OCTOBER TERM, 1996
Syllabus
ABRAMS ET AL.
v. JOHNSON ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF GEORGIA
No. 95-1425. Argued December 9, 1996-Decided June 19, 1997*
The electoral district lines for Georgia's congressional
delegation are here a second time, appeal now being taken from the
District Court's rulings and determinations on remand after
Miller v.
Johnson, 515 U. S. 900, in which
this Court affirmed the finding that the State's Eleventh District
was unconstitutional because race was a predominant factor in its
drawing, id., at 915-917. The plan challenged contained three
majorityblack districts, and after remand the complaint was amended
to challenge another of these, the then-Second District, which the
trial court found was also improperly drawn under
Miller.
The court deferred to Georgia's Legislature to draw a new plan, but
the legislature could not reach agreement. The court then drew its
own plan, containing but one majority-black district, the Fifth;
this Court declined to stay the order; and the 1996 general
elections were held under it. The appellants, various voters and
the United States, now seek to set the trial court's plan aside,
claiming that it does not adequately take into account the
interests of Georgia's black population.
Held: The District Court's redistricting plan is not
unconstitutional. pp.79-101.
(a) The trial court did not exceed its remedial power under the
general rule of
Upham v.
Seamon, 456 U. S. 37, 43
(per
curiam), whereby courts drawing voting district lines must be
guided by the legislative policies underlying the existing plan, to
the extent they do not lead to violations of the Constitution or
the Voting Rights Act of 1965 (Act). Appellants' argument that this
rule required the trial court to adopt three majority-black
districts, as in the 1992 plan at issue in
Miller, or two
such districts, as in the Georgia Legislature's original 1991 plan,
is unavailing, given the background against which the
legislature-and later the trial court-attempted to draw districts.
The considerable evidence of Justice Department pressure on Georgia
to create the maximum number of majority-black districts, leading
the state legislature to act based on an overriding concern with
race, disturbed any sound basis for the trial court to defer to the
1991 plan; the unconstitutional pre-
*Together with No. 95-1460,
United States v.
Johnson
et al., also on appeal from the same court.
75
dominance of race in the 1992 plan's provenance of the Second
and Eleventh Districts caused them to be improper departure points;
and the proposals for either two or three majority-black districts
in plans urged in the remedy phase of this litigation were flawed
by evidence of predominant racial motive in their design. Thus, the
trial court acted well within its discretion in deciding it could
not draw two majority-black districts without engaging in racial
gerrymandering. Pp. 79-90.
(b) The court-ordered plan does not contravene § 2 of the Act, a
violation of which occurs if "it is shown that the political
processes leading to ... election ... are not equally open to
participation by members of [a racial minority] ... ," 42 U. S. C.
§ 1973(b). The Court rejects appellants' contrary position premised
on impermissible vote dilution in the trial court's failure to
create a second majority-black district. A plaintiff seeking to
establish such dilution must,
inter alia, meet three
requirements set forth in
Thornburg v.
Gingles,
478 U. S. 30,
50-51. Because the trial court found, without clear error, that the
black population was not sufficiently compact for a second
majority-black district, the first of these factors is not
satisfied. Nor can it be said, given evidence of significant white
crossover voting, that the trial court clearly erred in finding
insufficient racial polarization to meet the second and third
Gingles factors, that the minority group is "politically
cohesive" and that the majority votes sufficiently as a bloc to
enable it to defeat the minority's preferred candidate. The Court
disagrees with appellants' arguments that the trial court's § 2
findings are not owed deference because its rulings that § 2
required maintenance of the Fifth District but not creation of a
new majority-black district are inconsistent, because it did not
hold a separate hearing on whether its remedial plan violated § 2,
and because it barred private intervention to defend the Second
District's constitutionality. Pp. 90-95.
(c) The plan does not violate § 5 of the Act, which requires
that covered jurisdictions obtain either administrative
preclearance by the United States Attorney General or approval from
the United States District Court for the District of Columbia for
any voting-procedure change, and that such a change "not have the
purpose [or] effect of denying or abridging the right to vote on
account of race or color," 42 U. S. C. § 1973c. The section aims to
prevent changes leading to a retrogression in the position of
racial minorities with respect to their effective exercise of the
electoral franchise.
Beer v.
United States, 425 U. S. 130, 141.
Although a court-devised redistricting plan such as the one at
issue need not be precleared under § 5,
Connor v.
Johnson, 402
U. S. 690, 691
(per curiam), the court should take into
account the appropriate § 5 standards in fashioning such a plan,
McDaniel v.
Sanchez, 452 U. S. 130, 149. Even
were this Court to accept one of appellants' proposed
benchmarks
76
Syllabus
for measuring retrogression, their desired remedy would be
impermissible because they have not demonstrated it was possible to
create a second majority-black district within constitutional
bounds. Moreover, none of their proposed benchmarks-the 1991 plan,
the State's supposed policy of creating two majority-black
districts, and the 1992 plan shorn of its constitutional
defects-was ever in effect, and thus none could operate as a
benchmark under the Attorney General's regulations and,
e. g.,
Holder v.
Hall, 512 U. S. 874, 883-884.
Nor can the 1992 plan, constitutional defects and all, be the
benchmark, since § 5 cannot be used to freeze in place the very
aspects of a plan found unconstitutional. The appropriate benchmark
is, in fact, what the District Court concluded it would be: the
1982 plan, in effect for a decade. Appellants have not shown that
black voters in any particular district suffered a retrogression in
their voting strength under the court plan measured against the
1982 plan. Pp. 95-98.
(d) The plan does not violate the constitutional guarantee of
one person, one vote under Article I, § 2. Although court-ordered
districts must ordinarily achieve that provision's goal of
population equality with little more than
de minimis
variation,
e. g., Chapman v.
Meier, 420 U. S. 1, 26-27, slight
deviations are allowed upon enunciation of unique features or
historically significant state policies, id., at 26, including,
e. g., the desire to respect municipal boundaries and to
preserve the cores of prior districts,
Karcher v.
Daggett, 462
U. S. 725, 740. Here, the trial court's plan has an overall
population deviation lower than any other plan presented to it
which was not otherwise constitutionally defective. Moreover, the
court recited in detail those factors supporting the plan's slight
deviation, including Georgia's strong historical preference for not
splitting counties outside the Atlanta area and for not splitting
precincts, as well as the State's interests in maintaining core
districts and communities of interest, given its unusually high
number of counties. Even if this Court found the plan's population
deviation unacceptable, the solution would not be adoption of
appellants' constitutionally infirm, race-based, plans, but simply
the shifting of a few precincts to even out the districts with the
greatest deviations. Moreover, equitable considerations-the passage
of more than six years since the census on which appellants' data
is based and Georgia's ongoing and dramatic population shifts and
changes-disfavor requiring yet another reapportionment to correct
the court plan's deviation. See id., at 732. Pp.98-10l.
922 F. Supp. 1556, affirmed.
KENNEDY, J., delivered the opinion of the Court, in which
REHNQUIST,
77
a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG,
JJ., joined,
post, p. 103.
Deputy Solicitor General Waxman argued the cause for the United
States. With him on the briefs were Acting Solicitor General
Dellinger, Assistant Attorney General Patrick, Deputy Solicitor
General Bender, James A. Feldman, Steven H. Rosenbaum, and Miriam
R. Eisenstein. Laughlin McDonald argued the cause for appellants
Abrams et al. With him on the briefs were Neil Bradley, Mary
Wyckoff, Elaine R. Jones, Norman J. Chachkin, Jacqueline Berrien,
and Gerald R. Weber.
Michael J.
Bowers, Attorney General of Georgia,
argued the cause for appellees Miller et al. With him on the brief
were
Dennis R. Dunn, Senior Assistant Attorney General, and
David F. Walbert, Special Assistant Attorney General.
A.
Lee Parks argued the cause and filed a brief for appellees
Johnson et al. t
JUSTICE KENNEDY delivered the opinion of the Court. The
electoral district lines for Georgia's congressional delegation are
before us a second time, appeal now being taken from the trial
court's rulings and determinations after our remand in
Miller v.
Johnson, 515 U. S. 900 (1995). The
three-judge panel of the United States District Court for the
Southern District of Georgia was affirmed in
Miller after it
found the Eleventh Congressional District unconstitutional as then
drawn. Race, we held, must not be a predominant factor in drawing
the district lines.
Id., at 915-917.
Given the contorted shape of the district and the undue
predominance of race in drawing its lines, it was unlikely the
district could be redrawn without changing most or all of Georgia's
congressional districts, 11 in total number. The
t J.
Gerald Hebert filed a brief for the Georgia
Association of Black Elected Officials as
amicus curiae
urging reversal.
Sharon L. Browne and
Deborah J.
La Fetra
filed a brief for the Pacific Legal Foundation as
amicus
curiae urging affirmance.
78
plan being challenged contained three majority-black districts,
and after our remand the complaint was amended to challenge another
of these, the then-Second District. The trial court found this
district, too, was improperly drawn under the standards we
confirmed in
Miller. Johnson v.
Miller, 922 F. Supp.
1552 (1995).
For the task of drawing a new plan, the court deferred to
Georgia's Legislature, but the legislature could not reach
agreement. The court then drew its own plan,
Johnson v.
Miller, 922 F. Supp. 1556 (1995); we declined to stay the
order; and the 1996 general elections were held under it. The
court's plan contained but one majority-black district. The absence
of a second, if not a third, majority-black district has become the
principal point of contention. Though the elections have been
completed, the plan remains in effect until changed by a valid
legislative Act, and the appellants ask us to set it aside.
The private appellants are various voters, defendantintervenors
below, who contend that the interests of Georgia's black population
were not adequately taken into account. The United States, also a
defendant-intervenor, joins in the appeal. The state officials,
defendants below, do not object to the plan and appeared before us
as appellees to defend it. The other set of appellees are the
private plaintiffs below, who argued that racial gerrymandering
under the previous plan violated their right to equal
protection.
