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No. 98-405: Reno v. Bossier Parish School Board

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No. 98-405

In the Supreme Court of the United States
OCTOBER TERM, 1997

JANET RENO, APPELLANT

v.

BOSSIER PARISH SCHOOL BOARD

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

APPENDIX TO THE
JURISDICTIONAL STATEMENT

SETH P. WAXMAN
Solicitor General
Counsel of Record
ANITA S. HODGKISS
Acting Assistant Attorney
General
BARBARA D. UNDERWOOD
Deputy Solicitor General
PAUL R.Q. WOLFSON
Assistant to the Solicitor
General
MARK L. GROSS
LOUIS E. PERAERTZ
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217



APPENDIX A

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Civil Action No. 94-1495 (LHS (USCA), GK, JR)

BOSSIER PARISH SCHOOL BOARD, PLAINTIFF

v.

JANET RENO, ATTORNEY GENERAL, DEFENDANT,
GEORGE PRICE, ET AL., INTERVENOR-DEFENDANTS

[Filed: May 1, 1998]

Before: SILBERMAN, Circuit Judge, and KESSLER and ROBERTSON, District Judges.

Opinion for the Court filed by Judge ROBERTSON

ROBERTSON, District Judge: This case is before us on remand from the United States Supreme Court for further proceedings consistent with the Court's decision of May 12, 1997, 117 S. Ct. 1491. The parties have agreed that the record should not be reopened for the taking of additional evidence,1 but they have submitted additional briefs. After reviewing the record in compliance with the Supreme Court's opinion, we adhere to our decision of November 18, 1995 granting preclearance under § 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c, to the Bossier Parish School Board's redistricting plan ("the Jury plan"). The facts bearing upon our conclusion are all set forth in the opinions issued with our original judgment, 907 F. Supp. 434 (D.D.C. 1995). The reasons for our decision to adhere to that judgment are set forth below.
In compliance with the Supreme Court's instructions, we have considered the relevance of certain "§ 2 evidence" in evaluating the school board's intent for § 5 purposes. We have considered whether the plan in question "has a dilutive impact . . . [making] it 'more probable' that the jurisdiction adopting that plan acted with an intent to retrogress than 'it would be without the evidence.'" 117 S. Ct. at 1501. We have applied the multi-part test articulated in Arling- ton Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S. Ct. 555 (1977), to evaluate the school board's purpose. And, we have "address[ed] appellants' additional arguments that [we] erred in refusing to consider evidence that the board was in violation of an ongoing injunction to remedy any remaining vestiges of [a] dual [school] system." 117 S. Ct. at 1503 (internal quotations omitted).

I.
Before carrying out the tasks assigned to us on remand, and particularly before applying the Arlington Heights test to the record before us, it is necessary to decide what question we are answering. The Supreme Court was clearly interested in our view as to whether considering all of the evidence, the school board has carried its burden of proving that it did not intend to retrogress. The Court "le[ft] open for another day the question whether the § 5 purpose inquiry ever extends beyond the search for retro- gressive intent." Justice O'Connor's opinion for the Court suggested that we might consider that question on remand.2 Justices Breyer and Ginsburg were clearly uncomfortable with leaving the question for another day, "for otherwise the District Court will find it difficult to consider the evidence that we say it must consider," 117 S. Ct. at 1504.
We are not certain whether or not we have been invited to answer the question the Court left for another day, but we decline to do so in this case, because the record will not support a conclusion that extends beyond the presence or absence of retrogressive intent. We can imagine a set of facts that would establish a "non-retrogressive, but nevertheless discriminatory, purpose," but those imagined facts are


not present here. The question we will answer, accordingly, is whether the record disproves Bossier Parish's retrogressive intent in adopting the Jury plan.
We must next decide what we mean by "retrogression." The controlling law is clear-up to a point. "Retrogression, by definition, requires a comparison of a jurisdiction's new voting plan with its existing plan . . . [citation omitted]. It also necessarily implies that the jurisdiction's existing plan is the benchmark. . . ." 117 S. Ct. at 1497. Intervenor argues that to search for retrogression in a jurisdiction that has never elected a black person to its school board is a fool's errand, because "it would appear impossible to retrogress from zero." Brief on remand of defendant-intervenors, at 35. But the test of retrogressive intent, in our view, need not depend on the number of black persons elected. The language of Beer v. United States, 425 U.S. 130, 96 S. Ct. 1357 (1976), is just as applicable to the "purpose" inquiry as to the "effect" inquiry. Thus, a plan has an impermissible purpose under § 5 if it is intended to "lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." Beer, 425 U.S. at 141, 96 S. Ct. at 1364. That test is broad enough to identify "retrogression" regardless of the outcome of an election, if (to imagine an example not present in this case) polling places were located so that they are less convenient to black voters than before the change, or if (for an example closer to the facts of this case) downward adjustments were made in the percentage of black voters in one or more districts.

II.
In applying the standard set forth above to the record of this case we adhere to our earlier attempt to fashion a method of analysis, set forth in our earlier opinion, 907 F. Supp. at 445-446, that acknowledges the difficulty of the school board's burden to prove the absence of discriminatory intent. Thus, we begin again with the observation that the school board's resort to the pre-cleared Jury plan (which it mistakenly thought would easily be pre-cleared) and its focus on the fact that the Jury plan would not require precinct splitting, while the NAACP plan would, were "legitimate, non-discriminatory motives" entitling the school board to a finding that it had presented a prima facie case for preclearance.
The first Arlington Heights factor is "the impact of the official action-whether it 'bears more heavily on one race than another.'" 429 U.S. at 266, 97 S. Ct. at 564. In this case, the question is whether the Jury plan bears more heavily on blacks than the pre-existing plan. The intervenor, referring to stipulations of record, argues that
the board knew that the black population was growing in the northern portion of the county, where District 4 of the 1980's plan already had a black voting age population of 42.1 percent. . . . Faced with that information . . . the board chose a plan that extended District 4 to the southeast and decreased the black voting age population to 40.9 percent. . . . The board offered no race-neutral explanation for these changes. Therefore the board failed to carry its burden of proving that such changes were not intended to have their forseeable effect: 'to worsen the position of minority voters.'
Brief on Remand of Defendant-Intervenors, at 36-37. That percentage shift in dilution, even though it applies to only one of the twelve districts in question, might indeed be enough to rebut the non-discriminatory reasons advanced by the school board, were it not for the fact that the parties have stipulated the point away, agreeing that this reduction, and the reduction of the black population in another district from 36.9 percent to 36.1 percent, are de minimis. Stip. ¶ 252.
The intervenor points to a number of other allegedly dilutive impacts of the Jury plan in support of its discriminatory intent argument: that some of the new districts have no schools, that the plan ignores attendance boundaries, that it does not respect communities of interest, that there is one outlandishly large district, that several of them are not compact, that there is a lack of contiguity, and that the population deviations resulting from the jury plan are greater than the limits (± 5 %) imposed by Louisiana law. Two of those points-failure to respect communities of interest and cutting across attendance boundaries -might support a finding of retrogressive intent, if there were any corroborating evidence that the school board had deliberately attempted to break up voting blocks before they could be established or otherwise to divide and conquer the black vote. In the absence of such evidence in this record, however, the point is too theoretical, and too attenuated, to be probative.
The second Arlington Heights factor is the historical background of the school board's adoption of the jury plan. That background is summarized at 907 F. Supp. 455-56 and provides powerful support for the proposition that the Bossier Parish School Board in fact resisted adopting a redistricting plan that would have created majority black districts. Part of that history is the school board's resistance to court-ordered desegration, and particularly its failure to comply with the order of the United States District Court in Lemon v. Bossier Parish School Board, 240 F. Supp. 709 (W.D. La. 1965), aff'd 370 F.2d 847 (5th Cir. 1967), cert. denied, 388 U.S. 911 (1967), that it maintain a bi-racial committee to "recommend to the School Board ways to attain and maintain a unitary system and to improve education in the parish." Stip. ¶ 111. All of that history is admissible to prove intent. The intent it proves in this case, we think, is a tenacious determination to maintain the status quo. It is not enough to rebut the School Board's prima facie showing that it did not intend retrogression.
The remaining Arlington Heights factors do not require extended discussion. The specific sequence of events leading up to the school board's decision to adopt the jury plan is discussed in our previous decision at 907 F. Supp. at 448. It does tend to demonstrate the school board's resistance to the NAACP plan; it does not demonstrate retrogressive intent. Evidence in the record tending to establish that the board departed from its normal practices, see 907 F. Supp. at 457, establishes rather clearly that the board did not welcome improvement in the position of racial minorities with respect to their effective exercise of the electoral franchise, but is not evidence of retrogressive intent. As for the contemporary statements of participants in the board's decision and other details of legislative history, the several statements made by school board members were discussed at 907 F. Supp. 447-448 and 907 F. Supp. 459. They do not establish retrogressive intent.

SILBERMAN, Circuit Judge, concurring: The Supreme Court remanded part of this case primarily because it was uncertain whether we had considered the "dilutive impact" of the Board's redistricting plan as relevant evidence in determining whether it had been adopted for a discriminatory purpose within the meaning of § 5. The term "dilution" has become a rather confusing word of art in § 2 cases, 42 U.S.C. § 1973. See Abrams v. Johnson, 117 S. Ct 1925, 1935-38 (1997); see also Thornburg v. Gingles, 478 U.S. 30 (1986). The Supreme Court never explic- itly defined what it meant by evidence of "dilutive impact"-a phrase that neither the Court, any court of appeals, nor this district court has used in connection with § 2 before-in this case. A careful reading of the opinion suggests, however, that the Court meant only that the plan the Board adopted had less majority black districts than that which could have been created. See Reno v. Bossier Parish Sch. Bd., 117 S. Ct. 1491, 1503 (1997). We, of course, never rejected such evidence; it was the premise of the government's case. "Here defendant argues that the School Board has failed to provide an adequate reason explaining why it declined to act on a proposal featuring two majority-black districts." Bossier Parish Sch. Bd. v. Reno, 907 F. Supp. 434, 449 (D.D.C. 1995).
To be sure, we did say we would "not permit § 2 evidence to prove discriminatory purpose. . . ." Id. at 445 (emphasis added). But we never said that any evidence that would be relevant in a § 2 case would be excluded in a § 5 case. Indeed, in footnote 6 we specifically excluded "evidence relevant only to [a] § 2 inquiry," id. at 445 n.6, necessarily implying that some evidence could go to both. The Supreme Court itself recognized that only "some of this '§ 2 evidence' may be relevant" in a § 5 case, Reno, 117 S. Ct. at 1501, and, furthermore, "[t]hat evidence of a plan's dilutive impact may be relevant to the § 5 purpose inquiry does not, of course, mean that such evidence is dispositive of [proves] that inquiry." Id. at 1502.
The phrase "dilutive impact" was not used in our opinion-nor for that matter in the dissent-because it was not an issue in the case. That the NAACP offered an alternate plan whereby more majority black districts would be created was undisputed. (In that regard, I believe the government's filings in the Supreme Court were deceptive .)3 The real issue in the case was whether Bossier Parish had an affirmative obligation to create the maximum number of black majority districts. I take it the Supreme Court agrees with us that it did not. "At one point, the District Court correctly stated that 'the adoption of one nonretrogressive plan rather than another nonretrogressive plan that contains more majority-black districts cannot by itself give rise to the inference of discriminatory intent.'" Id. at 1503, quoting Bossier Parish, 907 F. Supp. at 450.
As for the Arlington Heights framework which the Supreme Court said should be applied to determine whether the Board had a discriminatory purpose, it should be readily apparent that our previous opinion, without citing the case, did just that. We carefully considered "the historical background of the [jurisdiction's] decision"; "[t]he specific sequence of events leading up to the challenged decision"; "[d]epartures from the normal procedural sequence"; and "[t]he legislative or administrative history, especially . . . [any] contemporary statements by members of the decisionmaking body." Id. at 1503, quoting Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 267-68 (1976). The Court does not indicate that our review of that evidence was in any way inadequate except that it notes that we did not indicate how we viewed the claim that Bossier Parish was in supposed violation of an injunction issued by the western district of Louisiana to unify the school system. We do so now.

