OCTOBER TERM, 2002
Syllabus
GEORGIA
v. ASHCROFT, ATTORNEY GENERAL, ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA
No. 02-182. Argued April 29, 2003-Decided June 26, 2003
Georgia's 1997 State Senate districting plan is the benchmark
plan for this litigation. That plan drew 56 districts, 11 of them
with a total black population of over 50%, and 10 of them with a
black voting age population of over 50%. The 2000 census revealed
that these numbers had increased so that 13 districts had a black
population of at least 50%, with the black voting age population
exceeding 50% in 12 of those districts. After the 2000 census, the
Georgia General Assembly began redistricting the Senate once again.
It is uncontested that a substantial majority of Georgia's black
voters vote Democratic, and that all elected black representatives
in the General Assembly are Democrats. The Senator who chaired the
subcommittee that developed the new plan testified he believed that
as a district's black voting age population increased beyond what
was necessary to elect a candidate, it would push the Senate more
toward the Republicans, and correspondingly diminish the power of
African-Americans overall. Thus, part of the Democrats' strategy
was not only to maintain the number of majority-minority districts
and increase the number of Democratic Senate seats, but also to
increase the number of so-called "influence" districts, where black
voters would be able to exert a significant-if not decisive-force
in the election process. The new plan therefore "unpacked" the most
heavily concentrated majority-minority districts in the benchmark
plan, and created a number of new influence districts, drawing 13
districts with a majority-black voting age population, 13
additional districts with a black voting age population of between
30%-50%, and 4 other districts with a black voting age population
of between 25%-30%. When the Senate adopted the new plan, 10 of the
11 black Senators voted for it. The Georgia House of
Representatives passed the plan with 33 of the 34 black
Representatives voting for it. No Republican in either body voted
for the plan, making the votes of the black legislators necessary
for passage. The Governor signed the Senate plan into law in
2001.
Because Georgia is a covered jurisdiction under § 5 of the
Voting Rights Act of 1965, it must submit any new voting "standard,
practice, or procedure" for preclearance by either the United
States Attorney General or the District Court for the District of
Columbia in order to ensure that the change "does not have the
purpose [or] effect of denying
462
Syllabus
or abridging the right to vote on account of race or color," 42
U. S. C. § 1973c. No change should be precleared if it "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. In order
to preclear its 2001 plan, Georgia filed suit in the District Court
seeking a declaratory judgment that the plan does not violate § 5.
To satisfy its burden of proving nonretrogression, Georgia
submitted detailed evidence documenting, among other things, the
total population, total black population, black voting age
population, percentage of black registered voters, and the overall
percentage of Democratic votes in each district; evidence about how
each of these statistics compared to the benchmark districts;
testimony from numerous participants in the plan's enactment that
it was designed to increase black voting strength throughout the
State as well as to help ensure a continued Democratic majority in
the Senate; expert testimony that black and nonblack voters have
equal chances of electing their preferred candidate when the black
voting age population of a district is at 44.3%; and, in response
to the United States' objections, more detailed statistical
evidence with respect to three proposed Senate districts that the
United States found objectionable-Districts 2, 12, and 26-and two
districts challenged by the intervenors-Districts 15 and 22. The
United States argued that the plan should not be precleared because
the changes to the boundaries of Districts 2, 12, and 26 unlawfully
reduced black voters' ability to elect candidates of their choice.
The United States' evidence focused only on those three districts
and was not designed to permit the court to assess the plan's
overall impact. The intervenors, four African-Americans, argued
that retrogression had occurred in Districts 15 and 22, and
presented proposed alternative plans and an expert report
critiquing the State's expert report. A three-judge District Court
panel held that the plan violated § 5, and was therefore not
entitled to preclearance.
Held:
1. The District Court did not err in allowing the private
litigants to intervene. That court found that the intervenors'
analysis of the plan identifies interests not adequately
represented by the existing parties. Private parties may intervene
in § 5 actions assuming they meet the requirements of Federal Rule
of Civil Procedure 24,
NAACP v.
New York,
413 U. S. 345, 365, and
the District Court did not abuse its discretion in allowing
intervention in this case, see
id., at 367.
Morris v.
Gressette, 432
U. S. 491, 504-505, in which the Court held that the decision
to object belongs only to the Attorney General, is distinguished
because it concerned the administrative, not the judicial,
preclearance
463
process.
Morris itself recognized the difference between
the two. See id., at 503-507. Pp. 476-477.
2. The District Court failed to consider all the relevant
factors when it examined whether Georgia's Senate plan resulted in
a retrogression of black voters' effective exercise of the
electoral franchise. Pp. 477-491.
(a) Georgia's argument that a plan should be precleared under §
5 if it would satisfy § 2 of the Voting Rights Act, 42 U. S. C. §
1973, is rejected. A § 2 vote dilution violation is not an
independent reason to deny § 5 preclearance, because that would
inevitably make § 5 compliance contingent on § 2 compliance and
thereby replace § 5 retrogression standards with those for § 2.
Reno v.
Bossier Parish School Bd.,
520 U. S. 471,477.
Instead of showing that its plan is nondilutive under § 2, Georgia
must prove that it is nonretrogressive under § 5. Pp. 477-479.
(b) To determine the meaning of "a retrogression in the position
of racial minorities with respect to their effective exercise of
the electoral franchise,"
Beer, supra, at 141, the statewide
plan must first be examined as a whole: First, the diminution of a
minority group's effective exercise of the electoral franchise
violates § 5 only if the State cannot show that the gains in the
plan as a whole offset the loss in a particular district. Second,
all of the relevant circumstances must be examined, such as
minority voters' ability to elect their candidate of choice, the
extent of the minority group's opportunity to participate in the
political process, and the feasibility of creating a
nonretrogressive plan. See,
e. g., Johnson v.
De
Grandy, 512 U. S.
997, 1011-1012, 1020-1021. In assessing the totality of the
circumstances, a minority group's comparative ability to elect a
candidate of its choice is an important factor, but it cannot be
dispositive or exclusive. See,
e. g., Thornburg v.
Gingles, 478 U.
S. 30, 47-50. To maximize such a group's electoral success, a
State may choose to create either a certain number of "safe"
districts in which it is highly likely that minority voters will be
able to elect the candidate of their choice, see,
e. g.,
id., at 48-49, or a greater number of districts in which it is
likely, although perhaps not quite as likely as under the benchmark
plan, that minority voters will be able to elect their candidates,
see,
e. g., id., at 88-89 (O'CONNOR, J., concurring in
judgment). Section 5 does not dictate that a State must pick one of
these redistricting methods over the other.
Id., at 89. In
considering the other highly relevant factor in a retrogression
inquiry-the extent to which a new plan changes the minority group's
opportunity to participate in the political process-a court must
examine whether the plan adds or subtracts "influence districts"
where minority voters may not be able to elect a candidate of
choice but can play a substantial, if not
464
Syllabus
decisive, role in the electoral process, cf.,
e. g., Johnson,
supra, at 1007. In assessing these influence districts'
comparative weight, it is important to consider "the likelihood
that candidates elected without decisive minority support would be
willing to take the minority's interests into account."
Thornburg, 478 U. S., at 100 (O'CONNOR, J., concurring in
judgment). Various studies suggest that the most effective way to
maximize minority voting strength may be to create more influence
or coalitional districts. Section 5 allows States to risk having
fewer minority representatives in order to achieve greater overall
representation of a minority group by increasing the number of
representatives sympathetic to the interests of minority voters.
See,
e. g., id., at 87-89, 99. Another method of assessing
the group's opportunity to participate in the political process is
to examine the comparative position of black representatives'
legislative leadership, influence, and power. See
Johnson,
supra, at 1020. Maintaining or increasing legislative positions
of power for minority voters' representatives of choice, while not
dispositive by itself, can show the lack of retrogressive effect.
And it is also significant, though not dispositive, whether the
representatives elected from the very districts created and
protected by the Voting Rights Act support the new plan. Pp.
479-485.
(c) The District Court failed to consider all the relevant
factors.
First, although acknowledging the importance of assessing the
statewide plan as a whole, the court focused too narrowly on
proposed Senate Districts 2, 12, and 26, without examining the
increases in the black voting age population that occurred in many
of the other districts. Second, the court did not consider any
factor beyond black voters' comparative ability to elect a
candidate of their choice. It improperly rejected other evidence
that the legislators representing the benchmark majority-minority
districts support the plan; that the plan maintains those
representatives' legislative influence; and that Georgia
affirmatively decided that the best way to maximize black voting
strength was to adopt a plan that "unpacked" the high concentration
of minority voters in the majority-minority districts. In the face
of Georgia's evidence of nonretrogression, the United States' only
evidence was that it would be more difficult for minority voters to
elect their candidate of choice in Districts 2, 12, and 26. Given
the evidence submitted in this case, Georgia likely met its burden
of showing nonretrogression. Section 5 gives States the flexibility
to implement the type of plan that Georgia has submitted for
preclearance-a plan that increases the number of districts with a
majority-black voting age population, even if it means that
minority voters in some of those districts will face a somewhat
reduced opportunity to elect a candidate of their choice. Cf.
Thornburg, supra, at 89 (O'CONNOR, J., concurring in
judgment). While courts and the
465
Justice Department should be vigilant in ensuring that States
neither reduce minority voters' effective exercise of the electoral
franchise nor discriminate against them, the Voting Rights Act, as
properly interpreted, should encourage the transition to a society
where race no longer matters. Pp. 485-491.
(d) The District Court is in a better position to reweigh all
the facts in the record in the first instance in light of this
Court's explication of retrogression. P. 491.
195 F. Supp. 2d 25, vacated and remanded.
O'CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined.
KENNEDY, J.,
post, p. 491, and THOMAS, J.,
post, p.
492, filed concurring opinions. SOUTER, J., filed a dissenting
opinion, in which STEVENS, GINSBURG, and BREYER, JJ., joined,
post, p. 492.
David F. Walbert argued the cause for appellant. With him
on the briefs were
Thurbert E. Baker, Attorney General of
Georgia,
Dennis R. Dunn, Deputy Attorney General, and
Mark H. Cohen.
Malcolm L. Stewart argued the cause for the federal appellees.
With him on the brief were Solicitor General Olson, Assistant
Attorney General Boyd, Deputy Solicitor General Clement, and Mark
L. Gross.
E. Marshall Braden argued the cause for appellee
intervenors. With him on the brief were
Amy M. Henson, Frank B.
Strickland, and
Anne W Lewis.*
JUSTICE O'CONNOR delivered the opinion of the Court.