The private appellants attack the court's plan on five grounds.
First, citing
Upham v.
Seamon, 456 U. S. 37 (1982)
(per curiam), they say the District Court erred in
disregarding the State's legislative policy choices and in making
more changes than necessary to cure constitutional defects in the
previous plan. Second and third, they allege the plan violates §§ 2
and 5 of the Voting Rights Act of 1965, 42 U. S. C. §§ 1973, 1973c.
Fourth, they argue the court's plan contains significant population
deviations and so violates the constitutional one-person, one-vote
requirement. Fifth, they claim
79
the District Court erred in not allowing private intervention on
the question of the Second District's unconstitutionality. The
Justice Department included questions one, two, and four in its
jurisdictional statement. Private appellants did not brief their
fifth contention, and we will not address it. The remaining
challenges are unavailing as well, and we affirm the judgment of
the District Court.
I
We first address appellants' argument that the court exceeded
the remedial power authorized by our decisions, particularly
Upham v.
Seamon, supra, by failing to follow policies
of the state legislature. When faced with the necessity of drawing
district lines by judicial order, a court, as a general rule,
should be guided by the legislative policies underlying the
existing plan, to the extent those policies do not lead to
violations of the Constitution or the Voting Rights Act. 456 U. S.,
at 43. Much of the argument from the parties centers around what
legislative redistricting principles the District Court should have
acknowledged in drawing its plan. The appellants say the relevant
redistricting guideline should be the three majority-black
districts of the precleared plan at issue in
Miller v.
Johnson; and, if not, the two majority-black districts in an
earlier legislative effort. These contentions require us to recite
some of the background against which the Georgia Legislature-and
later the trial court-attempted to draw the districts.
A
Much of the history is recounted in
Miller v.
Johnson, and we repeat only some of it here. The need for
redistricting arose in 1990 when Georgia, because of its population
increase, went from 10 authorized congressional seats to 11. To
move ahead with redistricting, a special session of the legislature
opened in August 1991. Because Georgia is a covered jurisdiction
under § 4(b) of the Voting Rights Act, 42
80
u. S. C. § 1973b(b), § 5 of the Act requires it to obtain either
administrative preclearance by the Attorney General or approval by
the United States District Court for the District of Columbia for
any change in a "standard, practice, or procedure with respect to
voting." 42 U. S. C. § 1973c. The proposed change must not have the
purpose or effect "of denying or abridging the right to vote on
account of race or color."
Ibid. The legislature submitted a
plan to the Attorney General for preclearance on October 1, 1991.
See Appendix to this opinion (hereinafter Appendix), fig. 1. The
plan contained two majority-black districts, the Fifth and the
Eleventh. Previously, Georgia had one majority-black district, the
Fifth.
The Department of Justice refused preclearance of this plan in
January 1992. It then refused preclearance of a second plan
submitted by the legislature, also with two majority-black
districts. In its second refusal, the Department of Justice cited
several alternative plans proposing three majority-black districts,
including one called the "max-black" plan, drafted by the American
Civil Liberties Union (ACLU) for the General Assembly's black
caucus. At that point, the General Assembly set out to create three
majority-black districts to gain preclearance. See Appendix, fig.
2. The plan as adopted used the ACL U's max-black plan as a model.
One of the three majority-black districts, the Eleventh, was a
geographic "'monstrosity, stretching from Atlanta to Savannah. Its
core is the plantation country in the center of the state, lightly
populated, but heavily black. It links by narrow corridors the
black neighborhoods in Augusta, Savannah and southern DeKalb
County.'" 515 U. S., at 909 (quoting M. Barone & G. Ujifusa,
Almanac of American Politics 356 (1994)). The district as so drawn
served its purpose, however, which was to secure preclearance from
the Department of Justice.
On November 4, 1992, elections were held under the new plan, and
all three majority-black districts elected black can-
81
didates. In 1994, five white voters from the Eleventh District
filed suit in the United States District Court for the Southern
District of Georgia, alleging a racial gerrymander in the lines of
the Eleventh District, in violation of the Equal Protection Clause
as interpreted in
Shaw v.
Reno, 509 U. S. 630 (1993). The
District Court panel found the district invalid, with one judge
dissenting.
Johnson v.
Miller, 864
We affirmed.
Miller v.
Johnson, 515 U. S. 900 (1995).
We rejected appellants' argument that "regardless of the
legislature's purposes, a plaintiff must demonstrate that a
district's shape is so bizarre that it is unexplainable other than
on the basis of race."
Id., at 910. We said "the essence of
the equal protection claim recognized in
Shaw is that the
State has used race as a basis for separating voters into
districts."
Id., at 911. And we explained that "[t]he
plaintiff's burden is to show, either through circumstantial
evidence of a district's shape and demographics or more direct
evidence going to legislative purpose, that race was the
predominant factor motivating the legislature's decision to place a
significant number of voters within or without a particular
district."
Id., at 916.
We upheld two principal findings of the District Court
indicating race was the predominant factor in constructing the
Eleventh District. First, it was "'exceedingly obvious'" from the
district's contorted shape, together with the relevant racial
demographics, that it was designed to bring in black populations.
Id., at 917 (quoting 864 F. Supp., at 1375). Second,
considerable evidence-including the State's own concessions-showed
that the General Assembly was driven by "a predominant, overriding
desire" to create three majority-black districts to satisfy the
Department of Justice. 515 U. S., at 917. The Justice Department,
indeed, "'would accept nothing less than abject surrender to its
maximization agenda.'"
Ibid. (quoting 864 F. Supp., at 1366,
n. 11).
82
We then considered whether the race-based districting satisfied
strict scrutiny because it was narrowly tailored to achieve a
compelling governmental interest. As we noted, "[o]ur presumptive
skepticism of all racial classifications" prohibited us "from
accepting on its face the Justice Department's conclusion that
racial districting is necessary under the Voting Rights Act." 515
U. S., at 922. After reviewing the evidence, we concluded that
"[i]nstead of grounding its objections on evidence of a
discriminatory purpose, it would appear the Government was driven
by its policy of maximizing majority-black districts."
Id.,
at 924.
On remand, the District Court deferred to the Georgia
Legislature, giving it time to draw a new congressional map. The
Governor called a special session of the General Assembly, which
met from August 14 to September 12,1995. The legislature, however,
deadlocked on the congressional reapportionment plan. The Georgia
House of Representatives adopted a plan with two majority-black
districts, Status Report of Defendants Miller, Howard, and Cleland,
Aug. 31, 1995, Record, Pleadings Vol. 11, Doc. No. 295, while the
Senate adopted a plan with one, Status Report of Defendants Miller,
Howard, and Cleland, Sept. 5, 1995, id., Doc. No. 300. On September
13, 1995, defendants notified the District Court that the
legislature was unable to resolve its differences and had
adjourned, leaving the District Court to develop a remedy.
Plaintiffs had moved to amend their complaint to challenge the
Second District as unconstitutional on the same grounds as the
Eleventh District, and the court received additional evidence for
the purpose. None of the private defendantintervenors lived in the
Second District and, assuming their lack of standing to defend it,
they asked for the addition of other parties. The court disallowed
the request, ruling the State could defend this aspect of the plan
under review.
The court found that race was the "overriding and predominant
factor" in drawing the Second District's borders. 922
83
F. Supp., at 1553. The district, the court noted, split 12 of
the district's 35 counties, 28 of its precincts, and numerous
cities. Linda Meggers, Director of Reapportionment Services for the
Georgia General Assembly, was qualified as an expert witness and
testified it was not possible to create a majority-black Second
District without including the black population centers in Columbus
and Muscogee Counties, Albany and Dougherty Counties, and Macon and
Bibb Counties, which account for most of these splits. She also
testified that in constructing the Second District, she followed
the ACLU's max-black plan.
Id., at 1554-1555. As with the
Eleventh District, the trial court found no compelling reason for
the race-based districting of the Second District sufficient to
survive strict scrutiny. The appellants do not appeal the
determination by the trial court that the Second District as drawn
could not survive scrutiny under the standards set forth in
Miller, but they do say the trial court erred in not
devising a second majority-black district for its own plan.
During the remedy phase, the defendants proposed a variety of
plans. One was the 1991 unprecleared plan passed by the Georgia
Legislature, with two majority-black districts. The Eleventh
District in the 1991 plan closely resembled the Eleventh District
in the precleared plan, which has been found improper. The ACL U
submitted four plans. One of these, ACL U lA, with two
majority-black districts, was known as the "least change" plan
because it was designed to make the minimal changes perceived to be
necessary to correct constitutional defects in the existing plan.
Another of the ACL U plans, Abrams A, had three majority-black
districts. Abrams A split nine counties in the Second District and
three in the Eleventh, and for racial reasons. Yet another plan,
Abrams C, had two majority-black districts. And a plan jointly
sponsored by John Lewis, a black Democratic Member of the United
States House of Representatives from Georgia, and Newt Gingrich, a
white Republican
84
Member-the Lewis-Gingrich Amici-R plan-contained two
majority-black districts. In response, it is said, to a submission
by plaintiffs, the Justice Department submitted its "Illustrative
Plan." The Justice Department did not do so, however, until after
the evidence closed. The plan contained two majority-black
districts and split two counties outside the Atlanta area and
numerous precincts. The plaintiffs objected to the submission. The
District Court mentioned the Illustrative Plan in its opinion but
did not give an explicit ruling on the objection. The late
submission prevented the Justice Department's demographer from
being cross-examined about racial motivations, and for this reason
its significance must be discounted.
