*3
SHAW,
WIENER,
Judge,
Circuit
Before
Findings
of Law
Fact and Conclusions
WALTER, District
Judge, and
District
Chief
brevity, we reiterate and
In the interest of
Judge.
28, 1993
adopt by
our December
reference
27, 1994, this case
By order dated June
regarding Plain-
opinion.
conclusions
Our
States Su
from the United
was remanded
protection
standing
bring
equal
tiffs’
—
proceedings,
for further
preme Court
that in
adopted as
With
challenge are
well.
U.S. —,
2731,
Act 1.
irregu
Specifically the bizarre
mander.
the infer
Four raises
shape
lar
of District
I
Legislature classified
the Louisiana
ence that
the Case
State
segregated
along racial lines and
citizens
its
accordingly. The
voting districts
Adams,
Single-
into
them
Ray Hays,
Susan
Edward
and cultural
(“Plaintiffs”)
historical
cuts across
ton,
brought
Gary Stokely
parishes
divides,
fifteen
splits twelve of its
August 1992 chal-
this suit
state court
major
cities
four of the seven
and divides
was re-
1992. The case
lenging Act
showing
statistical evidence
The
Louisi-
the State.
by the State of
to this Court
moved
composition
comply
of the districts farther
with those demands
the racial
and still secure
finding
supports
adoption.
only
that District Four is “so
These were the
inflexible fea-
extremely irregular on its face that it ration
given
cartographer/demographer
tures
to the
only
segre
ally
as an effort to
charge
generating
can be viewed
the seven districts.
purposes
voting.”
gate the races for
evidence,
reviewing
After
we
find
—
Reno,
U.S. —,
only
explained credibly
Act 1 can
as the
(1993).1 Plaintiffs, by
L.Ed.2d 511
submit
product
decisionmaking.
of race-conscious
supplemental
ting
map
their
the new
themselves
Senators
admitted that race
upon
pleadings,
a claim
which relief
stated
played
large
if not dominant
role
granted
Equal
can be
under the
Protection map as it is now drawn. The Red River
of Louisiana
Clause. We ordered
valley theory
clearly post
hoc rationaliza-
*4
United
and Defendant-Intervenor
States
Mississippi
theory
tion similar to the
River
by rebutting
begin the trial
this inference.
support
offered to
Act 42
equally
and
unbe-
testimony
Defendants offered the
of two
lievable. The State did not imitate the “old
Senators,
State
the State Senate’s assistant
'Eighth”
tradition’s sake.2 The “old
secretary,
geographer,
sociologist
and a
a
bizarre,
Eighth,” certainly
before Shaw and
shape
explain
an effort to
the
of the district
challenged,
never
was
pur-
crafted for the
impermissible
grounds.
on other than
racial
pose
ensuring
of
Congress-
the reelection of
directly
persons
Those
with
involved
the for-
Long.
man Gillis
New District Four was
acknowledged
mation of Act 1
that the cre-
specific
drafted with
ensuring
the
intent of
a
majority-minority
ation of a second
district
majority-minority Congressional
dis-
Legislature.
specific
was the
intent of the
purported
trict. The State’s
reliance on Dis-
explanations
Two race-neutral
were submit-
similarity
trict
Eighth”
Four’s
to the “old
First,
geographer
ted
the defense.
the
pretext. Although
high-
mere
the witnesses
opined that as District Four followed the Red
lighted other factors that carved the contours
valley,
River
it endowed all its residents with
district,
of the awkward
the fundamental
Second,
commonality
a
of interest.
the vari-
driving Act 1 was race.
factor
ous witnesses
asserted
District Four
inspired by
Eighth”
was
“the old
B
thereby satisfying
concept
the
of “tradition-
Subject
Scrutiny
districting principles.
al”
Act 1 is
to Strict
starting point, following
The
the
redistricting,
1990 cen-
Race-conscious
while
sus,
congressional
unconstitutional,
always
redistrict for seven
always subject
districts,
eight,
having
instead of
Louisiana
scrutiny.
to strict
This conclusion
trou
has
Next,
Congress.
scholars,
lost one member of
legislators,
the
litigators,
bled
sought
comply
judges
Aleinikoff,
with the Constitution-
alike. T. Alexander
Samu
requirement
Issacharoff,
al
of one man —one
In
vote.
el
Redistricting:
Race and
case,
contain,
each district should
Drawing
as
Constitutional Lines
Shaw v.