KESSLER, District Court Judge, dissenting.
This case is before us on remand from the United States Supreme Court for further proceedings consistent with its May 12, 1997 decision in Reno v. Bossier Parish Sch. Bd., et al., 117 S. Ct. 1491. Upon further review and consideration of the record in accordance with the Supreme Court's mandate, I am forced once again to conclude that I cannot in good conscience agree with the result reached by my colleagues. Instead, I remain convinced that "the School Board's decision to adopt the Police Jury redistricting plan was motivated by discriminatory purpose", Bossier Parish Sch. Bd. v. Reno, et al., 907 F. Supp. 434, 463 (D.D.C. 1995) (Kessler, J., dissenting), and should thus be denied preclearance under the Voting Rights Act of 1965, 42 U.S.C. § 1973c ("Voting Rights Act").
I.
In its opinion, the Supreme Court confirmed that "a violation of § 2 [of the Voting Rights Act] is not grounds in and of itself for denying preclearance under § 5 [of the Act]." 117 S. Ct. at 1500. The Court stated that nevertheless, such "[§ 2] evidence of a plan's dilutive impact may be relevant to our § 5 purpose inquiry". 117 S. Ct. at 1502. The Court emphasized that § 2 evidence, while potentially relevant to the § 5 purpose inquiry, is not dispositive of that inquiry. Consequently, the Court directed us to consider and weigh the relevance of "evidence of the dilutive impact of the Board's redistricting plan". Id. at 1503.
The Supreme Court also directed us, in conducting our inquiry into the School Board's motivation, to apply the framework articulated in Arlington Heights v. Metro. Hous. Dev. Corp., et al., 429 U.S. 252 (1977). The Arlington Heights framework has been used both to evaluate "whether invidious discriminatory purpose was a motivating factor" in a government body's decisionmaking and also, "at least in part, to evaluate purpose in [the Court's] previous § 5 cases." 117 S. Ct. at 1502 (citing City of Pleasant Grove v. United States, 479 U.S. 462, 469-70 (1987)).
My colleagues have limited their § 5 purpose inquiry to a search for intent to retrogress and have declined to consider whether the § 5 inquiry ever extends beyond that search for retrogressive intent. I read the Supreme Court's mandate more broadly. The Supreme Court stated that, while it did not assume "that the Board enacted the Jury plan with some nonretrogressive, but nevertheless discriminatory, 'purpose'[, t]he existence of such a purpose, and its relevance to § 5, are issues to be decided on remand." 117 S. Ct. at 1501. Given the clarity of these words, I fail to see how we can avoid carrying out the Supreme Court's directive to (1) inquire into the existence of "some nonretrogressive, but nevertheless discriminatory, 'purpose'"; and (2) determine the relevance of such a purpose (should one exist) to our § 5 inquiry.
Finally, the Supreme Court directed us to address the government's arguments that the District Court "erred in refusing to consider evidence that the Board was in violation of an ongoing injunction" to attain a unitary system of education in the Parish.4 117 S. Ct. at 1503.
II.
The majority finds that School Board has made out its prima facie case for preclearance. The School Board states that it adopted the Police Jury plan for at least two nondiscriminatory motives-the "plan offered the twin attractions of guaranteed preclearance and easy implementation". 907 F. Supp. at 447. To make out its prima facie case, "the School Board must demonstrate that the proposed change will have no retrogressive effect, and that the change was undertaken without a discriminatory purpose. Proof of nondiscriminatory purpose must include 'legitimate reasons' for settling on the given change." Id. at 446 (citing Richmond v. United States, 422 U.S. 358, 375 (1975).
I find that the reasons given by the School Board for adopting the Police Jury plan are not at all "legitimate". The majority, in its earlier opinion, conceded that the School Board did not favor the Police Jury plan until "the redistricting process began to cause agitation within the black community", 907 F. Supp. at 447, since the plan "wreaked havoc with the incumbencies of four of the [twelve] School Board members and was not drawn with school locations in mind." Id.
The conclusions I reached in my original dissent are as valid now as they were then:
The Policy Jury plan only became "expedient" when the School Board was publicly confronted with alternative plans demonstrating that majority-black districts could be drawn, and demonstrating that political pressure from the black community was mounting to achieve such a result. The common-sense understanding of these events leads to one conclusion: The Board adopted the Police Jury plan-two years before the next election-in direct response to the presentation of a plan that created majority-black districts. Faced with growing frustration of the black community at being excluded from the electoral process, the only way for the School Board to ensure that no majority-black districts would be created was to quickly adopt the Police Jury plan and put the issue to rest. This sequence of events of "public silence and private decisions," culminating in the Board's hasty decision, is evidence of the Board's discriminatory purpose.
907 F. Supp. at 457-58 (Kessler, J., concurring in part and dissenting in part) (footnote omitted).
The School Board has thus failed to establish a prima facie case that is "supported by 'credible and credited evidence'". 907 F. Supp. at 446 (citation omitted). Its proffered reasons for acceptance of the Police Jury plan are clearly pretextual. This conclusion alone permits us to deny preclearance to the School Board's plan.
A more thorough evaluation of the School Board's intent, under the purpose prong of § 5, only reinforces the necessity of this conclusion and outcome.
III.
The parties agree that the School Board's proposed redistricting plan will not have a retrogressive effect. Resolution of this case thus turns on whether the School Board can demonstrate by a preponderance of the evidence that it did not adopt the plan with an unlawful purpose. The Supreme Court left it to us to decide whether our "purpose" inquiry is limited to a search for retrogressive intent, or whether our inquiry should extend beyond that search.
The Voting Rights Act was enacted by Congress "to 'attac[k] the blight of voting discrimination' across the Nation." 117 S. Ct. at 1496-97 (quoting S. Rep. No. 97-417, 2d Sess., p. 4 (1982) U.S. Code Cong. & Admin. News 1982 pp. 177, 180; South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966)). Before implementing a change in "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting", a jurisdiction must first obtain either administrative preclearance from the Attorney General or judicial preclearance from the District Court for the District of Columbia. 42 U.S.C. § 1973c. Section 5 of the Act imposes on a jurisdiction the burden of proving that its 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." 42 U.S.C. § 1973c. It is well-settled that a plan has an impermissible effect under § 5 only if it "would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." 117 S. Ct. at 1497 (quoting Beer v. United States, 425 U.S. 130, 141 (1970)). We must decide whether a plan has an impermissible purpose under § 5 only if the jurisdiction intends the plan to "lead to a retrogression", or if an impermissible purpose also includes a "nonretrogressive, but nevertheless discriminatory purpose".
The Supreme Court stated that "Congress enacted § 5, not to maintain the discriminatory status quo, but to stay ahead of efforts by the most resistant jurisdictions to undermine the Act's purpose of 'rid[ding] the country of racial discrimination.'" 117 S. Ct. at 1509 (Stevens, Souter, JJ., dissenting in part and concurring in part). If we were to deny preclearance under § 5 only to those new plans enacted specifically with a retrogressive purpose, however, we would commit ourselves to granting § 5 preclearance to a "resistant" jurisdiction's nonretrogressive plan even if the record demonstrated an intent by that jurisdiction to perpetuate an historically discriminatory status quo by diluting minority voting strength.
Since "a new plan enacted with the purpose of unconstitutionally diluting minority votes is an unconstitutional plan," 117 S. Ct. at 1505 (Breyer, Ginsburg, JJ., concurring in part and concurring in the judgment) (citations omitted), a construction of § 5 that limits its purpose inquiry to a search for retrogressive intent could require us to preclear nonretrogressive but nevertheless unconstitutional voting plans. Such a result is clearly inconsistent with the purpose of both the Voting Rights Act in general and § 5 in particular. Along with Justices Breyer and Ginsburg, I do not "believe that Congress would have wanted a § 5 Court (or the Attorney General) to approve an unconstitutional plan adopted with an unconstitutional purpose." Id. at 1506.
I thus join Justices Breyer, Ginsburg, Stevens, and Souter in concluding that "the 'purpose' inquiry does extend beyond the search for retrogressive intent." Id. at 1505.
IV.
The Supreme Court stated that § 2 "evidence of the dilutive impact of the Board's redistricting plan" may be relevant in a § 5 proceeding to establish a jurisdiction's "intent to retrogress". Id. at 1501. As stated above, however, I find that our § 5 purpose inquiry should extend beyond a search for the jurisdiction's intent to retrogress; I will thus assess the relevance of § 2 evidence to establish not only whether the School Board acted with an intent to retrogress, but also whether it acted with the unconstitutional purpose of diluting minority voting strength. Thus, pursuant to the Court's mandate, I believe we must first consider evidence that would be relevant to the § 2 inquiry on dilutive impact, and second, determine the relevance of that evidence to our § 5 purpose inquiry.
Plaintiffs claiming vote dilution under § 2 must first establish that the racial group "is sufficiently large and geographically compact to constitute a majority in a single-member district". Id. at 1498 (citations omitted). In this case, the School Board received, in addition to the plan presented on September 3, 1992, two other plans demonstrating that "it is possible to draw majority-black districts in Bossier Parish which are fully consistent with traditional districting principles." Bossier Parish Sch. Bd. v. Reno, et al., 907 F. Supp. 434, 454 n. 3 (D.D.C. 1995) (Kessler, J., concurring in part and dissenting in part). Furthermore, the School Board has admitted that it is "obvious that a reasonably compact black-majority district could be drawn in Bossier City." Id. (quoting Stip. ¶ 36.)
Second, § 2 plaintiffs must establish that the group is "politically cohesive". In order "to ascertain whether minority members constitute a politically cohesive unit and to determine whether whites vote sufficiently as a bloc usually to defeat the minority's preferred candidates", the Supreme Court has directed courts to inquire into the existence of racially polarized voting. Thornburg v. Gingles, 478 U.S. 30, 56 (1986). Here, the Stipulations clearly demonstrate that Parish is racially polarized. 907 F. Supp. at 454 (citing Stip. ¶¶ 181-96). Such racial polarization indicates that blacks in Bossier Parish are a "politically cohesive" group.
Third, § 2 plaintiffs must establish that the white majority usually votes as a bloc to defeat the minority's preferred candidate. 117 S. Ct. at 1498 (citations omitted). Parties stipulate, in the record before us, that no black person has been elected to the Bossier Parish School Board despite the fact that 20.1% of the population is black.5 (Stip.¶¶ 153, 5.) Stipulations ¶¶ 181-95 discuss racially polarized voting patterns in Bossier Parish. Analysis of several elections illustrated that, in at least two elections, "the black candidates were the choice of the black voters in these elections, but were not the choice of the white voters." (Stip. ¶ 186; see also Stip. ¶¶ 181-95.)
Fourth, plaintiffs claiming § 2 vote dilution "must also demonstrate that the totality of the circumstances supports a finding that the voting scheme is dilutive." 117 S. Ct. at 1498 (citing Johnson v. DeGrandy, 512 U.S. 997, 1011, (1994); Gingles, 478 U.S. at 50-51). Gingles spells out the typical factors which may be relevant to a totality analysis of a § 2 claim. 478 U.S. at 44-45. They include:
(1) "[T]he history of voting-related discrimination in the State or political subdivision". Id. at 44. Parties' Stipulations ¶¶ 213-47 discuss the extensive history of official and voting-related discrimination in Bossier Parish.
(2) "[T]he extent to which voting in the elections of the State or political subdivision is racially polarized". Id. at 44-45. As already noted, the Stipulations clearly demonstrate that voting in Bossier Parish is racially polarized. 907 F. Supp. at 454 (citing Stip. ¶¶ 181-96).
(3) "[T]he extent to which the State or political subdivision has used voting practices or procedures that tend to enhance the opportunity for discrimination against the minority group". Gingles, 478 U.S. at 45. See, e.g., Stip. ¶¶ 228-29, which discuss the implementation by the State of Louisiana in 1968 and 1971 of voting procedures, including the adoption of at-large elections and multi-member districts, which the Attorney General found diluted black voting strength.
(4) "[T]he exclusion of members of the minority group from candidate slating processes". Gingles, 478 U.S. at 45. We have no evidence indicating that black individuals have been excluded from candidate slating processes.
(5) "[T]he extent to which minority group members bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process". Id. at 45. The parties have stipulated that:
Education, income, housing and employment are considered standard measures of socioeconomic status. These factors repeatedly have been found to translate into political efficacy . . . Black citizens of Bossier Parish suffer a markedly lower socioeconomic status than their white counterparts. This lower socioeconomic status is traceable to a legacy of racial discrimination affecting Bossier Parish's black citizens.
(Stip.¶¶ 198-99.)
(6) "[T]he use of overt or subtle racial appeals in political campaigns". Gingles, 478 U.S. at 45. We have no evidence demonstrating that racial appeals have been used in political campaigns.
(7) "[T]he extent to which members of the minority group have been elected to public office in the jurisdiction". Id. The record before us shows that no black candidate has been elected to the Bossier Parish School Board. (Stip.¶ 153.)
The Gingles Court noted that "there is no requirement that any particular number of factors be proved, or that a majority of them point one way or the other." Id. (quoting S.Rep. at 29, U.S. Code Cong. & Admin. News 1982, p. 207).
Finally, § 2 plaintiffs "must also postulate a reasonable alternative voting practice to serve as the benchmark "undiluted" voting practice." 117 S. Ct. at 1498 (citing Holder v. Hall, 512 U.S. 874, 881 (1994) (plurality opinion)). The School Board has been given several plans showing that it is possible to draw majority-black districts in Bossier Parish in a manner consistent with traditional districting principles. 907 F. Supp. at 454.
Having considered "evidence of the dilutive impact of the Board's redistricting plan", 117 S. Ct. at 1503, I conclude that it overwhelmingly demonstrates the following: the black voting population in Bossier Parish is sufficiently large and geographically compact to constitute a majority in at least two single-member districts; black voters are politically cohesive; the white majority votes sufficiently often as a bloc to enable it repeatedly to defeat the blacks' preferred candidates; and finally, the totality of the circumstances supports a finding that the School Board's plan is dilutive.6
It would be impossible to ignore the weight and the relevance of this § 2 evidence to the School Board's intent to dilute the voting strength of blacks in Bossier Parish.
V.
The Supreme Court has also directed us to apply the framework, articulated in Arlington Heights v. Metro. Hous. Dev. Corp., et al., 429 U.S. 252 (1977), to evaluate the School Board's purpose in adopting the Police Jury plan. 117 S. Ct. at 1503.
In Part II of my initial dissent, I discussed in detail the Arlington Heights framework and applied it to this record. See 907 F. Supp. at 453-60 (Kessler, J., concurring in part and dissenting in part). Based on that analysis, I believed then, and for the same reasons still believe now, that:
[T]he only conclusion that can be drawn from the evidence is that the Bossier School Board acted with discriminatory purpose. The adopted plan has a substantial negative impact on the black citizens of Bossier Parish. The sequence of events leading up to the decision show conclusively how the School Board excluded the black community from the redistricting process and rushed to adopt the Police Jury plan only when faced with an alternative plan that provided for black representation. The plan itself ignores and overrides a number of the School Board's normally paramount interests. And the statements of some School Board members certainly lend strength to the other evidence . . . We cannot blind ourselves to the reality of the situation and the record before us.
Id. at 460 (Kessler, J., concurring in part and dissenting in part).
The majority has, consistent with the Supreme Court's mandate, also applied the Arlington Heights analysis to the record. It examines each of the Arlington Heights factors, however, only for the purpose of finding evidence of retrogressive intent. This is far too limited and narrow an inquiry. Since our § 5 purpose inquiry should, in my opinion, extend beyond a search for retrogressive intent, so too should our Arlington Heights analysis.
In its analysis of the impact of the Jury plan7 (the "important starting point" for assessing discriminatory intent under Arlington Heights), the majority states that the plan's failure to respect communities of interest and the fact that it cuts across attendance boundaries "might support a finding of retrogressive intent, if there were any corroborating evidence that the school board had deliberately attempted to break up voting blocks before they could be established or otherwise to divide and conquer the black vote." Majority Op. at 6-7 (emphasis added). I find nothing in Arlington Heights nor in the Supreme Court's opinion in Bossier that supports the imposition of the additional requirement of "corroborating evidence" of a jurisdiction's "deliberate[ ] attempt[ ] to . . . divide and conquer the black vote" before evidence of dilutive or disparate impact can be considered relevant to an Arlington Heights examination of purpose.
In considering the historical background of the School Board's decision, the majority found that the School Board has resisted court-ordered desegregation and failed to comply with the Court's order in Lemon v. Bossier Parish Sch. Bd., 240 F. Supp. at 709. The majority admits the existence of "powerful support for the proposition that the Bossier Parish School Board in fact resisted adopting a redistricting plan that would have created majority black districts", and concluded that "[a]ll of that history . . . proves in this case, we think, [] a tenacious determination to maintain the status quo." What the majority overlooks or ignores is that the status quo which the School Board is so anxious to maintain is a discriminatory one. Furthermore, the record demonstrates that the School Board hopes to maintain that discriminatory status quo by unconstitutionally diluting black voting strength. Thus, the majority's conclusion (that the School Board acted with an intent to maintain the discriminatory status quo) leads to denial of preclearance to the Jury plan under the purpose prong of § 5.
The majority also finds that "[e]vidence in the record tending to establish that the board departed from its normal practices establishes rather clearly that the board did not welcome improvement in the position of racial minorities with respect to their effective exercise of the electoral franchise, but is not evidence of retrogressive intent". Majority Op. at 8 (citations omitted). Such an "improvement in the position of racial minorities", however, is precisely what is necessary to redress the current discriminatory status quo in Bossier Parish. Limiting their inquiry to a search for retrogressive intent only permits my colleagues to all but concede that the School Board acted with a nonretrogressive but nevertheless discriminatory intent. They nevertheless grant preclearance under § 5 to the School Board's plan, even though "the purpose part of § 5 prohibits a plan adopted with the purpose of unconstitutionally diluting minority voting strength, whether or not the plan is retrogressive in its effect." 117 S. Ct. at 1506 (Breyer, Ginsburg, JJ., concurring in part and concurring in the judgment).
VI.
Finally, the Supreme Court directed us to "address [the Government's] additional arguments that [the District Court] erred in refusing to consider evidence that the Board was in violation of an ongoing injunction 'to remedy any remaining vestiges of [a] dual [school] system'". 117 S. Ct. at 1503.
My initial dissent considered this evidence and found it relevant since Arlington Heights states that "the historical background of the challenged decision" is properly part of the purpose inquiry. 429 U.S. at 267. Since 1965, the Bossier Parish School Board has been the defendant in Lemon v. Bossier Parish School Board, Civ.Act. No. 10,687 (W.D. La., filed Dec. 2, 1964). My dissent noted that, "[t]o this day, the School Board remains under direct federal court order to remedy any remaining vestiges of segregation in its schools", and discussed the Board's dismantling of a Biracial Committee "in direct violation of a federal court order". Id. at 456. Ultimately, I found that "this history reveals an insidious pattern which cannot be ignored, and must inform our decision today . . . [T]he Bossier Parish School Board's actions effectively eliminate the black community from the political process." Id.
I thus again conclude that the School Board's decision to adopt the Police Jury redistricting plan was motivated by a discriminatory, if not necessarily retrogressive, purpose. The evidence overwhelmingly indicates that the Bossier Parish School Board is one of those "most resistant jurisdictions" whose efforts Congress sought to combat when it enacted § 5 of the Voting Rights Act.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Civ.A. No. 94-1495 (LHS (USCA), GK, JR)