In this case, we decide whether Georgia's State Senate
redistricting plan should have been precleared under § 5 of the
Voting Rights Act of 1965, 79 Stat. 439, as renumbered and amended,
42 U. S. C. § 1973c. Section 5 requires that before a covered
jurisdiction's new voting "standard, prac-
* A brief of amicus curiae urging affirmance was filed for the
Georgia Coalition for the Peoples' Agenda by Laughlin McDonald,
Neil Bradley, Barbara R. Arnwine, Thomas J. Henderson, Anita
Hodgkiss, Elaine R. Jones, Norman J. Chachkin, and Todd A. Cox.
466
tice, or procedure" goes into effect, it must be precleared by
either the Attorney General of the United States or a federal court
to ensure that the change "does not have the purpose and will not
have the effect of denying or abridging the right to vote on
account of race or color." 42 U. S. C. § 1973c. Whether a voting
procedure change should be precleared depends on whether the change
"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). We therefore must decide whether Georgia's State Senate
redistricting plan is retrogressive as compared to its previous,
benchmark districting plan.
I A
Over the past decade, the propriety of Georgia's state and
congressional districts has been the subject of repeated
litigation. In 1991, the Georgia General Assembly began the process
of redistricting after the 1990 census. Because Georgia is a
covered jurisdiction under § 5 of the Voting Rights Act, see
Miller v.
Johnson, 515 U. S. 900, 905
(1995), Georgia submitted its revised State Senate plan to the
United States Department of Justice for preclearance. The plan as
enacted into law increased the number of majorityminority districts
from the previous Senate plan. The Department of Justice
nevertheless refused preclearance because of Georgia's failure to
maximize the number of majority-minority districts. See
Johnson v.
Miller, 929 F. Supp. 1529, 1537, and n. 23
(SD Ga. 1996). After Georgia made changes to the Senate plan in an
attempt to satisfy the United States' objections, the State again
submitted it to the Department of Justice for preclearance. Again,
the Department of Justice refused preclearance because the plan did
not contain a sufficient number of majority-minority districts. See
id., at 1537, 1539. Finally, the United States precleared
467
Georgia's third redistricting plan, approving it in the spring
of 1992. See id., at 1537.
Georgia's 1992 Senate plan was not challenged in court.
See id., at 1533-1534. Its congressional districting plan,
however, was challenged as unconstitutional under the Equal
Protection Clause of the Fourteenth Amendment. See
Shaw v.
Reno, 509 U.
S. 630 (1993). In 1995, we held in
Miller v.
Johnson that Georgia's congressional districting plan was
unconstitutional because it engaged in "the very racial
stereotyping the Fourteenth Amendment forbids" by making race the
"predominant, overriding factor explaining" Georgia's congressional
districting decisions. 515 U. S., at 928, 920. And even though it
was "safe to say that the congressional plan enacted in the end was
required in order to obtain preclearance," this justification did
not permit Georgia to engage in racial gerrymandering. See id., at
921. Georgia's State Senate districts served as "building blocks"
to create the congressional districting plan found unconstitutional
in
Miller v.
Johnson. Johnson v.
Miller, 929
F. Supp., at 1533, n. 8 (internal quotation marks omitted); see
also id., at 1536.
Georgia recognized that after
Miller v.
Johnson,
its legislative districts were unconstitutional under the Equal
Protection Clause. See 929 F. Supp., at 1533, 1540. Accordingly,
Georgia attempted to cure the perceived constitutional problems
with the 1992 State Senate districting plan by passing another plan
in 1995. The Department of Justice refused to preclear the 1995
plan, maintaining that it retrogressed from the 1992 plan and that
Miller v.
Johnson concerned only Georgia's
congressional districts, not Georgia's State Senate districts. See
929 F. Supp., at 1540-1541.
Private litigants subsequently brought an action challenging the
constitutionality of the 1995 Senate plan. See id., at 1533. The
three-judge panel of the District Court reviewing the 1995 Senate
plan found that "[i]t is clear that a black maximization policy had
become an integral part of the sec-
468
tion 5 preclearance process ... when the Georgia redistricting
plans were under review. The net effect of the DOJ's preclearance
objection[s] ... was to require the State of Georgia to increase
the number of majority black districts in its redistricting plans,
which were already ameliorative plans, beyond any reasonable
concept of non-retrogression."
Id., at 1539-1540. The court
noted that in
Miller v.
Johnson, we specifically
disapproved of the Department of Justice's policy that the
maximization of black districts was a part of the § 5 retrogression
analysis. See 929 F. Supp., at 1539. Indeed, in
Miller, we
found that the Department of Justice's objections to Georgia's
redistricting plans were "driven by its policy of maximizing
majority-black districts." 515 U. S., at 924. And "[i]n utilizing §
5 to require States to create majority-minority districts wherever
possible, the Department of Justice expanded its authority under
the statute beyond what Congress intended and we have upheld."
Id., at 925.
The District Court stated that the maximization of
majority-minority districts in Georgia "artificially push[ed] the
percentage of black voters within some majority black districts as
high as possible." 929 F. Supp., at 1536. The plan that eventually
received the Department of Justice's preclearance in 1992
"represented the General Assembly's surrender to the black
maximization policy of the DOJ."
Id., at 1540. The court
then found that the 1995 plan was an unconstitutional racial
gerrymander. See id., at 1543.
Under court direction, Georgia and the Department of Justice
reached a mediated agreement on the constitutionality of the 1995
Senate plan. Georgia passed a new plan in 1997, and the Department
of Justice quickly precleared it. The redrawn map resembled to a
large degree the 1992 plan that eventually received preclearance
from the Department of Justice, with some changes to accommodate
the decision of this Court in
Miller v.
Johnson, and
of the District Court in
Johnson v.
Miller.
469
All parties here concede that the 1997 plan is the benchmark
plan for this litigation because it was in effect at the time of
the 2001 redistricting effort. The 1997 plan drew 56 districts, 11
of them with a total black population of over 50%, and 10 of them
with a black voting age population of over 50%. See Record, Doc.
No. 148, Pl. Exh. 1C (hereinafter Pl. Exh.). The 2000 census
revealed that these numbers had increased so that 13 districts had
a black population of at least 50%, with the black voting age
population exceeding 50% in 12 of those districts. See 195 F. Supp.
2d 25, 39 (DC 2002).
After the 2000 census, the Georgia General Assembly began the
process of redistricting the Senate once again. No party contests
that a substantial majority of black voters in Georgia vote
Democratic, or that all elected black representatives in the
General Assembly are Democrats. The goal of the Democratic
leadership-black and white-was to maintain the number of
majority-minority districts and also increase the number of
Democratic Senate seats. See id., at 41-42. For example, the
Director of Georgia's Legislative Redistricting Office, Linda
Meggers, testified that the Senate Black Caucus" 'wanted to
maintain'" the existing majorityminority districts and at the same
time" 'not waste'" votes.
Id., at 41.
The Vice Chairman of the Senate Reapportionment Committee,
Senator Robert Brown, also testified about the goals of the
redistricting effort. Senator Brown, who is black, chaired the
subcommittee that developed the Senate plan at issue here. See id.,
at 42. Senator Brown believed when he designed the Senate plan that
as the black voting age population in a district increased beyond
what was necessary, it would "pus[h] the whole thing more towards
[the] Republican[s]." Pl. Exh. 20, at 24. And "correspondingly,"
Senator Brown stated, "the more you diminish the power of
African-Americans overall."
Ibid. Senator Charles Walker was
the majority leader of the Senate. Senator Walker
470
testified that it was important to attempt to maintain a
Democratic majority in the Senate because "we [AfricanAmericans]
have a better chance to participate in the political process under
the Democratic majority than we would have under a Republican
majority." PI. Exh. 24, at 19. At least 7 of the 11 black members
of the Senate could chair committees. See 195 F. Supp. 2d, at
41.
The plan as designed by Senator Brown's committee kept true to
the dual goals of maintaining at least as many majority-minority
districts while also attempting to increase Democratic strength in
the Senate. Part of the Democrats' strategy was not only to
maintain the number of majorityminority districts, but to increase
the number of so-called "influence" districts, where black voters
would be able to exert a significant-if not decisive-force in the
election process. As the majority leader testified, "in the past,
you know, what we would end up doing was packing. You put all
blacks in one district and all whites in one district, so what you
end up with is [a] black Democratic district and [a] white
Republican district. That's not a good strategy. That does not
bring the people together, it divides the population. But if you
put people together on voting precincts it brings people together."
PI. Exh. 24, at 19.
The plan as designed by the Senate "unpacked" the most heavily
concentrated majority-minority districts in the benchmark plan, and
created a number of new influence districts. The new plan drew 13
districts with a majority-black voting age population, 13
additional districts with a black voting age population of between
30% and 50%, and 4 other districts with a black voting age
population of between 25% and 30%. See PI. Exh. 2C. According to
the 2000 census, as compared to the benchmark plan, the new plan
reduced by five the number of districts with a black voting age
population in excess of 60%. Compare PI. Exh. 1D with PI. Exh. 2C.
Yet it increased the number of majority-black voting age population
districts by one, and it increased the number
471
of districts with a black voting age population of between 25%
and 50% by four. As compared to the benchmark plan enacted in 1997,
the difference is even larger. Under the old census figures,
Georgia had 10 Senate districts with a majority-black voting age
population, and 8 Senate districts with a black voting age
population of between 30% and 50%. See PI. Exh. 1 C. The new plan
thus increased the number of districts with a majority black voting
age population by three, and increased the number of districts with
a black voting age population of between 30% and 50% by another
five. Compare PI. Exh. 1C with PI. Exh. 2C.
The Senate adopted its new districting plan on August 10, 2001,
by a vote of 29 to 26. Ten of the eleven black Senators voted for
the plan. 195 F. Supp. 2d, at 55. The Georgia House of
Representatives passed the Senate plan by a vote of 101 to 71.
Thirty-three of the thirty-four black Representatives voted for the
plan.
Ibid. No Republican in either the House or the Senate
voted for the plan, making the votes of the black legislators
necessary for passage. See id., at 41. The Governor signed the
Senate plan into law on August 24,2001, and Georgia subsequently
sought to obtain preclearance.
B
Pursuant to § 5 of the Voting Rights Act, a covered jurisdiction
like Georgia has the option of either seeking administrative
preclearance through the Attorney General of the United States or
seeking judicial preclearance by instituting an action in the
United States District Court for the District of Columbia for a
declaratory judgment that the voting change comports with § 5. 42
U. S. C. § 1973c;
Georgia v.
United States, 411 U. S. 526 (1973).
Georgia chose the latter method, filing suit seeking a declaratory
judgment that the State Senate plan does not violate § 5.
Georgia, which bears the burden of proof in this action, see
Pleasant Grove v.
