Nos. 95-1681, 95-1682 and 95-1710 In the Supreme Court of the United States OCTOBER TERM, 1995 STATE OF LOUISIANA, ET AL., APPELLANTS v. RAY HAYS, ET AL. LOUISIANA LEGISLATIVE BLACK CAUCUS, ET AL., APPELLANTS v. RAY HAYS, ET AL. UNITED STATES OF AMERICA, APPELLANT v. RAY HAYS, ET AL. APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA BRIEF FOR THE UNITED STATES IN OPPOSITION TO APPELLEES' MOTION TO DISMISS OR AFFIRM DREW S. DAYS, III Solicitor General Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- TABLE OF AUTHORITIES Cases: Page Church of Scientology of California v. United States, 506 U.S. 9 (1992) . . . . 3 Clark v. Roemer, 500 U.S. 646 (1991) . . . . 2 Department of Treasury v. Galioto, 447 U.S. 556 (1986) . . . . 4 McDaniel v. Sanchez, 452 U.S. 130 (1981) . . . . 2, 3 Miller v. Johnson, 115 S. Ct .2475 (1995) . . . . 5 Shaw v. Reno, 509 U.S. 630 (1993) . . . . 5 Thornburg v. Gingles, 478 U.S. 30 (1986) . . . . 4 United States v. Munsingwear, Inc., 340 U.S. 36 (1950) . . . . 4 U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 115 S. Ct. 386 (1994) . . . . 4 Statute and regulation: Voting Rights Act of 1965, 5,42 U.S.C. 1973c . . . . 2, 3 28 C.F.R. 51.2 . . . . 2 Miscellaneous: S. Rep. No. 295, 94th Cong., 1st Sess. (1975) . . . . 3 (I) ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1995 No. 95-1681 STATE OF LOUISIANA, ET AL., APPELLANTS v. RAY HAYS, ET AL. No. 95-1682 LOUISIANA LEGISLATIVE BLACK CAUCUS, ET AL., APPELLANTS v. RAY HAYS, ET AL. No. 95-1710 UNITED STATES OF AMERICA, APPELLANT v. RAY HAYS, ET AL. APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA BRIEF FOR THE UNITED STATES IN OPPOSITION TO APPELLEES' MOTION TO DISMISS OR AFFIRM 1. Appellees contend (Mot, to Dis. 11-13) that the appeals in this case are moot because Louisiana has recently enacted legislation (Act 96) that repeals Act (1) ---------------------------------------- Page Break ---------------------------------------- 2 1 and adopts the district court's remedial redistrict- ing plan. Act 96, however, has not been precleared under Section 5 of Voting Rights Act of 1965, 42 U.S.C. 1973c. Unless and until it is precleared, Act 96 is not effective as law. Clark v. Roemer, 500 U.S. 646, 652-653 (1991). As the Court explained in Clark: Section 5 requires States to obtain either judi- cial or administrative preclearance before imple- menting a voting change. A voting change in a covered jurisdiction "will not be effective as la[w] until and unless cleared" pursuant to one of these two methods. Ibid. Because Act 96 is not effective as law, it cannot affect the viability of the present appeals. Appellees contend (Mot. to Dis. 12) that Act 96 is not subject to Section 5 preclearance because it does not constitute a "change" in the State's voting prac- tices. As the text of Section 5 makes clear, however, an unprecleared voting practice is a "change" subject to preclearance when the practice is "different from that in force or effect on November 1, 1964." 42 U.S.C. 1973c. See 28 C.F.R. 51.2. Since Act 96's re- districting plan is different from the redistricting plan that was in effect on November 1, 1964, Act 96 must be precleared under Section 5. Appellees contend (Mot. to Dis. 12-13) that pre- clearance may be avoided because court-ordered plans are not subject to preclearance under Section 5 and Act 96 adopts a court-ordered plan. That conten- tion is incorrect. Under this Court's decision in McDaniel v. Sanchez, 452 U.S. 130, 153 (1981), the preclearance requirement applies whenever a redis- tricting plan "reflect[s] the policy choices of the elected representatives of the people-no matter what ---------------------------------------- Page Break ---------------------------------------- 3 constraints have limited the choices available to them." Act 96 clearly reflects the policy choices of Louisiana's elected representatives. It is there- fore subject to the preclearance requirement under McDaniel, even though the same redistricting plan was not subject to preclearance when the district court ordered it into effect. The Senate Report accompanying the 1975 exten- sion of Section 5, which was cited by the Court in McDaniel, 452 U.S. at 148-149, leaves no doubt that Congress intended to require preclearance of legisla- tion that adopts a court-ordered plan. It states that: The one exception where Section 5 review would not ordinarily be available is where the court, because of exigent circumstances, actually fash- ions the plan itself instead of relying on a plan presented by a litigant. This is the limited mean- ing of the "court decree" exception recognized in Connor v. Johnson, 402 U.S. 690 (1971). Even in these cases, however, if