No. 94-929 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1994 UNITED STATES OF AMERICA, APPELLANT V. DAVIDA JOHNSON, ET AL. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA JURISDICTIONAL STATEMENT DREW S. DAYS, III Solicitor General DEVAL L. PATRICK Assistant Attorney General PAUL BENDER Deputy Solicitor General JAMES A. FELDMAN Assistant to the Solicitor General STEVEN H. ROSENBAUM MIRIAM R. EISENSTEIN Attorneys Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED 1. Whether a districting plan is always subject to strict scrutiny if race has been a substantial or moti- vating factor in its creation. 2. Whether the boundaries of Georgia's Eleventh Congressional District are so bizarre on their face that they can be understood only as an effort to segre- gate voters into separate districts because of their race. 3. Whether the State's creation of District Eleven is narrowly tailored to further a compelling interest. (I) ---------------------------------------- Page Break ---------------------------------------- II PARTIES TO THE PROCEEDING In addition to the parties named in the caption, the plaintiffs below were Pam Burke, Henry Zittrouer, George L. DeLoach, and George Seaton. The defend- ants below were Zen Miller, Governor of Georgia, Pierre Howard, Lieutenant Governor of Georgia, Thomas Murphy, Speaker of the House of Representa- tives of Georgia, and Max Cleland, Secretary of the State of Georgia. Intervenor-defendants were Lucious Abrams, Jr., Rev. G.L. Avery, William Gary Chambers, Sr., and Karen Watson. ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Opinion below . . . . 1 Jurisdiction . . . . 1 Constitution provision involved . . . . 2 Statement . . . . 2 The questions presented are substantial . . . . 12 Conclusion . . . . 20 Appendix A . . . . 1a Appendix B . . . . 103a Appendix C . . . . 105a Appendix D . . . . 107a TABLE OF AUTHORITIES Cases: Beer v. United States, 425 U.S. 130 (1976) . . . . 9 Busbee V. Smith, 549 F. Supp. 494 (D.D.C. 1982), aff'd, 459 U.S. 1166 (1983) . . . . 3 Hays V. Louisiana, 839 F. Supp. 1188 ( W.D. La. 1993), vacated and remanded on other grounds, 114 S. Ct. 2731 (1994) . . . . 7 Shaw V. Reno, 113 S. Ct. 2816 (1993) . . . .2, 6, 13, 14, 16 Thornburg v. Gingles, 478 U.S. 30 (1986) . . . . 10, 17 Constitution, statutes, regulations and rule: U.S. Const. Amend. XIV (Equal Protection Clause) . . . . 2, 5 Voting Rights Act of 1965,42 U.S.C. 1973 et seq.: 2,42 U.S.C. 1973 . . . .8, 16, 17, 18 5,42 U.S.C. 1973c . . . . passim 28 U.S.C. 1253 . . . . 1 28 C. F. R.: Section 51.3 . . . . 4 Section 51.59 . . . . 9 SUP. Ct. R. 18.1 . . . . 1 Miscellaneous: 52 Fed. Reg. 490 (1987) . . . . 9 (III) ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1994 No. UNITED STATES OF AMERICA, APPELLANT DAVIDA JOHNSON, ET AL. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA JURISDICTIONAL STATEMENT OPINION BELOW The opinion of the three-judge district court (App., infra, la-102a) is not yet reported. JURISDICTION The judgment of the three-judge district court was entered on September 12, 1994. The United States filed a notice of appeal on September 20, 1994 (App., infra, 105a-106a), and an amended notice of appeal on September 22, 1994 (App., infra, 107a-108a).1 The jurisdiction of this Court is invoked under 28 U.S.C. 1253. ___________________(footnotes) 1 The first notice of appeal did not specify the statute under which the appeal was taken. See Sup. Ct. R. 18.1. The amended notice of appeal specified that the appeal was being taken pursuant to 28 U.S.C. 1253. (1) ---------------------------------------- Page Break ---------------------------------------- 2 CONSTITUTIONAL PROVISION INVOLVED The Equal Protection Clause of the Fourteenth Amendment provides that "[n] o State shall * * * deny to any person within its jurisdiction the equal protection of the laws." STATEMENT This case concerns a constitutional challenge to the configuration of the Eleventh District in Georgia's 1992 congressional redistricting plan. A three-judge district court held that the configuration of the Elev- enth District violates the Equal Protection Clause of the Fourteenth Amendment, as construed in Shaw v. Reno, 113 S. Ct. 2816 (1993). The United States, three of the four state officials sued in their official capacities, and the private defendant-intervenors have appealed from that judgment. 1. The population of the State of Georgia is ap- proximately 27% African-American. Georgia has an extensive history of discrimination in voting. The dis- trict court took judicial notice of the fact that "Geor- gia's history on voting rights includes discrimination against black citizens." App., infra, 103a. The court explained that "[f ]rom the state's first Constitution- which barred blacks from voting altogether-through recent times, the state has employed various means of destroying or diluting black voting strength." Id. at 103a-104a. Those means, which the court found had been enacted as late as 1958, included literacy tests, property requirements, white-only primaries; and the county unit system. The court specifically noted that "[c]ongressional districts have been drawn in the past to discriminate against black citizens by minimizing their voting potential." Id. at 104a. That ---------------------------------------- Page Break ---------------------------------------- 3 was accomplished by "packing an excessive number of black citizens into a single district or splitting large and contiguous groups of black citizens between mul- tiple districts." Ibid. From Reconstruction until the 1980's, black voters were not in the majority in any of the State's con- gressional districts. Following the 1970 census, the Attorney General interposed a Section 5 objection to Georgia's congressional redistricting plan, which frag- mented African-American population concentrations in the Atlanta area. Joint Statement of Undisputed Facts 48-49. The State then adopted, and the Attor- ney General precleaned, a revised plan that remedied the fragmentation, but that did not have an African- American majority district. See Busbee v. Smith, 549 F. Supp. 494, 500 (D.D.C. 1982), aff'd, 459 U.S. 1166 (1983). Following the 1980 census, the State drew a plan that included one majority African-American district in the Atlanta area, but that nonetheless unnecessarily fragmented the African-American community in that area. The Attorney General again interposed a Sec- tion 5 objection, and the State sought preclearance from the United States District Court for the District of Columbia. The court denied preclearance on the ground that the plan had "a discriminatory purpose in violation of Section 5." 549 F. Supp. at 517. The court held that the plan "implemented a scheme de- signed to minimize black voting strength to the extent possible." Id. at 518. The court ultimately precleaned a revised plan. Id. at 520. 2. Following the 1990 census, the State of Georgia was entitled to 11 congressional seats, a gain of 1 seat since 1980. In a special legislative session in 1991; the state legislature passed a redistricting plan that --------------------------------------- Page Break ---------------------------------------- 4 included two majority-minority districts: the Elev- enth, in east-central Georgia, and the Fifth, in the Atlanta area. In addition, the plan included a third district-the Second District in the southwest part of the State-in which African-Americans comprised approximately 36'1 of the voting age population. App., infra, 12a-14a. The plan was submitted to the Justice Department for preclearance. Acting on behalf of the Attorney General (see 28 C.F.R. 51.3), the Assistant Attorney General for Civil Rights interposed an objection under Section 5. He based the objection on the fact that the State had failed to carry its burden of demonstrating that the plan did not "have the purpose or * * * the effect of denying or abridging the right to vote on account of race." See App., infra, 15a. He noted a "concern" that the Georgia legislative leadership had decided to "limit" black voting potential to two ma- jority-minority districts, and explained that the plan did not take into account concentrations of African- Americans who lived in southwest Georgia. See id. at 14a. The state Senate then passed a plan with three ma- jority African-American districts that would have moved some areas from the Eleventh District to the Second District and would have extended the Elev- enth District to Savannah, thereby including Savan- nah's concentrations of African-Americans. App., infra, 16a. The state House of Representatives, how- ever, refused to adopt that approach, and instead in- sisted upon a plan that slightly modified the Eleventh and Fifth Districts and that increased the percentage of voting age population that was African-American in the Second District to 45%. Id. at 16a & n.9. The Assistant Attorney General again interposed an ob- ---------------------------------------- Page Break ---------------------------------------- 5 jection under Section 5. He explained that "no legiti- mate reason has been suggested" to explain why the House declined to enact the Senate plan, and that the plan as submitted therefore continued "the exclusion of the second largest concentration of blacks in the state from a majority black Congressional District." Id. at 17a. The State legislature then enacted a new plan that was similar to the plan the state Senate had previ- ously passed. It responded to the Section 5 objection by increasing the African-American voting age pop- ulation in the Second District to 52%. App., infra, 21a & n.12. As compared with the plan the State had previously enacted, this plan moved some areas from the Eleventh to the Second District and ex- tended the Eleventh District to Savannah to include that city's concentrations of African-American citi- zens. The Assistant Attorney General determined not to interpose an objection, and the plan took effect. Id. at 22a-23a. 2. In January, 1994, five white residents of the Eleventh District filed suit in the United States Dis- trict Court for the Southern District of Georgia, alleg- ing that the Eleventh District segregated voters on the basis of race in violation of the Equal Protection Clause. A three-judge court was convened. The United States and a number of citizens of Georgia intervened in support of the defendants. A trial took place on July 21-28, 1994. The three-judge court ruled that the configuration of the Eleventh District violated the Fourteenth Amendment. a. The court narrated in some detail the history of the State's post-1990 redistricting and extensively characterized the Section 5 review of the various state plans by the Department of Justice. App., infra, 5a- ---------------------------------------- Page Break ---------------------------------------- 6 27a. The court explained that, from the beginning of the process, a plan with three majority African- American districts had been developed by the Amer- ican Civil Liberties Union (ACLU ) on behalf of the Black Caucus of the General Assembly and presented to the state legislature. Id. at 6a. That plan in- cluded the extension of the Eleventh District to Savannah and the inclusion of portions of Macon in the Second District. Those elements were em- ployed by the State in the plan that was finally enacted and precleaned, although the final plan dif- fered in other important ways from the ACLU's plan. Id. at 6a-9a, 10la (map). The court also stated that the ACLU had repeatedly brought its plan to the attention of the Department of Justice in the course of the Section 5 preclearance process; that the ACLU had used that plan to argue to the De- partment of Justice that the State's first two redis- tricting plans should not be precleaned; and that the Department of Justice's "criteria for and opinions of Georgia's submissions were greatly influenced by [the ACLU's attorney] and her agenda." Id. at 10a. The court stated that the State did not seek a Section 5 declaratory judgment because of fear that it would lose such a case as it had lost Busbee v. Smith ten years earlier, and because such a suit could have been expensive and would have taken some time to litigate. App., infra, 20a-21a n.11. With respect to the merits of plaintiffs' claim, the court held that the Eleventh District is subject to strict scrutiny. In Shaw v. Reno, supra, this Court held that a district is subject to strict scrutiny if it 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." 113 S. Ct. at 2824. In the district court's view, that language does not suggest ---------------------------------------- Page Break ---------------------------------------- 7 that "[t] he shape of the district is * * * a `threshold' inquiry preceding an exploration of the motives of the legislature." App., infra, 29a. Instead, the shape is simply " `objective' evidence of the legislature's in- tent in drafting that district," ibid.; " [t]he purpose of scrutinizing a district's shape is to glean the in- tent of the legislature by working backwards," id. at 41a. Therefore, a plaintiff can make out a Shaw claim either through proof concerning "a district's shape as circumstantial evidence of legislative intent," id. at 40a, or through "direct testimony of those in- volved with the [redistricting] process" concerning "the legislature's intent," ibid. Examining the precise nature of what in its view was the forbidden legislative motive, the district court held that strict scrutiny must be applied if "race was the substantial or motivating consideration in [its] creation" -a criterion the court explained as requir- ing that race be "the overriding, predominant force determining the lines of the district." App., infra, 35a. In reaching that conclusion, the court rejected the view of the district court in Hays v. Louisiana, 839 F. Supp. 1188 (W.D. La. 1993), vacated and remanded on other grounds, 114 S. Ct. 2731 (1994), that race "need only have been a recognizable factor -not the sole or dominant one-before a redistricting plan is constitutionally suspect." App., infra, 33a. The court explained that adoption of that standard would lead to jurisdictions covered under Section 5 of the Voting Rights Act being "buried under Shaw litigation every time [they] pass[] a redistricting plan." App., infra, 38a-39a. The court also rejected the view that "race must have been the sole motiva- tion behind a particular district shape before strict scrutiny is appropriate. " Id. at 33a. In the court's view, "th[at] standard would be nearly impossible to meet." Id. at 39a. ---------------------------------------- Page Break ---------------------------------------- 8 Applying its standard, the district court found that the "indirect" evidence of legislative intent was sufficient to subject the Eleventh District to strict scrutiny, because various portions of the district had irregular boundaries. In particular, the court held that " [t]he extension [of the district] to Savannah is not compact by any credible definition of that term," App., infra, 43a; that the Augusta portion reflected a selective inclusion of predominantly Afri- can-American census blocks, id. at 45a; and that the Eleventh District as a whole split eight of its 22 counties, a result that the court believed to be unnec- essary, id. at 47a. The court also held that there was sufficient "direct" evidence that the legislature had a suspect racial motive when it drew the Eleventh Dis- trict. Id. at 48a-51a. In particular, the court ad- verted to the State's admission that its motive in extending the Eleventh District to Savannah was to include additional African-American voters in the District. Id. at 48a-50a. The court also referred to evidence that other portions of the district were drawn in an effort to include African-Americans in the district. Id. at 49a. The district court then applied strict scrutiny. The district court held that the only compelling state interest that could potentially justify the Eleventh District was the State's interest in complying with Sections 2 and 5 of the Voting Rights Act. The dis- trict court stated that it was assuming the exist- ence of that interest, but the court held that what it viewed as the "narrow tailoring" inquiry was crucial: whether "the district [], as precleaned and enacted, [was] genuinely `reasonably necessary,' that is, nar- rowly tailored, to comply with the [Voting Rights Act]." App., infra, 60a (citation omitted). ---------------------------------------- Page Break ---------------------------------------- 9 The court held that the district failed that "narrow tailoring" test. In the court's view, the fact that the Department of Justice had refused preclearance of the State's earlier attempts at redistricting did not establish that creating the Eleventh District was neces- sary to satisfy Section 5 of the Voting Rights Act. Instead, the court held that the plan "will live or die" on the basis of the court's independent determi- nation of "whether Georgia's 1992 congressional re- districting plan was actually required by the [Voting Rights Act] and Supreme Court precedent." App., infra, 63a. With respect to Section 5, the majority determined that although Georgia "did what was minimally `necessary' to secure preclearance," App., infra, 62a, the Department of Justice had erred in refusing to preclear previous plans that did not contain three majority black districts. 2 Under Section 5, Georgia had the burden of demonstrating that its redistrict- ing plan would not have a discriminatory purpose or effect. 42 U.S.C. 1973c. This Court has interpreted the "effects" prong to require a showing that the change was nonretrogressive, see Beer v. United States, 425 U.S. 130 (1976) ; the court agreed with ___________________(footnotes) 2 The court held that the refusal to preclear the earlier Georgia plans was inconsistent with regulations "promulgated by Congress to assist DOJ in properly enforcing the [Voting Rights] Act." App., infra, 64a-65a (citing 28 C.F.R. 51.59). The court went on to discuss the regulations in terms of what "Congress intended," App., infra, 65a, what "Congress was apparent] y worried" about, ibid.; and how "Congress uses" a particular term in the regulations, id. at 66a. The reg- ulations to which the court referred, however, were not enacted by Congress; they were promulgated by the Attorney General. See 52 Fed. Reg. 490 (1987). There is no indication in the court's opinion that it gave any deference to the torney General's interpretation of her own regulations. ---------------------------------------- Page Break ---------------------------------------- 10 11 parties in this case that the change was non- retrogressive. See App., infra, 67a-68a. In the por- ion of its opinion applying the strict scrutiny stand- rd, the court did not directly address the "purpose" prong of Section 5, on the basis of which the Section objections to Georgia's first two redistricting plans ad been interposed. Early in its opinion, however, he court reported that several state officials had not found any evidence of acts or statements by * * * legislators indicating an intent to discriminate against minority voters." App., infra, 13a. The court at hat point commented that it "finds no evidence )prompting [it] to doubt that conclusion. " Ibid. The court also held that the Eleventh District was lot required by Section 2 of the Voting Rights Act. App., infra, 80a. The court reached that conclusion )y applying the preconditions set forth by this Court n Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986). The court held that the district was not sufficiently compact, because its outside perimeter included `hooks, tails and protrusions" in and near densely populated urban areas at its periphery. App., infra 79a. The court also found that racial polarization "exists, but not in alarming quantities"; the court found that from 22% to 38% of white people in the are voted for African-American candidates, while 20% to 23% of African-Americans in the area voted for white candidates. Id. at 82a. The court also found, based on its independent analysis of the evi- dence before it, that the Eleventh District included more African-Americans of voting age (60.36 TO ) than would have been necessary to satisfy Section 2 in any event. App., infra, 82a-87a. b. Circuit Judge Edmondson dissented. In Judge Edmondson's view, " [h]ighly irregular shape-the appearance of the district -is the critical element of" ---------------------------------------- Page Break ---------------------------------------- 11 the cause of action recognized by this Court in Shaw. App., infra 93a. Accordingly, he rejected the court's holding that a district's "shape is merely one piece of circumstantial evidence proving the legislature's intentional use of race." Id. at 94a. He noted that Shaw's "highly-irregular-appearance standard * * * avoids the unreliability of after-the-fact statements by legislators and also avoids the necessity of federal judges probing and intruding on state officers' thoughts * * * to `learn' the state's true intent." Id. at 94a n.2. Judge Edmondson found that the Eleventh District was not "bizarre or highly irregular within the meaning of Shaw." App., infra, 96a. He noted that the size of the district, the length of its borders, and its position within the State were not out of the ordinary. Id, at 96a-98a. Moreover, he noted that the Eleventh District's boundaries follow existing state, county, and city borders to approximately the same extent (71%) as the average for the State's other congressional districts; that "Georgia's con- gressional districts have no tradition of being neat, geometric shapes"; that portions of other districts are more irregular than `the particular portions of the Eleventh District criticized by the majority; and that other districts in Georgia's current plan, as well as in past plans, split counties. Id. at 98a-99a. He concluded that the district "is not so bizarre on its face to justify, pursuant to the Constitution, a more searching inquiry," and that the district court ac- cordingly should not "interfere with the reapportion- ment plan that resulted from Georgia's political process." Id. at lOOa. 3. The district court enjoined the completion of this year's election cycle in the Eleventh District and --------------------------------------- Page Break ---------------------------------------- 12 stated that it would hold a remedial hearing after receiving submissions from interested parties. App., infra, 89a. The Governor and two of the other state defendants, the private intervenor-defendants, and the United States moved for a stay in this Court. On September 23, 1994, this Court granted the stay pending the filing and disposition of the appeals in this case. 115 S. Ct. 36. THE QUESTIONS PRESENTED ARE SUBSTANTIAL Because this case presents questions that are quite similar to those presented in United States V. Hays, No. 94-558, it would be appropriate for the Court to hold this appeal pending its disposition of Hays.s Both cases raise the question whether a districting plan is always subject to strict scrutiny if race has been a substantial or motivating factor in its cre- ation. In addition, the configuration of the district challenged in this case is similar to the configura- tion of the district challenged in Hays: isolated portions of both districts are oddly shaped, but the districts viewed as a whole do not represent extraordinary departures from the States' ordinary districting practices. As a result, this Court's deter- minations in Hays concerning the circumstances under which a districting plan should be subject to strict scrutiny are likely to illuminate the corre- sponding question in this case. Similarly, if the Court determines that strict scrutiny must be ap- plied in Hays, the determination of whether the chal- lenged district in that case is nonetheless constitu- tional should shed light on the corresponding question ___________________(footnotes) 3 We are providing all parties with a copy of our jurisdic- tional statement in Hays. ---------------------------------------- Page Break ---------------------------------------- 13 in this case. We have already filed a jurisdictional statement in hays asking that this Court note prob- able jurisdiction and give plenary consideration to that case. For that reason, and because this case is likely to be ripe for this Court's consideration later than Hays, holding this case for the Court's disposi- tion of Hays would be appropriate. 1. The first question presented in Hays is whether the intentional creation of a majority-minority dis- trict is always subject to strict scrutiny. In our view, it is not. See 94-558 J.S. 10-12. The Court's resolution of that question is likely to exert substan- tial influence on the similar question in this case. It was undisputed in both Hays and in this case that the State intended to create a majority-minority district, and that race was an important factor to the State in determining the configuration of the districts that were challenged. If this Court agrees with the district court in Hays that those facts are sufficient to require strict scrutiny, it would appear that the same conclusion would follow in this case. If, on the other hand, the Court determines that those facts are not alone sufficient to require strict scrutiny, then the analysis in both cases must proceed to a further step. 2. Assuming that strict scrutiny is not necessary merely because a State has intentionally created a majority-minority district, Hays presents the further question of what additional circumstances require such scrutiny. In Shaw V. Reno, this Court held , that a district is subject to strict scrutiny if it is "so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races I `1 for purposes of voting." 113 S. Ct. at 2824. Hays ---------------------------------------- Page Break ---------------------------------------- 14 and this case both present the question of how a district court is to apply that criterion to a district whose boundaries are substantially more regular than those at issue in Shaw. In Hays, the district court concluded that the chal- lenged district was subject to strict scrutiny under its interpretation of the Shaw standard. The district court relied in part on its finding that the configura- tion of the district on its face is so bizarre that it can only be understood as an effort to segregate voters. 94-558 J.S. App. 3a. As we explain in our Jurisdictional Statement in Hays, that determination is mistaken on the facts of that case. Because the Constitution does not require a State to tailor its districts to any absolute concept of compactness, see Shaw, 113 S. Ct. at 2827, the manner in which the State has actually drawn and continues to draw other districts is a proper benchmark for deter- mining whether a majority-minority district is `(bi- zarre," The district challenged in Hays resembles other districts Louisiana has drawn in the past and fits comfortably within the State's ordinary district- ing practices. The presence of oddly shaped bound- aries in isolated portions of the district does not require the conclusion that the boundaries of the dis- trict, taken as a whole, are "so extremely irregular on [their] face that [the district] rationally can be viewed only as an effort to segregate the races for purposes of voting." 113 S. Ct. at 2824. Accord- ingly, applying the proper standard, the district court should have concluded that the district in Hays was not subject to strict scrutiny. Essentially the same analysis applies to this case. As in Hays, the district challenged here fits com- ---------------------------------------- Page Break ---------------------------------------- 15 fortably within the State's ordinary districting prac- tices. As Judge Edmondson noted in dissent, the length of the Eleventh District's borders is "not dis- tinctive" when compared to other Georgia districts. App., infra, 96a. The fact that the district spans a large part of the State does not distinguish it from four of the ten other districts in Georgia's current plan. Ibid. The Eleventh District is also at or above the Georgia average with respect to the propor- tion of its boundary that follows existing state, county, and city borders, the proportion of its area that comes from whole counties, and the proportion of counties that it splits. Id. at 96a, 98a. Nor are the more irregular portions of the district's bound- aries-which, as in Louisiana, are generally limited to isolated portions of the district-unprecedented in current and past Georgia plans. Id. at 97a-98a. Because of the similarities between this case and Hays, this Court's decision in Hays concerning the proper standard to apply in assessing whether a dis- trict is so bizarre as to trigger strict scrutiny is likely to have a significant influence on resolution of the corresponding issue in this case. Moreover, the district courts in both cases committed similar errors in making their findings of "bizarreness." As we explain in Hays, the district court in that case re- jected the State's argument that strict scrutiny was inapplicable, relying on admissions by state legis- lators that race in fact played a large role in drawing the challenged district. 94-558 J.S. 15. Similarly, the district court here relied in part on actual legis- lative intent to reject arguments that the district's configuration is not so "bizarre" as to trigger strict scrutiny. App., infra, 48a-51a. In both cases, the ---------------------------------------- Page Break ---------------------------------------- 16 district court's reliance on actual legislative intent is difficult to square with this Court's repeated admo- nition in S'haw that the district must he analyzed "on its face." See 113 S. Ct. at 2824, 2825, 2826, 2828, 2829, 2832. In any event, this Court's deter- mination in Hays concerning the proper analyses of a district's physical configuration and of the role, if any, of actual legislative intent are likely to guide the analysis in this case. 3. The analysis of whether the challenged dis- trict can survive strict scrutiny is aIso likely to be similar in the two cases, should that issue be reached. The first question in both cases would be whether the State's asserted interests in drawing an addi- tional majority-minority district were sufficiently compelling to justify the challenged district. In both cases, the primary interests that could be asserted were the need to comply with Section 2 and with the "purpose" prong of Section 5 of the Voting Rights Act, as well as the State's independent in- terest in ameliorating the effects of racially polarized voting. In Hays, the State argued that it had a reasonable basis for believing that creation of the additional majority-minority district was necessary for compli- ance with Section 5 of the Voting Rights Act. See 94-558 J.S. App. 7a-8a. The State based that con- clusion on the fact that, one year prior to Louisiana's congressional redistricting, the Attorney General had refused to preclear a new districting plan for the 8 member state board of education because it did not include two majority-minority districts. See 94-558 J.S. 2-3. The State also argued that its creation of an additional majority-minority district was justified ---------------------------------------- Page Break ---------------------------------------- 17 by its compelling interest in complying with Section, 2 of the Voting Rights Act. See 94-558 J.S. App. 8a-9a. The State asserted that, if it did not include such a district in its plan, it reasonably believed that a plaintiff could make out a prima facie Section 2 case against the State, on the basis of the three pre- conditions set forth by this Court in Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986). Finally, the State argued that it had an interest, independent of the Voting Rights Act, in ameliorating the effects of past discrimination that affected voting. See 94- 558 J.S. App. 9a-10a. The district court in Hays rejected the State's ar- guments. The court rejected the State's reliance on Section 5 of the Voting Rights Act on the ground that, based on the court's own de novo examination of the record, any Section 5 objection lodged by the Attorney General would not have been legally valid. 94-558 J.S. App. 7a-8a & n.3.4 The court rejected the State's reliance on Section 2 of the Voting Rights Act on the ground that, in its view, the State would not have been subject to liability under Section 2 if it had failed to draw the challenged districts. In particular, the court found that, since the challenged district was not in the court's view sufficiently compact, a plaintiff would not have been able to satisfy the Gingles compactness precondition. See 94-558 J.S. remedial justification on the ground that there were no lingering effects of discrimination that would jus- tify such remedial action. Id. at 10a. ___________________(footnotes) 4 We argued both in Hays and in this case that the district court has no authority to engage in independent review of a Section 5 objection lodged by the Attorney General. See 94-558 J. S. 19-20. ---------------------------------------- Page Break ---------------------------------------- 18 With respect to the application of strict scrutiny, the facts of this case are remarkably similar to those in Hays, and the analysis applied in Hays is likely to govern the analysis in this case. As in Hays, the State here relied on previous Section 5 objections by the Attorney General as a basis for its conclusion that it was required by Section 5 of the Voting Rights Act to draw the challenged district. As in Hays, the state officials also were aware of facts that led to the conclusion that the failure to create an additional majority-rninority district would have permitted a plaintiff to make out a prima facie Section 2 case against it.' Finally, as in Hays, the State here was faced with evidence sufficient to create a strong interest-independent of the Voting Rights Act-in ameliorating the effect that racially polarized voting has had on the opportunity for minority voters to elect the candidates of their choice. Thus, if this Court applies strict scrutiny in Hays, the analysis the Court adopts is likely to be applicable as well in this case. 4. In light of the very substantial similarities be- tween this case and Hags, we believe that it would be unnecessary for the Court to note probable juris- ___________________(footnotes) 5 The district courts in both Hays and this case held that the districts created by the State would not have satisfied the compactness criterion of Thornburg V. Gingles, supra. In Hays, the district court viewed that holding as negating the State's claim that it had a compelling interest in creating the additional majority-minority district in order to comply with Section 2. See 94-558 J.S. App. 8a n.4. In this case, the dis- trict court viewed its corresponding holding as negating the State's claim that the creation of the additional majority minority district was narrowly tailored. See App., infra, 80a. The difference between the holdings does not appear to be a significant one. ---------------------------------------- Page Break ---------------------------------------- 19 diction and entertain full briefing and argument in both cases. The questions presented in both cases, however, are important ones and warrant expeditious resolution by this Court. If districting plans are ulti- mately overturned in either State, it is important that the state legislatures have adequate time to formulate new plans in time for the 1996 electoral cycle. We have already filed a jurisdictional statement asking that this Court grant plenary consideration to the appeal in Hays, and it appears that Hays will be ripe for the Court's consideration before this case. There- fore, unless the Court believes that the issues are framed more squarely or otherwise presented in a clearer light in this case, it would be appropriate for the Court to note probable jurisdiction and resolve Hays after full briefing and argument on the merits, and to hold this case pending the Court's disposition of Hays. In our view, the key questions in both cases concern the relevance of legislative intent, the determination of when a district may be said to be so bizarre on its face that strict scrutiny is required, and the applica- tion of the strict scrutiny standard. Those questions are squarely presented in both cases. Although the district courts in each case adopted somewhat differ- ent rationales, those rationales-along with the ra- tionales of the other courts that have addressed the application of Shaw-can be tested equally well against the facts of either case. ---------------------------------------- Page Break ---------------------------------------- 20 CONCLUSION The Court should hold this appeal pending its deci- sion in United States v. Hays, No. 94-558, and should subsequently dispose of this appeal as appropriate in light of its decision in that case. Respectfully submitted. DREW S. DAYS, III Solicitor General DEVAL L. PATRICK Assistant Attorney General PAUL BENDER Deputy Solicitor General JAMES A. FELDMAN Assistant to the Solicitor General STEVEN H. ROSENBAUM MIRIAM R. EISENSTEIN Attorneys NOVEMBER 1994 ---------------------------------------- Page Break ---------------------------------------- APPENDIX A UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION Civil Action No. 194-008 DAVIDA JOHNSON; PAM BURKE; HENRY ZITTROUER; GEORGE DELOACH; and GEORGE SEATON, PLAINTIFFS v. ZELL MILLER, ET AL., DEFENDANTS and LUCIOUS ABRAMS, JR., ET AL., INTERVENOR-DEFENDANTS and UNITED STATES OF AMERICA, INTERVENOR-DEFENDANTS MEMORANDUM OPINION AND ORDER Before Edmondson, Circuit Judge; Edenfield, District Judge; Bowen, District Judge. PER CURIAM: Plaintiffs challenge the constitutionality of Geor- gia's Eleventh Congressional District and seek junction against its further use in congressional elec- (la) ---------------------------------------- Page Break ---------------------------------------- 2a tions. Because we find that the district violates the Equal Protection Clause of the Fourteenth Amend- ment to the United States Constitution, we grant Plaintiffs' request for injunctive relief and will im- pose a revised plan in keeping with this Memoran- dum and Order. INTRODUCTION In 1993, the Supreme Court recognized a citizen's right under the Equal Protection Clause to challenge a strangely shaped voting district as an impermissible racial gerrymander. See Shaw v. Reno, 113 S. Ct. 2826 (1993 ). The way was thus cleared for constitu- tional claims against congressional voting districts in North Carolina, Louisiana, Texas, Florida, and now Georgia. Southern states have proved fertile grounds for Shaw claims, as many of their legislatures labor under the long shadow of the Voting Rights Act of 1965: By that law, certain states or political sub- divisions are prohibited from enforcing "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting" unless they (1) obtain a declaratory judgment from the District Court for the District of Columbia that such change "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," or (2) have submitted the proposed change to the Attorney General and the Attorney General has precleaned it. 42 U.S.C. 1973. (1993). This procedure applies to redis- tricting plans, 28 C.F.R. 51.13 (1993), and it is intended to police those regions of the United States that had, as of certain dates, maintained voting "tests or devices" serving to disenfranchise minority voters. ---------------------------------------- Page Break ---------------------------------------- 3a 42 U.S.C. 1973b. Many Southern states were so designated. See 28 C.F.R. 51 (at Appendix) (list- ing, among other areas, Alabama, Georgia, Louisiana, Mississippi, South Carolina, Texas, Virginia, and sec- tions of North Carolina and Florida). Consequently, many southern states seek preclear- ance from the Department of Justice (hereinafter sometimes referred to as "DOJ" ) before enacting their proposed redistricting plans. Department regu- lations require DOJ to decide "[w]hether the sub- mitted change has the purpose or will have the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group"; if the change may be so described, DOJ will not preclear it. 28 C.F.R. 51.52. In making its determination, DOJ is required to consider the follow- ing "important background information": (1) The extent to which minorities have been denied an equal opportunity to participate mean- ingfully in the political process in the jurisdic- tion. (2) The extent to which minorities have been denied an equal opportunity to influence elections and the decisionmaking of elected officials in the jurisdiction. (3) The extent to which voting in the juris- diction is racially polarized and political activities are racially segregated. (4) The extent to which the voter registration and election participation of minority voters have been adversely affected by present or past discrimination. Id. 51.58. It must also consider the following fac- tors specific to the redistricting process: ---------------------------------------- Page Break ---------------------------------------- 4a (a) The extent to which malapportioned dis- tricts deny or abridge the right to vote of minor- ity citizens. (b) The extent to which minority voting strength is reduced by the proposed redistricting. (c) The extent to which minority concentra- tions are fragmented among different districts. (d) The extent to which minorities are over- concentrated in one or more districts. (e) The extent to which available alternative plans satisfying the jurisdiction's legitimate gov- ernmental interests were considered. (f) The extent to which the plan departs from objective redistricting criteria set by the submit- ting jurisdiction, ignores other relevant factors such as compactness and contiguity, or displays a configuration that inexplicably disregards available natural or artificial boundaries. (g) The extent to which the plan is incon- sistent with the jurisdiction's stated redistricting standards. Id. 51.59. This litany makes it fairly clear that, by instruc- tion of the United States Congress, racial concerns are DOJ'S overriding criterion for approving a re- districting plan. Shaw v. Reno holds that if a plaintiff shows that racial concerns were the overriding criterion for drafting a redistricting plan, leading to the creation of dramatically irregular district boundaries, that plan is unconstitutional, unless it survives constitu- tionally strict scrutiny. See Shaw, 113 S. Ct. at 2826- 27. And therein lies the problem. ---------------------------------------- Page Break ---------------------------------------- 5a I. FACTS Pursuant to the results of the 1980 Decennial Census, the State of Georgia was entitled to ten seats in the United States House of Representatives. Due to population increases revealed by the 1990 Census, that number increased to eleven. This change re- quired the reformatting of Georgia's congressional districts, a task begun by House and Senate reappor- tionment 1 committees during the 1991 session of the