United States, 479 U. S. 462 (1987),
attempted to prove that its Senate plan was not retrogres-
472
sive either in intent or in effect. It submitted detailed
evidence documenting in each district the total population, the
total black population, the black voting age population, the
percentage of black registered voters, and the overall percentage
of Democratic votes (i.
e., the overall likelihood that
voters in a particular district will vote Democratic), among other
things. See 195 F. Supp. 2d, at 36; see also PI. Exhs. 2C, 2D. The
State also submitted evidence about how each of these statistics
compared to the benchmark districts. See 195 F. Supp. 2d, at 36;
see also PI. Exhs.
lC, lD, lE (revised).
Georgia also submitted testimony from numerous people who had
participated in enacting the Senate plan into law, and from United
States Congressman John Lewis, who represents the Atlanta area.
These witnesses testified that the new Senate plan was designed to
increase black voting strength throughout the State as well as to
help ensure a continued Democratic majority in the Senate. The
State also submitted expert testimony that African-American and
non-African-American voters have equal chances of electing their
preferred candidate when the black voting age population of a
district is at 44.3%. Finally, in response to objections raised by
the United States, Georgia submitted more detailed statistical
evidence with respect to three proposed Senate districts that the
United States found objectionableDistricts 2, 12, and 26-and two
districts that the intervenors challenged-Districts 15 and 22.
The United States, through the Attorney General, argued in
District Court that Georgia's 2001 Senate redistricting plan should
not be precleared. It argued that the plan's changes to the
boundaries of Districts 2, 12, and 26 unlawfully reduced the
ability of black voters to elect candidates of their choice. See
Brief for Federal Appellees 8; 195 F. Supp. 2d, at 72. The United
States noted that in District 2, the black voting age population
dropped from 60.58% to 50.31 %; in District 12, the black voting
age population dropped from 55.43% to 50.66%; and in District 26,
the black
473
voting age population dropped from 62.45% to 50.80%.1 Moreover,
in all three of these districts, the percentage of black registered
voters dropped to just under 50%. The United States also submitted
expert evidence that voting is racially polarized in Senate
Districts 2, 12, and 26. See id., at 69-71. The United States
acknowledged that some limited percentage of whites would vote for
a black candidate, but maintained that the percentage was not
sufficient for black voters to elect their candidate of choice. See
id., at 70-71. The United States also offered testimony from
various witnesses, including lay witnesses living in the three
districts, who asserted that the new contours of Districts 2, 12,
and 26 would reduce the opportunity for blacks to elect a candidate
of their choice in those districts; Senator Regina Thomas of
District 2, the only black Senator who voted against the plan;
Senator Eric Johnson, the Republican leader of the Senate; and some
black legislators who voted
1 Georgia and the United States have submitted slightly
different figures regarding the black voting age population of each
district. The differing figures depend upon whether the total
number of blacks includes those people who self-identify as both
black and a member of another minority group, such as Hispanic.
Georgia counts this group of people, while the United States does
not do so. Like the District Court, we consider all the record
information, "including total black population, black registration
numbers and both [black voting age population] numbers." 195 F.
Supp. 2d 25, 79 (DC 2002). We focus in particular on Georgia's
black voting age population numbers in this case because all
parties rely on them to some extent and because Georgia used its
own black voting age population numbers when it enacted the Senate
plan. Moreover, the United States does not count all persons who
identify themselves as black. It counts those who say they are
black and those who say that they are both black and white, but it
does not count those who say they are both black and a member of
another minority group. U sing the United States' numbers may have
more relevance if the case involves a comparison of different
minority groups. Cf.
Johnson v.
De Grandy, 512 U. S. 997 (1994);
Bush v.
Vera, 517 U. S. 952 (1996).
Here, however, the case involves an examination of only one
minority group's effective exercise of the electoral franchise. In
such circumstances, we believe it is proper to look at
all
individuals who identify themselves as black.
474
for the plan but questioned how the plan would affect black
voters. See Vols. 25-27 Record, Doc. No. 177, United States Exhs.
707-736 (Depositions). As the District Court stated, "the United
States' evidence was extremely limited in scope-focusing only on
three contested districts in the State Senate plan. That evidence
was not designed to permit the court to assess the overall impact
of [the Senate plan]." 195
Pursuant to Federal Rule of Civil Procedure 24, the District
Court also permitted four African-American citizens of Georgia to
intervene. The intervenors identified two other districts-Districts
15 and 22-where they alleged retrogression had occurred. The
intervenors "present[ed] little evidence other than proposed
alternative plans and an expert report critiquing the State's
expert report." 195 F. Supp. 2d, at 37.
A three-judge panel of the District Court held that Georgia's
State Senate apportionment violated § 5, and was therefore not
entitled to preclearance. See id., at 97. Judge Sullivan, joined by
Judge Edwards, concluded that Georgia had "not demonstrated by a
preponderance of the evidence that the State Senate redistricting
plan would not have a retrogressive effect on African American
voters" effective exercise of the electoral franchise.
Ibid.
The court found that Senate Districts 2, 12, and 26 were
retrogressive because in each district, a lesser opportunity
existed for the black candidate of choice to win election under the
new plan than under the benchmark plan. See id., at 93-94. The
court found that the reductions in black voting age population in
Districts 2, 12, and 26 would "diminish African American voting
strength in these districts," and that Georgia had "failed to
present any ... evidence" that the retrogression in those districts
"will be offset by gains in other districts."
Id., at
88.
475
Judge Edwards, joined by Judge Sullivan, concurred.
Judge Edwards emphasized that §§ 5 and 2 are "procedurally and
substantively distinct provisions."
Id., at 97. He therefore
rejected Georgia's argument that a plan preserving an equal
opportunity for minorities to elect candidates of their choice
satisfies § 5. Judge Edwards also rejected the testimony of the
black Georgia politicians who supported the Senate plan. In his
view, the testimony did not address whether racial polarization was
occurring in Senate Districts 2, 12, and 26. See id., at
101-102.
Judge Oberdorfer dissented. He would have given "greater
credence to the political expertise and motivation of Georgia's
African-American political leaders and reasonable inferences drawn
from their testimony and the voting data and statistics."
Id., at 102. He noted that this Court has not answered
"whether a redistricting plan that preserves or increases the
number of districts statewide in which minorities have a fair or
reasonable opportunity to elect candidates of choice is entitled to
preclearance, or whether every district must remain at or improve
on the benchmark probability of victory, even if doing so maintains
a minority supermajority far in excess of the level needed for
effective exercise of [the] electoral franchise."
Id., at
117.
After the District Court refused to preclear the plan, Georgia
enacted another plan, largely similar to the one at issue here,
except that it added black voters to Districts 2, 12, and 26. The
District Court precleared this plan. See 204 F. Supp. 2d 4 (2002).
No party has contested the propriety of the District Court's
preclearance of the Senate plan as amended. Georgia asserts that it
will use the plan as originally enacted if it receives
preclearance.
We noted probable jurisdiction to consider whether the District
Court should have precleared the plan as originally enacted by
Georgia in 2001, 537 U. S. 1151 (2003), and now vacate the judgment
below.
476
II
Before addressing the merits of Georgia's preclearance claim, we
address the State's argument that the District Court was incorrect
in allowing the private litigants to intervene in this lawsuit.
Georgia maintains that private parties should not be allowed to
intervene in § 5 actions because States should not be subjected to
the political stratagems of intervenors. While the United States
disagrees with Georgia on the propriety of intervention here, the
United States argues that this question is moot because the
participation of the intervenors did not affect the District
Court's ruling on the merits and the intervenors did not appeal the
court's ruling.
We do not think Georgia's argument is moot. The intervenors did
not have to appeal because they were prevailing parties below.
Moreover, the District Court addressed the evidence that the
intervenors submitted, which is now in front of this Court. The
issue whether intervenors are proper parties still has relevance in
this Court because they argue here that the District Court
correctly found that the Senate plan was retrogressive.
The District Court properly found that Federal Rule of Civil
Procedure 24 governs intervention in this case. Section 5 permits a
State to bring "an action in the United States District Court for
the District of Columbia for a declaratory judgment." 42 U. S. C. §
1973c. Section 5 does not limit in any way the application of the
Federal Rules of Civil Procedure to this type of lawsuit, and the
statute by its terms does not bar private parties from intervening.
In
NAACP v.
New York, 413 U. S. 345, 365
(1973), we held that in an action under § 5, "[i]ntervention in a
federal court suit is governed by Fed. Rule Civ. Proc. 24."
To support its argument, Georgia relies on
Morris v.
Gressette, 432
U. S. 491 (1977). In
Morris, we held that in an
administrative preclearance action, the decision to object
belongs only to the Attorney General and is not judicially
477
reviewable. See
id., at 504-505. But
Morris
concerned the administrative preclearance process, not the judicial
preclearance process.
Morris itself recognized the
difference between administrative preclearance and judicial
preclearance. See id., at 503-507.
Here, the District Court granted the motion to intervene because
it found that the intervenors' "analysis of the ... Senate
redistricting pla[n] identifies interests that are not adequately
represented by the existing parties." App. to Juris. Statement
218a. Private parties may intervene in § 5 actions assuming they
meet the requirements of Rule 24, and the District Court did not
abuse its discretion in granting the motion to intervene in this
case. See
NAACP v.
New York, supra, at 367.
III A
Section 5 of the Voting Rights Act "has a limited substantive
goal: "'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.'''
Miller, 515 U. S., at 926 (quoting
Beer v.
United States, 425 U. S., [at 141])."
Bush v.
Vera, 517 U. S. 952, 982-983
(1996). Thus, a plan that merely preserves "current minority voting
strength" is entitled to § 5 preclearance.
City of Lockhart
v.
United States, 460 U. S. 125, 134, n. 10
(1983);
Bush v.
Vera, supra, at 983. Indeed, a voting
change with a discriminatory but nonretrogressive purpose or effect
does not violate § 5. See
Reno v.
Bossier Parish School
Bd., 528 U. S.
320, 341 (2000). And
"no matter how unconstitutional it may
be," a plan that is not retrogressive should be precleared
under § 5.
Id., at 336. "[P]reclearance under § 5 affirms
nothing but the absence of backsliding."
Id., at 335.
Georgia argues that a plan should be precleared under § 5 if the
plan would satisfy § 2 of the Voting Rights Act of 1965,
478
42 U. S. C. § 1973. We have, however, "consistently understood"
§ 2 to "combat different evils and, accordingly, to impose very
different duties upon the States."
Reno v.
