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 on Plan II, the subject of this litigation, we must examine the evolution of both of the plans.
A. The Formulation of Plan I
Armed with the 1970 census figures, guidelines of the Attorney General promulgated pursuant to Section 5,
a recent federal court decision on legislative reapportionment in Louisiana,
and other data,
the research staff developed numerous redistricting concepts, some of which evolved into concrete plans for consideration by the Council. A group of several factors exerted the primary influence on the staff's determinations leading to the district boundaries set by the submission which ultimately became Plan I.
The staff gave principal attention to the city charter's demand for five councilmanic districts of equal population.
Beyond this, the staff noted instructions of the City Attorney,
supplementing the Attorney General's guidelines, to avoid lines which would divide concentrations of minority voters and thereby reduce their voting strength.
The staff also undertook to observe, as far as possible, traditional political boundaries -- ward and precinct lines
-- and natural geographic boundaries -- the Mississippi River and Lake Pontchartrain, as well as major streets and canals. Yet another effort was to steer clear of boundaries which would place two or more incumbent councilmen in the same district.
And the staff endeavored to keep the councilmanic districts compact and geographically integral.
The complex question of Algiers, and the inseparable dispute over additional bridging of the Mississippi River, were also instrumental in shaping Plan I. Algiers, as we have mentioned, is disjoined by the Mississippi from downtown New Orleans, and only one bridge spans the river from Algiers to downtown New Orleans.
The bridge is the principal corridor for needed access by the residents of Algiers to the remainder of the city; an infrequent ferry service is of little use to the daily commuter. Algiers is a high-growth residential area, and its citizens do not fully share with other inhabitants of the city the same political and economic concerns.
Transportation across the river to and from Algiers is dear to the people living there, and is a much debated issue in New Orleans.
The mix of the above elements produced a proposal to adopt the redistricting scheme which was to become Plan I. The proposal, O.C. No. 5194, was presented for community views at three public hearings. The plan envisioned the division and distribution of the territory of Algiers among three different councilmanic districts, and to this the residents of Algiers voiced strong objection. Several black groups vigorously opposed the plan because, by their estimate, it diluted the black vote;
in an effort to increase the potential for black representation on the Council,
they sought to restructure the plan to provide for as many as eleven single-member districts. Nonetheless, with slight modifications, the proposal passed the Council as Plan I, becoming Ordinance No. 4796 M.C.S., only to be disapproved by the Attorney General.
B. Impediments to Black Suffrage
At the hearings on Plan I, black citizens' groups advocated both an increase in the size of the City Council and the elimination of at-large elections of councilmen. The goal of this approach was greater opportunity for black voters to take part meaningfully in the selection of those who are to sit on the Council. Witnesses claimed that the existing scheme -- five councilmen from districts and two at large -- perpetuated limitations on the ability of the black voting population to engage effectively in the choice of councilmanic membership. In recounting from hard personal experience the barriers to full political participation by minorities, black opponents of Plan I cited a variety of restraints which we find quite revealing.
As the prime example of past discriminatory practice, the expansionists stressed the long history of racial segregation in education, housing, public facilities and virtually all facets of everyday life in New Orleans.
With special reference to suffrage, witnesses attested to past voting practices which worked to exclude blacks from the registration rolls and to stifle minority participation in elections.
Even until recent times, they reminded listeners, strict proof of residency of specified duration, and confinement of registration to one location -- the city hall -- had persisted as obstacles to black would-be voters.
Testimony at the hearings further indicated that the candidate-selection process preceding councilmanic campaigns created additional problems for New Orleans' black citizens. To maximize citywide exposure, aspirants for councilmanic office are often invited to join mayoral tickets and to campaign with mayoral candidates as a team, and invitees are the personal choices of those candidates.
Endorsements from local organizations -- the white political power structure -- are another component in the selection. Black citizens running for office are hampered both by their generally more individualistic political philosophies and their more limited financial resources.
No black person has ever won election to the Council.
To overcome the barriers of endorsements and campaign assistance, most black candidates have run independent -- albeit losing -- campaigns, focusing their appeal on the black community. In recent years, the only four successful black candidates for city-wide office in New Orleans were recipients of support from white organizations
or white candidates.
As suggested at the hearings, the achievements of these candidates cannot be equated with open access to the voting booth and equal weight of the vote in the count.
According to the expansionists, the need for increased representation on the City Council was exacerbated by the unresponsiveness of city officeholders to the wishes and wants of the black minority.