BOSSIER PARISH SCHOOL BOARD, PLAINTIFF

v.

JANET RENO, ATTORNEY GENERAL, DEFENDANT,
GEORGE PRICE, ET AL., INTERVENOR-DEFENDANTS

[Filed: May 1, 1998]

ORDER

For the reasons set forth in the opinion issued today by this three-judge court, it is this 1st day of May, 1998,
ORDERED that plaintiff Bossier Parish School Board is given pre-clearance for its election plan adopted on October 1, 1992, and that it shall have a declaratory judgment to that effect.


/s/ JAMES ROBERTSON
JAMES ROBERTSON
United States District
Judge for the Court



APPENDIX B

In the Supreme Court of the United States

OCTOBER TERM, 1996



Nos. 95-1455, 95-1508

JANET RENO, ATTORNEY GENERAL, APPELLANT

v.

BOSSIER PARISH SCHOOL BOARD, ET AL.

GEORGE PRICE, ET AL., APPELLANTS

v.

BOSSIER PARISH SCHOOL BOARD, ET AL.



[Argued: Dec. 9, 1996
Decided May 12, 1997*]



Justice O'CONNOR delivered the opinion of the Court.

Today we clarify the relationship between § 2 and § 5 of the Voting Rights Act of 1965, 79 Stat. 437, 439, as amended, 42 U.S.C. §§ 1973, 1973c. Specifically, we decide two questions: (i) whether preclearance must be denied under § 5 whenever a covered jurisdiction's new voting "standard, practice, or procedure" violates § 2; and (ii) whether evidence that a new "standard, practice, or procedure" has a dilutive impact is always irrelevant to the inquiry whether the covered juris- diction acted with "the purpose . . . of denying or abridging the right to vote on account of race or color" under § 5. We answer both in the negative.

I

Appellee Bossier Parish School Board (Board) is a jurisdiction subject to the preclearance require- ments of § 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c, and must therefore obtain the approval of either the United States Attorney General or the United States District Court for the District of Columbia before implementing any changes to a vot- ing "qualification, prerequisite, standard, practice, or procedure." The Board has 12 members who are elected from single-member districts by majority vote to serve 4-year terms. When the 1990 census revealed wide population disparities among its districts, see App. to Juris. Statement 93a (Stipulations of Fact and Law ¶ 82), the Board decided to redraw the districts to equalize the population distribution.

During this process, the Board considered two redistricting plans. It considered, and initially re- jected, the redistricting plan that had been recently adopted by the Bossier Parish Police Jury, the parish's primary governing body (the Jury plan), to govern its own elections. Just months before, the Attorney General had precleared the Jury plan, which also contained 12 districts. Id. at 88a (Stipulations, ¶ 68). None of the 12 districts in the Board's existing plan or in the Jury plan contained a majority of black residents. Id. at 93a (Stipulations, ¶ 82) (under 1990 population statistics in the Board's existing districts, the three districts with highest black concentrations contain 46.63%, 43.79%, and 30.13% black residents, respectively); id. at 85a (Stipulations, ¶ 59) (popula- tion statistics for Jury plan, with none of the plan's 12 districts containing a black majority). Because the Board's adoption of the Jury plan would have main- tained the status quo regarding the number of black-majority districts, the parties stipulated that the Jury plan was not "retrogressive." Id. at 141a (Stipulations, ¶ 252) ("The . . . plan is not retrogressive to minority voting strength compared to the existing benchmark plan . . ."). Appellant George Price, president of the local chapter of the NAACP, presented the Board with a second option-a plan that created two districts each containing not only a majority of black residents, but a majority of voting-age black residents. Id. at 98a (Stipulations, ¶ 98). Over vocal opposition from local residents, black and white alike, the Board voted to adopt the Jury plan as its own, reasoning that the Jury plan would almost certainly be precleared again and that the NAACP plan would require the Board to split 46 electoral precincts.

But the Board's hopes for rapid preclearance were dashed when the Attorney General interposed a formal objection to the Board's plan on the basis of "new information" not available when the Justice Department had precleared the plan for the Police Jury-namely, the NAACP's plan, which demon- strated that "black residents are sufficiently numer- ous and geographically compact so as to constitute a majority in two single-member districts." Id. at 155a-156a (Attorney General's August 30, 1993, objec- tion letter). The objection letter asserted that the Board's plan violated § 2 of the Act, 42 U.S.C. § 1973, because it "unnecessarily limit[ed] the oppor- tunity for minority voters to elect their candidates of choice," id. at 156a, as compared to the new alterna- tive. Relying on 28 C.F.R. § 51.55(b)(2) (1996), which provides that the Attorney General shall withhold preclearance where "necessary to prevent a clear violation of amended Section 2 [42 U.S.C. § 1973]," the Attorney General concluded that the Board's re- districting plan warranted a denial of preclearance under § 5. App. to Juris. Statement 157a. The Attorney General declined to reconsider the decision. Ibid.