The District Court considered the plans submitted by the various
parties and then adopted its own. See Appendix, fig. 3. Noting the
Justice Department's thorough "subversion of the redistricting
process" since the 1990 census, it based its plan on the State's
1972 and 1982 plans. 922 F. Supp., at 1563. The court first had to
decide where to locate the new Eleventh District, and did so in an
area of significant population growth near Atlanta, so as to
displace the fewest counties. It then considered Georgia's
traditional redistricting principles based on maintaining: district
cores, four traditional "corner districts" in the corners of the
State, political subdivisions such as counties and cities, and an
urban majority-black district in the Atlanta area. Protecting
incumbents from contests with each other was another factor, which
the court subordinated to the others because it was "inherently
more political."
Id., at 1565. The District Court stated
that, in fashioning a remedy, it considered the possibility of
creating a second majority-black district but decided doing so
would require it to "subordinate Georgia's traditional districting
policies and consider race predominantly, to the exclusion of both
constitutional norms and common sense."
Id., at 1566.
Georgia did not have a black population of sufficient concentration
to allow creation
85
of a second majority-black district, the court found, adding
that if it had the court "would have included one since Georgia's
legislature probably would have done so."
Id., at 1567, n.
16. The resulting plan contained one majority-black district, the
Fifth. The plan split no counties outside the Atlanta area. The
District Court rejected potential objections to the plan based on
§§ 2 and 5 of the Voting Rights Act and the constitutional
requirement of one person, one vote.
B
Given this background, appellants say, the District Court's plan
violates our direction in Upham v. Seamon to take account of
legislative preferences. In Upham, the District Court considered a
reapportionment plan passed by the Texas Legislature. The Attorney
General had objected under § 5 of the Voting Rights Act to a
specific part of the plan, namely, the lines drawn for two
contiguous districts in south Texas. He had approved the other 25
districts. The trial court, required to draw new lines, redrew not
just the two districts found objectionable and their neighbors but
also some unrelated districts in Dallas County, hundreds of miles
to the north. 456 U. S., at 38. In the absence of a finding that
the legislature's reapportionment plan offended either the
Constitution or the Voting Rights Act, we held, the District Court
"was not free ... to disregard the political program" of the state
legislature. Id., at 43. See also White
The instant action presents a quite different situation from
Upham, and for several reasons. In the first place, the precleared
plan is not owed Upham deference to the extent the plan
subordinated traditional districting principles to racial
considerations. Upham called on courts to correct-not
follow-constitutional defects in districting plans. 456 U. S., at
43. In Miller, we found that when the Georgia Legislature yielded
to the Justice Department's threats, it also adopted the Justice
Department's entirely race-focused ap-
86
proach to redistricting-the max-black policy. 515 U. S., at
917-918. U sing the precleared plan as the basis for a remedy would
validate the very maneuvers that were a major cause of the
unconstitutional districting.
Second, the constitutional violation here affects a large
geographic area of the State; any remedy of necessity must affect
almost every district. In Upham, only 2 contiguous districts out of
27 were in violation. Here, as the District Court pointed out, 2 of
11 districts were found unconstitutional, on opposite sides of the
State, districts containing between them all or parts of nearly a
third of Georgia's counties. 922 F. Supp., at 1561. Almost every
major population center in Georgia was split along racial lines.
Under the circumstances, the District Court was justified in making
substantial changes to the existing plan consistent with Georgia's
traditional districting principles, and considering race as a
factor but not allowing it to predominate. This approach conforms
to the rule explained in Upham.
Appellants' most specific objection under Upham is that the
court's plan does not contain two majority-black districts. In
particular, they point to the State's original 1991 redistricting
plan, denied preclearance, which contained two majority-black
districts. As we have suggested above, however, the State was
subjected to steady Justice Department pressure to create the
maximum number of majority-black districts, and there is
considerable evidence the State was predominantly driven by this
consideration even in developing its 1991 plan. In support of their
position, appellants rely on broad assertions in the State's brief
in this Court in
Johnson v.
Miller that the original
plan "was not perceived as a 'racial gerrymander.'" Brief for
Miller Appellants in
Miller v.
Johnson, O. T. 1994,
No. 94-631, p. 49. Against these assertions, appellees point to the
testimony of Ms. Meggers, Director of Reapportionment Services for
the Georgia General Assembly, that the second majority-black
district was originally designed as a concession to the Justice
87
Department's max-black policy. After being presented with a
proposed map of the Eleventh District, "[t]he initial response in
our office was that's ridiculous." "It was said that it doesn't
make any sense and I said maybe not, but ... we may get in trouble
with the Justice Department if we don't draw [it] ... like that and
I think that was ... the main reason" it was originally drawn. Tr.
431-432 (Oct. 30, 1995). Ms. Meggers referred to an "understanding"
between the leadership in the legislature and the black caucus that
a second majority-black district would be created.
Id., at
431. The testimony of several legislators indicated that any such
understanding was arrived at in the shadow of the Justice
Department's max-black goal, and that all other policies were to
give way to this racial consideration. Robert Hanner, chairman of
the House Reapportionment Committee, so indicated in his testimony.
Id., at 74-75. Sonny Dixon, a member of the House
Reapportionment Committee, confirmed this account and said
legislators felt pressure from the Justice Department in 1990 to
create all possible majority-black districts.
Id., at 81.
Thomas Murphy, Speaker of the Georgia House of Representatives in
1990 and now, said in his deposition that the initial 1991
reapportionment plan was based on "what we at least perceived to be
the direction and instructions of the Justice Department."
Deposition of Thomas B. Murphy, Record 22-23; see also id., at 4,
6. This evidence all refers to development of the original 1991
legislative plan, not the 1992 precleared plan, and thus undermines
the contention that the legislature's original plan should have
been controlling on the District Court.
There is strong support, then, for finding the second
majority-black district in Georgia's 1991 unprecleared plan
resulted in substantial part from the Justice Department's policy
of creating the maximum number of majority-black districts. It is
not Justice Department interference
per se that is the
concern, but rather the fact that Justice Department pressure led
the State to act based on an overriding
88
concern with race. Given this background, it would have been
most problematic for the trial court to insist on retaining a
second majority-black district without regard to other, neutral
districting factors. The trial court did not adopt this course.
Instead, it gave careful consideration to creation of a second
black district on grounds that a black voting population was one
factor in drawing a district; and it concluded it could not draw
the second majority-black district without allowing that one
consideration to predominate over other traditional and neutral
districting principles, principles which were a valid expression of
legislative policy. There is ample basis in the record to support
these conclusions. No other plan demonstrated a second
majority-black district could be drawn while satisfying the
constitutional requirement that race not predominate over
traditional districting principles. The District Court said in its
opinion that "[i]f Georgia had a concentrated minority population
large enough to create a second majority-minority district without
subverting traditional districting principles, the Court would have
included one since Georgia's legislature probably would have done
so." 922 F. Supp., at 1567, n. 16. The statements of several
witnesses support the trial court's independent conclusion it was
not possible to do so. Ms. Meggers testified that, unless race was
the predominant motive, a second majority-black district could not
be drawn in Georgia. Tr. 434-435 (Oct. 30, 1995). Speaker Murphy
doubted "very seriously" a second majority-black district could be
drawn in Georgia without violating the principles we laid down in
Miller. Deposition, Oct. 26, 1995, Record 24.
The court found the 1991 unprecleared plan shared many of the
constitutional defects of the precleared plan. Among other things,
it connected the south DeKalb County urban black population with
the mainly rural east Georgian minority population. 922 F. Supp.,
at 1563, n. 9. Indeed, the Eleventh District in the 1991 plan in
many respects was almost the geographical monstrosity it became in
the pre-
89
cleared plan. The ACL U plans were introduced at the remedial
hearing by Selwyn Carter, an employee of the Atlanta-based private
Southern Regional Council whose job was to draw and advocate
reapportionment plans across the South. Mr. Carter said his "basic
goal" in preparing the plans was "[t]o show that it is possible to
draw a plan in which African American voters comprise approximately
50 percent of the voting age population of a district and at the
same time show that race was not a factor." Tr. 296 (Oct. 30,
1995). The "least-change" plan, ACL U lA, has numerous flaws.
Besides its high population deviation, to be discussed, the
Eleventh District has an iguana-like shape betraying the same
invidious purpose we condemned in Miller. The only two plans close
to the trial court's in terms of population deviation are Abrams A
and the Justice Department's Illustrative Plan. Abrams A, with its
three majority-black districts, splits nine counties in the Second
District and three in the Eleventh, as well as numerous other
counties in different parts of the State. The twisted shapes of its
Second and Eleventh Districts again bear witness to racial
motivation. The Illustrative Plan splits Bibb County-a county never
before split in apportionment plans-to subsume Macon's black
population. Although the Justice Department submitted the plan
after the close of evidence, and in consequence its demographer
could not be cross-examined on the question of racial motivation,
the District Court recognized its apparent racial impetus. 922 F.
Supp., at 1561, n. 4. Indeed, the Justice Department acknowledged a
racial motivation at oral argument before the Court. Tr. of Oral
Arg. 12, 16. The Justice Department also suggested it was proper to
split Bibb County because the mayor and city council of Macon
supported splitting the county and city into different districts.
Id., at 13. Macon's alleged urge to be segregated for
congressional districting purposes, however, cannot vitiate the
equal protection rights of the Eleventh District's objecting
voters.
90
Interference by the Justice Department, leading the state
legislature to act based on an overriding concern with race,
disturbed any sound basis to defer to the 1991 unprecleared plan;
the unconstitutional predominance of race in the provenance of the
Second and Eleventh Districts of the 1992 precleared plan caused
them to be improper departure points; and the proposals for either
two or three majority-black districts in plans urged upon the trial
court in the remedy phase were flawed by evidence of predominant
racial motive in their design. In these circumstances, the trial
court acted well within its discretion in deciding it could not
draw two majority-black districts without itself engaging in racial
gerrymandering.