Indicia of the failure of the all-white City Council to react favorably to the concerns of the black community were legion. Advocates of improved municipal services received a deaf ear from the Council more often than not. Efforts to pave streets, maintain parks and improve recreational areas in black neighborhoods have more lately been bolstered, not by improved attitudes on the part of counsel members, but by pressure to utilize funds provided by federal programs. Good faith efforts of some public officials have brought assistance to black constituents, but examples are relatively scarce.
The white and black communities of New Orleans are polarized in political matters, and that is perhaps best manifested by the incidence of bloc voting in New Orleans. The record documents a history of bloc voting substantially along racial lines in both white- and black-occupied areas.
The results of modern elections which black candidates entered, or in which issues of special concern to black voters are aired, demonstrate a strong trend toward overwhelming support for black candidates and "black" issues in black neighborhoods with minimal support in white neighborhoods, and vice versa.
Speakers at the hearings asserted that where black voters constitute a minority of the total voting population, as is the case in New Orleans, the negative impact of bloc voting would further impair their ability to participate effectively in political activities.
To this array of factors delimiting black access to the political process, the expansionists added certain structural elements as further proof that the black vote would continue to suffer if the City Council remained small in membership and the at-large seats were preserved. In New Orleans two such elements, both of statutory origin, are of particular significance. The expansionists attacked the majority-vote requirement
and the anti-singleshot provision
as primary-election mechanisms which depreciate the ballot of the black voter in councilmanic elections. The majority-vote rule obscures a black candidate's chances of winning even if he were to receive all of the black vote.
Without the possibility of a plurality victory by his candidate, the minority voter's influence on the election results is sharply reduced. The anti-singleshot law provides that if two or more offices are to be filled -- as, for example, the two at-large seats on the City Council -- a voter must vote for candidates equal in number to the number of offices at stake, or else have his ballot invalidated with respect to all of those offices.
So, although a voter wishes to support but one aspirant for an at-large seat on the Council, he must cast a vote against his candidate in order to have his vote for that candidate counted.
The expansionists' arguments won a limited victory temporarily. Subsequent to the public hearings, the City Council approved ordinances offering the voters of New Orleans alternatives to a seven-member legislative body and two of them were successively submitted to separate citywide referenda. The first, Ordinance No. 4923 M.C.S., called for an expansion to eleven members, nine from districts and two at large; the second, Ordinance No. 5026 M.C.S., specified an expansion to nine members, seven from districts and two at large.
Although neither ordinance embodied the central proposal advanced by black spokespersons -- elimination of at-large voting, and election of all councilmen from single-member districts, as an essential feature of any expansion -- both ordinances were supported by the black vote ostensibly on the theory that enlargement of council membership in any form was superior to the existing scheme, and raised some hope for fairer minority representation. Neither proposal received any support from white political organizations, however, and both were eventually defeated by the preponderant white vote.
C. The Formulation of Plan II
Following the rejection by the electorate of plans for expansion of the City Council, and principally in response to vociferous outrage over the tripartite split of Algiers in Plan I, a member of the Council directed the research staff to redraw that plan to incorporate all of Algiers into one district and to readjust the boundaries of other districts accordingly. This the staff did and one of the products of its efforts ultimately became Plan II. The staff considered the same criteria it had utilized in promulgating Plan I,
but the Algiers question appears to have been the overriding concern in the restructuring of districts. Very importantly, the factors which persuaded the Attorney General to disapprove Plan I
did not undergo reconsideration by the staff in the formulation of the concepts leading to Plan II. The staff commenced and completed its work on Plan II while Plan I was under review by the Attorney General and before he interposed his objection to it.
In toto, four new schemes revising Plan I
were submitted by the staff and considered by the Council. In the meantime, the Attorney General rejected Plan I,
but it does not appear that the Council addressed specifically the flaws which the Attorney General identified in that version. The eventual Plan II -- relatively little more than a modification of Plan I placing Algiers in a single district -- was aired at two additional public hearings and passed by the Council with only a minor amendment -- the shifting of a precinct from one district to another. Again the Attorney General registered an objection in the view that the second plan, as had the first, failed to meet the test of Section 5,
and that left the fate of Plan II to the courts.
III. THE HISTORICAL EVOLUTION OF SECTION 5
A. The Constitutional Background
Section 1 of the Fifteenth Amendment pledges that "[the] right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." And so, "without further legislative specification,"
Section 1 "[invalidates] state voting qualifications or procedures which are discriminatory on their face or in practice."