The Board then filed this action seeking pre- clearance under § 5 in the District Court for the District of Columbia. Appellant Price and others intervened as defendants. The three-judge panel granted the Board's request for preclearance, over the dissent of one judge. 907 F. Supp. 434, 437 (D.D.C. 1995). The District Court squarely rejected the appellants' contention that a voting change's alleged failure to satisfy § 2 constituted an independent reason to deny preclearance under § 5: "We hold, as has every court that has considered the question, that a political subdivision that does not violate either the 'effect' or the 'purpose' prong of section 5 cannot be denied preclearance because of an alleged section 2 violation." Id. at 440-441. Given this holding, the District Court quite properly expressed no opinion on whether the Jury plan in fact violated § 2, and its refusal to reach out and decide the issue in dicta does not require us, as Justice STEVENS insists, to "assume that the record discloses a 'clear violation' of § 2." See post, at 1507-1508 (opinion dissenting in part and concurring in part). That issue has yet to be decided by any court. The District Court did, however, reject appellants' related argument that a court "must still consider evidence of a section 2 violation as evidence of discriminatory purpose under section 5." Id. at 445. We noted probable jurisdiction on June 3, 1996. 517 U.S. ___, 116 S. Ct. 1874, 135 L.Ed.2d 171.

II

The Voting Rights Act of 1965 (Act), 42 U.S.C. § 1973 et seq., was enacted by Congress in 1964 to "attac[k] the blight of voting discrimination" across the Nation. S. Rep. No. 97-417, 2d Sess., p. 4 (1982) U.S. Code Cong. & Admin. News 1982 pp. 177, 180; South Carolina v. Katzenbach, 383 U.S. 301, 308, 86 S. Ct. 803, 808, 15 L.Ed.2d 769 (1966). Two of the weap- ons in the Federal Government's formidable arsenal are § 5 and § 2 of the Act. Although we have con- sistently understood these sections to combat dif- ferent evils and, accordingly, to impose very dif- ferent duties upon the States, see Holder v. Hall, 512 U.S. 874, 883, 114 S. Ct. 2581, 2587, 129 L.Ed.2d 687, (1994) (plurality opinion) (noting how the two sections "differ in structure, purpose, and application"), appel- lants nevertheless ask us to hold that a violation of § 2 is an independent reason to deny preclearance under § 5. Unlike Justice STEVENS, post, at 1509-1510, and n. 5 (opinion dissenting in part and concurring in part), we entertain little doubt that the Department of Justice or other litigants would "routinely" attempt to avail themselves of this new reason for denying preclearance, so that recognizing § 2 violations as a basis for denying § 5 preclearance would inevitably make compliance with § 5 contingent upon compliance with § 2. Doing so would, for all intents and purposes, replace the standards for § 5 with those for § 2. Because this would contradict our longstanding interpretation of these two sections of the Act, we reject appellants' position.

Section 5, 42 U.S.C. § 1973c, was enacted as
"a response to a common practice in some jurisdictions of staying one step ahead of the federal courts by passing new discriminatory voting laws as soon as the old ones had been struck down. . . . Congress therefore decided, as the Supreme Court held it could, 'to shift the advantage of time and inertia from the perpetrators of the evil to its victim,' by 'freezing election procedures in the covered areas unless the changes can be shown to be nondiscriminatory.'" Beer v. United States, 425 U.S. 130, 140, 96 S. Ct. 1357, 1363, 47 L.Ed.2d 629 (1976) (quoting H.R. Rep. No. 94-196, pp. 57-58 (1970)).

In light of this limited purpose, § 5 applies only to certain States and their political subdivisions. Such a covered jurisdiction may not implement any change in a voting "qualification, prerequisite, standard, practice, or procedure" unless it first obtains either administrative preclearance of that change from the Attorney General or judicial preclearance from the District Court for the District of Columbia. 42 U.S.C. § 1973c. To obtain judicial preclearance, the jurisdiction bears the burden of proving that the 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." Ibid.; City of Rome v. United States, 446 U.S. 156, 183, n. 18, 100 S. Ct. 1548, 1565, n. 18, 64 L.Ed.2d 119 (1980) (covered jurisdic- tion bears burden of proof). Because § 5 focuses on "freez[ing] election procedures," a plan has an impermissible "effect" under § 5 only if it "would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the elec- toral franchise." Beer, supra, at 141, 96 S. Ct. at 1364.

Retrogression, by definition, requires a comparison of a jurisdiction's new voting plan with its existing plan. See Holder, supra, at 883, 114 S. Ct. at 2587 (plurality opinion) ("Under § 5, then, the proposed voting practice is measured against the existing voting practice to determine whether retrogression would result from the proposed change"). It also necessarily implies that the jurisdiction's existing plan is the benchmark against which the "effect" of voting changes is measured. In Beer, for example, we concluded that the city of New Orleans' reapportionment of its council districts, which created one district with a majority of voting-age blacks where before there had been none, had no discriminatory "effect." 425 U.S. at 141-142, 96 S. Ct. at 1364 ("It is thus apparent that a legislative reapportionment that enhances the position of racial minorities with respect to their effective exercise of the electoral franchise can hardly have the 'effect' of diluting or abridging the right to vote on account of race within the meaning of § 5"). Likewise, in City of Lockhart v. United States, 460 U.S. 125, 103 S. Ct. 998, 74 L.Ed.2d 863 (1983), we found that the city's new charter had no retrogressive "effect" even though it maintained the city's prior practice of electing its council members at-large from numbered posts, and instituted a new practice of electing two of the city's four council members every year (instead of electing all the council members every two years). While each practice could "have a discriminatory effect under some circumstances," id. at 135, 103 S. Ct. at 1004, the fact remained that "[s]ince the new plan did not increase the degree of discrimination against [the city's Mexican-American population], it was en- titled to § 5 preclearance [because it was not retro- gressive]," id. at 134, 103 S. Ct. at 1004 (emphasis added).

Section 2, on the other hand, was designed as a means of eradicating voting practices that "minimize or cancel out the voting strength and political effec- tiveness of minority groups," S. Rep. No. 97-417, supra, at 28, U.S. Code Cong. & Admin. News 1982 pp. 177, 205. Under this broader mandate, § 2 bars all States and their political subdivisions from main- taining any voting "standard, practice, or procedure" that "results in a denial or abridgement of the right . . . to vote on account of race or color." 42 U.S.C. § 1973(a). A voting practice is impermissibly dilutive within the meaning of § 2

"if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by [members of a class defined by race or color] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 42 U.S.C. § 1973(b).

A plaintiff claiming vote dilution under § 2 must initially establish that: (i) "[the racial group] is sufficiently large and geographically compact to constitute a majority in a single-member district"; (ii) the group is "politically cohesive"; and (iii) "the white majority votes sufficiently as a bloc to enable it . . . usually to defeat the minority's preferred candi- date." Thornburg v. Gingles, 478 U.S. 30, 50-51, 106 S. Ct. 2752, 2766-2767, 92 L.Ed.2d 25 (1986); Growe v. Emison, 507 U.S. 25, 40, 113 S. Ct. 1075, 1084, 122 L.Ed.2d 388 (1993). The plaintiff must also demon- strate that the totality of the circumstances supports a finding that the voting scheme is dilutive. Johnson v. DeGrandy, 512 U.S. 997, 1011, 114 S. Ct. 2647, 2657, 129 L.Ed.2d 775 (1994); see Gingles, supra, at 44-45, 106 S. Ct. at 2762-2764 (listing factors to be con- sidered by a court in assessing the totality of the cir- cumstances). Because the very concept of vote dilution implies-and, indeed, necessitates-the existence of an "undiluted" practice against which the fact of dilution may be measured, a § 2 plaintiff must also postulate a reasonable alternative voting practice to serve as the benchmark "undiluted" voting practice. Holder v. Hall, 512 U.S. at 881, 114 S. Ct. at 2586 (plurality opinion); id. at 950-951, 114 S. Ct. at 2621-2622 (Blackmun, J., dissenting).

Appellants contend that preclearance must be denied under § 5 whenever a covered jurisdiction's redistricting plan violates § 2. The upshot of this position is to shift the focus of § 5 from nonretro- gression to vote dilution, and to change the § 5 benchmark from a jurisdiction's existing plan to a hypothetical, undiluted plan.

But § 5, we have held, is designed to combat only those effects that are retrogressive. See supra, at 1496-1497. To adopt appellants' position, we would have to call into question more than 20 years of pre- cedent interpreting § 5. See, e.g., Beer, supra; City of Lockhart, supra. This we decline to do. Section 5 already imposes upon a covered jurisdiction the difficult burden of proving the absence of discrimina- tory purpose and effect. See, e.g., Elkins v. United States, 364 U.S. 206, 218, 80 S. Ct. 1437, 1445, 4 L.Ed.2d 1669 (1960) ("[A]s a practical matter it is never easy to prove a negative"). To require a jurisdiction to litigate whether its proposed redistricting plan also has a dilutive "result" before it can implement that plan-even if the Attorney General bears the burden of proving that "result"-is to increase further the serious federalism costs already implicated by § 5. See Miller v. Johnson, 515 U.S. 900, --, 115 S. Ct. 2475, 2493, 132 L.Ed.2d 762 (1995) (noting the "federalism costs exacted by § 5 preclearance").

Appellants nevertheless contend that we should adopt their reading of § 5 because it is supported by our decision in Beer, by the Attorney General's regulations, and by considerations of public policy. In Beer, we held that § 5 prohibited only retrogressive effects and further observed that "an ameliorative new legislative apportionment cannot violate § 5 un- less the new apportionment itself so discriminates on the basis of race or color as to violate the Con- stitution." 425 U.S. at 141, 96 S. Ct. at 1364. Al- though there had been no allegation that the re- districting plan in Beer "so . . . discriminate[d] on the basis of race or color as to be unconstitutional," we cited in dicta a few cases to illustrate when a re- districting plan might be found to be constitutionally offensive. Id. at 142, n. 14, 96 S. Ct. at 1364, n. 14. Among them was our decision in White v. Regester, 412 U.S. 755, 93 S. Ct. 2332, 37 L.Ed.2d 314 (1973), in which we sustained a vote dilution challenge, brought under the Equal Protection Clause, to the use of multimember election districts in two Texas counties. Ibid. Appellants argue that "[b]ecause vote dilution standards under the Constitution and Section 2 were generally coextensive at the time Beer was decided, Beer's discussion meant that practices that violated Section 2 would not be entitled to pre- clearance under Section 5." Brief for Federal Appel- lant 36-37.

Even assuming, arguendo, that appellants' argu- ment had some support in 1976, it is no longer valid today because the applicable statutory and con- stitutional standards have changed. Since 1980, a plaintiff bringing a constitutional vote dilution chal- lenge, whether under the Fourteenth or Fifteenth Amendment, has been required to establish that the state or political subdivision acted with a discrimina- tory purpose. See City of Mobile v. Bolden, 446 U.S. 55, 62, 100 S. Ct. 1490, 1497, 64 L.Ed.2d 47 (1980) (plurality opinion) ("Our decisions . . . have made clear that action by a State that is racially neutral on its face violates the Fifteenth Amendment only if motivated by a discriminatory purpose"); id. at 66, 100 S. Ct. at 1499 ("[O]nly if there is purposeful discrimination can there be a violation of the Equal Protection Clause of the Fourteenth Amendment"); see also Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265, 97 S. Ct. 555, 563, 50 L.Ed.2d 450 (1977) ("Proof of racially dis- criminatory intent or purpose is required to show a violation of the Equal Protection Clause"). When Congress amended § 2 in 1982, it clearly expressed its desire that § 2 not have an intent component, see S. Rep. No. 97-417, at 2, U.S. Code Cong. & Admin. News 1982 pp. 177, 178 ("Th[e 1982] amendment is designed to make clear that proof of discriminatory intent is not required to establish a violation of Section 2"). Because now the Constitution requires a showing of intent that § 2 does not, a violation of § 2 is no longer a fortiori a violation of the Constitution. Congress itself has acknowledged this fact. See id. at 39 ("The Voting Rights Act is the best example of Congress' power to enact implementing legislation that goes beyond the direct prohibitions of the Con- stitution itself").

