RENO v. BOSSIER PARISH SCHOOL BOARD

Transcript: 

CHIEF JUSTICE WILLIAM H. REHNQUIST: We'll hear argument now in Number 94-1455, Janet Reno v. Bossier Parish School Board, and George Price v. Bossier Parish School Board.

How do you pronounce the name of this parish, do you know, Mr. Patrick?

MR. DEVAL L. PATRICK: It--we--it is usually referred to and has been in the litigation as Bossier Parish, but in Louisiana it's Bossier.

CHIEF JUSTICE REHNQUIST: Bossier, okay.

MR. PATRICK: And if you say Bossier--if you say Bossier in the course of this I'll probably be confused, so if you say Bossier it would be helpful.

CHIEF JUSTICE REHNQUIST: You would think in French it would be Bossier rather than Bossier.

MR. PATRICK: Bossier, oui.

CHIEF JUSTICE REHNQUIST: Very well, Mr. Patrick--
(Laughter.)

CHIEF JUSTICE REHNQUIST: --you may proceed, whatever the name of the parish. (Laughter.)

JUSTICE ANTONIN SCALIA: Allez-y.

MR. PATRICK: Ah, oui. Allons.

Thank you, Mr. Chief Justice, and may it please the Court:

The Bossier Parish School Board adopted the redistricting plan at issue in this case with a discriminatory purpose, plain and simple, and in finding otherwise, the district court ignored evidence that this Court has required fact-finders to consider since its decision in the Arlington Heights case, evidence of racial block voting and of the recent history of discrimination in voting and otherwise in Bossier Parish, evidence that was undisputed, indeed was stipulated below.

CHIEF JUSTICE REHNQUIST: Mr. Patrick, when you say the district court ignored the evidence, you don't mean that it excluded it as a matter of admission of evidence, but just that it refused to take it into consideration in making its conclusion?

MR. PATRICK: Frankly, Mr. Chief Justice, it's very hard to say. There was not a--an evidentiary ruling in the classic sense, in--because all of the evidence came into the--into the record by way of stipulation without objection by the parties, but what is plain is that the court did not even mention the Arlington Heights case or the Arlington Heights standards, and in one point--one point in the decision went so far as to say that it would not expressly consider the evidence of the history of discrimination in the school board, and when you cons--excuse me, Mr.--

CHIEF JUSTICE REHNQUIST: If it came in by stipulation, or--it's not an evidentiary point, really, it's an argument that the court's refusal to take it into consideration makes its findings clearly erroneous or wrong as a matter of law, I--

MR. PATRICK: Well, as a matter of law in the first instance, Your Honor, because under Arlington Heights, which requires that in making a determination of purposeful discrimination that the court take into account the totality of the circumstances, and where Rogers v. Lodge has said that this specific kind of evidence is important to a determination of purposeful discrimination, we argue in the first instance that there was a violation of--that there is a legal error and, indeed, when you take--

JUSTICE SCALIA: How do we know that they didn't take that into account--

MR. PATRICK: Because they did not, in the first instance, even cite the Arlington Heights precedent.

They did not indicate what standard was being used in the--if you look at the analysis--

JUSTICE SCALIA: I'm talking about particular evidence.

What particular evidence do you--do you maintain they did not take account of--

MR. PATRICK: It's--

JUSTICE SCALIA: --and how do you know that they didn't take account of it?

MR. PATRICK: There are two kinds of evidence that bends to the question, Your Honor, about how we know they didn't take account of it.

First of all, the evidence of racial bloc voting. This is a--this is acommunity where the parties have stipulated that 80 percent of the voters in the parish will not vote for a candidate of a race different than they.

That is stipulated at 122a of the record.

JUSTICE SCALIA: But didn't the--I mean, the response that's made by the appellee here is that the court-- that all that that would prove is that therefore, since there was bloc voting, it would--it would advantage the black voters if there were a majority black districting, but didn't the court assume that to be true?

MR. PATRICK: No, Your Honor. I don't think--

JUSTICE SCALIA: It didn't assume that--I thought it--

MR. PATRICK: I--excuse me. Did you--I'm sorry.

JUSTICE SCALIA: Yes. I thought that the court's discussion just takes as a given that it--that it would be to the benefit of the blacks if they had a majority-minority district.

MR. PATRICK: I'm not sure that we can fairly assume that from the district court's opinion. What the district court said is that evidence of this kind is relevant to Section 2, and there's no question about that.

But we contend, and Arlington Heights supports us, that it is independently relevant to the question of purposeful discrimination.

There is no evidence, in fact, on this record, which is relevant to the one question, the Section 2 question, but not relevant to the purpose determination in the case and, indeed, the court expressly refused in its opinion at 34a, Footnote 18, the evidence that the board itself was in violation of the Federal desegregation order with respect to the schools, so that when you take into account the evidence that was excluded and I--and the--both the racial bloc voting and the history of discrimination, all of which is stipulated and uncontested below, and you think--and you consider that in light of the other evidence that was considered, that the plan--

CHIEF JUSTICE REHNQUIST: Well, the evidence wasn't so much excluded as not considered--

MR. PATRICK: I think that's--I think that's fair to say.

CHIEF JUSTICE REHNQUIST: --in the technical sense here.

MR. PATRICK: When I think of excluded as a trial lawyer I think of a--

CHIEF JUSTICE REHNQUIST: Evidentiary rule, yes.

MR. PATRICK: Of a ruling on evidence--that's right, and because all of the stipulations came into the record without objection on relevance or any other--any other grounds, I think--I think Your Honor is right.

JUSTICE SANDRA DAY O?CONNOR: Has this Court applied Arlington Heights in a Section 5 determination, do you know?

MR. PATRICK: What this Court has done in--

JUSTICE O?CONNOR: I thought we had not, but what do you rely on for that?

MR. PATRICK: I rely on Rogers v. Lodge, which is a--which, as you know, is a case where the Court has said that the Arlington Heights factors are probative of the judgment about whether there is purposeful discrimination under the Voting Rights Act.

I think what is key in your analysis and consideration of this case is that you bear in mind all of the facts, as Arlington Heights requires, all of the facts and circumstances known to the board at the time, and ask yourself, does it add up?

This is a plan, you understand, that is against the school board's own interests, both its districting and its governance interests.

This is a school board that is typically concerned about distributing the schools among the school districts, and yet adopted a plan that has some school districts with no schools in it at all.

That is stipulated at 112a and 73a of the record.

It--

JUSTICE RUTH BADER GINSBURG: Mr. Patrick, do--would you clarify for me what you think the legal standard is before we go much further into the argument?

That is, we know that the effect, what they call the effect prong of Section 5 is about retrogression.

MR. PATRICK: Yes.

JUSTICE GINSBURG: What does the pur--what does the purpose--what does it mean? What does the statute mean when it says, shall not have the purpose of denying the right to vote on account of race?

MR. PATRICK: We take that to mean that the factors--that the school board has to show a nondiscriminatory purpose within the meaning of Arlington Heights by taking into account the totality of the circumstances, looking at the actions and inactions in this case of the--of the school board, in reaching the conclusion they did, all the facts and circumstances known to the board at the time.

JUSTICE ANTHONY KENNEDY: And that it has the burden of proof on that point.

MR. PATRICK: That's right.

I was saying about the--about the plan that they did adopt that this is a plan which it is conceded does not respect school attendance zones. That's also stipulated in this record, in 112a.

It pits incumbents against each other. The way the district court put it was that it wreaks havoc on incumbents--incumbency. That's 28a in the--in the court's opinion.

About half of the parish was placed in one district. That's also in 120a, and in other places it fractures neighborhoods, 110a to 111a. These are all stipulated facts.

JUSTICE DAVID H. SOUTER: Mr. Patrick, would it have been open or was it open at the district court to accept all of this and say, look, all of this evidence does point in the direction of intent to discriminate, but there's a piece of counterevidence here and that is, the moment at which the board seemed to turn around and suddenly embrace the police district plan, which it did not originally want, was the moment at which it became apparent that there was going to be a fight about this.

It was the moment following the NAACP's submission, I think, of a couple of plans.

And it is findable on this record that what the--what the board wanted to do was to avoid 7 years of litigation, and basically the board said, look, we'll take peace, even though we don't like the way we're getting it. We'll take peace with all of these defects.

If that was the court's reasoning process, would that have been clearly erroneous, or, indeed, was that clearly erroneous?

MR. PATRICK: It was clearly erroneous. It's not entirely clear that that was the court's--

JUSTICE SOUTER: I realize that.

MR. PATRICK: --the court's reasoning. What the court said was that it might be a legitimate reason to seek easy preclearance.

What Your Honor's question implies is that the reason was that they wanted to avoid a controversy with the--with the black citizens, but--

JUSTICE SOUTER: They wanted to--well, they wanted to avoid litigation, and they could see it coming.

MR. PATRICK: If that?s what it--if that's what it was. I do think Your Honor is right that the process and the sequence of events leading up to the decision is extremely telling and, indeed, Arlington Heights requires that that be considered as well.

This is a process that was undertaken more than 3 years before they needed the plan, and they--

JUSTICE GINSBURG: So if we didn't have the process and the sequence, we just had a lazy school board that said, oh, the police jury got this plan, and it was precleared, so we'll take it with all its faults.

If it hadn't been that, would this--would it have been okay?

MR. PATRICK: I think it would be a very different--a very different case.

Clearly, the--that's not the case we have here, because we have a board that expected to draw a plan different from the police jury plan at the outset.

That is stipulated, too, as well in the record, and, indeed, we have a--we have a board that had a different plan from the police jury for a decade or more before they were--they were faced with the redistricting considerations.

This is a board that hired a cartographer with the expectation he would spend 200--250 hours drawing a plan different from the police jury and went about that at a leisurely pace for over a year.

Everything changed when the black citizens came forward and asked that they be fairly represented in the districting--

JUSTICE STEPHEN G. BREYER: Are you--

MR. PATRICK: --process.

JUSTICE BREYER: --are you certain that the district court here meant to exclude evidence that he called relevant to the Section 2, meant to--was he saying, I'm not even going to consider that when I think about whether Section 5 is violated, or is he saying, you can't build a Section 5 case out of only that?

MR. PATRICK: Well, we're certainly not contending that you can build a Section 5 out of only--a Section 5 case out of only that, but frankly there is no way to understand the district court's opinion by saying that it won't consider for Section 5 purposes evidence that's relevant to Section 2 on a record where all of the evidence is relevant both to Section 2 and Section 5, as other than--meaning the purpose prong of Section 5 as other than--

JUSTICE KENNEDY: What is the evidence--and this was what Justice Scalia asked at the very first, and--

MR. PATRICK: Yes.

JUSTICE KENNEDY: --I wasn't sure that you completed your answer, and it's relevant to what you're discussing now with Justice Breyer.

What is the element--evidence, other than bloc voting, that should have been considered and that was not?

MR. PATRICK: That no black person had ever been elected to the school board. That's stipulated at 115a.

That there had never been more than one black member of the police jury. That's in the joint appendix at 55 to 60.

That blacks had rarely been elected anywhere in the parish at the time. That's stipulated at 127a--

JUSTICE KENNEDY: Those are all subsidiary elements of the bloc voting.

MR. PATRICK: That's right, and then the--in terms of the history of discrimination, at the time of the decision this board was in violation of its duty to redress school segregation under Brown.

That was noted by the district court, to be sure, in Footnote 2 of--

JUSTICE KENNEDY: All right. So again, most of these things are in the record.

It's just not clear that the--

MR. PATRICK: Well, they're all--

JUSTICE KENNEDY: --district court weighed them in a Section 2 context.

MR. PATRICK: They're--you?re right--

JUSTICE KENNEDY: Is that--Is that a fair statement?

MR. PATRICK: You're right that they're all in the record, Justice Kennedy, there's no question about that.

What is apparent, however, is that the district court was not taking them into account as is required by Arlington Heights in making its judgment about purposeful discrimination.

And with respect to the history of discrimination, remember, this is a school board that stipulated on the record that segregation has increased since the court--since they've been under Federal court order and, indeed, that they were assigning teachers to schools on racial grounds.

This is a--the district court said expressly in Footnote 18 of its opinion that it would not consider evidence that the board itself was in violation of its--of its duties under the Federal court order to desegregate the schools.

That's the evidence that was dis--that was not considered.

That is the evidence that should have been considered under the Arlington Heights standard, and if you add to that, and I want to come back to the sequence issues in just a moment, but if you add to that that this is a school board that came before the United States District Court, to say nothing of the Attorney General, and urged false reasons--false reasons for why it was--why it was--why it made the decision it did,

I sub--we submit that a jurisdiction with a clean, nondiscriminatory motive does not come to the United States District Court and urge false reasons, and--

JUSTICE SCALIA: Mr. Patrick, here's what Footnote 18 says. It seems to me entirely reasonable.

Defendant mentions the continuing duty of the--

CHIEF JUSTICE REHNQUIST: Where are you reading?

JUSTICE SCALIA: It's on page 34a of the juris--of the juris--of the appendix to the jurisdictional statement.