The Fifteenth Amendment, however, does not rest protection of the right to vote entirely on the majestic pronouncement made by Section 1, but in Section 2 provides that "[the] Congress shall have the power to enforce this article by appropriate legislation." "This power, like all others vested in Congress, is complete in itself, may be exercised to the utmost extent, and acknowledges no limitations, other than are prescribed in the constitution."
The wisdom of coupling with the guaranty of Section 1 the broad enforcement authority conferred by Section 2 was fully demonstrated by the experience accumulated over the 95 years following ratification of the Fifteenth Amendment in 1870. For notwithstanding the self-executing nature of Section 1 and its enforceability in the courts, the promise it made far out ran actual realization. The grandfather clause,
the white primary,
the discriminatory challenge
and the black gerrymander,
though ultimately declared illegal, attested the multiform opposition to racial equality in voting persistent in some sections of the country. Among the subtler, but certainly not the feebler, devices suppressing black suffrage were literacy tests discriminatorily conceived and administered.
In the wake of these techniques was widespread disenfranchisement of black citizens in areas where the black population was large.
That was the sad reality in 1965, despite the best efforts of those who had advocated voting equality in the courts and others who had pushed for stronger voting rights laws in Congress. Another reality, equally stark, was that each of those approaches had suffered from its own difficulties. Post-Civil War statutes on the subject had proven ineffective, and modern federal legislation had aimed at facilitating case-by-case litigation of suffrage discrimination.
Attempts to enforce the constitutional mandate entailed numerous lawsuits, which all too frequently became individually onerous and protracted.
Beyond that, adjudications removing one obstacle to equality ofttimes went for naught in the face of substitution of another obstacle, or even of defiance or evasion of court orders.
The net of it all was relatively little gain in black voting.
As the House Judiciary Committee was to observe in 1965, "[the] historic struggle for the realization of this constitutional guarantee indicates clearly that our national achievements in this area have fallen far short of our aspirations."
B. The Voting Rights Act
The Voting Rights Act of 1965 mounted the Nation's most formidable legislative assault upon the massive problem of voting discrimination. As the history of the Act discloses, "Congress felt itself confronted by an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution."
And as the Act itself reveals, "Congress concluded that the unsuccessful remedies which it prescribed in the past would have to be replaced by sterner and more elaborate measures in order to satisfy the clear commands of the Fifteenth Amendment."
The 1965 congressional approach to this task was marked by renewed determination and a changed philosophy. The Voting Rights Act "implemented Congress' firm intention to rid the country of racial discrimination in voting."
It "was designed by Congress to banish the blight of racial discrimination in voting, which [had] infected the electoral process in parts of our country for nearly a century."
It was "drafted to make the guarantees of the Fifteenth Amendment finally a reality for all citizens
it "was aimed at the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race."
For "Congress realized that existing remedies were inadequate to accomplish this purpose and drafted an unusual, and in some aspects a severe, procedure for insuring that States would not discriminate on the basis of race in the enforcement of their voting laws."
C. Sections 4 and 5
A reading of the Act in its entirety tells how extensively Congress pursued these objectives. We need not canvass all provisions of the Act,
for our immediate concern is Section 5. We must, however, examine that section in light of Section 4, with which Section 5 and other remedial provisions of the Act are closely related.
Section 4 automatically suspends compliance with any "test or device" as a precondition to voting in any state or political subdivision "which (1) the Attorney General determines maintained on November 1, 1964, any test or device, and with respect to which (2) the Director of the Census determines that less than 50 per centum of the persons of voting age residing therein were registered on November 1, 1964, or that less than 50 per centum of such persons voted in the presidential election of November, 1964."
The coverage of Section 4 has been extended to any other state or political subdivision with respect to which similar determinations are made as to the year 1968.
The words "test or device" are defined as "any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class."
A state or local unit thus covered may reinstate the test or device only by bringing an action in this court for a declaratory judgment and obtaining a determination "that [no] such test or device has been used during the ten years preceding the filing of the action for the purpose or with the effect of denying or abridging the right to vote on account of race or color."
It is to the states and political subdivisions which are covered by Section 4 that the prohibition of Section 5 applies. Section 5 provides that no person shall be denied the vote for failure to comply with "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect" in the covered state or subdivision on November 1, 1964, or November 1, 1968, as the case may be, unless and until (a) the change is submitted to the Attorney General and he interposes no objection, or (b) in an action instituted in this court, a judgment is obtained declaring "that such qualification, prerequisite, standard, practice, or procedure 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. . . ."
The reason for including the proscription of Section 5 in the Act is simple. As the Supreme Court has explained, "Congress knew that some of the States covered by § 4(b) of the Act had resorted to the extraordinary stratagem of contriving new rules of various kind for the sole purpose of perpetuating voting discrimination in the face of adverse federal decrees."
