OCTOBER TERM, 1996
Syllabus
LAWYER
v. DEPARTMENT OF JUSTICE ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE
DISTRICT OF FLORIDA
No. 95-2024. Argued February 19, 1997-Decided June 25,1997
Based on the 1990 census, the Florida Legislature adopted a
reapportionment plan for State Senate and House districts. When the
Justice Department refused to preclear the plan, the State Supreme
Court entered an order encouraging the state legislature to adopt a
new plan. Advised that the Governor would not convene an
extraordinary session and that neither the Senate President nor the
House Speaker would convene his respective House, the court
concluded that legislative impasse had occurred and revised the
redistricting plan itself producing Plan 330. In 1995, appellant
and other residents of Senate District 21 as revised in Plan 330
filed suit against state and federal parties in the Federal
District Court, alleging that District 21 violated the Equal
Protection Clause. The three-judge court permitted intervention by
the State Senate, the House of Representatives, and others.
Ultimately, all the parties but appellant agreed to a settlement
that would revise District 21 under a new plan, Plan 386. At a
hearing, the District Court rejected appellant's objections that
the court was obliged to find Plan 330 unconstitutional before
approving the settlement, and that Plan 386 was unconstitutional
under
Miller v.
Johnson, 515 U. S. 900, because
only race could explain District 21's contours. The court approved
the settlement.
Held:
1. The District Court did not err in approving the settlement
agreement without formally holding Plan 330 unconstitutional. Pp.
575-580.
(a) State redistricting responsibility should be accorded
primacy to the extent possible when a federal court exercises
remedial power.
Growe v.
Emison, 507 U. S. 25, 34. A State
should be given the opportunity to make its own redistricting
decision so long as that is practically possible and the State
chooses to take the opportunity.
Ibid.; Wise v.
Lipscomb, 437
U. S. 535, 540. The District Court's decision did not deny the
State's legislature and Supreme Court the opportunity to devise a
new redistricting plan here, for the State has selected its
opportunity by entering into the settlement agreement. There is no
reason to suppose that the State's attorney general lacked
authority to propose a plan as an incident of his authority to
represent the State in the litigation, and the participation of
counsel for each legislative chamber con-
568
Syllabus
firms this authority as well as the legislature's continuing
refusal to address the issue in formal session. The State has taken
advantage of the opportunity recognized in
Growe and
Wise. Pp. 575-578.
(b) The District Court was not bound to adjudicate liability
before settlement even though appellant refused to settle. The
settlement agreement did not impermissibly impose duties or
obligations on appellant or dispose of his claims. See
Firefighters v.
Cleveland, 478 U. S. 501,529. It
disposed of his claim not in the forbidden sense of cutting him off
from a remedy to which he was entitled, but only in the legitimate
sense of granting him an element of the very relief he had sought:
the elimination of the plan he claimed was unconstitutional.
Insofar as appellant also wanted the new plan to be constitutional,
he is in the same position he would have been with a formal decree:
his views on Plan 386's merits were heard, and his right to attack
it in this appeal is unimpaired. He may not demand the adjudication
that the State could have demanded but instead waived. Pp.
578-580.
2. The District Court's finding that Plan 386 did not
subordinate traditional districting principles to race is not
clearly erroneous. See
Miller v.
Johnson, supra, at
915-917. Appellant's contrary claim is based on his charges that
District 21 encompasses more than one county, crosses a body of
water, is irregular in shape, lacks compactness, and contains a
percentage of black voters significantly higher than the overall
percentage in the counties from which the district is drawn. His
first four points ignore unrefuted evidence showing that District
21 is no different from what Florida's traditional districting
principles could have been expected to produce. As to the final
point, this Court has never suggested that the percentage of black
residents in a district may not exceed the percentage of black
residents in any of the counties from which a district is created,
and has never required similar racial composition of different
political districts to avoid an inference of racial gerrymandering
in anyone of them. Pp. 580-582.
920 F. Supp. 1248, affirmed.
SOUTER, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and STEVENS, GINSBURG, and BREYER, JJ., joined.
SCALIA, J., filed a dissenting opinion, in which O'CONNOR, KENNEDY,
and THOMAS, JJ., joined,
post, p. 583.
Robert J.
Shapiro argued the cause for appellant.
With him on the briefs was C.
Martin Lawyer III,
pro
se.
Richard G.
Taranto argued the cause for the state
appellees. With him on the brief were
Peter Antonacci,
Deputy
569
Attorney General of Florida, George L. Waas, Assistant Attorney
General, Donald L. Bell, Stephen N. Zack, B. Elaine New, and Ben H.
Hill III. Irving L. Gornstein argued the cause for the United
States. With him on the brief were Acting Solicitor General
Dellinger, Assistant Attorney General Patrick, Deputy Solicitor
General Waxman, Mark L. Gross, and Rebecca K. Troth. Robert B.