Defendant mentions the continuing duty of the school board to, quote, "remedy any remaining vestiges of the dual school system under the order in Lemon v. Bossier Parish School Board, citing in particular the school board's failure to maintain a biracial committee. We fail to see how this can be in any way related to the school board's purpose in adopting the police jury plan."

I don't--that seems to me quite reasonable.

MR. PATRICK: Well, Your Honor, it--

JUSTICE SCALIA: The court considered it, but in its judgment did not find it to be related. Now--

MR. PATRICK: Well, you--

JUSTICE SCALIA: --must the court find that it proves what you want it to prove in order to comply with the law?

It seems to me the court need only consider it, and then it's a matter of judgment whether it shows the animus or not.

MR. PATRICK: What weight it's given is a matter of judgment, guided by the--guided by the precedents of this Court, but whether it relates has been resolved by this Court.

That's what Arlington Heights is about. Arlington Heights says--

JUSTICE SCALIA: I take it, can be in any way related, means whether it has anything to do with as a factual matter.

MR. PATRICK: That's right, and Arlington Heights says that it does have something to do with the determination about whether there was or was not purposeful discrimination.

Legislative or administrative history at 268 of the Arlington Heights opinion was specifically noted and, indeed, the Rogers v. Lodge case states that that evidence, evidence of this very kind, bears heavily on the issue of purposeful discrimination, is, indeed, important evidence of purposeful exclusion.

I'd like to reserve the balance of my time for rebuttal, if I may.

CHIEF JUSTICE REHNQUIST: Very well, Mr. Patrick.

MR. PATRICK: Thank you.

CHIEF JUSTICE REHNQUIST: Mr. Borkowski, we'll hear from you.

MR. JOHN W. BORKOWSKI: Mr. Chief Justice, and may it please the Court:

I'd like to start with the question Justice Scalia just asked about Footnote 18, because that shows very clearly, I think, what has been going on in Bossier Parish.

The evidence that the court didn't look at that dealt with the board's exclusion, admitted exclusion of blacks from educational policy issues.

The court had ordered that a committee be established to allow blacks for--to have a opportunity for input into school board issues.

This is the kind of nonresponsiveness, the kind of exclusion that is exactly what happened in the redistricting process.

CHIEF JUSTICE REHNQUIST: Well, if we're--if you're going to get into the sort of detail that you say Arlington Heights requires us to get into,

I would think that it would be important to know whether the school board's failure to maintain a biracial committee was the result of hostility to the idea, neglect, maybe unable to have the funds, maybe just got lost in the shuffle.

In other words, just saying it failed to maintain a biracial committee, if we're going to get into the sort of textual detail that Arlington Heights says, you have to know more about it than that.

MR. BORKOWSKI: That's absolutely right, and the facts on this record are that the board admitted in the direct testimonies of Mr. Musgrove and Mr. Myrick, the two board members who testified, that when this committee started getting into educational policy issues, they disbanded, because they did not want this committee having a role in it--

CHIEF JUSTICE REHNQUIST: Well, was the committee set up to deal with educational policy issues?

MR. BORKOWSKI: Yes, it was. The consent decree established it for that purpose, and the representations to the contrary, as we point out in our reply brief, in the appellee's brief, are simply false, and the record bears that out. The--

JUSTICE O?CONNOR: In your--

JUSTICE KENNEDY: And your--and your position is that all these matters and many others like them must become a part of a Section 5 case and must be resolved under Section 2 standards before there can be--the preclearance decision can be made?

MR. BORKOWSKI: These facts only become relevant in a purpose determination.

Had the board come forward and not--and been able to show legitimate reasons, and there were not these--this--not this pattern there, this evidence wouldn't come in.

This is an unusual case. In this purpose determination these factors have to be considered.

Justice O'Connor--

JUSTICE KENNEDY: Well, but I thought there were two points.

One is that it may be relevant to purpose. The other is that there must be a specific ruling on whether or not there is or is not a Section 2 violation.

Don't you have--don't you make both arguments here?

MR. BORKOWSKI: I'm focusing here on the--on the purpose argument only, and Justice O'Connor asked whether the Arlington Heights standard was the standard for Section 5, and in Pleasant Grove even the dissenters, who did not find discriminatory purpose, cited Arlington Heights as the proper standard to apply, and decisions that this Court has affirmed--Busbee v. Smith and Port Arthur--also applied Arlington Heights, and it?s the--it's the constitutional standard, and--so, I'm just talking at this point about the purpose argument.

All of these factors under Arlington Heights are relevant to showing discriminatory purpose, and the court erred in excluding it.

As Justice Scalia asked, how do we know that the--that the court did this?

Well, the court said we will not permit Section 2 evidence to prove discriminatory dis--

CHIEF JUSTICE REHNQUIST: Where are you reading from, Mr. Borkowski?

MR. BORKOWSKI: 24a, in the appendix to the jurisdictional statement. On 23a the court said we must--it's argued that we must consider--

CHIEF JUSTICE REHNQUIST: Whereabouts on 23a, so we can foll--we can follow you when you read.

MR. BORKOWSKI: On 23a and 24a, the court at three different times says that it's not going to consider this evidence.

CHIEF JUSTICE REHNQUIST: Well, point out at least one of them--

MR. BORKOWSKI: 23a, at the beginning of the first paragraph, we--it's argued that we must still consider evidence of a Section 2 violation as evidence of a discriminatory purpose under Section 5. We again disagree.

At the bottom of that paragraph, and Miller forecloses the permitting of Section 2 evidence in a Section 5 case, and then, at the end of that section, on 24a, we will not permit Section 2 evidence to prove discriminatory purpose under Section 5.

Judge Kessler, in dissent, in Footnote 4--

JUSTICE SCALIA: Well, excuse me. I took that to mean--evidence of a violation, I took that to mean evidence that a violation existed, rather than evidence which could be used to show a violation for the one could be used to show a violation for the other.

I took that to mean, we reject the notion that you can come in and say, the district is in violation of Section 2, and you quarrel with that statement, too. You would allow a Section 2 violation to be--to be brought in.

MR. BORKOWSKI: Yes, al--

JUSTICE SCALIA: But what we're discussing here is whether evidence that would go to show a violation may be brought in, and I don't see this as contradicting that.

MR. BORKOWSKI: Well, there are--there are three different statements, and one of the statements that--the statement you referred to could be interpreted that way, but Judge Kessler in dissent says to the--says in Footnote 4 on page 42a that the majority is not considering this evidence, and the majority never says it is.

If you look at the evidence the majority analyzes, it only analyzes two types of evidence, and doesn't look at all sorts of evidence.

You asked what was excluded. The fact that the board's plan fractures black neighborhoods, the same neighborhoods that the school board members consciously kept together in drawing 75-percent black school attendance boundaries were fractured by this plan.

That's a--those are stipulated, unrebutted facts on this record that appear nowhere in the majority's discussion of discriminatory intent, because they would also be relevant to Section 2.

There are communities of interest that our clients have and other black voters in Bossier Parish have that are established by the testimony. That is nowhere discussed in the majority's opinion.

The--what this Court has called the inexorable zero, the fact that no blacks have ever been elected to the school board, is nowhere discussed in the analysis of the board's purpose, and we think these--this kind of evidence cannot logically be excluded just because it's also relevant to a Section 2--

CHIEF JUSTICE REHNQUIST: Well, when you say excluded, you mean the court may not fail to consider it.

MR. BORKOWSKI: Yes. I'm sorry, I misspoke there, but all of this evidence is stipulated fact, is testimony admitted into the record before this Court. It's just not considered in the majority opinion.

JUSTICE SCALIA: Did--isn't mentioned in the majority opinion. And it--suppose the court considered it but didn't mention it in its opinion.

What--is it--is the judgment invalid because it was not mentioned in the opinion?

MR. BORKOWSKI: No.

JUSTICE SCALIA: I mean, there are--there are two different points.

MR. BORKOWSKI: Right.

JUSTICE SCALIA: Number 1 is that the court didn't even consider it, and if I agree with your interpretation of the language we were just discussing, then you would have established that the court didn't even consider it, but arguably the court could have considered it but not have thought it germane enough or significant enough to be mentioned in its opinion. Would that also be a violation?

MR. BORKOWSKI: I don't believe it would be a violation per se simply not to mention evidence that is considered.

The point here is that if the--if the court actually did consider this evidence, which in every category of evidence in Arlington Heights shows discriminatory purpose, it could not have reached the conclusion that it reached.

As Judge Kessler said in dissent, this is--the evidence is far from being equally convincing on either side.

If you look at all of the stipulated and unrebutted evidence, this is not a close case.

The problem here with the majority's approach, and the problem in aff--in--if this Court would affirm the majority's decision, is that it would effectively eviscerate the purpose prong of Section 5.

It would mean that the only kind of discriminatory purpose that would be reachable under Section 5 would be publicly admitted or covertly tape recorded discriminatory purpose, because every other category of evidence that this Court has said in Arlington Heights requires a sensitive inquiry is here.

JUSTICE GINSBURG: So what would you say is the instruction, on your view of this case, that the district court should be given were we to remand?

We'd say, district court, you did wrong, and this is what you should do.

MR. BORKOWSKI: I believe that on this record the Court should not--should simply remand with instructions to--that preclearance be denied, because the record here overwhelmingly establishes discriminatory purpose.

There's no way, unless--

JUSTICE GINSBURG: But if we don?t--if we don't agree with you on that and we think that the first shot, anyway, should be--or the second--done by the district court, what then?

MR. BORKOWSKI: Then I would say that you would have to remand with instructions to apply Arlington Heights and to look at all of the evidence that this Court, in the voting context, in Section 5 cases, in school cases, in all cases where intent is an issue, to look at that evidence in all of those categories, keeping in mind that the burden of proof is on the school board here.

There was also evidence that the court considered--that the court offered its own explanations for, which we cite in our briefs as another legal error.

The only evidence, contemporaneous, direct evidence of the board's intent are admissions that tend to show discriminatory purpose.

There are no contemporaneous minutes offering nonracial reasons for why the board did what it did. There's no legislative history indicating nonracial reasons.

There are statements that some board members are hostile to black--

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Borkowski.
Mr. Carvin, we'll hear from you.

MR. MICHAEL A. CARVIN: Mr. Chief Justice, and may it please the Court:

Let me begin by focusing on the standard that the district court actually did apply in assessing the evidence.

Appellants would have this Court believe that the district court had in front of it a body of evidence that it considered probative to the question of purpose, and it sifted through that evidence and threw out all the evidence that it also thought was relevant to Section 2, but of course the district court did not say that, and did not do that.

JUSTICE SOUTER: Well, my difficulty--

MR. CARVIN: What the--excuse me.

JUSTICE SOUTER: My--I'm sorry. My difficulty with that argument is--goes to a statement which the court made back on 23a, which we were referring to a moment ago, in the appendix. Do you have that handy?

MR. CARVIN: Yes, I do.

JUSTICE SOUTER: Okay.

I will agree that some of the court's statement about what it was doing with evidence perhaps were ambiguous and lent themselves to your interpretation, but at the bottom of the page the court quotes from--

CHIEF JUSTICE REHNQUIST: 23a?

JUSTICE SOUTER: Yes, page 23a. The court quotes from a panel opinion of a different panel but at the same court, and this is what it says:

?As the panel noted, the court in Miller reaffirmed that the purpose prong of Section 5 must be analyzed within the context of Section 5's purpose, which has always been to ensure that no voting procedure changes would be made that would lead to a retrogression in the position of racial minorities.?

Now, it seems to me that the court is there making it clear that the only purpose evidence it would consider was evidence of purpose to effect a retrogression, as opposed to a broader purpose to discriminate. Isn't that fairly clear?

MR. CARVIN: No, it's not, Your Honor.

JUSTICE SOUTER: Then explain that.

MR. CARVIN: First of all, the case he is citing from did not--was making the point that in analyzing purpose you must look at the limited purpose of Section 5 and not get into these additional Section 2 issues that the Justice Department had urged upon the court in Texas and was also urging upon the court here.

But more directly to answer your question, of course, it was stipulated in this case that there was no retrogressive effect of the plan, so under your understanding of the district court opinion, the district court would have only been looking at, at did they have a purpose to effect a retrogression?

This would have been a very short opinion indeed if that had been its analysis.

It did not look at the purpose of the new plan compared to the status quo ante. It looked at the purpose of the new plan as compared to the maximization alternative proposed by the NAACP.

The plan adopted had no black majority districts. The NAACP plan had two black majority districts.

The district court spent its entire opinion analyzing, did the board do that--its decision because of its negative impact on minority voters or in spite of it?

Did it have legitimate nondiscriminatory motives for rejecting the NAACP plan, or was it motivated by a racial reason? So--

JUSTICE SOUTER: Then why did it quote what I just read?

MR. CARVIN: Again, becau--

JUSTICE SOUTER: I mean, it doesn't--the quotation doesn't seem to make any sense on your theory of the court's view of purpose.

MR. CARVIN: No, but in isolation it may not, but the context is this, Your Honor. You have five Section 5 courts who were trying to analyze, why did a submitting jurisdiction make a change?

What was the purpose behind that change? And they are examining all circumstantial and direct evidence relating to the change.

The Justice Department in all five of those cases and here says, don't just look at what was motivating the board at the time.