Moreover, as the Court continued, "Congress had reason to suppose that these States might try similar maneuvers in the future in order to evade the remedies for voting discrimination contained in the Act itself."
So, said the Court, "[under] the compulsion of these unique circumstances, Congress responded," through the enactment of Section 5, "in a permissibly decisive manner."
The decisiveness of that response is apparent both from the wide coverage that Section 5 was given and from the caliber of the showing prerequisite to removal of its bar.
IV. THE SCOPE OF SECTION 5
Since August 7, 1965, the State of Louisiana, in consequence of appropriate administrative determinations, has fallen within the ambit of Section 4 of the Voting Rights Act.
Since the State has not exempted itself from the coverage of Section 4, the City of New Orleans remains subject to the commands of Section 5.
The latter section requires clearance either by the Attorney General or by this court of "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect" on November 1, 1964.
The redistricting plan which is the subject of this litigation will change a number of boundaries of the five councilmanic districts in New Orleans from what they were on that date. The Attorney General has interposed an objection to the plan, and the question is whether, on the evidence tested by the standard enunciated in Section 5, the plan merits our approval.
Indubitably, the enactment of the ordinance adopting Plan II triggered Section 5 into operation. As the Supreme Court has admonished, "Congress intended that the Act be given 'the broadest possible scope ' to reach 'any state enactment which altered the election law of a covered State in even a minor way '";
"all changes no matter how small [are to] be subjected to § 5 scrutiny."
The reconstitution of councilmanic districts which the plan envisions is clearly a change of a "standard, practice, or procedure with respect to voting."
As such, it falls plainly within the purview of Section 5.
But to say that Section 5 is actuated by a plan proposing such a change is not to suggest that Section 5 demands disapprobation of the plan. It is to say that the plan must be disapproved unless the evidence warrants a judgment declaring that it "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."
That is the question which we are summoned to decide in this case.
B. Relationship to the Fifteenth Amendment
In considering whether the New Orleans redistricting plan passes muster under Section 5, we must bear in mind the relationship of the Voting Rights Act to the Fifteenth Amendment. The Act, in its preamble, is declared to be legislation "[to] enforce the fifteenth amendment to the Constitution of the United States, and for other purposes."
In Section 2 the Act, similarly to the Amendment, specifies that "[no] voting qualification or prerequisite to voting, or standard, or practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color."
The legislative history of the Act establishes the full and firm allegiance of its own objectives with the goals of the Amendment.
The Supreme Court summed it up when it observed that "[the] Act was drafted to make the guarantees of the Fifteenth Amendment finally a reality for all citizens."
This close relationship, so true of the Act as an entirety, is also true of Section 5. That section "essentially freezes the election laws of the covered States unless a declaratory judgment is obtained in [this court] holding that a proposed change is without discriminatory purpose or effect."
Like other provisions of the Act, Section 5 was passed,
and its validity has been sustained,
as an appropriate exercise of congressional power to enforce the mandate of the Fifteenth Amendment.
Section 5 proceeds to accomplish that mission through a substantially similar mandate of its own. The Amendment, in Section 1, provides in part that "[the] right . . . to vote shall not be denied or abridged by . . . any State on account of race [or] color";
in parallel language, Section 5 permits judicial approval of a changed voting procedure only if it "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."
Judicial clearance of a new voting rule under Section 5 thus exacts "a judicial determination that continued suspension of the new rule is unnecessary to vindicate rights guaranteed by the Fifteenth Amendment."
C. Dilution of the Right to Vote
The clearest case of violation of the Fifteenth Amendment right arises, of course, when a would-be voter is barred from exercising it;
and there is no indication that the redistricting plan proposed for New Orleans will have that effect upon any voter. But both the Fifteenth Amendment and the Voting Rights Act forbid abridgment of the right to vote as well as its outright denial,
and any doubt as to what abridgment of the right encompasses may readily be dispelled. The Supreme Court held in Reynolds v. Sims,
a reapportionment case, and has later consistently repeated in cases arising under the Act,
that "the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise."
As the Court has stated it another way with specific reference to the Act, "[the] right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot."
And the Court has declared that by passage of the Act "Congress intended to adopt the concept of voting articulated in Reynolds v. Sims, . . . [to] protect Negroes against a dilution of their voting power."