Georgia General Assembly. The task would prove far more onerous than anticipated. In order to clarify the drafting process, on Febru- ary 28, 1991 both the House and Senate adopted re- districting guidelines. See Joint Exh. 9, 10. Both versions required public hearings, allowed for sub- missions by "third parties" outside the Assembly, and provided a list of drafting criteria: single-member districts only, equality of population among districts, contiguous geography, avoiding dilution of minority voting strength, following precinct lines where pos- sible, and compliance with sections 2 and 5 of the Voting Rights Act (hereinafter sometimes referred to as "VRA" ) 42 U.S.C. 1973, et seq. Once these requirements were met, drafters could consider main- taining the integrity of political subdivisions, preserv- ing the core of existing districts, and avoiding con- tests between incumbents. While the House and Senate surely considered these criteria a realistic tool for drafting reasonable voting ___________________(footnotes) 1 Technically, "reapportionment" refers to the allocation of representatives among previously established voting areas, while "redistricting" refers to the reformulation of boundaries for those voting areas. We use the words interchangeably, however, since the legislature, case law, and parties' attorneys do SO. ---------------------------------------- Page Break ---------------------------------------- 6a districts, and while many of their members were veterans of past redistricting wars, the legislators could not have known what the DOJ would require by way of compliance with sections 2 and 5 of the VRA. A. The Preclearance Process 1. The Max-Black Plan One of the "third party" redistricting proposals submitted to the legislature in 1991 would later earn the ominous moniker, "the max-black plan." That plan, created by Ms. Kathleen Wilde, then an attor- ney with the American Civil Liberties Union ( "ACLU") and in her capacity as advocate for the Black Caucus of the Georgia General Assembly, pro- vided for three "majority-minority" congressional districts % in Georgia: the Second, Fifth and Elev- enth. Tr. IV, at 70-72, 93; Joint Exh. 4 (version of max-black plan proposed by Reps. Cynthia McKinney and Tyrone Brooks). In contrast, the then existing congressional plan had only one majority-minority district: the Fifth. Joint Exh. 15. Ms. Wilde's drive to create three majority-minority districts came, predictably enough, from her clients, including Rep. Tyrone Brooks. Brooks made several illuminating statements during the redistricting de- bate on the floor of the Georgia House: This plan [the first redistricting proposal to be submitted to DOJ by the General Assembly] does not come close to the criteria outlined by the Attorney General last summer, when he specifi- ___________________(footnotes) 2 That is, a district in which a majority of the population is black. --------------------------------------- Page Break ---------------------------------------- 7a cally told the states covered by the Act that wherever possible, you must draw majority black districts, wherever possible. . . . Obviously, it's possible to draw three; those of us who have been working on the max plan for over a year have really not been con- cerned about anything other than maximizing our voting strength. We've not been really concerned about terri- tory; we've not been concerned about voter regis- tration numbers, we've been concerned about population, and black voting age population. When you start playing games with lines and numbers on voter registration and-all of these other things that really don't matter, you are just simply wasting time. Pltf. Exh. 132, at 40. Ms. Wilde claimed that her purpose "was to draw as many districts as possible consistent with equal opportunity for black citizens in Georgia." Tr. IV, at 71. That is, her plan at- tempted to secure proportional representation for the black population. Id. at 72. However, despite Ms. Wilde's vague answers to this query at trial, id. at 73-74, it is clear that the max-black plan accounted for virtually all major concentrations of black popu- lation in Georgia. Compare DOJ Exh. 1-3 with Joint Exh. 4. Ms. Linda Meggers, Director of Reapportion- ment Services for the Georgia General Assembly and probably the single most knowledgeable person avail- able on the subject of Georgian redistricting, testi- fied that, without including the heavy black popula- tions present in metropolitan areas, achieving the percentages needed for a majority-minority district was impossible. Tr. I, at 97-98. Ms. Wilde accounted ---------------------------------------- Page Break ---------------------------------------- 8a for all such metropolitan populations, including At- lanta, Augusta, Macon and Savannah. Her proffered restraint in not seeking "over-proportional" black representation was disingenuous; a fourth majority- minority district, of equal population to the other ten congressional districts, was probably impossible to create. The max-black plan further maximized black vot- ing strength by pushing the percentage of black voters within its majority-black districts "as high as possible." Tr. IV, at 72-73 (testimony of Ms. Wilde). Indeed, race was "certainly an overriding factor," id. at 81, 97, in designing Ms. Wilde's district bound- aries, as she believed was required by the Voting Rights Act and Thornburg v. Gingles, 478 U.S. 20 (1986), Significantly, she also thought that the proper measure of "compactness," a venerable dis- tricting consideration directly relevant to the result- ing shape of voting districts, was a "functional" measure, not one grounded in geographical assess- ments. Tr. IV, at 79. That is, while geography was a "component" of compactness, the more important element was whether people were "able to know what district they're in, know who their representative is and be able to have that person represent them." Id. Ms. Wilde agreed "[t] o some degree" with Rep. Brooks, who told the Georgia House: So those of us who are promoting the max plan are drawing the lines sometimes in funny ways to cut us in, because we've never really been fully in. So simply as I say to you today to adopt the max-black congressional plan, I say to you it's ----------------------------------- Page Break ---------------------------------------- 9a not really the appearance of the district; it's the content of the district. Id. at 95; Pltf. Exh. 132, at 43. Ms. Wilde testified that she submitted her max- black plan to DOJ several times during the redistrict- ing process. We now turn to the connection between that plan and the one ultimately approved by the Department of Justice. 2. ACLU Advocacy and DOJ Preclearance Requirements The Court realizes that the motivations of the State of Georgia are the legally relevant motivations in this case, and not those of the ACLU or the DOJ. We consider the behavior of the latter parties, how- ever, because it is inextricably linked to the redis- tricting decisions of the General Assembly. The ac- tions of the legislature have much less significance when removed from their context. a. ACLU-DOJ Cooperation During the redistricting process, Ms. Wilde was in constant contact with both Keith Borders and Thomas Armstrong, the DOJ line attorneys overseeing pre- clearance of Georgia's redistricting efforts. See Tr. IV, at 39, 231. There were countless communica- tions, including notes, maps, and charts, by phone, mail and facsimile, between Wilde and the DOJ team; those transactions signified close cooperation between Wilde and DOJ during the preclearance process. The Court was presented with a sampling of these communiques, and we find them disturbing. ---------------------------------------- Page Break ---------------------------------------- 10a It is obvious from a review of the materials that Ms. Wilde's relationship with the DOJ Voting Sec- tion was informal and familiar; the dynamics were that of peers working together, not of an advocate submitting proposals to higher authorities. See, e.g., Pltf. Exh. 57H, 571. DOJ was more accessible-and amenable-to the opinions of the ACLU than to those of the Attorney General of the State of Georgia. See Pltf. Exh. 52, 54, 57, 57A-M, 165; Tr. V, at 3-4. It is clear from our proceedings that Ms. Wilde discussed with DOJ lawyers the smallest details of her plan, constantly sending revisions, updates, and data throughout the period from October, 1991 to April, 1992-; she occasionally sent documents to DOJ lawyers "per your request." Ms. Wilde worked with DOJ in other ways: During the reapportionment process for Georgia's House districts, DOJ attorney Nancy Sardison told Mark Cohen, the Senior Assist- ant Attorney General for Georgia, to meet with Ms. I Wilde to revise a majority-black House district. Mr. Cohen had presumptuously thought the district satis- factory, but was dutifully informed by Ms. Sardison that Ms. Wilde was "still having some problems with it." Tr. V, at 3. Contrary to Mr. Armstrong's claims at trial, the max-black proposal was not merely "one of the alter- natives [DOJ] considered," and Ms. Wilde was not simply one of various advocates. Her work was of particular importance to DOJ lawyers, whose cri- teria for and opinions of Georgia's submissions were greatly influenced by Ms. Wilde and her agenda. Alas, it is true that none of the DOJ attorneys, testifying at trial admitted to the influence of Ms. Wilde and her max-black plan on their preclearance deliberations. This Court finds it distressing that ---------------------------------------- Page Break ---------------------------------------- 11a Messrs. Borders and Armstrong lacked any signifi- cant memory of important elements of the 1991-92 preclearance saga. Both of them-especially Mr. Borders -intimately involved with the redistricting for months, just "don't recall" basic details of either important meetings or the preclearance process. See, e.g., Tr. IV, at 8-51; 145-150. Those in far more peripheral roles had no great difficulty remembering the events central to our inquiry.' Frankly, based on the factual record and trial testimony, the Court finds Borders' and Armstrong's professed amnesia less than credible. Luckily, the surrounding evidence speaks quite clearly. Beyond the working relationship noted above, evi- dence of the link between Ms. Wilde and DOJ'S pre- clearance requirements is provided by simply com- paring the max-black plan with DOJ'S demands of the General Assembly. While DOJ'S policy of minor- ity vote maximization had been in force before the 1991-92 preclearance process,' the effect of Ms. ___________________(footnotes) 3 The Court finds it particularly difficult to believe that Borders simply "doesn't remember" why the Voting Section would have told the General Assembly to extend the Eleventh District all the way down to Chatham County. 4 Tr. 111, at 24-26 (testimony of Assistant Attorney General for Civil Rights John Dunne). Mr. Armstrong himself testi- fied that: what we did and what I did specifically was to take a Clorapleth [sic] map of the State of Georgia shaded for race, shaded by minority concentration, and overlay the districts that were drawn by the State of Georgia and see how well those lines adequately reflected black voting strength. Tr. IV, at 135. This is, essentially, a search for maximization by the crudest means. ---------------------------------------- Page Break ---------------------------------------- 12a Wilde's efforts on Georgia's redistricting fortunes is evident on the face of the precleaned plan. Before comparing that plan to the max-black proposal, we first review the stages of Georgia's quest for DOJ approval. b. Round One After a special session beginning in late August, 1991, the General Assembly submitted a congres- sional redistricting plan for preclearance on October 1 of that year. The plan, Joint Exhibit 3, contained two majority-minority districts, the Fifth and Elev- enth, and a third district, the Second, where blacks comprised an influential but submajority percentage of the voting age public.5 See Pltf. Exh. 1, at 8-10. This plan, like most redistricting efforts, was the culmination of committee meetings, public hearings, examination of various districting proposals, and many hours spent with an extremely sophisticated computer.' Rep. Robert Hanner, Chairman of the (TABLE/CHART OMITTED) 6 Ms. Meggers provided the Court with an enlightening demonstration of state-of-the-art redistricting on her com- puter, "Herschel." Only Georgians truly understand the depth of respect that is accorded to this equipment by such an appellation. When fed geographic and demographic data (including black voting age population data), it allows the user to map voting districts at the census bloc level with the greatest of ease. ---------------------------------------- Page Break ---------------------------------------- 13a Georgia House reapportionment committee, and Sen- ator Eugene Walker, Chairman of the Georgia Sen- ate reapportionment committee, worked closely with Linda Meggers to hammer out Georgia's first sub- mission. Neither Ms. Meggers, a central figure in construction of all Georgia districting plans sub- mitted to DOJ, nor Senator Wayne Garner, the Ma- jority Leader of the State Senate during the reappor- tionment process, found any evidence of acts or state- ments by Rep. Hanner, Senator Walker, or other legislators indicating an intent to discriminate against minority voters. The Court finds no evidence prompting us to doubt that conclusion.' ___________________(footnotes) 7 The Court has reviewed correspondence from Rep. Cynthia McKinney to John Dunne accusing the Georgia House reap- portionment committee of ignoring the Brooks-McKinney max-black House redistricting proposal and only reluctantly allotting computer time to Rep. McKinney's redistricting ef- forts. Pltf. Exh. 51. Comment letters from the ACLU echo these accusations. Pltf. Exh. 52. Neither the State Defend- ants nor the Interveners, however, have presented any further evidence or testimony corroborating Rep. McKinney's claims. Rep. Brooks made no mention of them during his testimony. We also note that he had no difficulty touting the max-black proposal on the floor of the House from the very beginning of the process. See, e.g., Pltf. Exh. 130, 132. The Georgia Senate was equally amenable to Senator Sanford Bishop's advocacy for three majority-black districts. Pltf. Exh. 131. See also Pltf. Exh. 140 (comments of then-Senator Bishop, now a member of the United States House of Representatives, at Georgia House Congressional Committee meeting). The statements of the Speaker of the House, the Chairper- sons of the House and Senate committees, and Linda Meggers all reveal a legislature driven to satisfy the demands of DOJ, and contain no indication of efforts to suppress the black vote. Thomas Armstrong could not recall seeing any evidence of discriminatory motives on the part of the Georgia legisla- ture. Tr. IV, at 145-50. ---------------------------------------- Page Break ---------------------------------------- 14a The first submitted plan did not garner universal support within the General Assembly; a version of the max-black plan had been proposed in the Georgia House, but could not attract enough votes for stretch- ing the new Eleventh District to Savannah. Tr. III, at 248-50; Pltf. Exh. 6A-B. More importantly, the plan garnered no support from DOJ, which rejected it by letter dated January 21, 1992, Pltf. Exh. 2. In that letter, John Dunne, then Assistant Attor- ney General for Civil Rights, noted a `(concern" that the Georgia legislative leadership had decided to "lim- it" black voting potential to two majority-minority districts. Throughout the preclearance process, from this first objection letter to the final submission, DOJ relied on versions of the max-black plan to argue that three majority-minority districts could indeed be squeezed out of the Georgia countryside. Tr. IV, at 115 (testimony of T. Armstrong). Ms. Wilde's triumph of demographic manipulation became DOJ'S guiding light. Though DOJ denied that the max- black plan was the "benchmark" against which Georgia's efforts were compared, its role as such soon became obvious to the General Assembly, and is now obvious to this Court. Mr. Dunne also observed that, while the submitted plan properly utilized black voting potential in At- lanta and east-central Georgia, it did not "recognize" concentrations of minorities in the south-west region of the state. He then assured Mark Cohen that ."[s] ection 5 considerations certainly do not dictate that the state adopt any particular configuration," but went on to "note" the "exclusion" from the Elev- enth District of black populations in adjacent Bald- win County. Pltf. Exh. 2. ---------------------------------------- Page Break ---------------------------------------- 15a Mr. Dunne ultimately found himself unable to con- clude that the Eleventh District, 60.63% black, with a black voting age population of 56.61%, and using nearly unpopulated land bridges to rope in black concentrations in Dekalb and Richmond Counties, satisfied the requirements of the Voting Rights Act. Apparently finding that this district-and the plan generally- "ha[d] the purpose or will have the effect of denying or abridging the right to vote on account of race," Mr. Dunne refused to preclear the sub- mitted plan. Id. c. Round Two No one in the General Assembly doubted that any revised submission must include the changes "sug- gested by DOJ. Though counsel for the United States objected to Plaintiffs' "characterization that the Justice Department "suggested" things, " Tr. IV, at 120, it is disingenuous to submit that DOJ'S ob- jections were anything less than implicit commands. No one in the General Assembly-including the Black Caucus-thought so, and DOJ lawyers did nothing to dissuade legislators of that notion. 8 A few prescient souls were already convinced that any successful Georgia submission would have to "have the highest percentage of black population that we could get, irregardless [sic] of where we have to ___________________(footnotes) 8 In order to further improve the chances of preclearance, Georgia legislators and staff met with DOJ officials in Wash- ington on at least one occasion. At one such meeting, after the first DOJ rejection and while the second submission was pending, the legislators were informed that their economic and political rationales for the proposed districts were "pre- textual," and told to subordinate their economic and political concerns to the quest for racial percentages. ---------------------------------------- Page Break ---------------------------------------- 16a go." Tr. III, at 210. Senator Garner was convinced that, though "distasteful," "to get a plan passed [sic] the Justice Department and get us out of here and on to these elections, that district is going to have to go to Savannah." Id. Having convinced the State Senate of this political reality, that body passed a plan extending the Eleventh District to Chatham County. Id. at 211-12; DOJ Exh. 76. The House, however, refusing to tack Savannah to the Eleventh until DOJ forced them to do it, did not pass the Senate bill. Tr. III, at 213, 250. The final version, submitted on March 3, 1992, did not contain the Savannah extension. DOJ Exh. 76. It did, however, contain a Second District in which black voting strength had been increased to 45.01%, and a Fifth and Eleventh District where blacks com- prised close to 60% of the voting age population? Pltf. Exh. 3A. In the Eleventh, faithful to DOJ'S first objection letter, the General Assembly split Baldwin County to "recognize" the black populations that had previously been "excluded" from that dis- trict. Many black representatives voted for the plan, more in the Senate than in the House. Pltf. Exh. 6A-B. Predictably, DOJ rejected the plan, since, after all, someone-here the Senate relying on versions of the max-black proposal-had come up with a scheme for (TABLE/CHART OMITTED) ---------------------------------------- Page Break ---------------------------------------- 17a packing even more minority voting strength into the Second, Fifth and Eleventh Districts. And so, despite the fact that the second submission addressed the criticisms levelled at the first, DOJ sent the plan back to the General Assembly yet again, and this time with new demands. Since it was geographically possible to extend the Eleventh District to Savannah, Mr. Dunne, by letter dated March 20, 1992, made it a requirement for preclearance: [T]he submitted plan minimizes the electoral potential of large concentrations of black popu- lation in several areas of the state. Specifically, we note that alternatives, including one adopted by the Senate, included a large number of black voters from Screven, Effingham and Chatham Counties in the llth Congressional District. However, due to unyielding efforts on behalf of House members, this configuration was aban- doned and no legitimate reason has been sug- gested to explain the exclusion of the second largest concentration of blacks in the state from a majority black Congressional District. Pltf. Exh. 4, at 3. The first rejection letter never mentioned this extension to Screven, Effingham and Chatham Counties.10 Mr. Dunne then noted that "[a]lthough the sub- mitted plan has increased the black percentage in the 2d Congressional District, it continues the exclu- ___________________(footnotes) 10 DOJ attorneys had suggested an extension to Chatham County during a meeting in Washington after receipt of the first objection letter and submission of Georgia's second plan. Tr. V, at 10-14 (testimony of Mark Cohen). See also Tr. IV, at 192 (testimony of Lt. Gov. Pierre Howard). ---------------------------------------- Page Break ---------------------------------------- 18a sion of large black population concentrations in areas such as Meriwether, Houston, and Bibb Counties from this district." Id. Of course, DOJ was aware that the only way to transfer the dense black popula- tion of Bibb County from the Eleventh District to the Second District and still maintain the Eleventh as a majority-minority district was to extend the Eleventh to Savannah, where dense black populations in that city would make up for the loss of black voters in Bibb County. Georgia Attorney General Michael Bowers made the observation himself in the second plan submitted to DOJ. Attorney General Bowers also explained why the state had declined to follow that course: The reason the General Assembly chose not to adopt a configuration for the 2nd District which would have altered the llth District in this fash- ion is two-fold. First, if the 1lth District ex- tends from the Atlanta area in DeKalb County into the metropolitan areas of Richmond, Bibb, and Chatham Counties, a candidate to be success- ful will have to run in four major media mar- kets in Georgia. This would likely present a sig- nificant problem for any minority candidate in the llth District, as recognized even by the pro- ponents of the "Brooks-McKinney" [max-black] plan . . . . Second, it is clear that even if the population percentage is increased several more points in the 2nd District . . . the 2nd District will still be no more than an influence district for minor- ity voters. Black voter registration in this area has been historically low. . . . In addition, the extension of the 2nd District into Bibb County ---------------------------------------- Page Break ---------------------------------------- 19a and the corresponding extension of the llth Dis- trict into Chatham County, with all of the nec- essary attendant changes, violate all reasonable standards of compactness and contiguity. Pltf. Exh. 3A, at 8. The Macon/Savannah "trade" was the linchpin of Ms. Wilde's max-black plan and all the versions of it submitted to the Assembly; Ms. Wilde had been marketing it since at least October 15, 1991, describ- ing the switch to DOJ as the "key to drawing a third black district." Pltf. Exh. 57 (facsimile from Ms. Wilde to Sheila Delaney, DOJ Voting Section). It was the centerpiece of her advocacy for the General Assembly Black Caucus: MR. PARKS: The advocacy that you met [sic] with the Department of Justice was to move Bibb County-the black population of Bibb County to the Second? MS. WILDE: That's right. MR. PARKS: And replace them by dropping the Eleventh all the way down to Savannah? MS. WILDE: That's correct. MR. PARKS: And excise out of Savannah black population? MS. WILDE: I took majority black precincts in Savannah and put them in my district, which is how you draw a majority black district. MR. PARKS: And intentionally excluded white population? MS. `WILDE: Again, I did that because that is how you draw a majority black district. Tr. IV, at 83. See also id. at 82. ---------------------------------------- Page Break ---------------------------------------- 20a It is from Ms. Wilde's plan and its progeny that DOJ lifted the concept for its own objection letters. It "was the evidence relied upon for the three minor- ity district proposition. " Tr. IV, at 115 (testimony of T. Armstrong). Armstrong refused to admit that Mr. Dunne's second objection letter was beholden to the max-black plan, observing that Ms. Wilde's plan was but one of many alternatives presented to DOJ. Id. at 116. The Court notes, however, that the neces- sary kernel of a viable three-district plan-the Macon/ Savannah trade originated with Ms. Wilde. Her plan was permised upon it, and was the foundation of the first three-district plan proposed in the Gen- eral Assembly. Other plans presenting three major- ity-black districts were in turn based on that ore. Any such proposal reviewed by DOJ switched Macon from the Eleventh to the Second District and drew Savannah into the Eleventh, and it owed that crucial element to Ms. Wilde's original version. d. Round Three It was now clear to the General Assembly that preclearance would not be forthcoming without adopt- ing this raison d'etre of the max-black proposals.11 ___________________(footnotes) 11 We note that the State of Georgia did not choose to seek a declaratory judgment from the D.C. District Court when it became obvious that DOJ would accept nothing less than abject surrender to its maximization agenda. Mark Cohen testified that since the circumstances of the 1991-92 redis- tricting were similar to those of 1981-82, such an effort would have been unsuccessful. In the 1981-82 process, Georgia sought a declaratory judgment that the state had gone far enough in strengthening black voting power, and was not required to ratchet up the black voting age population of the 5th Congressional District to 65%. As here, the Georgia Senate had passed a plan acquiescing to DOJ'S demands, and ---------------------------------------- Page Break ---------------------------------------- 21a This goal dominated the creation of the third Georgia submission. Linda Meggers admitted that, when drafting the proposal, the max-black plan was her "benchmark," Tr. I, at 65, and that she "fine tuned" the plan to "get to those numbers." Id. at 102. The result of these efforts was a congressional dis- tricting plan with three majority-minority districts: the Second, with 52.33% black voting age population, the Fifth, with 57.47%, and the Eleventh, with 60.36%.12 The plan passed by one vote-Speaker Thomas Murphy "held [his] nose and shut [his] eyes and put one elbow in one ear and voted for it and passed it to get something to keep the courts from doing it." Dep. of Spkr. Murphy, at 31. Ms. Meggers came as close as she could to copying the max-black percentages. She was prevented from ex- act duplication by the need to construct eight other ___________________(footnotes) the House had refused to endorse it. The D.C. court held that Georgia had failed to satisfy the requirements of section 5. See Busbee v. Smith, 549 F. Supp. 494 (D.D.C. 1982), aff'd, 459 U.S. 1166 (1983). Mr. Cohen's conclusion was buttressed by Sandra Coleman, Deputy Chief of the DOJ Voting Section, who noted these similarities during the second meeting between Georgia and DOJ officials in Washington, D.C. Add to this the cost of litigating in D.C. and the time pressures on the Assembly, and it becomes clear that a declaratory judgment action was not likely. 12 The relevant data for districts 2, 5, and 11 of the third proposed plan follows: (TABLE/CHART OMITTED) ---------------------------------------- Page Break ---------------------------------------- 22a districts around the majority-minority districts, and her efforts to "clean up" the max-black plan to mini- mize the number of split counties. Compare Joint Exh. 1 with Joint Exh. 4. Ms. Wilde herself thought that Georgia's third plan was a fairly successful rec- reation of her proposal: MR. PARKS: [T]he result was the creation of three minority districts that achieved the per- centage benchmarks that the Max Black plan advocated ? MS. WILDE: Yes, that's what the State of Georgia decided to draw. Tr. IV, at 100. Rep. Brooks agreed. See Tr. IV, at 229. The latest redistricting plan bore all the signs of DOJ'S involvement: The black population of Meri- wether County was gouged out of the Third District and attached to the Second District by the narrowest of land bridges; Effingham and Chatham Counties were split to make way for the Savannah extension, which itself split the City of Savannah; and the plan as a whole split 26 counties, 23 more than the existing congressional districts. Joint Exh. 1. The dense pop- ulation centers of the approved Eleventh District were all majority-black, all at the periphery of the district, and in the case of Atlanta, Augusta and Savannah, all tied to a sparsely populated rural core by even less populated land bridges. 13 Extending from Atlanta to the Atlantic, the Eleventh covered 6,784.2 square miles, splitting eight counties and five municipalities along the way. ---------------------------------------- Page Break ---------------------------------------- 13 We further explore the characteristics of the Eleventh District in our discussion of strict scrutiny, infra. ---------------------------------------- Page Break ---------------------------------------- 23a DOJ precleaned the plan, which was hand delivered to DOJ by Mark Cohen. During his visit, Keith Borders opined that even this plan did not go far enough, voicing objections that Ms. Wilde and Rep. Brooks were even then faxing to the Voting Section. On April 2, 1992, however, Mr. Cohen was finally able to leave Washington with a letter of preclearance from Mr. Dunne. Pltf. Exh. 6. B. The Ramifications of DOJ Involvement 1. DOJ Methods a. The Use of Informants During our hearings it became clear that the De- partment of Justice had cultivated a number of parti- san "informants" within the ranks of the Georgia legislature, including at least one State Senator-a congressional candidate no less-and an aide to Lieu- tenant Governor Howard. See Response Of United States To Plaintiffs' Statement Concerning Confiden- tial Informants, July 7, 1994. DOJ regularly received from them information on the General Assembly's redistricting sessions. DOJ apparently read federal ---------------------------------------- Page Break ---------------------------------------- 24a Here, "whistleblowers" became "secret agents." They reported to DOJ throughout the section 5 review proc- ess. DOJ used that information even to question the integrity of State legislators who could not know their accusers. Keith Borders testified that "allegations are brought to our attention and then we go back and ask individ- uals about those allegations." Tr. IV, at 9. One of DOJ'S informants informed Mr. Borders that State Senator Eugene Walker was a "quintessential Uncle Tom," and "the worst friend of blacks in Georgia." Tr. IV, at 27. During the first meeting between a Georgia delegation and Voting Section lawyers, there was a confrontation involving Borders and Walker, although Borders "doesn't recall" whether he chal- lenged Senator Walker with those unattributable comments. However, either these anonymous "allega- tions" or some other suggestion so offended Senator Walker that he refused to attend further meetings with DOJ staff. DOJ'S agents provided an irrebuttable source of intelligence of which the General Assembly was com- pletely unaware. We find this practice disturbing. b. The Use of Alternative Plans Thomas Armstrong testified that DOJ used alterna- tive plans submitted by special interests as means with which to question the configuration of Georgia's submitted plans, i.e., if an alternative proposal had found some clever means of further boosting African- American voting strength in Georgia, why hadn't the Assembly adopted it? See, e.g., Tr. IV, at 140-41. For DOJ, if these alternative plans had discovered heretofore untapped wells of racial voting power ab- sent from the submitted plan, the inescapable conclu- ---------------------------------------- Page Break ---------------------------------------- 25a sion was that the State's proffered reasons for the submitted configurations were "pretextual" ones. There is a problem with this position: It appar- ently did not occur to DOJ that increased "recogni- tion" of minority voting strength, while perhaps ad- mirable, is properly tempered with other districting considerations. The ACLU and Reps. Brooks and McKinney were concerned only with racial percent- ages. They could afford such a narrow focus. The General Assembly leadership was concerned with passing redistricting legislation affecting all Geor- gians, and contended with numerous factors racial, political, economic, and personal. As the lawmaking body for the entire state, the General Assembly could not afford such a narrow focus. Consequently, its sub- missions reflected many influences, and the ACLU's reflected only race. Of course DOJ could then com- pare Georgia's plans to the max-black plan and find the latter a more effective means of magnifying the minority vote. The max-black plan reflected nothing but its drafters' concerns: race and technical con- tiguity. DOJ'S mistake was in assuming that Geor- gia's plan must be so conceived. As one legislator quipped: [1] t's very difficult, it seems, to get them to realize that maybe there's a little bit more to re- apportionment than black and white or minority areas; that there should be some alignment be- tween the areas so they can work together for the next ten years. Pltf. Exh. 143. Difficult indeed. ---------------------------------------- Page Break ---------------------------------------- 26a 2. ACLU Involvement It is unclear whether DOJ'S maximization policy was driven more by Ms. Wilde's advocacy or DOJ'S own misguided reading of the Voting Rights Act. This much, however, is clear: the close working rela- tionship between Ms. Wilde and the Voting Section, the repetition of Ms. Wilde's ideas in Mr. Dunne's objection letters, and the slow convergence of size and shape between the max-black plan and the plan DOJ finally precleaned, bespeak a direct link between the max-black plan formulated by the ACLU and the preclearance requirements imposed by DOJ. Succinctly put, the considerable influence of ACLU advocacy on the voting rights decisions of the United States Attorney General is an embarrassment. A poignant example: in a notable faux pas, DOJ'S second objection letter arrived at the Office of the Attorney General of Georgia only after members of the Georgia Black Caucus were already discussing it with the press. DOJ had notified the ACLU of its impending objection; the ACLU then notified the Black Caucus. This unfortunate spate of gossip cre- ated the impression that the ACLU and the Black Caucus wielded significant influence with DOJ'S Civil Rights Division and significant control over Georgia's redistricting efforts. The State's leaders were understandably nonplussed. The ACLU was exuberant. Georgia officials and citizens were mysti- fied. We are simply troubled by the result. It is sur- prising that the Department of Justice was so blind to this impropriety, especially in a role as sensitive as that of preserving the fundamental right to vote. That right is vital to citizens of a democracy, and ---------------------------------------- Page Break ---------------------------------------- 27a of poignant importance to African-Americans. For many blacks Jim Crow is living memory,14 and the presence of black luminaries and ordinary citizens at our hearings is a testament to their concern. This Court does not underestimate the emotional invest- ment in our decision of blacks still resisting the vestiges of racial discrimination, 15 and we have been placed in the unenviable position of depriving black citizens of a privilege the Justice Department never had the right to grant: maximization of the black vote, whatever the cost. * * * Elections were held under the new congressional redistricting plan on November 4, 1992. Black can- didates were elected to the United States Congress from all three majority-minority districts. Cynthia McKinney, running in the Eleventh, became Geor- gia's first black congresswoman. On January 13, 1994, Plaintiffs filed this action. ___________________(footnotes) 14 See South Carolina v. Katzenbach, 383 U.S. 301, 310-15 (1965) for a review of modern state government efforts to deny blacks the ability to vote. 15 We acknowledge in this regard the amicus contribution of Judge A. Leon Higginbotham, Jr., Special Counsel to the Congressional Black Caucus. Various of Judge Higgin- botham's comments echoed those of ex-Labor Commissioner Albert Scott, who testified to the remains of racial bigotry in rural Georgia. Compare Amicus Brief at 16 (asserting that Georgia Supreme Court Justice Robert Bentam won elections in 1984 and 1990 "with a strategy of obscuring the fact that he is black") with Tr. VI, at 79 (testifying that some white political candidates use the tactic of specifically advertising to rural voters that their opponents are black). ---------------------------------------- Page Break ---------------------------------------- 28a II. LAW A. Shaw v. Reno Though initially daunting, the Supreme Court's opinion in Shaw v. Reno, 113 S. Ct. 2816 (1993), is a bit less than a riddle wrapped in an enigma. We begin with some general observations, and then con- tinue with an analysis of the Eleventh District. The majority opinion in Shaw is premised on the uncontroversial proposition that race-based redistrict- ing should be treated like any other race-based legis- lation. From there, the argument is straightforward: (1) racial classifications, per the Fourteenth Amend- ment, are "presumptively invalid, and can be upheld only upon an extraordinary justification." Brown v. Board of Education, 347 U.S. 483 (1954) ; (2) in light of the Voting Rights Act, race is obviously a valid consideration in redistricting, but a voting district that is so beholden to racial concerns that it is inexplicable on other grounds becomes, ipso facto, a "racial classification;" (3) if a district may be so described, it must have an "extraordinary jus- tification," that is, it must survive constitutionally strict scrutiny, in order to be upheld. The above analysis begs the question: How to de- termine if a district is so founded upon race that it warrants constitutional notice? By examining the shape of the district itself: if its contours are so contorted as to permit no other conclusion than that it was drawn along racial lines, the Supreme Court says those lines are clear-if circumstantial-evi- dence that the legislature "purposefully distin- guish [cd] between voters on the basis of race." Shaw, 113 S. Ct. at 2826. This analysis is made a bit easier by the existence of defined and recognized ---------------------------------------- Page Break ---------------------------------------- 29a "traditional districting principles" that influence nearly all redistricting efforts. The nonexclusive list includes contiguity, compactness, protecting the in- tegrity of political subdivisions, cognizance of "com- munities of interest," negotiating geographic bar- riers, and protecting incumbents. If the shape of the district advertises "disregard" for these considera- tions in favor of race-based line drawing, the dis- trict is a racial classification and subject to strict scrutiny. 16 There is an important, if subtle, distinction to make here. Under Shaw, the shape of the district is "objective" evidence of the legislature's intent in drafting that district. Id. Discovering discriminatory intent is necessary to a successful Equal Protection claim. Washington v. Davis, 426 U.S. 229 (1976) ; Mobile v. Bolden, 446 U.S. 55 (1980) (extending requirement of "discriminatory purpose" to voting rights cases ). The shape of the district is not a "threshold" inquiry preceding an exploration of the motives of the legislature. That is, the court does not assess, on first principles, whether the district looks "bizarre," and then, if it does, proceed to an Equal Protection analysis. A determination that the ___________________(footnotes) 16 The Supreme Court takes a reverse tack in describing the significance of traditional districting principles to a Shaw claim: We emphasize that these criteria are important not be- cause they are constitutionally required-they are not, cf. Gaffney v. Cummings, [412 U.S. 735, 752 n.18 (1973)]- but because they are objective factors that may serve to defeat a claim that a district has been gerrymandered on racial lines. Id. at 2827 (citation omitted). ---------------------------------------- Page Break ---------------------------------------- 30a district looks dramatically irregular is the beginning of an Equal Protection analysis; the strange district is the "smoking gun," revealing the racial intent needed for an Equal Protection claim. We take pains to clarify this point because some have misinterpreted Justice O'Connor's observation that "reapportionment is one area in which appear- ances do matter." Shaw, 113 S. Ct. at 2827. Yes, appearances do matter, but in two extremely par- ticular ways: (1) as a proxy for direct evidence of the legislature's intentions, and (2) as a harm ade- quate to meet the constitutional criteria for standing to sue. The former idea is not a wholly new one. As the High Court notes, there are intellectual pre- cursors to the Shaw opinion making it a logical extension of past practice. See Shaw, 113 S. Ct. at 2825-26 (reviewing cases). See also Rogers v. Lodge, 458 U.S. 613 (1982) (deferring to district court finding that sum of evidence supports inference that voting scheme was maintained for discriminatory purposes). The latter concept, however, is a bit of an innovation. 