II
The court-ordered plan is not violative of § 2 of the Voting
Rights Act. We reject appellants' contrary position, which is
premised on impermissible vote dilution in the court's failure to
create a second majority-black district. Section 2 of the Voting
Rights Act applies to any "voting qualification or prerequisite to
voting or standard, practice, or procedure. imposed or applied by
any State or political subdivision ... " 42 U. S. C. § 1973(a). On
its face, § 2 does not apply to a court-ordered remedial
redistricting plan, but we will assume courts should comply with
the section when exercising their equitable powers to redistrict. A
violation of § 2 occurs if "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 racial minority] ... 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." 42 U. S. C. § 1973(b).
Our decision in
Thornburg v.
Gingles, 478 U. S. 30 (1986), set
out the basic framework for establishing a vote dilution claim
against at-large, multimember districts; we have since extended the
framework to single-member districts.
Growe
91
v.
Emison, 507 U. S. 25, 40-41
(1993). Plaintiffs must show three threshold conditions: first, the
minority group "is sufficiently large and geographically compact to
constitute a majority in a single-member district"; second, the
minority group is "politically cohesive"; and third, the majority
"votes sufficiently as a bloc to enable it ... to defeat the
minority's preferred candidate." 478 U. S., at 50-51. Once
plaintiffs establish these conditions, the court considers whether,
"on the totality of 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. § 1973(b).
The trial court found that to create a second majorityblack
district in Georgia would require subordinating Georgia's
traditional districting policies and allowing race to predominate.
922 F. Supp., at 1566. We considered the determination in our
discussion above and concluded it was well founded. If race is the
predominant motive in creating districts, strict scrutiny applies,
Bush v.
Vera, 517 U. S. 952, 962
(1996), and the districting plan must be narrowly tailored to serve
a compelling governmental interest in order to survive. We have
assumed, without deciding, that compliance with § 2 can be a
compelling state interest. See,
e. g., id., at
977;
Miller v.
Johnson, 515 U. S., at 921. Here, there was no
"strong basis in evidence,"
Shaw v.
Reno, 509 U. S.,
at 656 (internal quotation marks omitted), to conclude that vote
dilution, in violation of § 2, would occur in consequence of the
court's plan. In fact, none of the three
Gingles factors,
the threshold findings for a vote dilution claim, were established
here. See
Bush, supra, at 976-979.
Here the District Court found, without clear error, that the
black population was not sufficiently compact for a second
majority-black district. 922 F. Supp., at 1567. So the first of the
Gingles factors is not satisfied. As we have noted before, §
2 does not require a State to create, on predominantly racial
lines, a district that is not "reasonably
92
compact."
Johnson v.
De Grandy, 512 U. S. 997, 1008
(1994). And the § 2 compactness inquiry should take into account
"traditional districting principles such as maintaining communities
of interest and traditional boundaries."
Bush, supra, at
977.
The trial court also found the second and third
Gingles
factors-the extent of racially polarized voting-wanting. In the
Eleventh District inquiry, the District Court found that § 2 did
not justify drawing racial lines, and it discussed evidence of
racial polarization at great length. The court found the
statistical evidence was for the most part inconclusive and
conflicting, but that the State's expert, Dr. Joseph Katz, was
convincing in his refutation of Dr. Allan Lichtman, the United
States' expert. 864 F. Supp., at 1388. The court found "a
significant degree of crossover voting in Georgia and the Eleventh
District," id., at 1390, and that the record "fail[ed] to
demonstrate ... chronic bloc voting," id., at 1392. The court found
that the average percentage of whites voting for black candidates
across Georgia ranged from 22% to 38%, and the average percentage
of blacks voting for white candidates ranged from 20% to 23%.
Id., at 1390. As the court noted, "[b]lack and
black-preferred candidates in Georgia have achieved many electoral
victories in local and statewide elections and have received
significant-occasionally overwhelming-support from both black and
white voters within the Eleventh Congressional District."
Id., at 13901391. The results of the 1992 Democratic primary
in the Eleventh District suggested to the court "a general
willingness of white voters to vote for black candidates": black
candidates in that primary received about 55% of the white vote,
and Cynthia McKinney, a black, won the runoff against a white with
23% of the white vote.
Id., at 1391.
For the inquiry concerning the Second District and the remedy,
appellants relied exclusively on the Eleventh District trial
record. After the remedy hearing, the District Court reaffirmed its
earlier findings and cited additional evi-
93
dence of crossover voting. 922 F. Supp., at 1567. At the hearing
concerning the Second District, Ms. Meggers stated that election
results in the district indicated significant white crossover
voting, and Representative Sanford Bishop, the black congressman
elected in the Second District, agreed. Tr. 438, 142 (Oct. 30,
1995).
Appellants take issue with the District Court's assessment of
the level of white crossover voting, but argue that, in any event,
the level of polarization the District Court found is sufficient to
satisfy the
Gingles threshold. Under the circumstances, we
cannot say the District Court clearly erred in finding insufficient
racial polarization in voting to meet the
Gingles
requirements. The results of the 1996 general elections tend to
support the District Court's earlier finding of "a general
willingness of white voters to vote for black candidates." 864 F.
Supp., at 1391. All three black incumbents won elections under the
court plan, two in majoritywhite districts running against white
candidates. (In
Gingles, the Court indicated that incumbency
is a "special circumstanc[e]" to be taken into account in
evaluating racial bloc voting. 478 U. S., at 57. And in this
action, the black candidates' success in two majority-white
districts, quite different from their previous districts, is
testimony to the "general willingness" of whites to vote for
blacks.) These results also underscore the weakness of the Justice
Department's methodology of calculating the likelihood of a
blackpreferred candidate winning based on strict racial
percentages. Brief for United States 27, and n. 18. The Justice
Department predicted that a black-preferred candidate "would likely
be foreclosed from winning" in the court plan's Tenth District, and
that "[t]he same result would follow even more clearly" in the
court's Fourth District, which had a black voting age population of
33%.
Id., at 27. In fact, Representative McKinney won in the
Fourth District.
Appellants argue the District Court's findings on § 2 are
inconsistent and not owed deference, since the court held § 2
94
required maintenance of the majority-black Fifth District but
not creation of a new majority-black district. The District Court
found the black population in the Fifth District "is sufficiently
compact and, being an urban minority population, has a sufficiently
strong community of interest to warrant being a majority-minority
district." 922 F. Supp., at 1568. The court also said the
probability of electing a candidate is below 50% when the
percentage of black registered voters is 50%, ibid., and therefore
the percentage of black registered voters should be kept as close
to 55% as possible in the Fifth District. (The District Court
noted, however, that it was uncomfortable using percentages of
registered voters rather than voting age population, since "that in
essence condones voter apathy."
Id., at 1568, n. 18.) The
court made no explicit findings about differences in the racial
polarization of voting between the Fifth and Eleventh
Districts.
We do not agree that the District Court's maintenance of the
Fifth District as a majority-black district under § 2 indicates its
§ 2 findings in reference to other districts are conflicting and
not entitled to deference. The District Court noted that
maintenance of a majority-black district in the Atlanta
area-created in 1972 for compliance with the Voting Rights Act-had
become a state districting policy.
Id., at 1565. Further, it
is possible, although we do not express any opinion on the subject,
that changing the racial majority of the district would have
violated § 5 retrogression principles.
Private appellants also argue no deference is due the District
Court's § 2 finding both because the court did not hold a separate
hearing on whether its remedial plan violated § 2 and because it
barred private intervention to defend the constitutionality of the
Second District. We do not agree. First, neither our precedents nor
the Act require the court to hold a separate hearing on the
adequacy under § 2 of a remedial plan. Second, the private
defendant-intervenors
95
had ample opportunity to present evidence of the need for a
second majority-black district under § 2 at the remedy hearing, in
which they fully participated. The finding that appellants have not
shown the threshold
Gingles factors for a § 2 violation is
owed deference, and we find it not clearly erroneous.
III
The private appellants contend the District Court's plan also
violates § 5 of the Voting Rights Act. Although the Justice
Department did not include this claim in its jurisdictional
statement, it agrees with private appellants and briefed the
issue.
As we noted above, § 5 requires covered jurisdictions to obtain
either administrative preclearance by the Attorney General or
approval from the United States District Court for the District of
Columbia for any change in a "standard, practice, or procedure with
respect to voting," and requires that the proposed change "not have
the purpose and will not have the effect of denying or abridging
the right to vote on account of race or color." 42 U. S. C. §
1973c. We have explained that "the purpose of § 5 has always been
to insure that no voting-procedure changes would be made that would
lead to a retrogression in the position of racial minorities with
respect to their effective exercise of the electoral franchise."
Beer v.
United States, 425 U. S. 130, 141
(1976).
The question arises whether a court decree is subject to § 5. We
have held that "[a] decree of the United States District Court is
not within reach of Section 5 of the Voting Rights Act" such that
it must be precleared.
Connor v.
Johnson, 402 U. S. 690, 691 (1971)
(per curiam). The exception applies to judicial plans,
devised by the court itself, not to plans submitted to the court by
the legislature of a covered jurisdiction in response to a
determination of unconstitutionality.
McDaniel v.
Sanchez, 452
U. S. 130, 148-152 (1981). Here, the District Court made clear
it had devised its own plan, a proposition not in dispute. In
Sanchez, we
96
emphasized language in a Senate Committee Report saying that,
although preclearance does not apply to court-devised plans, "'in
fashioning the plan, the court should follow the appropriate
Section 5 standards, including the body of administrative and
judicial precedents developed in Section 5 cases.'"
Id., at
149 (quoting S. Rep. No. 94-295, p. 19 (1975)). This is a
reasonable standard, at the very least as an equitable factor to
take into account, if not as a statutory mandate.
Appellants, however, have some difficulty fixing on a benchmark
against which to measure any retrogression. Private appellants say
the benchmark should be either the State's initial 1991 plan,
containing two majority-black districts, or the State's "policy and
goal of creating two majority black districts." Brief for
Appellants 48. The Justice Department, for its part, contends the
proper benchmark is the 1992 precleared plan, altered to cure its
constitutional defects.