Our investigation as to whether the redistricting plan before us has a dilutive effect on the black vote in New Orleans is greatly assisted by a pause to briefly examine theory and practice prevalent in legislative reapportionment cases, wherein essentially the same problem has arisen. It is now settled that "[the] Equal Protection Clause [of the Fourteenth Amendment] demands no less than substantially equal state representation for all citizens, of all places as well as of all races."
When the same number of representatives on the same body are elected from districts having disparate populations, the individual votes of citizens in the more heavily populated districts obviously have less weight than the votes of those in the districts more sparsely populated. For state elections conducted on the basis of districting, the general requirement is "substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the State."
Our commission in this case does not extend to this kind of malapportionment, but to conditions that might detrimentally affect the franchise on the basis of race or color.
Sometimes, however, in reapportionment situations devoid of any vitiating deviation from population equality, the claim is made that something in the voting scheme -- in the decided cases, a multimember district or at-large voting -- operates to sap the voting strength of racial or other minorities within the district.
The methodology of resolving such claims is instructive.
The Supreme Court has held that in such cases "the [plaintiff's] burden
is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question -- that its members had less opportunity than did other residents of the district to participate in the political processes and to elect legislators of their choice."
Thus, as the Fifth Circuit has pointed out, "although population is the proper measure of equality in apportionment, . . . access to the political process and not population [is] the barometer of dilution of minority voting strength."
The determination demanded in such cases is to be made on "the totality of the circumstances,"
and among the factors pertinent to the question whether a minority group enjoys meaningful access "are the continuing effects of past discrimination on the minority group's ability to participate in the political process, the opportunity for the minority group to participate in the candidate selection process, the responsiveness of elected officials to the particular concerns of the minority group, and the strength of the state interest in multi-member or at-large voting."
Our examination of New Orleans' redistricting, then, may proceed on several fundamental premises. The tendered issues are whether the City's Plan II will have the purpose or effect of abridging the right to vote because of race or color.
The decision necessitates prior investigation to ascertain whether the plan will attenuate, in terms of power or weight, the black vote in councilmanic elections.
The measure of the plan's validity is equality of opportunity, and the crucial inquiry is whether the plan leaves black citizens at liberty to participate in the electoral processes on the same plane with white citizens.
That assessment, toward which we now proceed, is to be made upon careful consideration of all relevant circumstances.
V. THE LEGAL PROBLEM
To fulfill the mandate of Section 5, we repeat, it must be shown that the redistricting plan in question 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.
The burden of that showing rests upon New Orleans.
Our task is to determine whether that burden has been discharged,
and that is the only function we have with respect to the controversy at hand.
A. The Prime Factors
Several prominent factors, proceeding from quite different sources, converge to intensify the problem confronting us. One is the size and voting strength of the black community in New Orleans,
which expectably would assure the prospect of fairly substantial black representation on the City Council. At the same time the black minority, which numerically is nearly half of the total population, commands only slightly more than one-third of the vote, a circumstance that beckons inquiry as to why that is so. Another factor of great moment is the residential pattern prevalent in the city.
When the five councilmanic districts are constructed vertically -- by dividing lines drawn northwardly and southwardly across the entire city -- it is difficult to avoid the result that each district will combine a segment of the east-west black belt with segments of contiguous white areas. Rather, the likely result is all or nearly all districts with a preponderance of white inhabitants and voters.
Other vital factors are important elements of the political machinery by which the City Council is chosen. Five of the seven members are elected from the five single-member districts and the other two from the city at large.
Nomination as a candidate for election requires a majority of the vote cast at a primary,
and singleshot voting in primaries is not allowed.
These features of the electoral process operate conjunctively to handicap a racial minority, wherever and whenever it is also a voting minority, from securing nomination of its candidates if the voting proceeds strictly along racial lines. In New Orleans it usually does,
and nomination in the Democratic primary is usually tantamount to victory in the general election.
It is in this general context, further ramified by additional considerations, that the redistricting proposed by Plan II must be examined. The plan changes a number of boundaries of the five preexisting vertical councilmanic districts, but leaves the districts just as vertical as they were before. When the plan is superimposed upon the housing pattern prevalent in New Orleans, the statistical picture in the five districts emerges as follows:
Population Registered Voters
District Total Black % Total Black %
A 117,901 36,665 29.1 57,387 12,964 22.6
B $118,678 76,109 64.1 39,870 20,976 52.6
C 119,023 42,651 35.8 49,756 11,606 23.3
D 118,337 51,447 43.5 49,505 18,223 36.8
E 119,532 60,437 50.6 45,898 19,819 43.2
Total 593,471 267,308 45.0 242,416 83,588 34.5
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