Bossier Parish
School Bd., 520
U. S. 471, 477 (1997)
(Bossier Parish 1). For example,
while § 5 is limited to particular covered jurisdictions, § 2
applies to all States. And the § 2 inquiry differs in significant
respects from a § 5 inquiry. In contrast to § 5's retrogression
standard, the "essence" of a § 2 vote dilution claim is that "a
certain electoral law, practice, or structure ... cause[s] an
inequality in the opportunities enjoyed by black and white voters
to elect their preferred representatives."
Thornburg v.
Gingles, 478 U.
S. 30, 47 (1986); see also id., at 48-50 (enunciating a
three-part test to establish vote dilution); id., at 85-100
(O'CONNOR, J., concurring in judgment); 42 U. S. C. § 1973(b).
Unlike an inquiry under § 2, a retrogression inquiry under § 5, "by
definition, requires a comparison of a jurisdiction's new voting
plan with its existing plan."
Bossier Parish I,
supra, at 478. While some parts of the § 2 analysis may
overlap with the § 5 inquiry, the two sections "differ in
structure, purpose, and application."
Holder v.
Hall,
512 U. S. 874,
883 (1994) (plurality opinion).
In
Bossier Parish I, we specifically held that a
violation of § 2 is not an independent reason to deny preclearance
under § 5. See 520 U. S., at 477. The reason for this holding was
straightforward: "[R]ecognizing § 2 violations as a basis for
denying § 5 preclearance would inevitably make compliance with § 5
contingent upon compliance with § 2. Doing so would, for all
intents and purposes, replace the standards for § 5 with those for
§ 2."
Ibid.
Georgia here makes the flip side of the argument that failed in
Bossier Parish I-compliance with § 2 suffices for
preclearance under § 5. Yet the argument fails here for the same
reasons the argument failed in
Bossier Parish 1. We refuse
to equate a § 2 vote dilution inquiry with the § 5 retrogression
standard. Georgia's argument, like the argument
479
in
Bossier Parish I, would "shift the focus of § 5 from
nonretrogression to vote dilution, and [would] change the § 5
benchmark from a jurisdiction's existing plan to a hypothetical,
undiluted plan."
Id., at 480. Instead of showing that the
Senate plan is nondilutive under § 2, Georgia must prove that its
plan is nonretrogressive under § 5.
B
Georgia argues that even if compliance with § 2 does not
automatically result in preclearance under § 5, its State Senate
plan should be precleared because it does not lead to "a
retrogression in the position of racial minorities with respect to
their effective exercise of the electoral franchise."
Beer
v.
United States, supra, at 141. See,
e. g., Brief
for Appellant 32, 36.
While we have never determined the meaning of "effective
exercise of the electoral franchise," this case requires us to do
so in some detail. First, the United States and the District Court
correctly acknowledge that in examining whether the new plan is
retrogressive, the inquiry must encompass the entire statewide plan
as a whole. See 195 F. Supp. 2d, at 73; Tr. of Oral Arg. 28-29.
Thus, while the diminution of a minority group's effective exercise
of the electoral franchise in one or two districts may be
sufficient to show a violation of § 5, it is only sufficient if the
covered jurisdiction cannot show that the gains in the plan as a
whole offset the loss in a particular district.
Second, any assessment of the retrogression of a minority
group's effective exercise of the electoral franchise depends on an
examination of all the relevant circumstances, such as the ability
of minority voters to elect their candidate of choice, the extent
of the minority group's opportunity to participate in the political
process, and the feasibility of creating a nonretrogressive plan.
See,
e. g., Johnson v.
De Grandy, 512 U. S. 997, 1011-1012,
1020-1021 (1994);
Richmond v.
United States, 422 U. S. 358, 371-372
(1975);
Thornburg
480
v.
Gingles, supra, at 97-100 (O'CONNOR, J., concurring in
judgment). "No single statistic provides courts with a shortcut to
determine whether" a voting change retrogresses from the benchmark.
Johnson v.
De Grandy, supra, at 1020-1021.
In assessing the totality of the circumstances, a court should
not focus solely on the comparative ability of a minority group to
elect a candidate of its choice. While this factor is an important
one in the § 5 retrogression inquiry, it cannot be dispositive or
exclusive. The standard in § 5 is simplewhether the new plan "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., at 141.
The ability of minority voters to elect a candidate of their
choice is important but often complex in practice to determine. In
order to maximize the electoral success of a minority group, a
State may choose to create a certain number of "safe" districts, in
which it is highly likely that minority voters will be able to
elect the candidate of their choice. See
Thornburg v.
Gingles, 478 U. S., at 48-49;
id., at 87-89
(O'CONNOR, J., concurring in judgment). Alternatively, a State may
choose to create a greater number of districts in which it is
likely-although perhaps not quite as likely as under the benchmark
plan-that minority voters will be able to elect candidates of their
choice. See id., at 88-89 (O'CONNOR, J., concurring in judgment);
cf. Pildes, Is Voting-Rights Law Now at War With Itself? Social
Science and Voting Rights in the 2000s, 80 N. C. L. Rev. 1517
(2002).
Section 5 does not dictate that a State must pick one of these
methods of redistricting over another. Either option "will present
the minority group with its own array of electoral risks and
benefits," and presents "hard choices about what would truly
'maximize' minority electoral success."
Thornburg v.
Gingles, supra, at 89 (O'CONNOR, J., concurring in
judgment). On one hand, a smaller number of safe
481
majority-minority districts may virtually guarantee the election
of a minority group's preferred candidate in those districts. Yet
even if this concentration of minority voters in a few districts
does not constitute the unlawful packing of minority voters, see
Voinovich v.
Quilter, 507 U. S. 146, 153154
(1993), such a plan risks isolating minority voters from the rest
of the State, and risks narrowing political influence to only a
fraction of political districts. Cf.
Shaw v.
Reno,
509 U. S., at 648-650. And while such districts may result in more
"descriptive representation" because the representatives of choice
are more likely to mirror the race of the majority of voters in
that district, the representation may be limited to fewer areas.
See H. Pitkin, The Concept of Representation 60-91 (1967).
On the other hand, spreading out minority voters over a greater
number of districts creates more districts in which minority voters
may have the opportunity to elect a candidate of their choice. Such
a strategy has the potential to increase "substantive
representation" in more districts, by creating coalitions of voters
who together will help to achieve the electoral aspirations of the
minority group. See id., at 114. It also, however, creates the risk
that the minority group's preferred candidate may lose. Yet as we
stated in
Johnson v.
De Grandy, supra, at 1020:
"[T]here are communities in which minority citizens are able to
form coalitions with voters from other racial and ethnic groups,
having no need to be a majority within a single district in order
to elect candidates of their choice. Those candidates may not
represent perfection to every minority voter, but minority voters
are not immune from the obligation to pull, haul, and trade to find
common political ground, the virtue of which is not to be slighted
in applying a statute meant to hasten the waning of racism in
American politics."
482
Section 5 gives States the flexibility to choose one theory of
effective representation over the other.
In addition to the comparative ability of a minority group to
elect a candidate of its choice, the other highly relevant factor
in a retrogression inquiry is the extent to which a new plan
changes the minority group's opportunity to participate in the
political process. "'[T]he power to influence the political process
is not limited to winning elections.'"
Thornburg v.
Gingles, supra, at 99 (O'CONNOR, J., concurring in judgment)
(quoting
Davis v.
Bandemer, 478 U. S. 109, 132
(1986)); see also
White v.
Regester, 412 U. S. 755, 766-767
(1973); Whitcomb v.
Chavis, 403 U. S. 124, 149-160
(1971);
Johnson v.
De Grandy, 512 U. S., at
1011-1012.
Thus, a court must examine whether a new plan adds or subtracts
"influence districts"-where minority voters may not be able to
elect a candidate of choice but can play a substantial, if not
decisive, role in the electoral process. Cf.
Shaw v.
Hunt, 517 U.
S. 899, 947, n. 21 (1996) (STEVENS, J., dissenting);
Hays v.
Louisiana, 936 F. Supp. 360, 364, n. 17 (WD
La. 1996);
Johnson v.
De Grandy, supra, at
1011
1012; Thornburg v.
Gingles, 478 U. S., at 98-100
(O'CONNOR, J., concurring in judgment). In assessing the
comparative weight of these influence districts, it is important to
consider "the likelihood that candidates elected without decisive
minority support would be willing to take the minority's interests
into account."
Id., at 100 (O'CONNOR, J., concurring in
judgment). In fact, various studies have suggested that the most
effective way to maximize minority voting strength may be to create
more influence or coalitional districts. See,
e. g., Lublin,
Racial Redistricting and African-American Representation: A
Critique of "Do Majority-Minority Districts Maximize Substantive
Black Representation in Congress?" 93 Am. Pol. Sci. Rev. 183, 185
(1999) (noting that racial redistricting in the early 1990's, which
created more majorityminority districts, made Congress "less likely
to adopt initiatives supported by blacks"); Cameron, Epstein,
&
483
O'Halloran, Do Majority-Minority Districts Maximize Substantive
Black Representation in Congress? 90 Am. Pol. Sci. Rev. 794, 808
(1996) (concluding that the "[d]istricting schemes that maximize
the number of minority representatives do not necessarily maximize
substantive minority representation"); C. Swain, Black Faces, Black
Interests 193234 (1995); Pildes, 80 N. C. L. Rev., at 1517;
Grofman, Handley, & Lublin, Drawing Effective Minority
Districts: A Conceptual Framework and Some Empirical Evidence, 79
N. C. L. Rev. 1383 (2001).
Section 5 leaves room for States to use these types of influence
and coalitional districts. Indeed, the State's choice ultimately
may rest on a political choice of whether substantive or
descriptive representation is preferable. See Pitkin,
supra,
at 142; Swain,
supra, at 5. The State may choose, consistent
with § 5, that it is better to risk having fewer minority
representatives in order to achieve greater overall representation
of a minority group by increasing the number of representatives
sympathetic to the interests of minority voters. See
Thornburg v.
Gingles, supra, at 87-89, 99 (O'CONNOR,
J., concurring in judgment); cf.
Johnson v.
De
Grandy, 512 U. S., at 1020.
In addition to influence districts, one other method of
assessing the minority group's opportunity to participate in the
political process is to examine the comparative position of
legislative leadership, influence, and power for representatives of
the benchmark majority-minority districts. A legislator, no less
than a voter, is "not immune from the obligation to pull, haul, and
trade to find common political ground."
Ibid. Indeed, in a
representative democracy, the very purpose of voting is to delegate
to chosen representatives the power to make and pass laws. The
ability to exert more control over that process is at the core of
exercising political power. A lawmaker with more legislative
influence has more potential to set the agenda, to participate in
closeddoor meetings, to negotiate from a stronger position, and
to
484
shake hands on a deal. Maintaining or increasing legislative
positions of power for minority voters' representatives of choice,
while not dispositive by itself, can show the lack of retrogressive
effect under § 5.