Justice STEVENS argues that the subsequent diver- gence of constitutional and statutory standards is of no moment because, in his view, we "did not [in Beer] purport to distinguish between challenges brought under the Constitution and those brought under the [Voting Rights] statute." Post, at 1510 (opinion dissenting in part and concurring in part). Our citation to White, he posits, incorporated White's standard into our exception for nonretrogressive apportionments that violate § 5, whether or not that standard continued to coincide with the constitutional standard. In essence, Justice STEVENS reads Beer as creating an exception for nonretrogressive appor- tionments that so discriminate on the basis of race or color as to violate any federal law that happens to coincide with what would have amounted to a constitutional violation in 1976. But this reading flatly contradicts the plain language of the exception we recognized, which applies solely to apportionments that "so discriminat[e] on the basis of race or color as to violate the Constitution." Beer, supra, at 141, 96 S. Ct. at 1364 (emphasis added). We cited White, not for itself, but because it embodied the current con- stitutional standard for a violation of the Equal Pro- tection Clause. See also id. at 142, n. 14, 96 S. Ct. at 1364, n. 14 (noting that New Orleans' plan did "not remotely approach a violation of the constitutional standards enunciated in" White and other cited cases) (emphasis added). When White ceased to represent the current understanding of the Constitution, a violation of its standard-even though that standard was later incorporated in § 2-no longer constituted grounds for denial of preclearance under Beer.

Appellants' next claim is that we must defer to the Attorney General's regulations interpreting the Act, one of which states:

"In those instances in which the Attorney General concludes that, as proposed, the submitted change is free of discriminatory purpose and retro- gressive effect, but also concludes that a bar to implementation of the change is necessary to prevent a clear violation of amended Section 2, the Attorney General shall withhold Section 5 pre- clearance." 28 C.F.R. § 51.55(b)(2) (1996).

Although we normally accord the Attorney General's construction of the Voting Rights Act great defer- ence, "we only do so if Congress has not expressed its intent with respect to the question, and then only if the administrative interpretation is reasonable." Presley v. Etowah County Comm'n, 502 U.S. 491, 508, 112 S. Ct. 820, 831, 117 L.Ed.2d 51 (1992). Given our longstanding interpretation of § 5, see supra, at 1496-1498, 1498-1500, which Congress has declined to alter by amending the language of § 5, Arkansas Best Corp. v. Commissioner, 485 U.S. 212, 222, n. 7, 108 S. Ct. 971, 977, n. 7, 99 L.Ed.2d 183 (1988) (placing some weight on Congress' failure to express disfavor with our 25-year interpretation of a tax statute), we believe Congress has made it sufficiently clear that a violation of § 2 is not grounds in and of itself for denying preclearance under § 5. That there may be some suggestion to the contrary in the Senate Report to the 1982 Voting Rights Act amendments, S. Rep. No. 97-417, supra, at 12, n. 31, U.S. Code Cong. & Admin. News 1982 pp. 177, 189, does not change our view. With those amendments, Congress, among other things, renewed § 5 but did so without changing its applicable standard. We doubt that Congress would depart from the settled interpretation of § 5 and impose a demonstrably greater burden on the jurisdictions covered by § 5, see supra, at 1498, by dropping a footnote in a Senate Report instead of amending the statute itself. See Pierce v. Under-wood, 487 U.S. 552, 567, 108 S. Ct. 2541, 2551, 101 L.Ed.2d 490 (1988) ("Quite obviously, reenacting precisely the same language would be a strange way to make a change"). See also City of Lockhart, 460 U.S. 125, 103 S. Ct. 998, 74 L.Ed.2d 863 (1983) (reaching its holding over Justice Marshall's dissent, which raised the argument now advanced by appellants regarding this passage in the Senate Report).

Nor does the portion of the House Report cited by Justice STEVENS unambiguously call for the incor- poration of § 2 into § 5. That portion of the Report states

"many voting and election practices currently in effect are outside the scope of [§ 5] . . . because they were in existence before 1965. . . . Under the Voting Rights Act, whether a discriminatory practice or procedure is of recent origin affects only the mechanism that triggers relief, i.e., litigation [under § 2] or preclearance [under § 5]." H.R. Rep. No. 97-227, p. 28 (1981).

The obvious thrust of this passage is to establish that pre-1965 discriminatory practices are not free from scrutiny under the Voting Rights Act just because they need not be precleared under § 5: Such practices might still violate § 2. But to say that pre-1965 practices can be reached solely by § 2 is not to say that all post-1965 changes that might violate § 2 may be reached by both § 2 and § 5 or that "the substantive standards for § 2 and § 5 [are] the same," see post, at 1511 (opinion dissenting in part and concurring in part). Our ultimate conclusion is also not undercut by statements found in the "postenactment legislative record," see post, at 1511, n. 9, given that "the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one." United States v. Price, 361 U.S. 304, 313, 80 S. Ct. 326, 332, 4 L.Ed.2d 334 (1960). We therefore decline to give these sources controlling weight.

Appellants' final appeal is to notions of public policy. They assert that if the district court or Attorney General examined whether a covered juris- diction's redistricting plan violates § 2 at the same time it ruled on preclearance under § 5, there would be no need for two separate actions and judicial re- sources would be conserved. Appellants are undoubt- edly correct that adopting their interpretation of § 5 would serve judicial economy in those cases where a § 2 challenge follows a § 5 proceeding. But this does not always happen, and the burden on judicial re- sources might actually increase if appellants' position prevailed because § 2 litigation would effectively be incorporated into every § 5 proceeding.

Appellants lastly argue that preclearance is an equitable remedy, obtained through a declaratory judgment action in the district court, see 42 U.S.C. § 1973c, or through the exercise of the Attorney General's discretion, see 28 C.F.R. § 51.52(a) (1996). A finding that a redistricting plan violates § 2 of the Act, they contend, is an equitable "defense," on the basis of which a decisionmaker should, in the exercise of its equitable discretion, be free to deny pre- clearance. This argument, however, is an attempt to obtain through equity that which the law-i.e., the settled interpretation of § 5-forbids. Because "it is well established that '[c]ourts of equity can no more disregard statutory and constitutional requirements and provisions than can courts of law,'" INS v. Pangilinan, 486 U.S. 875, 883, 108 S. Ct. 2210, 2216, 100 L.Ed.2d 882 (1988) (citing Hedges v. Dixon County, 150 U.S. 182, 192, 14 S. Ct. 71, 74-75, 37 L.Ed. 1044 (1893)), this argument must fail.

Of course, the Attorney General or a private plain- tiff remains free to initiate a § 2 proceeding if either believes that a jurisdiction's newly enacted voting "qualification, prerequisite, standard, practice, or procedure" may violate that section. All we hold today is that preclearance under § 5 may not be denied on that basis alone.

III

Appellants next contend that evidence showing that a jurisdiction's redistricting plan dilutes the voting power of minorities, see supra, at 1498, is at least relevant in a § 5 proceeding because it tends to prove that the jurisdiction enacted its plan with a discriminatory "purpose." The district court, reasoning that "[t]he line [between § 2 and § 5] cannot be blurred by allowing a defendant to do indirectly what it cannot do directly," 907 F. Supp. at 445, rejected this argument and held that it "will not permit section 2 evidence to prove discriminatory purpose under section 5." Ibid. Because we hold that some of this "§ 2 evidence" may be relevant to establish a jurisdiction's "intent to retrogress" and cannot say with confidence that the district court considered the evidence proffered to show that the Board's reapportionment plan was dilutive, we vacate this aspect of the district court's holding and remand. In light of this conclusion, we leave open for another day the question whether the § 5 purpose inquiry ever extends beyond the search for retrogressive intent. See Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 465, n. 5, 109 S. Ct. 1904, 1911, n. 5, 104 L.Ed.2d 506 (1989) (declining to decide an issue that "is not necessary to our decision"). Reserving this question is particularly appropriate when, as in this case, it was not squarely addressed by the decision below or in the parties' briefs on appeal. See Brief for Federal Appellant 23; Brief for Appellant Price et. al. 31-33, 34-35; Brief for Appellee 42-43. But in doing so, we do not, contrary to Justice STEVENS' view, see post, at 1508 (opinion dissenting in part and concurring in part), necessarily assume that the Board enacted the Jury plan with some non-retrogressive, but nevertheless discriminatory, "purpose." The existence of such a purpose, and its relevance to § 5, are issues to be decided on remand.

Although § 5 warrants a denial of preclearance if a covered jurisdiction's voting change "ha[s] the purpose [or] . . . the effect of denying or abridging the right to vote on account of race or color," 42 U.S.C. § 1973c, we have consistently interpreted this language in light of the purpose underlying § 5-"to insure that no voting-procedure changes would be made that would lead to a retrogression in the posi- tion of racial minorities." Beer, 425 U.S. at 141, 96 S. Ct. at 1364. Accordingly, we have adhered to the view that the only "effect" that violates § 5 is a retro- gressive one. Beer, 425 U.S. at 141, 96 S. Ct. at 1363-1364; City of Lockhart, 460 U.S. at 134, 103 S. Ct. at 1004.

Evidence is "relevant" if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. Rule Evid. 401. As we observed in Arlington Heights, 429 U.S. at 266, 97 S. Ct. at 563-564, the im- pact of an official action is often probative of why the action was taken in the first place since people usually intend the natural consequences of their actions. Thus, a jurisdiction that enacts a plan having a dilutive impact is more likely to have acted with a discriminatory intent to dilute minority voting strength than a jurisdiction whose plan has no such impact. A jurisdiction that acts with an intent to dilute minority voting strength is more likely to act with an intent to worsen the position of minority voters-i.e., an intent to retrogress-than a juris- diction acting with no intent to dilute. The fact that a plan has a dilutive impact therefore makes it "more probable" that the jurisdiction adopting that plan acted with an intent to retrogress than "it would be without the evidence." To be sure, the link between dilutive impact and intent to retrogress is far from direct, but "the basic standard of relevance . . . is a liberal one," Daubert v. Merrell Dow Pharma- ceuticals, Inc., 509 U.S. 579, 587, 113 S. Ct. 2786, 2794, 125 L.Ed.2d 469 (1993), and one we think is met here.

That evidence of a plan's dilutive impact may be relevant to the § 5 purpose inquiry does not, of course, mean that such evidence is dispositive of that inquiry. In fact, we have previously observed that a juris- diction's single decision to choose a redistricting plan that has a dilutive impact does not, without more, suffice to establish that the jurisdiction acted with a discriminatory purpose. Shaw v. Hunt, 517 U.S. --, --, n. 6, 116 S. Ct. 1894, 1904, n. 6, 135 L.Ed.2d 207 (1996) ("[W]e doubt that a showing of discriminatory effect under § 2, alone, could support a claim of discriminatory purpose under § 5"). This is true whether the jurisdiction chose the more dilutive plan because it better comported with its traditional districting principles, see Miller v. Johnson, 515 U.S. at --, 115 S. Ct. at 2491-2492 (rejecting argument that a jurisdiction's failure to adopt the plan with the greatest possible number of majority black districts establishes that it acted with a discriminatory purpose); Shaw, supra, at -- - --, 116 S. Ct. at 1903-1904 (same), or if it chose the plan for no reason at all. Indeed, if a plan's dilutive impact were dispositive, we would effectively incorporate § 2 into § 5, which is a result we find unsatisfactory no matter how it is packaged. See Part II, supra.

As our discussion illustrates, assessing a juris- diction's motivation in enacting voting changes is a complex task requiring a "sensitive inquiry into such circumstantial and direct evidence as may be available." Arlington Heights, 429 U.S. at 266, 97 S. Ct. at 564. In conducting this inquiry, courts should look to our decision in Arlington Heights for guidance. There, we set forth a framework for analyzing "whether invidious discriminatory purpose was a motivating factor" in a government body's decisionmaking. Ibid. In addition to serving as the framework for examining discriminatory purpose in cases brought under the Equal Protection Clause for over two decades, see, e.g., Shaw v. Reno, 509 U.S. 630, 644, 113 S. Ct. 2816, 2825, 125 L.Ed.2d 511 (1993) (citing Arlington Heights standard in context of Equal Protection Clause challenge to racial gerry- mander of districts); Rogers v. Lodge, 458 U.S. 613, 618, 102 S. Ct. 3272, 3276, 73 L.Ed.2d 1012 (1982) (evaluating vote dilution claim under Equal Pro- tection Clause using Arlington Heights test); Mobile, 446 U.S. at 70-74, 100 S. Ct. at 1501-1503 (same), the Arlington Heights framework has also been used, at least in part, to evaluate purpose in our previous § 5 cases. See Pleasant Grove, 479 U.S. at 469-470, 107 S. Ct. at 798-799 (considering city's history in reject- ing annexation of black neighborhoods and its depar- ture from normal procedures when calculating costs of annexation alternatives); see also Busbee v. Smith, 549 F. Supp. 494, 516-517 (D.D.C. 1982), summarily aff'd, 459 U.S. 1166, 103 S. Ct. 809, 74 L.Ed.2d 1010 (1983) (referring to Arlington Heights test); Port Arthur v. United States, 517 F. Supp. 987, 1019, aff'd, 459 U.S. 159, 103 S. Ct. 530, 74 L.Ed.2d 334 (1982) (same).