We also want you to consider all the--of this additional Section 2 evidence, as they're arguing here. We want you to consider racial bloc voting in prior elections.

And the district courts in Section 5 cases have consistently responded to the Justice Department, Section 5 has a much more limited purpose.

JUSTICE SOUTER: Well, what is--what is your position here? Is it your position here that the only purpose that is relevant under Section 5 is purpose to cause retrogression, as distinct from purpose to discriminate by effecting a purposeful dilution?

MR. CARVIN: Oh, no. No, not at all. I think that decision, the Court's decision in Richmond and Pleasant Grove has already decided that issue and, indeed, since it was stipulated that it didn't even have the effect of retrogression, you can obviously assume they didn't have the purpose to retrogress, and this would have been a one-paragraph opinion.

JUSTICE SOUTER: But there could have been--but there could have been a purpose to dilute.

MR. CARVIN: Yes. That's the whole point.

Even though you're not making things worse, we can conceive of circumstances where there's a fully reasonable alternative put in front of you that preserves black concentrations pursuant to traditional districting principles, but nonetheless, because you are a racist school board you say, no, we're not going to do that.

JUSTICE BREYER: So if everybody agrees on that, if everybody agrees that the purpose is really the purpose to cause discrimination, not just the purpose not to retrogress, if everybody agrees at least sometimes a lot of this Section 2 evidence in this case would be relevant, if not dispositive--not necessarily dispositive but relevant to showing that, and all we're arguing about is how ambiguous the district court's opinion is, why don't we just send it back to the district court to work it out and say, be clear, take it into account and do it?

MR. CARVIN: There is no dispute as to what the district court did. Appellants have now changed their opinion as to the legal standard applying.

Let me proceed in two steps. A district court, in analyzing whether or not two nonretrogressive plans reflect discriminatory purposes, compares the maximizing alternative to the plan adopted and again asks, do we have a legitimate, nondiscriminatory purpose?

There's an impact here. One's got black majority districts, one does not.

Now, what the appellants are asking district courts to do is, after they've figured out whether that impact is motivated by a discriminating purpose, go ahead and analyze racial bloc voting.

Well, what would that show you? All racial bloc voting is relevant to is whether the black majority districts have an impact.

If you have no racial bloc voting, if you have no history of discrimination that currently excludes blacks, then there's no difference, as this Court noted in Johnson v. DeGrandy, between white majority districts and black majority districts. Blacks can be elected in both districts.

So if the district court had gone on this detour that appellants insist they do--it do, it would have--and agreed with them entirely, it would have returned to precisely the place it started, which is, yes, the NAACP plan, the failure to adopt it has an impact, but the relevant question under Section 5 is whether that was motivated by a discriminatory purpose.

You see, all of the confusion comes here is because they keep quoting cases where plaintiffs, minority plaintiffs have the burden and, of course, in Section 5 the burdens are reversed.

So yes, in Rogers v. Lodge and Gingles and all of those cases, plaintiffs must prove racial bloc voting.

They must prove that you can create a compact black majority district, and then they must show that the failure to do so has an effect, and as Justice Brennan noted quite clearly in Gingles, it only has an effect if there is racial bloc voting.

So that is plaintiff's burden and, if they had the burden in the court below, they would have had to show that, but we had the burden, and we were making a much simpler argument.

We were saying, fine, the plan has an impact, but that's not the reason it did it--didn't--took the police jury plan over the NAACP plan.

We took the police jury plan over the NAACP plan because the NAACP plan clearly and irretrievably violated State law.

JUSTICE SCALIA: But this--but this other evidence not only shows impact, it also shows what you might call disposition.

Doesn't the evidence of a violation on racial grounds of Section 2 show that you're talking about people here who are likely to discriminate on the basis of race--

MR. CARVIN: Oh, I didn?t--

JUSTICE SCALIA: --and isn't that relevant to the Section 5 determination?

MR. CARVIN: Well,Your Honor, again, as appellants have correctly pointed out, the board was aware of the impact of this plan.

I mean, they can count. They knew that the NAACP plan had two black majority districts and their plan had none.

Nobody's disputing that they were aware of the impact of this plan.

Now--

JUSTICE SOUTER: No, but the question goes to--

JUSTICE SCALIA: I'm not talking about awareness.

MR. CARVIN: Yes, but--okay. Now--

JUSTICE SCALIA: I?m talking about--I'm talking about intent.

MR. CARVIN: Right.

JUSTICE SCALIA: I'm talking about disposition.

MR. CARVIN: Right.

JUSTICE SCALIA: I'm talking about the character of the people who made the decision.

MR. CARVIN: And how would that inquiry be aided by looking at regression analysis of racial elections that was done three years after the board's decision?

They brought in an expert to go through and produce this evidence of racial bloc voting which, by the way, he failed to produce and, of course, this plan has elected two black people--

JUSTICE SOUTER: Well, I suppose the answer is that people haven't changed that much over the course of three years.

MR. CARVIN: Well, I think--

JUSTICE SOUTER: Do you--do you dispute the fact that evidence of bloc voting, which, in fact, is evidence which discloses an intent, is irrelevant--

MR. CARVIN: No.

JUSTICE SOUTER: --to evidence of intent under Section 5?

MR. CARVIN: No. Again, it is not irrelevant, particularly when plaintiffs have a burden, but it adds nothing to what--

JUSTICE SOUTER: You're saying it was just cumulative, is that it?

MR. CARVIN: It was superfluous and cumulative because racial bloc voting only tells you, again, whether black majority districts have an impact.

JUSTICE SOUTER: So--if I may--if I may just--

MR. CARVIN: Sure.

JUSTICE SOUTER: --get clear on this, it would have been perfectly proper for the court to say, we will--we will consider this evidence for the Section 5 purpose issue. That would have been legally correct.

MR. CARVIN: Oh, sure, and remember the issue here is whether the court committed legal error--

JUSTICE SOUTER: Did the court ever say that the reason it was keeping it out was that it was superfluous and cumulative?

MR. CARVIN: It said, I am considering evidence that is relevant to purpose. No, Your Honor, it didn't say what its implicit assumptions were, just like this Court in Miller.

This Court in Miller analyzed a Section 5 purpose case, and it compared the legitimate nondiscriminatory reasons for adopting the plan with less majority black districts than the plan with more majority black districts.

The Justice Department in that brief urged upon them to--this Court to independently consider the stark evidence of racial bloc voting in Georgia and the history of discrimination and all those sorts of things.

Now, the Court didn't do that because, like the court below, it assumed that the--

JUSTICE SOUTER: Well--

MR. CARVIN: --the absence of the majority districts had an impact.

JUSTICE SOUTER: Mr. Carvin, I just don't think the court's opinion on page 23a is consistent with what you're saying.

MR. CARVIN: Well--

JUSTICE SOUTER: Go up to the top of that first full paragraph.

MR. CARVIN: Right.

JUSTICE SOUTER: The court summarizes the argument that it's responding to.

?Defendant argues that even if we decide that a Section 2 action cannot be brought in a Section 5 preclearance proceeding, we must still consider evidence of a Section 2 violation as evidence of discriminatory purpose under Section 5.

Again, we disagree. As we have said, the statutory language sets forth differing standards for the two sections.?

Isn't that, when read in relation to the quote that I started from, the bloc vote from the earlier opinion, isn't that a pretty clear indication that what the court was finding was, or assuming was, not that this evidence was cumulative or superfluous, but that it was irrelevant?

MR. CARVIN: Well, it--

JUSTICE SOUTER: And you have conceded that it was relevant.

MR. CARVIN: Well--well, but in that technical sense, as this Court has already pointed out, the court didn't rule it was irrelevant. It admitted it into evidence, and--

JUSTICE SOUTER: Well, it says the two sections have different purposes--

MR. CARVIN: Your Honor--

JUSTICE SOUTER: --and the argument was that you must consider it--

MR. CARVIN: Yes.

JUSTICE SOUTER: --the evidence that might go to Section 2 for Section 5 purpose, and the court says we disagree.

MR. CARVIN: Right. You must still consider evidence of a Section 2 violation.

Now, that means that Section 5 courts trying to figure out the purpose of this discrete change must engage in the amorphous and very complicated analysis of whether-- not, the change is purposefully discriminatory, but whether the underlying electoral system has the result of discriminating.

It therefore must analyze racial bloc--

JUSTICE SOUTER: But that is not what the court said.

MR. CARVIN: Yes--

JUSTICE SOUTER: The court says, these two sections have different purposes.

CHIEF JUSTICE REHNQUIST: Let Justice Souter finish his question--

MR. CARVIN: Sorry.

CHIEF JUSTICE REHNQUIST: --before you answer, Mr. Carvin.

JUSTICE SOUTER: It says, these two sections have different purposes.

MR. CARVIN: And, of course, they do.

JUSTICE SOUTER: They do, but they also have a purpose in common, don't they--

MR. CARVIN: Sure.

JUSTICE SOUTER: --because intent to cause dilution is relevant under Section 2 and under Section 5.

MR. CARVIN: Absolutely, Your Honor.

JUSTICE SOUTER: And doesn't the--doesn't the court's explanation indicate that that's not what the court thought?

MR. CARVIN: If the court had said, we are not going to consider evidence that is relevant to both Section 2 and Section 5, you would be correct.

But what the court said was, we'll consider evidence that's relevant to Section 5 but not relevant only to a Section 2 violation.

How do the two statutes differ? One has a purpose standard, and one has a result standard.

Some evidence of section--

JUSTICE SOUTER: No, they both have purpose standards.

MR. CARVIN: Yes, they both have that in common, but how do they differ?

They differ because Section 2 can be violated wholly without regard to purpose and, therefore, the evidence for a Section 2 violation has been consciously constructed to focus the court's inquiry not on the purpose for adopting this plan but on the results of the system, racial bloc voting and those sorts of things, and it was that subset of evidence that the court clearly said was the only evidence it wasn't--

JUSTICE SOUTER: But on your own argument, as I understand it, there was an error there, because evidence of racial bloc voting would indeed go to purpose, wouldn't it?

MR. CARVIN: The error has--no.

JUSTICE SOUTER: Didn't--I thought you--I thought you agreed that that was so--

MR. CARVIN: No.

JUSTICE SOUTER: --and that the reason it was kept out was cumulativeness.

MR. CARVIN: The argument was, in that court and this Court--

JUSTICE SOUTER: What is--what is your position? Do you--do you think--you agree, don't you--

MR. CARVIN: I--

JUSTICE SOUTER: --that evidence of racial bloc voting would be relevant evidence under the purpose prong of Section 5, don't you?

MR. CARVIN: It would--it would be relevant but superfluous. Therefore, what Section 5 courts should do is not exclude it as a matter of law, but pay attention to it only if it furthers the inquiry.

What appellants are asking this Court to do is to rule as a matter of law that they must always consider racial bloc voting, and my question again is, how does that further the analysis?

You have just gone through a comparison of a plan that you assume has--is better for black voters compared to one that you have assumed is not good for black voters, and you've found it is legal because it's not motivated by a discriminatory purpose.

Now, you could spend 20 or so pages discussing the extraordinarily voluminous ev--voluminous evidence showing that, indeed, plans with black majority districts are better for black voters, but I don't think that this Court as a matter of law should rule that Section 5 courts must engage in that sort of thing.

JUSTICE O?CONNOR: Well, what do we do if we're truly, at the end of the day, uncertain what it is the district court really excluded--

MR. CARVIN: I--

JUSTICE O?CONNOR: --from consideration, if it's unclear to us?

MR. CARVIN: I think--

JUSTICE O?CONNOR: Don't we have to remand?

MR. CARVIN: Your Honor, I had understood this Court's rule to be that ambiguities would be resolved in favor of district courts. Rogers v. Lodge is a perfect example of that.

Rogers v. Lodge did not apply this Court's subsequent decision in Mobile v. Bolden, but the Court did a very searching analysis and said, could the district court have applied the purpose test under Mobile v. Bolden, and therefore it gave it the benefit of the doubt.

I would submit, however, in the context, and given the language, that this Court did not make the ruling that appellants said. I think--

JUSTICE JOHN PAUL STEVENS: May I ask you a question?

MR. CARVIN: Sure.

JUSTICE STEVENS: I think I understand your theory, and your argument's been very helpful to me, I might say.

But say there is in the record evidence that they drew boundary lines to segregate blacks when they were working out school districts and just the opposite kind of lines when they--when they were doing voting districts.

And under your argument, that would be relevant and should have been considered?

MR. CARVIN: Yes, Your Honor, of course.

JUSTICE STEVENS: Yes. Because that goes to purpose.

MR. CARVIN: Of course--

JUSTICE STEVENS: And if there's evidence in the record that that happened, and there's nothing--no mention of it in the opinion, doesn't that lend some support to the view that the court took a different line of reasoning than you're advocating?

MR. CARVIN: Your Honor, if there was any evidence of fracturing in this case, I think that would not be my reasonable inference.

There was no evidence of fracturing based--Your Honor, if they had fractured black concentrations in Bossier Parish to create--to fail to create the black majority districts, then obviously appellants' job would be real easy.

All they would have to do is re--undo the fracture, and redraw the lines to create the black majority districts.