1. Standing to Bring a Shaw Claim In both Shaw and the instant case, the plaintiffs suffered no individual harm; the 1992 congressional redistricting plans had no adverse consequences for these white voters. Under the Supreme Court's most recent pronouncements, this lack of concrete, individ- ual harm would deny them standing to sue. See, e.g., Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2136 (1992 ). Shaw, however, implicitly recognizes a different kind of harm, distinct from vote dilution and sufficient to state a "cognizable" Equal Protec- tion claim: "Classifying citizens by race, as we have ---------------------------------------- Page Break ---------------------------------------- 31a said, threatens special harms that are not present in our vote dilution eases. It therefore warrants different analysis." Shaw, 113 S. Ct. at 2828. Those harms are systemic ones, rooted in social perception of state-sanctioned racial classifications: Justice Souter [in dissent] apparently believes that racial gerrymandering is harmless unless it dilutes a racial group's voting strength. . . . As we have explained, however, reapportionment legislation that cannot be understood as anything other than an effort to classify and separate voters by race injures voters in other ways. It reinforces racial stereotypes and threatens to undermine our system of representative democ- racy by signaling to elected officials that they represent a particular racial group rather than their constituency as a whole. . . . Justice Souter does not adequately explain why these harms are not cognizable under the Fourteenth Amend- ment. Id. It is this distinct kind of damage that enables the Court to distinguish Shaw from a group of white plaintiffs' failed vote dilution claim in United Jewish Organizations, et al. v. Carey, 430 U.S. 144 (1977) (hereinafter "UJO" ); in that case, the districts were regularly shaped. See id. at 167-68 (opinion of White, J.). Slaw explicitly reserves any thoughts on whether the deliberate creation of a majority- minority district, "without more,''-meaning without a dramatically irregular shape-gives rise to an Equal Protection claim. Shaw, 113 S. Ct. at 2828. 17 ___________________(footnotes) 17 The court in Shaw v. Hunt, No. 92-202-CIV-5-BR, at 43 (E.D.N.C. Aug,, 1, 1994), dealing with the Supreme Court's ---------------------------------------- Page Break ---------------------------------------- 32a Shaw v. Reno's expanded notion of harm liberalizes the standing requirement. The Eastern District of North Carolina, analogizing principally from Regents of the Univ. of Calif. v. Bakke, 438 U.S. 265, 281 (1978), articulates the standing requirement for a Shaw claim as a showing that a redistricting plan has assigned a potential plaintiff to a district at least in part because of her race. Shaw v. Hunt, No. 92- 202-CIV-5-BR, at 27 (E.D.N.C. Aug. 1, 1994). The North Carolina court pursues an exhaustive discus- sion of Shaw v. Reno's implications for the standing requirement, and we do not repeat it here. We feel that even that court's interpretation may not be as expansive as Shaw v. Reno intended, but are content to note that standing in this case is not in doubt: Plaintiffs occupy a position virtually identical to those ___________________(footnotes) remand, wonders about this reluctance, positing that perhaps the Supreme Court sought to avoid overturning its decision in UJO by stopping short of answering that question. The distinction is more principled, however. The special harm that is the crux of Shaw v. Reno, the offense to "princi- ples of racial equality" generated by blatantly manipulated voting districts, simply was not present in UJO, a case in- volving vote dilution, not district appearance. The issue of Equal Protection claims against normally shaped districts was beyond the scope of the Shaw opinion. For our part, we note that a compact majority-black voting district could not be challenged as a racial "gerrymander"; if the district is suffi- ciently compact, then presumably its drafters were able to accumulate enough black voters without carefully picking their way around white populations in search of black ones. Without that kind of manipulation, there is no "gerrymander- ing" to speak of-the state simply made a discrete voting district out of a discrete community. The Shaw v. Reno majority makes a similar point. See id. at 2826, 2828. See also Wright v. Rockefeller, 376 U.S. 52, 53-58 (1964). ---------------------------------------- Page Break ---------------------------------------- 33a challenging North Carolina's congressional redistrict- ing plan in Shaw v. Reno, and in that case standing was not in doubt. 2. The Required Level of Racial Motivation in Redistricting There has been some debate over the necessary prominence of race in legislative deliberations before it can be found that the redistricting plan is "un- explainable on grounds other than race," and thus subject to strict scrutiny. There are three possible solutions. Defendants in the instant case, along with some district courts, argue that race must have been the sole motivation behind a particular district shape before strict scrutiny is appropriate. Defendants cite language from Shaw in support: "[strict scrutiny is applied if the plan] is so irrational on its face that it can be understood only as an effort to segregate voters . . . because of their race[.]" Shaw, 113 S. Ct. at 2832. See also Bridgeport Coalition v. City of Bridgeport, 1994 WL 247075 (2d Cir.) (finding that a lower court order "did not transgress Shaw be- cause it did not instruct the City Council to redistrict solely cm racial grounds) (emphasis added) ;Dewitt v. Wilson, 1994 WL 325415 (E.D.Cal. ) (stating, for example, "Shaw held when districts are drawn in such an extremely irregular fashion as to be unex- plainable, other than being based solely on race, a claim under the Equal Protection Clause for racial gerrymandering can be stated.") (emphasis added). A second school teaches that race need only have been a recognizable factor-not the sole or dominant one-before a redistricting plan is constitutionally suspect. See Hays v. Louisiana, 839 F. Supp. 1188, ---------------------------------------- Page Break ---------------------------------------- 34a 1202, 1214 (W.D. La. 1993) (majority opinion and concurring opinion ) (hereinafter "Hays I" ). Shaw v. Hunt similarly holds that, in keeping with prior Equal Protection precedents, districts should be subject to strict scrutiny merely upon a showing that the state's use of race was deliberate?' Shaw v. Hunt, supra, at 35,40. This test is necessarily met by proof that the plan's lines were deliberately drawn so as to create one or more districts in which a particular racial group is a majority, even if factors other than race are shown to have placed a significant role in the precise location and shape of those districts. Id. at 41. Specific intent is needed; the test is not met by demonstrating merely that the legislature was aware of a districting plan's racially discriminatory impact. In order to avoid condemning to "constitu- tional invalidity" all majority-minority voting dis- tricts drawn pursuant to Voting Rights Act require- ments, the court states that while this test will sub- ject practically all majority-black districts to strict scrutiny, the strict scrutiny standard should be ap- plied "in a way that is sensitive not only to the state legislatures' statutory obligation [to give effect to minority voting potential under the VRA], but also to the special compromises that they must make in order to pass plans that draw such districts." Id. at 47. There is an analytical problem with applying strict scrutiny while remaining "sensitive" to the plight of ___________________(footnotes) 18 It is not completely clear exactly what test Shaw v. Hunt espouses. The language of the opinion seems occasionally contradictory. See Majority Opinion, supra, at 41. ---------------------------------------- Page Break ---------------------------------------- 35a legislatures. Essentially, strict scrutiny tempered to accommodate legislative realities is not "strict scru- tiny;" it is some lower standard designed to accom- modate legislative realities. We feel that a better approach is to remove completely from constitutional suspicion those VRA-mandated redistricting plans that, as Plaintiffs say, "do it right." The proper interpretation of Shaw v. Reno's "race-based" re- quirement is that, in order to invoke strict scrutiny, it must be shown that race was the substantial or motivating 19 consideration in creation of the district in question. That term requires that the legislature (a) was consciously influenced by race, and (b) while other redistricting considerations may also have con- sciously influenced the district shape, race was the overriding, predominant force determining the lines of the district. If race, however deliberately used, was one factor among many of equal or greater significance to the drafters, the plan is not a racial gerrymander/racial classification subject to strict scrutiny. We arrive on this middle ground after considering fundamental aspects of Equal Protection jurispru- dence. After Washington v. Davis, intent is an in- dispensable element of successful discrimination claims under the Fourteenth Amendment. The plaintiff must show some discriminatory purpose impelling the legis- lature before strict scrutiny will be applied to the law in question. See 426 U.S. at 240. The Supreme Court has expounded on this intent requirement, hold- ___________________(footnotes) 19 We intend "motivating" in the sense that race was the most prominent element driving the legislatures' planning, not in the sense of one motivation among others of equal strength propelling the process. ---------------------------------------- Page Break ---------------------------------------- 36a ing that the Fourteenth Amendment is violated when race is a "substantial" or "motivating" factor in legislative decisionmaking. See Arlington Heights v. Metropolitan Housing, 429 U.S. 252, 265-66 (1977) (clarifying Washington v. Davis); City Schl. Dist. Bd. Of Educ. v. Doyle, 429 U.S. 274, 287 (1977) (adding word "substantial"). Decisions such as Arlington Heights are vital to properly reading Shaw v. Reno: Davis does not require a plaintiff to prove that the challenged action rested solely on racially dis- criminatory purposes. Rarely can it be said that a legislature or administrative body operating under a broad mandate made a decision moti- vated solely by a single concern, or even that a particular purpose was the "dominant" or "pri- mary" one. . . . When there is a proof that a discriminatory purpose has been a motivating factor in the decision, . . . judicial deference is no longer justified. Arlington Heights, 429 U.S. at 265-66. In the context of Equal Protection claims based on voting districts, the VRA is the kind of "broad man- date" intended by the Court under the Arlington Heights standard. Further, the phrase "unexplain- able on grounds other than race," which the Shaw v. Reno majority frequently mentioned, is from the Arlington Heights opinion: "Sometimes a clear pat- tern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face." Arlington Heights, 429 U.S. at 266. See Shaw v. Reno, 113 S. Ct. at 2825. ---------------------------------------- Page Break ---------------------------------------- 37a The intent requirement extends to voting cases, e.g., Rogers v. Lodge, 458 U.S. 613 (1982), and Shaw discusses certain voting precedents at length. Shaw v. Reno, 113 S. Ct. at 2825-27 (reviewing Guinn v. United States, 238 U.S. 347 (1915), Gomillion v. Lightfoot, 364 U.S. 339 (1960), and Wright v. Rockefeller, 376 U.S. 52 (1964)). These cases clarify Shaw. For example, in Wright, minority plaintiffs brought suit under the Fourteenth and Fifteenth Amendments, claiming that several congressional dis- tricts in New York City were "irrationally" shaped and contrived to segregate voters on the basis of race. Wright, 376 U.S. at 53. A three-judge panel, presented with maps, statistics and other indirect evi- dence, dismissed the complaint, finding that the plain- tiffs had "failed to prove that the New York Legis- lature was either motivated by racial considerations or in fact drew the district on racial lines." Id. at 56. The Supreme Court affirmed the dismissal, observing that while "[i] t may be true . . . that there was evidence which could have supported in- ferences that racial considerations might have moved the state legislature, . . . we agree [with the lower court] that there also was evidence to support [a] finding that the contrary inference was `equally, or more, persuasive.' " Id. at 56-57. That is, the cir- cumstantial evidence did not show that the New York congressional lines were influenced predominantly by race -other, equally plausible "inferences" could be drawn from the maps and charts. So it is in Shaw v. Reno, but the standard is a bit tougher. In Wright, the congressional districts were upheld, but without the patina of legitimacy cast by the VRA, and despite "[defendant] New ---------------------------------------- Page Break ---------------------------------------- 38a York's frank concession that it is not possible to say `that race is irrelevant to redistricting.' " Id. at 61 (Douglas, J., dissenting). Shaw concedes that latter point, 113 S. Ct. at 2826, thus elevating the finding needed for a successful Equal Protection chal- lenge. When we read Arlington Heights and progeny in conjunction with Wright, we surmise the follow- ing: Where it cannot be shown that race was the "substantial" or "motivating" factor behind a voting district by demonstrating that racial concerns are the only ones plausibly to be inferred 20 from the dis- trict's lines, there is no valid Equal Protection claim. In contrast to Hays I and Shaw v. Hunt, race can be a factor for the legislature, meaning one factor given no more prominence than various others, with- out triggering strict scrutiny. The legislature may intentionally consider race in redistricting-and even alter the occasional line in keeping with that consid- eration-without incurring constitutional review. It is the abuse of that privilege, exposed to the world via perverse district shapes "unexplainable on grounds other than race," that sparks further exam- ination. 21 We think the race-saturated requirements of the Voting Rights Act require this result, Without such an allowance, and considering the present atti- tude of the Department of Justice, every state and local government in the United States subject to section 5 of the Voting Rights Act will be buried under Shaw litigation every time it passes a redis- ___________________(footnotes) 20 we consider the role of direct evidence in section II.B, supra. 21 The analytical distinction here is similar to that made by Justice Powell in the affirmative action context. See Regents v. Bakke, 438 U.S. 265, 317-18 (1977). ---------------------------------------- Page Break ---------------------------------------- 39a tricting plan.'" Since each plan must survive strict scrutiny-a factual inquiry-many lawsuits will re- sult in full trials, We are reluctant to conclude that the Supreme Court intended voting rights litigation to sweep the country at ten-year intervals. Race also need not be the sole motivation behind a redistricting plan before it is subject to further review. This is clear from a reading of Arlington Heights. 439 U.S. at 266. A Shaw claim is an Equal Protection claim; if the Supreme Court were dras- tically narrowing the Fourteenth Amendment intent requirement articulated in Washington v. Davis and subsequent decisions- specifically for a subset of vot- ing rights cases-it would have said so. More im- portantly, the standard would be nearly impossible to meet: if race is admittedly one of many valid dis- tricting concerns, Shaw, 113 S. Ct. at 2826, then plain- tiffs could never show that it was the "sole" concern behind a districting plan. A state legislature could always trot out some other traditional districting principle minimally served by the shape in question. Cf. Hays 1, 839 F. Supp. at 1202. The path most useful for negotiating the intrica- cies surrounding Shaw v. Reno and the Voting Rights Act is the middle one. Both the Supreme Court and Congress have already admitted that the Constitu- tion is not genuinely "color-blind," but it does se- verely limit the race-based lengths to which a state ___________________(footnotes) 22 Cases such as the instant one show that this process has already begun. See also Holder v. Hall, 114 S. Ct. 2581, 2598 (1994) (arguing that the states' racial gerrymandering in response to judicial decisions and DOJ involvement "now promises to embroil the courts in a lengthy process of at- tempting to undo, or at least minimize, the damage wrought by the system we've created"). ---------------------------------------- Page Break --------------------------------------- 40a may go. The document does not suffer racial classi- gladly. B. Determining if Race was the Overriding Consid- eration in Creation of the Eleventh District 1. Methods of Proof: Indirect and Direct Evidence The Supreme Court's use of a district's shape as circumstantial evidence of legislative intent implies that proof might be made by other means. The Shaw v. Hunt court arrived at the same conclusion, finding that proof can be made "by any means, including state concession, bizarre shape, or some combination of the various factors typically used to prove the "intent" element of an Equal Protection claim under Arlington Heights [.]" Shaw v. Hunt, supra, at 40- 41. The Western District of Louisiana concurs: "If everyone- or nearly everyone-involved in the design and passage of a redistricting plan asserts or con- cedes that design of the plan was driven by race, then racial gerrymandering may be found without resort- ing to the inferential approach approved by the Court in Shaw." Hays 1, 839 F. Supp. at 1195 (footnote omitted ). See also Arlington Heights, 429 U.S. at 266 ("Determining whether invidious discriminatory purpose was a motivating factor demands a sensi- tive inquiry into such circumstantial and direct evi- dence of intent as may be available."). This is clearly the correct approach. Defendants argued early in these proceedings that evidence of the legislature's intent to gerrymander must be in- ferred from the shape of the Eleventh District itself, and not from direct testimony of those involved with process. This view finds little support in Shaw ---------------------------------------- Page Break ---------------------------------------- 41a v. Reno. The purpose of scrutinizing a district's shape is to glean the intent of the legislature by working backwards: if the district appears unin- fluenced by accepted districting principles, as evi- denced by its shape, then it must have been influenced by unaccepted ones. The Supreme Court explicitly approved this inferential approach because legislative intent is notoriously difficult-if not logically impos- sible 23- to ascertain, and in redistricting cases, the district itself may provide the only firm evidence, albeit circumstantial, of that intent. What the Su- preme Court did not do is imbue geography with con- stitutional significance; the requirement for a suc- cessful Equal Protection claim is still intent, however proved. Foreclosing production of direct evidence of intent until Plaintiffs convince the Court that a dis- trict looks so weird that race must have dominated its creation is not what Shaw intended. That ap- proach would make district shape a (previously un- heard of) threshold to constitutional claims. 24 2. The Eleventh Congressional District This stage of our analysis is the easiest to resolve. The amount of evidence of the General Assembly's intent to racially gerrymander the Eleventh District ___________________(footnotes) 23 See Rogers v. Lodge, 458 U.S. 613, 631-53 (1981) (Stevens, J., dissenting). Justice Stevens has succinctly stated the problem: "A law conscripting clerics should not be in- validated because an atheist voted for it." Washington v. Davis, 426 U.S. at 253 (concurring opinion). 24 Note that a bizarre district shape is indeed a "threshold" for purposes of standing. Without the "harm" caused by an obvious gerrymander, citizens have no basis for suit. See supra, section II.A.1. ---------------------------------------- Page Break ---------------------------------------- 42a is overwhelming, and practically stipulated by the parties involved. a. Indirect Evidence The current configuration of the Eleventh District appears in Joint Exhibit 1. For our purposes, the most significant elements of the Eleventh are the "land bridges" to Dekalb, Richmond and Chatham Counties. On a purely visual level, it is exceedingly obvious to us, and more importantly, to the public, that extraordinary efforts were made to reach those areas for a specific purpose; narrow appendages reach out from the core of the Eleventh to grasp certain goals-the cities of Atlanta, Augusta, and especially Savannah. Land bridges are not the only bridges which sup- port the Eleventh District's march. The Eleventh soars 18 stories over the water upon the spine of the suspension bridge at Savannah to spill itself over un- inhabited Hutchinson Island (which many travelers think is in South Carolina). From Hutchinson the district goes northwest across the marshes, a wildlife refuge, and the river again (this time without a bridge) to a mere point of contiguity with Effingham County. By this means most of the Port facilities are left within the First (historically coastal) Dis- trict. The surrounding evidence implies that this specific purpose, sometimes the only purpose, was race. Con- sider the extension into Effingham and Chatham Counties: From intact Screven County, the Eleventh suddenly narrows to a bridge at points barely con- tiguous and averaging less than two miles in width, until it reaches the City of Savannah, where it branches out to encompass particular sections of that ---------------------------------------- Page Break ---------------------------------------- 43a community. See Joint Exh. 1; DOJ Exh. 10, 16-17. Effingham County is actually a growing area, but the part of it within the Eleventh District is largely swamp. 25 In most of that strip, the population is literally "zero." Tr. I, at 107 (testimony of Linda Meggers). In Savannah itself, the sections within the Eleventh are heavily populated-with blacks. DOJ Exh. 17. Chatham County is 38% black; that part of it within the Eleventh is 84% black. Major- ity white areas of Savannah are circumvented by the district boundaries." Id.; Tr. I, at 115-16. The Court has not been presented with an ade- quate non-racial rationale for this spectacle. The extension to Savannah is not compact by any credible definition of that term," it was not necessitated by natural geographic boundaries, there was no incum- bent served by it, there was no economic or political interest thereby enhanced, it split two counties, and it was not necessary to comply with the constitutional one person/one vote requirement. It was urged that many of the district lines follow precinct lines, thus ___________________(footnotes) 25 The Brooks/McKinley max-black plan employed a wider bridge through Effingham County. During the legislative process, the representative from that area succeeded in nar- rowing the bridge, to minimize the damage caused in split- ting Effingham County by keeping as much of the resident population within the adjacent First Congressional District as possible. 26 In eliminating some of the county splits present in the max-black plan, Ms. Meggers was forced to create even more irregular boundary lines in urban areas, in an effort to include black populations to offset increased white popula- tions in the repaired counties. Tr. 1, at 97. 27 We further explore the concept of "compactness" in our discussion of narrow tailoring, section 11.C.3, infra. ---------------------------------------- Page Break ---------------------------------------- 44a providing a "political," non-racial, explanation their configuration. While the boundaries of Eleventh do indeed follow many precinct lines, is because Ms. Meggers designed the Eleventh District along racial lines, and race data was most accessible to her at the precinct level. Tr. II, at 271-72. The Court was also plied with testimony about "communities of interest" involving the black popula- tions of Savannah and other majority-black areas, e.g., Tr. VI, at 26 et seq. (testimony of Rev. Mitchell), 137 et seq. (testimony of Dr. Marsha Darling), that allegedly provide a non-racial justification for the district's current configuration. Here the Defendants and Interveners faced a Sisyphean task. Initially, the desire to bolster amorphous "communities of in- terest" could not be sufficient justification for the drafting gymnastics involved in bringing the Elev- enth District to Savannah. Second, we remain uncon- vinced that the poor black populations of coastal Chatham County feel a significant bond to the black neighborhoods of metro Atlanta. Third, even if bonds between these groups exist at certain levels, those links were certainly not the overriding motivation behind construction of a land bridge to Chatham County. Finally, and most importantly, the Defendants and Interveners spent much time outlining the racial com- munity of interest shared by black citizens in Geor- gia. The problem with this tack is that, while par- tially convincing, such a community of interest is barred from constitutional recognition. To urge this racial identification as a justification for the shape of the Eleventh District is tantamount to simply ad- mitting that race was the overriding consideration in its creation. We have no doubt that black citizens , ---------------------------------------- Page Break ---------------------------------------- 45a share concerns related to their condition as blacks, e.g., the unusually high crime rate in black communi- ties or combatting racism. Rev. Mitchell presented evidence of religious networking among black con- gregations. A voting district, however, that is con- figured to cater to these "black" concerns is simply a race-based voting district. It is based on super- ficial, racially founded generalizations about what matters to black Georgians. That is, it traffics in racial stereotypes. We find it ironic and troubling that the state and federal government should expend such effort to convince the Court "that members of the same racial group-regardless of their age, edu- cation, economic status, or the community in which they live-think alike, share the same political inter- ests, and will prefer the same candidates at the polls." Shaw, 113 S. Ct. at 2827. Richmond County also shows signs of gerrymander- ing. From Burke County, the Eleventh District sud- denly narrows to a corridor, following the Central Georgia Railroad into the City of Augusta. The cor- ridor, composed of wetlands and some industrial areas, is virtually unpopulated. DOJ Exh. 14; Tr. I, at 100. Upon reaching Augusta, the Eleventh cuts through the city itself, splitting precincts and roping in the heaviest concentrations of black citizens. Rich- mond County is 42% black; that component inside the Eleventh District is 66% black. Dekalb County, containing the largest single con- centration of blacks in Georgia, suffers a similar fate. From Butts County, the Eleventh gradually narrows to a point less than one half mile wide, and then broadens to cover all of Atlanta's black populations not "needed" for the Fifth District. Tr. I, at 119; DOJ Exh. 8. Dekalb County is only 42.2% black; ---------------------------------------- Page Break ---------------------------------------- 46a its constituency within the Eleventh District is 74.6% black. The narrow section of the district, just south of County, provides a clear example of a point we noted earlier. Ms. Meggers, forced to include the black populations of DeKalb County in order to reach the correct black voting age population in the Elev- enth District, narrowed the Eleventh to a half mile along the way in order to follow precinct lines. She did this because it was possible, and splitting of precinct lines is generally avoided where possible. Tr. I, at 122-23. Yes, precinct lines provide a nonracial explanation for a district boundary, but, as Ms. Meggers stated, she was "just lucky"; the overriding reason for cutting through that area in the first place was to scoop up black voters. Id. at 82. The fact that Ms. Meggers minimized the damage does not under- mine that central motivation. 28 Other observations shed light on the racial manipu- lations behind the Eleventh, most notably the simple one that the total black population of Georgia is 26.96%, while within the Eleventh it is 64.07%. We ___________________(footnotes) 28 Defendants also asserted that, since all districts must comply with the one person/one vote requirement articulated in Reynolds v. Sims, 377 U.S. 533 (1964), race could not be the dominant or sole motivation behind a redistricting ef- fort. Our response to this argument is that the one person/ one vote requirement is a "threshold" requirement, a first- order requirement that must be addressed before considering second-order factors such as race or any traditional redistrict- ing principles. The one person/one vote criterion is inflexi- ble; it simply must be met by every redistricting plan. In contrast, the prominence of secondary factors will vary with the legislative tides. It is among those factors that we debate the relative importance of race as a motivation. One person/ one vote compliance is assumed. ---------------------------------------- Page Break ---------------------------------------- 47a also note that the vast majority-nearly 80%-of the district's minority population comes from carefully divided counties on its distant fringes. In addition, the Eleventh District avoids the heavy black popula- tions of Macon, just 80 miles from DeKalb, while going to great lengths to include those of Savannah, 260 miles away; the black voters of Macon are neces- sary to make the Second Congressional District ma- jority-black. Finally, if not for reasons of race, why split the counties of DeKalb, Wilkes, Richmond, Effingham, Chatham, Twiggs, Baldwin, and Henry? Why split 26 counties at all? With the exception of Texes, Georgia has more counties than any other state in the Union; one would think that such a proliferation would provide ample building blocks for acceptable voting districts without chopping any of those blocks in half. Avoiding such rough surgery did not seem such a herculean feat in any redistricting round be- fore 1992. And why excise Savannah-and just por- tions of Savannah-from its traditional economic place in the "coastal" region of Georgia? The Elev- enth District could have been easily revised to in- elude one or more whole counties while still meeting the one person/one vote requirement, and other tra- ditional districting concerns would have been better served. We find the above survey indicative of an over- riding objective to include minority populations in the Eleventh. In fact, with regard to the extensions to Savannah and Augusta, we find that race was clearly the sole objective behind its creation. At a glance, the appendages of the Eleventh are obviously designed to do something; after cursory exploration, it rapidly becomes clear that the "something" is ---------------------------------------- Page Break ---------------------------------------- 48a maximization of black voting strength. As Mr. Arm- strong himself admitted, all one must do is take a... map of the State of Georgia shaded for race, shaded by minority concentration, and overlay the districts that were drawn by the State of Georgia and see how well those lines adequately reflect [] black voting strength. Tr. IV, at 135. We could not have phrased it better. b. Direct Evidence Any attempt to explain the Eleventh District as anything but a far-flung search for black voters utterly collapses under the weight of direct evidence. One need only review DOJ'S objection letters and our findings of fact to see that DOJ spent months de- manding purely race-based revisions to Georgia's redistricting plans, and that Georgia spent months attempting to comply. The testimony at trial reflects this sorry process, and it is compelling. We need review but a few examples from the record. The State of Georgia simply confessed to its racial motivations. In response to Plaintiffs' Request, State made the following admissions of fact: The State would not have added those portions of Effingham and Chatham Counties that are now in the present Eleventh Congressional Dis- trict but for the need to include additional black population in that district to offset the loss of black population caused by the shift of pre- dominantly black portions of Bibb County in the Second Congressional District which occurred in response to the Department of Justice's March 20th, 1992, objection letter. Tr. I, at 11-12. And ---------------------------------------- Page Break ---------------------------------------- 49a To the extent that precincts in the Eleventh congressional District are split, a substantial reason for their being split was the objective of increasing the black population of that district. Id. at 12. Speaker Thomas Murphy also admitted that the Assembly built its third districting plan along racial lines. What we did is we went into counties and precincts and picked up pockets of African- Americans to make a strong district with voting age black population so that it would guarantee a black would be elected from there. Tr. II, at 62. Speaker Murphy stated that the boundaries of Chatham, Richmond, DeKalb, Baldwin, Twiggs, and Wilkes Counties were "all drawn based upon race." Id. at 72. He was not alone in his frankness. Every legislator testifying in these pro- ceedings admitted that the objectives behind the dis- tricting plan were racial ones. Max-black supporters presumably agreed, including Rep. Cynthia McKin- ney and various members of the Georgia Black Caucus. Linda Meggers, not an elected official but the architect behind the districts in question, readily stated on numerous occasions that she designed the Eleventh District to root out black populations and avoid white ones. See Tr. I, at 106-07 (Chatham County), 101-02 (Richmond County), 124-25 (Bald- win County), 270-71 ( DeKalb County), 272-73 (on sole purpose of land bridges as connections to black populations ). See also id. at 74 (Second Congres- sional District ), 82 (same). Ms. Meggers routinely found the "blackest" precincts first, and then worked backwards by racial percentage. Id. ---------------------------------------- Page Break ---------------------------------------- 50a Rep. Sonny Dixon, who "oversaw the extension of the Eleventh District into Chatham County," Tr. IV, at 159, gave powerful and credible testimony on that subject, and was quite clear as to how the current Eleventh District came to be: MR. CHESIN [for Plaintiffs] : What was the reason for this extension [into Chatham County] ? REP. DIXON: Purely to, as the Justice Depart- ment objection letter stated, to connect the sec- ond largest concentration of blacks with the rest of the Eleventh District. MR. CHESIN: Was there anything else be- sides race? REP. DIXON: None whatsoever. Id. at 159-60. He detailed the extreme efforts made to stretch the Eleventh to Savannah without absorb- ing any white voters along the way, id. at 161-64, and the literally block by block search for black vot- ers to add to the Eleventh District. Rep. Dixon's testimony presents a picture which, under virtually any other set of circumstances, would be clearly impermissible, almost unthinkable. The concept of government allocations on the basis of race, coupled with drawing lines tracing concentra- tions of black citizens, smacks of government- enforced ghettoization. The contours of the Eleventh District reviewed above are so dramatically irregular as to permit no other conclusion than that they were manipulated along racial lines. This conclusion is cemented with the copious amounts of direct evidence discussed here. Consequently, we must now deter- mine whether this kind of racial classification is nar- ---------------------------------------- Page Break ---------------------------------------- 51a rowly tailored to comply with some compelling state interest. C. Constitutional Analysis Race-based laws are subject to strict scrutiny even if "remedial" in nature. Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (plurality opinion); Wy- gant v. Jackson Board of Education, 476 U.S. 267, 273 (1985) (plurality opinion) ; United Jewish Or- ganizations, 430 U.S. at 172 (Brennan, J., concurring in part). As stated in Croson, "[a]bsent searching judicial inquiry . . . , there is simply no way of de- termining what classifications are `benign' or `reme- dial' and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics." Id. at 493-94. Once revealed as a racial classification, a law can survive constitutional review only upon "extraordinary justification," that is, a showing that the law is both necessary and nar- rowly tailored to further a compelling state interest. See Shaw v. Reno, 113 S. Ct. at 2832; Palmore. v. Sidoti, 466 U.S. 429, 432 (1984); Fullilove v. Klutz- nick, 448 U.S. 448, 491 (1980 ). The State Defendants seem to propose only the goal of proportional representation as their compelling justification for the current Eleventh Congressional District. Def. Prop. Findings, "par", 122. The Interve- ners, however, suggest VRA compliance and eradicat- ing the effects of past or present racial discrimina- tion as interests sufficiently compelling to justify Georgia's actions in this case. It is clear to us that the only interest the General Assembly had in mind when drafting the current congressional plan was satisfying DOJ'S preclearance requirements. The ar- ---------------------------------------- Page Break ---------------------------------------- 52a ticulated "compelling" justifications appear to be post hoc rationalizations. Nevertheless, we will address all possibilities. 