The "important starting point" for assessing dis- criminatory intent under Arlington Heights is "the impact of the official action whether it 'bears more heavily on one race than another.'" 429 U.S. at 266, 97 S. Ct. at 564 (citing Washington v. Davis, 426 U.S. 229, 242, 96 S. Ct. 2040, 2048-2049, 48 L.Ed.2d 597 (1976)). In a § 5 case, "impact" might include a plan's retrogressive effect and, for the reasons discussed above, its dilutive impact. Other considerations rele- vant to the purpose inquiry include, among other things, "the historical background of the [juris- diction's] decision"; "[t]he specific sequence of events leading up to the challenged decision"; "[d]epartures from the normal procedural sequence"; and "[t]he legislative or administrative history, especially . . . [any] contemporary statements by members of the decisionmaking body." Id. at 268, 97 S. Ct. at 565.

We are unable to determine from the District Court's opinion in this case whether it deemed irrele- vant all evidence of the dilutive impact of the re- districting plan adopted by the Board. At one point, the District Court correctly stated that "the adoption of one nonretrogressive plan rather than another nonretrogressive plan that contains more majority- black districts cannot by itself give rise to the inference of discriminatory intent." 907 F. Supp., at 450 (emphasis added). This passage implies that the District Court believed that the existence of less dilutive options was at least relevant to, though not dispositive of, its purpose inquiry. While this lan- guage is consistent with our holding today, see supra, at 1501-1502, the District Court also declared that "we will not permit section 2 evidence to prove discriminatory purpose under section 5." Ibid. With this statement, the District Court appears to endorse the notion that evidence of dilutive impact is irrelevant even to an inquiry into retrogressive intent, a notion we reject. See supra, at 1501-1502.

The Board contends that the District Court actu- ally "presumed that white majority districts had [a dilutive] effect," Brief for Appellee 35, and "cut directly to the dispositive question 'started' by the existence of [a dilutive] impact: did the Board have 'legitimate, nondiscriminatory motives' for adopting its plan[?]" Id. at 33. Even if the Board were correct, the District Court gave no indication that it was assuming the plan's dilutive effect, and we hesitate to attribute to the District Court a rationale it might not have employed. Because we are not satisfied that the District Court considered evidence of the dilutive impact of the Board's redistricting plan, we vacate this aspect of the District Court's opinion. The District Court will have the opportunity to apply the Arlington Heights test on remand as well as to address appellants' additional arguments that it erred in refusing to consider evidence that the Board was in violation of an ongoing injunction "to 'remedy any remaining vestiges of [a] dual [school] system'," 907 F. Supp., at 449, n. 18.

* * * * *

The judgment of the District Court is vacated and the case is remanded for further proceedings con- sistent with this decision.

It is so ordered.

Justice THOMAS, concurring.

Although I continue to adhere to the views I ex- pressed in Holder v. Hall, 512 U.S. 874, 891, 114 S. Ct. 2581, 2591, 129 L.Ed.2d 687 (1994) (opinion con- curring in judgment), I join today's opinion because it is consistent with our vote dilution precedents. I fully anticipate, however, that as a result of today's holding, all of the problems we have experienced in § 2 vote dilution cases will now be replicated and, indeed, exacerbated in the § 5 retrogression inquiry.

I have trouble, for example, imagining a reap- portionment change that could not be deemed "retro- gressive" under our vote dilution jurisprudence by a court inclined to find it so. We have held that a reapportionment plan that "enhances the position of racial minorities" by increasing the number of majority-minority districts does not "have the 'effect' of diluting or abridging the right to vote on account of race within the meaning of § 5." Beer v. United States, 425 U.S. 130, 141, 96 S. Ct. 1357, 1364, 47 L.Ed.2d 629 (1976). But in so holding we studiously avoided addressing one of the necessary consequences of increasing majority-minority districts: Such action necessarily decreases the level of minority influence in surrounding districts, and to that extent "dilutes" the vote of minority voters in those other districts, and perhaps dilutes the influence of the minority group as a whole. See, e.g., Hays v. Louisiana, 936 F. Supp. 360, 364, n. 17 (W.D. La. 1996) (three-judge court) (noting that plaintiffs' expert "argues convincingly that our plan, with its one black majority and three influence districts, empowers more black voters statewide than does" a plan with two black-majority districts and five "bleached" districts in which minority influence was reduced in order to create the second black-majority district); cf. Johnson v. De Grandy, 512 U.S. 997, 1007, 114 S. Ct. 2647, 2655, 129 L.Ed.2d 775 (1994) (noting that dilution can occur by "fragmenting the minority voters among several districts . . . or by packing them into one or a small number of districts to minimize their in- fluence in the districts next door").

Under our vote dilution jurisprudence, therefore, a court could strike down any reapportionment plan, either because it did not include enough majority- minority districts or because it did (and thereby diluted the minority vote in the remaining districts). A court could presumably even strike down a new reapportionment plan that did not significantly alter the status quo at all, on the theory that such a plan did not measure up to some hypothetical ideal. With such an indeterminate "rule," § 5 ceases to be pri- marily a prophylactic tool in the important war against discrimination in voting, and instead becomes the means whereby the Federal Government, and particularly the Department of Justice, usurps the legitimate political judgments of the States. And such an empty "rule" inevitably forces the courts to make political judgments regarding which type of apportionment best serves supposed minority inter- ests-judgments that the courts are ill-equipped to make.

I can at least find some solace in the belief that today's opinion will force us to confront, with a re- newed sense of urgency, this fundamental incon- sistency that lies at the heart of our vote dilution jurisprudence.

Beyond my general objection to our vote dilution precedent, the one portion of the majority opinion with which I disagree is the majority's new sug- gestion that preclearance standards established by the Department of Justice are "normally" entitled to deference. See ante, at 1499.* Section 5 sets up alternative routes for preclearance, and the primary route specified is through the District Court for the District of Columbia, not through the Attorney General's office. See 42 U.S.C. § 1973c (generally requiring District Court preclearance, with a proviso that covered jurisdictions may obtain preclearance by the Attorney General in lieu of the District Court preclearance, but providing no authority for the Attorney General to preclude judicial preclearance). Requiring the District Court to defer to adverse preclearance decisions by the Attorney General based upon the very preclearance standards she articulates would essentially render the independence of the District Court preclearance route a nullity.

Moreover, given our own "longstanding interpreta- tion of § 5," see ante, at 1499, deference to the particular preclearance regulation addressed in this case would be inconsistent with another of the Attorney General's regulations, which provides: "In making determinations [under § 5] the Attorney General will be guided by the relevant decisions of the Supreme Court of the United States and of other Federal courts." 28 C.F.R. § 51.56 (1996). Thus, while I agree with the majority's decision not to defer to the Attorney General's standards, I would reach that result on different grounds.

Justice BREYER, with whom Justice GINSBURG joins, concurring in part and concurring in the judg- ment.

I join Parts I and II of the majority opinion, and Part III insofar as it is not inconsistent with this opinion. I write separately to express my disagree- ment with one aspect of the majority opinion. The majority says that we need not decide "whether the § 5 purpose inquiry ever extends beyond the search for retrogressive intent." Ante, at 1501. In my view, we should decide the question, for otherwise the District Court will find it difficult to evaluate the evidence that we say it must consider. Cf. post, at 1512 (STEVENS, J., dissenting in part and concurring in part). Moreover, the answer to the question is that the "purpose" inquiry does extend beyond the search for retrogressive intent. It includes the purpose of unconstitutionally diluting minority voting strength.

The language of § 5 itself forbids a change in "any voting qualification or prerequisite to voting, or stan- dard, practice, or procedure with respect to voting" where that change either (1) has the "purpose" or (2) will have the "effect" of "denying or abridging the right to vote on account of race or color." 42 U.S.C. § 1973c. These last few words reiterate in context the language of the 15th Amendment itself: "The right of citizens . . . to vote shall not be denied or abridged . . . on account of race [or] color. . . ." This use of constitutional language indicates that one purpose forbidden by the statute is a purpose to act uncon- stitutionally. And a new plan enacted with the pur- pose of unconstitutionally diluting minority votes is an unconstitutional plan. Mobile v. Bolden, 446 U.S. 55, 62-63, 66, 100 S. Ct. 1490, 1497-1498, 1499, 64 L.Ed.2d 47 (1980) (plurality opinion); ante, at 1499.

Of course, the constitutional language also applies to § 5's prohibition that rests upon "effects." The Court assumes, in its discussion of "effects," that the § 5 word "effects" does not now embody a purely con- stitutional test, whether or not it ever did so. See ante, at 1497-1498; City of Rome v. United States, 446 U.S. 156, 173, 177, 100 S. Ct. 1548, 1559-1560, 64 L.Ed.2d 119 (1980). And that fact, here, is beside the point. The separate argument about the meaning of the word "effect" concerns how far beyond the Constitution's requirements Congress intended that word to reach. The argument about "purpose" is simply whether Congress intended the word to reach as far as the Constitution itself, embodying those purposes that, in relevant context, the Constitution itself would forbid. I can find nothing in the Court's discussion that shows that Congress intended to restrict the meaning of the statutory word "purpose" short of what the Constitution itself requires. And the Court has previously expressly indicated that minority vote dilution is a harm that § 5 guards against. Allen v. State Bd. of Elections, 393 U.S. 544, 569, 89 S. Ct. 817, 833-834, 22 L.Ed.2d 1 (1969).

Consider a hypothetical example that will clarify the precise legal question here at issue. Suppose that a covered jurisdiction is choosing between two new voting plans, A and B. Neither plan is retrogressive. Plan A violates every traditional districting prin- ciple, but from the perspective of minority repre- sentation, it maintains the status quo, thereby meet- ing the "effects" test of § 5. See ante, at 1497-1498. Plan B is basically consistent with traditional districting principles and it also creates one or two new majority-minority districts (in a state where the number of such districts is significantly less than proportional to minority voting age population). Suppose further that the covered jurisdiction adopts Plan A. Without any other proposed evidence or justification, ordinary principles of logic and human experience suggest that the jurisdiction would likely have adopted Plan A with "the purpose . . . of denying or abridging the right to vote on account of race or color." § 1973c. It is reasonable to assume that the Constitution would forbid the use of such a plan. See Rogers v. Lodge, 458 U.S. 613, 617, 102 S. Ct. 3272, 3275, 73 L.Ed.2d 1012 (1982) (Fourteenth Amendment covers vote dilution claims); Mobile, supra, at 66, 100 S. Ct. at 1499 (plurality opinion) (same). And compare id. at 62-63, 100 S. Ct. at 1497- 1498 (intentional vote dilution may be illegal under the Fifteenth Amendment), and Gomillion v. Light- foot, 364 U.S. 339, 346, 81 S. Ct. 125, 129-130, 5 L.Ed.2d 110 (1960) (Fifteenth Amendment covers municipal boundaries drawn to exclude blacks), with Mobile, supra, at 84, n. 3, 100 S. Ct. at 1509, n. 3 (STEVENS, J., concurring in judgment) (Mobile plurality said that Fifteenth Amendment does not reach vote dilution); Voinovich v. Quilter, 507 U.S. 146, 159, 113 S. Ct. 1149, 1158, 122 L.Ed.2d 500 (1993) ("This Court has not decided whether the Fifteenth Amendment applies to vote-dilution claims . . ."); Shaw v. Reno, 509 U.S. 630, 645, 113 S. Ct. 2816, 2825-2826, 125 L.Ed.2d 511 (1993) (endorsing the Gomillion concurrence's Four- teenth Amendment approach); Beer v. United States, 425 U.S. 130, 142, n. 14, 96 S. Ct. 1357, 1364, n. 14, 47 L.Ed.2d 629 (1976). Then, to read § 5's "purpose" language to require approval of Plan A, even though the jurisdiction cannot provide a neutral explanation for its choice, would be both to read § 5 contrary to its plain language and also to believe that Congress would have wanted a § 5 court (or the Attorney General) to approve an unconstitutional plan adopted with an unconstitutional purpose.