Here, as we have noted above in our discussions of both Upham
and § 2, appellants have not demonstrated it was possible to create
a second majority-black district within constitutional bounds. So,
even were we to accept one of their proposed benchmarks, their
desired remedy would be unconstitutional. As it happens, none of
appellants' proposed benchmarks is appropriate. The private
appellants' first proposal was not in effect in Georgia because it
was refused preclearance. It thus could not operate as a benchmark
under the Attorney General's regulations:
"In determining whether a submitted change is retrogressive the
Attorney General will normally compare the submitted change to the
voting practice or procedure in effect at the time of the
submission. If the existing practice or procedure upon submission
was not in effect on the jurisdiction's applicable date for
coverage ... and is not otherwise legally enforceable under section
5, it cannot serve as a benchmark, and ... the
97
comparison shall be with the last legally enforceable practice
or procedure used by the jurisdiction." 28 CFR § 51.54(b)(1)
(1996).
See also
Holder v.
Hall, 512 U. S. 874, 883-884
(1994) ("Under § 5, then, the proposed voting practice is measured
against the existing voting practice .... The baseline for
comparison is present by definition; it is the existing status ....
[T]here is little difficulty in discerning the two voting practices
to compare to determine whether retrogression would occur");
Reno v.
Bossier Parish School Board, 520 U. S. 471, 478
(1997). There are sound reasons for requiring benchmarks to be
plans that have been in effect; otherwise a myriad of benchmarks
would be proposed in every case, with attendant confusion. This
rule is all the more appropriate when one considers the attempt to
use as a benchmark the State's supposed policy of creating two
majority-black districts. And the Justice Department's proposed
benchmark-the 1992 plan shorn of its constitutional defects-was
also never in effect. Nor can the 1992 plan, constitutional defects
and all, be the benchmark. Section 5 cannot be used to freeze in
place the very aspects of a plan found unconstitutional.
The appropriate benchmark is, in fact, what the District Court
concluded it would be: the 1982 plan, in effect for a decade. 922
F. Supp., at 1569, n. 20. Appellants have not shown that black
voters in any particular district suffered a retrogression in their
voting strength under the court plan measured against the 1982
plan. Absent such proof, there is no violation of § 5. We reject
appellants' assertion that, even using the 1982 plan as a
benchmark, the court's plan is retrogressive. They claim that under
the 1982 plan 1 of the 10 districts (10%) was majority black, while
under the District Court's plan 1 of 11 districts (9%) is majority
black, and therefore blacks do not have the same electoral
opportunities under the District Court's plan. Under that logic,
each time a State with a majority-minority district was allowed to
add
98
one new district because of population growth, it would have to
be majority-minority. This the Voting Rights Act does not
require.
IV
Finally, appellants contend the District Court's plan violates
the constitutional guarantee of one person, one vote under Article
I, § 2. This provision requires congressional districts to achieve
population equality "as nearly as is practicable."
Wesberry
v.
Sanders, 376
U. S. 1, 7-8 (1964). Court-ordered districts are held to higher
standards of population equality than legislative ones. A
court-ordered plan should "ordinarily achieve the goal of
population equality with little more than
de minimis
variation."
Chapman v.
Meier, 420 U. S. 1, 26-27 (1975);
Connor v.
Finch, 431 U. S. 407,414 (1977)
(same). Here the District Court was not designing districts to
remedy a one-person, one-vote violation, but courts should keep in
mind that "absolute population equality [is] the paramount
objective."
Karcher v.
Daggett, 462 U. S. 725, 732
(1983). Slight deviations are allowed under certain circumstances.
Chapman, supra, at 26 ("With a court plan, any deviation
from approximate population equality must be supported by
enunciation of historically significant state policy or unique
features");
Connor, supra, at 419-420 (same);
Karcher,
supra, at 740 ("Any number of consistently applied legislative
policies might justify some variance, including, for instance,
making districts compact, respecting municipal boundaries,
preserving the cores of prior districts, and avoiding contests
between incumbent[s]").
To help in interpreting what follows, we explain a few terms.
Overall population deviation is the difference in population
between the two districts with the greatest disparity. Average
population deviation is the average of all districts' deviation
from perfect one-person, one-vote allocation. If population
allocation in Georgia were perfect, each district would have
588,928 people, according to 1990 census data.
99
Here, the District Court plan has an overall population
deviation of 0.35%, and an average deviation of 0.11 %. The plan
has a lower deviation than: the 1992 plan (with its 0.93% overall
deviation and its 0.35% average deviation); the 1982 plan; or "any
other plan presented to the Court which was not otherwise
constitutionally defective." 922 F. Supp., at 1561. Private
appellants and
amici in fact proposed plans with much higher
deviations. ACL U lA, the "least change" plan, had an overall
population deviation of 0.94%; Abrams C had an overall deviation of
0.99%; and the Lewis-Gingrich Amici- R plan came in last place with
an overall deviation of 1.86%. The only plans with lower overall
deviations than the court's plan were the Justice Department's
Illustrative Plan (0.19%) and the ACLU's Abrams A (0.29%), whose
constitutional infirmities are discussed above.
The District Court recited in detail those state policies and
conditions which support the plan's slight deviations. The court
explained Georgia's "strong historical preference" for not
splitting counties outside the Atlanta area, 922 F. Supp., at 1561,
and for not splitting precincts, id., at 1562. (The court observed
that some splitting of precincts was unavoidable in Cobb County
because of noncontiguous annexation patterns, and that it had split
some precincts in Clayton County to achieve lower population
deviations.
Id., at 1562, n. 6.) The court acknowledged that
maintaining political subdivisions alone was not enough to justify
less than perfect deviation in a court plan. See,
e. g.,
Kirkpatrick v.
Preisler, 394 U. S. 526, 533-534
(1969) ("[W]e do not find legally acceptable the argument that
variances are justified if they necessarily result from a State's
attempt to avoid fragmenting political subdivisions by drawing
congressional district lines along existing county, municipal, or
other political subdivision boundaries"). The District Court, in
conformance with this standard, considered splitting counties
outside the Atlanta area, but found other factors "unique to
Georgia" weighed against it. See
Chapman, supra, at 26.
These in-
100
eluded maintaining core districts and communities of interest.
Georgia has an unusually high number of counties: 159, the greatest
number of any State in the Union apart from the much-larger Texas.
These small counties represent communities of interest to a much
greater degree than is common, and we agree with the District Court
that "such a proliferation" provides "ample building blocks for
acceptable voting districts without chopping any of those blocks in
half." 864 F. Supp., at 1377.
In any case, even if we had found the court plan's population
deviation unacceptable, the solution would not be adoption of the
constitutionally infirm, because race-based, plans of appellants.
Indeed, before this Court at oral argument private appellants
acknowledged the remedy for any oneperson, one-vote violation would
not be creation of a second majority-black district. Tr. of Oral
Arg. 28-29. Rather, we would require some very minor changes in the
court's plana few shiftings of precincts-to even out districts with
the greatest deviations.
That exercise, however, and appellant's objections to the court
plan's slight population deviations, are increasingly futile. We
are now more than six years from the last census, on which
appellants' data is based. The difference between the court plan's
average deviation (0.11%) and the Illustrative Plan's (0.07%) is
0.04%, which represents 328 people out of a perfect district
population of 588,928. The population of Georgia has not stood
still. Georgia is one of the fastestgrowing States, and continues
to undergo population shifts and changes. U. S. Dept. of Commerce,
Bureau of Census, Statistical Abstract of the United States 29
(1996) (Table 28) (showing Georgia tied for seventh place among the
States in percentage of population growth from 1990 to 1995, with
11.2% growth). In light of these changes, the tinkerings appellants
propose would not reflect Georgia's true population distribution in
any event. The
Karcher Court, in explaining the absolute
equality standard, acknowledged that "census
101
data are not perfect," and that "population counts for
particular localities are outdated long before they are completed."
462 U. S., at 732.
Karcher was written only two years from
the previous census, however, and we are now more than six years
from one. The magnitude of population shifts since the census is
far greater here than was likely to be so in
Karcher. These
equitable considerations disfavor requiring yet another
reapportionment to correct the deviation.
V
The task of redistricting is best left to state legislatures,
elected by the people and as capable as the courts, if not more so,
in balancing the myriad factors and traditions in legitimate
districting policies. Here, the legislative process was first
distorted and then unable to reach a solution. The District Court
was left to embark on a delicate task with limited legislative
guidance. The court was careful to take into account traditional
state districting factors, and it remained sensitive to the
constitutional requirement of equal protection of the laws.
***
The judgment of the District Court is affirmed.
It is so ordered.
[Appendix to opinion of the Court follows this page.]
102
1991 Unprecleared General Assembly Plan
APPENDIX TO OPINION OF THE COURT
Figure 2
Figure 3
1992 Unconstitutional Plan
1995 Court Plan
103
JUSTICE BREYER, with whom JUSTICE STEVENS, JUSTICE SOUTER, and
JUSTICE GINSBURG join, dissenting.
Georgia elects 11 Members of the United States House of
Representatives. Georgia's African-American voting age population
is just over 1.7 million, or about 27 percent of a total voting age
population of about 6.5 million. See
Miller v.
Johnson, 515
U. S. 900, 906 (1995). In 1992 Georgia's Legislature redrew
congressional district boundaries so as to create an
African-American voting age majority in 3 of 11 districts. This
Court held that three-district plan unconstitutional.
Id.,
at 928. On remand, the District Court,
inter alia, drew up a
new redistricting plan with
one majorityminority district.
Johnson v.
Miller, 922 F. Supp. 1556, 1560-1561 (SD
Ga. 1995). The basic legal issue before us now is whether the
District Court should have retained (not one but)
two
majority-minority districts.
The majority holds that the District Court could lawfully create
a new districting plan that retained only one such district. But in
my view that decision departs dramatically from the Georgia
Legislature's preference for two such districts-a preference
embodied in the legislature's earlier congressional district plans.
