Supreme Court Restricts Section 5 of Voting Rights Act to Retrogressive Intent and Effect Only

On January 24, 2000, the Supreme Court held that "section 5 does not prohibit preclearance of a redistricting plan enacted with a discriminatory but non-retrogressive purpose. "Reno v. Bossier Parrish School Board, No. 98-405.

This case has been pending most of the last decade. In 1994 the Bossier Parish School Board brought a declaratory judgment action in the U.S. District Court for the District of Columbia seeking preclearance of its redistricting plan (after unsuccessfully seeking administrative preclearance). Several black citizens of the Parish, represented by the Voting Rights Project of the Lawyers' Committee, intervened as defendants (along with the U.S. Attorney General) to object to preclearance. The District Court eventually granted preclearance. Both the Attorney General and the private intervenors appealed to the Supreme Court. Although the Supreme Court held that preclearance under Section 5 of the Voting Rights Act may not be denied solely on the basis of a violation of Section 2 of the Act, it remanded for a consideration by the District Court of any Section 2-type evidence that might be relevant to the Section 5 question: whether the change has the purpose or effect of discriminating against racial minorities. Reno v. Bossier Parish School Board, 520 U.S. 471 (1997).

After the remand to the District Court, we and the Justice Department presented evidence that the Bossier Parish School Board adopted its plan with no minority districts after the local NAACP suggested a plan with two majority-minority districts. We argued that this demonstrated a discriminatory intent.

On May 1, 1998, the District Court for the District of Columbia entered a declaratory judgment that Bossier Parish School Board's 1992 redistricting plan did not have the purpose or effect of discriminating against black voters. The District Court had refused to credit any evidence presented by the United States or the Price intervenors (the Lawyers' Committee's clients) regarding the Board's the general intent to discriminate against blacks, but held that there was not sufficient evidence of an "intent to retrogress," that is a specific intent to reduce black representation on the Parish School Board (which was already zero). Bossier Parish School Board v. Reno, 7 F.Supp.2d 29 (D DC 1998) (3-judge court). Both Price and the United States appealed a second time.

On January 22, 1999, the Supreme Court noted probable jurisdiction in both two cases and heard arguments in April. On June 24, 1999, the Supreme Court set the two cases for reargument during the next Term and ordered the parties to submit additional briefs on the burden of proof. The case was reargued on October 6, 1999. Working on the case with Project staff were John Borkowski of Hogan & Hartson (New Orleans LA) and Patricia Brannan of Hogan & Hartson (Washington DC).

The Voting Rights Project is very disappointed in this outcome. Voting Rights Project Director Edward Still made this assessment of this case after its argument but before the decision: "If we lose this case, the scope of Section 5 will be narrowed and stopping discriminatory voting changes in advance of their implementation will be more difficult. If we win, Section 5 will continue to be an effective tool to block discriminatory election laws." Unfortunately, we now have to see whether Still was correct in his prediction.

For the full text of these decisions, click on these links for the January 2000 decision http://supct.law.cornell.edu/supct/html/98-405.ZX.html and http://laws.findlaw.com/US/000/95-1455.html for the 1997 decision.

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