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BEER v. UNITED STATES

March 15, 1974

Peter H. BEER et al., Plaintiffs,
v.
UNITED STATES of America et al., Defendants, and Johnny Jackson, Jr., et al., Intervenors


Spottswood W. Robinson, III, Circuit Judge.


The opinion of the court was delivered by: ROBINSON, III

The City of New Orleans, Louisiana, seeks a judgment, pursuant to Section 5 of the Voting Rights Act of 1965, *fn1" declaring that its plan of redistricting for councilmanic elections 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. *fn2" The plan is the City's current response to the call of its charter for action decennially to assure councilmanic districts approximately equal in population. *fn3" The City contends that the plan is a projection of legitimate criteria conceived objectively and applied without potential discriminatory consequences. The Government *fn4" and the intervenors *fn5" challenge this position on the ground that the plan will operate to dilute the vote of the city's black minority. The intervenors insist additionally that the plan was designed to achieve that very end.

 Conformably with Section 5, this three-judge court was convened to hear and determine the controversy. *fn6" As hereinafter elaborated, we find that the redistricting which the plan proposes will have the effect of abridging the vote of the black citizenry of New Orleans. *fn7" So concluding, we do not reach the question whether the City's burden *fn8" of showing a racially nondiscriminatory purpose has been borne.

 I. THE EVOLUTION OF THE REDISTRICTING PROBLEM

 A. Portents of the Problem

 The population of New Orleans is 593,471 persons, of whom 267,308 are black. *fn10" Registered voters in the City numbered 242,416 of whom 83,588 are black. White citizens thus comprise 55.0% of the population and 65.5% of the voters; black citizens make up the remaining 45.0% of the population and 34.5% of the electorate. The large numerical strength of the black community as well as its much weaker proportional voting power were destined to play major roles in the gestation of the central issue in this case. *fn11"

 Although some black families are to be found in most of the principal areas of New Orleans, there is no general geographical blending of black and white residences. The black population is heavily concentrated in a series of neighborhoods extending eastwardly and westwardly through the central part of the City; the areas lying north and south of this belt, with minor exceptions, are overwhelmingly white. This residential pattern looms large in any redistricting effort that would safeguard the black vote against dilution. *fn12"

 Other relevant and important facets of the general situation in New Orleans derive from the scheme pursuant to which its legislative body is elected. That body is the City Council, composed of seven members, of whom five are chosen from single-member districts and the remaining two from the city at large. *fn13" Four of the five districts extend from the Mississippi River to Lake Pontchartrain, and thus traverse the entire city; the other district is a wedge-shaped portion of the downtown area. *fn14" Primary elections for the Council are by majority vote, *fn15" and singleshot voting is prohibited. *fn16" These phenomena cooperate with others inherent in the plan under consideration to pose the legal threat to the redistricting which the plan would bring about. *fn17"

 B. Crystallization of the Problem

 Toward the end of 1971, the City Council of New Orleans initiated procedures to redistrict the city for councilmanic elections. The catalyst for this undertaking was a provision of the city charter requiring the Council, after each national decennial census, to remake the districts into elective enclaves approximately equal in population. *fn18" From the beginning, the Council recognized that a plan reorganizing the district boundaries would constitute a suffrage change within the meaning of Section 5 of the Voting Rights Act, *fn19" requiring federal approval prior to operation. *fn20" The saga of the Council's quest for approval is lengthy, *fn21" and for immediate purposes only the highlights of its endeavors need be recounted. *fn22"