In light of this example, it is not surprising that this Court has previously indicated that the purpose part of § 5 prohibits a plan adopted with the purpose of unconstitutionally diluting minority voting strength, whether or not the plan is retrogressive in its effect. In Shaw v. Hunt, for example, the Court doubted "that a showing of discriminatory effect under § 2, alone, could support a claim of discriminatory purpose under § 5." 517 U.S. --, n. 6, 116 S. Ct. at 1904, n. 6 (1996) (emphasis added). The word "alone" suggests that the evidence of a discriminatory effect there at issue-evidence of dilution-could be rele- vant to a discriminatory purpose claim. And if so, the more natural understanding of § 5 is that an unlawful purpose includes more than simply a purpose to retrogress. Otherwise, dilution would either disposi- tively show an unlawful discriminatory effect (if retrogressive) or it would almost always be irrelevant (if not retrogressive). Either way, it would not normally have much to do with unlawful purpose. See also the discussions in Richmond v. United States, 422 U.S. 358, 378-379, 95 S. Ct. 2296, 2307-2308, 45 L.Ed.2d 245 (1975) (annexation plan did not have an impermissible dilutive effect but the Court remanded for a determination of whether there was an imper- missible § 5 purpose); Pleasant Grove v. United States, 479 U.S. 462, 471-472, and n. 11, 107 S. Ct. 794, 800, and n. 11, 93 L.Ed.2d 866 (1987) (purpose to minimize future black voting strength is imper- missible under § 5); Port Arthur v. United States, 459 U.S. 159, 168, 103 S. Ct. 530, 536, 74 L.Ed.2d 334 (1982) (a plan adopted for a discriminatory purpose is invalid under § 5 even if it "might otherwise be said to reflect the political strength of the minority community"); post, at 1512 (STEVENS, J., dissenting in part and concurring in part).

Miller v. Johnson, 515 U.S. 900, 115 S. Ct. 2475, 132 L.Ed.2d 762 (1995), also implicitly assumed that § 5's "purpose" stretched beyond the purely retrogressive. There, the Justice Department pointed out that Georgia made a choice between two redistricting plans, one of which (call it Plan A) had more majority-black districts than the other (call it Plan B). The Department argued that the fact that Georgia chose Plan B showed a forbidden § 5 discriminatory purpose. The Court rejected this argument, but the reason that the majority gave for that rejection is important. The Court pointed out that Plan B em- bodied traditional state districting principles. It reasoned that "[t]he State's policy of adhering to other districting principles instead of creating as many majority-minority districts as possible does not support an inference" of an unlawful discriminatory purpose. Id. at --, 115 S. Ct. at 2492. If the only relevant "purpose" were a retrogressive purpose, this reasoning, with its reliance upon traditional district- ing principles, would have been beside the point. The Court would have concerned itself only with Georgia's intent to worsen the position of minorities, not with the reasons why Georgia could have adopted one of two potentially ameliorative plans. Indeed, the Court indicated that an ameliorative plan would run afoul of the § 5 purpose test if it violated the Con- stitution. Ibid. See also Shaw v. Hunt, supra, at -- - --, 116 S. Ct. at 1903-1904.

In sum, the Court today should make explicit an assumption implicit in its prior cases. Section 5 prohibits a covered state from making changes in its voting practices and procedures where those changes have the unconstitutional "purpose" of unconstitu- tionally diluting minority voting strength.

Justice STEVENS, with whom Justice SOUTER joins, dissenting in part and concurring in part.

In my view, a plan that clearly violates § 2 is not entitled to preclearance under § 5 of the Voting Rights Act of 1965. The majority's contrary view would allow the Attorney General of the United States to place her stamp of approval on a state action that is in clear violation of federal law. It would be astonishing if Congress had commanded her to do so. In fact, however, Congress issued no such command. Surely no such command can be found in the text of § 5 of the Voting Rights Act.1 Moreover, a fair review of the text and the legislative history of the 1982 amendment to § 2 of that Act indicates that Congress intended the Attorney General to deny preclearance under § 5 whenever it was clear that a new voting practice was prohibited by § 2. This does not mean that she must make an independent inquiry into possible violations of § 2 whenever a request for preclearance is made. It simply means that, as her regulations provide, she must refuse preclearance when "necessary to prevent a clear violation of amended section 2." 28 C.F.R. § 51.55(b)(2) (1996).

It is, of course, well settled that the Attorney General must refuse to preclear a new election procedure in a covered jurisdiction if it will "lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." Beer v. United States, 425 U.S. 130, 141, 96 S. Ct. 1357, 1364, 47 L.Ed.2d 629 (1976). A retrogressive effect or a retrogressive purpose is a sufficient basis for denying a preclearance request under § 5. Today, however, the Court holds that retrogression is the only kind of effect that will justify denial of preclearance under § 5, ante, at 1496-1501, and it assumes that "the § 5 purpose inquiry [never] extends beyond the search for retrogressive intent." Ante, at --. While I agree that this action must be remanded even under the Court's miserly interpretation of § 5, I disagree with the Court's holding/assumption that § 5 is concerned only with retrogressive effects and purposes.

Before explaining my disagreement with the Court, I think it important to emphasize the three factual predicates that underlie our analysis of the issues. First, we assume that the plan submitted by the Board was not "retrogressive" because it did not make matters any worse than they had been in the past. None of the 12 districts had ever had a black majority and a black person had never been elected to the Bossier Parish School Board (Board). App. to Juris. Statement 67a. Second, because the majority in both the District Court and this Court found that even clear violations of § 2 must be precleared and thus found it unnecessary to discuss whether § 2 was violated in this action, we may assume that the record discloses a "clear violation" of § 2. This means that, in the language of § 2, it is perfectly clear that "the political processes leading to nomination or election [to positions on the Board] are not equally open to participation by members of [the African-American race] in that its members have less opportunity than other members of the electorate to . . . elect representatives of their choice." 42 U.S.C. § 1973(b).2 Third, if the Court is correct in assuming that the purpose inquiry under § 5 may be limited to evidence of "retrogressive intent," it must also be willing to assume that the documents submitted in support of the request for preclearance clearly establish that the plan was adopted for the specific purpose of preventing African-Americans from obtaining repre- sentation on the Board. Indeed, for the purpose of analyzing the legal issues, we must assume that Judge Kessler, concurring in part and dissenting in part, accurately summarized the evidence when she wrote:

"The evidence in this case demonstrates over- whelmingly that the School Board's decision to adopt the Police Jury redistricting plan was motivated by discriminatory purpose. The adoption of the Police Jury plan bears heavily on the black community because it denies its members a reasonable opportunity to elect a candidate of their choice. The history of discrimination by the Bossier School System and the Parish itself demonstrates the Board's continued refusal to address the concerns of the black community in Bossier Parish. The sequence of events leading up to the adoption of the plan illustrate the Board's discriminatory purpose. The School Board's substantive departures from traditional districting principles is similarly probative of discriminatory motive. Three School Board members have acknowledged that the Board is hostile to black representation. Moreover, some of the purported rationales for the School Board's decision are flat-out untrue, and others are so glaringly inconsistent with the facts of the case that they are obviously pretexts." 907 F. Supp. 434, 463 (D.D.C. 1995).

If the purpose and the effect of the Board's plan were simply to maintain the discriminatory status quo as described by Judge Kessler, the plan would not have been retrogressive. But, as I discuss below, that is not a sufficient reason for concluding that it com- plied with § 5.

I

In the Voting Rights Act of 1965, Congress enacted a complex scheme of remedies for racial discrimi- nation in voting. As originally enacted, § 2 of the Act was "an uncontroversial provision" that "simply restated" the prohibitions against such discrimina- tion "already contained in the Fifteenth Amendment," Mobile v. Bolden, 446 U.S. 55, 61, 100 S. Ct. at 1496-1497 (1980) (plurality opinion). Like the consti- tutional prohibitions against discriminatory district- ing practices that were invalidated in cases like Gomillion v. Lightfoot, 364 U.S. 339, 81 S. Ct. 125, 5 L.Ed.2d 110 (1960), and White v. Regester, 412 U.S. 755, 93 S. Ct. 2332, 37 L.Ed.2d 314 (1973), § 2 was made applicable to every State and political subdivision in the country. Section 5, on the other hand, was highly controversial because it imposed novel, extraordinary remedies in certain areas where discrimination had been most flagrant. See South Carolina v. Katzen- bach, 383 U.S. 301, 334-335, 86 S. Ct. 803, 821-822, 15 L.Ed.2d 769 (1966).3 Jurisdictions like Bossier Parish in Louisiana are covered by § 5 because their history of discrimination against African-Americans was a matter of special concern to Congress. Because these jurisdictions had resorted to various strategies to avoid complying with court orders to remedy dis- crimination, "Congress had reason to suppose that [they] might try similar maneuvers in the future in order to evade the remedies for voting discrimination contained in the Act itself." Id. at 335, 86 S. Ct. at 822. Thus Congress enacted § 5, not to maintain the discriminatory status quo, but to stay ahead of efforts by the most resistant jurisdictions to undermine the Act's purpose of "rid[ding] the country of racial discrimination." Id. at 315, 86 S. Ct. at 812 ("The heart of the Act is a complex scheme of stringent remedies aimed at areas where voting discrimination has been most flagrant").

In areas of the country lacking a history of per- vasive discrimination, Congress presumed that voting practices were generally lawful. Accordingly, the burden of proving a violation of § 2 has always rested on the party challenging the voting practice. The situation is dramatically different in covered jurisdictions. In those jurisdictions, § 5 flatly prohibits the adoption of any new voting procedure unless the State or political subdivision institutes an action in the Federal District Court for the District of Columbia and obtains a declaratory judgment that the change will not have a discriminatory purpose or effect. See 42 U.S.C. § 1973c. The burden of proving compliance with the Act rests on the jurisdiction. A proviso to § 5 gives the Attorney General the authority to allow the new procedure to go into effect, but like the immigration statutes that give her broad discretion to waive deportation of undesirable aliens, it does not expressly impose any limit on her discretion to refuse preclearance. See ibid. The Attorney General's discretion is, however, cabined by regulations that are presumptively valid if they "are reasonable and do not conflict with the Voting Rights Act itself," Georgia v. United States, 411 U.S. 526, 536, 93 S. Ct. 1702, 1708, 36 L.Ed.2d 472 (1973). Those regulations provide that preclearance will generally be granted if a proposed change "is free of discriminatory purpose and retrogressive effect"; they also provide, however, that in "those instances" in which the Attorney General concludes "that a bar to implementation of the change is necessary to prevent a clear violation of amended section 2," preclearance shall be withheld.4 There is no basis for the Court's speculation that litigants would so "'routinely,'" ante, at 1497, employ this 10-year old regulation as to "make compliance with § 5 contingent upon compliance with § 2." Ante, at 1497. Nor do the regulations require the jurisdiction to assume the burden of proving the absence of vote dilution, see ante, at -- - --. They merely preclude preclearance when "necessary to prevent a clear violation of . . . section 2." While the burden of disproving discriminatory purpose or retrogressive effect is on the submitting jurisdiction, if the Attorney General's conclusion that the change would clearly violate § 2 is challenged, the burden on that issue, as in any § 2 challenge, should rest on the Attorney General.5
The Court does not suggest that this regulation is inconsistent with the text of § 5. Nor would this be persuasive, since the language of § 5 forbids pre- clearance of any voting practice that would have "the purpose [or] effect of denying or abridging the right to vote on account of race or color." 42 U.S.C. § 1973c. Instead the Court rests its entire analysis on the flawed premise that our cases hold that a change, even if otherwise unlawful, cannot have an effect prohibited by § 5 unless that effect is retrogressive. The two cases on which the Court relies, Beer v. United States, 425 U.S. 130, 96 S. Ct. 1357, 47 L.Ed.2d 629 (1976), and City of Lockhart v. United States, 460 U.S. 125, 103 S. Ct. 998, 74 L.Ed.2d 863 (1983), do hold (as the current regulations provide) that proof that a change is not retrogressive is normally sufficient to justify preclearance under § 5. In neither case, however, was the Court confronted with the question whether that showing would be sufficient if the proposed change was so discriminatory that it clearly violated some other federal law. In fact, in Beer-which held that a legislative reapportionment enhancing the position of African-American voters did not have a discriminatory effect-the Court stated that "an ameliorative new legislative apportionment cannot violate § 5 unless the new apportionment itself so discriminates on the basis of race or color as to violate the Constitution." 425 U.S. at 141, 96 S. Ct. at 1364.6 Thus, to the extent that the Beer Court addressed the question at all, it suggested that certain nonretrogressive changes that were nevertheless discriminatory should not be precleared.