But we know that's not what occurred because if you look at the maps, no one redrew--

JUSTICE STEVENS: But let me interrupt you with one other point there.

I don't think our question is whether the court should have accepted the other proposed map.

I agree with you, that isn't it. The question is whether it was correct to adopt the plan it did adopt.

MR. CARVIN: Right, and the appellants try and make something very sinister about the adoption of the police jury plan.

The consistent, contemporaneous evidence has been that they rejected the NAACP plan because it violated State law, and they adopted the police jury--

JUSTICE GINSBURG: But Mr. Carvin, this--clarify one thing about what you call the NAACP plan that was rejected.

I didn't think that plan was put forward as a rival to some other plan.

This case is not like the one we just heard in that regard. I thought that plan was just put forward to show that it would be possible to create minority districts, not that this was a finished plan that was a rival to some other plan.

MR. CARVIN: Well, whether it was a work in progress or a final plan, the point is that it is stipulated that it is impossible to create even a single black majority district without splitting a precinct, and it is also quite clear from Louisiana--

JUSTICE GINSBURG: But splitting a precinct is something that even the jury--the--whatever it was called, the--

MR. CARVIN: The--

JUSTICE GINSBURG: --police jury did. Not terribly many, but they did for their plan, didn't they?

MR. CARVIN: But--yes, you--and appellants have confused this issue, and it's very important that the Court be clear on it.

The police jury had no power under State law to split any precincts. It was a facial violation for the police jury to split a precinct.

It was a facial violation for the board to split a precinct. That is on joint appendix at 277. The law could not be clearer under Louisiana.

JUSTICE GINSBURG: But you get permission to do it.

MR. CARVIN: No. No.

JUSTICE GINSBURG: Well then, how was it done?

MR. CARVIN: Because if you--from April 1, '91 through May 15, 1991 police juries can split precincts.

The board here asked to work with the police jury at that time so they could split the precincts in April and May of 1991. That's stipulated. The police jury rejected the overture.

After May 15th, 1991, it was impossible for the police jury to split precincts or the board to split precincts, and that is because that window of opportunity that the State legislature had consciously given to police juries so they could account for the '90 redistricting was now gone.

JUSTICE SCALIA: Where is that in the joint appendix? You gave a page number.

MR. CARVIN: Yes.

JUSTICE SCALIA: I didn't write it down.

MR. CARVIN: That's joint appendix 277, Justice Scalia, and it says, notwithstanding any other provision of the law, the precinct boundaries shall not be divided, abolished, consolidated, or the boundaries otherwise changed until after December 31, 1992.

Now, could the board have waited until after December 31, 1992 to do its redistricting as appellants contend?

The answer to that is found at the joint appendix on page 65.

The United States' own chronology of events states quite explicitly at the top of 65, 12/31/92--of course, the same date--date under Louisiana law by which school boards must reapportion.

So during the time that the school board was legally obliged to reapportion, the police jury and the board were legally prohibited from splitting a single precinct.

That law is not, unfortunately, in the joint appendix, but it is Louisiana Revised Statutes at 17.71. 5A.

JUSTICE O?CONNOR: iIs that law consistent with one-person-one-vote requirements, do you think?

MR. CARVIN: Your Honor, because of the window of opportunity. You see, the logic of the law is this. You get--oh.

JUSTICE O?CONNOR: I'm sorry, I don't understand.

Is such a State law consistent with the requirements of one person, one vote in drawing districts?

MR. CARVIN: I took your question to mean, could they make adjustments for the 1990 census, but I may be misunderstanding your question.

JUSTICE O?CONNOR: I'm asking, this Court has had several opinions that have required the utilization of the principle of one person, one vote in districting for whatever purpose, if it's for voting, a police jury or a school board that votes, and so forth, so is it consistent with that principle for a State law to say, you can't ignore a precinct boundary?

What if you have to in order to--

MR. CARVIN: Oh, in order to--I now understand. In order to achieve--

JUSTICE O?CONNOR: --draw equal districts and achieve that requirement?

MR. CARVIN: Right, but there was no violation, I don't believe, of the one-person-one-vote constitutional standard--

JUSTICE O?CONNOR: I'm asking, if it were, do you think that State law could prevail?

MR. CARVIN: Oh, I believe there's an exception in the law for boards with different numbers of members than police juries to-- they may split a precinct to come within plus or minus five in terms of ideal population deviation, but there was no argument--

JUSTICE O?CONNOR: Has this Court said plus or minus five is okay?

MR. CARVIN: I thought Mahan v. Howe used that as even just a presumptive guideline. In congressional redistricting you much--must be much clearer.

I had understood this Court's decisions in Mahan and others to give local and State jurisdictions much broader discretion.

As long as within--it was within--roughly within 10 percent, then everything was okay, and even--I think Mahan went to about 16.4, and they did that to preserve a town boundary and here, so if you have to preserve a precinct boundary I think you'd also be okay under law, now that I understand your question, Justice O'Connor.

JUSTICE BREYER: Why doesn't your--your argument, which is a very good argument as to why there was no purpose that violated Section 5, not show-- in order to see whether you're right or not we ought to introduce all the other evidence. I mean--

MR. CARVIN: Well--

JUSTICE BREYER: --on the other side they say that here are all these people on this board, which at that time had had only a black member for a very short period of time.

That--they didn't want the police jury district because they'd have to run against each other.

MR. CARVIN: Mm-hmm. They--

JUSTICE BREYER: And they didn't want the police district for some reasons that then later on they just ignored, and what happened in between?

What happened in between was that the NAACP got busy and began to talk about a more proportionate system, so why isn't whether there could have been a more proportionate system or had to be a more proportionate system highly relevant?

MR. CARVIN: It is highly relevant. The court looked at the NAACP as an alternative, and then asked itself the question, the proportionate plan, was this alternative objectively reasonable, and was the board's rejection of it motivated by discriminatory purpose, and in doing so, just to eliminate any ambiguity on this, it went through precisely the analysis that this Court articulated in Arlington Heights.

It did not cite Arlington Heights by name, I agree. The court had noted early on its opinion citing cases where minority plaintiffs have the burden makes it confusing when you're dealing with a Section 5 case where, of course, the burden is on the other side, and so it cited this Court's voting rights cases of City of Richmond and McCain against Lybrand, the purpose cases under Section 5.

But if I could briefly go through the Arlington Heights factors, did it look at the specific sequence of events?

There is a heading in the court's opinion that says, we'll now look at the specific sequence of events.

Did it look at the contemporary statements of the affected board members?

It spends about two pages walking through what it ultimately concluded were these ambiguous statements by the board members.

JUSTICE GINSBURG: Mr. Carvin, I take it from what you said that you do accept that Arlington Heights is relevant precedent.

MR. CARVIN: Sure.

JUSTICE GINSBURG: Right, so you think that it was just so understood that the district court didn't need to mention it.

MR. CARVIN: Your Honor, to be--to be candid, I don't think what people look at, what district courts look at in discriminatory purpose cases is a very complicated inquiry.

I mean, I think they looked at the direct and circumstantial evidence of, why did the board do this, and do we believe them, and is it objectively reasonable?

JUSTICE SCALIA: The factors of Arlington Heights are not so arcane.

If you asked somebody on the street, what would you look at, he'd probably come up with the same things.

MR. CARVIN: So I really must insist that the appellants here are really seeking to elevate form over substance.

They're seeking to require district courts to recite the blazingly obvious.

We're now looking at the black majority district, and we're looking at the other plan. The black majority plan, if it's not chosen, has an impact.

The court didn't do that in Miller. I don't know of any purpose case that does--

CHIEF JUSTICE REHNQUIST: If the appellants' argument is that the findings were clearly erroneous because there was so much other evidence pointing in the other direction, that isn't requiring the district court to put its opinion in some sort of Procrustean bed. That's an ordinary clearly erroneous argument.

MR. CARVIN: Oh, sure, and--but I don't think they think they can win the clearly erroneous argument, because no race-blind actor would have behaved in any way different from this board.

Again, the NAACP plan violated State law. The police jury plan did not.

Even assuming there was this loophole that appellants talked about, you could only make the NAACP comply with State law by going to the police jury, taking some affirmative steps.

The argument to the police jury for complying with State law would have been objectively irrational.

It would have been, we'd now like you to create 65 additional precincts in a district with 56 precincts.

No rational person would have taken the NAACP plan if you were blind to the racial composition, so their clearly erroneous case reduces to the proposition that it's not plausible to believe that this board did the only rational thing for rational reasons.

You must conclude, as a matter of law, that this board did the rational thing for a racial purpose.

I concede that that is conceivable, but I don't think it's a grounds for finding the district court's contrary conclusion clearly erroneous, particularly since, again, it was a facial violation.

JUSTICE GINSBURG: Why was it rational to set up the school districts with some districts that had a few schools, several schools, and some districts that had no schools at all?

It just seems a very odd kind of a school districting.

MR. CARVIN: Your Honor, school board members represents parents and children, they don't represent buildings.

It was never a redistricting criteria in Bossier Parish to have a school building in each district.

Mrs. Jackson's testimony below was that under the 1980 plan, the old plan, she did not have a building in her district.

It is stipulated that well before the NAACP plan ever came into existence, they did not provide their cartographer, Mr. Joiner, with school attendance zones, so--

JUSTICE GINSBURG: But I thought that was one of the reasons why they were resisting the jury--

MR. CARVIN: No--

JUSTICE GINSBURG: --police plan originally.

MR. CARVIN: That is what the appellants are attributing to them, and there is a stipulation and school boards typically look at that, but the undisputed evidence is, this school board did not care about that, and we know that to a certainty, because it didn't give their line-drawer any evidence of where the school buildings were, so--

JUSTICE GINSBURG: So are you saying that it was--incumbency was the only thing that kept them from resisting the--

MR. CARVIN: And the incumbency paled in significance to the advantages of the police jury plan for guaranteeing preclearance.

Pairs of incumbents are, of course, only a problem if both incumbents are going to run again.

There was two pairs of incumbents here. But the evidence again, by Mr. Musgrove at trial, by Mr. Harvey at trial, and by Ms. Jackson, again, in a deposition actually--

CHIEF JUSTICE REHNQUIST: I think you've answered the question, Mr. Carvin. Thank you.

MR. CARVIN: Thank you.

CHIEF JUSTICE REHNQUIST: Mr. Patrick, you have 5 minutes remaining.

MR. PATRICK: Thank you, and if the--Chief--Mr. Chief Justice, if the Court please, I'd just like to return to a question I didn't answer very well from Justice O'Connor.

You asked about cases where the--where the Court has, in the Section 5 context, reflected its respect for the Arlington Heights standards, and they--those cases are cited--they're beyond Rogers v. Lodge.

They're cited in the first full paragraph on page 17 of our brief. I'm sorry it wasn't very complete earlier.

Also, there was a statement made about precinct changes and precinct-splitting that was--has been argued by the parish.

In fact, precincts could be split, indeed, were split by the police jury. They split 20 precincts. You'll see that on--stipulated at 88a and 88--89a.

The only argument is, the only--

JUSTICE KENNEDY: Did they--did they do that within the window that the legislature gave them?

MR. PATRICK: I believe they did, yes, and the only argument, Justice Kennedy, is that--is that the school board could not split the precincts without the police jury's permission.

The school board never tried to get the police jury's permission. They expected to do so. They set out to draw a different plan.

JUSTICE SCALIA: No, the argument's a little further than that, as I understood the last argument. That is, even the police jury itself could not do it once the window of opportunity had closed.

MR. PATRICK: Well, but the window of opportunity opens again on--after the 1st of January, 1993, and that's im--that?s important. That was known to the school board at the time--

JUSTICE SCALIA: But they had--but again, the argument made was that they had an obligation to come up with districts before then.

MR. PATRICK: Well, that's right. They--I understand that argument, but what we do know is that--

JUSTICE SCALIA: Is it wrong? Did they have no obligation to come up with--

MR. PATRICK: I'm not convinced it's right, Justice Scalia, but what is clear is that consolidation after the window opened again has happened in Bossier Parish.

It was done by the police jury and could have been done, and indeed the record indicates that the school board could have drawn a plan with two majority-minority districts in it that ended up with fewer precincts in it than the police jury plan.

The other point I wanted to--wanted to make is that the Court needs to understand that this is not a choice. This case is not about a choice between the plan they adopted and the NAACP alternative. That is a--that?s a--that's a ruse.

It's very important to understand that this is about the school board's unwillingness to consider any alternative at all to the plan that they knew at the time was dilutive, and which they admit on the record at the time they knew they could have drawn one with two reasonably compact majority-minority districts.

It is--it is not maximizing for the Department of Justice to question a jurisdiction that draws a plan which hardly serves its own interests, that pits incumbents against each other, that distributes the schools in irrational ways, and is dilutive, rather than adopting a plan that is fair, and that is really what this case is about.

If there are no other questions--

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Patrick.

MR. PATRICK: Thank you.

CHIEF JUSTICE REHNQUIST: The case is submitted.

Transcript: 

Argument of Speaker

Mr. Speaker: Justice Scalia has an opinion to announce.

Argument of Justice Scalia

Mr. Scalia: Opinions to announce in Reno versus Bossier Parish School Board, No. 98-405 and Price versus Bossier Paris School, 98-406.

