Eighth Circuit Afffirms District Court Finding of Section 2 Violation in South Dakota Indian Country Case

The Eighth Circuit opinion in Bone Shirt v. Hazeltine is here. See also this press release. I've glanced at the majority opinion, and something about it is odd. The district court found a section 2 violation, and ordered a remedy proposed by plaintiffs that unpacked a Native American district to create another opportunity district in an adjoining district. The state argued that this remedy violated section 5 because it was not approved by the DOJ or a three-judge court in DC. The concurring judge correctly noted that a federal district court remedial plan under section 2 need not be precleared under section 5. (Pdf at 25.) That judge also noted that the issue was not raised until appeal and was therefore waived. Yet the majority addressed the question (pdf 14-15):

The defendants further contend that the remedial plan violates Section 5 of the Voting Rights Act because it will result in an overall loss of representation for Native-Americans in District 27. See Beer v. United States, 425 U.S. 130, 141 (1976). Section 5 is designed to combat retrogression which, "by definition, requires a comparison of a jurisdiction's new voting plan with its existing plan [and] necessarily implies that the jurisdiction’s existing plan is the benchmark against which the effect of voting changes is measured." Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 478 (1997) (internal citations omitted). The burden is on South Dakota to prove that the change does not have a discriminatory purpose or an effect that would deny or abridge the voting rights of minorities based on race when compared to the status quo of the previous plan. Reno v. Bossier Parish Sch. Bd., 528 U.S. 320, 328-29, 334 (2000).
The defendants have not carried this burden. A retrogressive effect is one that decreases minority voting power in comparison with a preexisting plan when it eliminates a majority minority district or otherwise reduces the voting power of a minority community.Beer, 425 U.S. at 141. Here, the plan increases the number of Native-American majority districts by one, and enhances the voting power of the minority. Thus, the remedial plan is consistent with the goals of the Supreme Court, as stated in Beer, 425 U.S. at 141: "reapportionment that enhances the position of
racial minorities with respect to their effective exercise of the electoral franchise can hardly have the effect of diluting or abridging the right to vote on account of race within the meaning of § 5."

(footnotes omitted). The court then went on to state that "As to the defendants’ claim that Section 5 was violated due to the lack of preclearance, we find no merit. Section 5 clearly states that the preclearance requirement applies to "legislative apportionment plans that are adopted without judicial discretion or approval." McDaniel v. Sanchez, 452 U.S. 130, 138 (1981). In this case, the plan was privately developed, and thus not subject to ]reclearance. Id. ('[T]he Act's preclearance requirement does not apply to plans prepared and adopted by a federal court.')."
Very odd analysis for a section 2 case. And someone should have told the court (perhaps someone did) that Congress disapproved of Bossier Parish II in renewing the Voting Rights Act last month.

Posted by Rick Hasen at August 22, 2006 08:50 PM