And it is also significant, though not dispositive, whether the
representatives elected from the very districts created and
protected by the Voting Rights Act support the new districting
plan. The District Court held that the support of legislators from
benchmark majority-minority districts may show retrogressive
purpose, but it is not relevant in assessing retrogressive effect.
See 195 F. Supp. 2d, at 89; see also
post, at 503 (SOUTER,
J., dissenting). But we think this evidence is also relevant for
retrogressive effect. As the dissent recognizes, the retrogression
inquiry asks how "voters will probably act in the circumstances in
which they live."
Post, at 509. The representatives of
districts created to ensure continued minority participation in the
political process have some knowledge about how "voters will
probably act" and whether the proposed change will decrease
minority voters' effective exercise of the electoral franchise.
The dissent maintains that standards for determining
nonretrogression under § 5 that we announce today create a
situation where "[i]t is very hard to see anything left of" § 5.
Post, at 495. But the dissent ignores that the ability of a
minority group to elect a candidate of choice remains an integral
feature in any § 5 analysis. Cf.
Thornburg v.
Gingles,
supra, at 98 (O'CONNOR, J., concurring in judgment). And the
dissent agrees that the addition or subtraction of coalitional
districts is relevant to the § 5 inquiry. See
post, at 492,
504. Yet assessing whether a plan with coalitional districts is
retrogressive is just as fact-intensive as whether a plan with both
influence and coalitional districts is retrogressive. As JUSTICE
SOUTER recognized for the Court in the § 2 context, a court or the
Department of Justice should assess the totality of circumstances
in determining retrogression under § 5. See
Johnson v.
De
Grandy, supra, at
485
1020-1021. And it is of course true that evidence of racial
polarization is one of many factors relevant in assessing whether a
minority group is able to elect a candidate of choice or to exert a
significant influence in a particular district. See
Thornburg v.
Gingles, 478 U. S., at 37;
id.,
at 100104 (O'CONNOR, J., concurring in judgment); see also
White v.
Regester, 412 U. S. 755 (1973);
Zimmer v.
McKeithen, 485
The dissent nevertheless asserts that it "cannot be right" that
the § 5 inquiry goes beyond assessing whether a minority group can
elect a candidate of its choice.
Post, at 494. But except
for the general statement of retrogression in
Beer, the
dissent cites no law to support its contention that retrogression
should focus solely on the ability of a minority group to elect a
candidate of choice. As JUSTICE SOUTER himself, writing for the
Court in
Johnson v.
De Grandy, supra, at 1011-1012,
has recognized, the "extent of the opportunities minority voters
enjoy to participate in the political processes" is an important
factor to consider in assessing a § 2 vote-dilution inquiry. See
also
Thornburg v.
Gingles, supra, at 98-100
(O'CONNOR, J., concurring in judgment). In determining how the new
districting plan differs from the benchmark plan, the same standard
should apply to § 5.
C
The District Court failed to consider all the relevant factors
when it examined whether Georgia's Senate plan resulted in a
retrogression of black voters' effective exercise of the electoral
franchise. First, while the District Court acknowledged the
importance of assessing the statewide plan as a whole, the court
focused too narrowly on proposed Senate Districts 2, 12, and 26. It
did not examine the increases in the black voting age population
that occurred in many of the other districts. Second, the District
Court did not explore in any meaningful depth any other factor
beyond the comparative ability of black voters in the majority-
486
minority districts to elect a candidate of their choice. In
doing so, it paid inadequate attention to the support of
legislators representing the benchmark majority-minority districts
and the maintenance of the legislative influence of those
representatives.
The District Court correctly recognized that the increase in
districts with a substantial minority of black voters is an
important factor in the retrogression inquiry. See 195 F. Supp. 2d,
at 75-78. Nevertheless, it did not adequately apply this
consideration to the facts of this case. The District Court ignored
the evidence of numerous other districts showing an increase in
black voting age population, as well as the other evidence that
Georgia decided that a way to increase black voting strength was to
adopt a plan that "unpacked" the high concentration of minority
voters in the majority-minority districts. Its statement that
Georgia did not "presen[t] evidence regarding potential gains in
minority voting strength in Senate Districts other than Districts
2, 12 and 26" is therefore clearly erroneous.
Id., at 94.
Like the dissent, we accept the District Court's findings that the
reductions in black voting age population in proposed Districts 2,
12, and 26 to just over 50% make it marginally less likely that
minority voters can elect a candidate of their choice in those
districts, although we note that Georgia introduced evidence
showing that approximately one-third of white voters would support
a black candidate in those districts, see id., at 66, and that the
United States' own expert admitted that the results of statewide
elections in Georgia show that "there would be a 'very good chance'
that ... African American candidates would win election in the
reconstituted districts."
Id., at 71; see also
id.,
at 84-85. Nevertheless, regardless of any racially polarized voting
or diminished opportunity for black voters to elect a candidate of
their choice in proposed Districts 2, 12, and 26, the District
Court's inquiry was too narrow.
487
In the face of Georgia's evidence that the Senate plan as a
whole is not retrogressive, the United States introduced nothing
apart from the evidence that it would be more difficult for
minority voters to elect their candidate of choice in Districts 2,
12, and 26. As the District Court stated, the United States did not
introduce any evidence to rebut Georgia's evidence that the
increase in black voting age population in the other districts
offsets any decrease in black voting age population in the three
contested districts: "[T]he United States' evidence was extremely
limited in scope-focusing only on three contested districts in the
State Senate plan."
Id., at 37. Indeed, the District Court
noted that the United States' evidence "was not designed to permit
the court to assess the overall impact" of the Senate plan.
Ibid.
Given the evidence submitted in this case, we find that Georgia
likely met its burden of showing nonretrogression. The increase in
black voting age population in the other districts likely offsets
any marginal decrease in the black voting age population in the
three districts that the District Court found retrogressive. U sing
the overlay of the 2000 census numbers, Georgia's strategy of
"unpacking" minority voters in some districts to create more
influence and coalitional districts is apparent. Under the 2000
census numbers, the number of majority black voting age population
districts in the new plan increases by one, the number of districts
with a black voting age population of between 30% and 50% increases
by two, and the number of districts with a black voting age
population of between 25% and 30% increases by another 2. See PI.
Exhs. lD, 2C; see also
supra, at 470-471.
U sing the census numbers in effect at the time the benchmark
plan was enacted to assess the benchmark plan, the difference is
even more striking. Under those figures, the new plan increases
from 10 to 13 the number of districts with a majority-black voting
age population and increases from 8 to 13 the number of districts
with a black voting age population of between 30% and 50%. See PI.
Exhs.
lC, 2C. Thus,
488
the new plan creates 8 new districts-out of 56-where black
voters as a group can playa substantial or decisive role in the
electoral process. Indeed, under the census figures in use at the
time Georgia enacted its benchmark plan, the black voting age
population in Districts 2, 12, and 26 does not decrease to the
extent indicated by the District Court. District 2 drops from
59.27% black voting age population to 50.31 %. District 26 drops
from 53.45% black voting age population to 50.80%. And District 12
actually
increases, from 46.50% black voting age population
to 50.66%. See PI. Exhs.
lC, 2C.2 And regardless of any
potential retrogression in some districts, § 5 permits Georgia to
offset the decline in those districts with an increase in the black
voting age population in other districts. The testimony from those
who designed the Senate plan confirms what the statistics
suggest-that Georgia's goal was to "unpack" the minority voters
from a few districts to increase blacks' effective exer-
2 The dissent summarily rejects any inquiry into the benchmark
plan using the census numbers in effect at the time the
redistricting plan was passed. See
post, at 506. Yet we
think it is relevant to examine how the new plan differs from the
benchmark plan as originally enacted by the legislature. The § 5
inquiry, after all, revolves around the change from the previous
plan. The 1990 census numbers are far from "irrelevant."
Ibid. Rather, examining the benchmark plan with the census
numbers in effect at the time the State enacted its plan comports
with the one-person, one-vote principle of
Reynolds v.
Sims, 377 U.
S. 533 (1964), and its progeny. When the decennial census
numbers are released, States must redistrict to account for any
changes or shifts in population. But before the new census, States
operate under the legal fiction that even 10 years later, the plans
are constitutionally apportioned. After the new enumeration, no
districting plan is likely to be legally enforceable if challenged,
given the shifts and changes in a population over 10 years. And if
the State has not redistricted in response to the new census
figures, a federal court will ensure that the districts comply with
the one-person, one-vote mandate before the next election. See,
e. g., Branch v.
Smith, 538 U. S. 254 (2003);
Lawyer v.
Department of Justice, 521 U. S. 567 (1997);
Growe v.
Emison, 507 U. S. 25 (1993).
489
cise of the electoral franchise in more districts. See
supra, at 469-471.
Other evidence supports the implausibility of finding
retrogression here. An examination of black voters' opportunities
to participate in the political process shows, if anything, an
increase in the effective exercise of the electoral franchise. It
certainly does not indicate retrogression. The 34 districts in the
proposed plan with a black voting age population of above 20%
consist almost entirely of districts that have an overall
percentage of Democratic votes of above 50%. See PI. Exh. 2D. The
one exception is proposed District 4, with a black voting age
population of 30.51% and an overall Democratic percentage of
48.86%. See
ibid. These statistics make it more likely as a
matter of fact that black voters will constitute an effective
voting bloc, even if they cannot always elect the candidate of
their choice. See
Thornburg v.
Gingles, 478 U. S., at
100 (O'CONNOR, J., concurring in judgment). These statistics also
buttress the testimony of the designers of the plan such as Senator
Brown, who stated that the goal of the plan was to maintain or
increase black voting strength and relatedly to increase the
prospects of Democratic victory. See
supra, at 469-470.
The testimony of Congressman John Lewis is not so easily
dismissed. Congressman Lewis is not a member of the State Senate
and thus has less at stake personally in the outcome of this
litigation. Congressman Lewis testified that "giving real power to
black voters comes from the kind of redistricting efforts the State
of Georgia has made," and that the Senate plan "will give real
meaning to voting for African Americans" because "you have a
greater chance of putting in office people that are going to be
responsive." PI. Exh. 21, at 21-23. Section 5 gives States the
flexibility to implement the type of plan that Georgia has
submitted for preclearance-a plan that increases the number of
districts with a majority-black voting age population, even if it
means that in some of those districts, minority voters will face
a
490
somewhat reduced opportunity to elect a candidate of their
choice. Cf.
Thornburg v.
Gingles, supra, at 89
(O'CONNOR, J., concurring in judgment).