After
603,853
closely
practicable,
Reno,
588,
(“Aleinikoff”).
citizens. The
92 Mich.L.Rev.
602
clearly
State’s evidence
hap-
problem
shows what
is caused
incomplete
the
pened
Misinterpreting
opinion
next:
our
constitutional status of affirmative action
approving racially gerry-
plans
December 1993 as
voting rights
in the
realm.
In United
if
mandered district
it contained no
Organization
Carey,
144,
more
Jewish
430 U.S.
voters;
minority registered
996,
than
(1977),
55%
97 S.Ct.
123
2733,
Act,
Bakke,
265,
politics,
remedy-
438 U.S.
98 S.Ct.
nia v.
(1978)
legal
theory
ing past
continuing
and social or
social
following the
L.Ed.2d
justified
segregation
racial
discrimination
injured
on the basis
right not to be
“the
disagree.
We
voters.
personal right
secured
color was
one’s skin
Constitution, and
lack of
the asserted
by the
note at the
We
outset that incumben
sufficient
purpose could not be a
an invidious
cy
justify
cannot
politics
racial classifications.
reducing
judicial scru
reason for
level
Adhering to federal
laws
anti-discrimination
disadvantaged
tiny applied to measures that
remedying past
continuing
discrimina
Aleinikoff,
the basis of
persons on
race.”
governmen
constitute compelling
tion could
later, City
years
at 592.
Mich.L.Rev.
Eleven
if
tal interests
the State
“demonstrate
could
Co.,
v. J.A.
488 U.S.
Richmond
Croson
strong
basis
conclusion
evidence for its
(1989)
109 S.Ct.
L.Ed.2d
necessary.”
action was
that remedial
Cro
Bakke,
that,
notion
since
confirmed
son,
at
488 U.S.
at 730. Such
applied
Fourteenth
scrutiny
under
may
judicial, legisla
be drawn
basis
from
Equal
will not
Protection Clause
Amendment
tive,
findings
or administrative
of constitu
preferred
vary
on the race of the
based
statutory
tional or
violations.
at
at 721-22.
group. 488 U.S.
more recent
is consistent
*5
precedents, focusing on indi
equal protection
Voting Rights Act
group-
rights
opposed
vidual
to UJO’s
The State
believed that
the
Aleinikoff,
approach.
92 Mich.L.Rev.
based
Voting Rights
compelled
Act
the creation
UJO,
By
v.
overruling
not
at 600.
A
majority-minority
second
district.3
care-
ratify
can be read to
“the earlier
Reno
ful review of those statutes and the caselaw
group-based decisions which focus on wheth
interpreting them
the
reveals that
State’s
voting
schemes ‘dilute’ the
er electoral
misplaced.
was
belief
protected
mak
strength
[while
minorities
ing
Voting Rights
that the fact
non-dilution does
5
clear]
Under Section of the
1973c,
Act,
§
districting plans
immunize
from constitu
42
the
has an
not
U.S.C.
duty
challenge.”
retrogression
Id.
affirmative
to avoid
or
tional
purpose
of a
that
the
or
enactment
has
classification,
purported
despite
“A racial
denying
abridging
right
or
to
the
effect
motivation,
can
presumptively
is
invalid and
the
of race or color. Neither
vote because
justifi-
only upon
extraordinary
an
upheld
be
Department
offered
State nor the
of Justice
Personnel
Massa-
cation.”
Administrator of
any
suggesting
to create
evidence
that failure
Feeney,
99
v.
442 U.S.
chusetts
majority-minority
would ei
district
second
(1979).