A two-district plan is not unconstitutional. And the District Court
here, like the District Court in
Upham v.
Seamon,
456 U. S. 37, 43
(1982)
(per curiam), "was not free ... to disregard the
political program of the ... Legislature." For that reason, and
others, I dissent.
I
The majority fully understands the relevance, and the
importance, here of this Court's
Upham decision. In
Upham the Court said:
"'Just as a federal district court ... should follow the
policies and preferences of the State, as expressed ... in the
reapportionment plans proposed by the state legislature, whenever
adherence to state policy does not detract from the requirements of
the Federal Constitution,
104
... a district court should similarly honor state policies in
the context of congressional reapportionment.'" Id., at 41
(quoting White v. Weiser, 412 U. S. 783, 794-795
(1973)).
The majority here, referring to this language, agrees:
"[A] court, as a general rule, should be guided by the
legislative policies underlying the existing plan, to the extent
those policies do not lead to violations of the Constitution or the
Voting Rights Act." Ante, at 79 (citing Upham, supra,
at 43).
It is therefore common ground among us that the District Court
should have drawn boundaries so as to leave two majority-minority
districts rather than
one-unless there was no such state
policy or preference;
unless the creation of two such
districts would have violated the Constitution or the Voting Rights
Act of 1965; or
unless doing so simply would have proved
impractical in light of other important districting objectives. See
Upham, supra, at 41-42 (quoting
White, supra, at
794-795). Unlike the majority, I cannot find present here any of
these three countervailing justifications.
A
No one denies that, if one looks at the redistricting plans
proposed by the Georgia Legislature, one will find in them
expressions of state "'policies and preferences'" for two
majority-minority districts. 456 U. S., at 41; see also Appendix to
this opinion (Appendix), 1991 Plan,
infra. After the 1990
Census, which increased the size of Georgia's congressional
delegation from 10 to 11, App. in
Miller v.
Johnson,
O. T. 1994, No. 94-631, p. 9, the state legislature began a lengthy
political process of redistricting and considered the
majority-minority district issue, among others.
Id., at
10-14; see also Deposition of Linda Meggers, Record 11-17, 20-22,
32-33, 85 (May 6, 1994). The legislature proposed one plan in 1991
with two such districts. See Appendix,
105
1991 Plan,
infra. When the United States Department of
Justice (DOJ or Justice Department) denied preclearance under § 5
of the Voting Rights Act of 1965 (VRA), 42 U. S. C. § 1973, the
legislature proposed a second plan, which also contained two such
districts. Subsequently the legislature proposed a third plan with
three such districts-a plan approved by the Justice Department but
struck down by this Court in
Miller, supra.
What the District Court and the majority deny is that the
"preferences" expressed in these three redistricting plans reflect
the Georgia Legislature's
true preference. The District
Court said that "Georgia's current plan was not the product of
Georgia's legislative will," but rather "was tainted by
unconstitutional DOJ interference" into the "process" that produced
the plan. 922 F. Supp., at 1560. The majority repeats the District
Court's comment about DOJ's "thorough 'subversion of the
redistricting process' since the 1990 census,"
ante, at 84,
adds that the "State was predominantly driven" by "steady Justice
Department pressure,"
ante, at 86, and concludes:
"Interference by the Justice Department ... disturbed any sound
basis to defer to the 1991 unprecleared plan .... " Ante, at
90.
I believe, however, that the majority's conclusion-its reason
for refusing to recognize the Georgia Legislature's twodistrict
preference-is wrong both as a matter of fact and as a matter of
law.
The conclusion is factually inadequate because the testimony
cited,
ante, at 86-87, to show unusual DOJ pressure in the
1991 redistricting process shows nothing unusual. It shows only
that the Justice Department told Georgia that it must comply with
the VRA, which statement Georgia legislators might have considered
an exhortation to create more than one majority-minority district.
Tr. 16 (Apr. 18, 1994); id., at 431-433 (Oct. 30, 1995); Deposition
of Linda Meggers,
106
supra, at 20. Indeed, the record indicates that a number
of Georgia legislators affirmatively wanted two majorityminority
districts. Tr. 431-432 (Oct. 30, 1995); Deposition of Linda
Meggers,
supra, at 22, 32. It also shows that the 1991
two-district plan was the result of an "'understanding' between the
leadership in the legislature and the black caucus."
Ante,
at 87; see also Tr. 32 (Apr. 18, 1994);
id., at 431-432
(Oct. 30, 1995); Deposition of Linda Meggers,
supra, at 22,
32; that the 1991 "two district" plan (as the State conceded) "was
not perceived as a 'racial gerrymander,'"
ante, at 86
(quoting Brief for Appellants Miller et al. in
Miller v.
Johnson, O. T. 1994, No. 94-631, p. 49); and that the 1991
"two district" plan (as the District Court found), "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."
Johnson v.
Miller, 864 F. Supp. 1354, 1363 (1994).
Indeed, much of the departmental "interference" to which the
majority refers took place
after adoption of the 1991 plan,
see
ante, at 80; Tr. 21, 39-40, 43, 75 (Oct. 30, 1995);
Deposition of Linda Meggers,
supra, at 79-80;
Miller,
515 U. S., at 906-907; App. in No. 94-641, p. 16, and likely
reflected departmental concern related to Georgia's voting
discrimination history. See
Busbee v.
Smith, 549 F.
Supp. 494, 500, aff'd, 459 U. S. 1166 (1982); App. 139-140.
The majority is legally wrong because this Court has said that a
court should determine a State's redistricting preferences by
looking to the "'plans proposed by the state legislature,'"
Upham, 456 U. S., at 41 (quoting
White, 412 U. S., at
794-795), not by evaluating the various political pressures that
might have led individual legislators to vote one way rather than
another (or, for that matter, by reviewing after-the-fact testimony
regarding legislative intent). Cf.
Upham, supra, at 41;
White, supra, at 794-795; see also
Karcher v.
Daggett, 462
U. S. 725, 740 (1983). " 'Districting plans,'" like other
legislative Acts, "'are integrated bundles
107
of compromises, deals, and principles.'"
Bush v.
Vera, 517 U.
S. 952, 1059 (1996) (SOUTER, J., dissenting) (quoting Pildes
& Niemi, Expressive Harms, "Bizarre Districts," and Voting
Rights: Evaluating Election-District Appearances after
Shaw
v.
Reno, 92 Mich. L. Rev. 483, 585-586 (1993)). District
plans, like other legislative Acts, may reflect not only reasoned
argument but also political pressures, brought to bear by many
different individuals and groups using subtle or unsubtle
suggestions, promises, or threats of votes, support, publicity, and
even lawsuits.
How can a court say that a legislative Act is legitimatethat it
reflects legislative preferences or policies-when those who reason
or cajole (or threaten suit) are farmers, businessmen, or consumer
groups, but that the same legislative Act becomes illegitimate-that
it does not reflect "true" legislative policy or preference-simply
because those who seek to persuade (or threaten suit) represent the
Justice Department. One cannot say that the Justice Department's
power is any less legitimate than that exercised by the many other
groups that seek to influence legislative decisions; and its
employees' sworn duty to uphold the law would seem more suitably
characterized as a reason for paying greater attention to its views
rather than as a reason for heeding them less. Regardless, I am not
aware of any legal principle that supports the kind of distinction
(among legislative pressures) that the District Court made; and the
District Court's necessary reliance upon such a distinction, by
itself, should warrant vacating the District Court's decision.
Moreover, what reason is there to believe that Georgia's
Legislature did not "really" want the two majority-minority
districts that its earlier plans created? There is-as I indicated
earlier-evidence that a number of legislators did want two
majority-minority districts. See
supra, at 106. And the
legislature was aware of Georgia's long, welldocumented history of
past discrimination in voting. See
Busbee, supra; Rogers v.
Lodge, 458 U.
S. 613 (1982);
Gray v.
108
Sanders, 372 U. S. 368 (1963); see
also
Morris v.
Fortson, 261 F. Supp. 538, 541 (ND Ga.
1966);
Lodge v.
Buxton, 639 F.2d
1358, 1378 (CA5 1981) (racial bloc voting in Burke County);
Carrollton Branch of NAACP v.
Stallings, 829 F.2d
1547, 1559 (CAll 1987) (racial bloc voting in Carroll County);
Cross v.
Baxter, 604 F.2d
875, 880, n. 8 (CA5 1979);
Paige v.
Gray, 437 F.
Supp. 137, 158 (MD Ga. 1977) (Albany, Ga.);
Pitts v.
Busbee, 395 F. Supp. 35, 40 (ND Ga. 1975) (Fulton County);
Bailey v.
Vining, 514 F. Supp. 452, 461 (MD Ga. 1981)
(Putnam County);
Wilkes County v.
United States, 450
F. Supp. 1171, 1174 (DC 1978); see generally E. Foner,
Reconstruction: America's Unfinished Revolution, 1863-1877, pp.
423-424 (1988); McDonald, Binford, & Johnson, Georgia, in Quiet
Revolution in the South: The Impact of the Voting Rights Act,
1965-1990, pp. 67-74 (C. Davidson & B. Grofman eds.1994).
The Georgia Legislature was likely aware of the many unfortunate
consequences that have flowed from this history. They include the
facts that, when Congress first enacted the VRA, fewer than 30
percent of African-Americans eligible to vote in Georgia had
registered to vote,
ibid., and that no African-American had
represented Georgia in Congress since Reconstruction, App. 140,
when Congressman Jefferson Franklin Long briefly represented the
State. B. Ragsdale & J. Treese, Black Americans in Congress,
1870-1989, p. 81 (1990).
The Georgia Legislature also might have thought that some degree
of (indeed, a less than proportionate amount of) majority-minority
districting could help to overcome some of the problems these facts
suggest. Forty-two members of Georgia's (180 member) House of
Representatives themselves were elected from majority-black
districts; 30 of those members are black, 12 are white. App. 116.