The dissent's analysis presumes that we are deciding that
Georgia's Senate plan is not retrogressive. See
post, at
501508. To the contrary, we hold only that the District Court did
not engage in the correct retrogression analysis because it focused
too heavily on the ability of the minority group to elect a
candidate of its choice in the majority-minority districts. While
the District Court engaged in a thorough analysis of the issue, we
must remand the case for the District Court to examine the facts
using the standard that we announce today. We leave it for the
District Court to determine whether Georgia has indeed met its
burden of proof. The dissent justifies its conclusion here on the
ground that the District Court did not clearly err in its factual
determination. But the dissent does not appear to dispute that if
the District Court's legal standard was incorrect, the decision
below should be vacated.
The purpose of the Voting Rights Act is to prevent
discrimination in the exercise of the electoral franchise and to
foster our transformation to a society that is no longer fixated on
race. Cf.
Johnson v.
De Grandy, 512 U. S., at 1020;
Shaw v.
Reno, 509 U. S., at 657. As Congressman Lewis
stated: "I think that's what the [civil rights] struggle was all
about, to create what I like to call a truly interracial democracy
in the South. In the movement, we would call it creating the
beloved community, an all-inclusive community, where we would be
able to forget about race and color and see people as people, as
human beings, just as citizens." PI. Exh. 21, at 14. While courts
and the Department of Justice should be vigilant in ensuring that
States neither reduce the effective exercise of the electoral
franchise nor discriminate against minority voters, the Voting
Rights Act, as properly interpreted, should encourage the
transition to a society where race no longer matters: a society
where integration
491
and color-blindness are not just qualities to be proud of, but
are simple facts of life. See
Shaw v.
Reno, supra, at
657.
IV
The District Court is in a better position to reweigh all the
facts in the record in the first instance in light of our
explication of retrogression. The judgment of the District Court
for the District of Columbia, accordingly, is vacated, and the case
is remanded for further proceedings consistent with this
opinion.
It is so ordered.
JUSTICE KENNEDY, concurring.
As is evident from the Court's accurate description of the facts
in this case, race was a predominant factor in drawing the lines of
Georgia's State Senate redistricting map. If the Court's statement
of facts had been written as the preface to consideration of a
challenge brought under the Equal Protection Clause or under § 2 of
the Voting Rights Act of 1965, a reader of the opinion would have
had sound reason to conclude that the challenge would succeed. Race
cannot be the predominant factor in redistricting under our
decision in
Miller v.
Johnson, 515 U. S. 900 (1995). Yet
considerations of race that would doom a redistricting plan under
the Fourteenth Amendment or § 2 seem to be what save it under §
5.
I agree that our decisions controlling the § 5 analysis require
the Court's ruling here. See,
e. g., Reno v.
Bossier
Parish School Bd., 520 U. S. 471 (1997);
Reno v.
Bossier Parish School Bd., 528 U. S. 320 (2000). The
discord and inconsistency between §§ 2 and 5 should be noted,
however; and in a case where that issue is raised, it should be
confronted. There is a fundamental flaw, I should think, in any
scheme in which the Department of Justice is permitted or directed
to encourage or ratify a course of unconstitutional conduct in
order to find compliance with a statutory directive. This serious
issue has not been raised here, and, as already ob-
492
served, the Court is accurate both in its summary of the facts
and in its application of the controlling precedents. With these
observations, I join the opinion of the Court.
JUSTICE THOMAS, concurring.
I continue to adhere to the views expressed in my opinion in
Holder v.
Hall, 512 U. S. 874, 891 (1994)
(opinion concurring in judgment). I join the Court's opinion
because it is fully consistent with our § 5 precedents.
JUSTICE SOUTER, with whom JUSTICE STEVENS, JUSTICE GINSBURG, and
JUSTICE BREYER join, dissenting.
I
I agree with the Court that reducing the number of
majority-minority districts within a State would not necessarily
amount to retrogression barring preclearance under § 5 of the
Voting Rights Act of 1965. See
ante, at 480-482. The
prudential objective of § 5 is hardly betrayed if a State can show
that a new districting plan shifts from supermajority districts, in
which minorities can elect their candidates of choice by their own
voting power, to coalition districts, in which minorities are in
fact shown to have a similar opportunity when joined by predictably
supportive nonminority voters. Cf.
Johnson v.
De
Grandy, 512 U. S.
997, 1020 (1994) (explaining in the context of § 2 that
although "society's racial and ethnic cleavages sometimes
necessitate majorityminority districts to ensure equal political
and electoral opportunity, that should not obscure the fact that
there are communities in which minority citizens are able to form
coalitions with voters from other racial and ethnic groups, having
no need to be a majority within a single district in order to elect
candidates of their choice").
Before a State shifts from majority-minority to coalition
districts, however, the State bears the burden of proving that
nonminority voters will reliably vote along with the minority. See,
e. g.,
Reno v.
Bossier Parish School Bd.,
520
493
u. S. 471, 478 (1997). It must show not merely that minority
voters in new districts may have some influence, but that minority
voters will have effective influence translatable into probable
election results comparable to what they enjoyed under the existing
district scheme. And to demonstrate this, a State must do more than
produce reports of minority voting age percentages; it must show
that the probable voting behavior of nonminority voters will make
coalitions with minorities a real prospect. See,
e. g.,
Pildes, Is VotingRights Law Now at War With Itself? Social Science
and Voting Rights in the 2000s, 80 N. C. L. Rev. 1517, 1539 (2002).
If the State's evidence fails to convince a factfinder that high
racial polarization in voting is unlikely, or that high white
crossover voting is likely, or that other political and demographic
facts point to probable minority effectiveness, a reduction in
supermajority districts must be treated as potentially and fatally
retrogressive, the burden of persuasion always being on the
State.
The District Court majority perfectly well understood all this
and committed no error. Error enters this case here in this Court,
whose majority unmoors § 5 from any practical and administrable
conception of minority influence that would rule out retrogression
in a transition from majorityminority districts, and mistakes the
significance of the evidence supporting the District Court's
decision.
II
The Court goes beyond recognizing the possibility of coalition
districts as nonretrogressive alternatives to those with majorities
of minority voters when it redefines effective voting power in § 5
analysis without the anchoring reference to electing a candidate of
choice. It does this by alternatively suggesting that a potentially
retrogressive redistricting plan could satisfy § 5 if a sufficient
number of so-called "influence districts," in addition to
"coalitio[n] districts," were created,
ante, at 483, 484, or
if the new plan provided minority groups
494
with an opportunity to elect a particularly powerful candidate,
ante, at 483-484. On either alternative, the § 5 requirement
that voting changes be nonretrogressive is substantially diminished
and left practically unadministrable.
A
The Court holds that a State can carry its burden to show a
nonretrogressive degree of minority "influence" by demonstrating
that" 'candidates elected without decisive minority support would
be willing to take the minority's interests into account.'"
Ante, at 482 (quoting
Thornburg v.
Gingles,
478 U. S. 30, 100 (1986) (O'CONNOR, J., concurring in
judgment)). But this cannot be right.
The history of § 5 demonstrates that it addresses changes in
state law intended to perpetuate the exclusion of minority voters
from the exercise of political power. When this Court held that a
State must show that any change in voting procedure is free of
retrogression it meant that changes must not leave minority voters
with less chance to be effective in electing preferred candidates
than they were before the change. "[T]he 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); see,
e. g., id., at 140-141 ("Section 5 was intended
'to insure that [the gains thus far achieved in minority political
participation] shall not be destroyed through new [discriminatory]
procedures and techniques'" (quoting S. Rep. No. 94-295, p. 19
(1975))). In addressing the burden to show no retrogression,
therefore, "influence" must mean an opportunity to exercise power
effectively.
The Court, however, says that influence may be adequate to avoid
retrogression from majority-minority districts when it consists not
of decisive minority voting power but of sentiment on the part of
politicians: influence may be sufficient
495
when it reflects a willingness on the part of politicians to
consider the interests of minority voters, even when they do not
need the minority votes to be elected. The Court holds, in other
words, that there would be no retrogression when the power of a
voting majority of minority voters is eliminated, so long as
elected politicians can be expected to give some consideration to
minority interests.
The power to elect a candidate of choice has been forgotten;
voting power has been forgotten. It is very hard to see anything
left of the standard of nonretrogression, and it is no surprise
that the Court's cited precedential support for this reconception,
see
ante, at 482, consists of a footnote from a dissenting
opinion in
Shaw v.
Hunt, 517 U. S. 899 (1996), and
footnote dictum in a case from the Western District of
Louisiana.
Indeed, to see the trouble ahead, one need only ask how on the
Court's new understanding, state legislators or federal
preclearance reviewers under § 5 are supposed to identify or
measure the degree of influence necessary to avoid the
retrogression the Court nominally retains as the § 5 touchstone. Is
the test purely
ad hominem, looking merely to the apparent
sentiments of incumbents who might run in the new districts? Would
it be enough for a State to show that an incumbent had previously
promised to consider minority interests before voting on
legislative measures? Whatever one looks to, however, how does one
put a value on influence that falls short of decisive influence
through coalition? Nondecisive influence is worth less than
majority-minority control, but how much less? Would two influence
districts offset the loss of one majority-minority district? Would
it take three? Or four? The Court gives no guidance for measuring
influence that falls short of the voting strength of a coalition
member, let alone a majority of minority voters. Nor do I see how
the Court could possibly give any such guidance. The Court's
"influence" is simply not functional in the political and judicial
worlds.
496
B
Identical problems of comparability and administrability count
at least as much against the Court's further gloss on
nonretrogression, in its novel holding that a State may trade off
minority voters' ability to elect a candidate of their choice
against their ability to exert some undefined degree of influence
over a candidate likely to occupy a position of official
legislative power. See
ante, at 483-484. The Court implies
that one majority-minority district in which minority voters could
elect a legislative leader could replace a larger number of
majority-minority districts with ordinary candidates, without
retrogression of overall minority voting strength. Under this
approach to § 5, a State may value minority votes in a district in
which a potential committee chairman might be elected differently
from minority votes in a district with ordinary candidates.
It is impossible to believe that Congress could ever have
imagined § 5 preclearance actually turning on any such
distinctions. In any event, if the Court is going to allow a State
to weigh minority votes by the ambitiousness of candidates the
votes might be cast for, it is hard to see any stopping point. I
suppose the Court would not go so far as to give extra points to an
incumbent with the charisma to attract a legislative following, but
would it value all committee chairmen equally? (The committee
chairmen certainly would not.) And what about a legislator with a
network of influence that has made him a proven dealmaker? Thus,
again, the problem of measurement: is a shift from 10
majority-minority districts to 8 offset by a good chance that 1 of
the 8 may elect a new Speaker of the House?