2282, 2293,
failure to ... feast tion. Failure to maximize cannot be the measure of Section 2. — DeGrady, —,
Johnson v. 114 U.S. Ill (1994). Hence, L.Ed.2d 775 the did not in have basis law or fact The Court’s Plan to believe that the Act re strong preference Our is to leave to the quired majority-minority the creation of two Legislature drawing the task of election dis- districts.5 tricts. reluctantly We set our hands to the task, hour, considering the lateness of the the
Remediation of Past or Present history dismal pre- the in two
Discrimination attempts, vious foot-dragging by the defen- appeals dants in the and the risk that testimony Defendants elicited Louisi- that history the sordid might Congressional unconstitutional treat- ana repre- without Despite minority population Treen, approximately 4. Major has existed since 1983. See 30%, (E.D.La.1983). demographic simply F.Supp. distribution is too dif- (See 2) generate majority fuse Gov't Exhibit voting age population any district outside of note, that, accepting arguendo 6. We also the region. the Orleans Parish The State’s own ex- argument compelling, remediation as the defen- pert minority popula- confirmed that Louisiana's utterly gerry- dants failed to demonstrate how simply sufficiently tion is concentrated to mandering remedy problems could the asserted Gingles requirements. meet minimum exactly prob- interests. That is the sweeping remedy amorphous lem with a to an exist, strong Gingles 5. A concept. basis under properly defining compel- does howev- Without the er, interest, majority-minority ling to warrant impossible creation of a it is for State to region, any plan. in the Orleans Parish where one tailor here, As along race lines. when the districts January The districts sentation not, cannot, sup- or has offered and sixty- State only parishes split we drew extraordinary justification lines, ported an for only town four, one traditional followed measures, divided, questionable the race-con- these 3000 was approximately must fall. scious enactments one man —one met all Constitutional plan political ignore It all did requirements. vote WIENER, And, by Gingles, WALTER, Judge, instructed District considerations. lines, SHAW, along race District Judge, carve districts Chief did not Circuit
we SHAW, Judge, concurring, where Constitution with Chief except in District concurring specially it.7 requires Judge, us to consider District fairness WIENER, Judge, Circuit concurs. whom IV SHAW, Judge, concurring: Chief District Conclusion majori- opinion of the I concur in the able Protection Clause demands Equal provide a suit- ty. It is an honest effort to as a scrutiny government use of race strict districts Loui- able right in dividing line. This is individual the restraints of the Constitu- siana within any group-based protections addition would, however, tion. I like to add a few voting dis- affords. When Amendment repetitive may be somewhat but words which wards, racial carefully planned like tricts are which address matters our December injury All citizens are occurs. an individual adopted by ruling have refer- which we “inter- by notion that their stigmatized findings supported ence as well as additional repre- or will be defined race ests” can be Applying the same consti- by the evidence. only if a member of their adequately sented to a analysis to Act 1 has led us tutional particular office. To “group” holds a racial similar conclusion. by operation such racial notions reinforce upon to Again, this is called answer Thur- fly in the face of Justice seems to law a state question, same “Does have hope argu- in his expressed good Marshall’s majority-mi- racial right a second to create “learn to Cooper v. Aaron that we ment in gerry- racial nority Congressional district citizens, and above together with fellow live mandering?” obey the law.” all to learn to *7 has an- Supreme Court The United States contrary strangely at odds position I find a in question for this Court swered that voiced, eloquently not so so with the desires Reno,1 “Yes, plan narrow- only if the is v. but Jackson, Selma, Shreveport, in in long ago, in a state inter- ly tailored to further South, at towns across the in countless est.” counters, regis- at and lunch voter schools reasons, following this Court finds For the there, and They stood black trar’s offices. Redistricting Plan white, knowledge that certain in the 4, particu- in 1 and District in Act embodied no coming; determined that Dream lar, gerrymandering racial product is the noose, blow, threat, gun, spittle, no no no no any to further tailored and is color separate us because of the law could no interests. The compelling governmental “Di- say “Separate!” To now: of our skin. guaran- protection as plaintiffs’ right equal to negate their sacri- “Segregate!” is to vide!” Constitution is by the United States teed dream, fice, deny that self-evident mock their redistricting plan, and as violated equal and that that all men are created truth such, void. plan is null and equal may deny them the government no protection of its laws. Gerrymandering Racial equal protection and the validity of