1. A Preliminary Issue: Burden of Proof The burden of proof as to whether race was the overriding consideration behind the current district- ing plan rested squarely with the Plaintiffs. At the strict scrutiny stage, we agree with the court in Shaw Hunt that, while burdens of production shift to the Defendants, the ultimate burden of persuasion re- tains with Plaintiffs: In . . . a reverse-discrimination case, as in any other Equal Protection case, "[t] he ultimate bur- den remains with the [plaintiff] to demonstrate the unconstitutionality of [the] affirmative ac- tion program." Wyqant, 476 U.S. at 277-78 . . . . Proof that the challenged law or policy is race- based gives rise to a presumption that it is un- constitutional and shifts to the state the burden of "demonstrating" that its use of race was justified by a compelling governmental interest. Croson, 488 U.S. at 505 (majority). But the burden thus shifted is one of production only, not persuasion [.] Shaw v. Hunt, supra, at 52-53. Plaintiffs still bear he burden of persuading the court that the State's evidence did not support a finding that the redistrict- ing plan was narrowly tailored to a compelling state interest. ---------------------------------------- Page Break ---------------------------------------- 53a 2. Potential Compelling State Interests a. Proportional Representation We only briefly address this argument, since (1) we encounter it later in our discussion of narrow tailoring, and (2) it clearly does not provide a state interest sufficient to pass constitutional muster. Proportional representation simply is not a con- stitutional requirement. See, e.g., Mobile v. Bolden, 446 U.S. at 76 ("The Equal Protection Clause of the Fourteenth Amendment does not require proportional representation as an imperative of political organiza- tion." ); Whitcomb v. Chavis, 403 U.S. 124, 149 (1971) ; Turner v. Arkansas, 784 F. Supp. 553, 577 (E.D. Ark. 1991) (listing cases). Nor is it a statu- tory requirement. See 42 U.S.C. 1973b (prohibiting vote dilution, and stating "nothing in this section es- tablishes a right to have members of a protected class elected in numbers equal to their proportion in the population" ). To erect the goal of proportional rep- resentation is to erect an implicit quota for black voters. Far from a compelling state interest, such an effort is unconstitutional. See, e.g., Regents v. Bakke, 438 U.S. at 307. The State believes in a compelling state interest in achieving proportionality apart from any requirement of the Voting Rights Act. State Def. Findings, "par", 122. In response to an inquiry as to what compelled the creation of racially proportional voting districts, the State's tautological answer is to proffer a desire to draft racially proportional voting districts, and in- sist that "the Constitution does not prohibit a state from enacting such a plan." True, but neither does the Constitution-nor the VRA-require it. This dis- tinction is stressed in Shaw v. Reno, 113 S. Ct. at ---------------------------------------- Page Break ---------------------------------------- 54a 2830, and is partially the lesson of Johnson v. De Grandy, 1994 WL 285792 (U.S. 1994), on which both the State and DOJ rely. De Grandy acknowledges proportionality as a prima facie indication of non- dilution under section 2, and as something to con- sider within the "totality of the circumstances" sur- rounding a vote dilution claim. Lack of proportion- ality may imply dilution, but that inference is far from an independent and compelling state interest in racially gerrymandering voting districts. b. Eradicating the Effects of Past Discrim- ination With the rise of race-based programs intended to remedy the effects of past discrimination, it became necessary for the Supreme Court to decide when a history of "societal discrimination" provided a suf- ficiently compelling state interest for the law in ques- tion. A generalized claim of societal discrimination cannot justify a racial classification. Wygant, 476 U.S. at 276. There must be some "particularized findings" of past discrimination, providing a "strong basis in evidence" for the state's conclusion that re- medial action is necessary. Id.; Croson, 488 U.S. at 500, 504 (majority opinion). Such a finding might be possible in our case; we have given formal judicial notice of the State's past discrimination in voting, and have acknowledged it in the recent cases. See Brooks v. State Bd. of Elec- tions, 848 F. Supp. 1548, 1560-61, 1571 (S.D. Ga. 1994). See also Rogers v. Lodge, 458 U.S. 613 (1981). The problem is that (1) the General As- sembly never articulated such lofty goals during the 1990-92 redistricting, having made clear that it would not have enacted the current plan but for DOJ de- ---------------------------------------- Page Break ---------------------------------------- 55a mands, and (2) we conclude that a compelling state interest in remedying prior discriminatory voting practices does not exist independent of the Voting Rights Act. The Supreme Court declined to fully explore this latter issue in Shaw v. Reno, but did take time to "note" that only three Justices in UJO were prepared to say that States have a significant interest in minimizing the consequences of racial block vot- ing apart from the requirements of the Voting Rights Act. And those three Justices specifically concluded that race-based districting, as a re- sponse to racially polarized voting, is constitu- tionally permissible only when the State "em- ploy [s] sound districting principles," and only when the affected racial group's "residential pat- terns afford the opportunity of creating districts in which they will be in the majority. " Shaw, 113 S. Ct. at 2832 (quoting UJO, 430 U.S. at 167-68) (opinion of White, J., joined by Stevens and Rehnquist, JJ. ). Justice Brennan concurred in UJO: [I]f and when a decisionmaker embarks on a policy of benign racial sorting, he must weigh the concerns that I have discussed against the need for effective social policies promoting racial justice in a society beset by deep-rooted racial inequities. But I believe that Congress here ade- quately struck that balance in enacting the care- fully conceived remedial scheme embodied in the Voting Rights Act. Id. at 175. We take our cue from both the Shaw v. Reno majority's caveat and Justice Brennan's faith ---------------------------------------- Page Break ---------------------------------------- 56a in the Voting Rights Act as a justification for race- based legislative preferences. The VRA is an expan- sive remedial scheme imposing federal authority over much of the country's state and local voting systems. In effect, it formalizes, codifies, and universally im- poses a "compelling state interest" to redress histori- cally persistent discriminatory voting practices. See, e.g., South Carolina v. Katzenbach, 383 U.S. 301, 310-15 (1965 ) ("The Voting Rights Act of 1965 reflects Congress' firm intention to rid the country of racial discrimination in voting."). Under the guise of section 5, it even directs that "state interest" to those regions where it is most "compelling." Any independent state interest in the remedial revision of voting laws is subsumed within that broad federal legislation. If a state's remedial program meets the requirements of the VRA, an independent compelling justification is redundant; if the program exceeds the requirements of the VRA, the separate interest in further increasing minority voting strength is no longer compelling. The VRA places a necessary leash on race-based remedial practices in the voting sphere; the Supreme Court has acknowl- edged that remedial legislation can cause more harm than good, and requires such laws to be narrowly tailored and clearly linked to specific instances of past discrimination. See Wygant, 476 U.S. at 274-76 " (requiring a "strong basis in evidence" for any prof- fered state interest in rectifying prior discrimina- tion); Bakke, 438 U.S. at 298 (observing that "pref- erential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor bearing no relationship to individual worth." ). Considering the unparalleled significance ---------------------------------------- Page Break ---------------------------------------- 57a of the right to vote, this implicit regulation is bene- ficial to the nation. The VRA ensures that states honor the right to vote; our recognition of no other compelling justification for race-based voting reme- dies ensures that states do not go too farm ___________________(footnotes) 29 In contrast to our view, the majority in Shaw v. Hunt found recognition of a compelling state interest beyond the VRA necessary because the VRA might not reach all in- stances in which race-based redress is needed. They presented the example of a state that has a history of official racial discrimination in its elec- toral system, which hats resulted in the virtual exclusion of members of a particular racial minority from partici- pation in its political processes, but it knows that the creation of majority-minority districts is not required by the [nonretrogression element] of section 5, because it has never had such districts before, and that the rele- vant minority group cannot show that section 2 requires the creation of any majority-minority districts, because it is too widely dispersed to constitute a majority in a single-member district that is "geographically compact" under Gingles. Shaw v. Hunt, supra, at 71-72. Our response is that this hypothetical state rightly has no compelling interest in gath- ering together its widely dispersed minority population. To do so, it would have to traffick in a superficial stereotype impugned by Shaw v. Reno-that widely dispersed black populations will vote alike simply because they are black. The vote dilution provisions of the VRA implicitly recognize this point by not requiring a different result. Minority popu- lations must, be "geographically compact" before a successful section 2 claim can be made, Thorn burg v. Gingles, 478 U.S. 30, 50-51 (1986), and this requirement is designed precisely to bar such claims where the minority population is "sub- stantially integrated" or "spread evenly" throughout the challenged district. See id. at 50 and n.17. Finally, we are here presented with a textbook example of "hard cases" mak- ing "bad law," Northern Securities Co. v. United States, 193 ---------------------------------------- Page Break ---------------------------------------- 58a c. VRA Compliance The Shaw v. Reno majority stops short of declar- ing that compliance with the Voting Rights Act is, a fortiori, a compelling state interest. The Court allows that "[t] he States certainly have a very strong inter- est in complying with federal antidiscrimination laws that are constitutionally valid as interpreted and applied." Shaw, 113 S. Ct. at 2830. Fully steeped in the argot of constitutional law, we do not doubt that the Court intentionally avoided the word "com- pelling," instead opting for the more cautious "very strong." This suggests to us that VRA compliance might be a compelling state interest under some cir- cumstances, but that there are certain necessary predicates; the Court warns that a redistricting plan satisfying section 5 may still be found unconstitu- tional, and that legislatures are not thereby granted "carte blanche to engage in racial gerrymandering [.]" Id. at 2831 (citing the VRA itself and Supreme Court precedents ). Beyond these cautionary obser- vations, no explicit guidance is given as to when VRA compliance constitutes a compelling state interest. A most useful hint, however, comes from Justice O'Connor's injunction that courts "bear in mind the difference between what the law permits, and what it requires." Id. at 2830. Essentially, the point here is that the VRA cannot justify all actions taken in its name. It will present a compelling justification for certain race-based remedial measures, but not for all that its provisions might potentially "permit." ___________________(footnotes) U.S. 197. 363 (1904) (Holmes, J., dissenting); the im- probability of the above scenario indicates its dubious value as scaffolding for constitutional arguments. --------------------------------------- Page Break ---------------------------------------- 59a The court in Shaw v. Hunt translates Shaw v. Reno into a useful standard: We think it clear that a state has a "compelling" interest in engaging in race-based redistricting to give effect to minority voting strength when- ever it has a "strong basis in evidence" for con- cluding that such action is "necessary" to pre- vent its electoral districting scheme from violat ing the Voting Rights Act. Shaw v. Hunt, supra, at 56. See Hays I, at 1217 (concurring opinion). That court arrives at this interpretation by marrying the standard for deter- mining if past discrimination provides a compelling state interest with recent Supreme Court pronounce- ments on remedial race-based measures. See Wygant v. Jackson Board of Education, 476 U.S. 267, 276 (1986) (requiring "particularized findings" of so- cietal discrimination before concluding that a com- pelling state interest exists for remedying it) ; Cro- son, 488 U.S. at 491 (considering remedial actions in contracting) ; Bakke, 438 U.S. at 307 (considering educational affirmative action programs ). This stand- ard makes sense, but is indicative of a puzzling com- ponent of Shaw v. Reno explored below. i. The Effect of Shaw v. Reno on the Strict Scrutiny Standard in the Con- text of VRA Compliance If we assume that the VRA is constitutional,'" and that it does, as Shaw strongly implies, provide suffi- ___________________(footnotes) 30 No risky assumption. See, e.g., Chisom v. Roemer, 501 U.S. 380 (1991 ) (upholding constitutionality of "purpose" requirements of VRA sections 2 and 5); South Carolina v. Katzenbach, 383 U.S. 301, 334-35 (1996) (holding that Con- ---------------------------------------- Page Break ---------------------------------------- 60a ciently compelling justification for race-based re- districting in some contexts, then the narrow tailor- ing stage of the constitutional analysis logically over- shadows the compelling interest stage as the vital point of contention. The Shaw v. Hunt standard re- flects this shift: it is unlikely, especially considering DOJ'S current standards for preclearanee under sec- tion 5, that a state could not provide solid evidentiary support for concluding that its redistricting efforts were "necessary." As the North Carolina court ar- gues, rejection of a redistricting proposal by DOJ or the D.C. District Court would constitute "a strong basis in evidence" justifying increasingly race-based redistricting. Indeed, such measures would then ap- pear "necessary" for VRA compliance, since pre- clearance would not otherwise be forthcoming, A "prima facie" compelling state interest would thereby be created, "prima facie" because the race- based measures have not been verified as necessary; it is only the State defendant-and DOJ-that assert as much. To determine if such was indeed the case, a court would have to pursue a narrow tailoring inquiry, and decide whether the districts, as pre- cleaned and enacted, were genuinely "reasonably necessary," Shaw, 113 S. Ct. at 2831, that is, nar- rowly tailored, to comply with the VRA. If they were not found actually necessary, then the State- and DOJ-were wrong in deciding that they were, and suddenly no compelling interest existed; if the measures were found necessary, then both DOJ'S interpretation of the VRA and the State's adherence ___________________(footnotes) gress did not abuse its power in creating preclearance require- ment under VRA section 5, since it was a "legitimate meas- ure" taken under "compulsion of . . . unique circumstances"), ---------------------------------------- Page Break ---------------------------------------- 61a to it had [sic] been correct, and so a compelling in- terest had [sic] existed: 31 ___________________(footnotes) 31 We disagree with Chief Judge Voorhees that this ap- proach results in a "[b] lind deference to the administrative findings of the United States Attorney General" that confers immunity from "constitutional scrutiny[.]" Shaw v. Hunt, supra, dissenting opinion at 25. First, DOJ was expressly empowered by Congress to render section 5 decisions on par with those of the D.C. district court. 28 C.F.R. 51..52. Labeling them as "administrative findings," Bakke, 438 U.S. at 305 (opinion of Powell, J.), does not diminish their po- tency, and the Supreme Court does not seem to underestimate their importance. See, e.g., UJO, 430 U.S. at 175 (Brennan, J., concurring in part). Second, it is obvious that, since DOJ enforces the VRA via its preclearance duties, its demands will dictate what it is "necessary" for the State to do under the Act. Again, Congress realized this when the VRA was en- acted. Third, our analysis in the text above demonstrates that no constitutional "immunity" inheres from the standard ar- ticulated by the majority in Shaw v. Hunt. It does somewhat alter the balance of factors in the strict scrutiny analysis, but the State is granted no added protection thereby. Close examination of potentially compelling interests is simply held in abeyance pending a determination of narrow tailoring. Finally, the Attorney General is not hereby granted "de facto ability to determine the constitutional scope of federal legis- lation" anymore than she is granted that ability under any other federal law that DOJ is entrusted to enforce. Shaw v. Reno allows that the VRA is potentially a com- pelling interest, but only if race-based changes made in its name are "reasonably necessary" to comply with it. Yes, the State can-and should independently assess whether its plans reasonably satisfy the Act. The State did so in the instant case, and the result was predictable: DOJ'S assess- ment trumped that of the General Assembly, since without DOJ'S acquiescence, there are no congressional elections in Georgia. There was no "blind deference" here. Georgia was a reluctant participant. ---------------------------------------- Page Break ---------------------------------------- 62a The end result here is that in scenarios involving jurisdictions subject to section 5, a compelling inter- est is initially assumed, since the plans in question could not have been enacted without VRA "compli- ance" as interpreted by the Justice Department. We realize that the Shaw v. Reno majority was careful to say that "States . . . have very strong interest in complying with federal antidiscrimination laws that are constitutionally valid as interpreted and applied," Shaw, 113 S. Ct. at 2830 (emphasis added), and that DOJ'S "maximization" interpretation in this case was potentially unconstitutional. 32 The interpretation was improper, however, because it compelled legislative efforts not reasonably necessary/ narrowly tailored to the written dictates of the VRA and attendant regulations, not because it required race-conscious re- districting. We are constantly returned to that cru- cial tailoring aspect of the strict scrutiny rubric, and our temporary compelling interest assumption is merely a stepping stone to get us there. Cf. Hays I, 839 F. Supp. at 1206 (assuming presence of a com- pelling state interest in order to reach the narrow tailoring stage). It is not seriously debated that the General As- sembly designed the current congressional districts specifically to comply with DOJ's preclearance re- quirements. Reviewing our factual findings, it is evident that Georgia, wrangling with the DOJ Voting Section for over a year, did what was minimally "necessary" to secure preclearance, and putatively, to comply with the VRA. Consequently, there was a ___________________(footnotes) 32 We realize that decisions of the Attorney General are not reviewable by this Court. See Morris v. Gressette, 432 Us. 491 (1977) . ---------------------------------------- Page Break ---------------------------------------- 63a putatively compelling interest behind the drafting of the current Eleventh Congressional District, pending a final determination of whether DOJ'S demands comported with the VRA. 33 We now leave this stage and turn to whether Georgia's 1992 congressional re- districting plan was actually required by the VRA and Supreme Court precedent; the Plan will live or die on the results of our narrow tailoring inquiry. 3. Narrow Tailoring A variety of factors are generally relevant to whether a state action is narrowly tailored to fur- ther a compelling state interest,34 but in the voting context, the factors are somewhat altered by the pres- ence of the VRA. Our inquiry here will focus on two issues: (1) whether the current plan contains more majority black districts than reasonably necessary to comply with the VRA, and (2) whether the existing majority black districts contain larger concentrations of minority voters than reasonably necessary to give those voters a realistic opportunity to elect candidates of their choice. See Shaw v. Hunt, supra, at 75-76; Hays I, 839 F. Supp. at 1206-08. ___________________(footnotes) 33 "Reliance on possibly invalid applications of the Voting Rights Act by the Department of Justice cannot create a [genuinely] compelling state interest. If so, the Department of Justice and various States could sidestep the holdings of Croson,Gingles, and Shaw with ease." Hays I, 839 F. Supp. at 1217. 34 These factors include ( 1 ) the necessity of the measure, (2) the efficacy of alternative, race-neutral measures, (3) the availability of more narrowly tailored options, (4) the flexibility and duration of the measure, and (5) the impact of the measure on the rights of third parties. Hays, 839 F. Supp. at 1208, 1215. See Croson, 488 U.S. at ,510-11; United States v. Paradise, 480 U.S. 149, 171 (1987). ---------------------------------------- Page Break ---------------------------------------- 64a a. The Significance of Maximization A congressional districting plan is not narrowly tailored if it affects the rights and interests of citi- zens more than "reasonably necessary" to further the compelling state interest advanced by the state. See Shaw, 113 S. Ct. at 2831 (setting out "reasonably necessary" language ); Hays 1, 839 F. Supp. at 1208 (describing this element as the "essence of narrow tailoring in the redistricting context"). Shaw draws a comparison with UJO, where four justices decided that New York's creation of additional majority- minority districts was constitutional, because the plaintiffs had failed to show that the state "did more than the Attorney General was authorized to require it to do[.]" 430 U.S. at 162-63. In other words, plaintiffs failed to show that the State's plan did more than was necessary to satisfy the compelling interest in complying with the VRA. That showing is much easier here, where DOJ stretched the VRA farther than intended by Congress or allowed by the Constitution, and had the General Assembly firmly in tow. On first appraisal, our factual finding that the Georgia plan reflects a DOJ maximization agenda 35 bodes ill for any arguments that the Eleventh District is narrowly tailored to comply with VRA require- ments. Consider the regulations promulgated by Con- gress to assist DOJ in properly enforcing the Act. ___________________(footnotes) 35 we are by no means the first Court to criticize DOJ'S maximization propensities. See Shaw v. Hunt, supra, Dis- senting Opinion; Hays I, 839 F. Supp. at 1196-97 n.21; Turner v. Arkansas, 784 F. Supp. at 561 (quoting Abigail Thernstrom, Washington Post, Sept. 23, 1991, at All). ---------------------------------------- Page Break ---------------------------------------- 65a Among the numerous racial factors specific to redis- tricting, DOJ must also consider (e) The extent to which available alternative plans satisfying the jurisdiction's legitimate gov- ernmental interests were considered. (f) The extent to which the plan departs from objective redistricting criteria set by the submit- ting jurisdiction, ignores other relevant factors such as compactness and contiguity, or displays a configuration that inexplicably disregards avail- able natural or artificial boundaries. 28 C.F.R. 51.59. Congress intended these two cri- teria as indicators of whether a legislature was at- tempting to gerrymander in favor of white voters, but they are equally useful tools in our context. We will not rehash our factual recitation here, but ob- serve that DOJ clearly disregarded these intended restraints on gerrymandering. DOJ'S requirements, based on the max-black proposal, had nothing at all to do with any criterion but race. See Pltf. Exh. 2, 4, 6 ( DOJ objection letters). Some fundamental "ob- jective redistricting criteria," like the one person/ one vote, single-member, and contiguity requirements, were satisfied along the way, but every factor that could realistically be subordinated to racial tinkering in fact suffered that fate. The district is not com- pact, it disregards economic boundaries, and it ig- nores county and precinct lines at will when needed to reach black neighborhoods. We find it ironic that Congress was apparently worried that the legislature might ignore alternative plans that were able to boost black voting strength while satisfying legitimate nonracial interests. Here, ---------------------------------------- Page Break ---------------------------------------- 66a it was DOJ that demanded an alternative plan that boosted black voting strength and completely ignored legitimate nonracial interests. In a similar vein, Congress uses the word "inexplicably," in subsection (f), apparently envisioning a district with lines un- explainable as anything other than an effort to ex- clude black voters; here we are confronted with a district unexplainable as anything other than an ef- fort to exclude white voters. These observations alone lead us to conclude that the current congressional plan is not narrowly tail- ored to what the VRA actually, reasonably, requires. We continue, however, with a more specific look at the gulf between the VRA and the enacted plan. b. Section 5 of the Voting Rights Act Section 5 of the VRA prohibits a State or political subdivision subject to section 4 of the Act from en- forcing any change in voting practices unless it has obtained a declaratory judgment from the D.C. Dis- trict Court that such a change "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," or has secured preclearance from the Attorney General under the same standard. While the "pur- pose" prong, essentially eclipsed by section 2 of the Act, 33 requires a showing that the proposed plan was not designed to dilute minority voting strength, the "effect" prong is aimed at barring any redistricting plan that would lead to "a retrogression in the posi- ___________________(footnotes) 36 The only difference is that under the section 5 analysis the burden of proof is not on affected minority groups, but on the jurisdiction seeking preclearance. See 28 C.F.R. 51.,52 (placing section 5 burden of proof on "submitting authority" ). ---------------------------------------- Page Break ---------------------------------------- 67a tion of racial minorities with respect to their effective exercise of the electoral franchise." 28 C.F.R. 51.54 (a) (making retrogression the standard for finding discriminatory effect under section 5, and citing Beer v. United States, 425 U.S. 130, 141 (1976)). See also McCain v. Lybrand, 460 U.S. 236, 247 (1984) (making purpose/effect distinction) ; Port Arthur v. United States, 459 U.S. 159, 162 (1982) (discussing purpose prong). It is abundantly clear to this Court that Georgia's current redistricting plan exceeds what is reasonably necessary to avoid retrogression under section 5. DOJ readily admitted that neither the first nor the second redistricting plan passed by the Assembly had a retrogressive effect on minority voting strength. Tr. V, at 36-38; Pltf Exh. 99 (Requests for Admissions from DOJ). Those first two plans provided for two majority black districts, but the third, current plan- in keeping with the max-black proposals-provides three such districts, prompting us to conclude that three majority black districts are not reasonably nec- essary to comply with the VRA. The Shaw v. Reno majority stated: "A reapportionment plan would not be narrowly tailored to the goal of avoiding retrogres- sion if the State went beyond what was reasonably necessary to avoid retrogression. " Shaw v. Reno, 113 S. Ct. at 2831. Having created more majority black voting districts than necessary to avoid retrogression, the State of Georgia enacted a congressional district- ing plan that was not narrowly tailored to the com- pelling state interest of complying with the VRA. Cf. Beer, 425 U.S. at 141 ("It is thus apparent that a legislative reapportionment that enhances the posi- tion of racial minorities with respect to their effective exercise of the electoral franchise can hardly have ---------------------------------------- Page Break ---------------------------------------- 68a the `effect' of diluting or abridging the right to vote on account of race within the meaning of section 5."). Further, DOJ'S admission is not necessary to make clear the lack of retrogressive effect. Under the pre- vious congressional districting scheme, there was one majority-black district among the ten districts in Georgia, or 10% majority-black districts. In a plan with eleven districts, two majority-black districts would constitute 18. 18% of the total-quite an im- provement." Federal regulations state that "[i] n de- termining whether a submitted change is retrogres- sive the Attorney General will normally compare the submitted change to the voting practice or procedure in effect at the time of the submission." 28 C.F.R. 5L54(b). Apparently, neither DOJ nor the General Assembly used this simple guide to Section 5 com- pliance. The current districting plan overstepped the re- quirements for section 5 compliance because it was designed to secure proportional representation for black voters in Georgia, not adhere to the VRA. Three majority-black districts constitute 27.27% of the total eleven, and blacks constitute 26.9670 of the total Georgia population. DOJ used its section 5 pre- clearance prerogative as a tool for forcing that stand- ard upon the General Assembly, thereby setting an extremely dangerous precedent on at least two counts. First, as noted earlier, proportional representation is in no way a constitutional or statutory require- ment. See De Grandy, 1994 WL 285792; Mobile, 446 _____________(footnotes) 37 Under the first and second proposals, the Second Con- gressional District was a black "influence" district augment- ing the black voting strength already harnessed in the Fifth and E1eventh. ---------------------------------------- Page Break ---------------------------------------- 69a U.S. at 55; Beer, 425 U.S. at 136. See also 42 U.S.C. 1973b. The Supreme Court has in fact rejected any proposed requirement of proportional representation or vote maximization throughout the history of the VRA. See, e.g., White v. Regester, 412 U.S. 755, 765-66 ( 1973); Whitcomb v. Chavis, 403 U.S. 124, 148-56 (1971 ). And most recently: Operating under the constraints of a statutory regime in which proportionality has some rele- vance, States might consider it lawful and proper to act with the explicit goal of creating a propor- tional number of majority-minority districts in an effort to avoid section 2 litigation. . . . The Department of Justice might require (in effect) the same as a condition of granting preclearance, under section 5 of the Act, 42 U.S.C. 1973c, to a State's proposed legislative redistricting. Those governmental actions, in my view, tend to en- trench the very practices and stereotypes the Equal Protection Clause is set against. De Grandy, 1994 WL 285792, *17 (Kennedy, J., con- curring) (emphasis added). The potential harm of a proportional representation benchmark is not easily overestimated. Such a standard dictates racial quotas for our democratic institutions based on the percent- age of each race in the population at large. No, there is no guarantee that majority-minority districts will yield minority representatives, but their conscious construction as entitlements for each racial group causes the societal damage against which we warn today. If efforts to require proportional representa- tion of minorities in democratic institutions are not stopped with clarity and force, they will divide this country into a patchwork of racial provinces, and en- ---------------------------------------- Page Break ---------------------------------------- 70a sure that represent races before they represent citizens. See Holder, 114 S. Ct. at 2598-99. The VRA neither intends nor requires the devolution of voting rights into racial bargaining chips to be bickered over by special interests, and we will not support that cause. Second, while the Shaw v. Hunt majority is con- fident that race-based redistricting plans "are inher- ently temporary in nature," Majority Opinion at 78, we are equally sure that any redistricting plan de- signed for proportionality, that is upheld by the Court today, will not be easily uprooted in the foreseeable future. We are aware that the decennial census prompts revisions to many districting plans, but the VRA prevents any voting changes that have a dilu- tive or retrogressive effect upon minority voting strength. Consequently, any plan approved today will become the absolute baseline for subsequent changes through 2007, 42 U.S.C. 1973b(a) (7) ; in 2000, if the Georgia population increases and the Georgia As- sembly does not add a fourth majority-black district, surely it will be subject to litigation under section 2 and rejection under section 5. Nor do we find it likely that Congress will commit the wildly unpopu- lar act of substantially revising VRA nondilution and nonretrogression provisions in 1997. See id. 1973 (a) (8). The "bailout" mechanism available to juris- dictions covered by section 5 does impose some even- tual limit on what is required, id. 1973b(a) ( 1), but even if released from section 5 coverage, Georgia would not then be free to dismantle its proportionally representative districting scheme. Upholding the plan today would create a fairly permanent race-based electoral system. ---------------------------------------- Page Break ---------------------------------------- 71a c. Section 2 of the Voting Rights Act Having thoroughly denounced the cause of propor- tional representation, we do realize that it plays an important role in vote dilution claims under section 2 of the VRA. Without it, there is no statistical norm against which to compare the current state of minor- ity voting prowess. De Grandy, supra, at *16 (Ken- nedy, J., concurring) (citing Supreme Court cases ). See also Holder, 114 S. Ct. at 2597 (" [T]he mathe- matical principle driving the results in our cases, is undoubtedly direct proportionality." ) ; Mary A. In- man, Change Through Proportional Representation: Resuscitating a Federal Electoral System, 141 U. Pa. L. Rev. 1991, 2050-51 (1993) (arguing that despite the VRA, "the core value underlying Gingles' three preconditions is a right to proportional representa- tion-but only for compact, cohesive, and sizable minority groups." (footnotes omitted) ). The De Grandy majority discusses proportional representa- tion at length, finding that while proportionality is probative evidence that minority voters have an "equal opportunity" to participate in political proc- esses and elect their preferred candidates, its sig- nificance "may vary with other facts." 1994 WL 285792 at *11. While sometimes sufficient to show nondilution, it is not required to achieve it, Id. at *11-12. Congress enacted section 2 of the VRA to provide teeth to the Fifteenth Amendment, a constitutional injunction historically spurned by state and local governments. See Katzenbach, 383 U.S. at 308 et seq. (reviewing history). Section 2(a) prohibits the im- position of any electoral practice or procedure that "results in a denial or abridgement of the right of any citizen . . . to vote on account of race or ---------------------------------------- Page Break ---------------------------------------- 72a color[.]" 42 U.S.C. 1973b. Section 2(b) specifies that section 2(a) is violated if: [B]ased on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its mem- bers have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. Id. Section 2 (a) adopts a "results" test, "providing that proof of discriminatory intent is [unnecessary] to establish any violation of the section. Section 2 (b) provides guidance about how the results test is to be applied." Chisom v. Roemer, 501 U.S. 380, 395 (1991) ; Thornburg v. Gingles, 478 U.S. 30, 35 (1986). In the context of single-member voting dis- tricts, "the usual device for diluting minority voting power is the manipulation of district lines." Voino- vich v. Quilter, 122 L. Ed.2d 500, 511 (1993). Minor- ity voting strength might be "cracked," fragmented and dispersed among two or more districts where it constitutes an ineffective minority of the electorate, or "packed," concentrated in one or a few districts where it constitutes an excessive majority, thus "bleaching" the surrounding districts of minority voters. See id.; Gingles, 478 U.S. at 46 n.11. Gingles provides the essential framework for establishing a vote dilution claim against at-large, multimember districts; it has since been extended to ---------------------------------------- Page Break ---------------------------------------- 73a single-member districts. 38 Growe v. Emison, 113 S. Ct. 1075, 1084-85 (1993). There are three "thres- hold conditions": (1) that "[the minority group] is sufficiently large and geographically compact to con- stitute a majority in a single-member district"; (2) "that [the minority group] is politically cohesive"; and (3) "that the white majority votes sufficiently as a bloc to enable it . . . usually to defeat the minority's preferred candidate." Gingles, 478 U.S. at 50-51. If the plaintiffs in a vote dilution suit establish these conditions, the court then considers other factors relevant to determining whether, "under the totality of the circumstances," minorities have been denied an "equal opportunity" to "participate in the political process and to elect representatives of their choice." 42 U.S.C. 1973b. See id., 478 U.S. at 80. These secondary factors can include a history of discrim- inatory voting practices, racially polarized voting, the relative presence of minorities in elected posts, and evidence of discrimination against minorities in other aspects of society that might hinder their abil- ity to participate in the electoral process. Id. at 36- 37. None of these factors are essential to a finding of vote dilution, id. at 45, but the Supreme Court has explicitly warned that a judgment must encom- pass not just the three preconditions, but "a compre- hensive, not limited, canvassing of relevant facts." De Grandy, supra, at *8. The assessment must be a holistic one. Shaw v. Reno provides little guidance for deciding whether an existing districting plan is narrowly _____________(footnotes) 38 Justice Thomas has highlighted some profound difficulties with the Gingles analysis, Holder, 114 S. Ct. at 2615-18, but this Court is bound to apply it. See, e.g., Patterson v. McLean Credit Union, 491 U.S. 164, 172 (1989). ---------------------------------------- Page Break ---------------------------------------- 74a tailored to the goal of section 2 compliance. See Shaw, 113 S. Ct. at 2831-32. The logical approach is to begin by determining whether historical, societal, and demographic conditions in Georgia at the time of redistricting sufficed under the Gingles preconditions to reasonably necessitate creating the Eleventh Con- gressional District. If so, the General Assembly had a compelling interest in designing the plan as it did. i. Is the Eleventh Congressional District Required by Section Two? Any determination of whether three districts were necessary to avoid vote dilution sports prodigious amounts of statistical baggage. The court heard from seven experts on the virtues and vices of the district," on topics including compactness, communi- ties of interest, racial polarization in voting, the minimum demographic requirements of a reasonable majority-black district, and Georgia's racist past.40 ___________________(footnotes) 39 We include Ms. Meggers in our count; being a veteran practitioner of redistricting, she is more intimate with the subject than any academic commentator. 40 Traditional districting principles such as compactness, contiguity, communities of interest and respect for political subdivisions are not constitutional requirements, Shaw v. Reno, 113 S. Ct. at 2827, but are relevant to our consideration of narrow tailoring. We agree with the North Carolina court that the Supreme Court will probably not adopt a definition of `narrow tailoring' in the redistrict- ing context that requires consideration of whether the challenged plan deviates from `traditional' notions of compactness, contiguity, and respect for political sub- divisions to a greater degree than is necessary to ac- complish the state's compelling purpose. Shaw v. Hunt, supra, at 87. Such a standard would elevate to constitutional status that which was intended only as a ---------------------------------------- Page Break ---------------------------------------- 75a The more arcane machinations of the parties' sta- tistical experts present us with an initial obstacle. Statistical evidence is potentially of great importance in voting rights cases, e.g., Gingles, 478 U.S. at 52- 61, but the Court has been presented with no particu- larly dispositive analyses in this case. Drs. Lichtman and Weber-veterans of the Shaw litigation circuit, see Vera v. Richards, No. H-94-0277 (S.D. Texas, Aug. 17, 1994), Hays I, 839 F. Supp. at 1208- launched conflicting assumptions, databases, and bases of measurement, only to be trounced by Dr. Katz, who impugned the testimony of both. The Court, no experts in statistical methodologies and re- luctant to base constitutional holdings on numerical niceties, 41 is left with little of use. We deal with each relevant topic as needed, supplementing the expert testimony with case law where the former provides inadequate guidance. ___________________(footnotes) barometer for determining whether a district adequately serves its constituents. Observance of those traditional prin- ciples is also difficult to judge at the exacting level required for a narrow tailoring determination, and such judging would force the judiciary to meddle with legislative prerogatives to an undesirable degree. See id. at 88-94. Nothing, however, precludes the Court from considering traditional districting principles as guideposts in a narrow tailoring analysis; while not required, they are potentially useful indicators of where the legislature could have done less violence to the electoral landscape. Compactness, for 1 example, is a principle directly relevant to section 2 com- pliance, which in turn is a central component of our narrow tailoring inquiry. 