One hundred thirty-eight members of Georgia's House were elected
from majority-white districts; 1 of those members is black, 137 are
white.
Ibid. Forty-three members of Georgia's (56 mem-
109
ber) Senate are elected from majority-white districts; all of
those members are white.
Ibid. Until 1972, Georgia had not
elected any African-American Members of Congress since
Reconstruction. 1 Reference Library of Black America 67 (K. Estell
ed. 1994). Since then, it has elected a total of four. Sherman,
Diluting Black Votes for a Stronger Voice; Politicians Debate
Impact of Remap, Atlanta JournalConstitution, Dec. 17, 1995, p. G3.
Each of those Members originally represented a majority-minority
district (although two of them were recently reelected as
incumbents after boundary changes created white majorities in their
districts).
Ante, at 93.
These circumstances help to explain why the 1991 Georgia
Legislature might have thought that the creation of two
majority-minority districts would help overcome racerelated
barriers-barriers erected by history and prejudice, reinforced by
inertia and nonparticipation. Not only the three-district plan, but
also the 1991 plan and the first (unprecleared) 1992 plan suggest
that that is what the legislature
did think. And I can find
no reason in the record not to take at face value what all the
legislature's plans thereby suggest, namely, that two
majority-minority districts represent a significant legislative
"policy and preference."
B
The majority says that the legislature's two-district preference
is not owed Upham deference because a plan that embodied that
preference is (or would be) "flawed by evidence of predominant
racial motive,"
ante, at 90, or based upon race to a degree
not reasonably necessary to comply with § 2 of the VRA, 42 U. S. C.
§ 1973. The majority means that a two-district plan would be
unlawful-that it would violate the Constitution as interpreted in
Miller. I cannot agree.
Miller considered the constitutionality of a
three-district plan. Its five-Justice majority included one
Member who
110
subsequently made clear that, even if racial considerations
"predominate" in a State's drawing of a district boundary, that
district is
nonetheless lawful (because there is a
compelling, hence redeeming, interest) if the State has "a strong
basis in evidence for concluding" that the district would otherwise
violate VRA § 2.
Bush, 517 U. S., at 994 (O'CONNOR, J.,
concurring); see also
Miller, 515 U. S., at 921;
Shaw
v.
Reno, 509
U. S. 630, 656-657 (1993). That" 'strong basis in evidence'
need not take any particular form,"
Bush, 517 U. S., at 994
(O'CONNOR, J., concurring), and where it is present, the State "may
create a majority-minority district without awaiting judicial
findings,"
ibid.; see also
Wygant v.
Jackson Bd.
of Ed., 476 U. S.
267, 289-291 (1986) (O'CONNOR, J., concurring);
McDaniel
v.
Barresi, 402
U. S. 39, 41 (1971). The majority does not reject this
standard.
Ante, at 90-91. And it cannot deny that there is a
"strong basis in the evidence" for believing that, after the 1990
census, VRA § 2, § 5, or both, required the creation of a second
majority-minority district.
As the majority agrees, § 2 requires a second majorityminority
district here, if the "totality of [the] circumstances" suggests
that racial minorities are excluded from "participat[ing] in the
political process" and "elect[ing] representatives of their
choice," 42 U. S. C. § 1973(b), and the evidence shows that (1) the
minority group "is sufficiently large and geographically compact to
constitute a majority" in a second "single-member district"; (2)
the minority group is "politically cohesive"; and (3) the majority
"votes sufficiently as a bloc to enable it ... usually to defeat
the minority's preferred candidate."
Thornburg v.
Gingles, 478 U.
S. 30, 50-51 (1986).
The majority discusses only these last
(Gingles)
requirements at any length. As to the first
requirement-compactness-the plans before the District Court raised
two possibilities: first, the creation of a majority-minority
district in southwest Georgia-in approximately the area labeled
Dis-
111
trict 2 in the court's plan (Appendix, 1995 Court Plan,
infra); and second, the creation of the majority-minority
district in southeastern central Georgia-in approximately the area
labeled District 11 in the Justice Department's Illustrative Plan
(Appendix, Illustrative Plan,
infra).
The first possibility could have involved a compactly shaped
district. Regardless, the DOJ's Illustrative Plan (which the
District Court considered on the merits, 922 F. Supp., at 1561, n.
4) suggests a newly drawn District 11 with an African-American
population of 54.60 percent, an African-American voting age
population of 51.04 percent, and a population deviation of 0.10.
(This deviation percentage-the highest in the Illustrative Plan-was
still lower than the deviation in two of the districts contained in
the Court Plan.) It suggests that the District Court's statement
that "the only way Georgia could create a majorityminority district
out of the minority concentrations in eastcentral Georgia was to
link" rural and urban communities by using "land bridges and
appendages" similar to those used in the unconstitutional 1992
plan, 922 F. Supp., at 1566, n. 15, was erroneous. The proposed
district is different from its unconstitutional predecessor. It
does not try to build a land bridge linking southern Atlanta with
Savannah. Cf.
Miller, supra, at 908. And its boundaries are
far more regular.
Moreover, it strikes me that the District Court's finding that a
district in east-central Georgia that encompassed both rural and
urban African-American communities could not be "compact" confuses
a number of issues.
Shaw v.
Reno and
Miller
compactness, which concerns the shape or boundaries of a district,
differs from § 2 compactness, which concerns a minority group's
compactness. Additionally, where (as here) the racial minority
group is geographically compact, see Appendix, Illustrative Plan,
infra, the fact that communities are rural or urban has more
to do with political cohesiveness-whether communities share common
intereststhan with § 2 compactness. To my knowledge, no case
has
112
ever held that rural and urban racial minorities
cannot
together create a compact minority for § 2 compactness purposes.
Moreover, it seems clear that rural and urban African-American
voters who live near each other
might share important common
interests; and I have found nothing in the record that suggests
that the rural and urban black voters here, living near each other,
do not share many common interests-in respect to many important
legislative matters. See Karlan & Levinson, Why Voting Is
Different, 84 Calif. L. Rev. 1201, 1216-1220 (1996); see also
Gingles, supra, at 64 (citing Butler, Constitutional and
Statutory Challenges to Election Structures: Dilution and the Value
of the Right to Vote, 42 La. L. Rev. 851, 902 (1982), and
The District Court considered the remaining two
Gingles
factors (the minority's "political cohesiveness" and the majority's
"bloc voting") under a single rubric, which the majority calls "the
extent of racially polarized voting."
Ante, at 92. Of
course, Georgia's history, including the political results that I
have mentioned before-the fact that AfricanAmerican representatives
have come almost exclusively from majority-minority
districts-strongly support the existence of that "polarization."
Moreover, appellants produced experts who testified that the
percentage of District 11 white voters willing to vote for a black
candidate varied from 0 to 26 percent, while the number of black
voters willing to vote for a white candidate varied from 3 to 11
percent. App. 54-61, 69-70, 72. Other expert testimony suggested
less polarization (placing the relevant numbers at 22 to 38 percent
white-for-black and 20 percent to 23 percent black-for-white).
Johnson v.
Miller, 864 F. Supp., at 1390. But that
other testimony rested in considerable part on local (and judicial,
and primary) election results with multiple candidates or other
special features that discouraged racial bloc voting, and for that
reason they may have overstated
113
the significance of the numerical results. See App. 93-94;
Gingles, 478 U. S., at 57, nn. 25 and 26.
Regardless, as the majority says, the District Court found the
statistical evidence inconclusive and "conflicting." 922 F. Supp.,
at 1567. And the District Court conceded the existence of "some
degree of vote polarization."
Ibid. (It simply said that the
"degree" was not" 'alarming.'''
Ibid.) That African-American
incumbents were reelected does not, without more, disprove
polarization.
Gingles, supra, at 75 (" '[T]he election of a
few minority candidates does not "necessarily foreclose the
possibility of dilution of the black vote .. ."''') (quoting S.
Rep. No. 97-417, p. 29, n. 115 (1982), in turn quoting
Zimmer v.
McKeithen, 485 F.2d
1297, 1307 (CA5 1973) (en bane), aff'd
sub nom. East Carroll
Parish School Bd. v.
Marshall, 424 U. S. 636 (1976)
(per curiam)); 478 U. S., at 75 (citing S. Rep. No. 97-417,
supra, at 29, n. 115) (listing incumbency as a special
factor in assessing vote polarization).
The majority says that, despite this evidence, the District
Court's findings-of no § 2 violation and no § 5 violation-are
adequately supported.
Ante, at 94, 97. But that is because
the District Court asked the wrong question. We need not decide
whether the evidence shows the failure to create a second
majority-minority district violates § 2. Cf.
ante, at 90-95.
(Nor, for that matter, need we decide whether the consequent
reduction of such districts from 1 in 10 to 1 in 11 would, other
things being equal, violate § 5-which it might do. Cf.
ante,
at 95-98.) The question is not about whether the evidence proves §
2
in fact requires two majorityminority districts. The
question is whether the evidence is strong enough to justify a
legislature's reasonable belief that that was so. The record rather
clearly demonstrates a "strong basis in the evidence" for
believing that § 2 or § 5 required two majority-minority
districts. The legislature thus could very reasonably have believed
that was so. And, that is what I had believed the law, as set forth
in this
114
Court's opinions, required as legal justification for a district
that otherwise would violate the basic predominant factor test of
Miller.
This legal distinction-between whether a plan really violates §
2 or might well violate § 2-may seem technical. But it is not. A
legal rule that permits legislatures to take account of race only
when § 2
really requires them to do so is a rule that shifts
the power to redistrict from legislatures to federal courts (for
only the latter can say what § 2
really requires). A rule
that rests upon a reasonable view of the evidence (i.
e.,
that permits the legislature to use race if it has a
"strong
basis" for believing it necessary to do so) is a rule that
leaves at least a modicum of discretionary (racerelated)
redistricting authority in the hands of legislators. Again (and at
a minimum), the District Court's use of the wrong test requires
vacating its judgment.