The opinion, racial previous in our process As stated electoral systemic legitimacy of our intentional is defined as the voting gerrymandering sculpts when State are threatened 2816, U.S. -, Treen, 125 L.Ed.2d supra. Major 1. note 5 7. See (1993). subdivisions, political respect for com- on the basis of race. and segregation of voters upon monality to first determine This Court is called of interests. redistrieting plan is the result
whether the Compactness a. gerrymandering. racial 4, 1, trial, begins in readily District under Act Caddo At the witnesses for the State Parish, DeSoto, purpose of District was and includes the Parishes of admitted that the majority River, Sabine, Natchitoches, black district. to create second Red all lo- legislators testimony Louisiana, the state and the clearly The in cated defined North Secretary confirmed Parish, Senate Assistant cutting ends Ascension after by the fact that the district lines were driven through region the French of Louisiana population in the State of the black “Aeadiana,” Lafayette, which called includes sufficiently dispersed through Louisiana was Martin, Landry, Evangeline St. St. Par- impossible to create a the State that it was approximately ishes. The district is majority district without skew- black long, through parish- miles and meanders long irregular shape, ing into a as the lines es, making considerably longer any it than plan. 4 of the demonstrated District up other district in the District 4 State. cuts major Louisiana, population four centers of districting plan in Act 1 is embodied Alexandria, including Shreveport, Lafayette, Though may highly irregular shape. in its it Rouge, capture and Baton in its efforts plan in Act be less bizarre than the created pockets sufficient vot- African-American physiognomy strong- of District 4 still ers, paying respect parish no lines.2 The ly suggests Legislature engaged in that the Caddo, points fingers Rap- out into gerrymandering creating racial the dis- ides, Parishes, Lafayette taking while Looking map trict. at District on if small bites out of St. Martin and Iberville appears it someone knocked Waskom, an inkwell somewhere around Parishes. district that stretches over as over Texas, territory, spilling aimlessly map touching many ink across much so media and centers, simply nothing regu- population of Louisiana. There is cannot be said to be com- pact. of District lar about the contours acknowledges appear- This that the Respect b. Political Subdivisions beauty to a
ance or of a district irrelevant Although improvement Act 1 however, from analysis; irregu- constitutional legislature the state continues to larity shape suspect aof district is and can disregard parish fashioning lines gerrymandering. indicate racial minority to create a second district. Although concept Shaw discusses the irregular shape In the creation of District bizarre or as a means of the State demonstrating gerryman- necessary fragment found it inferring racial twelve of the dering, high way parishes comprising court in no indicated fifteen split- District *8 shape determining that a in ting parishes alone was factor sixteen statewide under the finding gerrymandering. a plan. of racial up pieces District is made of and parts parishes splits twelve four of the finds, irregulari- This Court aside from the cities, largest State’s outside New Or- district, ty shape of this the evidence Shreveport, Rouge, Lafayette, Baton leans — clearly finding supported at trial a of racial Clearly, and Alexandria. Act 1 has no re- gerrymandering. Legislature The Louisiana spect political for Louisiana’s subdivisions. districting principles abandoned traditional majori- to arrive at a Plan which created two Commonality c. Interests ty voting black Act Act districts. like completely disregards say To that 4 comprises the traditional district- District voters ing principles compactness, respect for with common interests all violates traditional covers, only required spend money This court notes that District 4 not to substantial amounts of major population four centers of but covering major and time the voters in four areas separate major includes four media centers of the state. Congressional of this state. candidates would be comparable as a