I do not fault the Court for having no answers to these
questions, for there are no answers of any use under § 5. The fault
is more fundamental, and the very fact that the Court's
interpretation of nonretrogression under § 5 invites unanswerable
questions points to the error of a § 5 preclearance regime that
defies reviewable administration. We are
497
left with little hope of determining practically whether a
districting shift to one party's overall political advantage can be
expected to offset a loss of majority-minority voting power in
particular districts; there will simply be greater opportunity to
reduce minority voting strength in the guise of obtaining party
advantage.
One is left to ask who will suffer most from the Court's new and
unquantifiable standard. If it should turn out that an actual,
serious burden of persuasion remains on the States, States that
rely on the new theory of influence should be guaranteed losers:
nonretrogression cannot be demonstrated by districts with minority
influence too amorphous for objective comparison. But that outcome
is unlikely, and if in subsequent cases the Court allows the
State's burden to be satisfied on the pretense that un quantifiable
influence can be equated with majority-minority power, § 5 will
simply drop out as a safeguard against the "unremitting and
ingenious defiance of the Constitution" that required the procedure
of preclearance in the first place.
South Carolina v.
Katzenbach, 383 U. S. 301, 309
(1966).
III
The District Court never reached the question the Court
addresses, of what kind of influence districts (coalition or not)
might demonstrate that a decrease in majority-minority districts
was not retrogressive. It did not reach this question because it
found that the State had not satisfied its burden of persuasion on
an issue that should be crucial on any administrable theory: 1 the
State had not shown the possibility
1 The District Court correctly recognized that the State bears
the burden of proof in establishing that its proposed redistricting
plan satisfied the standards of § 5. See,
e. g., 195 F.
Supp. 2d 25, 86 (DC 2002) ("We look to the State to explain why
retrogression is not present"); see also
Reno v.
Bossier
Parish School Bd., 520 U. S. 471,478 (1997)
(covered jurisdiction "bears the burden of proving that the change
does not have the purpose and will not have the effect of denying
or abridging the right to vote on
498
of actual coalitions in the affected districts that would allow
any retreat from majority-minority districts without a
retrogressive effect. This central evidentiary finding is
invulnerable under the correct standard of review.
This Court's review of the District Court's factual findings is
for clear error. See,
e. g.,
Miller v.
Johnson, 515
U. S. 900, 917 (1995);
Pleasant Grove v.
United
States, 479 U. S.
462, 469 (1987);
McCain v.
Lybrand, 465 U. S. 236, 258
(1984);
City of Lockhart v.
United States, 460 U. S. 125, 136
(1983). We have no business disturbing the District Court's ruling
"simply because we would have decided the case differently," but
only if based "on the entire evidence, [we are] left with the
definite and firm conviction that a mistake has been committed."
Easley v.
Cromartie, 532 U. S. 234, 242 (2001)
(internal quotation marks omitted). It is not, then, up to us to
"decide whether Georgia's State Senate redistricting plan is
retrogressive as compared to its previous, benchmark districting
plan."
Ante, at 466. Our sole responsibility is to see
whether the District Court committed clear error in refusing to
preclear the plan. I t did not.
A
The District Court began with the acknowledgment (to which we
would all assent) that the simple fact of a decrease in black
voting age population (BV AP) in some districts is not alone
dispositive about whether a proposed plan is retrogressive:
account of race or color" (internal quotation marks omitted));
id., at 480 (Section 5 "imposes upon a covered jurisdiction the
difficult burden of proving the
absence of discriminatory
purpose and effect");
Reno v.
Bossier Parish School
Bd., 528 U. S.
320, 332 (2000) ("In the specific context of § 5 ... the
covered jurisdiction has the burden of persuasion"); cf.
Beer v.
United States, 425 U. S. 130, 140 (1976)
(Congress in passing § 5 sought to "freez[e] election procedures in
the covered areas unless the changes can be shown to be
nondiscriminatory" (internal quotation marks omitted)).
499
"'Unpacking' African American districts may have positive or
negative consequences for the statewide electoral strength of
African American voters. To the extent that voting patterns suggest
that minority voters are in a better position to join forces with
other segments of the population to elect minority preferred
candidates, a decrease in a district's BVAP may have little or no
effect on minority voting strength." 195 F. Supp. 2d 25, 76 (DC
2002).
See id., at 78 ("[T]he Voting Rights Act allows states to adopt
plans that move minorities out of districts in which they formerly
constituted a majority of the voting population, provided that
racial divisions have healed to the point that numerical reductions
will not necessarily translate into reductions in electoral
power"); id., at 84 ("[T]he mere fact that BV AP decreases in
certain districts is not enough to deny preclearance to a plan
under Section 5").2
The District Court recognized that the key to understanding the
impact of drops in a district's BV AP on the minority group's
"effective exercise of the electoral franchise,"
Beer, 425
U. S., at 141, is the level of racial polarization. If racial
elements consistently vote in separate blocs, decreasing the
proportion of black voters will generally reduce the chance that
the minority group's favored candidate will be elected; whereas in
districts with low racial bloc voting or significant white
crossover voting, a decrease in the black proportion may have no
effect at all on the minority's opportunity to elect their
candidate of choice. See,
e. g., 195 F. Supp. 2d, at 84
("[R]acial polarization is critically important because its
presence or absence in the Senate Districts challenged by the
United States goes a long way to determining whether
2 Indeed, the other plans approved by the District Court,
Georgia's State House plan, 195 F. Supp. 2d, at 95, congressional
plan, ibid., and the interim plan approved for the State Senate,
204 F. Supp. 2d 4, 7 (DC 2002), all included decreases in BVAP in
particular districts.
500
or not the decreases in BV AP and African American voter
registration in those districts are likely to produce retrogressive
effects").
This indisputable recognition, that context determines the
effect of decreasing minority numbers for purposes of the § 5
enquiry, points to the nub of this case, and the District Court's
decision boils down to a judgment about what the evidence showed
about that context. The District Court found that the United States
had offered evidence of racial polarization in the contested
districts,3 id., at 86, and it found that Georgia had failed to
present anything relevant on that issue. Georgia, the District
Court said, had "provided the court with no competent,
comprehensive information regarding white crossover voting or
levels of polarization in individual districts across the State."
Id., at 88. In particular, the District Court found it
"impossible to extrapolate" anything about the level of racial
polarization from the statistical submissions of Georgia's lone
expert witness.
Id., at 85. And the panel majority took note
that Georgia's expert "admitted on cross-examination" that his
evidence simply did not address racial polarization: "the whole
point of my analysis," the expert stated, "is not to look at
polarization per se. The question is not whether or not blacks and
whites in general vote for different candidates."
Ibid.
(internal quotation marks omitted).
Accordingly, the District Court explained that Georgia's
expert:
3 The majority cites the District Court's comment that "'the
United States' evidence was extremely limited in scope-focusing
only on three contested districts in the State Senate plan.'''
Ante, at 474 (quoting 195 F. Supp. 2d, at 37). The District
Court correctly did not require the United States to prove that the
plan was retrogressive. As the District Court explained:
"[u]ltimately, the burden of proof in this matter lies with the
State. We look to the State to explain why retrogression is not
present, and to prove the absence of racially polarized voting that
might diminish African American voting strength in light of several
districts' decreased BVAPs."
Id., at 86.
501
"made no attempt to address the central issue before the court:
whether the State's proposal is retrogressive. He failed even to
identify the decreases in BV AP that would occur under the proposed
plan, and certainly did not identify corresponding reductions in
the electability of African American candidates of choice. The
paucity of information in [the expert's] report thus leaves us
unable to use his analysis to assess the expected change in African
American voting strength statewide that will be brought by the
proposed Senate plan." Id., at 81.
B
How is it, then, that the majority of this Court speaks of
"Georgia's evidence that the Senate plan as a whole is not
retrogressive," against which "the United States did not introduce
any evidence [in] rebut[tal],"
ante, at 4877 The answer is
that the Court is not engaging in review for clear error. Instead,
it is reweighing evidence
de novo, discovering what it
thinks the District Court overlooked, and drawing evidentiary
conclusions the District Court supposedly did not see. The Court is
mistaken on all points.
1
Implicitly recognizing that evidence of voting behavior by
majority voters is crucial to any showing of nonretrogression when
minority numbers drop under a proposed plan, the Court tries to
find evidence to fill the record's gap. It says, for example, that
"Georgia introduced evidence showing that approximately one-third
of white voters would support a black candidate in [the contested]
districts."
Ante, at 486. In support of this claim, however,
the majority focuses on testimony offered by Georgia's expert
relating to crossover voting in the pre-existing rather than
proposed districts. 195 F. Supp. 2d, at 66. The District Court
specifically noted that the expert did not calculate crossover
voting under the proposed plan.
Id., at 65, n. 31 ("The
court also emphasizes
502
that Epstein did not attempt to rely on the table's calculations
to demonstrate voting patterns in the districts, and calculated
crossover in the existing, and not the proposed, Senate
districts"). Indeed, in relying on this evidence the majority
attributes a significance to it that Georgia's own expert
disclaimed, as the District Court pointed out. See id., at 85
("[I]t is impossible to extrapolate these voting patterns from
Epstein's database. As Epstein admitted on cross-examination: the
whole point of my analysis is not to look at polarization per se.
The question is not whether or not blacks and whites in general
vote for different candidates" (internal quotation marks
omitted)).
2
In another effort to revise the record, the Court faults the
District Court, alleging that it "focused too narrowly on proposed
Senate Districts 2, 12, and 26."
Ante, at 485. In fact,
however, it is Georgia that asked the District Court to consider
only the contested districts, and the District Court explicitly
refused to limit its review in any such fashion: "we reject the
State's argument that this court's review is limited only to those
districts challenged by the United States, and should not encompass
the redistricting plans in their entirety .... [T]he court's review
necessarily extends to the entire proposed plan." 195 F. Supp. 2d,
at 73. The District Court explained that it "is vested with the
final authority to approve or disapprove the proposed change as a
whole."
Ibid. "The question before us is whether the
proposed Senate plan as a whole, has the 'purpose or effect of
denying or abridging the right to vote on account of race or
color.'"
Id., at 103 (Oberdorfer, J., concurring in part and
dissenting in part) (quoting 42 U. S. C. § 1973c). Though the
majority asserts that "[t]he District Court ignored the evidence of
numerous other districts showing an increase in black voting age
population,"
ante, at 486, the District Court, in fact,
specifically considered the parties' dispute over the statewide
503
impact of the change in black voting age population. See,
e. g., 195 F. Supp. 2d, at 93 ("The number of Senate
Districts with majorities of BVAP would, according to Georgia's
calculations, increase from twelve to thirteen; according to the
Attorney General's interpretation of the census data, the number
would decrease from twelve to eleven").