C
To create a second majority-minority district is not impractical
nor would doing so significantly interfere with other important
districting objectives. The easiest way to understand why this is
so is to look at three plans that I have placed in the Appendix,
infra. I shall call the Georgia Legislature's 1991
two-district reapportionment Plan A. Appendix, 1991 Plan,
infra. I shall call the one-district plan adopted by the
court Plan B. Appendix, 1995 Court Plan,
infra. And I shall
call the two-district Illustrative Plan proposed by the Justice
Department Plan C. Appendix, Illustrative Plan,
infra.
Inspection of the three plans suggests that the District Court's
plan (B) is very similar to the other two (A and C) but for one
critical feature, namely, that it has one majority-minority
district rather than two.
Now consider the three plans in respect to each of the five
districting considerations that the District Court called
traditional and important. They are: (a) retaining one district in
each corner of the State; (b) creating an urban minor-
115
ity district; (c) maintaining political subdivisions; (d)
protecting incumbents; and (e) maintaining traditional district
cores. 922 F. Supp., at 1564-1565.
All three plans are identical in respect to the first two
considerations. Each maintains districts in three of the four state
corners; each creates at least one urban minority district. Plan
B-the District Court's plan-is marginally superior in respect to
the third criterion (maintaining political subdivisions). Plan B
splits six counties within the Atlanta area but none outside the
Atlanta area.
Id., at 1564. Plan C splits two counties (Bibb
and Muscogee) outside the Atlanta area. (Appellants, however,
advance nonracial justifications for the latter splits.)
Plan C is superior to Plan B in respect to the remaining two
considerations. Plan C displaces no incumbents. Plan B displaces
three incumbents (including two AfricanAmericans). Plan C maintains
all district cores. Plan B moves many more Georgians into new
districts.
Plan C has certain other advantages: It maintains, as provided
in the legislature's 1991 plan, 138 of Georgia's 159 counties. Plan
B maintains 123. Plan C has greater population uniformity among its
districts. And, of course, Plan C provides for two
majority-minority districts-the number the legislature provided in
two of its three redistricting plans.
I add one point. This is not a suit in which there are claims of
interference with the right to cast a ballot or "dilution" of the
majority's vote. Cf.
White v.
Regester, 412 U. S. 755 (1973);
Reynolds v.
Sims, 377 U. S. 533 (1964); and
Gomillion v.
Lightfoot, 364 U. S. 339 (1960); see
also Karlan & Levinson, 84 Calif. L. Rev., at 1212-1216.
Rather, the legislature's plans, insofar as they were race
conscious, sought only to prevent what the legislature could
reasonably have believed to be unlawful vote dilution-i.
e.,
to prevent a violation of VRA § 2, or perhaps § 5. See Tr. 103
(Oct. 30, 1995) (testimony of Rep. Sanford Bishop). Given this fact
and given the three sets of considerations just mentioned, I do
116
not see how the majority, consistently with
Upham, can
affirm the District Court's determination.
II
In other cases dissenting judges have expressed concerns that
the Court's holdings and particularly its test-"predominant racial
motive"-would prove unworkable, that they would improperly shift
redistricting authority from legislatures to courts, and that they
would prevent the legitimate use (among others the remedial use) of
race as a political factor in redistricting, sometimes making
unfair distinctions between racial minorities and others. See,
e. g., Shaw v.
Reno, 509 U. S., at 676-679 (STEVENS,
J., dissenting);
id., at 679-687 (SOUTER, J., dissenting);
Miller, 515 U. S., at 929 (STEVENS, J., dissenting); id., at
934 (GINSBURG, J., dissenting);
Bush, 517 U. S., at 1003
(STEVENS, J., dissenting);
id., at 1045 (SOUTER, J.,
dissenting);
Shaw v.
Hunt, 517 U. S. 899, 918 (1996)
(STEVENS, J., dissenting). This suit exacerbates those
concerns.
Legislators, for example, may ask just what the words
"predominant racial motive" mean. The question has no obvious
answer because racial motives (here efforts to include some
additional African-American voters in a particular district)
never explain a predominant portion of a district's entire
boundary (most of which inevitably reflects county lines, other
geographical features, and sometimes even a discriminatory history,
see App. 120-121); yet those motives
always predominate in
respect to those voters (whether few or many) whom the legislature,
with consciousness of race, places for that reason in one district
rather than another. More importantly, here, unlike other cases
that use somewhat similar words, the Court has not turned to other
considerations, such as discriminatory intent, or vote dilution, or
even a district's bizarre geographical shape, to help explain, or
to limit the scope of, the words themselves. Cf.
Shaw v.
Hunt, supra; Regester, supra; Reynolds, supra; and
Gomil-
117
lion, supra. Thus, given today's suit, a legislator might
reasonably wonder whether he can ever knowingly place racial
minorities in a district because, for example, he considers them
part of a "community" already there; because he thinks doing so
will favor the Democrats (or the Republicans); because he wants to
help an African-American incumbent; because he believes doing so
will encourage participation in the political process by racial
minorities in whom historical discrimination has induced apathy;
because he believes that doing so will help those same voters
secure representatives that better reflect their needs and desires;
or simply because he wants to see more racial minorities elected to
office in a Nation that has become increasingly diverse.
The Court has not said that the Constitution forbids the use of
race in all these instances. See
Adarand Constructors, Inc.
v.
Pena, 515
U. S. 200, 237 (1995); see also
Shaw v.
Reno,
supra, at 646-647;
Miller, supra, at 920;
Bush,
supra, at 1004 (STEVENS, J., dissenting);
Wygant v.
Jackson Bd. of Ed., 476 U. S., at 280;
Richmond v. J.
A. Croson Co., 488 U. S. 469, 493-494
(1989). If the use of race as a criterion is wrong in some, but not
all, of these instances, the legislator will need to know when, and
why. And the legislator will need a legal principle that tells him
whether, or when, the answers to such questions vary depending upon
whether the group is racial or reflects, say, economics, education,
or nationalorigin.
Miller, supra, at 944-945 (GINSBURG, J.,
dissenting). It seems particularly difficult-without the use of
some guiding or limiting principle, such as intent, vote dilution,
or even bizarre district shape-to find principled legal answers to
what, in the redistricting context, are traditionally political
questions.
The decision also increases the risk of significant judicial
entanglement in the inherently political redistricting process.
See,
e. g., Bush, supra, at 1035-1040 (STEVENS, J.,
dissenting);
Miller, supra, at 934-935 (GINSBURG, J.,
dissenting); see also
Growe v.
Emison, 507 U. S. 25, 33-34
(1993);
118
Voinovich v.
Quilter, 507 U. S. 146, 156-157
(1993);
Chapman v.
Meier, 420 U. S. 1, 26 (1975);
White, supra, at 795;
Reynolds, 377 U. S., at 586;
Colegrove v.
Green, 328 U. S. 549, 552554
(1946). A Court test that forbids the overt use of race in any (or
all) of the circumstances listed above will simultaneously permit
plaintiffs to bring lawsuits complaining about the covert use of
what was overtly forbidden. Any redistricting plan will generate
potentially injured plaintiffs, willing and able to carry on their
political battles in a judicial forum. And judges (unable to refer,
say, to intent, dilution, shape, or some other limiting principle)
will find it difficult to dismiss those claims-particularly if (as
the majority here says) the law deprives the legislature even of
such defenses as a reasonable belief that a particular use of race
was legally required.
Nor can I find any legal principle that might constitute a
simple, administrable stopping place-a principle that could serve
the same function in this context as does the oneperson, one-vote
rule in the context of reapportionment. See
Miller, supra,
at 938-939 (GINSBURG, J., dissenting). A simple "color blind"
test-a test that rules out race consciousness across the board-will
not work.
Bush, supra, at 1060-1062 (SOUTER, J.,
dissenting). Legislators can and should use race consciously to
prevent creating districting plans that discriminate against racial
minorities, say, by "diluting" their votes. Cf.
Adarand
Constructors, Inc., 515 U. S., at 237. Moreover, this Court,
recognizing the harm caused by slavery and 80 subsequent years of
legal segregation, has held that legislators, within limits, can
make conscious use of race in an effort to overcome the present
effects of past discrimination.
Ibid.; see also
Shaw
v.
Reno, supra, at 646-647;
Miller, 515 U. S., at
920. There may be other instances as well. Further, any test that
applied only to race, ignoring, say, religion or national origin,
would place at a disadvantage the very group, African-Americans,
whom the Civil War Amendments sought to help, see id., at 936-
119
938 (GINSBURG, J., dissenting). But judicial administration of a
test that applied to all such voter group characteristics would
involve courts yet more deeply in the basically political task of
drawing and redrawing district boundaries.
In focusing on these practical considerations, I repeat what
previous dissents have argued. I do so because the holding here
underscores the problems mentioned in those earlier dissents; and
those problems, in turn, cast further doubt upon the soundness of
today's decision.
III
I do not necessarily agree or disagree with those other aspects
of the majority's opinion that I have not mentioned. But I shall
stop with the main point. The Court, perhaps by focusing upon what
it considered to be unreasonably pervasive positive use of race as
a redistricting factor, has created a legal doctrine that will
unreasonably restrict legislators' use of race, even for the most
benign, or antidiscriminatory, purposes. And that doctrine will
draw the Court too deeply into an area of legislative
responsibility. For the reasons set forth here, and in previous
dissenting opinions, I do not believe that the Constitution
embodies the doctrine that the majority enunciates. And I believe
that Upham requires us to vacate the District Court's judgment and
remand the suit.
[Appendix to opinion of BREYER, J., follows this page.]
120
1991 Plan
APPENDIX TO OPINI
N OF BREYER, J.
1995 Court Plan
Illustrative Plan
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