Hays v. State of Louisiana ( 1994 )

By order dated June 27, 1994, this case was remanded from the United States Supreme Court for further proceedings, — U.S. —, 114 S.Ct. 2731, 129 L.Ed.2d 853. For the following reasons, Act 1 of the Second Extraordinary Session of the 1994 Louisiana Legislature is null and void. The State of Louisiana is hereby enjoined from holding any future Congressional elections based upon the redistricting scheme embodied by Act 1.

I

State of the Case

Ray Hays, Edward Adams, Susan Singleton, and Gary Stokely (“Plaintiffs”) brought this suit in state court in August 1992 challenging Act 42 of 1992. The case was removed to this Court by the State of Louisiana. After one trial and an evidentiary hearing, we struck down Act 42 as an impermissible racial gerrymander violative of Plaintiffs’ equal protection rights. The State of Louisiana et al. (“Defendants”) pursued their appeal directly to the Supreme Court. Meanwhile, during an extraordinary session, the Louisiana Legislature enacted Act 1, repealing Act 42 and creating a new Congressional redistricting scheme. Plaintiffs filed supplemental pleadings seeking to amend their complaint. The amended pleadings challenged Act 1 and sought injunctive relief. As the case was on appeal to the Supreme Court, the motions were returned unsigned for lack of jurisdiction. On June 27, 1994, the Supreme Court vacated our judgment of December 29, 1993, — U.S. —, 114 S.Ct. 2731, 129 L.Ed.2d 853; remanded the case to this Court “for further consideration in light of Act 1 of the Second Extraordinary Session of the 1994 Louisiana Legislature and the parties’ filings in this Court concerning Act 1.” Consistent with that order, this Court permitted the previously filed amended complaint and a two-day trial was held to determine the constitutionality of Act 1.

II

Findings of Fact and Conclusions of Law

In the interest of brevity, we reiterate and adopt by reference our December 28, 1993 opinion. Our conclusions regarding Plaintiffs’ standing to bring an equal protection challenge are adopted as well. With that in mind, we make the following findings:

A

“The Act (1) speaks for itself ”

The districting map of Louisiana, created under Act 1, reflects a racial gerrymander. Specifically the bizarre and irregular shape of District Four raises the inference that the Louisiana Legislature classified its citizens along racial lines and segregated them into voting districts accordingly. The district cuts across historical and cultural divides, splits twelve of its fifteen parishes and divides four of the seven major cities of the State. The statistical evidence showing the racial composition of the districts farther supports the finding that District Four is “so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races for purposes of voting.” Shaw v. Reno, — U.S. —, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993).¹ Plaintiffs, by submitting the new map with their supplemental pleadings, stated a claim upon which relief can be granted under the Equal Protection Clause. We ordered the State of Louisiana and Defendant-Intervenor United States to begin the trial by rebutting this inference.

Defendants offered the testimony of two State Senators, the State Senate’s assistant secretary, a geographer, and a sociologist in an effort to explain the shape of the district on other than impermissible racial grounds. Those persons involved directly with the formation of Act 1 acknowledged that the creation of a second majority-minority district was the specific intent of the Legislature. Two race-neutral explanations were submitted by the defense. First, the geographer opined that as District Four followed the Red River valley, it endowed all its residents with a commonality of interest. Second, the various witnesses asserted that District Four was inspired by “the old Eighth” district thereby satisfying the concept of “traditional” districting principles.

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

After reviewing the evidence, we find that Act 1 can only be explained credibly as the product of race-conscious decisionmaking. The Senators themselves admitted that race played a large if not dominant role in the map as it is now drawn. The Red River valley theory is clearly a post hoc rationalization similar to the Mississippi River theory offered to support Act 42 and equally unbelievable. The State did not imitate the “old 'Eighth” for tradition’s sake.² The “old Eighth,” certainly bizarre, before Shaw and never challenged, was crafted for the purpose of ensuring the reelection of Congressman Gillis Long. New District Four was drafted with the specific intent of ensuring a second majority-minority Congressional district. The State’s purported reliance on District Four’s similarity to the “old Eighth” is mere pretext. Although the witnesses highlighted other factors that carved the contours of the awkward district, the fundamental factor driving Act 1 was race.

B

Act 1 is Subject to Strict Scrutiny

Race-conscious redistricting, while not always unconstitutional, is always subject to strict scrutiny. This conclusion has troubled legislators, scholars, litigators, and judges alike. T. Alexander Aleinikoff, Samuel Issacharoff, Race and Redistricting: Drawing Constitutional Lines After Shaw v. Reno, 92 Mich.L.Rev. 588, 602 (“Aleinikoff”). The problem is caused by the incomplete constitutional status of affirmative action plans in the voting rights realm. In United Jewish Organization v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977), the Supreme Court applied a more deferential standard to what the plurality deemed “benign” measures. One year later, the Court decided Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) following the theory that “the right not to be injured on the basis of one’s skin color was a personal right secured by the Constitution, and the asserted lack of an invidious purpose could not be a sufficient reason for reducing the level of judicial scrutiny applied to measures that disadvantaged persons on the basis of race.” Aleinikoff, 92 Mich.L.Rev. at 592. Eleven years later, City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) confirmed the notion that, since Bakke, the scrutiny applied under the Fourteenth Amendment Equal Protection Clause will not vary based on the race of the preferred group. 488 U.S. at 493, 109 S.Ct. at 721-22. Shaw is consistent with the more recent equal protection precedents, focusing on individual rights as opposed to UJO’s group-based approach. Aleinikoff, 92 Mich.L.Rev. at 600. By not overruling UJO, Shaw v. Reno can be read to ratify “the earlier group-based decisions which focus on whether electoral schemes ‘dilute’ the voting strength of protected minorities [while making clear] that the fact of non-dilution does not immunize districting plans from constitutional challenge.” Id.