41 Dr. Katz's report reveals some of the potential difficul- ties in relying on statistical data. See Rpt. at 10. ---------------------------------------- Page Break ---------------------------------------- 76a ii. On Compactness Our first consideration is geographical compactness -one of the preconditions to a section 2 claim. Un- fortunately, there is no litmus test for compactness; it has been described as "such a hazy and ill-defined concept that it seems impossible to apply it in any rigorous sense in matters of law. " Tr. IV, at 282. See also Karcher v. Daggett, 462 U.S. 725, 756 (1983) (stating that compactness requirements have been of limited use because of vague definitions and imprecise application) ; B. Grofman, Critetia for Districting: A Social Science Perspective, 33 UCLA L. Rev. 85 (1985) (reviewing measures of compact- ness and stating that none are accepted as definiti- tive). Various mathematically based measures have been created, none of which yielded clear answers in this litigation. See Tr. IV, at 275-288 (testimony of Dr. R. Weber). A few include measuring the ratio of the district's area to the square of the district's perimeter; measuring the ratio of the district's popu- lation to the population of the area that would fall inside a rubber band stretched around the district; and measuring the ratio of the district's area to the area of the minimum circle that could circumscribe the district." ___________________(footnotes) 42 Most of these tests are culled from legal and political science scholarship. See, e.g., R. PiIdes & R. Neimi, Ex- pressive Harms, "Bizarre Districts," and Voting Rights: Evaluating Election District Appearances After Shaw v. Reno, 92 Mich. L. Rev. 483 (1993); E. Roeck, Jr., Measuring Compactness as a Requirement of Legislative Apportionment, 5 Midwest J. Pol. Sci. 70 (1961). See also Karcher, 462 U.S. at 756-58, 756 n.19 (Stevens, J., concurring); T. Goldstein, Unpacking and Applying Shaw v. Reno, 43 Am. U. L. Rev. 1135 (1994) . ---------------------------------------- Page Break ---------------------------------------- 77a At trial, Dr. Lisa Handley, an expert for the State, presented the innovative if abominably named "meanderingness test" for compactness. This test, formulated by Dr. Handley in conjunction with State's counsel specifically for this litigation, consti- tuted the State's only notable submission on the sub- ject of compactness. The "meanderingness" score measures the irregularity of a district's shape by determining how much of the district can be reached by straight lines emanating from that one point in the district yielding "the highest percentage of di- rect, straight line accessibility." Rpt. of Dr. Hand- ley, at 8-9. We do not find this test any more useful than the others we have encountered; it measures only a narrow facet of the elusive notion that is "compactness," and it allows for some absurd re- sults. As Plaintiffs noted at trial, this measure would find a pencil-thin district hundreds of miles long 100% compact, since there are no twists or turns to break the straight line measurements. We would add that the "meanderingness test" is especially use- less in analyzing the Eleventh District: while the vast-and sparsely populated-core of the Eleventh accounts for the district's favorable score on Dr. Handley's test, the narrow-and densely populated- appendages escape notice. In fact, this test is an excellent means of highlighting the egregiously ma- nipulated portions of any voting district, since those portions will always lie beyond the reach of straight line measurements. Our criticism of the "meanderingness test" leads us to another genre of compactness considerations: those dealing with population. These measures are far less abstract than those above, and better reveal the deficiencies of the Eleventh Congressional Dis- ---------------------------------------- Page Break ---------------------------------------- 78a trict. They require an assessment of population den- sities, shared histories, and common interests; essen- tially whether the populations roped into a particular district are close enough geographically, economi- cally, and culturally to justify them being held in a single district.43 A review of the Eleventh District from a popula- tion-based perspective confirms that the district is not ___________________(footnotes) 43 This approach is similar to that of "functional" tests for compactness, like that used by Kathleen Wilde in design- ing the max-black plan. Dillard v. Baldwin County, 686 F. Supp. 1459, 1465 (M.D. Ala. 1988) gives a good example of the functional view: By compactness, Thornburg does not mean that a pro- posed district must meet, or attempt to achieve, some aesthetic absolute, such as symmetry or attractiveness . . . . [G]eographical symmetry or attractiveness is . . . a de- sirable consideration for districting, but only to the ex- tent it facilitates the political process . . . . [A] district is sufficiently compact if it allows for effective representation. . . . [A] district would not be sufficiently compact if it was . . . so convoluted that there was no sense of community, that is, if its members and its representative could not easily tell who actually lived in the district. This view of compactness will occasionally conflict with Shaw v. Reno, which places renewed emphasis on actual dis- trict shape; post-Shaw, the functional approach may im- properly devalue geographical measurements. Regardless, functionally speaking, there is considerable potential for voter confusion in the current Eleventh Dis- trict, particularly near the borders in urban areas of the Eleventh. Beyond the general assumption in cities that "if you are black You are in the Eleventh, and if you are white you are not," the erratic lines and split counties and precincts do not afford voters ready indications of the district in which they reside. ---------------------------------------- Page Break ---------------------------------------- 79a compact for purposes of section 2 of the VRA. The populations of the Eleventh are centered around four discrete, widely spaced urban centers 44 that have absolutely nothing to do with each other, and stretch the district hundreds of miles across rural counties and narrow swamp corridors. Two thirds of the population of the district is concentrated in urban DeKalb, Richmond and Chatham counties. These communities are so far apart that DOJ'S insistence that they are "compact" renders the term meaning- less. The hooks, tails and protrusions of those coun- ties reveal the true "shape" of the district: if it were graphically depicted and sized according to the density of population, the miniature polyp of South DeKalb County would become a large bulbous affair accounting for about 3570 of the district's size; the narrow hook into Richmond County would be a rather uncouth polygon sporting about 1670 of the district's girth; and the tuft attached to the tail extending to Chatham County would represent 12.4% of the dis- trict. Finally, the proboscis extending into Baldwin County would be another distant repository of Elev- enth District population. As for finding any connection between these dis- crete clumps of people, Dr. O'Rourke, an expert for the Plaintiffs, presented the Court with compelling evidence of economic conditions, educational back- grounds, media concentrations, commuting habits, and other aspects of life in central and southeast Georgia making it exceedingly clear that there are no tangible "communities of interest" spanning the hundreds of miles of the Eleventh District. Rpt. of ___________________(footnotes) 44 Atlanta, Augusta, Savannah, and Columbus. ---------------------------------------- Page Break ---------------------------------------- 80a Dr. O'Rourke; Tr. III, at 99. Nor would your aver- age citizen think there would be. Assertions to the contrary are the result of shallow and offensive think- ing: blacks live in Savannah, blacks live in Atlanta, and so there must be some deep cultural bond be- tween them since, after all, aren't they black? Far more pernicious has been the Court's willing- ness to accept the one underlying premise that must inform every minority vote dilution claim: the assumption that the group asserting dilution is not merely a racial or ethnic group, but a group having distinct political interests as well. Holder, 114 S. Ct. at 2597. As far as Gingles' first precondition serves to minimize the effect of this as- sumption by requiring groups to reside in a compact area, it has done its work today. Blacks in Georgia did indeed rise from a common heritage of slavery and oppression, but with the shedding of those bur- dens they have begun to follow myriad, distinctive paths. They take their voting preferences with them. The Eleventh Congressional District, as con- structed, does not satisfy the first Gingles precon- dition, and was not reasonably required by section 2 of the VRA. There simply is no sufficiently large, compact minority population in south-central Georgia warranting creation in that area of a single-member, majority-black district as a vote dilution remedy. Ct. Shaw v. Reno, 113 S. Ct. at 2827. For the sake of thoroughness, we now turn to other factors relating to the second and third Gingles preconditions. ---------------------------------------- Page Break ---------------------------------------- 81a iii. On Racial Polarization and Overly Safe Districts We now move from reviewing the need for an Elev- enth District to examining the need for the current racial configuration of its constituency. The Court was here subjected to especially mind-numbing and contradictory statistical data. A team of court- appointed statisticians and political scientists would be hard pressed to divine from the evidence a single concrete finding regarding racially polarized voting, crossover voting patterns, or the minimum black vot- ing age population reasonably required under the VRA to ensure "equal opportunity" for black voters in Georgia. Moreover, we are dubious of arguments based on elusive "benchmarks" for the "appropri- ate" amount of minority voting influence, and of the judiciary's competence to resolve such disputes. The benchmark concept is rife with difficulties, and tolls a dangerous evolution in voting rights jurisprudence. See, e.g., Holder, 114 S, Ct. at 2594 (" [I]n setting the benchmark of what `undiluted' or fully `effective' voting strength should be, a court must necessarily make some judgments based purely on an assessment of principles of political theory."). We feel, however, constrained to the task. The "bivariate ecological regression methodologies," "extreme case analyses, " "r-squared coefficients," and "frequency distributions" cough up basically two types of statistical information. First, we have anal- yses of the degree of racial polarization in Georgia voting. Regression and extreme case analyses are the primary research methods here, and Dr. Licht- man, for the United States, uses them to prove the existence of polarization in Georgia. Drs. Weber and ---------------------------------------- Page Break ---------------------------------------- 82a Katz also implicitly or explicitly acknowledge the presence of racially polarized voting, but dispute the extent and significance of its existence. All that is clear from the evidence is that some degree of vote polarization exists, but not in alarming quantities. Exact levels are unknowable. Unfortunately, such a finding is not particularly useful, and tells us noth- ing about the racial percentages needed within a single-member district to "rectify" the problem. In addition, we also find a significant degree of crossover voting in Georgia and the Eleventh District, with white voters slightly more willing to vote for black candidates than black voters for white candi- dates. Rpt. of Dr. Katz, Table 2. The average per- centage of whites voting for black candidates ranged from 22% to 38%; the average percentage of blacks voting for white candidates ranged from 20%-23%. Black and black-preferred candidates in Georgia have achieved many electoral victories in local and state- wide elections and have received significant-occa- sionally overwhelming-support from both black and white voters within the Eleventh Congressional Dis- trict. As with our vote polarization findings above, our observations here are not overly useful on their own. However, the very lack of solid evidence of black vote cohesion or rampant bloc voting, i.e., vote polarization, contributes to our conclusion that the current Eleventh District was not an appropriate section 2 remedy. The second type of information we cull from the available evidence is geared towards determining the actual percentages needed to give black voters in a certain district an equal opportunity to elect their candidate of choice. At first glance it appears that ---------------------------------------- Page Break ---------------------------------------- 83a the 60.36 % black voting age population of the Elev- enth is excessive; the Second and Fifth Districts have 52.33 % and 57.4770 black voting age population, re- spectively. Both the Second and Fifth were suffi- ciently majority-black districts to satisfy DOJ, and so presumably the VRA. Statistically speaking, reconstituted election results from precincts within a certain district, actual prior election results from a certain district, and frequency distributions are the primary methods used to esti- mate the percentages needed to give black voters an equal opportunity to elect a candidate of their choice. Exact numbers are not available in this context, and the State did not make any inquiries during its re- districting efforts that might have informed its choice of what black voting population percentage was needed. As Ms. Meggers testified, the "traditional" 65% rule governed: as a rule of thumb, it was thought, 65% black total population was needed in a majority-black district, because approximately 5% + of blacks were not of voting age population, 570+ were unregistered even if of voting age, and some blacks could be expected to not vote, regardless of status. Thus, the black voting strength was "really" slightly over 50%. We will not base a determination of narrow tailoring-a finding of constitutional mag- nitude-on such a broad generalization. That said, the expert testimony is extremely sparse on the numbers needed in the Eleventh to ensure equal opportunities for minorities. First the experts examine actual results from the 1992 election in the Eleventh Congressional District. Black candidates were supported in several stages of the election to varying degrees, but the results of a single election ---------------------------------------- Page Break ---------------------------------------- 84a provide little basis for sound generalizations. We note that in the 1992 Democratic primary, black can- didates in the Eleventh District received approxi- mately 55% of the white vote, signifying to us a general willingness of white voters to vote for black candidates. Cynthia McKinney (who is black), re- ceiving 56% of the vote, won in the runoff election against George DeLoach (who is white). Rep. Mc- Kinney received 23% of the white vote in the run- off. Dr. Lichtman presented reconstituted election analy- ses involving two elections: the 1988 Democratic presidential primary, and the 1990 Democratic gub- ernatorial runoff. See Rpt. of Dr. Lichtman at 36. When the results in these two elections are "recom- piled" for the present Eleventh Congressional Dis- trict, black candidate Andrew Young would have pre- vailed in the gubernatorial runoff by a margin of 5870 to 42%, and black candidate Jesse Jackson would have prevailed in the presidential primary by a margin of 68.1% to 31.9%. See id. at 37; Rpt. of Dr. Weber & Supp., Attach. F. Dr. Weber's ex- tended reconstituted election analyses indicate that the black candidate (s) of choice have received a total of 65.7% of the vote in ten elections held entirely within the precincts of the current Eleventh Con- gressional District. Dr. Joseph Katz presented the final evidence on the percentages necessary to grant black voters equal electoral opportunities. This evidence is actually the most useful to us; the State seems to have retained Dr. Katz for the unusual purpose of undermining the testimony of both Intervener United States' expert Dr. Lichtman and Plaintiffs' expert, Dr. Weber. He was largely successful. Dr. Katz questioned the as- ---------------------------------------- Page Break ---------------------------------------- 85a sumptions made by Drs. Weber and Litchman, and his efforts were intended to show that while the current plan did give minorities a "reasonable" opportunity to elect their candidates of choice, the plan was not compelled by the VRA. See Tr. V, at 73; State Def. Prop, Concl. at "par", 108-13. Dr. Katz offered several frequency distributions plotting prior election results to determine the probability of a black candidate win- ning a future election given a certain percentage of registered black voters. Though the analysis is sound and relatively straightforward, its value is diminished by the use of databases from state-wide elections rather than from specific areas within the state; it cannot account for varying voting patterns in the spe- cific regions pertinent to this case. The analysis also measures only the probability of a black candidate winning, not of a black-preferred candidate winning. Since only black candidates' success is plotted, using the distribution as a predictor requires the unsub- stantiated assumption that a black candidate will al- ways be the candidate of choice of black voters in future elections, and ignores the historical preferences of black voters in all-white elections. Finally, the value of the analysis is lessened by the use of registered black population rather than voting age black population as its independent variable. Voting age population- those persons eligible to vote -is the proper measure of whether black voters have an equal opportunity to elect candidates of their choice, not registered population, which is only that segment of the population that actually decides to participate. See Growe v. Emison, 113 S. Ct. 1075, 1083 n.4; Marylanders for Fair Representation v. Schaefer, 849 F. Supp. 1022, 1051 (D. Md. 1994) (citing cases). The VRA guarantees "the right to ---------------------------------------- Page Break ---------------------------------------- 86a have free and equal access to the ballot box and to have the vote that is cast count the same as any other person's," but the Act "does not endow the voter with the right to have his or her vote cast for the winner." Smith v. Brunswick County, 984 F.2d 1393, 1398 (4th Cir. 1993). Accounting for lower voter registra- tion and turnout rates among black citizens when determining what constitutes an "equal opportunity to participate in the electoral process," Gingles, 478 U.S. at 44, and creating "safe black districts" to compensate for those rates amounts to an incentive for and institutionalization of black voter apathy. That we will not condone. As the Supreme Court has recently said, "minority voters are not immune from the obligation to pull, haul, and trade," De Grandy, 114 S. Ct. at 2661, and, this Court adds, "the obliga- tion to register and vote." We are troubled, there- fore, by analyses founded on black voter registration rather than black voting age population. Even considering these shortcomings, Dr. Katz's frequency distributions are the most useful and credi- ble guide to estimating the black population percent- ages needed in the Eleventh Congressional District. Defendants and Intervenors seem to agree that the frequency distributions are the only real basis in evidence for estimating the percentages required, and their proposed conclusions of law on the narrow tailoring issue implicitly or explicitly refer to this data. The data indicates that a black candidate in Georgia would have an "equal" chance of being elected in a district containing 45-5070 black regis- tered voters. See Rpt. of Dr. Katz, at Tab 5 (all charts). Georgia's Eleventh Congressional District has a black registered voter percentage of 5770, Def. Joint Exh. 21, providing a black candidate a roughly 73% probability of winning an election in that dis- ---------------------------------------- Page Break ---------------------------------------- 87a trict. See id. An assessment of black voting age pop- ulation would presumably yield an even higher prob- ability. Defendants' tacitly acknowledge that this is more than an "equal" chance of election, but they propose that it nonetheless presents a "reasonable" opportunity for blacks to elect a candidate of their choice. We are only concerned with the former as- sessment: the probability afforded by the current Eleventh District represents more than an "equal" opportunity, and is in excess of that required by sec- tion 2 of the VRA. The record fails to demonstrate compactness, chronic bloc voting, or reasonably necessary black voter percentages in the Eleventh Congressional Dis- trict. Since the district does not satisfy the Gingles preconditions, we do not review the "totality of the circumstances. " The Eleventh District is not nar- rowly tailored to comply with the putatively compel- ling interest of section 2 compliance. In sum, the current districting plan is not reason- ably necessary to comply with sections 2 or 5 of the VRA. Since no compelling state interest other than VRA compliance is evident, the plan fails strict scru- tiny under the Fourteenth Amendment. We finally conclude and declare that Georgia's Eleventh Con- gressional District is unconstitutional in its current composition. The State of Georgia is hereby barred from using it in future congressional elections. III. RELIEF Elected governments are obviously entrusted with enormous responsibilities, and when confronted with fundamental issues of race and democracy, they are obliged to govern with insight and care. Our pro- longed mediations on compactness scores and fre- ---------------------------------------- Page Break ---------------------------------------- 88a quency distributions threaten to obscure the impor- tant point that "narrow tailoring to accommodate a compelling state interest" does not mean a wooden, mechanical application of one remedy while ignoring all alternatives. Single-member majority-black dis- tricts are not a constitutional or statutory require- ment. The assumption that the sole means of enhanc- ing blacks' political influence is to pack them into such districts is unimaginative. The time has come to contemplate more innovative means of ensuring minority representation in demo- cratic institutions. Otherwise, the United States face [s] a steady transmogrification into racially balk- anized voting units. The Court, however, will not lead the pursuit for answers, for we are in agreement with Justice Thomas that under our constitutional system, this Court is not a centralized politburo appointed for life to dictate to the provinces the "correct" theories of democratic representation, the "best" elec- toral systems for securing truly "representative" government, the "fairest" proportions of minor- it y political influence, or . . . the "proper" sizes for local governing bodies. Holder, 114 S. Ct. at 2602. Voting reform is the prov- ince of legislatures; Georgia's owes its citizens new solutions. No congressional elections will be held in the Elev- enth Congressional District until it is revised in keep- ing with our decision today. This is a permanent in- junction. The Court will initially reconfigure the dis- trict with the aid and assistance of the personnel and equipment of the State Reapportionment Services of- ---------------------------------------- Page Break ---------------------------------------- 89a fice. Such revision will surely affect the First and Tenth Congressional Districts, but there is little chance that the Court's order will affect other dis- tricts in Georgia. The original parties and the Abrams Interveners are invited to submit written, statistical, and graphic suggestions (not to exceed a total of 25 pages per party) to this Court, no later than September 26, 1994. The parties' submissions should be as narrowly conceived as possible to satisfy constitutional requirements, and cause minimal dis- ruption to the political process of the State of Geor- gia. A hearing on redistricting remedies will be held in Savannah at 9:00 a.m. on October 3, 1994. After this Court's order for relief as to the 1994 congres- sional elections, Georgia officials may wish to revisit the issue of reapportionment in the affected districts, or statewide. That decision rests with the State. CONCLUSION Accordingly, it is HEREBY ORDERED that con- gressional elections in Georgia's Eleventh Congres- sional District are ENJOINED until further order of this Court. It is further ORDERED that this Court reserves decision and jurisdiction to reconfigure the Eleventh Congressional District in a manner con- sistent with this opinion and after reviewing the par- ties' suggestions; this Court also reserves decision and jurisdiction to order the concomitant required modi- fications to the First and Tenth Districts as the need arises. As an accommodation to the parties and their at- torneys, a copy of this opinion shall be lodged with the Clerk of the Eleventh Circuit Court of Appeals simultaneously with its filing in the District. ---------------------------------------- Page Break ---------------------------------------- 90a Entered at Augusta, this 12th day of September, 1994. /s/ Dudley H. Bowen, Jr. DUDLEY H. BOWEN, JR. United States District Judge for himself and for B. AVANT EDENFIELD Chief Judge United States District Court Southern District of Georgia ---------------------------------------- Page Break ---------------------------------------- 91a Edmondson, Circuit Judge, disserting: At the outset, I cheerfully admit that my col- leagues may well be right about what is the correct result in this case. In such circumstances, I (despite my disagreement) usually write nothing in dissent. But, given the exceptional importance of this case to the people of Georgia and to the law of the United States, I feel obliged to explain briefly and generally my view. Reapportionment of a state's congressional districts is fundamentally the domain of the states rather than the federal courts. Growe v. Emison, 113 S. Ct. 1075, 1080 (1993) ; Connor v. Finch, 97 S. Ct. 1828, 1833 (1977) ; Reynolds v. Sims, 84 S. Ct. 1367, 1394 (1964). The Constitution leaves the responsibility for apportioning congressional districts with the states. Id: Voinovich v. Quiltner, 113 S. Ct. 1149, 1157 (1993 ). And, state political considerations per- vade the apportionment process making it a "highly complex and multifaceted . . . political thicket." Rey- nolds, 84 S. Ct. at 1385. For example, considerations of incumbency, local politics, and the balance of power between Democrats and Republicans in the state legislature, as well as innumerable other con- siderations (such as, the simple exchange of votes by legislators to advance each other's goals), control the placement of a state's congressional districts. All legislative action is a product of debate, compromise, and political decisions. The evidence-such as the Lieutenant Governor's testimony-in this case shows that apportionment legislation takes this process to an especially intense level. Largely because of the uniquely political, sensitive, and complex nature of apportionment, a federal courts ---------------------------------------- Page Break ---------------------------------------- 92a hearing a challenge to a state's apportionment plan must give federalism concerns especially significant consideration. The Supreme Court has repeatedly stressed that "[f]ederal courts are barred from in- tervening in state apportionment in the absence of a violation of federal law precisely because it is the domain of the states, and not the federal courts, to conduct apportionment in the first place." Voinovich, 113 S.Ct. at 1157. Federal courts are bound to re- spect a state's apportionment decisions unless the choices have clearly violated constitutional or federal law requirements. Id.1 ___________________(footnotes) 1 Plaintiffs in this case attempt to minimize federalism con- cerns by suggesting that the federal government, acting through the Department of Justice, forced the State of Georgia, that is, the State's elected leaders, to enact the present con- gressional districting plan. Because Georgia is subject to the preclearance requirements of section 5 of the Voting Rights Act, the Department of Justice does play a role in the enact- ment of any State plan. The State, however, always has the option of seeking relief in federal court from the Depart- ment's objections. State leaders bear the responsibility for weighing the advantages and disadvantages of litigation as part of their responsibility for reapportionment generally. But, that the courts are open to Georgia undercuts substan- tially the idea that the Department of Justice can, in fact, dictate to Georgia. (I note, by the way, that Georgia's Senate had included parts of Savannah-the most controversial ele- ment of the Eleventh District-in the Eleventh District be- fore the Department of Justice mentioned such a thing. ) In addition, no plan may be enacted unless it is first adopted by Georgia's legislature. The Department's objection to the State's first two plans affected Georgia's ultimate plan. But in the end, the plan before us represents the judgment of Georgia's elected leaders (the main guardians of the public interest for Georgia) on congressional apportionment. And, as the Supreme Court has stated, the State's judgment de- mands the respect of the federal courts. ---------------------------------------- Page Break ---------------------------------------- 93a With these federalism concerns in mind, I look at Shaw v. Reno, 113 S. Ct. 2816 (1993), the prece- dent that allows, but also limits in important ways, federal judicial action in apportionment cases. Be- cause Congressional apportionment has always been seen as a state matter, only two circumstances his- torically would allow a federal court to use the Equal Protection Clause as a basis to intervene in the ap- portionment process: (1) the state's apportionment plan violated one-person, one-vote principles by cre- ating districts with substantially unequal popula- tions, Reynolds v. Sims, 84 S, Ct. 1367 (1964); (2) the state's apportionment plan had the purpose and effect of diluting the voting strength of a minority or other identified group of voters, Wright v. Rocke- feller, 84 S. Ct. 603 (1964). Neither of these circum- stances is present in this case. Therefore, if we are to interfere with Georgia's Congressional plan, from where does our authority come? Shaw points to the possible source. Shaw held that a congressional district that is "so highly ir- regular on its face that it can be viewed only as an effort to segregate the races for purposes of voting" may be examined by federal courts and, then, be struck down unless the district can survive "strict scrutiny" under the Equal Protection Clause. Shaw, 113 S. Ct. at 2828. Highly irregular shape-the ap- pearance of the district-is the critical element of this new cause of action under the Equal Protection Clause. This element strongly limits the power of federal courts to become entangled in state apportion- ment matters. Plaintiffs in this case want us not just to follow Shaw, but to extend Shaw to make federal court intrusion in apportionment cases easier and more --------------------------------------- Page Break ---------------------------------------- 94a likely. But, there are important differences between following a precedent and extending it. Because extension of Shaw as plaintiffs advocate would di- minish in important ways the traditional freedom of states to apportion themselves for Congressional pur- poses without federal judicial supervision, I decline to take that step without plain instruction from the nation's highest court. Plaintiffs argue that the fundamental inquiry is whether the district has been set up on racial grounds. The burden, they admit, is on them to show that legislators intentionally drew lines to segregate voters according to race. Plaintiffs claim, however, that any evidence probative of the state's decision- making process may be used to prove legislative in- tent. Under this more active approach, the district's appearance is of little importance; shape is merely one piece of circumstantial evidence proving the leg- islature's intentional use of race. Other evidence, especially direct testimony from legislators about their motivations, could be used by plaintiffs to prove intent. 2 According to plaintiffs, once they, by any ___________________(footnotes) 2 During the trial, several State legislators testified about why the Eleventh looks like it does. I accept that each of these men spoke the truth as they know it. But, the main truth (with which I think all agreed) is that, in a democracy, apportionment is a highly political process. Many different agendas may be at work. So, no one person can truly say why other legislators decided to vote this way or that way. I cannot give much weight to post-enactment statements of individual legislators about the subjective motives of the State house, State senate and governor when the apportion- ment plan was enacted. See generally Edwards v. Aguillard, 107 S. Ct. 2573, 2584 n.19 (1987) (finding post-enactment statements "to be of little relevance in determining the in- tent of the legislature"); Blanchette v. Connecticut General Insurance Corps., 95 S.Ct. 335, 353 (1974) (holding that ---------------------------------------- Page Break ---------------------------------------- 95a means, have shown that race was a substantial factor in the legislature's decisionmaking process, the bur- den is on the state to show that the district satisfies strict scrutiny. I cannot agree with this more sweep- ing approach to federal judicial review. The words "on its face" in Shaw were not used lightly, I be- lieve.' The district's shape is no mere piece of evi- dence; it is a critical part of the cause of action. ___________________(footnotes) statements by individual legislators "represent only the per- sonal views of those legislators" and not the intent of the legislature); National Woodworkers' Mfrs. Ass'n. v. N.L.R.B., 87 S. Ct. 1250, 1265 n.34 (1967) (holding that statements made by legislators after a bill was passed "could represent only the personal views of those legislators"). Shaw's highly-irregular-appearance standard is an objec- tive standard, and it, among other things, avoids the unre- liability of after-the-fact statements by legislators and also avoids the necessity of federal judges probing and intruding on state officers' thoughts (perhaps expressly crediting some state officers and not crediting others-a divisive event) to "learn" the state's true intent. 3 No fewer than six times the Shaw Court repeats that a district may be challenged on the grounds that it is "bizarre," "highly irregular" or "irrational on its face." Id. at 2824, 25, 26, 29, 32. That the Court presented the issue in this manner cannot be ignored. To hold that the proper inquiry is simply whether race was a "substantial factor" ignores the plain language of the opinion. Instead, to follow Shaw, a court must ask whether the district is so bizarre on its face that only racial considerations could account for its shape. And, I consider the Court's discussion of United Jewish Organizations of Williamsburg, Inc. v. Carey, 97 S. Ct. 996 (1977) (UJO), enlightening. In UJO, the Court upheld a state's districting scheme despite evidence that the lines were drawn on the basis of race. According to Shaw, the plain- tiffs in UJO failed to state a valid claim because they "did not allege that the plan, on its face, was so highly irregular that it could be understood only as an effort to segregate ---------------------------------------- Page Break ---------------------------------------- 96a In turning to the facts of this case, we must ask first whether the plaintiffs have carried their burden of showing that the Eleventh District is so "bizarre" or "highly irregular" in shape that it can only be explained by race. In determining whether a district is bizarre, the court may consider many factors, in- cluding the district's size, outline, allegiance to tra- ditional districting principles such as compactness and respect for political subdivisions, and how it appears in comparison to other districts in the State's plan, earlier plans, or even districts from other states. Based on objective criteria, I cannot find and cannot conclude that plaintiffs have proved the Elev- enth District is bizarre or highly irregular within the meaning of Shaw. 1. The size of the district is not particularly note- worthy. Georgia's Districts One, Two, and Eight each have a total area of over 10,100 square miles. In contrast, the Eleventh District has an area of 6,780 square miles. 2. The district's 1,184 miles of borders is not dis- tinctive when compared to the Second (1243 miles) or the Eighth (1155 miles) Districts. 3. Plaintiffs claim that the district is bizarre be- cause it comes within 58 miles of crossing the entire State. But, the Ninth District spans the entire northern border of the State and the First, Second, and Eighth Districts begin at the Florida border and stretch north to almost the middle of the State. 4. The Eleventh District shows considerable re- spect for existing political boundaries. That seventy- one percent of the district's boundaries follow exist- ing state, county, and city borders is significant. This ___________________(footnotes) voters by race." Shaw, 113 S. Ct. at 2829. Again, appearances count a lot: Is the district highly irregular in its shape? ---------------------------------------- Page Break ---------------------------------------- 97a places the Eleventh at the average for the State's ten other congressional districts. 5. In addition, eighty-three percent of the Elev- enth's area comes from whole counties. In compari- son, the average among the State's other districts is sixty-two and one-half percent. 6. Georgia's congressional districts have no tradi- tion of being neat, geometric shapes. And, areas of the Second and Eighth Districts in Bibb and Houston Counties look-as irregular or-much more irregu- lar. The same may be said of the Third District in Crawford County. To be sure, the Eleventh makes curious turns in some areas, particularly the areas around Atlanta, Savannah, and Augusta. But, in these areas most of the lines follow existing city boundaries or major highways and roads. The Elev- enth District makes use of what some have called "landbridges" to connect populations to the district, but it is not unique in that respect: for example, see the current Seventh District's inclusion of Marietta and the 1970's Seventh District's inclusion of an area in or around Dalton.4 A comparison of-including, just looking at- Georgia's Eleventh District to the district in Shaw or to districts being successfully ___________________(footnotes) 4 About population, I do not say that population distribution within a district counts for nothing when courts look at the district's appearance for Shaw purposes, but I am unsure that the "on its face" rule includes population within the district. In any event, population density normally varies considerably across most districts, except completely urban districts. I expect that many districts (including, for ex- ample, Georgia's Ninth District which is, by the way, mostly white) would look funny if geography were somehow dis- torted-parts blown-up or shrunk-to reflect population density. ---------------------------------------- Page Break ---------------------------------------- 98a challenged in other states supports the conclusion that the Eleventh District is not highly irregular or, put differently, bizarre. 5 7. That the Eleventh District splits eight counties is unremarkable. The Sixth District has no whole counties but parts of five counties. And, the Fourth District has one whole county and parts of two others. Splitting counties in Georgia's congressional districts for reasons wholly unrelated to race is part of Geor- gia's history: for example, Whitfield in 1970 and Gwinnett in 1980. 8. Qualitative measurements for compactness, such as perimeter and dispersion measurements, show the Eleventh District is not bizarre or highly irregular. ___________________(footnotes) 5 In thinking about the degree of irregularity in the shape of the current Eleventh District I have also looked at some proposals for apportionment that were never adopted. Many groups submitted proposals for reapportionment on the basis of one person, one vote. One plan was (and is) known as the "Max-Black" plan or the "Max Plan". The proposal was drawn with one idea in mind: to maximize black representa- tion in Congress and as a corollary to boost black voting power in certain districts in Georgia. The plan shows what the Eleventh District would look like if it was wholly based on race. The Max-Black plan did influence to some degree the shape of the ultimate Eleventh District, a majority black district. But, it seems important to me that the actual Elev- enth is not identical to the Max-Black plan. The Eleventh, to my eye, is significantly different in shape in many ways. These differences show, as I understand it, consideration of other matters beyond race, including traditional districting factors (such as keeping political subdivisions intact) and the usual political process of compromise and trades for a variety of nonracial reasons. In the light of Shaw, the Max- Black proposal for what became the Eleventh District would likely have been bizarre in shape, but the actual Eleventh District is much more regular. See Appendix A. ---------------------------------------- Page Break ---------------------------------------- 99a One measurement, called dispersion scoring, com- pares the area of the district to the area of the small- est circle that would enclose the district. And, perim- eter scoring compares the area of the district to the area of a circle with the same perimeter. While I express no view as to the reliability of these measure- ments, political scientists, according to plaintiffs' ex- perts, use the measurements to evaluate a district's compactness. According to perimeter scoring, the Eleventh is more compact than approximately forty-six other congressional district in the county. Under disper- sion measurements, the Eleventh is more compact than about twenty-nine other districts. And, under these measurements, the Eleventh is more compact than the North Carolina District challenged in Shaw, the Texas and Louisiana Districts recently held un- constitutional in the Fifth Circuit, and the Florida District under challenge in the Eleventh Circuit. Again, these measurements, by themselves, are not outcome determinative; nonetheless, they confirm the view that Georgia's Eleventh District is not highly irregular.'] In concluding, I will not be coy: no party in this case disputes that race was an important considera- tion in the drawing of the Eleventh District. But, as I understand the law as explained by the Supreme Court, the Constitution does not condemn all race- conscious districting. For Shaw, appearance is the first and the main issue. Highly irregular appear- ___________________(footnotes) 6 One of plaintiffs' expert witnesses testified that under these measurements, as well as population compactness meas- urements, the Eleventh District scored above traditional cut- offs for compactness. ---------------------------------------- Page Break ---------------------------------------- 100a ante must be shown, or federal judges have no right to look further or to inquire more. Federal courts must be on guard against tempta- tion to venture into the realm of political science. And not every district that some expert or some fed- eral judge could draw "better," that is, more regu- larly or more compactly, is "highly irregular" within the meaning of Shaw. whatever I may personally think about the wisdom of the Eleventh's boundaries or of the policy choices that led to them, the Eleventh District is not so bizarre on its face to justify, pur- suant to the Constitution, a more searching inquiry. Thus, plaintiffs have failed to prove a valid Shaw claim. In the absence of such a showing, this court -as I understand the law-cannot rightly interfere with the reapportionment plan that resulted from Georgia's political process. I would render a judgment for defendants. ---------------------------------------- Page Break ---------------------------------------- 101a "Max Plan" ---------------------------------------- Page Break ---------------------------------------- 102a Current 11th District ---------------------------------------- Page Break ---------------------------------------- l03a APPENDIX B [Filed July 26, 1994] STATEMENT OF JUDICIAL NOTICE Evidence of former discriminatory practices against black people in the State of Georgia need not be pre- sented for purposes of this case, Racial discrimination has been an unfortunate reality in the state's history. No one can deny that state and local governments of Georgia in the past utilized widespread, pervasive practices to segregate the races which had the effect of repressing black citizens, individually and as a group. In the past in Georgia, like in so many other states of the Union, racial segregation was government pol- icy and a way of life. By law, public schools and pub- lic housing were segregated according to race. Public recreational facilities were segregated. Miscegenation was prohibited. Ordinances required segregation in public transportation, restaurants, hotels, restrooms, theaters, and other such facilities, even drinking fountains. More indirectly, the government often treated black citizens differently from white citizens. Public serv- ices were allocated along racial lines. To find roads in white neighborhoods paved but roads in black neigh- borhoods unpaved was common. In public employ- ment, black workers were often paid less than white workers for the same job. In addition, methods of jury selection were developed to exclude black people from jury service. Georgia's history on voting rights includes discrimi- nation against black citizens. From the state's first Constitution-which barred blacks from voting alto- ---------------------------------------- Page Break ---------------------------------------- 104a gether-through recent times, the state has employed various means of destroying or diluting black voting strength. For example, literacy tests (enacted as late as 1958) and property requirements were early means of excluding large numbers of blacks from the voting process. Also, white primaries unconstitutionally pre- vented blacks from voting in primary elections at the state and county level. Even after black citizens were provided access to voting, the state used various means to minimize their voting power. For example, until 1962 the county unit system was used to undermine the voting strength of counties with large black populations. Congressional districts have been drawn in the past to discriminate against black citizens by minimizing their voting potential. State plans discriminated by packing an excessive number of black citizens into a single dis- trict or splitting large and contiguous groups of black citizens between multiple districts. Never do we imply that a history of invidious racial discrimination is unique to Georgia. Our judicial notice is confined to Georgia because this ease is about Georgia, and Georgia is a covered jurisdiction under the Voting Rights Act. Our notice is intended to set out the historical facts, not to insult a state or people who have made great and difficult strides towards equality during the last thirty years and who could be mentioned for many good, kind, and brave things unrelated to this case. ---------------------------------------- Page Break ---------------------------------------- 105a APPENDIX C [Filed Sep. 20, 1994] IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION No. CV 194-008 DAVIDA JOHNSON, ET AL., PLAINTIFFS v. ZELL MILLER, ET AL., DEFENDANTS and UNITED STATES OF AMERICA, DEFENDANT-INTERVENOR and LUCIOUS ABRAMS, JR., ET AL., DEFENDANT-lNTERVENORS UNITED STATES' NOTICE OF APPEAL The United States hereby gives notice that it will appeal to the United States Supreme Court this Court's September 12, 1994, order granting injunctive relief. ---------------------------------------- Page Break ---------------------------------------- 106a Respectfully submitted, HARRY D. DIXON, JR. DEVAL L. PATRICK United States Attorney Assistant Attorney General /s/ Daniel H. Claman JOHN K. TANNER DONNA M. MURPHY JUDYBETH GREENE DANIEL H. CLAMAN Attorneys, Voting Section Civil Rights Division Department of Justice P. O. Box 66128 Washington, D.C. 20035 202/514-6340 ---------------------------------------- Page Break ---------------------------------------- 107a APPENDIX D [Filed Sep. 22, 1994] IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION No. CV 194-008 DAVIDA JOHNSON, ET AL., PLAINTIFFS v. ZELL MILLER, ET AL., DEFENDANTS and UNITED STATES OF AMERICA, DEFENDANT-INTERVENOR and LUCIOUS ABRAMS, JR., ET AL., DEFENDANT-INTERVENERS UNITED STATES' AMENDED NOTICE OF APPEAL Pursuant to 28 U.S.C. 1253, the United States hereby appeals to the Supreme Court of the United States this Court's September 12, 1994, order grant- ing declaratory and injunctive relief. ---------------------------------------- Page Break ---------------------------------------- 108a respectfully submitted, HARRY D. DIXON, JR. DEVAL L. PATRICK United States Attorney Assistant Attorney General /s/ Daniel H. Claman JOHN K. TANNER DONNA M. MURPHY JUDYBETH GREENE DANIEL H. CLAMAN Attorneys, Voting Section Civil Rights Division Department of Justice P. O. BOX 66128 Washington, D.C. 20035 202/514-6340 * U. S. GOVERNMENT PRINTING OFFICE 1994 387147 20006 ---------------------------------------- Page Break ---------------------------------------- No. 94-929 In the Supreme Court of the United States OCTOBER TERM, 1994 UNITED STATES OF AMERICA, APPELLANT V. DAVIDA JOHNSON, ET AL. ZELL MILLER, ET AL., APPELLANTS V. DAVIDA JOHNSON, ET AL. LUCIOUS ABRAMS, JR., ET AL., APPELLANTS V. DAVIDA JOHNSON, ET AL. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA BRIEF FOR THE UNITED STATES DREW S. DAYS, III Solicitor General DEVAL L. PATRICK Assistant Attorney General PAUL BENDER Deputy Solicitor General JAMES A. FELDMAN Assistant to the Solicitor General STEVEN H. ROSENBAUM MIRIAM R. EISENSTEIN Attorneys Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED 1. Whether a districting plan is always subject to strict scrutiny if race has been a substantial or motivating factor in its creation. 2. Whether the boundaries of Georgia's Eleventh Con- gressional `District' are so bizarre on their face that they can be understood only as an effort to segregate voters into separate districts because of their race. 3. Whether the State's creation of District Eleven is narrowly tailored to further a compelling interest. (I) ---------------------------------------- Page Break ---------------------------------------- II PARTIES TO THE PROCEEDING In addition to the. parties named in the caption, the plaintiffs below were Pam Burke, Henry Zittrouer, George L. DeLoach, and George Seaton. The defendants below were Zell Miller, Governor of Georgia, Pierre Howard, Lieutenant Governor of Georgia, Thomas Murphy, Speaker of the House of Representatives d Georgia, and Max Cleland, Secretary of the State of Georgia. Intervenor- defendants were Lucious Abrarns, Jr., Rev. G.L. Avery, William Gary Chambers, Sr., and Karen Watson. --------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinion below . . . . 1 Jurisdiction . . . .2 Constitutional and statutory provisions involved . . . . 2 Statement . . . .2 Summary of argument . . . . . 13 Argument: I. Georgia's redistricting plan is not subject to strict scrutiny . . . . 16 A. An inquiry into legislative intent alone can not determine whether a redistricting plan is subject to strict scrutiny . . . . 16 B. Georgia's Eleventh District is not so highly irregular on its face that it can be under- stood only as an effort to segregate the races for purposes of voting . . . . 23 II. The Eleventh district satisfies strict scrutiny . . . . 28 A. The State had a compelling interest in draw- ing the Eleventh District as a majority- district . . . . 28 B. The State's plan is narrowly tailored to fur- ther its compelling interests . . . . 40 Conclusion . . . . 43 Appendix . . . . 1a TABLE OF AUTHORITIES Cases: Beer v. United States, 425 U.S. 130 (1976) . . . . 29 Bread Political Action Comm. v. Federal Election Comm'n, 455 U.S. 57 (1982) . . . . 22 Brooks v. State Bd. of Elections, 848 F. Supp. 1548 (S.D. Ga. 1994) . . . . 39 Busbee v. Smith, 549 F. Supp. 494 (D.D.C. 1982), aff'd, 459 U.S. 1166 (1983) . . . . 3, 4, 29, 31 (III) ---------------------------------------- Page Break ---------------------------------------- Iv Cases-Continued: Page Chrysler Corp. v. Brown, 441 U.S. 281 (1979 ).... 22 City of Pleasant Grove V. United States, 479 U.S. 462 (1987) . . . . 29 City of Port Arthur v. United States, 459 U.S. 159 (1982) . . . . 29 City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) . . . . 29, 39 City of Richmond v. United States, 422 U.S. 358 (1975) . . . . 29 Collins V. City of Norfolk, 883 F.2d 1232 (4th Cir. 1989), cert. denied, 498 U.S. 938 (1990) . . . . 37 Consumer Prod. Safety Comm'n v. GTE Sylvania, 447 U.S. 102 (1980) . . . . 22 Hays V. Louisiana, 839 F. Supp. 1188 ( W.D. La. 1998), vacated and remanded, 114 S. Ct. 2731 (1994) . . . . 9, 41 Jeffers V. Clinton, 756 F. Supp. 1195 (E.D. Ark. 1990), aff'd mem., 498 U.S. 1019 (1991) . . . . 42 Johnson V. DeGrandy, 114 S. Ct. 2647 (1994) . . . . .36-37, 40 Johnson v. Transportation Agency, 480 U.S. 616 (1987) . . . . 29 Ketchum V. Byrne, 740 F.2d 1398 (7th Cir. 1984), cert. denied, 471 U.S. 1135 (1985) . . . . 42 McGinnis v. Royster, 410 U.S. 263 (1973) . . . . 21 Palmer v. Thompson, 403 U.S. 217 (1971) . . . . 21 Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633 (1990) . . . . 22 Presley v. Etowah County Comm'n, 112 S. Ct. 820 (1992) . . . . 30 Public Employees Retirement System of Ohio v. Betts, 492 U.S. 158 (1989) . . . . 22 Regents of the Univ. of Calif. v. Bakke, 438 U.S. 265 (1978) . . . . 30 Rogers V. Lodge, 458 U.S. 613 (1982) . . . . 83 Slaw V. Hunt, 861 F. Supp. 408 (E.D.N.C. 1994) 30,37 Shaw V. Reno, 113 S. Ct. 2816 (1993) . . . . 2, 8, 13, 15, 19, 23,24,27 Thornburg v. Gingles, 478 U.S. 30 (1986) .. . . 11, 36, 37, 41 United Jewish Organizations of Williamsburg, Inc. v. Carey, 430 U.S. 144 (1977) . . . . 17, 39 ---------------------------------------- Page Break ---------------------------------------- v Cases-Continued: Page United States v. Dallas County Commission, 739 F.2d 1529 (llth Cir. 1984) . . . . 42 United States v. Marengo County Commission, 731 F.2d 1546 (llth Cir.), appeal dism. and cert. denied, 469 U.S. 976 (1984) . . . . 42 United States v. Paradise, 480 U.S. 149 (1987 ) .. 40 Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 262 (1977 ) . . . . 2l, 32, 33 Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986 ) . . . . 29, 42 Constitution, statutes, regulations and rule: U.S. Const.: Amend. XIV (Equal Protection Clause) . . . . 2, 16, 17. 19,20,30 Amend. XV . . . . 20 Voting Rights Act, 42 U.S.C. 1973 et seq.: 2,42 U.S.C. 1973 . . . . 2, 10, 11, 12, 14, 15, 21, 28, 36, 38 5,42 U.S.C. 1973c . . . .passim 28 C.F.R. : Section 51.5 . . . . 4 Section 51.29 . . . . 34 Section 51.29 (c) . . . . 34 Section 51.29 (d) . . . . 35 Section 51.30 (a) . . . . 34 Sections 51.57 et seq. . . . 35 Section 51.59 . . . . 11 Sup. Ct. R. 18.1 . . . . 2 Miscellaneous: Dunne, Redistricting in the 1990s: The New York Example, 14 Cardozo L. Rev. 1127 (1993 ).. 35-36 52 Fed. Reg. 490 (1987) . . . . 11 Grofman, Would Vince Lombardi Have Been Right If He Had Said: "When It Comes To Redistricting, Race Isn't Everything, It's The Only Thing"?, 14 Cardozo L. Rev. 1237 (1993). . . . 36 S. Rep. No. 417, 97th Cong., 2d Sess. (1982) . . . . 41 ---------------------------------------- Page Break ---------------------------------------- VI Miscellaneous-Continued: Page James P. Turner, "Case-Specific Implementation of the Voting Rights Act," in Bernard Grofman & Chandler Davidson eds., Controversies in Minority Voting (The Brookings Institution, Washington, D.C. 1992) . . . . 35 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1994 No. 94-929 UNITED STATES OF AMERICA, APPELLANT v. DAVIDA JOHNSON, ET AL. No. 94-631 ZELL MILLER, ET AL., APPELLANTS v. DAVIDA JOHNSON, ET AL. No. 94-797 LUCIOUS ABRAMS, JR., ET AL., APPELLANTS v. DAVIDA JOHNSON, ET AL. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA BRIEF FOR THE UNITED STATES OPINION BELOW The opinion of the three-judge district court (J.S. App. la-102a) 1 is reported at 864 F, Supp. 1354. ___________________(footnotes) 1 "J.S. App." refers to the appendix to the United States' Juris- dictional Statement. (1) ---------------------------------------- Page Break ---------------------------------------- 2 JURISDICTION The judgment of the three-judge court was entered on September 12, 1994. The United States filed a notice of appeal on September 20, 1994 (J.S. App. 105a-106a), and an amended notice of appeal on September 22, 1994 (J.S. App. 107a- 108a). 2 The jurisdiction of this Court rests on 28 U.S.C. 1253. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Equal Protection Clause of the Fourteenth Amend- ment provides that "[N]o State shall * * * deny to any person within its jurisdiction the equal protection of the laws." Sections 2 and 5 of the Voting Rights Act, 42 U.S.C. 1973, 1973c, are reproduced at App., infra, la- 3a. STATEMENT This case concerns a constitutional challenge to the configuration of the Eleventh District in Georgia's 1992 congressional redistricting plan. A three-judge district court held that the Eleventh District violates the Four- teenth Amendment under standards set forth in Shaw v. Reno, 113 S. Ct. 2816 ( 1993). The United States, three of the four defendant state officials, and the private defendant-intervenors ( Abrams defendants ) have appealed from that judgment. 1. The population of the State of Georgia is approxi- mately 27% African-American. J.S. App. 68a. Georgia has an extensive history of discrimination in voting. The district court took judicial notice of the fact that, "[f]rom the state's first Constitution-which barred blacks from voting altogether-through recent times, the state has I ___________________(footnotes) 2 The first notice of appeal did not specify the statute under which the appeal was taken. See SUP. Ct. R. 18.1. The amended notice of appeal specified that the appeal was being taken pursuant to i 28 U.S.C. 1253. ---------------------------------------- Page Break ---------------------------------------- 3 employed various means of destroying or diluting black voting strength ." Id. at 103a-104a. Those means, which the court found had been enacted into law as late as 1958, included literacy tests, property requirements, white-only primaries, and the county unit system. The court specifically y noted that "[congressional districts have been drawn in the past to discriminate against black citi- zens by minimizing their voting potential." Id. at 104a. That was accomplished by "packing an excessive number of black citizens into a single district or splitting large and contiguous groups of black citizens between multiple dis- tricts." ibid. From Reconstruction until the 1980's, black voters were not in the majority in any of the State's congressional dis- tricts. Following the 1970 census, the Attorney General interposed a Section 5 objection to Georgia's congressional redistricting plan, which fragmented African-American population concentrations in the Atlanta area. Joint State- ment of Stipulated Facts 44-49. The State then adopted, and the Attorney General precleaned, a revised plan that remedied the fragmentation, but that did not have an African-American majority district. See Busbee v. Smith, 549 F. Supp. 494, 500 (D.D.C. 1982), affd, 459 U.S. 1166 (1983). Following the 1980 census, the State drew a redistricting plan that included me majority African-American district (the Fifth District ) in the Atlanta area (cut of a total of ten Georgia congressional districts), but that nonethe- less fragmented the African-American community in that area. The Attorney General again interposed a Section 5 objection, and the State sought preclearance from the United States District Court for the District of Columbia. The court denied preclearance on the ground that the plan had "a discriminatory purpose in violation of Sec- tion 5." 549 F. Supp. at 517. The court held that the plan "implemented a scheme designed to minimize black voting strength to the extent possible." Id. at 518. In ---------------------------------------- Page Break ---------------------------------------- 4 particular, the court noted that the State had applied its supposed districting principles selectively: The purported goals of maintaining `historical bord- ers,' preserving county and city lines and avoid- ing a Republican Fourth District were only pretexts for discrimination. Those goals were ignored when drawing the First, Third, Sixth, Seventh, Eighth, Ninth and Tenth Districts. * * * The goal of uniting a cohesive voting bloc was followed in the white mountain district; it was abandoned in the black south Fulton and DeKalb area. Busbee, 549 F. Supp. at 515. The court also noted that the legislature had turned down a plan passed by the State Senate that provided for a district that did not split the black community of Atlanta, Id. at 504-512. Although the Fifth District had a bare African-American population majority, the court concluded that it nevertheless "was drawn to suppress black voting strength in Georgia." Id. at 515. The court ultimately precleaned a revised plan that remedied the fragmentation. Id. at 520. 2. Following the 1990 census, Georgia became entitled to 11 congressional seats, a gain of one seat since 1980. In a special session in 1991, the state legislature passed a redistricting plan that included two majority-minority districts: the Eleventh, in east-central Georgia, and the Fifth, in the Atlanta area. In addition, the plan included a district-the Second District, in the southwest part of the State-in which African-Americans comprised approx- imately 3570 of the voting age population. J.S. App. 12a-14a. See J.A. 98 (map). The State submitted the plan for preclearance under Section 5 of the Voting Rights Act. Acting on behalf of the Attorney General (see 28 C.F.R. 51.5), the Assis- tant Attorney General for Civil Rights interposed an objection. The Attorney General's objection letter stated that there was "[a] concern * * * that the Georgia legis- lative leadership was predisposed to limit black voting ---------------------------------------- Page Break ---------------------------------------- 5 potential to two black majority districts." J.A. 105. The letter went on to note that the plan failed to "recognize the black voting potential of the large concentration of minorities in southwest Georgia" and that the legislature was aware of alternatives that would have recognized that potential. J.A. 105. The letter added that: Notwithstanding these alternatives, the state redis- tricting leadership did not make a good faith attempt to recognize the concentrations of black voters in the south west and has not yet been able to adequately explain the departure from its own stated criteria and what appears to be resulting minimization. J.A. 105-106. The letter also noted some other concerns with the plan, and concluded that the Attorney General could not "conclude * * * that the state's burden has been sustained in this instance with respect to the * * * plan[] under review." J.A. 106. The state Senate then passed a plan that contained three majority-minority districts, the Second, the Fifth, and the Eleventh. See J.A. 98 (map). The Senate plan made the Second District a majority-minority district by extending it into Macon, in the central part of the State. The plan made up for the resulting loss of minority pop- ulation in the Eleventh District by extending that district to Savannah. J.S. App. 16a. However, the House refused to pass that plan. The plan that the legislature then enacted contained two majority-minority districts (the Fifth and the Eleventh ), increased the black voting age population in the Second District to 45%, and made a few other modifications to the previous plan. Id. at 16a & n.9. The Attorney General again objected. The letter inter- posing the Section 5 objection stated that the concern "that the Georgia legislative leadership had been pre- disposed to limit black voting potential to two black ma- iority voting age population districts * * * continues." J. A. 124. The letter noted that the plan enacted by the state Senate was abandoned "due to unyielding efforts on behalf of House members," and "no legitimate reason ---------------------------------------- Page Break ---------------------------------------- 6 has been suggested to explain the exclusion of the second largest concentration of blacks in the state [in Savannah] from a majority black Congressional district." J.A. 124. The letter also noted that the Second District did not include "large black population concentrations" in three counties, and that "the expressed reluctance to split coun- ties * * * appears pretextual," in light of "[t]he state's willingness to split counties and cities in other areas of the state." J.A. 124-125. Because the State had "failed to explain adequately the choices made during this round of Congressional redistricting," J.A. 125, the letter con- cluded that an objection had to be interposed because the State had once again failed to sustain its burden under Section 5. J.A. 125. After this objection, the State (at the advice of a Senior Assistant Attorney General of the State, Mark Cohen ) decided not to seek preclearance for the revised plan in the District Court for the District of Columbia. Cohen subsequently testified that he believed at the time that such a suit would have been unsuccessful. That con- clusion, he said, was based on similarities between the cir- cumstances presented in 1992 and those underlying the unsuccessful Busbee suit a decade before. J.S. App. 20a n.11. The state legislature then enacted a new plan that had three majority-minority districts and was similar to the plan the state Senate had previously passed. See J.S. App. 21a & n.12. See also J.A. 98 (map). In enacting this plan, the State clearly intended to create three majority- minority districts. The undisputed evidence at trial, how- ever, showed that many other considerations also went into determining the boundaries of the Eleventh District. For example, in order to avoid dividing rural counties, while maintaining a majority of minority voters, it was necessary to create more irregular boundaries in urban areas. J.S. App. 43a n.26. The DeKalb County portion of the district was drawn to include a particular (largely white) precinct in the district to accommodate the desire of an incumbent state Senator regarding the placement ---------------------------------------- Page Break ---------------------------------------- 7 of the precinct in which his son lived. 2 Tr, 187, 202 (testimony of Linda Meggers). The boundaries of the extension of the district to Savannah through Effingham and Chatham Counties were determined by a number of factors. The corridor through Effingham County was substantially narrowed to respect the wishes of a state representative who wanted as much as possible of the County to remain in the First Congressional District. That narrowing required omission of black as well as white voters. 1 Tr. 106-108; 2 Tr. 189-190, 212-215 (testimony of Linda Meggers). In Chatham County, the district was narrowed to exclude a heavily African-American community in Garden City, a commun- ity just north of Savannah, because a state Representa- tive wanted the entire city kept intact. 2 Tr. 218-220 (testimony of Linda Meggers). The Savannah extension was also configured by "the narrowest means possible" because an incumbent state Representative wanted certain areas excluded. 4 Tr. 174 (testimony of Johnnie Dixon ). That configuration was adopted despite the fact that a much wider extension would have had little or no effect on the racial composition of the district. 4 Tr. 172- 173, 175-178, 181-183 (testimony of Johnnie Dixon). The plan was submitted to the Department of Justice for Section 5 preclearance. The Attorney General pre- cleaned the plan, and it took effect. J.S. App. 22a-23a. 3. In January, 1994, five white residents of the Elev- enth Congressional District filed suit in the United States District Court for the Southern District of Georgia, alleg- ing that the Eleventh District segregated voters on the basis of race in violation of the Equal Protection Clause. A three-judge court was convened. The United States and a number of citizens of Georgia intervened in support of the defendants. A trial took place on July 21-28, 1994. By a 2-1 vote, the three-judge court ruled that the con- figuration of the Eleventh District violated the Fourteenth Amendment. J.S. App. la-102a. a. The district court narrated the history of the State's post-1 990 redistricting in some detail and extensively dis- ---------------------------------------- Page Break ---------------------------------------- 8 cussed the Section 5 review of the various state plans undertaken by the Department of Justice. J.S. ApP. 5a-27a. From the beginning of the process, a plan with three majority African-American districts had been devel- oped by the American Civil Liberties Union (ACLU) on behalf of the Black Caucus of the General Assembly and presented to the state legislature. Id. at 6a-7a. That plan included an extension of the Eleventh District to Savannah and the inclusion of portions of Macon in the Second District. Those elements, the court noted, were employed by the State in the plan that was finally enacted and precleared, although the final plan differed in other important ways from the ACLU's plan. Id. at 6a-9a, 101a map). The court also stated that the ACLU had re- peatedly brought its plan to the attention of the Depart- ment of Justice in the course of the Section 5 preclearance process; that the ACLU had used that plan to argue to the Department of Justice that the State's first two enacted redistricting plans should not be precleaned; and that the Department of Justice's "criteria for and opinions of Georgia's submissions were greatly influenced by [the ACLU's attorney] and her agenda." Id. at 10a. The court stated that the State did not seek a Section 5 de- aratory judgment, not only because of fear that such a suit would be unsuccessful, as the Busbee suit had been ten years earlier, but also because litigation would have been expensive and time consuming. Id. at 20a-21a & n.11. With respect to the merits of plaintiffs' claim, the court held that the Eleventh District is subject to strict scrutiny. In Shaw v. Reno, supra, this Court held that a district is subject to strict scrutiny if it 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." 113 S. Ct. at 2824. In the district court's view, that language does not suggest that "[t]he shape of the district is * * * a "threshold" inquiry preceding an exploration of the motives the legislature." J.S. App. 29a. Instead, the shape is Simply " 'objective' evidence of the legislature's intent in ---------------------------------------- Page Break ---------------------------------------- 9 drafting that district," ibid.; "[t]he purpose of scrutinizing a district's shape is to glean the intent of the legislature by working backwards," id. at 41a. Therefore, the court concluded, a plaintiff can make out a Shaw claim either through proof concerning "a district's shape as circum- stantial evidence of legislative intent," id. at 40a, or through "direct testimony of those involved with the [re- districting] process" concerning "the legislature's intent," ibid. The district court held that strict scrutiny must be applied if "race was the substantial or motivating con- sideration in creation of the district in question"-a criterion the court explained as being satisfied if race is "the overriding predominant force determining the lines of the district. " J.S. App. 35a (footnote omitted). In reaching that conclusion, the court rejected the view of the district court in Hays v. Louisiana, 839 F. Supp. 1188 (W.D. La. 1993), vacated and remanded on other grounds, 114 S. Ct. 2731 ( 1994), that race "need only have been a recognizable factor-not the sole or dominant one-before a redistricting plan is constitutionally sus- pect ." J.S. App. 33a. The court explained that adoption of the Hays standard would lead to jurisdictions covered under Section 5 of the Voting Rights Act being "buried under Shaw litigation" every time they passed a redistrict- ing plan. J.S. App. 38a-39a. The court also rejected the view that "race must have been the sole motivation behind a particular district shape before strict scrutiny is appro- priate." Id. at 33a. In the court's view, "th[at] standard would be nearly impossible to meet." Id. at 39a. The district court found that the "indirect" evidence of legislative intent was sufficient in this case to subject the Eleventh District to strict scrutiny, because various por- tions of the district had irregular boundaries. In particu- lar, the court held that "[t]he extension [of the district] to Savannah is not compact by any credible definition of that term," J.S. App. 43a; that the Augusta portion re- flected a selective inclusion of predominantly African- ---------------------------------------- Page Break ---------------------------------------- 10 American census blocks, id. at 45a; and that the Eleventh District as a whole split eight of its 22 counties, a result that the court believed to be unnecessary, id. at 47a. The court also held that there was sufficient "direct" evidence that the legislature had a "predominant" racial motive for drawing the Eleventh District. Id. at 48a-51a. In par- ticular, the court adverted to the testimony of state legis- lators that their purpose in extending the Eleventh Dis- trict to Savannah was to include African-American voters in the district, in part to compensate for the African- American voters who were removed from the Eleventh District as previously configured and added to the Second District to make that a majority-minority district. ld. at 48a-50a. The court also referred to evidence that other portions of the district were drawn in order to include African-Americans in the district. Id. at 49a. The district court then applied strict scrutiny. The court held that the only compelling state interest that could potentially justify the Eleventh District was the State's interest in complying with Sections 2 and 5 of the Voting Rights Act. J.S. App. 56a-57a. The district court as- sumed the existence of that interest and held that what it viewed as the "narrow tailoring" inquiry was crucial to the disposition of the case: whether "the district[], as precleaned and enacted, [was] genuinely `reasonably nec- essary' * * * to comply with the [Voting Rights Act] ." Id. at 60a (citation omitted). The court held that the Eleventh District failed that "narrow tailoring" test. In the court's view, the fact that the Department of Justice had refused preclearance of the State's earlier attempts at redistricting after the 1990 census did not establish that creating the Eleventh Dis- trict was reasonably necessary to satisfy Section 5 of the Voting Rights Act. Instead, the court held that the plan would "live or die" on the basis of the court's independent determination of "whether Georgia's 1992 congressional redistricting plan was actually required by the [Voting Rights Act] and Supreme Court precedent." J.S. App. 63a. ---------------------------------------- Page Break ---------------------------------------- 11 With respect to Section 5, the court determined that the Department of Justice had erred in objecting to either of the first two plans submitted, 3 The court did not di- rectly address the "purpose" prong of Section 5 in this portion of its opinion, although this was the basis articu- lated by the Department of Justice for its objections to those plans. Earlier in the opinion, however, the court reported that two state officials had found no "evidence of acts or statements by * * * legislators indicating an intent to discriminate against minority voters." Id. at 13a. The court commented, in that context, that it "finds no evidence prompting [it] to doubt" the conclusion that the original two plans were untainted by racially discrim- inatory purpose. Id. at 13a. The court also held that the Eleventh District was not required by Section 2 of the Voting Rights Act. J.S. App. 80a. The court reached that conclusion by apply- ing the preconditions set forth by the Court in Thornburg v. Gingles, 478 U.S. 30, 50-51 ( 1986). The court found that the district was not "compact" because the "popula- tions of the Eleventh are centered around four discrete, widely spaced urban centers that have absolutely nothing to do with each other[.]" J.S. App. 79a. The outside perimeter of the district, the court found, included "hooks, tails and protrusions" in and near densely populated urban ___________________(footnotes) 3 The court held that the objections to the earlier Georgia plans were inconsistent with regulations "promulgated by Congress to assist DOJ in properly enforcing the [Voting Rights] Act." J.S. App. 64a-65a (citing 28 C.F.R. 51.59). The court went on to discuss the regulations in terms of what "Congress intended," J.S. App. 65a; what "Congress was apparently worried" about, ibid.; and how "Congres uses" a particular term in the regulations, id. at 66a. The regulations to which the court referred, however, were not enacted by Congress; they were promulgated by the Attorney General. See 52 Fed. Reg. 490 (1987). There is no indication in the court's opinion that it gave any deference to the Attorney General's interpretation of her own regulations. ---------------------------------------- Page Break ---------------------------------------- 12 areas at its periphery. id. at 79a. The court also found that racial polarization "exists, but not in alarming quan- tities"; the court found that from 22$% to 38910 of white people in the area would vote for African-American can- didates, while 20% to 23% of African-Americans in the area would vote for white candidates. Id. at 82a. The court concluded that the State would not have violated Section 2 if it had failed to draw the Eleventh District as a majority-minority district. Finally, the court concluded that, even assuming that the preconditions for a Section 2 Voting Rights Act viola- tion existed in the area covered by the Eleventh Congres- sional District, the district "overstepped the requirements" for compliance and therefore was not narrowly tailored. J.S. App. 68a. The court based this conclusion on the testimony of the State's expert witness, which indicated to the court that the Eleventh District was more "safe" than necessary for black voters. Id. at 83a-86a. b. Judge Edmondson dissented. In Judge Edmond- son's view, "[h]ighly irregular shape-the appearance of the district-is the critical element of" the cause of action recognized by this Court in Shaw. J.S. App. 93a. Accord- ingly, he rejected the court's holding that a district's "shape is merely one piece of circumstantial evidence proving the legislature's intentional use of race." Id. at 94a. He noted that Shaw's "highly-irregular-appearance standard * * * avoids the unreliability of after-the-fact statements by legislators and also avoids the necessity of federal judges probing and intruding on state officers' thoughts (perhaps expressly crediting some state officers and not crediting others-a divisive event ) to `learn' the state's true intent." Id. at 94a n.2. Judge Edmondson found that the Eleventh District was not "bizarre or highly irregular within the meaning of Shaw." J.S. App. 96a. He noted that the size of the ---------------------------------------- Page Break ---------------------------------------- 13 district, the length of its borders, and its location within the State were not out of the ordinary. Id. at 97a-98a. Moreover, he noted that the Eleventh District's boundaries follow existing state, county and city borders to approxi- mately the same extent (71% ) as the average for the State's other congressional districts; that "Georgia's con- gressional districts have no tradition of being neat, geo- metric shapes"; that portions of other districts are more irregular than the particular portions of the Eleventh Dis- trict criticized by the majority; and that other districts in Georgia's current plan, as well as past plans, split counties. Id. at 98a-100a. He concluded that the district "is not so bizarre on its face to justify, pursuant to the Constitution, a more searching inquiry," and that the district court accordingly should not "interfere with the reapportion- ment plan that resulted from Georgia's political process." Id. at lOOa. 4. The district court enjoined the completion of the 1994 election cycle in the Eleventh District and stated that it would hold a remedial hearing after receiving sub- missions from interested parties, J.S. App. 89a, The Governor and two of the other state defendants, the pri- vate intervenor-defendants, and the United States moved for a stay in this Court. On September 23, 1994, this Court granted the stay pending the filing and disposition of the appeals in this case. 115 S. Ct. 36. SUMMARY OF ARGUMENT 1. A. The district court held that, under this Court's decision in Shaw v. Reno, a majority-minority district is always subject to strict scrutiny if the State's "predomi- nant" motive in creating the district was to create a majority-minority district. That conclusion is incorrect. Nothing in this Court's opinion in Shaw V. Reno suggests that a "predominant motive" to create a majority- minority district alone requires strict scrutiny. To the ---------------------------------------- Page Break ---------------------------------------- 14 contrary, the Court repeated numerous times in Shaw that the constitutional claim it recognized in that case arose because the shape of a majority-minority district "on its face" was so extremely irregular that it could only be understood as an effort to segregate voters racially. The district court's standard is incorrect because a State should be free to give the same consideration to the inter- ests of racial minorities in redistricting that it gives to the interests of other groups. The fact that a State strongly desires to create a majority-minority district indicates only that it is willing to treat minority interests on a par with those of other groups for whom majority influence districts are created. Nor is the State's action in creating such a dis- trict likely to have any discriminatory impact. Subjecting such a district to strict scrutiny is, moreover, inconsistent with Congress's determination that States must, in some circumstances, create minority districts in order to comply with Sections 2 and 5 of the Voting Rights Act. The dis- trict court's standard is also unworkable, since there is no judicially manageable standard for a court to determine whether a particular purpose, out of many that may have motivated a districting plan, is "predominant." B. A redistricting plan that creates a majority-minority district is suspect under Shaw only if, in drawing the dis- trict, the State departs dramatically from its traditional districting practices. The Eleventh District, however, fits comfortably within Georgia's ordinary districting practices. It occupies an area similar in shape to the Tenth District, as that district has been configured for many years. Its physical area is about at the State's average. It follows existing boundaries of political subdivisions to a greater extent than most districts in the State. Although it con- tains a larger percentage of African-Americans than does the State as a whole, that suggests only that the State in- tended to draw a majority-minority district. The fact that the Eleventh District's borders (like those of other districts in the State) are irregular in places does not establish that ---------------------------------------- Page Break ---------------------------------------- 15 the shape of the Eleventh District, viewed as a whole, 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, 113 S. Ct. at 2824. 2. In any event, the Eleventh District satisfies strict scrutiny because it is narrowly tailored to further the State's compelling interest in complying with the Voting Rights Act and ameliorating the present effects of racially polarized voting. A. To demonstrate that the State had a compelling in- terest in complying with Sections 2 and 5 in this case, it need not be shown that failing to draw a third majority- minority district would surely have subjected the State to liability under Sections 2 or 5 of the Voting Rights Act. It need only be shown that there was a "strong basis in evidence" for concluding that the State's failure to draw such a district would have led to a prima facie case against it under the Voting Rights Act. That showing was made here, First, the State's interest in complying with Section 5 supported its action. The Attorney General had inter- posed Section 5 objections to the State's two previous plans. The State therefore could reasonably rely upon the Attorney General's objections as requiring it to draw a third minority district, so long as those objections were not clearly insupportable. In this case the objections, based on the "purpose" prong of Section 5, were supported by settled modes of analyzing whether state action is motivated by a racially discriminatory purpose. Second, the State's interest in complying with Section 2 of the Voting Rights Act also supported its decision to draw three majority-minority districts. There was a sound basis in evidence for believing that all three of the Gingles preconditions were satisfied. In addition, the State had a strong basis for believing that African-Americans in Georgia would be substantially underrepresented in Con- gress unless a third majority-minority district were drawn. ---------------------------------------- Page Break ---------------------------------------- 16 The State also had a compelling interest in ameliorating the effect that historical discrimination and racially polar- ized votingcontinue to have on the opportunity of minor- ity voters to elect a candidate of their choice in Georgia. Faced with the kind of extreme bloc voting present in Georgia , the State's could properly seek, through districting, to ensure a fair allocation of political power. B. Finally, the State's plan is narrowly tailored. It creates only the number of majority-minority districts that the States' interests in complying with the Voting Rights Act and fairly allocating political power justify. It does not needlessly pack minority voters into the majority- minority districts; the percentage of minority voters in the Eleventh District is well within the range that the State reasonably could have thought to be necessary to satisfy the identified compelling interests. And it gives sufficient weight to other redistricting interests. ARGUMENT I. GEORGIA'S REDISTRICTING PLAN IS NOT SUB- JECT TO STRICT SCRUTINY A. An Inquiry Into Legislative Intent Alone Can Not Determine Whether A Redistricting Plan Is Subject To Strict Scrutiny The district court held that a redistricting plan must be subject to strict scrutiny under the Equal Protection Clause if "race was the substantial or motivating consider- ation in creation of the district in question." J.S. App. 35a. The court explained that standard as requiring strict crutiny if the legislature "(a) was consciously in- fluenced by race, and (b) while other redistricting con- siderations may also have consciously influenced the dis- trict shape, race was the overriding, predominant force determining the lines of the district." ibid. According to the court, strict scrutiny is not required "[i]f race, how- ---------------------------------------- Page Break ---------------------------------------- 17 ever deliberately used, was one factor among many of equal or greater significance to the drafters." Ibid. In our view, the district court's standard does not follow from this Court's decision in Shaw and is incorrect. A legislature's intent to create a majority-minority district (or to otherwise include some minority voters in, or ex- clude some minority voters from, a district) is not alone sufficient to trigger strict scrutiny of the legislature's re- districting. Under Shaw and this Court's decision in United Jewish Organizations of Williamsburg, Inc. V. Carey, 430 U.S. 144 ( 1977), so long as the resulting district is not "bizarre," an intent to create a majority- minority district does not trigger strict scrutiny. 