These cases come to us on appeal from a three judge panel of the United States District Court for the District of Colombia and they are here before us for the second time.

Bossier Parish, Louisiana is a jurisdiction covered by Section 5 of the Voting Rights Act of 1965, which prohibits jurisdictions in certain parts of the country from enacting any change in a voting procedure without first obtaining pre-clearance from either the Attorney General or the District Court for the District of Columbia.

Following the 1990 Census, the Bossier Parish School Board sought pre-clearance for a proposed redistricting plan from the Attorney General.

After she refused to grant it, the Board turned to the District Court.

Section 5 authorizes pre-clearance of a proposed voting change that "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."

That's the critical language here.

Before the District Court, the government conceded that the Board’s plan did not have a prohibited effect under this definition, but claimed that it violated Section 5 because it was enacted for a discriminatory purpose namely diluting the voting strength of the votes of black voters.

The District Court granted pre-clearance.

On appeal the first time around we vacated and remanded for further proceedings as to the Board’s purpose in adopting its plan.

On remand, the District Court again granted pre-clearance concluding that there was no evidence of discriminatory but non-retrogressive purpose.

I will explain shortly what a retrogressive purpose consist of.

The District Court left open the question whether Section 5 prohibits pre-clearance of a plan enacted with a non-retrogressive purpose.

We affirm.

Section 5 is an unusual provision.

In that it places the burden of proof on the party seeking to avoid a legal prohibition, rather than on the party seeking to assert.

That is to say the burden is on the covered jurisdiction to show that the proposed change, the critical language, 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.

In a case called Beer versus United States, we held that a proposed change to a districting scheme which allegedly diluted the minority vote, that has made it difficult for the minority to elect the candidate of its choice, could be denied preclearance under Section 5 only if it was retrogressive.

That is to say if it was worse in so far as the minority’s ability to elect their candidates was concerned than the districting scheme already in effect.

We gave various reasons for that result including the fact that the consequence of rejecting Section 5 preclearance is simply to leave the preexisting apportionment scheme in place, which may well be more diluted in its effect than the new one.

We say that the remedy for a vote dilution simpliciter as opposed to vote dilution which places minority voters in a worst position than they currently occupy is a suit under Section 2 of the Voting Rights Act, which will permit the court not only to disallow the new apportionment, but to invalidate the existing one but in which it will be the burden of the plaintiff to establish the dilution.

The Beer case which I have just described, dealt with the effect prong of Section 5.

In the present case, the government contends that in qualifying the term, ‘purpose’ the same phrase denying or abridging the right to vote on account of race or color is not limited to retrogression but means vote dilution more generally, so that a voting change which has the effect of diluting minority votes, though diluting them less than the existing system would be entitled to preclearance whereas a voting change which has that very same purpose would not.

We reject that contention.

The Government’s primary argument is that subjecting both prongs to the same limitation produces a purpose prong with a trivial reach covering only what the government calls incompetent retrogressions.

If this were true and if it were adequate to justify giving the very same words different meanings when qualifying purpose and when qualifying effect.

There would be cases in which we have applied such a construction to the innumerable statute barring conduct with a particular purpose or effect, yet we are aware of no such case.

Moreover, the purpose prong has value and effect even when it does not cover conduct additional to that of a so-called incompetent retrogressive.

The Government need only refute a jurisdiction's prima facie showing that a proposed voting change does not have a retrogressive purpose, and need not counter the jurisdiction's evidence regarding actual retrogressive effect.

Although almost identical language in Section 2 of the Voting Rights Act and in the Fifteenth Amendment has been read to refer not only to retrogression but to discrimination more generally, giving the language different meaning in Section 5 is faithful to the different context in which the term "abridging" is used.

We decided that question in Beer.

A contrary reading would exacerbate the substantial federalism costs that preclearance already exacts and would perhaps raise concerns about Section 5 constitutionality.

Justice Thomas has filed a concurring opinion, Justice Souter has filed an opinion concurring in part and dissenting part in which Justices Stevens, Ginsburg and Breyer have joined; Justice Stevens has filed a dissenting opinion in which justice Ginsburg has joined; Justice Breyer has filed a dissenting opinion.

Transcript: 

Argument of Paul R. Q. Wolfson

Chief Justice William H. Rehnquist: We'll hear argument first this morning in Number 98-405, Janet Reno v. Bossier Parish School Board and George Price versus the same.

Mr. Wolfson.

Mr. Wolfson: Mr. Chief Justice, and may it please the Court:

Section 5 of the Voting Rights Act of 1965 prevents a covered jurisdiction from implementing any new voting practice that has the purpose to discriminate against racial minorities even if that purpose is not retrogressive.

Section 5's purpose prong is not limited to an intent to make matters worse for minorities, and section 5 also places the burden of proof on the covered jurisdiction to show that its new voting practice does not have the purpose to discriminate.

The text and the Court's decisions and the background of section 5 all support those points.

Unknown Speaker: Well now, of course, if you relied on section 2 instead, and the Government brought some challenge or some private citizen, it would be... the burden of proof would be on the plaintiff, I suppose, to prove a discriminatory purpose.

Mr. Wolfson: That's correct, but I think it's important to understand section 5 does not render section 2... does not... useless.

I mean, this is an issue that's come--

Unknown Speaker: Well, it would for all practical purposes in a section 5 jurisdiction.

Mr. Wolfson: --I don't agree with that--

Unknown Speaker: I don't see that you ever resort to it, probably.

Mr. Wolfson: --I must disagree with that, Justice O'Connor.

First of all, after all, section 5 has been applied by the Attorney General and by the preclearance courts this way for 30 years, not limited to a retrogressive purpose, and yet there are many section 2 cases brought in the covered jurisdictions.

This Court has had several.

Mobile v. Bolden was a section 2 case.

Rogers v. Lodge was a section 2 case.

Thornburgh v. Gingles was a section 2 case, even though parts of North Carolina are covered.

There are at least two very important areas where section 2 remains vital.

First, of course, is where the challenged practice predates the Voting Rights Act, and in many covered jurisdictions in that area there are at-large voting practices and multimember voting practices and what-have-you that predate 1965.

Section 2 also remains very important for fact patterns like Beer and like Thornburgh v. Gingles, that is, where there was not a retrogressive effect, and the evidence does not indicate anything to show that the jurisdiction had a discriminatory purpose but nonetheless the plan has a very serious, relatively adverse impact on minorities.

There are many reported section 2 cases in covered jurisdictions on the books, and I think it, given the history... this is not a new interpretation of section 5 that we are advancing here.

It's the one that has been applied, and it's consistent with Arlington Heights.

Ever since this Court decided Arlington Heights in 1976, almost... just after it decided Beer, the Attorney General has followed the Arlington Heights factors to determine whether an enactment has a retro... has a discriminatory purpose.

The preclearance court in the District of Columbia, as far as we know, other than this case, has never limited its search to a retrogressive purpose.

In addition, there are at least two cases in this Court where we submit, where the Court has rendered decisions that are fundamentally irreconcilable with the construction of section 5 that the board advances today.

Unknown Speaker: Mr. Wolfson, before you go on with that, I just wanted to make sure that I understood you correctly to say that section 2 often works when there is a dilutive effect, even though you can't prove any malevolent purpose.

Mr. Wolfson: Correct.

Correct.

Unknown Speaker: And under the section 5 interpretation that you're urging, a dilutive effect would not suffice.

Mr. Wolfson: That's--

Unknown Speaker: You would have to have this malevolent purpose, so that would leave a great office for section 2 in dilutive effect cases.

Mr. Wolfson: --That's exactly the point I was trying to make.

In addition, the Court's precedents really foreclose the proposition that is relied on today.

City of Pleasant Grove in particular is irreconcilable with the submission that section 5 is limited to a retrogressive purpose, as opposed to a discriminatory purpose more broadly conceived.

That case involved an all-white town that annexed an all-white enclave and a... an all-white parcel, rather, and a vacant parcel, and refused to annex a parcel in which black residents were living, and the argument that was made by the City of Pleasant Grove in this case was exactly the one that is made today, which is, we know there is no retrogressive effect, so the effect is not bad under section 5.

We know that there could not have been a retrogressive effect because the city officials were not aware of any black residents of the town at the time, so how can it possibly be said that there is a discriminatory purpose.

Unknown Speaker: Well, Mr. Wolfson, how far can Congress go in this area--

Mr. Wolfson: Well, Congress can--

Unknown Speaker: --pursuant to the Constitution?

Mr. Wolfson: --Well, first of all, Mr. Chief Justice, let me say the question about how far the Congress can go beyond the Fourteenth and Fifteenth Amendment really is not implicated in this case, because this case involves a core discriminatory purpose, or at least that is what is in contention.

Now, whatever... however far Congress can go, the question about whether... the issue about a core discriminatory purpose against racial minorities is fundamentally what the Fourteenth and Fifteenth Amendment is about, so we're not talking about going--

Unknown Speaker: But how far can the Congress go in directing the Attorney General to supervise those States which are under the Voting Rights Act, under preclearance orders?

I... the Chief Justice can explain his own question, but I was... it seems to me that if you depart from retrogression as the baseline that the Attorney General must follow, then the Attorney General has vastly greater discretion and vastly greater responsibilities in preclearance procedures, and that may put the constitutionality of the intervention in State Voting Rights Acts in an entirely new light.

Mr. Wolfson: --Well, there's certainly no question that section 5 is an an unusual statute, and it has, without doubt, federalism costs, as the Court has said.

However, the Court has three times examined the constitutionality of section 5 and has upheld it.

Many of these arguments were the arguments that were raised in South Carolina v. Katzenbach.

The question was raised, how is that the Congress can require the States to come to Washington to prove that the... that their enactments do not have a discriminatory purpose, and the Court said, it is unusual, but, given the sensitivity of the interest that is at stake, which is the right to vote, and given the importance of protecting that right against discrimination on the basis of race, that this is an acceptable cost, and it is within Congress' power to enact.

Now, in South Carolina v. Katzenbach, there was certainly no suggestion that the kind of purpose that was at issue there was limited to a retrogressive purpose, and each time Congress has looked at this act again, and it's reenacted it three times, it has considered these constitutional questions very carefully... they are serious ones... and it has said, the interests at stake are serious enough that the preclearance remedy is still necessary.

Unknown Speaker: That--

--If it meant what you say it means.

If it meant what you say it means.

If it doesn't say what you say it means, Congress didn't make that judgment, and in coming to that decision, I was going to ask you when you said this case involves core purposeful discrimination, well, that may well be true, but in deciding what the statute means, what it means as applied to all situations, we have to take into account the fact that it would apply to noncore purposive discrimination as well, so I don't think you can just dismiss these problems on the ground, well, after all, this is a particularly bad case.

It may well be--

Mr. Wolfson: Well, the--

Unknown Speaker: --but we're talking about, you know, how should you reasonably interpret the statute.

Mr. Wolfson: --Understood, and section 5 has been understood to have two independent prongs or protections.

The purpose prong addresses those enactments that violate the Constitution itself, and the effect prong does go beyond it, and it inhibits the enforcement of those enactments which, although not animated by a discriminatory purpose, nonetheless present the risk of eroding those gains that have been made, and that was the issue before the Court in City of Rome.

In City of Rome, the court said, section 5 has two functions.

One is to ameliorate discrimination, and the other is to prevent against further erosion.

Many of these arguments, many of these serious concerns about section 5 have been aired in City of Rome and in Katzenbach, and there's no doubt, as I've said, that section 5 is unusual, but... but the question about whether it reaches what the Constitution itself prohibits is not a question... it does not implicate the concerns about whether the outer reaches of section 5 might present some constitutional difficulties.

What Congress intended above all was to enforce what it called the explicit commands of the fifteenth Amendment, and to make sure that new enactments did not violate the Constitution, and that's what this is about.

Unknown Speaker: Well, you know, you're talking now quite properly in response to questions about the substantive extent of section... but the preclearance requirements and that sort of thing are quite different.

I mean, those are procedural things that are highly unusual, regardless of the substantive extent.

Mr. Wolfson: They are unusual, and they're unusual in a number of ways, one of which is that the burden of proof is placed on the covered jurisdiction, as we've argued, to show that the enactment does not have a discriminatory purpose, but the procedural requirements are not... they're not... it's important not to exaggerate their onerousness.

The evidence is put in, and the trier of fact in the preclearance court in this case makes a judgment as to whether... as to where the risk of nonpersuasion should lie.

Unknown Speaker: But it's awfully hard to prove the absence of an intent.

I mean, that is a very difficult thing for anybody to do, and what's the practical effect of your interpretation?

Does it mean that any proposed change by a covered jurisdiction of any kind is going to require that jurisdiction to come in and show the negative somehow, this isn't what we intended, we didn't intend to discriminate, or have a purpose to do so, and it is not retrogressive?

Mr. Wolfson: Right.

Unknown Speaker: I guess that would become the requirement in every section 5 application.

Mr. Wolfson: Well, the preclearance, the district court in this case--

Unknown Speaker: Is that right?

Mr. Wolfson: --Not exactly, which is to say that--

Unknown Speaker: Why?

Mr. Wolfson: --Which is to say, really what the jurisdiction does is, it says, here is our intent.