“A racial classification, despite purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification.” Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 2293, 60 L.Ed.2d 870 (1979). Therefore, such legislation must be narrowly tailored to further a compelling governmental interest if it is to pass constitutional muster.

C

Compelling Governmental Interest

Defendants have proved no compelling governmental interest in distinguishing among citizens of Louisiana because of their race. Defendants contend that incumbency politics, the Voting Rights Act, and remedying past legal and social or continuing social discrimination justified the racial segregation of voters. We disagree.

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

1

Voting Rights Act

The State Legislature believed that the Voting Rights Act compelled the creation of a second majority-minority district.³ A careful review of those statutes and the caselaw interpreting them reveals that the State’s belief was misplaced.

Under Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, the State has an affirmative duty to avoid retrogression or enactment of a plan that has the purpose or effect of denying or abridging the right to vote because of race or color. Neither the State nor the Department of Justice offered any evidence suggesting that failure to create a second majority-minority district would either be a retrogression of minority strength or have an illegal purpose or effect. Not surprisingly, we can find no support for such a claim either. Section 5 cannot be read to compel the results of Act 1.

A Voting Rights Act Section 2 violation occurs when, under the totality of the circumstances, a State’s apportionment scheme has the effect of diminishing or abridging the voting strength of a protected class. In Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), the Supreme Court enumerated three conditions to a Section 2 “dilution” claim: (1) a numerous and compact minority, that is (2) politically cohesive, and (3) subject to majority bloc voting usually defeating the minority’s preferred candidate. 478 U.S. at 50-51, 106 S.Ct. at 2766. The evidence convincingly proves that the State cannot clear the first Gingles hurdle.⁴ Accordingly, Section 2 cannot serve as a compelling justification for Act 1. Certainly the Voting Rights Act would permit the creation of a second majority-minority district, but the fact that such a district is permitted does not compel its creation. Shaw demands that we distinguish between what the Voting Rights Act requires and what it permits. — U.S. at —, 113 S.Ct. at 2830. As for any arguments that Section 2 compels maximization of minority voting strength, the Supreme Court recently held:

(R)eading Section 2 to define dilution as any failure to maximize tends to obscure the very object of the statute and to run counter to its textually stated purpose. One may suspect vote dilution from political famine, but one is not entitled to suspect (much less infer) dilution from mere failure to guarantee a political feast ... Failure to maximize cannot be the measure of Section 2.

Johnson v. DeGrady, — U.S. —, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994). Hence, the State did not have a basis in law or fact to believe that the Voting Rights Act required the creation of two majority-minority districts.⁵

2

Remediation of Past or Present Discrimination

Defendants elicited testimony that the sordid history of unconstitutional treatment of black citizens in Louisiana prompted the State to tinker with district lines in order to ensure minority control at the polls. Using the disease as a cure is a dangerous antidote, one that must be absolutely warranted before being administered. Ironically, one witness contended that the days of “white” and “colored” water fountains and bus seats justify distinct “white” and “African-American” congressional districts. What the defense failed to establish is where the Civil Rights Act of 1964 and the Voting Rights Act of 1965 have failed to accomplish what the State now sets out to do. Without concrete evidence of the lingering effects of past discrimination or continuing legal prejudice in voting laws and procedures, coupled with specific remedies, we cannot agree that the re-segregation of Louisiana by racially configured voting districts is warranted.⁶ Croson and Bakke dictate this result.

Finally, we refuse to accept the explanation that citizen response to issues such as education, crime and health care is driven by skin pigmentation. Legitimation of that notion would herald the demise of equal protection.

Ill

The Court’s Plan

Our strong preference is to leave to the Legislature the task of drawing election districts. We reluctantly set our hands to the task, considering the lateness of the hour, the dismal history of the Legislature in two previous attempts, foot-dragging by the defendants in the appeals and the risk that Louisiana might be without Congressional representation in January 1995. The districts that we drew split only 6 parishes of the sixty-four, followed traditional lines, only one town of approximately 3000 was divided, and the plan met all Constitutional one man — one vote requirements. It did ignore all political considerations. And, instructed by Gingles, we did not carve districts along race lines, except in District 2, where the Constitution and fairness requires us to consider it.⁷

IV

Conclusion

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

I find a contrary position strangely at odds with the desires so eloquently voiced, not so long ago, in Shreveport, in Jackson, in Selma, in countless towns across the South, at schools and lunch counters, at voter registrar’s offices. They stood there, black and white, certain in the knowledge that the Dream was coming; determined that no threat, no spittle, no blow, no gun, no noose, no law could separate us because of the color of our skin. To say now: “Separate!” “Divide!” “Segregate!” is to negate their sacrifice, mock their dream, deny that self-evident truth that all men are created equal and that no government may deny them the equal protection of its laws.

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

WALTER, District Judge, WIENER, Circuit Judge, and SHAW, Chief District Judge, concurring, with SHAW, Chief District Judge, concurring specially with whom WIENER, Circuit Judge, concurs.

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

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

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

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

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

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

7 . See Major v. Treen, note 5 supra.