1. In our Brief in United States V. Hays, Nos. 94-558 and 94-627, we submit that the district court in that case erred in holding that the intent to create a majority- minority district was alone sufficient to trigger strict scru- tiny. See Hays U.S. Br. 14-20. On the contrary, a State must be free, under the Equal Protection Clause, to give the same consideration to the claims of racial minority groups to influence redistricting as to the claims of other interest groups in the redistricting process. ld. at 15- 17. Nor does the mere intent of a legislature to create a majority-minority district have the ill effects that this Court in Shaw identified as flowing from the creation of highly irregular districts that can be understood solely in racial terms. Id. at 17-18. Subjecting a plan to strict scrutiny merely on the basis of the State's intent to create a majority-minority district would also conflict directly with Congress's judgment, in enacting the Voting Rights Act, that States should be conscious of the racial conse- quences of their redistricting decisions. Id. at 18-19. And it would often confront States with a dilemma, in which they would face litigation with minority voters if they refuse to create a majority-minority district and litigation from others if they do. Id. at 19. Finally, a ---------------------------------------- Page Break ---------------------------------------- 18 broad holding that intent alone is sufficient to subject a plan to strict scrutiny would inevitably subject a very large number of redistricting plans at all levels of govern- ment to strict scrutinty. Id. at 20.4 2. The district court in this case attempted to remedy the deficiencies in the Hays court's bare intent standard by holding that a districting plan is subject to strict scru- tiny only if "race was the substantial or motivating con- sideration in creation of the district in question." J.S. App. 35a (footnote omitted). The district court elabo- rated its point by stating that race must be an "overriding predominant force determining the lines of the district," ibid., or that race must be "the most prominent element driving the legislatures' planning," id. at 35a n. 19. The court contrasted that with cases in which race "was one factor among many of equal or greater significance to the drafters," id. at 35a, or where it was "one motivation among others of equal strength propelling the process," id. at 35a n. 19. In those cases, the court held, strict scrutiny would be inappropriate. Under the district court's standard, a court must inquire about the extent to which "the legislature was * * * con- sciously influenced by race" in drawing a challenged majority-minority district. J.S. App. 35a. That inquiry will be of particular importance in cases in which the challenged district comports with the State's ordinary dis- tricting practices, because the application of strict scrutiny ___________________(footnotes) 4 The district court in this case did not disagree with this last conclusion. The court observed that the district court in Hays had held "that race need only have been a recognizable factor-not the sole or dominant one-before a redistricting plan is constitutionally suspect." .J.S. App. 33a. But the court noted, if that standard were adopted, "every state and local government in the United States subject to section 5 of the Voting Rights Act [would] be buried under Shaw litigation every time it passes a redistricting plan." Id. at 38a-39a. The district court properly was "reluctant to conclude that [this Court] intended voting rights litigation to sweep the country at ten-year intervals." Id. at 39a. ---------------------------------------- Page Break ---------------------------------------- 19 to such districts will, under the district court's analysis, turn on the "predominant motive" inquiry. The court must also determine whether, among the "other redistrict- ing considerations [that] may also have consciously in- fluenced the district shape," race was-in the court's vari- ous formulations-the "substantial or motivating," "over- riding, " "predominant," or "most prominent" one. Id. at 35a & n.19. In other words the inquiry focuses on the relative weight of the different motivations that produced the district under attack. Strict scrutiny is apparently re- quired if the court concludes that the racial motivation was of greater importance to the State than its other motivations in drawing the district. 3. This Court's decision in Shaw does not support the district court's conclusion that a legislature's "predomi- nant" intent to create a majority-minority district triggers strict scrutiny. This Court held in Shaw that a redistrict- ing plan is subject to strict scrutiny if it is "so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races for the purposes of voting." 113 S. Ct. at 2824 (emphasis added). The Court repeated that standard several times in its opinion in Shaw; each time the opinion unequivocally stated that the inquiry was a facial one. See id. at 2824, 2825, 2826, 2828, 2829, 2832. An inquiry into the characteristics of a statute "on its face" plainly requires more than a deter- mination of whether the legislature intended-or "pre- dominantly" intended-to achieve a desired result. 4. Shaw's limiting language correctly reflects the rele- vant constitutional values. Strict scrutiny is not appro. priate merely because a legislature's "substantial or "moti- vating" intent-i.e., the "most prominent element driving the legislature's planning," J.S. App. 35a n.10-was to create a majority-minority district. As we noted above, under the Equal Protection Clause, a State must be free to give the same consideration to the claims of racial minority groups that seek to influence redistricting as to ---------------------------------------- Page Break ---------------------------------------- 20 the claims of any other interest group. Indeed, the Con- stitution itself may require a State to take action to avoid the consequences of racial discrimination under the Four- teenth and Fifteenth Amendments. The fact that a State strongly desires to create a particular district with a majority-minority population says nothing about whether the State has taken action that amounts to a special pref- erence for that group. For the State may have an equally strong desire to accommodate other ethnic, religious, political, or other interest groups by drawing lines that accommodate them in other districts. See Hays U.S. Br. 15-17. It is therefore not the strength of the State's desire to create a district for a racial minority group that is im- portant, but whether the State has taken action that gives a special preference to that group that it is unwilling to give to others who are similarly situated. The district court's analysis is also inconsistent with the principle that state action violates the Equal Protection Clause only if it has discriminatory consequences. In Shaw, this Court identified two potential injuries that were of concern in this area: the conveying of a message that all members of a particular racial group, regardless of where they live and what other characteristics they may have in common, "think alike, share the same political interests, and will prefer the same candidates at the polls," 113 S. Ct. at 2827, and the likelihood that elected offi- cials from the district in question would be "more likely to believe that their primary obligation is to represent only the members of that group, rather than their con- stituency as a whole." Ibid. Because this is "one area in which appearances do matter," ibid., those injuries may flow from a district whose extraordinary appearance ad- vertises that the legislature was according special treat- ment to members of a minority group that it would not give to others similarly situated. Those injuries are un- likely to flow, however, from the fact that the legislature, in drawing a district that comports with its traditional, legitimate districting practices, strongly desired to accom- modate the interests of a racial minority group, in the ---------------------------------------- Page Break ---------------------------------------- 21 same way as it accommodates the interests of other groups that attempt to influence legislative districting decisions. See Hays U.S. Br. 17-18. 5. The district court's standard disserves other impor- tant values as well. In some instances, States are required by Sections 2 or 5 of the Voting Rights Act to draw reasonably compact majority-minority districts. In such situations, a State's desire to draw a majority-minority district may naturally be an "overriding" or "predominant" motive. Under the district court's analysis, however, that would virtually ensure that the State's proper desire to comply with federal law subjects the resulting redistricting plan to strict scrutiny. See Hays U.S. Br. 18-19. The district court's standard is also unworkable. In other contexts, the Court has rejected judicial inquiry into whether "a particular purpose," out of many that may have motivated a "legislature or administrative body oper- ating under a broad mandate" to make a decision, "was the `dominant' or `primary' one." Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265 ( 1977). That is because "[i]t is difficult or impossible for any court to determine the `sole' or `dominant' motivation behind the choices of a group of legislators." Palmer v. Thompson, 403 U.S. 217, 225 (1971). "The search for legislative purpose is often elusive enough without a requirement that primacy be as- certained." McGinnis v. Royster, 410 U.S. 263, 276-277 ( 1973) (citation omitted). The inquiry into which of many different legislative purposes underlying a particular act is "overriding" or "predominant" is particularly indeterminate in the case of redistricting plans. Where a legislature is forced to choose between advancing two different purposes, a court may fairly infer which was more important from the choice the legislature made. But where the legislature may accomplish a number of different compatible goals by enacting a particular redistricting plan with a reason-, ably compact majority-minority district, a court has no guidepost by which to determine the relative weights of ---------------------------------------- Page Break ---------------------------------------- 22 the various goals the legislature was attempting to achieve. Moreover, looking at a single district in isolation neces- sarily distorts the inquiry. As Judge Edmondson recog- nized in his dissenting opinion, because "apportionment is a highly political process * * * [m]any different agendas may be at work." J.S. 94a n.2. An accommodation to some faction's interests in one part of the plan may be essential to that faction's support of some other part of the plan. To attempt to determine the "substantial or motivating, " "overriding, " "predominant," or "most promi- nent" motive in redistricting will often be a futile and quixotic task. Id. at 35a & n.19. 5 The technique for determining "predominant" motiva- tion adopted by the district court here was to rely on the after-the-fact testimony of some of the legislators who had been involved in the districting process. J.S. App. 49a- 50a. The testimony of an individual legislator about the legislature's "dominant" motive in enacting legislation, however, is not a reliable indicator of legislative intent. See, e.g., Bread Political Action Comm. V. Federal Elec- tion Comm'n, 455 U.S. 577, 582 n.3 ( 1982); Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 118 ( 1980); Chrysler Corp. v. Brown, 441 U.S. 281, 311 ( 1979). As Judge Edmondson pointed out, that is particularly true where the individual legislators' state- ments are made after the enactment of the statute in ques- tion. J.S. App. 94a n.2; see also Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633, 650 (1990); Public Employees Retirement System of Ohio V. Betts, 492 U.S. 158, 168 (1989). ___________________(footnotes) 5 There was substantial and largely undisputed evidence at trial that the Eleventh District itself, from its inception, was the product of a host of political and other motivations. See pp. 6-7, supra. The district court did not make any findings to the contrary. ---------------------------------------- Page Break ---------------------------------------- B. Georgia's Eleventh District Is Not So Highly irreg- ular On Its Face That It Can Be Understood Only As An Effort To Segregate The Races For Purposes of Voting The district court also subjected the State's plan to strict scrutiny on the ground that it appears "uninfluenced by accepted districting principles, as evidenced by its shape." J.S. App. 41a. The court erred in reaching that con- clusion. 1. In our brief in Hays, we identified four legal prin- ciples that we believe should guide the inquiry into whether a district is so highly irregular on its face that it can be understood only as an effort to segregate the races for purposes of voting. First, the manner in which the State has drawn and continues to draw other districts is the most appropriate benchmark for determining whether a particular majority-minority district is "bizarre." Second, a district is suspect under Shaw only if it departs dramatically from the State's traditional districting prac- tices. Third, the Shaw "on its face" inquiry mandates an objective inquiry into the nature of the district, not a subjective inquiry into the legislature's intent. Fourth, since the relevant inquiry under Shaw is whether the dis-- trict as a whole is "bizarre," the fact that isolated seg- ments of a district are irregular does not make the district itself bizarre. See Hays U.S. Br. 21-22. These same prin- ciples should guide the inquiry in this case. 2. Application of these legal standards leads to the conclusion that the Eleventh District is not "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, 113 S. Ct. at 2824. The appearance of the Eleventh District on a map com- ports reasonably with Georgia's ordinary districting prac- tices. The district's shape is largely based on a core area in the central and eastern portions of Georgia. The dis- trict generally occupies an area similar in shape to, but ---------------------------------------- Page Break ---------------------------------------- 24 south of, the former Tenth District, which also spanned the central part of the State from Augusta to the Atlanta suburbs. The district's land area is about the State's average. 6 The Eleventh District satisfies Georgia's own districting guidelines. Those guidelines provided that "efforts may be made to maintain the integrity of political subdivisions and the cores of existing districts" and that "consideration may be given to avoiding contests between existing in- cumbents. " J.A. 75 (Senate), 68 (House). They also counseled against unnecessary splitting of precincts. J.A. 75-76 (Senate), 68-69 (House). The State's guidelines do not mention "compactness" as a criterion. The Eleventh District shows substantial respect for political subdivision boundaries. Cf. Shaw, 113 S. Ct. at 2826, 2827 (recognizing importance of this factor); see also J.S. App. 96a (Edmondson, J., dissenting). Of the 22 counties in the Eleventh District, 14 are intact and eight are divided. That puts the Eleventh District at about the state average in divided counties. By contrast, of the five counties in the Sixth District, none are intact and of the four counties in the Fourth District, only one is intact.7 ___________________(footnotes) 6 The district spans 6,784 square miles. The First, Second, and Eighth Districts each encompass more than 10,100 square miles. The Ninth district has an area of 5)800 square miles and the Tenth District has an area of 5,100 square miles. State Exh. 177, at 4. In past plans, the State has drawn many districts of similar size. See J.A. 78, 79, 80, 81 (maps). 7 The First District has 20 intact counties and parts of 2 others. The Second District has 24 intact counties and parts of 11 others. The Third District has 8 intact counties and parts of 8 others. The Fifth District is composed of parts of 4 counties. The Seventh District has 10 intact counties and a part of 1 county. The Eighth District has 22 intact counties and parts of 10 others. The Ninth District has 19 intact counties and a part of one other. The Tenth District has 16 intact counties and parts of three others. The figures are derived from Joint Exhibit 17. ---------------------------------------- Page Break ---------------------------------------- 25 Seventy-one percent of the boundaries of the Eleventh District follow the lines of political subdivisions. Of the State's 11 districts, five score lower than the Eleventh District on that measure and five score higher.' Eighty- three percent of the geographic area of the district lies within intact counties, above average for the State's con- gressional districts.9 J.S. App. 96a-97a. Georgia has frequently drawn districts that cover a substantial east-west or north-south portion of the State, as does the Eleventh District. The Ninth District, for example, covers the State's entire northern border. See J.A. 51 (map). The First, Second, and Eighth Districts all begin at the Florida border and extend north past the center of the State. See ibid. In the 1980's, the Eighth District extended even farther, from the southeast border with Florida in a rather irregular pattern almost to the Atlanta suburbs. See J.A. 80 (map). 3. The district court approached the question of whether the district was "bizarre" by assuming that the purpose of the inquiry was to uncover whether the State had an "overriding objective to include minority popu- lations in the Eleventh [District]." J.S. App. 47a. As we argue above, that is not the proper focus of the Shaw analysis. The district court's improper focus led it to give inappropriate significance to several factors. For example, the district court repeatedly emphasized that African-Americans formed a larger percentage of the population of the Eleventh District ( 64.07% ) than of ___________________(footnotes) 8 The district with the lowest score on that measure is the Sixth, only 45% of whose boundaries follow political subdivision lines. The highest district on that measure is the Ninth, with a more of 91%. State Exh. 177, at 3. 9 Only three districts-the First, Seventh, and Ninth-score higher than the Eleventh District on that measure. Excluding the Fifth and Sixth Districts, which contain no intact counties, the scores on that measure range from about 30$% for the Fourth District to 97% for the Seventh District. State Exh. 177, at 4. ---------------------------------------- Page Break ---------------------------------------- 26 the State as a whole (26.96%), J.S. App. 46a, and that the portions of the Eleventh District in Chatham, Rich- mond, and DeKalb Counties had a larger percentage of African-American population than did those counties as a whole. 10 See J.S. App. 43a, 45a-46a. Those facts cer- tainly tend to prove a fact that was stipulated in this case: that "race was a significant consideration in the configuration of the Eleventh Congressional District, in- cluding being a consideration in the inclusion of certain portions of DeKalb County, the City of Augusta [Rich- mond County], and the City of Savannah." J.A. 21-22. But they are not in the least probative on the issue of whether the district's shape is a dramatic departure from :he State's ordinary districting practices. The district court also discounted the evidence that the Eleventh District's boundaries largely follow precinct lines, m the ground that "[the State] designed the Eleventh District along racial lines, and race data was most acces- sible to [the State] at the precinct level." J.S. App. 44a. The State's own guidelines, however, provided that [l]ocal voting precinct boundary lines should serve as the basic district building block in order to minimize voter confusion and cost of election administration." J.A. 68- 69 (House), 75 (Senate). The fact that the State gen- erally followed that neutral and traditional districting criterion in drawing the Eleventh District tends to show that the District's lines do not mark a dramatic departure from the State's own districting criteria. 4. The district court also believed that the configura- tion of the Eleventh District in the areas of Savannah Chatham County), Augusta (Richmond County), and the Atlanta suburbs (DeKalb County) was sufficiently irregu- ___________________(footnotes) 10 African-Americans are 38~0 of the population of Chatharn county, 42% of the population of Richmond County, and 42.2% of the population of DeKalb County. The portion of the Eleventh District in Chatham County is 84% black, the portion in Richmond County is 66% black, and the portion in DeKalb County is 74.6% tack. J.S. App. 43w 45a-46a. ---------------------------------------- Page Break ---------------------------------------- 27 lar to trigger strict scrutiny. J.S. App. 42a-43a, 45a-46a. In our view, the irregularities of the district's lines in those areas are insufficient to trigger strict scrutiny. This Court explained in Shaw that strict scrutiny is reserved for those "rare" plans, 113 S. Ct. at 2825, that create dis- tricts that are "extremely irregular" or "bizarre," 113 S. Ct. at 2824, 2825, The fact that the Eleventh District's lines are irregular in certain isolated areas is insufficient to support a finding that the district's shape is, on the whole, "bizarre." Moreover, even when viewed in isolation, the boundar- ies in those urban and suburban areas are not "bizarre." For example, in DeKalb County, the Eleventh District essentially comprises the entire southern portion of the county; on the east, south, and west, the district lines are largely coterminous with the county lines. 11 Similarly, in the cities of Augusta and Savannah, the district in- cludes identifiable portions of the cities and its lines largely follow precinct lines that themselves follow political boundaries, such as those of state legislative districts, and major landmarks, such as main streets and highways. 12 Even if the Court were to conclude that the boundaries in isolated areas of the district are "bizarre," the boundaries were determined by numerous political factors and are therefore explainable on grounds other than race. See Shaw, 113 S. Ct. at 2825; see pp. 6-7, supra. The district court disregarded that evidence. ___________________(footnotes) 11 Linda Megger, the State's demographer, testified that the dis- trict lines in DeKalb County followed 1-285 and the Stone Mountain Freeway, 2 Tr. 200. The northern boundary is largely governed by the borders of the cities of Atlanta, Decatur, and Avondale Estates. 2 Tr. 197, 199-200. 12 See, e.g., 2 Tr. 128 (major roads and landmarks generally used), 215 (major roads), 224 ("local visible boundaries") ; 4 Tr. 177 (state legislative district). ---------------------------------------- Page Break ---------------------------------------- 28 II. THE ELEVENTH DISTRICT SATISFIES STRICT SCRUTINY Even if the district court were correct in subjecting the Eleventh District to strict scrutiny, the court erred in concluding that strict scrutiny was not satisfied. The State's plan, including the Eleventh District, was nar- rowly tailored to further the State's compelling interests in complying with the Voting Rights Act and ameliorat- ing the effect that historic discrimination and persistent racial polarization have on the opportunities of minority voters to elect the candidates of their choice. A. The State Had A Compelling Interest In Drawing The Eleventh District As A Majority-Minority District 1. A State has a compelling interest in complying with Sections 2 and 5 of the Voting Rights Act. The district court appeared to accept that principle, see J.S. App. 58a- 59a, but went on to undertake a de novo consideration of whether Sections 2 and 5 required the creation of the Eleventh District. J.S. App. 66a-87a. The court con- cluded that neither Section 2 nor Section 5 provided a sufficient justification for the creation of three majority- minority districts in Georgia, and that the State accord- ingly had no compelling interest in creating the Eleventh District as a majority-minority district. As we explained in our brief in Hays, the district court's approach is mistaken. See Hays U.S. Br. 27-28. In order to invoke the Voting Rights Act as a justification, it need not be shown that the Act required the drawing of a third majority-minority district. Rather, it need only be shown that there was a "strong basis in evidence" for The State's actions- a standard that is satisfied if there was a sound basis for believing that the State's failure to draw a third majority-minority district would have led to a prima facie case against it under either Section 2 or 5 of ---------------------------------------- Page Break ---------------------------------------- 29 the Voting Rights Act. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 500 (1989); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 277 ( 1986) (plurality opinion); id. at 292-293 ( O'Connor, J., concurring); Johnson V. Transportation Agency, 480 U.S. 616, 652-653 ( 1987) (O'Connor, J., concurring in the judgment). a. Section 5. The State had a sound basis for conclud- ing that the creation of a third majority-minority district was necessary to comply with Section 5. Section 5 forbids a jurisdiction from implementing a redistricting plan un- less it can show that the plan has neither a discriminatory purpose nor a discriminatory effect. 42 U.S.C. 1973c. No party in this case argued that Georgia had to create a third majority-minority district in order to satisfy the retrogession criterion embodied in Section 5's "effect" prong. See Beer v. United States, 425 U.S. 130 ( 1976). Even when a redistricting plan is not retrogressive, how- ever, a State cannot obtain preclearance unless it makes the further showing that the plan is free of discriminatory purpose. City of Pleasant Grove v. United States, 479 U.S. 462, 469, 471 & n. 11 ( 1987); City of Port Arthur v. United States, 459 U.S. 159, 168 ( 1982); City of Rich- mond V. United States, 422 U.S. 358, 378-379 ( 1975); Busbee v. Smith, 549 F. Supp. 494, 500 (D.D.C, 1982), aff'd, 459 U.S. 1166 (1983). Therefore, the question is whether the State had a strong basis in evidence for be- lieving that it would not be able to prove the absence of a discriminatory purpose if it failed to draw the third majority-minority district. (i). Instead of undertaking that inquiry, the district court inquired into whether the State's failure to draw the third majority-minority district would, in the court's inde- pendent judgment, have violated Section 5. That is not the appropriate legal standard. As we argued in our brief in Hays, the benefits Congress ought to achieve in providing for administrative preclearance under Section 5 would be ---------------------------------------- Page Break ---------------------------------------- 30 lost if the States could not generally rely on the Attorney General's "administrative finding" of discrimination. Re- gents of the Univ. of Calif. v. Bakke, 438 U.S. 265, 305 ( 1978) (opinion of Powell, J.). See Hays U.S. Br. 31-32. Given the Attorney General's important role in the Sec- tion 5 statutory scheme, a State should be able to act on the assumption that the Attorney General has correctly objected to its plan, unless the objection is clearly in- supportable. Shaw v. Hunt, 861 F. Supp. 408, 443 & n.34 (E.D.N.C. 1994); see UJO, 430 U.S. at 175 (Brennan, J., concurring in part) (Attorney General's judgment that a particular districting scheme complies with the remedial objectives of the Voting Rights Act is entitled to "considerable deference" ); cf. Presley V. Etowah County Comm'n, 112 S. Ct. 820, 831 (1992) (court must defer to Attorney General's construction of Section 5, unless unreasonable or contrary to congres- sional intent) 13 A State should not generally be re- quired, before it can respond to the Attorney General's objection, to expend substantial time and resources (and to delay its redistricting process by what may be a period of years) litigating the validity of the Attorney General's objection in a judicial preclearance action in the District Court for the District of Columbia. See also Morris v. Gresette, 432 U.S. 491, 504-505 ( 1977) (Attorney General's Section 5 objection not reviewable). ___________________(footnotes) 13 Jurisdictions often have to act particularly quickly-and thus to rely on the administrative preclearance process-in the redis- tricting context. Between 1991 and 1994, the Attorney General received administrative submissions seeking Section 5 preclearance for more than 2700 redistricting plans. During that same period, only eight declaratory judgment actions were filed seeking pre- clearance for redistricting plans. The Attorney General made merits determinations regarding 2438 redistricting plans between 1991 and 1994, and precleaned all but 183 (or 7.5% ) of them. During the comparable period in the last decade, the Attorney General made determinations concerning 1373 redistricting plans and objected to 113 (or 8.2%) of them. ---------------------------------------- Page Break ---------------------------------------- 31 (ii). In this case, the Attorney General interposed Section 5 objections to each of the State's two previous redistricting plans, on the ground that the State had failed in each case to carry its burden of showing that it had not acted with a discriminatory purpose in drafting those plans. See pp. 4-7, supra. Accordingly, so long as it could not be said that the Attorney General's objections were clearly insupportable, the State was justified in re- lying on the objections in concluding that it must draw a third majority-minority district. Here, the Attorney General's objections were in fact well founded. First, as the district court noted, Mark Cohen, a Senior Assistant Attorney General of Georgia, see J.S. App. 10a, testified that "the circumstances of the 1991-92 redistricting were similar to those of 1981 -82," id. at 20a n. 11, when the district court, in a decision subsequently affirmed by this Court, denied the State's request for a declaratory judgment that its redistricting plan was not motivated by a discriminatory purpose. See Busbee v. Smith, 549 F. Supp. 494 (D.D.C. 1982), aff'd, 459 U.S. 1166 ( 1983).14 The district court did not chal- lenge that conclusion. J.S. App. 20a-21a n. 11. 15 Indeed, in 1981-1982, as here, the legislature had applied its pur- ported districting principles selectively. See Busbee, 549 F. Supp. at 514. In addition, in both 1981-1982 and the ---------------------------------------- Page Break ---------------------------------------- 14 Cohen had also represented the State in the Busbee litigation. He testified at trial in this case that he had thought it likely that the State would lose a Section 5 suit to preclear either of the plans to which the Department of Justice had objected. 5 Tr. 5. 15 The district court added that "the cost of litigating in D.C. and the time pressures on the Assembly" also were factors making a declaratory judgment action "not likely." J.S. App. 20a-21a n.11. The cost of litigation is always a disincentive. A State ought not be required to undergo those costs and litigate what it reasonably believes might be a futile lawsuit in Washington, rather than accepting the Attorney General's objection and taking remedial steps to cure it. ---------------------------------------- Page Break ---------------------------------------- 32 1991-1992 round of redistricting, the state Senate had passed a plan that would have remedied the identified dis- crimination, while the state House refused to do so. Id. at 504-512. The fact that the State had been unable to prevail in a Section 5 declaratory judgment action when it had previously faced a similar Section 5 "purpose" objection from the Attorney General strongly supported its conclusion that it was unlikely to prevail in this case. There were also other factors supporting the conclusion that the State might not be able to establish that it acted without a discriminatory purpose had it not created a third majority-minority district. This Court has explained that the "historical background of the decision," especially if it reveals a "series of official actions taken for invidious purposes," Arlington Heights, 429 U.S. at 267, militates in favor of an inference of intent. The district court judi- cially noticed the State's history of racial discrimination in voting, see J.S. App. 103a-104a, which included "vari- ous means of destroying or diluting black voting strength" and which spanned the period from the State's first Con- stitution "through recent times." J.S. App, 104a. For example, "[congressional districts have been drawn * * * to discriminate against black citizens," and the State's plans "discriminated by packing an excessive number of black citizens into a single district or splitting large and contiguous groups of black citizens between multiple dis- tricts." Ibid. That history, which continued into the 1980's, when Busbee was decided, would have supported an inference of discriminatory purpose here. Arlington Heights also teaches that departure from a jurisdiction's normal way of conducting its affairs can give rise to an inference of discriminatory intent. 429 U.S. at 267. The Section 5 objection letters referred to the fact that in passing its first two plans after the 1990 census, Georgia had departed from its own commitment to treat keeping counties and cities intact as a secondary interest. J.A. 106. 125. In each of the two plans, the ---------------------------------------- Page Break ---------------------------------------- 33 Sixth District, for example, contained no complete coun- ties and parts of five others. The testimony was unequivo- cal that the Sixth District's odd configuration reflected political, not racial, purposes. The plans thus exhibited the State's willingness to split political subdivisions to serve partisan political ends, but an unwillingness to do so to recognize black minority political interests. Such inconsistent application of substantive criteria was noted by the Attorney General, J.A. 105-106, 125, and would have supported a finding that the State's avowed goal to avoid splitting counties was pretextual. This Court recognized in Arlington Heights that "[t]he impact of the official action-whether it `bears more heavily on one race than another'-may provide an im- portant starting point" in the inquiry into intent. 429 U.S. at 266 (citation omitted). Similarly, in the voting rights context, this Court held in Rogers v. Lodge, 458 U.S. 613, 623 ( 1982), that the "overwhelming evidence of bloc voting along racial lines" and the fact that "no black had ever been elected to [the legislative body in question]" were facts that "bear heavily on the issue of purposeful discrimination." As we discuss below, see p. 37, infra, there was very substantial evidence of racial bloc voting in this case. There was also evidence that black candidates had in the past virtually never been suc- cessful when they ran from majority-white districts and that blacks would consequently be significantly under- represented in the State's congressional delegation if only two majority-minority districts were created. The State thus knew that its failure to create a third majority- minority district could be viewed as having an adverse impact on minority voters, and that that fact would be of relevance in a purpose inquiry. A straightforward application of the principles for an- alyzing discriminatory purpose therefore supported the Attorney General's conclusion that the State had not met its burden of showing that its reasons for not drawing ---------------------------------------- Page Break ---------------------------------------- 34 a third majority-minority district were not pretexts for minimizing black voting strength. The State's compelling interest in complying with Section 5 therefore justified its decision to draw a plan with three majority-minority districts. (iii). In connection with its inquiry into the Section 5 issues in this case, the district court permitted respondents, over our objection, to obtain discovery and to introduce extensive testimony concerning the operation of the Sec- tion 5 preclearance process in this case. That evidence included the live testimony of one DOJ attorney who was involved with the Section 5 process and the testimony by deposition of another DOJ attorney and former Assistant Attorney General Dunne. We continue to believe that that inquiry should not have been undertaken. The Assistant Attorney General and his staff received numerous communications from many individuals interested in the Georgia redistricting process -including numerous communications from attorneys representing the state legislative black caucus and its members. See J.S. App. 9a-1 la, 19a-20a, 26a-27a. The governing DOJ regulations provide that any information received from any individual or group "shall be considered along with the materials submitted [by the jurisdiction] and materials resulting from any investigation." 28 C.F.R. 51.30 (a) .16 Such consideration was accorded in this case, and nothing in the district court's opinion suggests other- wise. 17 ---------------------------------------- Page Break ---------------------------------------- 16 The regulations provide that "[a]ny individual or group may send to the Attorney General information concerning a change affecting voting." 28 C.F.R. 51,29. Such information may be pro- vided "at any time." 28 C.F.R. 51.29 (c). It is important that the Assistant Attorney General be able to consider such information, since he has only 60 days from the submission of a voting change to determine whether it should be precleaned. 42 U.S.C. 1973c. 17 The district court adverted to one general practice that it disagreed with: the Department's practice of respecting the ano- ---------------------------------------- Page Break ---------------------------------------- 35 The district court acknowledged that "the motivations of the State of Georgia are the legally relevant motivations in this case, and not those of the ACLU or the DOJ." J.S. App. 9a. That statement was correct as to the analy- sis of the State's interest in complying with Section 5, and the inquiry into DOJ procedures and the thought processes of individual DOJ attorneys had nothing to do with any issue properly before the court. The only respect in which the court's inquiry into the Section 5 process arguably could affect the court's ruling on the merits in this case was the court's conclusion that the Department had adopted a "maximization" policy that required the State to draw as many majority-minority dis- tricts as possible. See J.S. App. 64a. The court's char- acterization of the Attorney General's policy and practice is, however, inaccurate. The Section 5 process is tailored to the specifics of each case, and no general requirement of maximization-or of proportionality-is imposed. 18 ___________________(footnotes) nymity of its sources when requested, pursuant to regulation. See 28 C.F.R. 51.29 (d). We believe that that practice is sound, espe- cially considered in light of the history of voting rights enforce- ment in this country, The district court also suggested that a state Senator was "offended" at a meeting with DOJ officials, either because of "anonymous allegations," of which he was presumably informed, "or some other suggestion." J.S. App. 24a. The fact that an individual felt "offended" for an undetermined reason at a meeting at which highly controversial issues were discussed hardly suggests misconduct on the part of any DOJ official. The court also criticized the Department for what it believed to be a "leak" of the Department's second objection to the legislative black caucus before the State itself was informed. J.S. App. 26a. Any such "leak" would have been in direct contravention of the Department's policy and should not have occurred. The issue, however, has nothing to do with the merits of the present case. 18 See James P. Turner, "Case-Specific Implementation of the Voting Rights Act," in Bernard Grofman and Chandler Davidson, eds., Controversies in Minority Voting (The Brookings Institution, Washington, D.C. 1992) ; Dunne, Redistricting in the 19090's: The New York Example, 14 Cardozo L. Rev. 1127 (1993); Grofman, ---------------------------------------- Page Break ---------------------------------------- 36 See 28 C.F.R. 51.57 et seq. (standards by which Section 5 submissions are judged). Providing the opportunity for minority representation is of course considered as a rele- vant factor in the Section 5 process; here, three majority- minority districts out of 11 was almost exactly propor- tional to the number of minority group members in the population. See J.S. App. 68a. As this Court explained in Johnson v. DeGrandy, 114 S, Ct. 2647 ( 1994), "pro- portionality" in that sense-i.e., the relationship between the number of majority-minority districts and the minor- ity's percentage of the population-is "obviously" of rele- vance to a Section 2 claim, 114 S. Ct. at 2661, 2662 & n. 17, and as the Court explained in Arlington Heights, see p. 33, supra, evidence of such discriminatory effects as underrepresentation is also relevant to a claim of dis- criminatory purpose. b. Section 2. In Thornburg v. Gingles, 478 U.S. 30, 50-51 ( 1986), the Court established the three precondi- tions for a Section 2 vote dilution claim in a districting case. Plaintiffs must show that ( 1 ) the minority popula- tion is sufficiently numerous and compact to constitute a majority in a single-member district, (2) the minority group is politically cohesive, and (3) whites usually vote sufficiently as a bloc to defeat the minority's preferred candidate. As we explained in our brief in Hays, see Hays U.S. Br. 28-29, in light of Gingles and this Court's decision in Johnson v. DeGrandy, 114 S. Ct. 2647, 2658- 2662 ( 1994), a State would have a reasonable basis for creating a majority-minority district to comply with Sec- tion 2 when each of the three Gingles preconditions couId be established against it and when, without such a district, the number of districts in which minorities would have an opportunity to elect candidates of choice would be dis- proportionately small compared to the group's proportion of the population. See also Johnson, 114 S. Ct. at 2664 ___________________(footnotes) Would Vince Lombardi Have Been Right If He Had Said: "When It comes To Redistricting, Race Isn't Everything, It's The Only Thing"?, 14 Cardozo L. Rev. 1237, 1265-1266 (1993). ---------------------------------------- Page Break ---------------------------------------- 37 (0'Connor, J., concurring); Shaw V. Hunt, 861 F. Supp. at 440-441 & n.28. The State had reason to know that voting in Georgia could be found to be polarized on the basis of race, and the district court in this case in fact found that it was. 19 The court found that only 22% to 38% of white people in the area were willing to vote for African-American candidates, while only 2070 to 23% of African-Americans in the area would vote for white candidates. 20 J.S. App. ___________________(footnotes) 19 The parties stipulated that courts had previously found racially polarized voting in elections in Bleckley, Burke, Carroll, Colquitt, Dougherty, Fulton, Putnam, Wilkes, and DeKalb Counties. Joint Statement of Undisputed Facts, at 29-30. 20 The district court found that racially polarized voting "ex- ists," although the court characterized it as "not in alarming quantities." J.S. App. 82a. The court's assessment of the sig- nificance of the fact that the white crossover vote ranged from 22% to 38%-i.e., that about 70% of the white voters would not vote for candidates of choice of the black community-is doubt- ful. In any event, the district court substantially overestimated the white crossover vote, and the State had a strong basis for believing that the crossover vote was much smaller. Dr. Allan Lichtman, the United States' expert, using Democratic primary elections including primary elections for Congress in the Second and Eleventh Dis- tricts, found that white crow-over voting ranged from 7% to 29%, except in elections having multiple black candidates. 5 Tr. 202-224; U.S. Exh. 24, tables 1-4. Dr. Ronald Weber, plaintiffs' expert, agreed that Democratic primaries were the most "probative" elec- tions, although he believed that other elections were relevant as well. 4 Tr. 314, 318, 286-290. Moreover, the figure cited by the district court includes consideration of judicial elections involving an appointed black incumbent and elections in which there were multiple black candidates and a white candidate, both of which are substantially less probative of racially polarized voting in congres- sional elections between one black and one white candidate. See 5 Tr. 201 (testimony of Alan Lichtman). See also Thornburg V. Gingles, 478 U.S. 30, 57 (1986) ; Collins V. City of Norfolk, 883 F.2d 1232, 1243 (4th Cir. 1989), cert. denied, 498 U.S. 938 (1990). Dr. Weber himself testified that, if the judicial incumbent elections were removed from his own calculation, the white crossover vote would drop to 26.6%, and if the elections involving multiple black candidates were removed, the white crossover calculation would drop to 17%. 