Here is what we... here is why we enacted this particular legislation.

For example, it could be that as in Lopez last term, that there's a State policy of court consolidation because it's inefficient to have all of these various courts, and so we're doing this for efficiency purposes.

And that may, as the preclearance court said in this case, establish its prima facie reason, a legitimate nondiscriminatory reason, and then it's up to the Attorney General to show that there's some evidence that cast doubt on that reasoning, or some evidence that rebuts it.

Unknown Speaker: But I would think under your view that wouldn't be necessary, that the trial court could just discount the covered jurisdiction's proof.

If they have the burden of proof, it's very... as Justice O'Connor says, it's very, very difficult to prove a negative.

Mr. Wolfson: Well, unless the covered jurisdiction's reason, proffered reason is totally implausible on its face, Mr. Chief Justice, it would seem to me that if they come forward with what seems to be a facially credible reason, and it's supported by some evidence, then... and the Attorney General simply stands mute, then perhaps the preclearance court would enter judgment.

I mean, after all, under the Court's decisions like St. Mary's Honor Center v. Hicks, it's recognized that the other side generally doesn't stand mute in response to what the suggested reason is, and the general rules of summary judgment do apply to preclearance cases, just as they do to other civil litigation, so--

Unknown Speaker: How do we know how this statute has been applied as a practical matter by the Attorney General in the past?

I don't... it isn't clear to me that the Attorney General has done more in the past than look at retrogression--

Mr. Wolfson: --Well--

Unknown Speaker: --in most instances.

Mr. Wolfson: --Right.

Of course, the one thing I can point to is, the Attorney General's published regulations on the matter don't... certainly don't refer to retrogression as a purpose.

They say, discriminatory purpose and retrogressive effect, and it's difficult to point to anything that's published.

But the Attorney General has reviewed many, many cases, over 300,000 submissions in the entire history of the Voting Rights Act.

About... fewer than 1 percent of... in 1 percent of the admissions has an objection been lodged.

The--

Unknown Speaker: Is that the statistic, in all the years that it's been in effect, that the Attorney General has objected in only 1 percent of the cases?

Mr. Wolfson: --3,071 times, and a majority of those are purpose cases, and as far as we are able to tell from reviewing, they certainly do not distinguish between discriminatory purpose and retrogressive purpose, and we have cases like City of Pleasant Grove, where one can easily look to it and say well, there's no... it couldn't have been a retrogressive purpose, and Busbee v. Smith is another example.

An objection was lodged there by the Attorney General.

It went to the preclearance court, there was no retrogression in that case, but the process of redistricting in the Georgia delegation to the House of Representatives was filled with racial epithets being hurled, you know, in meetings and so forth, and the preclearance court said, it's a discriminatory intent.

Unknown Speaker: Mr. Wolfson, I certainly agree with you that the Attorney General's regulations couldn't be clearer, when they say discriminatory purpose or retrogressive effect.

That is absolutely clear.

Unfortunately, that is not what the statute says.

The statue says, whether the proposed change 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, and we have clearly held, and you do not contest that the effect of denying or abridging the right to vote on account of race or color means the effect of being retrogressive.

I just find it impossible to know how you can use the English language to say that it will not have this purpose or effect, or the purpose or effect of burning the house down.

Burning the house down means one thing with regard to purpose, and something else with regard to effect.

That is just not... that language just cannot be used... in your brief, your only response to that is that it is not at all unusual in our laws for a purpose to be treated more harshly and to be subjected to greater sanctions than an effect.

That's certainly true, but we're not talking about what's possible for the law to do.

We're talking about just the plain language.

I don't see how you can say that it will not have this purpose or effect, and this means one thing for purpose and another for effect.

It--

Mr. Wolfson: Well, certainly if one were to look at the language for the first time and see that it prohibits a purpose of denying or abridging the right to vote on account of race, one would not find any language in there that would suggest retrogression.

I understand what... I understand your point, but--

Unknown Speaker: --And the same for effect.

Mr. Wolfson: --But--

Unknown Speaker: But we've held that, and you don't contest that holding.

Mr. Wolfson: --But the concept of effect was construed by the Court in Beer in light of the particular constitutional considerations similar to the ones that were discussed earlier, which is... and concern, uncertainty about how far Congress intended to go beyond the core requirements of the Fourteenth and Fifteenth Amendment.

Those considerations do not apply to the purpose prong.

I mean, to the contrary, the purpose prong essentially restates the Constitution--

Unknown Speaker: That's certainly true, and therefore Congress should have perhaps written it differently.

Mr. Wolfson: --Well--

Unknown Speaker: It should have written it the way your Attorney General wrote the regulations.

Mr. Wolfson: --Well, those regulations--

Unknown Speaker: Shall not have a discriminatory purpose or a retrogressive effect.

I don't deny that makes a whole lot of sense, but that happens not to be what the statute says.

Mr. Wolfson: --Well, the statute has been construed, of course, not just in Beer but in City of Richmond and in City of Pleasant Grove, and in City of Richmond the effect was held good, but nonetheless the court remanded for a question of the purpose and the court said, it may be asked, how is it that the purpose to accomplish a certain result may be bad if that result if not bad under the effect prong, and the answer is that under our Constitution and the statute... and the statute... that a purpose to discriminate has no legitimacy at all.

I'd like to reserve the remainder of my time for rebuttal.

Unknown Speaker: I would like to ask you, though, the Attorney General can proceed under section 2 and achieve exactly what could be achieved by your interpretation of section 5, presumably.

Mr. Wolfson: A section 2 suit could be brought, but one of the principal advantages that Congress saw in section 5, and one of the reasons why it enacted it, was to prevent the necessity of the Attorney General going forward like that.

That's why, as the Court said in Katzenbach, the burden of time and inertia was placed on the covered jurisdictions, and that was... it is unquestionably an unusual statute, but that is... and one of the chief functions of section 5, and Congress has reexamined that three times, and each time ratified that rationale.

Thank you.

Unknown Speaker: Thank you, Mr. Wolfson.

Ms. Brannan, we'll hear from you.

Argument of Patricia A. Brannan

Ms Brannan: Thank you.

Mr. Chief Justice, and may it please the Court:

If the goal of the Voting Rights Act to eliminate discrimination in voting is to be fulfilled, the purpose clause of section 5 should not be restricted to a meaning more narrow than the basic fundamental constitutional framework for assessing discriminatory intent.

If I might begin on the point Justice Scalia asked toward the end of Mr. Wolfson's argument with respect to the plain language of section 5, there's an important countervailing principle of statutory interpretation that would be violated by reading effect in the statute to mean only retrogression and purpose to mean only retrogression, and that is that the purpose prong would become virtually meaningless in practical impact.

The only voting changes that would be reached by section 5 and could be touched by section 5, no matter how outrageously flagrant the racism that underlie them, would be retrogressive ones.

Unknown Speaker: No, but there are two situations, number 1 where you... where in fact the jurisdiction has a retrogressive purpose, but the plan it adopts in fact doesn't achieve that.

That may be fluky enough, but the other situation, it seems to me, is quite substantial.

It would not be necessary for the Attorney General to show a retrogressive effect so long as the Attorney General shows that the purpose... in fact, rather the jurisdiction has to show that the purpose wasn't retrogressive, and if the jurisdiction cannot show that the purpose was not retrogressive, the game's over.

The Attorney General doesn't have to go into the further difficulty, or the D.C. Circuit... the District of Columbia court doesn't have to go through the further difficulty of figuring out whether in fact the functioning of the matter is retrogressive.

I think that's a great advantage.

Ms Brannan: Justice Scalia, with respect to that first category, we think the incompetent retrogressive category will indeed be so small--

Unknown Speaker: It's pretty small.

I agree with that.

Ms Brannan: --that it really doesn't underlie the congressional purpose in a meaningful way, and with respect to the second, and a jurisdiction like Bossier Parish is a perfect example, it has never had a majority black election district, so when they come in with any redistricting plan that still doesn't have a majority black election district, it by definition is not going to be retrogressive, and for the Attorney General or a court to be looking for a purpose to do something other than what they've done we would submit is not a meaningful--

Unknown Speaker: But that doesn't meet my point.

That just shows that it does not go as far as you would like it to go, but my point is that there is a great advantage to having retrogressive purpose in the statute, and that advantage is, once you show a bad purpose, you don't have to go into the calculation of the effect.

Ms Brannan: --Your Honor, I... we think that once there is a discriminatory purpose in some kinds of voting changes it's very useful to not go into the effect, because some voting changes, unlike redistricting, the effect analysis is probably not very telling.

There are some voting changes clearly covered by section 5 that don't lend themselves to numerical analysis like districting plans do, but they also don't lend themselves, we would submit, to retrogression analysis.

For example, the Court has said that when a covered jurisdiction changes its leave policies for employees to campaign for candidates for election, that must be precleared.

It really defies understanding to see how that could be retrogressive, but we could certainly imagine how that could be flagrantly discriminatory if a jurisdiction always let employees off taking leave time to campaign, but the first black candidate appeared on the scene and suddenly the leave policy was cancelled, and people said you'll never go out and campaign for that guy.

I don't know how we would analyze it as retrogressive, but certainly we could analyze it as discriminatory under the Arlington Heights test.

In essence, the point we're making is that the school board's test simply goes too far toward making the first prong of the Arlington Heights analysis the only prong that will be analyzed in reasonable common sense cases that we can imagine.

Effect clearly is one important indicia of what the purpose of an act or a governmental actor is.

But in Bossier I, by commending Arlington Heights to the District court that does this analysis, we think that the court was saying that obviously the history, the contemporary statements, the course of events in adopting the change are all highly relevant and telling.

They're highly relevant and telling on these facts.

We think these facts are not only not unique, but that there will be many voting changes and have been many voting changes considered over the years by the courts that have a comparable situation.

If I might turn to Justice O'Connor's question about whether the proof of the negative, especially in a situation where there isn't objective evidence that this is getting worse, is really an unfair burden on the jurisdiction.

I would comment to the Court Judge Silberman's two-page discussion of this in the first panel opinion in this case.

It appears at pages 104 and 105 of the appendix to the jurisdictional statement.

He undertook to explain in a very straightforward way how this works in the court that is an expert, after all, in applying this in an evidentiary context.

Judge Kessler, the dissenting judge, agreed.

Her agreement with this is on page 116 of the appendix to the jurisdictional statement.

And what he really did was, he harmonized it with the Court's cases in the City of Richmond.

What the jurisdiction must do is stand up and give a verifiable nonracial reason for what it did.

After all, it knows why it did what it did.

Unknown Speaker: What do you mean by verifiable, Ms. Brannan.

Ms Brannan: Your Honor, if the jurisdiction, for example, here got up and said, we were trying not to split precincts, and here we have precinct splits, we were trying to get preclearance.

We did not file a motion for judgment, neither did the United States at the close of their evidence.

We recognized that there were contested facts, and that that--

Unknown Speaker: But--

Ms Brannan: --was something that should be judged on the facts.

Unknown Speaker: --But you haven't told me why that's verifiable, in your words, and something else perhaps is not.

Ms Brannan: Your Honor, it's simply the Arlington Heights test, whether the facts and circumstances... whether it's standing up and saying something that makes sense.

It said one thing that didn't make sense, and we know what the other side of the coin looks like.

It said the--

Unknown Speaker: You've never... were you finished?

Sorry.

I want you to finish what--

Ms Brannan: --Yes.

I just wanted to give the one further example that's actually present in this case.

The jurisdiction stood up in the D.C. District Court and said, we were trying to comply with Shaw.

Well, Shaw hadn't been decided by this Court at the time that the school board acted.

We know that that isn't a good reason.

If that's all they had ever said, frankly we probably would have moved for judgment at the close of their evidence.

But what I want to be very clear about is, we do not think the covered jurisdiction has to stand up and negate the Arlington Heights factors.

That is a burden of going forward that the defendant has, and that's what Judge Silberman said, and we think that makes sense.

The proof of racial intent has to come from the defendants either in cross-examining the plaintiff's case, or in their case-in-chief, and if it never comes, the jurisdiction is entitled to preclear.

Unknown Speaker: --Well, wait, you say they have the burden... just the burden of production, or do they have the burden of persuasion as well?

Ms Brannan: The burden of production, and we think the risk of nonpersuasion never leaves the covered jurisdiction--

Unknown Speaker: But the burden--

Ms Brannan: --in accordance with this Court's decision in--

Unknown Speaker: --Is it the case that your... the words here is, if the evidence is equally convincing.

Ms Brannan: --Yes.

Unknown Speaker: All right.

Ms Brannan: Yes.

Unknown Speaker: In other words, all this rigmarole that often accompanies words like burden of proof doesn't exist here.

All you're talking about is, if the evidence is equally convincing--

Ms Brannan: Yes.

Unknown Speaker: --a matter which I have never found as a judge in 15 years in any case.

[Laughter]

Ms Brannan: Yes.

Unknown Speaker: But if it were to happen--

Ms Brannan: Yes.

Unknown Speaker: --then, all it means is, if it's equally convincing, then the board loses as opposed to winning.

Ms Brannan: Yes.