3
In a further try to improve the record, the Court focuses on the
testimony of certain lay witnesses, politicians presented by the
State to support its claim that the Senate plan is not
retrogressive. Georgia, indeed, relied heavily on the near
unanimity of minority legislators' support for the plan. But the
District Court did not overlook this evidence; it simply found it
inadequate to carry the State's burden of showing nonretrogression.
The District Court majority explained that the "legislators'
support is, in the end, far more probative of a lack of
retrogressive
purpose than of an absence of retrogressive
effect." Id., at 89 (emphasis in original). As against the
politicians' testimony, the District Court had contrary "credible,"
id., at 88, evidence of retrogressive effect. This evidence was the
testimony of the expert witness presented by the United States,
which "suggests the existence of highly racially polarized voting
in the proposed districts," ibid., evidence of retrogressive effect
to which Georgia offered "no competent" response, ibid. The
District Court was clearly within bounds in finding that (1)
Georgia's proposed plan decreased BV AP in the relevant districts,
(2) the United States offered evidence of significant racial
polarization in those districts, and (3) Georgia offered no
adequate response to this evidence.
The reasonableness of the District Court's treatment of the
evidence is underscored in its concluding reflection that it was
possible Georgia could have shown the plan to be nonretrogressive,
but the evidence the State had actually offered simply failed to do
that. "There are, without doubt,
504
numerous other ways, given the limited evidence of racially
polarized voting in State Senate and local elections, that Georgia
could have met its burden of proof in this case. Yet, the court is
limited to reviewing the evidence presented by the parties, and is
compelled to hold that the State has not met its burden."
Id., at 94. "[T]he lack of positive racial polarization data
was the gap at the center of the State's case [and] the evidence
presented by [the] estimable [legislators] does not come close to
filling that void."
Id., at 100.
As must be plain, in overturning the District Court's thoughtful
consideration of the evidence before it, the majority of this Court
is simply rejecting the District Court's evidentiary finding in
favor of its own. It is reweighing testimony and making judgments
about the competence, interest, and character of witnesses. The
Court is not conducting clear error review.
4
Next, the Court attempts to fill the holes in the State's
evidence on retrogression by drawing inferences favorable to the
State from undisputed statistics. See
ante, at 487-489. This
exercise comes no closer to demonstrating clear error than the
others considered so far.
In the first place, the District Court has already explained the
futility of the Court's effort. Knowing whether the number of
majority BVAP districts increases, decreases, or stays the same
under a proposed plan does not alone allow any firm conclusion that
minorities will have a better, or worse, or unvarying opportunity
to elect their candidates of choice. Any such inference must depend
not only on trends in BV AP levels, but on evidence of likely voter
turnout among minority and majority groups, patterns of racial bloc
voting, likelihood of white crossover voting, and so on.4 In-
4 The fact that the Court premises its analysis on BVAP alone is
ironic given that the Court, incorrectly, chastises the District
Court for committing the very error the Court now engages in,
"fail[ing] to consider all the relevant factors."
Ante, at
485.
505
deed, the core holding of the Court today, with which I agree,
that nonretrogression does not necessarily require maintenance of
existing supermajority minority districts, turns on this very
point; comparing the number of majority-minority districts under
existing and proposed plans does not alone reliably indicate
whether the new plan is retrogressive.
Lack of contextual evidence is not, however, the only flaw in
the Court's numerical arguments. Thus, in its first example,
ante, at 487, the Court points out that under the proposed
plan the number of districts with majority BV AP increases by one
over the existing plan,5 but the Court does not mention that the
number of districts with BVAP levels over 55% decreases by four.
See Record, Doc. No. 148, PI. Exhs. 1D, 2C. Similarly, the Court
points to an increase of two in districts with BV AP in the 30% to
50% range, along with a further increase of two in the 25% to 30%
range.
Ante, at 487. It fails to mention, however, that
Georgia's own expert argued that 44.3% was the critical threshold
for BVAP levels, 195 F. Supp. 2d, at 107, and the data on which the
Court relies shows the number of districts with BV AP over 40%
actually decreasing by one, see Record, Doc. No. 148, PI. Exhs. 1D,
2C. My point is not that these figures conclusively demonstrate
retrogression; I mean to say only that percentages tell us nothing
in isolation, and that without contextual evidence the raw facts
about population levels fail to get close to indicating that the
State carried its burden to show no retrogression. They do not come
close to showing clear error.
5 Though the Court does not acknowledge it in its discussion of
why "Georgia likely met its burden,"
ante, at 487, even this
claim was disputed. As the District Court explained: "[t]he number
of Senate Districts with majorities of BVAP would, according to
Georgia's calculations, increase from twelve to thirteen; according
to the Attorney General's interpretation of the census data, the
number would decrease from twelve to eleven." 195 F. Supp. 2d, at
93.
506
Nor could error, clear or otherwise, be shown by the Court's
comparison of the proposed plan with the description of the State
and its districts provided by the 1990 census.
Ante, at
487-489. The 1990 census is irrelevant. We have the 2000 census,
and precedent confirms in no uncertain terms that the issue for § 5
purposes is not whether Georgia's proposed plan would have had a
retrogressive effect 13 years ago: the question is whether the
proposed plan would be retrogressive now. See,
e. g.,
Reno v.
Bossier Parish School Bd.,
528 U. S. 320, 334 (2000)
(Under § 5 "the baseline is the status quo that is proposed to be
changed");
Holder v.
Hall, 512 U. S. 874, 883 (1994)
(plurality opinion) (Under § 5, "[t]he baseline for comparison is
present by definition; it is the existing status");
City of
Lockhart v.
United States, 460 U. S., at 132 ("The
proper comparison is between the new system and the system actually
in effect"); Cf. 28 CFR § 51.54(b)(2) (2002) (when determining if a
change is retrogressive under § 5 "[t]he Attorney General will make
the comparison based on the conditions existing at the time of the
submission"). The Court's assumption that a proper § 5 analysis may
proceed on the basis of obsolete data from a superseded census is
thus as puzzling as it is unprecedented. It is also an invitation
to perverse results, for if a State could carry its burden under §
5 merely by showing no retrogression from the state of affairs 13
years ago, it could demand preclearance for a plan flatly
diminishing minority voting strength under § 5.6
6 For example, if a covered jurisdiction had two
majority-minority districts in 1990, but rapidly changing
demography had produced two more during the ensuing decade, a new
redistricting plan, setting the number of majority-minority
districts at three would conclusively rule out retrogression on the
Court's calculus. This would be the case even when voting behavior
showed that nothing short of four majority-minority districts would
preserve the status quo as of 2000.
507
The Court's final effort to demonstrate that Georgia's plan is
nonretrogressive focuses on statistics about Georgia Democrats.
Ante, at 489. The Court explains that almost all the
districts in the proposed plan with a BV AP above 20% have a likely
overall Democratic performance above 50%, and from this the Court
concludes that "[t]hese statistics make it more likely as a matter
of fact that black voters will constitute an effective voting
bloc."
Ibid. But this is not so. The degree to which the
statistics could support any judgment about the effect of black
voting in State Senate elections is doubtful, and even on the
Court's assumptions the statistics show no clear error by the
District Court.
As for doubt about what the numbers have to do with State Senate
elections, it is enough to know that the majority's figures are
taken from a table describing Democratic voting in statewide, not
local, elections. The Court offers no basis for assuming that
voting for Democratic candidates in statewide elections correlates
with voting behavior in local elections,7 and in fact, the record
points to different, not identical, voting patterns. The District
Court specifically noted that the United States's expert testified
that "African American candidates consistently received less
crossover voting in local election[s] than in statewide elections,"
195 F. Supp. 2d, at 71, and the court concluded that there is
"compelling evidence that racial voting patterns in State Senate
races can be expected to differ from racial voting patterns in
statewide races," id., at 85-86.
7 Even if the majority wanted to rely on these figures to make a
claim about Democratic voting in statewide elections, the
predictors' significance is utterly unclear. The majority pulls its
figures from an exhibit titled, "Political Data Report," and a
column labeled, "%OVER DEMVOTES," PI. Exh. 2D. See
ante, at
489. The document provides no information regarding whether the
numbers in the column reflect an average of past performance, a
prediction for future performance, or something else
altogether.
508
But even if we assume the data on Democratic voting statewide
can tell us something useful about Democratic voting in State
Senate districts, the Court's argument does not hold up. It
proceeds from the faulty premise that even with a low BVAP, if
enough of the district is Democratic, the minority Democrats will
necessarily have an effect on which candidates are elected. But if
the proportion of nonminority Democrats is high enough, the
minority group may well have no impact whatever on which Democratic
candidate is selected to run and ultimately elected. In districts,
say, with 20% minority voters (all of them Democrats) and 51%
nonminority Democrats, the Democratic candidate has no obvious need
to take the interests of the minority group into account; if
everybody votes (or the proportion of stay-at-homes is constant
throughout the electorate) the Democrat can win the general
election without minority support. Even in a situation where a
Democratic candidate needs a substantial fraction of minority
voters to win (say the population is 25% minority and 30%
nonminority Democrats), the Democratic candidate may still be able
to ignore minority interests if there is such ideological
polarization as between the major parties that the Republican
candidate is entirely unresponsive to minority interests. In that
situation, a minority bloc would presumably still prefer the
Democrat, who would not need to adjust any political positions to
get the minority vote.
All of this reasoning, of course, carries a whiff of the
lamp.
I do not know how Georgia's voters will actually behave if the
percentage of something is x, or maybe y, any more than the Court
does. We are arguing about numerical abstractions, and my sole
point is that the Court's abstract arguments do not hold up. Much
less do they prove the District Court wrong.
IV
Section 5, after all, was not enacted to address abstractions.
It was enacted "to shift the advantage of time and
509
inertia from the perpetrators of the evil to its victim,"
Beer, 425 U. S., at 140 (internal quotation marks omitted)
(quoting H. R. Rep. No. 94-196, pp. 57-58 (1970)), and the State of
Georgia was made subject to the requirement of preclearance because
Congress "had reason to suppose" it might "try ... to evade the
remedies for voting discrimination" and thus justifies § 5's
"uncommon exercise of congressional power."
South Carolina
v.
Katzenbach, 383 U. S., at 334-335. Section 5 can only be
addressed, and the burden to prove no retrogression can only be
carried, with evidence of how particular populations of voters will
probably act in the circumstances in which they live. The State has
the burden to convince on the basis of such evidence. The District
Court considered such evidence: it received testimony, decided what
it was worth, and concluded as the trier of fact that the State had
failed to carry its burden. There was no error, and I respectfully
dissent.
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