4 Tr. 325. ---------------------------------------- Page Break ---------------------------------------- 38 82a. The State also knew that, with one exception, all of the black state legislators in Georgia were elected in dis- tricts that were at least majority black and, more often, at least 60% black. See docket no. 62, at 19. Indeed, of the 181 majority-white state legislative districts, only one was represented by an African-American, ibid. As for "com- pactness," nothing in Gingles requires any absolute meas- ures. That case requires only that the potential majority- minority district be reasonably compact in light of the state's redistricting practices. As we have argued above, the Eleventh District satisfied that criterion. See pp. 23- 25, supra. Finally, had the State created only two majority-minority districts out of eleven (or 18%), the State had reason to believe that the opportunities for minority voters, who constitute 27% of the State's popula- tion, to elect candidates of their choice would have been disproportionally small. Respondents have argued that, because the State itself has not advanced an interest in complying with Section 2 as a justification for the Eleventh District, no such interest could be recognized. That is incorrect. The critical in- quiry is whether the objective facts considered by the State at the time of redistricting would have reasonably supported a conclusion that a prima facie case existed under Section 2. The failure of the state defendants to argue that the State was in danger of violating Section 2, especially where the State was litigating similar issues in other cases, does not preclude a finding that the State's need to ensure compliance with Section 2 was a com- pelling interest sufficient to support its determination to create a third majority-minority district. The State is not required to expose itself to liability in other settings in order voluntarily to comply with the Voting Rights Act with regard to redistricting. 21 ___________________(footnotes) 21 Both at the time of redistricting and when trial was held in this case, Georgia was defending Section 2 challenges to its major- ity vote requirement and its at-large system for electing judges. Brooks V. Miller, Civ. No. 1:9O-CV-1OO1-RCF (N.D. Ga.) (majority- ---------------------------------------- Page Break ---------------------------------------- 39 c. Ameliorating Polarization. A State may also have a compelling interest, independent of the Voting Rights Act, in eradicating the effects of past discrimination, which have resulted in racially polarized voting and a diminution of the opportunities of minority voters to elect the candidates of their choice. See Hays U.S. Br. 33-34. That interest was recognized by three Justices in UJ0. See 430 U.S. at 167 (White, J., joined by Rehnquist and Stevens, JJ. ). It also follows from the general principle, recognized by this Court in Croson, that a State has a compelling interest in remedying identified discrimination within its jurisdiction, even when it has no federal statu- tory duty to do so. 488 U.S. at 491-493, 509. Applying that analysis leads to the conclusion that polarized voting in Georgia gives the State a compelling interest in creating a plan with three majority-minority districts. As we have noted. racially polarized voting in Georgia virtually precludes the election of black-supported black candidates in majority-white districts. Based on the evidence before it, the State had every reason to believe that unless it created an additional district in which blacks constituted a majority, bloc voting by whites would pre- clude minority voters from having any realistic chance to elect an additional representative of their choice and would leave them substantially underrepresented. In those circumstances, the State had a compelling interest in creat- ing three majority-minority districts in an effort to achieve a fair allocation of political power between white and nonwhite voters. ___________________(footnotes) vote requirement) ; United States V. Georgia, Civ. No. 1:90-CV- 1749-RCF (N.D. Ga) (same) ; Brooks V. State Bd. of Elections, 848 F. Supp. 1548 (S.D. Ga. 1994) (judicial elections). Following Section 5 objections by the Attorney General, Georgia also was seeking judicial preclearance to expand its at-large judicial election system. Georgia v. Reno, No. 90-2065 (D. D. C.) (three-judge court). The State was well aware that any concession of racial polarization for redistricting purposes could adversely affect its position in ongo- ing voting rights litigation. ---------------------------------------- Page Break ---------------------------------------- 40 The district court rejected this interest on the ground that proportional representation is neither a statutory nor a constitutional requirement, and on the ground that "[t]o erect the goal of proportional representation is to erect an implicit quota for black voters." J.S. App. 53a. We agree that proportionality is not a statutory or constitu- tional requirement. But we disagree that a State's desire to ameliorate the effects of severely racially polarized voting would necessarily constitute a "quota." Where the State attempts to achieve its goal through means that are narrowly tailored, the result is not a "quota" for minority voters, but a fair opportunity for them to elect the candi- dates of their choice. Johnson v. DeGrandy, 114 S. Ct. 2647,2658 n.11 (1994). B. The State's Plan Is Narrowly Tailored To Further Its Compelling Interests The State's plan was also narrowly tailored to further its compelling state interests. Relying on United States v. Paradise, 480 U.S. 149, 171-185 (1987) (plurality opinion ), courts have focused on three narrow tailoring requirements in the redistricting context. First, a State may not create more majority-minority districts than ei- ther the Voting Rights Act or the State's interest in fairly allocating political power justifies. Shaw v. Hunt, 861 F. Supp. at 446: J.S. App. 82a. Second, a State may not needlessly pack substantially more minority voters into a district than are reasonably necessary to give the minor- ity group an opportunity to elect the candidate of its choice. ibid. And third, a State may not create an ex- tremely irregular district when a far more regular district would be equally effective in serving the State's compelling interest and the creation of the more compact district would not compromise the State's other legitimate redis- tricting interests. 22 Hays v. Louisiana, 839 F. Supp. ___________________(footnotes) 22 The narrow tailoring principle does not require a state to draw the most compact district possible. See Jurisdictional Statement, ---------------------------------------- Page Break ---------------------------------------- 41 1188, 1206-1209 (W.D. La. 1993), vacated on other grounds, 114 S, Ct. 2731 (1994). The district court did not find that the first and third of those criteria were not satisfied here, and the record would not have supported any such finding. The district court did find, however, that the State's plan was not nar- rowly tailored because the African-American share of the Eleventh District's population was too high. J.S. App. 63a-87a. According to the district court, "a black candi- date in Georgia would have an `equal' chance of being elected in a district containing 45-50% black registered voters." J.S. App. 86a. As drawn, the district was 64% African-American in total population and 60% African- American in voting age population. J.S. App. 21a n. 12. Based on official voter registration data, at the time of the redistricting, the district "was estimated to have been 51. 1% African-American in registered voters. Joint Exh. 17, at 67. 23 The district court's finding that the propor- tions were excessive was based on two erroneous legal premises. First, the district court took the position that the pro- portionately lower registration and turnout rates of African- American voters should not be figured into the calcula- tion. To consider those factors, the court held, would "amount[] to an incentive for and institutionalization of black voter apathy." J.S. App. 86a. Both this Court and other courts addressing the issue, however, have held that past discrimination and socioeconomic disadvantage may suppress voter turnout and registration among African- Americans. Gingles, supra, 478 U.S. at 36, n.4 (quoting S. Rep. No. 417, 97th Cong., 2d Sess. 28 ( 1982)), 38 (lower court found such disadvantage among North Caro- ___________________(footnotes) United States v. Vera, No. 94-988, at 11-14. A State may legitimately give priority to redistricting interests other than compactness, such as protecting incumbents. 23 There was evidence that, by 1992, 57% of the registered voters in the district were African-American. See Defendants' Joint Exh. 21, at 139. ---------------------------------------- Page Break ---------------------------------------- 42 lina blacks), 69 (expressly endorsing the principle). See also States v. Dallas County Commission, 739 F. 2d 1529, 1537 (11th Cir. 1984); United States v. Marengo County Commission, 731 F.2d 1546, 1574 (1lth Cir. ), appeal dism. and cert. denied, 469 U.S. 976 ( 1984). Dr. Lichtman testified without contradiction in this case (5 Tr. 206-207) that those factors operate to depress black turnout in Georgia. See Joint Statement of Undisputed Facts, at 40-44. To ignore those factors in creating a majority-minority district would be to give con- tinuing effect to the past discrimination that the State seeks to remedy. Second, the district court apparently believed that a district cannot be justified as narrowly tailored if a court determines, after thorough litigation of the issue, that the district contains more minority population than the court finds would have been necessary to advance the State's compelling interest. At the time the State creates the dis- trict. however, the State must rely on available data, and the State certainly cannot be expected to predict with precision the determination that a court might make on the issue after it has been contested in litigation. The percentage of minority population necessary to give minori- ty voters an opportunity to elect the candidates of their choice in a given district is necessarily a rough calcula- tion. especially at the time of redistricting. The number the State used here-60% black voting age population- was supported by very substantial evidence in this case, see 5 Tr. 205-220, 279-283 (testimony of Allan Lichtman); U.S. Exh. 24, at 20-37, and is well within the range that has been thought appropriate in similar con- texts. See, e.g., Ketchum v. Byrne, 740 F.2d 1398, 1413- 1417 (7th Cir. 1984), cert. denied, 471 U.S. 1135 (1985): Jeffers v. Clinton, 756 F. Supp. 1195 (E.D. Ark. 1990). aff'd mem.. 498 U.S. 1019 (1991). Espe- cially in light of the federal interest in encouraging volun- tary compliance with the law. see. e.g., Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 274, 277-278 (1986) (plurality opinion): id. at 290-291 (O'Connor, J., con- ---------------------------------------- Page Break ---------------------------------------- 43 curring in part and concurring in the judgment); id. at 305 (Marshall, J., dissenting), the State had a more than adequate basis for drawing the Eleventh District with the minority population it contained. CONCLUSION The judgment of the district court should be reversed. Respectfully submitted. DREW S. DAYS, III Solicitor General DEVAL L. PATRICK Assistant Attorney General PAUL BENDER Deputy Solicitor General JAMES A. FELDMAN Assistant to the Solicitor General STEVEN H. ROSENBAUM MIRIAM R. EISENSTEIN Attorneys February 1995 ---------------------------------------- Page Break ---------------------------------------- APPENDIX Section 2 of the Voting Rights Act of 1965, 42 U.S.C. 1973, provides: (a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political sub- division in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on acount of race or color, or in con- travention of the guarantees set forth in section 1973b (f) (2) of this title, as provided in subsection (b) of this section. (b) A violation of subsection (a) of this section is established if, based on the totality of circum- stances, it is shown that the political processes lead- ing to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population. Section 5 of the Voting Rights Act, 42 U.S.C. 1973c provides: Whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b ( a) of this title based upon determinations made under the first sentence of section 1973b (b) of this title are in effect shall enact or seek to admin- (1a) ---------------------------------------- Page Break ---------------------------------------- 2a ister any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on No- vember 1, 1964, or whenever a State or political sub- division with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the second sentence of section 1973b (b) of this title are in effect shall enact or seek to administer any voting qualification or pre- requisite to voting, or standard, practice, or proce- dure with respect to voting different from that in force or effect on November 1, 1968, or whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the third sentence of section 1973b (b ) of this title are in effect shall enact or seek to administer any voting qualifica- tion or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1972, such State or subdivision may institute an action in the United States District Court for the District of Co- lumbia for a declaratory judgment that such qualifi- cation, 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, or in contravention of the guaran- tees set forth in section 1973b (f ) ( 2 ) of this title, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualifi- cation, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or pro- cedure has been submitted by the chief legal officer ---------------------------------------- Page Break ---------------------------------------- 3a or other appropriate official of such State or sub- division to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, or upon good cause shown, to facilitate an expedited approval within sixty days after such submission, the Attorney Gen- eral has affirmatively indicated that such objection will not be made. Neither an affirmative indication by the Attorney General that no objection will be made, nor the Attorney General's failure to object, nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. In the event the Attorney General affirmatively indicates that no objection will be made within the sixty-day period following receipt of a submission, the Attorney General may reserve the right to reexamine the submission if additional infor- mation comes to his attention during the remainder of the sixty-day period which would otherwise require objection in accordance with this section, Any action under this section shall be heard and determined by a court of three judges in accordance with the pro- visions of section 2284 of title 28 and any appeal shall lie to the Supreme Court. U.S. GOVERNMENT PRINTING OFFICE; 1995 387147 20045 ---------------------------------------- Page Break ---------------------------------------- No. 94-929 In the Supreme Court of the United States OCTOBER TERM, 1994 UNITED STATES OF AMERICA, APPELLANT V. DAVIDA JOHNSON, ET AL. ZELL MILLER, ET AL., APPELLANTS V. DAVIDA JOHNSON, ET AL. LUCIOUS ABRAMS, JR., ET AL., APPELLANTS V. DAVIDA JOHNSON, ET AL. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA REPLY BRIEF FOR THE UNITED STATES DREW S. DAYS, III Solicitor General Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- TABLE OF AUTHORITIES Cases: City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) . . . . 10 Davis v. Bandemer, 478 U.S. 109 (1986) . . . . 5 Gaffney v. Cummings, 412 U.S. 735 (1973) . . . . 5 McCain v. Lybrand, 465 U.S. 236 (1984) . . . . 13 McDaniel v. Sanchez, 452 U.S. 130 (1981) . . . . 13 Mississippi University for Women v. Hogan, 458 U.S. 718 (1982) . . . . 10 Morris v. Gressette, 432 U.S. 491 (1977) . . . .13 Perkins v. Matthews, 400 U.S 379 (1971) . . . . 13 Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990) . . . . 5 Shaw v. Reno, 113 S. Ct. 2816 (1993) . . . . 6 Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977) . . . .3, 13 Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) . . . . 10 Constitution, statutes and regulation: U.S. Const. Amend. XIV (Equal Protection Clause) . . . . 3 Voting Rights Act of 1965, 42 U.S.C. 1973 et seq.: 2, 42 U.S.C. 1973 . . . . 11, 12 5, 42 U.S.C. 1973c . . . . 5, 10, 11, 12, 13, 14 (I) ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1994 No. 94-929 UNITED STATES OF AMERICA, APPELLANT v. DAVIDA JOHNSON, ET AL. ______________________________ No. 94-631 ZELL MILLER, ET AL., APPELLANTS v. DAVIDA JOHNSON, ET AL. _______________________ No. 94-797 LUCIOUS ABRAMS, JR., ET AL., APPELLANTS v. DAVIDA JOHNSON, ET AL. ON APPPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA REPLY BRIEF FOR THE UNITED STATES 1. a. In our opening briefs in this case and in United States v. Hays, Nos. 94-558 and 94-627, we argue in some detail that the configuration of an electoral district is not subject to strict scrutiny (1) ---------------------------------------- Page Break ---------------------------------------- 2 merely because the State intended to-and did- create the district with a majority-minority pop- ulation. See U.S. Br. 17-22; Hays - U.S. Br 14-20. Underlying our argument is the premise that subjecting a district to strict scrutiny on that basis would, in effect, require states to place racial minority groups at a political disadvantage. One important purpose of drawing district lines in one place rather than another is to recognize politically cohesive communities of voters. Minor- ities in this country and, in particular, African- Americans-frequently constitute distinctive geo- graphical and political communities, and the evidence of political cohesion of African-Americans in this case, see U.S. Br. 37-38, establishes that African- Americans living in the area encompassed by the Eleventh District of Georgia constitute such a community, with many common political interests. ] ___________________(footnotes) 1 The political cohesion of this minority group is explicable at least in part as a result of the political interests shared by African-Americans in the Eleventh District, Extensive evidence on that subject was presented at trial. See, e.g., 6 Tr. 27-48 (testimony of Rev. Mitchell), 137-194 (testimony of Dr. Marsha Darling); see also J.S. App. 45a (referring to such evidence). The district court found such evidence at least " partially convincing," id. at 44a, although it expressed doubt that "the poor black populations of coastal Chatham County feel a significant bond to the black neighborhoods of metro Atlanta. " Ibid. Nor did the court doubt that African- Americans in the Eleventh District were politically cohesive. It found that "the average percentage of blacks voting for white candidates ranged from 20%-23%," i.e., 77% to 80% of African-Americans voted for African-American candidates when they had the opportunity. Id. at 82a. For the reasons given in our opening brief, see U.S. Br. 37 n.20, even those figures are substantially understated. Dr. Lichtman, the ---------------------------------------- Page Break ---------------------------------------- 3 To hold that the intent to create a district in which they are the majority is, for that reason alone, suspect under the Equal Protection Clause would be to place minority racial groups with distinctive political interests at a severe disadvantage in the political process. Under such a holding, a State that intentionally draws a district to recognize the voting power of a politically cohesive minority group-even a district that indisputably adheres to the State's traditional districting practices with regard to compactness, etc would automatically subject that district to strict scrutiny if litigation ensued. The legal uncertainty and litigation costs that would result would give the States a powerful reason not to recognize the political interests of such groups, resulting in a substantial political disadvantage to the groups whom the Equal Protection Clause was primarily designed to protect.2 b. Appellees in some places argue that an in- tentionally created majority-minority district must nevertheless be subjected to strict scrutiny under the Equal Protection Clause. For example, they state that "[u]nder [Village of] Arlington Heights [v. Metropolitan Housing Development Corp., 429 U.S. 252, 266 (1977),] and Hunter v. Underwood, 471 U.S. ___________________(footnotes) United States' expert, using statewide and congressional Democratic primary elections in the Eleventh Districts, found that 65% to 97% of African-Americans voted for African- American candidates in races involving white candidates as well; in seven of the eight races analyzed, that figure was 89% or higher. See U.S. Exh. 24, tables 1-2. 2 Minority political groups would be at an even greater political disadvantage under the district court's view that "such a [racially defined] community of interest is barred from constitutional recognition." J.S. App. 44a (emphasis added). ---------------------------------------- Page Break ---------------------------------------- 4 222-228 (1985), once a racial classification is shown to have been a `substantial' or `motivating' factor behind an enactment, the burden then shifts to the state to demonstrate that the law would have been enacted without this factor." Appellees' Br. 35. Precisely because members of a minority group are in the minority in a State's overall population, however, majority-minority districts are ordinarily created by design, not coincidence. Therefore, under appellees' approach, all majority-minority districts will potentially be subject to strict scrutiny. Appellees claim that, under the standard they advocate, "it would be very difficult to even conceive of a congressional district that would be challenged (let alone subjected to strict scrutiny) without highly irregular features tied to race." Appellees' Br. 34. That statement is wrong. Under appellees' standard, a perfectly compact district comprising a politically cohesive majority-minority community or commu- nities would be subject to strict scrutiny so long as the State had a choice in drawing the district lines and drew them as it did in order to provide the minority community with representation. Should appellees' standard be adopted, few majority-minority districts would avoid strict scrutiny. Indeed, ap- pellees appear to recognize that fact when they acknowledge that, "[f] or practical reasons, the District Court * * * added the requirement that race be the `overriding' or `predominant' force determining the lines of the district." Appellees' Br. 35 (emphasis added). As we argue in our opening brief, however, the district court's "predominant motive" standard poses essentially that same prospect that virtually every majority-minority ---------------------------------------- Page Break ---------------------------------------- 5 district will be subject to strict scrutiny. See U.S. Br. 18-19.3 ___________________(footnotes) 3 The district court's numerous different formulations of the standard also give a hint of the analytical difficulties that would attend its application. The district court thus states variously that the test is whether race "was the substantial or motivating consideration in creation of the district in question," J.S. App. 35a (footnote omitted); whether race was the "overriding, predominant force determining the lines of the district," ibid.; whether race is not merely "one factor among many of equal or greater significance to the drafters," ibid.; whether "race was the most prominent element driving the legislatures' planning," id. at 35a n.19; and whether race was "not * * * one motivation among others of equal strength propelling the process," ibid. Amici Washington Legal Foundation, et al., assert that our objections to inquiring into a legislature's "overriding" or "predominant" motive are "disingenuous coming from the federal government, which regularly engages in exhaustive examination of legislative intent in connection with its pre- clearance authority under 35 of the Voting Rights Act." Br. 13. Our Section 5 inquiry, however, does not require identification of an "overriding" or "predominant" motive. As we explain in our opening brief, see U.S. Br. 32-34, our Section 5 inquiry looks into the possible existence of an improper legislative purpose to discriminate, employing the accepted "motivating factor" analysis derived from this Court's decision in Arlington Heights. There is nothing improper, however, about a legislative purpose to recognize the political interests of a racial minority group in the same way that other (and often competing) political interests are recognized in a State. For similar reasons, this Court has upheld redistricting plans that plainly were based on the political affiliations of voters, see, e.g., Davis v. Bandemer, 478 U.S. 109 (1986); Gaffney v. Cummings, 412 U.S. 735 (1973), while making clear that other governmental decisions based on political affiliation are subject to heightened scrutiny, see Rutan v. Republican Party of Illinois, 497 U.S. 62, 74 (1990). See generally Amicus Curiae Georgia Ass'n of Black Elected Officials Br. 12-18. ---------------------------------------- Page Break ---------------------------------------- 6 For the reasons given above and in our opening brief, we submit that the State's intent to create a majority-minority district-whether analyzed under a "motivating factor" standard or the "predominant motive" standard adopted by the district court in this case-does not alone require the application of strict scrutiny. Instead, this Court's decision in Shaw v. Reno, 113 S. Ct. 2816 (1993), provides the appropriate guidepost. Where the shape of a challenged district 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, 113 S. Ct. at 2824, it betrays the State's intent to draw lines for the minority group that it is unwilling to draw for other politically cohesive groups. In that "rare" cir- cumstance, id. at 2825, the Court has held that the State must justify its action under strict scrutiny. 2. We state in our opening brief that the test for "extreme irregularity" or "bizarreness" under Shaw s whether, "in drawing the district, the State departs dramatically from its traditional districting practices." U.S. Br. 14. Appellees do not appear to disagree; they state that "[r]acial gerrymandering occurs when the State draws a district that artifi- cially manipulates non-compact dispersed minority populations into a majority black district without regard for the State's traditional districting principles." Appellees' 13r. 24. But they argue that the district court's determination that the Eleventh District is "bizarre" under that standard was not clearly erroneous. The district court, however, gave no indication that it employed the correct legal standard in reaching its conclusion. Instead, as we explain in our opening brief (IT. S. Br. 25), the court approached the "bizarre- ---------------------------------------- Page Break ---------------------------------------- 7 ness" inquiry by assuming that its purpose was to uncover whether the State had an "overriding objective to include minority populations in the Eleventh [District]." J.S. App. 47a. That improper focus led the district court to give inappropriate weight to several facts that were of little or no relevance, and to disregard factors that should have guided the inquiry. See U.S. Br. 25-27. For the reasons given in our opening brief, see U.S. Br. 23-25, and by Judge Edmondson in his dissenting opinion, see J.S. App. 96a-100a, we believe that the Eleventh District satisfies the Shaw standard. Appellees argue that the Eleventh District is a dramatic departure from Georgia's traditional districting principles because it splits eight counties (while leaving 14 intact) and the Georgia redistrict- ing plan as a whole splits 31 municipalities. Appellees' Br. 14-15. As appellees concede, however, Georgia has split counties in the past. Id. at 15. Equally important, the current Georgia redistricting plan splits numerous counties for reasons that in many places have nothing to do with race. See U.S. Br. 24 n.7. The Sixth District, for example, is comprised of parts of five different counties and no intact counties at all. Although appellees in a footnote claim that "[t]he [Sixth] district had to split counties due to one-person one-vote and the need to maintain the majority-minority Fifth District," Appellees' Br. 22 n.21, they cite to nothing in the record to support that statement. In fact, the evidence showed that the configuration of the Sixth ---------------------------------------- Page Break ---------------------------------------- 8 District was based on a desire to achieve certain largely political goals. 4 With respect to split municipalities, appellees also concede that Georgia's plans in the past have split municipalities for reasons other than compli- ance with the one-person, one-vote requirement. Appellees' Br. 15. Moreover, although they state that the current Georgia plan as a whole splits 31 municipalities, see i bid., they do not state that only six of these municipalities are split by the Eleventh District.5 Elsewhere in the plan, other districts split more municipalities for reasons that appear to have nothing to do with race.6 ___________________(footnotes) 4 Senator Garner, who was the majority leader of the Georgia Senate, a member of its reapportionment committee, and a member of the conference committee on the re- apportionment bills, and Speaker Murphy of the Georgia House of Representatives both testified that the Sixth District's configuration was due in large part to Murphy's desire that the district not include his residence. See 3 Tr. 229 (Garner); 2 Tr. 75-79 (Murphy); accord 3 Tr. 264-265 (testimony of Rep. Hanner, Chair of House Reapportionment Committee); 4 Tr. 349 (testimony of Oscar Persons). Lieutenant Governor Pierre Howard also testified by video- taped deposition, the transcript of which was admitted in evidence as Plaintiffs' Exhibit (PX) 216A, see 4 Tr. 184. Referring to the Sixth District, Howard testified that the legislature was "trying to make sure that it's as Republican as possible." PX 216A, at 95. 5 The six municipalities are Augusta, Savannah, Mil- ledgeville, Port Wentworth, Thunderbolt, and Washington. 6 For example, six of the 31 municipalities on the list are in Gwinnett County and are split between some combination of the Fourth, Sixth, and Tenth districts, all of which are majority white. Those municipalities are Duluth, Lawrence- ville, Norcross, Snellville, Sugar Hill, and Suwanee. The majority-white Sixth District alone splits eight municipalities, ---------------------------------------- Page Break ---------------------------------------- 9 3. Appellees argue (Br. 37-39) that, if strict scrutiny is applied to the Eleventh District, the district does not survive it, because in their view the State in this litigation has not itself advanced any interest that it considers to be compelling and that motivated it in creating the Eleventh District. In appellees' view, the State's litigation position on this issue is dispositive, even though private individuals and the United States are now also parties defendant and offer compelling interests in support of the State's position. Appellees' view is mistaken. When applying strict scrutiny, the question is whether the challenged state action (in this case, the creation of the Eleventh District) was narrowly tailored to satisfy a com- pelling state interest. As a plurality of this Court stated (in a passage quoted by appellees themselves, see Appellees' Br. 38-39), "the purpose of strict scrutiny is to `smoke out' illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool." City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (opinion of O'Connor, J.). The crucial question is thus whether the legislative body-not ___________________(footnotes) two more than are split by the Eleventh District. They are Duluth, Lawrenceville, Norcross, Sugar Hill, Suwanee, Marietta, Smyrna, and Woodstock. This information and that in the previous footnote are derived by locating the cities on appellees' list on a map of Georgia; appellees themselves did not introduce evidence about which districts split each of the municipalities. It should be noted that appellees' list is in any event misleading, since it omits the numerous split municipalities in the present and past plans that overlap more than one county. See 2 Tr. 138-140 (testimony of Linda Meggers). ---------------------------------------- Page Break ---------------------------------------- 10 the lawyers representing the State or state officials in later litigation-was pursuing a compelling state interest and employed means narrowly tailored to advance it. As this Court explained in Weinberger v. Wiesenfeld, 420 US. 636, 648 (1975), "the mere recitation of a benign. compensatory purpose is not an automatic shield which protects against any inquiry into the actual purposes underlying a statutory scheme. " The appropriate inquiry turns on an examination of "the statutory scheme itself and * * * the legislative history ''-not the litigation positions advanced by attorneys representing one of the parties. Ibid. Accord Mississippi University for Women v. Hogan, 458 U.S. 718,728 (1982). In any event, there is no doubt that, at the time the State adopted its plan, the State believed that creating the Eleventh District was necessary to comply with Section 5 of the Voting Rights Act, and that such compliance was a compelling state interest that supported the State's action here. The State knew that the Attorney General had interposed Section 5 objections to the two previous redistricting plans, a fact that in our view is sufficient to support the State's belief that its creation of the Eleventh District was necessary to comply with Section 5, Moreover, Mark Cohen, a Senior Assistant Attorney General of Georgia, testified at trial that he advised the leadership of the state legislature that the State should not file a Section 5 declaratory judgment suit to obtain preclearance for the State's second plan, because he thought that the State would lose such a suit, as it had lost a similar Section 5 suit ten years earlier. 5 Tr. 5-6. The district court made no finding that the State did not create the Eleventh District on the basis of that belief. Thus, whatever may be the ---------------------------------------- Page Break ---------------------------------------- 11 State's position now in litigation, the state legislature that drew the Eleventh District was motivated by a desire to comply with Section 5 of the Voting Rights Act. The state legislature also acted for the purpose of complying with Section 2 of the Voting Rights Act.7 The district court did not suggest otherwise, but instead concluded that, in its view, the failure to draw a third majority-minority district would not have subjected the State to Section 2 liability. For the reasons given in our opening brief in this case and in Hays, we believe that the district court erred in undertaking a de novo inquiry into that issue. See U.S. Br. 28-29; Hays U.S. Br. 27-28. The question before the district court was not whether a court would have found Section 2 liability in a hypothetical lawsuit challenging the State's failure to create a third majority-minority district. Rather, the question was whether the objective facts considered by the State would reasonably support a conclusion that a prima facie case existed under Section 2. As we argue in our opening brief, U.S. Br. 37-38, such facts were before the legislature. The State has also contended throughout this litigation that it acted to advance a compelling interest in affording minority voters a fair opportunity for representation, and that contention is supported by the record. See e.g., 4 Tr. 239 ___________________(footnotes) 7 Georgia was facing a number of statewide Section 2 challenges at the time it enacted its redistricting legislation. See U.S. Br. 38 n.21. Moreover, as appellees themselves emphasize, at the time the legislature acted, it was also facing a pending suit alleging that the State's then-current redistricting plan was in violation of Section 2. See Appellees' Br. 22 n.22. ---------------------------------------- Page Break ---------------------------------------- 12 (testimony of State Rep. Brooks); PX 216A, at 55 (deposition of Lieut. Gov. Howard). Where minority voters have little opportunity to elect candidates of their choice because of racially polarized voting, the State has an interest, independent of the Voting Rights Act, in drawing majority-minority districts. See U.S. Br. 39-40. Such a situation exists in Georgia, as demonstrated both by the direct evidence of racial polarization and by the fact that, with one exception, all of the black state legislators in Georgia were elected from majority-minority districts. See U.S. Br. 37-38. Although Section 2 of the Voting Rights Act requires States to create majority- minority districts in some circumstances, nothing in Section 2 suggests that it was intended to set a limit on the extent to which States could do so. 4. Appellees argue (Appellees' Br, 39-43) that the Attorney General's Section 5 objections to the State's two earlier plans did not provide a basis for the State to believe that creating the State's final :)Ian, with three majority-minority districts and the :urrent configuration of the Eleventh District, was "required by Section 5 of the Voting Rights Act. They base their argument on their allegation that the Attorney General's objections were meritless, and hat the objections could therefore not have provided he State with a reasonable basis for believing that its actions were necessary to comply with Section 5. As we explain in our opening brief, the question whether the Attorney General was correct in ob- jecting to Georgia's first two plans was not before the district court.8 Given the Attorney General's role in ___________________(footnotes) 8 Notwithstanding extensive statements on the issue in its pinion, the district court on several occasions assured the ---------------------------------------- Page Break ---------------------------------------- 13 the Section 5 statutory scheme, a State must ordinarily be able to rely on a Section 5 objection as an administrative finding of discrimination that can justify remedial action by the State. See U.S. Br. 30. Moreover, to permit back-door review of the merits of a Section 5 objection in the course of a Shaw challenge to a districting plan is inconsistent with the statutory scheme. Congress precluded all direct review of the Attorney General's objections and channeled all litigation about the merits of those objections to a special judicial preclearance action in the District Court for the District of Columbia. See Morris v. Gressette, 432 U.S. 491, 504-505 (1977); see also McCain v. Lybrand, 465 U.S. 236, 246-247 (1984); McDaniel v. Sanchez, 452 U.S. 130, 150-151 (1981); Perkins v. Matthews, 400 U.S. 379, 385 (1971). If a Section 5 objection by the Attorney General is not clearly insupportable, it therefore provides a sound basis for the State to take action. We argue in our opening brief that the Attorney General's objections in this case were amply sup- ported. U.S. Br. 31-34 (citing Arlington Heights, 429 U.S. at 266-267). Appellees do not take issue with ___________________(footnotes) parties that it would not review the merits of the Attorney General's Section 5 objection. See, e.g., Order of March 30, 1994, at 3 n.2 ("Plaintiffs have not petitioned the Court to directly rule on the correctness or the constitutionality of the DOJ'S pre-clearance decisions."); Order of June 6, 1994, at 4-5 ("The DOJ'S refusals to preclear the State's first two congressional plans submitted may not be reviewed for their correctness; those refusals and communications regarding the preclearance process for the current plan may be probative, however, insofar as they may have provided the impetus for the drawing of the plan at issue here."). ---------------------------------------- Page Break ---------------------------------------- 14 that analysis; what they offer instead is un- persuasive. Appellees claim that the Attorney General's objections to the two earlier plans were unsound because the Attorney General was employing a mistaken "maximization" or "proportionality" standard in assessing purpose under Section 5. Appellees' Br. 40-43. As we have explained, although it may be the case that some individuals or interest groups in Georgia desired "maximization" or "proportionality," and that others brandished those terms to achieve goals of their own, 9 the Attorney General has never employed those standards in analyzing purpose under Section 5 and did not do so here. See U.S. Br. 35-36. 10 ___________________(footnotes) 9 Individuals in Georgia who have their own goals in the redistricting process are not and were not authorized to speak for the Attorney General of the United States concerning the standards to be applied in making Section 5 preclearance decisions or any other matter. Appellees' citation to statements by those individuals thus have no bearing on the issue. See, e.g., Appellees' Br. 18 (quoting statement of State Rep. Tyrone Brooks), 20-21 (quoting statements of State Sen. Garner). 10 Appellees quote the district court's statement that Thomas Armstrong, an attorney for the Department of Justice, testified that he "could not recall seeing any evidence of discriminatory motives on the part of the Georgia legislature." Appellees' Br, 40. See J.S. App. 13a n.7. The precise question asked of Mr. Armstrong was whether he could "recall * * * a single piece of evidence that would suggest that * * * the failure to go to [Savannah] was originally based on * * * discriminatory motives, other than the mere fact that it could be done." 4 Tr. 148-149 (emphasis added). He responded that he could not recall any such evidence. 4 Tr. 149. It was undisputed, however, that Mr. Armstrong's responsibilities did not include examining the purpose issue in this case. See 4 Tr. 149. Therefore, Mr. Armstrong's ---------------------------------------- Page Break ---------------------------------------- 15 * * * * * For the foregoing reasons and those stated in our opening brief, the judgment of the district court should be reversed. Respectfully submitted. DREW S. DAYS, III Solicitor General APRIL 1995 ___________________(footnotes) statement at trial does not cast doubt on the validity of the Section 5 objection in this case.