Yes, and we think this--

Unknown Speaker: I guess the burden of proof is not very important at all, is it?

Ms Brannan: --Well--

Unknown Speaker: All these years I thought--

--Often it's not.

I thought it made a big difference.

[Laughter]

Often not.

Ms Brannan: --Well, Your Honor, we think the Court has made very clear in McCain v. Lybrand and Georgia v. United States that the burden is there.

Congress rejected efforts to shift the burden of proof from the covered jurisdiction.

Unknown Speaker: Well, but why--

--But would the burden of production shift?

Ms Brannan: Yes.

Unknown Speaker: Would the burden shift to the Government--

Ms Brannan: Yes.

Unknown Speaker: --once the jurisdiction said, look, we didn't want to split precincts.

Ms Brannan: Yes.

Unknown Speaker: At that point, the burden of production moves to the Government and say, that was pretext.

Ms Brannan: That's right.

Unknown Speaker: That was the reason why they did it.

Ms Brannan: That's exactly right.

Unknown Speaker: So they don't... the burden of persuasion may remain constant, but the burden of production would shift once they come up with a good reason for why they did what they did.

Ms Brannan: Yes.

Unknown Speaker: So you have some statements by some members of the city council that are clearly racist, and clearly indicate that these members at least were going to do it for that reason.

On the other hand, there are other members whose statements indicate the opposite.

Who knows what the majority was on the city council, whether the reason... in that kind of uncertitude, where you really don't know what the answer is, the jurisdiction loses.

Ms Brannan: Your Honor, yes is the answer, but the Court wrestled and Justice Powell's opinion in Arlington Heights wrestled with exactly this issue, how do you get at the intent of a multimember governmental body, and what the Court said is, yes, they'll tell you what they said, but you look at what they did.

You look at what information they had in front of them when they made the decisions that they made, whether the public was participating and what they said to the public at the time.

That's what these cases are made of.

That's what this trial was about.

Unknown Speaker: And if you have to throw up your hands at the end, which frankly in most of these cases I have to do... I can't really tell what the intent of the body was.

If you have to throw up your hands, the jurisdiction loses.

Ms Brannan: It does, Your Honor, but again in Arlington Heights we think the Court made the decision that, rather than effect alone, that was the exercise fact-finders should go through.

Unknown Speaker: Thank you, Ms. Brannan.

Mr. Carvin, we'll hear from you.

Argument of Michael A. Carvin

Mr. Carvin: Mr. Chief Justice, and may it please the Court:

To answer the statutory question of when a voting change has a purpose to abridge voting rights, you need to answer the question, abridge compared to what?

Abridged is a relative term.

You don't know what an abridged vote is unless you know what an unabridged vote is and, as Justice Scalia pointed out, this Court has answered that question repeatedly.

In a voting rights case under section 5, you compare the change to the status quo ante, and if the change is no worse than the old status quo, then it hasn't abridged the right to vote.

Unknown Speaker: It hasn't had the effect of abridging the right.

Mr. Carvin: Abridging, but the relevant point, I would submit, Justice Stevens, is that they've interpreted the term, abridging, and all of those cases say, if you maintain the status quo, you do not abridge, you do not commit the--

Unknown Speaker: You do have the effect of abridging.

Mr. Carvin: --Right.

Unknown Speaker: That's what they all say, you don't have the effect of abridging.

Mr. Carvin: Precisely.

Unknown Speaker: The New York--

--Is it not possible that you would not have the effect of abridging, but you would nevertheless have the intent to abridge?

Mr. Carvin: Only in circumstances where you intended to make the status quo worse.

It's stipulated here that they intended to maintain the status quo, and maintaining the status quo, as we have agreed, does not have the effect of abridging, so if you intend to maintain the status quo, you do not intend to abridge.

You do not intend to commit the injury that is prohibited by section 5.

Unknown Speaker: So if a county in Mississippi in 1966 had never had one black voter, never one in their history, and they come up with a great plan under pressure from the Department and 87 lawsuits, they say, I have an idea, we'll change it so now one black person votes, one.

Why are you doing it?

Well, don't you see, if we don't do that... by the way, we have a very complicated plan.

One votes.

If we don't do that, we'll be forced to allow thousands to vote.

And in your opinion, that evidence, right on the record, there would be no violation of this statute.

Mr. Carvin: No, I'd have to disagree with that hypothetical for two reasons.

First of all, if you're talking about litigation, of course, you're not talking about section 5 preclearance.

Unknown Speaker: No, I'm talking about--

Mr. Carvin: The court... okay.

Unknown Speaker: --I wasn't clear, then.

Mr. Carvin: Okay, Your Honor.

Unknown Speaker: What I meant was, Mississippi has never allowed a person to vote.

They now have a new plan so one black person can vote.

Mr. Carvin: Right.

Unknown Speaker: And on the record, it's clear the reason they adopted it is, they were afraid that if they didn't they would soon have to allow thousands to vote.

Mr. Carvin: Right, but if they had a law that said no one could vote, that would violate the Voting Rights Act because it would be a test or device, wholly apart from section 5.

It would also violate section 5, because it denied the right to vote, regardless of whether abridge means retrogression or not.

But let's play out your hypothetical.

A Mississippi jurisdiction has a law that says no one can vote.

All section 5 said under South Carolina v. Katzenbach was, look, don't make your other voting procedures worse to replace the law we have just gotten rid of.

If those procedures stay the same, if the registration hours and all of the registration qualification stayed the same, and after all, they were designed for an all-white electorate, then you haven't filled the discriminatory gap that's left when the Voting Rights Act itself eliminates the law that says blacks can't vote, so that's a perfect example of what I'm talking about.

You've got a law that says, blacks can't vote.

Then the jurisdiction comes along and says, look, we're going to increase filing fees for candidates, because now blacks can vote, we want to make sure they don't get to run for office.

Now, let's assume they reduce the filing fee, so it was retrogressive, from $100 to $75, but the NAACP says, you should have reduced it to $50, and you find that the failure to reduce the filing fee to $50 was motivated by a discriminatory purpose, what would you do under section 5?

You would deny the reduction of the filing fee to $75.

You would put back in place the filing fee of $100, the fee that was worse for black candidates.

And Congress understood that since the remedy under section 5 is to deny the change and restore the status quo, you only want to deny the change when it's worse than the status quo.

You never want to deny the change when it's better than the status quo, i.e., nonretrogressive, because then you'd go back to the discriminatory status quo.

Unknown Speaker: Is that how the Justice Department has administered this statute in those hundreds of cases?

Mr. Carvin: The Justice Department has misinterpreted the retrogression standard both in Bossier I and in Beer and in this case as well, and this Court has not given deference to the Justice Department's misinterpretation of the retrogression standard in any of those cases, nor should it in this one as well, and that's because it does raise the very substantial federalism concerns that were addressed in the prior argument.

Unknown Speaker: Let me just suggest... that's a great hypothetical.

It really was clever.

Mr. Carvin: Thank you, Your Honor.

[Laughter]

Unknown Speaker: But isn't the response to that, if the evidence was all that clear they'd bring a section 2 case?

Mr. Carvin: Exactly.

That was the whole point.

No one expected section 5 to undo the discriminatory status quo in the South.

They knew they were dealing with recalcitrant southern jurisdictions.

Section 5 is only triggered if they change.

Well, the last thing they're going to do is change a discriminatory system and subject themselves to Federal review.

Section 2 was the answer.

This is how it worked.

The literacy test--

Unknown Speaker: Yes, but there's nothing in the statute that section 2 is the only answer.

Mr. Carvin: --Well, but the only way you can get at a discriminatory status quo.

That's the essential point.

See, if the status quo is discriminatory, section 5 can't get at it, because section 5 is triggered only when there's a change to the status quo, and this remedy again is to restore the status quo, so if you have a discriminatory status quo, section 5 is powerless to change that, and that's what Congress realized.

Unknown Speaker: Well, you say it's powerless.

That depends on whether one reads the retrogressive modifier to apply to the effect in the statute or to apply to the word abridge, as you do.

Mr. Carvin: No, I must respectfully disagree, Justice Stevens.

The only question in this case is whether abridge means the same thing in the same sentence.

Abridge modifies both purpose and effect, and abridge means retrogress, so if you don't have a purpose to retrogress, you do not have a purpose to abridge.

That is the essential thrust of our statutory argument.

If you are intending to maintain the status quo, you are not intending to abridge.

Now, the appellants argue that that renders the purpose prong relatively meaningless.

Well, it does have some meaning in the Richmond annexation context, as Mr. Wolfson pointed out, but I think the additional point, purpose prong of section 2 and title 7 don't carry much independent baggage.

Section 2 prohibits purposefully discriminatory voting changes, but you rarely even get to that in section 2 litigation because it's got a broader prohibition, which is a prohibition on result, and obviously strict liability statutes are broader than one that requires some kind of bad intent.

It is the appellants who are making the extraordinarily anomalous argument that--

Unknown Speaker: Of course, here the strict liability only attaches if the effect is obvious because it's retrogressive, but if you don't have a retrogressive effect, then you have to look further.

That's all that means.

Your strict liability attaches when there is a retrogressive effect.

Mr. Carvin: --Right, but what do you look at?

Do you look at whether or not they intended to cause the injury, to go back to Justice Scalia's analogy.

If you have... for example, under the law, if you defame somebody negligently, you cannot be held liable, but if you intentionally defame them, you can be held liable, because we agree that intentionally inflicting an injury is worse than negligently doing so, but in both instances you must defame the other person.

There must be a defamatory statement.

And in this case, there must be retrogression to come within the legally cognizable injury addressed by section 5.

Otherwise, you open up the very narrow section 5 proceeding to encompass all sorts of the free-floating purpose inquiry that was referenced before and dramatically increase the burden on the covered jurisdiction in three ways.

First of all, you subject the covered jurisdiction to duplicative litigation and inconsistent judgments.

Under appellants' theory of section 5, the small Louisiana parish comes up to the district court in D.C., proves itself innocent of any potential constitutional violation, and it means nothing, because the next day they can be sued in Louisiana District Court under section 2 and the Fifteenth Amendment, and section 5 strips them of any res judicata defense.

Well, obviously, when section 5 said you can have a follow-on proceeding in the local district court, it was not intending that you have precisely the same trial in the District of Columbia one day and in Louisiana the next.

It intended that the section 5 court would deal with section 5 issues, and it intended that the district court would deal with the constitutional issues, the Fourteenth and Fifteenth Amendment violations that they address every day.

The second problem for the covered jurisdictions is, you create an insoluble dilemma for them, as this Court noted in Miller and Shaw.

If the covered jurisdiction fails to subordinate traditional districting principles to create a majority-minority district, the Justice Department will find that they have a "discriminatory purpose", as they did in this case because the parish refused to violate State law.

On the other hand, if they do subordinate traditional districting principles to create majority-minority districts, then they will have violated the Fourteenth Amendment under Shaw and the gerrymandering cases, and this Court has noted that the jurisdictions need some breathing space to reconcile the competing interests under those two laws.

They need to have some ability not to violate the Voting Rights Act and to comply with the Constitution.

I submit that that breathing space will be gone under this regime.

Unknown Speaker: Counsel, as I understand, part of your argument is that, as a matter of textual analysis and as a matter simply of common sense analysis, there would be something very strange in saying that abridgement with respect to its effects can refer only as this Court has said, to retrogression, whereas a purpose to abridge might be broader to include, among other things, dilution.

It seems to me that in part of your argument this morning you've given a response to that, and I want to know whether I've understood you.

You pointed out that one of the difficulties with the concept of dilution is that there really isn't any benchmark ready-made.

We know what the benchmark is on retrogression simply by definition.

It's the status quo you start from, and you do have your benchmark.

When you're talking about dilution, you don't have a ready-made bench mark.

You have to, in effect, choose one somewhere, and it seems to me that... I mean, I think there's a lot of force in your point there, but that also seems to lead to this, that if we don't know whether a non... or if it's very difficult, conceptually, to decide how to determine whether a nonretrogressive change is dilutive or not, the way we do it is to look to purpose.

Was the purpose in effect to dilute, to in effect to mean that the vote will be less effective than the vote of the majority.

And simply because purpose is so important in determining dilution, whereas effect may not, in fact, be a basis for finding dilution at all, or at least it may be conceptually difficult, it seems to me that it makes perfect sense to say that a statute would want to proscribe an abridgement effect limited only to retrogression, but would want to proscribe an intent that includes both retrogressive and dilutive.

Have I misunderstood your point, and if I haven't, is that suggestion unsound?

Mr. Carvin: Well, I would agree with half of what you said.

The--

Unknown Speaker: Well, that's a good start.

Mr. Carvin: --You've... where I agree with you, Justice Souter, is that you've precisely identified the dilemma that would be confronting us if we injected these purpose, unconstitutional dilution issues into the section 5 proceeding.

Even at the benchmark level, it's tough to figure out what is dilutive.

As the Court pointed out in Johnson v. De Grandy and the Voinivich case, it's hard to even know whether or not a black majority district is less or more dilutive than a 45-percent, so you have to litigate all of those issues.

You have to introduce all of the section 2 evidence that... into the section 5 proceeding to figure that out.