 On March 2, 1972, the Council enacted Ordinance No. 4796 M.C.S., *fn23" which incorporated a scheme of redistricting (Plan I). Acknowledging the coverage of Section 5, *fn24" the City Attorney, on May 4, 1972, submitted Plan I to the Attorney General of the United States with a view to a determination that the plan "[did] not have the purpose [and] will not have the effect of denying or abridging the right to vote on account of race or color." *fn25" On January 15, 1973, the Attorney General interposed an objection to Plan I on several grounds. *fn26" The boundaries of the districts projected, he stated, "appear [] to dilute black voting strength by combining a number of black voters with a larger number of white voters in each of the five districts." *fn27" "[It] does not appear," he added, "that the district lines are drawn as they are because of any compelling governmental need," *fn28" and the lines "do not reflect numeric population configurations or considerations of district compactness or regularity of shape." *fn29" By force of Section 5, the effect of this objection was to render Plan I inoperable unless and until this court granted approval in accordance with the standard prescribed by that section. *fn30"

 Subsequently, and after attempts to enlarge its membership through a charter amendment were aborted, *fn31" the Council, on May 3, 1973, passed Ordinance No. 5154 M.C.S., which adopted another redistricting scheme (Plan II). That scheme effected some modifications of Plan I, *fn32" and on May 10, 1973, the City Attorney submitted it to the Attorney General. A second objection interposed by the Attorney General on July 9, 1973, reiterated the grounds originally advanced and cited additional reasons for his disapproval of Plan II. *fn33" The Attorney General concluded "that the boundary lines prescribed by [Plan II] appear to effect a dilution of black voting strength in the same manner as did the boundary lines prescribed in [Plan I]." *fn34" He found that "[while] . . . there are significant differences between [Plans I and II] especially in regard to the number of non-contiguous districts and the population by race of proposed District B," *fn35" Plan II, like Plan I, "nevertheless combines a number of black voters with a larger number of white voters in four of the five districts." *fn36" He further found that the district lines set in Plan II, like those drawn in Plan I, "do not appear to have been passed on any compelling governmental need or to reflect numeric population configurations or considerations of district compactness or regularity of shape." *fn37"

 Continuing, the Attorney General was of the view

 
that the objectionable dilution of black voting strength in both redistricting plans is primarily attributable to the vertical shape of the submitted districts. Because the predominantly black neighborhoods in the city are located generally in an east to west progression, *fn38" the vertical districts in the submitted plans divided the black neighborhoods and combined them with white areas in the north and the south of the city resulting in districts with more white than black voters. *fn39"

 And "[although] the shape of the submitted districts may have been in part based upon the shape of the seventeen wards in New Orleans," *fn40" the Attorney General pointed out that "the wards do not of themselves define official boundaries bearing upon the election of or representation by city council members, and adherence to the traditional shape of the wards may not serve to justify the resulting prohibited dilution of black voting strength under Section 5." *fn41"

 So, said the Attorney General, while "[we] do not mean by this analysis to imply that other reapportionment plans based upon vertical districts will necessarily divide the black neighborhoods in the city to the degree found objectional here," *fn42"

 
[we] have determined, however, that a dilutive result similar to that found in the submitted plan is difficult to avoid when such districts are utilized to the extent found in the submitted plan, and that the extent to which such districts were utilized is not necessary to achieve a successful reapportionment of the city's population. *fn43"

 The failure to gain the Attorney General's approbation for either plan has left New Orleans unable to conduct councilmanic elections on a redistricted basis. *fn44" That, in turn, prompted six members of the Council to file this action on July 25, 1973, seeking a judgment declaring that Plan II neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color. *fn45" We have held four days of hearings during which a great deal of evidence of various sorts was introduced by testimony, both live and deposed, stipulations and exhibits. The parties have also briefed the issues extensively, and have presented oral argument. *fn46" Once these voluminous materials are sifted and organized, the relevant facts appear without material contradiction, and the legal aspects of the New Orleans picture come into sharp focus.

 II. THE EVOLUTION OF THE REDISTRICTING PLANS

 The spadework for plans delineating a redistricting of New Orleans were performed by the Council's research staff, an administrative arm. *fn47" The two versions which emerged from the Council as Plans I and II were adaptations of staff proposals to the views prevailing among the councilmen. To gain the proper perspective ...


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