for the and cannot be used north-south, ethno-religious, economic and plan this Court. which cre- before in Louisiana distinctions historical personality. diverse this State’s ated only Accordingly, this Court finds that the En- Louisiana 4 includes North District Redistrieting Plan explanation of the State’s Protestants, mainline ghsh-Scoteh-Irish, inten- gerrymandering. was racial The State French-Spanish-German Louisiana tionally Congressional South into segregated voters Catholics, rural black traditional race, Roman to the basis of order districts on Protestants, en- The district and Creoles. majority intentionally create a second black Central, North, Louisi- and South compasses voting district. unique
ana, own identi- of which has its each culture, agri- interests, history. The ty, Narrowly Tailored cotton, 4 include regions of District cultural subject racially gerrymandered plan is cane, rice, and timber. Such soybean, sugar it scrutiny, to strict and as such violates constituency have few agricultural diverse Equal Protection Clause of the Fourteenth question to interests. We continue common it tailored to Amendment unless representative could how one governmental further a interest. varying interests of adequately represent the far-flung of the State. in such areas residents Compelling Interest Governmental commonality disregards A district which possible Again, the advances two State a stretches across State interests and justify ra- compelling state interests to their regard political to haphazard manner without (1) gerrymandering: compliance with the cial only explained as the can subdivisions (2) Act, Rights remedying the Voting gerrymandering. of racial result past effects of discrimination. Plan for Defendant’s
Justification
Voting Rights Act
Compliance with the
a.
attempted
put forth a race-
The State
plan by the use of
explanation for its
neutral
Voting Rights
pro-
Act
5 of the
Section
that District
geographer who testified
a
duty
affirmative
vides that a state has an
Valley
along
Red River
dem-
drawn
was
retrogression or to avoid enactment of
avoid
commonality of interest. The
onstrating a
purpose or effect of
plan
that has the
proof
to show
failed in its burden
right
on
denying
abridging the
to vote
Valley region in the State
Red River
that the
account of race.
commonality of
Louisiana demonstrated
the Loui-
established that
The defendants
interests.
operating under
siana
was
support for
Secondly, the State offered as
majority-black district
belief that a second
4 of the
was
plan,
its
that District
Department of Justice
mandated
eighth district in Loui-
modeled after the old
preclear-
retrogression, and obtain
to avoid
represented
for and
which was created
siana
regard-
commenting further
ance. Without
Long.
by Congressman Gillis
Department of
ing
role of the
Justice
this
affecting
plan enacted
swayed by
the assertion
This Court is
finding
support
finds no evidence
past regarding the Court
that the tradition of the
majority-black
is re-
district
binding
eighth
on
old
district
Act,
eighth
quired
Section 5 of the
old
to the fact
due
*9
census,
to
by
retrogression. Prior
the
constitutionality
to avoid
challenged on
was never
delegation had
Congressional
Louisiana’s
This Court
any court in the United States.
eight
out of
only
representative
one black
to determine the constitu-
upon
is not called
congressman
district,
Certainly, one
congressmen.
and does
tionality
eighth
the old
of
retrogression.
cannot constitute
a
out of seven
fact that such
district
rely
not
on the
not
Voting Rights Act does
the
by the
Section 5 of
was done
existed in Louisiana. What
governmental inter-
compelling
a
eighth has
constitute
Legislature in the old
Louisiana
Court,
in
case.
est
this
this ease before this
application
no
Additionally,
Voting
significant
2 of the
Section
finds that there exist no
obstacles
prohibits
plan
a
that has
in
Rights
participate
the
for minorities
this State to
in
diminishing
abridging
voting
process
effect of
the
the elections
which have not been
However,
by
strength
protected
Rights
class.
the
of a
this
remedied
Civil
Act of 1964 and
Voting Rights
Supreme
Accordingly,
face of
the
Act of 1965.
claim must fall in the
the
Thornburg
Gingles.3
concept
remedying past
ruling
Court’s
in
the
of
discrimination
compelling governmental
is not a
interest in
This Court finds that Section
of the
history
the recent
of
in
Louisiana
the area of
Voting Rights
implicated by
Act is not
voting rights.
plan. Although
the
Act would
district,
permit
minority
a second
such a
acknowledges
This
great
the
bene-
compelled by
district is not
the Act.
fits that are derived
in
increase minori-
ty representation
government,
only
in
not
for
Remedy
b.