the governmental body subsequently adopts a plan patterned after the court's plan, Section 5 review would be required. Rep. No. 295, 94th Cong., 1st Sess. 18-19 (1975) (citation omitted). Because Act 96 has not been precleared and is not legally effective, the appeals from the district court's judgment invalidating Act 1 are not moot. For pur- poses of deciding whether an appeal is moot, the rele- vant inquiry is whether the Court can grant effective relief. Church of Scientology of California v. United States, 506 U.S. 9, 12-14 (1992). Effective relief can be granted here. If the Court reverses the district court judgment, Act 1 would become the State's legally ef- fective redistricting plan and future elections would ---------------------------------------- Page Break ---------------------------------------- 4 be held in accordance with that plan. The appeals in this case are therefore not moot.* 2. As we argue in our Jurisdictional Statement, in holding that District 4 in Act 1 is unconstitutional, the district court failed to give sufficient weight to Louisiana's traditional redistricting practices. In particular, the district court failed to evaluate the constitutionality of District 4 in light of the similar- ity of that district to old District 8. That legal error infected both the court's determination that strict scrutiny was applicable and its determination that District 4 does not satisfy the compactness require- ment set forth in Thornburg v. Gingles, 478 U.S. 30 (1986). See U.S. 13-14, 16-17. The district court also made several clearly erroneous findings concerning the role that race played in the redistricting process. J.S. 14-16. Those legal and factual errors warrant this Court's plenary review. ___________________(footnotes) * If the Court were to conclude that the appeals are moot, the correct course would be to vacate the district court's judgment. Department of Treasury v. Galioto, 477 U.S. 556 (1986); United States v. Munsingwear, Inc., 340 U.S. 36, 39-40 (1950). Otherwise, parties in future litigation would be free to argue that the United States and defendant-intervenors are bound by determinations made by the district court in this ease. The United States and the defendant-interveners "ought not in fairness" be subject to such consequences. U.S. Bancorp Mort - gage Co. v. Bonner Mall Partnership, 115 S. Ct. 386, 391 (1994). In arguing that a determination of mootness should not lead to vacation of the judgment below, appellees rely (Mot. to Dis. 14) on the Court's holding in U.S. Bancorp, 115 S. Ct. at 393, that a party who voluntarily moots an appeal is not entitled to the equitable remedy of vacatur. That holding may be applicable to the State of Louisiana; it has no application to either the United States or the defendant-intervenors. ---------------------------------------- Page Break ---------------------------------------- 5 Appellees nonetheless argue that, if the Court reaches the merits, it should summarily affirm the district court's judgment. Mot to Dis. 15-25. Our Ju- risdictional Statement addresses most of the argu- ments made by appellees in support of the judgment below. We limit our response here to the arguments made by appellees that we have not previously ad- dressed. a. Appellees contend (Mot. to Dis. 16, 23) that Ronald Weber's testimony on mathematical measures of compactness supports the district court's finding that District 4 is not geographically compact. The Constitution, however, does not require a State to construct its districts in accordance with mathemati- cal models of compactness. See Shaw v. Reno, 509 U.S. 630, 647 (1993). The relevant inquiry is whether the State concluded in "good faith" that District 4 was reasonably compact when compared with old District 8. Miller v. Johnson, 115 S. Ct. 2475, 2488 (1995). Since District 4 is only ten miles longer than one version of old District 8, and is similar in appear- ance to various versions of it, the State acted in good faith when it concluded that District 4 is reasonably compact. In any event, appellees have not fairly char- acterized Weber's testimony. Weber calculated three "mathematical" measures of compactness: a popula- tion test, a dispersion test, and a "max aspect" test. Weber Test., 10/30/95 p.m., Tr. 161. Weber testified that District 4 scored approximately as well or better on the population test as all five versions of old District 8 in place since 1970. Id. at 162-163. He testified that District 4 in Act 1 scored worse on the dispersion test than the 600 mile-long Z-shaped District 4 in Act 42. Id. at 103-104. That testimony ---------------------------------------- Page Break ---------------------------------------- 6 raises serious questions about the validity of the dispersion test as a measure of compactness. And Weber admitted that the max aspect test was unreli- able. Id. at 161. Accordingly, to the extent that Weber's testimony is relevant, it reinforces the con- clusion that the State acted in good faith when it determined that District 4 in Act 1 is reasonably compact when compared to old District 8. b. Appellees also err in relying (Mot. to Dis. 21) on Weber's testimony that District 4 in Act 1 more closely resembles the 600 mile-long Z-shaped District 4 in Act 42 than old District 8. Weber focused exclu- sively on the overlap in population among the dis- tricts. Ibid. The State, in contrast, reasonably focused on the size, geographic location, and appear- ance of the districts as well. When assessed against all the relevant criteria, District 4 resembles old District 8 far more than the Z-shaped district. c. Appellees contend (Mot. to Dis. 18-19) that Glenn Koepp testified that he used only racial infor- mation in constructing the boundaries of District 4. The testimony cited by appellees, however, shows only that Koepp's computer contained racial data, and that it did not contain certain other data, such as socioeconomic data. The testimony does not remotely suggest that Koepp used only racial data in constructing the districts. Indeed, in a passage in his testimony omitted by appellees, Koepp made clear that the computer program he was using allowed him to compare the district he was drawing with districts in other plans. Koepp Dep. at 79. Koepp also testified that he considered other factors in devising District 4, including compactness and contiguity. Id. at 45-46, 146-148; Koepp Test., 7/21/94 a.m., Tr. 13-14, 25. Ap- pellees' assertion that Koepp testified that he relied ---------------------------------------- Page Break ---------------------------------------- 7 exclusively on race in drawing District 4 is therefore incorrect. d. Appellees contend (Mot. to Dis. 19) that a letter written by the head of the Civil Rights Division of the Department of Justice to counsel for the defendant- intervenors loudly proclaimed DOJ's maximization policy" and "foreordained" that race would predomi- nate in the redistricting process. Appellees are mis- taken. The letter cited by appellees responded to an inquiry by counsel for the defendant-intervenors concerning whether the decision in Hays I invalidat- ing Act 42 had affected the views expressed by the Department of Justice in the Hays I litigation. In that litigation, the Department had argued that the State had a strong basis in evidence for its conclusion that the Voting Rights Act required the drawing of a second majority-black district. The letter made clear that the Department had not changed its view. It stated that: Evidence in the record [of the Hays I proceeding] demonstrates that the three preconditions under Thornburg v. Gingles, 478 U.S. 30 (1986), are satis- fied, giving Louisiana a strong basis for taking action to avoid a Section 2 violation. The plain- tiffs' own plans, developed and presented at trial by Dr. Weber, demonstrate that the black population is sufficiently numerous and geographically com- pact such that two reasonably compact districts with black voting age population majorities can be drawn. In addition, there is uncontradicted evi- dence that voting is racially polarized in congres- sional elections, sufficient to satisfy the second and third Gingles preconditions. ---------------------------------------- Page Break ---------------------------------------- 8 PX 21, at 2. That discussion reflects a straight- forward application of the standards set forth by this Court in Gingles for determining whether the pre- conditions for a Section 2 violation have been estab- lished. It is not evidence of a "maximization policy." Appellees' assertion that the Department of Justice letter "foreordained" the State's policy, choices is also unsupported by the record. Glenn Koepp devised his plan without having had any' communication with the Department of Justice concerning that plan;' Koepp Dep. at 134. The State Senate passed Koepp's plan, containing two majority-black districts, before the Department of Justice sent the letter to counsel for defendant-intervenors. And not a single state legisla- tor testified that the letter affected his vote on Act 1. * * * * * For the foregoing reasons, as well as those in our jurisdictional statement, the Court should note pro- bable jurisdiction. Respectfully submitted. DREW S. DAYS, III Solicitor General JUNE 1996 ---------------------------------------- Page Break ----------------------------------------