
section 1973b ( a) of this title based upon deter-
minations made under the second sentence of
section 1973b (b) of this title are in effect shall
enact or seek to administer any voting qualifica-
tion or prerequisite to voting, or standard, prac-
tice, or procedure with respect to voting different
from that in force or effect on November 1,
1968, or whenever a State or political subdivision
with respect to which the prohibitions set forth
in section 1973b ( a) of this title based upon de-
terminations made under the third sentence of

section 1973b ( b ) of this title are in effect shall
enact or seek to administer any voting qualifica-
tion or prerequisite to voting, or standard, prac-
tice, or procedure with respect to voting differ-
ent from that in force or effect on November 1,
1972, such State or subdivision may institute an
action in the United States District Court for
the District of Columbia for a declaratory judg-
ment that such qualification, prerequisite, stand-
ard, practice, or procedure does not have the
purpose and will not have the effect of denying
or abridging the right to vote on account of race
or color, or in contravention of the guarantees
set forth in section 1973b (f ) (2) of this title,
and unless and until the court enters such judg-
ment no person shall be denied the right to vote

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119a

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 proceeding if the qualification, pre-
requisite, standard, practice, or procedure has
been submitted by the chief legal officer or other
appropriate official of such State or subdivision
to the Attorney General and the Attorney Gen-
eral has not interposed an objection within sixty
days after such submission, or upon good cause
shown, to facilitate an expedited approval within
sixty days after such submission, the Attorney
General has affirmatively indicated that such
objection will not be made. Neither an affirma-
tive indication by the Attorney General that no
objection will be made, nor the Attorney Gen-
eral's failure to object, nor a declaratory judg-
ment entered under this section shall bar a sub-
sequent action to enjoin enforcement of such
qualification, prerequisite, standard, practice, or
procedure. In the event the Attorney General
affirmatively indicates that no objection will be
made within the sixty-day period following re-
ceipt of a submission, the Attorney General may
reserve the right to reexamine the submission
if additional information comes to his attention
during the remainder of the sixty-day period
which would otherwise require objection in ac-
cordance with this section. Any action under
this section shall be heard and determined by a
court of three judges in accordance with the pro-
visions of section 2284 of title 28 and any appeal
shall lie to the Supreme Court.

 U. S. Government Printing Office; 1994    901157  86213