Past Discrimination
represented
those who are
but also to the
process
government
of
op-
itself. Given the
advanced,
justification
The State
as
for its
serve,
portunity to
minorities have shown
district,
racially gerrymandered
the belief
they perform admirably.
greater
minority
that the
of a
creation
second
number of African-American leaders in the
remedy
past
in Louisiana is mandated to
the
government process
only provide positive
discrimination which has existed in Louisi-
citizens,
role
models
all black
but their
ana.
government
in
efforts
will insure that
the
struggled
concept
This Court
with the
legal
minority
obstacles to
advancement in all
“past
how to define
discrimination” in Louisi-
However,
areas of life will be eliminated.
Louisiana,
Certainly,
history
ana.
disregard
rights
of all citizens of the
of most
in the deep
respect
states
South with
Equal
Louisiana would violate the
blacks,
indelibly
to its treatment of
im-
Protection
Clause
the United States Con-
printed
State,
having
our memories. This
stitution,
plan
such
a
would do further
great
against minorities,
inflicted
atrocities
goal
violence to the ultimate
of a colorblind
great
remedying past
has made
strides in
system.
discrimination, being
vigilant
ever
of its cur-
Although we
pre-
found that the evidence
many
rent existence
the attitudes of
of its
hearing
sented at the
support
did not
Louisiana,
today.
residents
in the sense of
contention that
operat-
history,
always
history
past
its
will
have a
ing pursuant
compelling
interest,
to a
state
However,
discrimination.
this Court must
even if
satisfactory
there had been
evidence
history
determine whether this
State has
at trial that
there is a
state inter-
past legal
voting
discrimination in the
laws
in creating
est
majority-minority
second
procedures
compels
which
it to make
district,
plan
embodied
reparations and remediation.
narrowly
Act 1 was not
tailored to effect that
Rights
The Civil
Act of 1964 and the Vot-
interest. The fact that outside of the Or-
ing Rights Act of 1965 have mandated the
area,
minority
leans Parish
popula-
black
elimination of
minority partic-
obstacles to
relatively
tion is
dispersed throughout
ipation
polls.
at the
Since those turbulent
State,
question
rest
elicited the
Louisiana,
times in
through
the efforts of
possible
whether it was even
develop
many
State,
black and white leaders in this
districting plan
majori-
creates
taxes,
poll
we have
seen
elimination of
ty-minority
tailored,
district and is
tests,
literacy
pro-
violence to reduce or
the sense that the
in total does not
hibit
participation
African-American
in our
unduly
rights
burden the
parties.
of third
process.
elections
minority
Louisiana has
representation
nearly every
gov-
level of
Imposed
The Court
Plan
ernment,
every
in almost
area of the State.
Speaking only in
voting
the sense of the
This
with the
guid-
assistance and
rights of minorities in
appointed
master,
this Court
ance of our
special
devised
*10
(1986).
3. 478 U.S.
included goal This Court started
Louisiana. districts, creating re- seven man, one vote”
maining true to the “one and
requirement, the constraints Gingles. every combination considering avail-
After
able, this Court the conclusion that reached population of black
the diffused voters it outside of District makes Congressional plan
impossible to draw a minority-majority contains two dis-
which passes constitutional muster. Act
tricts clearly does not.
Conclusion that the creation of
While Court finds minority-majority district Louisi-
a second advantageous, permissive we do
ana is compelling, it under the constraints
not find
of the Constitution. applauds Legis-
This Court the Louisiana in its to create a second minori-
lature efforts district; however,
ty run such efforts and the dictates
aground Constitution v. Reno.
of Shaw
UNITED of America STATES AGENCY, INC.,
HOME HEALTH Ber- Godley, E. J. McDer-
nard Donald
mett, Carolyn McDermett.
No. 4:91-CV-664-E.
United States District Texas,
N.D.
Fort Division. Worth
Jan.