Then you would have to get into the question of whether this multimember body believed that it was dilutive, and if they did believe it, that they have a... I think the phrase is, verifiable reason for not doing so.

You've turned--

Unknown Speaker: Of course, that would be easy in this case.

It would be easy in this case, because the witnesses on behalf of the board, as I recall, testified that they understood that the police jury plan was dilutive, so that would not be a difficult hurdle in this case.

Mr. Carvin: --Well, remember, in Bossier I we said that the district court simply assumed dilutive impact, but this Court found that that was not at all clear, so if... now in future cases to eliminate the question of whether or not a black minority district does have a dilutive impact, to avoid the ambiguity that led to the first remand, you do have to litigate that, and--

Unknown Speaker: But in this case... in this case, it would be easy.

Mr. Carvin: --In this case, there is no question but that white majority districts are not dilutive.

They have elected 3 blacks out of 12 on the school board under white majority districts.

I--

Unknown Speaker: You're going beyond the record, as I understand it.

Mr. Carvin: --Well, unfortunately the record closed before the 1998 election.

Unknown Speaker: Yes.

Yes.

Mr. Carvin: --so the Court has--

Unknown Speaker: There is testimony on the record, as I understand it, that the police jury plan is dilutive, and that the board knew that.

Mr. Carvin: --No.

There is the allegation that it's dilutive, and the board didn't want to bring in their own voting rights expert to disagree with that, because they said, we'll stipulate that it's dilutive, because we've got a superb reason for not taking the nondilutive plan, which is it violates--

Unknown Speaker: Well, the stipulation that it's dilutive--

Mr. Carvin: --Well--

Unknown Speaker: --is pretty good evidence, actually.

Mr. Carvin: --actually--

[Laughter]

Unknown Speaker: --I was using stipulated in the sense that they assumed it arguendo.

They didn't contest it.

But my point is that we are, I think, structuring a rule for future section 5 litigation, and every section 5 jurisdiction, in light of what happened in Bossier I, is going to litigate that.

They are going to introduce precisely the same evidence that you would have had to produce if you injected section 2 into section 5, so all of the federalism concerns that animated the Court to reject the injection of section 2 evidence into the section 5 proceeding apply with equal force here.

Indeed, Congress was quite clear in 1982 in saying that they thought constitutional purpose inquiries were more invasive of State sovereignty than the result test under section 2, so you don't avoid any of these federalism problems.

What is your opinion... and you're free to sound them.

What is your opinion on something I don't really know the answer to.

I haven't sat as a trial judge, but my impression is when a trial judge sits on deciding a question of fact, it's pretty unusual that the trial judge thinks the evidence is really equally convincing.

Normally, he thinks, well, you know, if I'm forced to choose, I think the evidence is a little more one way, or a little more the other way, and I raise that because I want to know what, in your opinion, that would make as a practical difference on factual questions heard by a trial judge if you said, the board has the burden of proving it, or the other side has the burden?

Mr. Carvin: I have to answer that on three levels, Justice Breyer.

First of all, I agree with you that the real problem here is not who has the burden of persuasion.

The real problem is injecting us into this amorphous constitutional purpose inquiry in the narrow section 5 proceeding.

I think that generally the cases in the 2000 redistricting cycle are going to be close cases, with very difficult, if you go too far, do you violate Shaw, so maybe the burden of persuasion will be outcome-determinative in those cases more typically than they would in other kinds of circumstances, because we all recognize that in redistricting you are considering race at some level of abstraction.

Whether that's a discriminatory consideration or not is a question that's bedeviled this Court in the gerrymandering cases, and I think would bedevil the lower courts as well.

My third point is, if they are close cases, of course, that is the kind of burden that you particularly don't want to put on the covered jurisdiction, because if it's a close case where a trial judge could go one way or another, the Justice Department and the minority plaintiffs have all the more incentives to bring the follow-on case in Louisiana that I described earlier.

Because they say, look, it was a coin toss, we might as well get a free second bite at the apple, leading to even more litigation than you have typically involved in redistricting and, of course, the follow-on lawsuit by the nonminorities in the jurisdiction we said that remedy that the Justice Department was trying to force on you violated our rights.

So we're contemplating literally four different proceedings every time we want to get a voting change precleared.

Unknown Speaker: May I--

--Mr. Carvin, you have said in answer to Justice Breyer, and I think you said earlier, that we don't want to put such a difficult burden, particularly in close cases, on the covered jurisdiction, and I don't know why we should assume that.

I would have assumed just the opposite.

The reason section 5 was enacted was that there was a game going on in the south in which every time there was an adjudication there was an immediate change in the law which in effect put the jurisdiction one step ahead of the courts, and the litigation had to start all over again, and I would have supposed that the very point of section 5, whether the issue might be close in litigation or not close in litigation, was to put the burden precisely on the covered districts, and I don't know why it is sound for you to stand here and argue that, in fact, this is somehow an offense against federalism.

It seems to me that it was precisely what was intended, and there was a justification for it.

Mr. Carvin: Again, the presumption that I'm talking about comes from this Court's precedent in Will and Gregory v. Ashcroft, that if you are going to redefine the traditional balance between the Federal Government and the States, you need to do so on the basis of unmistakably clear statutory language Here, we're not only--

Unknown Speaker: And we're talking about a voting context in which, in fact, the political and the constitutional context is fundamentally different from that of any other category of case, isn't that true?

Mr. Carvin: --Well, but of course, that was true in Bossier I and the reasoning in Bossier I was, we're not going to add to the federalism burdens inherent in the covered jurisdiction.

We're not going to inject section 2 into the section 5 proceeding either.

Unknown Speaker: But that begs the question here.

Mr. Carvin: But--

Unknown Speaker: Whether we are adding or not is, in fact, the issue before us.

Mr. Carvin: --Oh, I don't--

Unknown Speaker: Your argument is, well, you don't want to come out to the... with a ruling that a nonretrogressive intent is covered, because these can be very close cases, and that somehow would be offensive to federalism, but if you look at the broader context in which section 5 was enacted, it seems to me that is probably precisely what Congress intended.

Mr. Carvin: --But if we're talking about the 1960's, again, we did not... Congress did not anticipate that the southern jurisdictions would be submitting these redistricting plans because obviously section 5 in 1965 was only supposed to exist for 5 years.

That's why they had to renew it in 1970, so they didn't--

Unknown Speaker: But it has been renewed, and if there's supposed to be a fundamental conceptual difference, I think it's Congress that ought to make it.

Mr. Carvin: --Well, true enough, but in 1982 when it was renewed the Court had just ruled that the Fifteenth Amendment doesn't apply to redistricting cases, so the last thing Congress wanted to do in 1982 was embrace the Fifteenth Amendment standard that appellants were arguing for, because that would create the very real possibility that section 5 wouldn't even reach redistricting.

On the more realistic level--

Unknown Speaker: You say we'd ruled that section... the Fifteenth Amendment doesn't apply to redistricting.

Are you talking about Rogers v. Lodge?

Mr. Carvin: --Actually, the Mobile plurality opinion.

Unknown Speaker: Mobile, or the Mobile--

Mr. Carvin: Yes, which it ruled that the Fifteenth Amendment only deals with the--

Unknown Speaker: --It had an intent element, yes.

Mr. Carvin: --No, I'm sorry, the right to vote, the right... that it only reached the right to cast an individual ballot, that vote dilution mechanisms were not within the scope of the Fifteenth Amendment.

Unknown Speaker: Right.

Mr. Carvin: Those need to be dealt with under the Fourteenth Amendment.

Unknown Speaker: And the 1982 amendment was a response to that decision.

Mr. Carvin: Yes.

Unknown Speaker: Okay.

Mr. Carvin: And obviously they didn't change the language of section 5 to in any way undo that problem, but again, we're talking about 2000, and I think that's the important point to understand.

Unlike the hypotheticals that they keep bringing up from the 1960's, the status quo is no longer discriminatory in 1999.

We know that for three reasons.

They have precleared these redistricting plans three times.

Unknown Speaker: But we don't know it in this case.

There's a record indication in this case that the so-called police jury is dilutive.

You're... it seems to me you're asking us to start with an assumption which is contrary to the record in this case.

Mr. Carvin: No, no, I think that the covered jurisdiction has the burden to disprove retrogression, but I don't think if we're talking about the reality confronting covered jurisdictions--

Unknown Speaker: No, but you said a moment ago, as a premise for your argument, that this is 1999 or 2000, and we're not dealing with discrimination in the jurisdictions.

In this case, we are.

Mr. Carvin: --Well, actually, no, the court found that we're not, that they didn't have a discriminatory purpose.

Unknown Speaker: We are dealing with a police jury system as to which there is evidence in the record that it was dilutive.

Mr. Carvin: Oh, there may be nonpersuasive evidence.

I don't dispute that.

My only point is that the school board's plan was precleared in the 1980's as free of any discriminatory purpose and effect.

That was the--

Unknown Speaker: Wasn't the Department of Justice at that time ignorant that there had been a plan, that there had been the very real possibility of creating at least one, perhaps more, majority-minority districts?

Mr. Carvin: --As I understand it, all of the evidence produced by the black community was communicated to the Justice Department when they precleared the police jury plan in 1991, that they were not in any way misled, or had a mistake made, and I think the best evidence of that, Your Honor, is nobody's ever sued the 1991 police jury plan.

If it was such an obvious violation of the discriminatory purpose standard, presumably somebody would have brought a case against the identical police jury plan, but nobody's done that.

Unknown Speaker: Maybe it didn't matter as much for the police jury as it did for the school districts, and then you have a plan that has districts with no schools in them, two districts where incumbents are paired against each other.

Sounds passing strange that one would want to arrange a school district that way.

Mr. Carvin: Only if the people in those pairs were going to run against each other, and the undisputed evidence is that they were not, and--

Unknown Speaker: But that decision was made later.

Mr. Carvin: --No, actually, the evidence in the record is that they knew at the time that these people in the pairs were not going to run against each other, but indeed the school board was in a worse position than the police jury, because the school board was prohibited by law from splitting precincts, whereas--

Unknown Speaker: Yes, but they could get permission to do that, and there had been permission given in the past.

Mr. Carvin: --Only in response to a Justice Department objection, or where you did joint redistricting with the police jury and the school board.

The school board tried to do that in this case and was unsuccessful in doing so.

There was no ambiguity under State law that says, the precincts that were created in 1991 must be the building blocks for the school board's district.

They have tried to obfuscate that issue, but it is a very straightforward violation of State law, which gives particular point to the point I was trying to make earlier, which is, here, they failed to subordinate State law.

They failed to do something that was admittedly irrational because it was more costly and created voter confusion, which was splitting precincts, and they think this is a very clear case of discriminatory purpose.

That will give you an idea of the dilemma that covered jurisdictions will face in 2000 when they have to create yet another minority-majority district or the Justice Department will say, you didn't have a compelling Government interest for not doing so, ergo you've got to do it, which will lead to a Shaw lawsuit in the wake of that.

If this is a close case, or if this is a clear case of discriminatory purpose, then no covered jurisdiction can get through the Justice Department without committing a Shaw violation.

Unknown Speaker: May I ask you one sort of basic question?

Do you agree with Justice Scalia's comment that the intent, that the meaning of the Department of Justice regulations that distinguish between effect and purpose have been perfectly clear ever since the beginning?

Mr. Carvin: I think it's been their practice.

I think... these are not regulations.

These are guidelines on how they will enforce the law, and--

Unknown Speaker: So we're really deciding whether or not the practice that they've been following for 35 years may continue or not.

Mr. Carvin: --And I think you should give that the same deference that was given to it in Bossier I and Presley, which is none, because, as in Bossier I, their practice is contrary to both the Beer retrogression principle and to the statutory language.

I would also point out that, if you adopt the Justice Department position, you will be overturning the learned opinion of the section 5 district court in the District of Columbia, and they were the ones, as this Court made clear in City of Port Arthur, who were given primary responsibility for interpreting a violation of section 5, so if there's a choice between deferring to the section 5 court and the Justice Department, I think any Chevron deference should be given to the section 5 court in those circumstances.

Unless there are further questions, I have nothing else.

Unknown Speaker: Thank you, Mr. Carvin.

Mr. Wolfson, you have a minute remaining.

Rebuttal of Paul R. Q. Wolfson

Mr. Wolfson: Thank you, Mr. Chief Justice.

I want to address a few points.

First, the filing fees hypothetical, which has come up in various guises.

It does portray a somewhat inaccurate way of how election laws operate and how they are changed.

I mean, jurisdictions don't change election laws for fun.

They usually do it in response to some change in circumstance, or some change in policy that requires it.

Redistricting presents the most obvious example.

Every 10 years, most jurisdictions that have single-member districts are under a constitutional obligation to reapportion.

Section 5 says essentially you can respond to that constitutional obligation in a discriminatory way, or you can respond to it in a nondiscriminatory way.

Section 5 forces you to chose the nondiscriminatory way.

Lopez last term was another example.

The State voters changed the State constitution to say, we want consolidated courts.

There are many ways that could have been carried out.

The effect of section 5 is to say, it must be carried out without discrimination, without discrimination on the basis of race.

Thank you.

Chief Justice William H. Rehnquist: Thank you, Mr. Wolfson.

The case is submitted.