The Court discounts the significance of the "un- less" clause because it refers to a constitutional violation rather than a statutory violation. According to the Court's reading, the Beer dictum at most precludes preclearance of changes that violate the Constitution rather than changes that violate § 2. This argument is unpersuasive. As the majority notes, the Beer Court cites White v. Regester, 412 U.S. at 766, 93 S. Ct. at 2339-2340, which found un- constitutional a reapportionment scheme that gave African-American residents "less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice." Because, in 1976, when Beer was decided, the § 2 standard was coextensive with the constitutional standard, Beer did not purport to distinguish between challenges brought under the Constitution and those brought under the statute. Rather Beer's dictum suggests that any changes that violate the standard established in White v. Regester should not be pre- cleared.7

As the Court recognizes, ante, at 1499, the law has changed in two respects since the announcement of the Beer dictum. In 1980, in what was perceived by Congress to be a change in the standard applied in White v. Regester, a plurality of this Court concluded that discriminatory purpose is an essential element of a constitutional vote dilution challenge. See Mobile v. Bolden, 446 U.S. 55, 62, 100 S. Ct. 1490, 1497 (1980). In reaction to that decision, in 1982 Congress amended § 2 by placing in the statute the language used in the White opinion to describe what is commonly known as the "results" standard for evaluating vote dilution challenges. See 96 Stat. 134 (now codified at 42 U.S.C. §§ 1973(a)-(b)); Thornburg v. Gingles, 478 U.S. 30, 35, 106 S. Ct. 2752, 2758, 92 L.Ed.2d 25 (1986).8 Thus Congress preserved, as a matter of statutory law, the very same standard that the Court had identified in Beer as an exception to the general rule requiring preclearance of nonretrogressive changes. Because in 1975, Beer required denial of preclearance for voting plans that violated the White standard, it follows that Congress in preserving the White standard, intended also that the Attorney General should continue to refuse to preclear plans violating that standard.

That intent is confirmed by the legislative history of the 1982 Act. The Senate Report states:

"Under the rule of Beer v. United States, 425 U.S. 130, 96 S. Ct. 1357, 47 L.Ed.2d 629 (1976), a voting change which is ameliorative is not objec- tionable unless the change 'itself so discriminates on the basis of race or color as to violate the Constitution.' 425 U.S. at 141 [96 S. Ct. at 1364]; see also 142 n. 14 [96 S. Ct. at 1364, n. 14] (cit- ing to the dilution cases from Fortson v. Dorsey [379 U.S. 433, 85 S. Ct. 498, 13 L.Ed.2d 401 (1965),] through White v. Regester.). In light of the amendment to section 2, it is intended that a section 5 objection also follow if a new voting pro- cedure itself so discriminates as to violate section 2." S. Rep. No. 97-417, p. 12, n. 31 (1982) U.S. Code Cong. & Admin. News 1982 pp. 177, 189.

The House Report conveys the same message in different language. It unequivocally states that whether a discriminatory practice or procedure was in existence before 1965 (and therefore only subject to attack under § 2), or is the product of a recent change (and therefore subject to preclearance under § 5) "affects only the mechanism that triggers relief." H.R. Rep. No. 97-227, p. 28 (1981). This statement plainly indicates that the Committee understood the substantive standards for § 2 and § 5 violations to be the same whenever a challenged practice in a covered jurisdiction represents a change subject to the dic- tates of § 5.9 Thus, it is reasonable to assume that Congress, by endorsing the "unless" clause in Beer, contemplated the denial of pre-clearance for any change that clearly violates amended § 2. The major- ity by belittling this legislative history, abrogates Congress' effort, in enacting the 1982 amendments, "to broaden the protection afforded by the Voting Rights Act." Chisom v. Roemer, 501 U.S. 380, 404, 111 S. Ct. 2354, 2368, 115 L.Ed.2d 348 (1991).

Despite this strong evidence of Congress' intent, the majority holds that no deference to the Attorney General's regulation is warranted. The Court suggests that had Congress wished to alter "our longstanding interpretation" of § 5, Congress would have made this clear. Ante, at 1496-1498. But nothing in our "settled interpretation" of § 5, ante, at 1500, is inconsistent with the Attorney General's reading of the statute. To the contrary, our precedent actually indicates that nonretrogressive plans that are otherwise discriminatory under White v. Regester should not be precleared. As neither the language nor the legislative history of § 5 can be said to conflict with the view that changes that clearly violate § 2 are not entitled to preclearance, there is no legitimate basis for refusing to defer to the Attorney General's regulation. See Presley v. Etowah County Comm'n, 502 U.S. 491, 508, 112 S. Ct. 820, 831, 117 L.Ed.2d 51 (1992).

II

In Part III of its opinion the Court correctly concludes that this action must be remanded for further proceedings because the District Court erroneously refused to consider certain evidence that is arguably relevant to whether the Board has proved an absence of discriminatory purpose under § 5. Because the Court appears satisfied that the disputed evidence may be probative of an "'intent to retro- gress,'" it concludes that it is unnecessary to decide "whether the § 5 purpose inquiry ever extends beyond the search for retrogressive intent." Ante, at 1501. For two reasons, I think it most unwise to reverse on such a narrow ground.

First, I agree with Justice BREYER, see ante, at 1505, that there is simply no basis for imposing this limitation on the purpose inquiry. None of our cases have held that § 5's purpose test is limited to retrogressive intent. In Pleasant Grove v. United States, 479 U.S. 462, 469-472, 107 S. Ct. 794, 798-801, 93 L.Ed.2d 866 (1987), for instance, we found that the city had failed to prove that its annexation of certain white areas lacked a discriminatory purpose. Despite the fact that the annexation lacked a retrogressive effect, we found it was subject to § 5 preclearance. Ibid.; see also id. at 474-475, 107 S. Ct. at 801-802 (Powell, J., dissenting) (contending that the majority erred in holding that a discriminatory purpose could be found even though there was no intent "to have a retrogressive effect"). Furthermore, limiting the § 5 purpose inquiry to retrogressive intent is inconsistent with the basic purpose of the Act. Assume, for example, that the record unambiguously disclosed a long history of deliberate exclusion of African- Americans from participating in local elections, including a series of changes each of which was adopted for the specific purpose of maintaining the status quo. None of those changes would have been motivated by an "intent to regress," but each would have been motivated by a "discriminatory purpose" as that term is commonly understood. Given the long settled understanding that § 5 of the Act was enacted to prevent covered jurisdictions from "contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination," South Carolina v. Katzenbach, 383 U.S. at 335, 86 S. Ct. at 822, it is inconceivable that Congress intended to authorize preclearance of changes adopted for the sole purpose of perpetuating an existing pattern of discrimination.

Second, the Court's failure to make this point clear can only complicate the task of the District Court on remand. If that court takes the narrow approach sug- gested by the Court, another appeal will surely follow; if a majority ultimately agrees with my view of the issue, another remand will then be necessary. On the other hand, if the District Court does not limit its consideration to evidence of retrogressive intent, and if it therefore rules against the Board, respondents will bring the case back and the Court would then have to resolve the issue definitively.

In sum, both the interest in orderly procedure and the fact that a correct answer to the issue is pellu- cidly clear, should be sufficient to persuade the Court to state definitively that § 5 preclearance should be denied if Judge Kessler's evaluation of the record is correct.

Accordingly, while I concur in the judgment insofar as it remands the action for further proceedings, I dissent from the decision insofar as it fails to authorize proceedings in accordance with the views set forth above.

APPENDIX C

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA



Civ. A. No. 94-1495 (LHS (USCA), CRR, GK)


BOSSIER PARISH SCHOOL BOARD, PLAINTIFF

v.

JANET RENO, ATTORNEY GENERAL, DEFENDANT

and

GEORGE PRICE, ET AL., DEFENDANT-INTERVENORS



[Filed: November 2, 1995]



BEFORE: SILBERMAN, Circuit Judge, RICHEY, and KESSLER, District Judges



MEMORANDUM OPINION
OF THREE-JUDGE COURT
UNDER THE VOTING RIGHTS ACT



SILBERMAN, Circuit Judge.

INTRODUCTION

Plaintiff, Bossier Parish School Board, seeks pre- clearance under section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, for its proposed redistricting. We shall grant the requested preclearance.

I.

Bossier Parish is located in northwestern Louisi- ana, bordered on the north by Arkansas. As reported by the 1990 census, Bossier Parish's population is 86,088, of whom 20.1% are black. Blacks constitute 17.6% of the voting age population of Bossier Parish and 15.5% of its registered voters. Bossier City, the Parish's most populous city, is located in the central western portion of the Parish and has a population of 52,721, of whom 17.95% are black. The black popu- lation is also concentrated in Benton, Plain Dealing, Haughton, and in the unincorporated community of Princeton.

Bossier Parish is governed by a Police Jury, the 12 members of which are elected from single-member districts for consecutive four-year terms. At no time in Parish history have the Police Jury electoral districts included a district with a majority of black voters. Since 1983, however, a black police juror, Jerome Darby, has been elected three times from a majority-white district, the last time unopposed.1

The Police Jury undertook to redraw its electoral districts because of population shifts, as reflected in the 1980 census, that resulted in widely divergent populations among the existing districts. In Novem- ber 1990, the Police Jury hired a cartographer, Gary Joiner, to assist in the process. At a public hear- ing on the Police Jury redistricting, black residents inquired about the possibility of creating majority- black districts, and were told that the black popu- lation of Bossier Parish was too far-flung to create any such district. On April 30, 1991, the Police Jury unanimously adopted one of the plans prepared by their cartographer as the final plan. The plan served the police jurors' incumbency concerns, and roughly provided for an even distribution of population among the districts. That same day, Concerned Citizens, a group of black residents of Bossier Parish, submitted a letter to the Police Jury complaining about the manner in which the redistricting plan was prepared and adopted. The plan was forwarded to the Attorney General on May 28, 1991, and, on July 29, 1991, the Attorney General precleared it. On January 11, 1994, the Police Jury unanimously voted to maintain the redistricting plan precleared by the Attorney General.

The Bossier Parish School Board is constituted much like the Police Jury.2 The School Board has 12 members elected from single-member districts to consecutive four-year terms. Both the Police Jury and School Board electoral districts have majority voting requirements: a candidate must receive a majority of the votes cast, not merely a plurality, to win an election. In the School Board's history, no black candidate has been elected to membership on the Board, though, as is discussed infra, one black School Board member was appointed to a vacant seat in 1992.

The Board, like the Police Jury, was also required to redraw its districts after the 1990 census. In fact, members of the Board had approached the Police Jury about the prospect of jointly redistricting, but were rebuffed by police jurors with incumbency concerns divergent from those of the School Board members.3 The next scheduled election for the School Board was not until November 1994, and the School Board did not undertake the task of redistricting with particular urgency. In May 1991, the Board hired the same car- tographer who had assisted the Police Jury with its redistricting, Gary Joiner. When he was hired, Joiner informed the Board that one readily available option was the Police Jury plan which had already been pre- cleared by the Attorney General and which, if adopted by the Board, was sure to be precleared again. When he was hired, Joiner estimated that the redistricting would require 200 to 250 hours of his time.

At a Board meeting in September 1991, Board mem- ber Thomas Myrick suggested that the Board adopt the Police Jury plan. Myrick had participated in a number of meetings with Joiner and police jurors during their redistricting. No action was taken on Myrick's proposal.

On March 25, 1992, George Price, president of the local chapter of the NAACP and a defendant-intervenor in this case, wrote to the Board to express the NAACP's desire to be involved in every aspect of the redistricting process. Price received no response to his letter and, on August 17, 1992, wrote again, this time to say that the NAACP would dispute any plan that did not provide for majority-black districts. At an August 20, 1992 meeting of the School Board, P