McDuff, James M. Landis, Barbara R. Arnwine, Thomas J. Henderson,
Brenda Wright, and Todd A. Cox filed a brief for appellees Senator
James T. Hargrett, Jr., et al.*
JUSTICE SOUTER delivered the opinion of the Court. Appellant was
one of several plaintiffs in this suit challenging the
configuration of a Florida legislative district under the Equal
Protection Clause. All parties except appellant reached a
provisional settlement agreement and, after a fairness hearing, a
three-judge District Court approved the remedial districting plan
proposed in the agreement. Appellant claims that the District Court
acted without giving the State an adequate opportunity to make its
own redistricting choice by approving the remedial plan without
first adjudicating the legality of the original plan, that the
court had no authority to approve any settlement over his
objection, and that the remedial plan violates the Constitution. We
hold that the State exercised the choice to which it was entitled
under our cases, that appellant has no right to block the
settlement, and that he has failed to point up any
unconstitutionality in the plan proposed.
I
After the 1990 Decennial Census, the Florida Legislature adopted
a reapportionment plan for Florida's 40 Senate districts and 120
House districts. Following the procedure for
*
Robinson O.
Everett filed a brief for Americans
for the Defense of Constitutional Rights, Inc., as
amicus
curiae.
570
reapportionment set forth in the State Constitution, see Fla.
Const., Art. III, § 16(c) (1970), the attorney general of Florida
petitioned the State Supreme Court for a declaration that the plan
comported with state and federal law. That court approved the
redistricting plan, while noting that time constraints imposed by
the State Constitution precluded a full review of objections raised
to the plan under § 2 of the Voting Rights Act of 1965, 79 Stat.
437, as amended, 42 U. S. C. § 1973. The court retained
jurisdiction to entertain further objections to the plan. See
In
re Constitutionality of Senate Joint Resolution 2G, 597 So. 2d
276, 285-286 (Fla.), amended, 601 So. 2d 543 (Fla. 1992);
Johnson v.
De Grandy, 512 U. S. 997, 1001
(1994).
Since five Florida counties, including Hillsborough County where
the city of Tampa is located, are covered jurisdictions under § 5
of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U.
S. C. § 1973c, see 28 CFR pt. 51, App. (1996); see also
Johnson,
supra, at 1001, n. 2, the state attorney general submitted the
redistricting plan to the United States Department of Justice for
preclearance. On June 16, 1992, the Department declined to preclear
the proposed State Senate districts, on the grounds that the
redistricting plan divided "politically cohesive minority
populations" in the Hillsborough County area and failed to create a
majority-minority district in that region. Letter from Assistant
United States Attorney General John Dunne to Florida Attorney
General Robert A. Butterworth (quoted in
In re Constitutionality
of Senate Joint Resolution 2G, supra, at 547 (Shaw, C. J.,
specially concurring)); see also
De Grandy v.
Wetherell,
815 F. Supp. 1550, 1556 (ND Fla. 1992), aff'd in part and rev'd
in part,
Johnson v.
De Grandy, supra.
The Supreme Court of Florida then entered an order encouraging
the state legislature to adopt a new plan to address the Justice
Department's objection, and noting that if the legislature failed
to act, the court itself would adopt a reapportionment plan. See
815 F. Supp., at 1556; see also
571
601 So. 2d, at 544-545. The state court was advised that the
Governor had no intent to convene the legislature in extraordinary
session and that neither the President of the Senate nor the
Speaker of the House of Representatives would convene his
respective House.
Ibid.; see also 815 F. Supp., at 1556. The
court concluded that a legislative impasse had occurred and,
invoking authority under state law, revised the Senate
redistricting plan to address the Justice Department's objection.
601 So. 2d, at 545.
The amended plan, known as Plan 330, called for an irregularly
shaped Senate District 21, with a voting-age population 45.8% black
and 9.4% Hispanic and comprising portions of four counties in the
Tampa Bay area.
Id., at 546. The district included the
central portions of Tampa in Hillsborough County, the eastern shore
of Tampa Bay running south to Bradenton in Manatee County, central
portions of St. Petersburg in Pinellas County, a narrow projection
eastward through parts of Hillsborough and Polk Counties, and a
narrow finger running north from St. Petersburg to Clearwater. See
Juris. Statement 29a. Although the State Supreme Court acknowledged
that the district was "more contorted" than other possible plans
and that black residents in different parts of the district might
have little in common besides their race, it decided that such
concerns "must give way to racial and ethnic fairness." See 601 So.
2d, at 546. Elections were held under Plan 330 in 1992 and
1994.1
On April 14, 1994, appellant and five other residents of
Hillsborough County filed this suit in the District Court invoking
jurisdiction under 28 U. S. C. §§ 1331, 1343, and 2201,
et
seq., naming the State of Florida, its attorney general, and
the United States Department of Justice as defendants, and alleging
that District 21 in Plan 330 violated the Equal Pro-
1 In separate litigation, we rejected § 2 vote dilution claims
attacking certain Senate districts in the Miami and Pensacola areas
created by the legislature's redistricting plan (as modified by the
State Supreme Court through Plan 330). See
Johnson v.
De
Grandy, 512 U. S.
997 (1994).
572
tection Clause. The plaintiffs sought declaratory and injunctive
relief, including an order requiring Florida to reconfigure the
district. See App. 14. A three-judge District Court was convened
and ultimately permitted intervention by the State Senate, House of
Representatives, Secretary of State, District 21 Senator James T.
Hargrett, Jr., and a group of black and Hispanic voters residing in
District 21. Record 33, 78; 159 Tr. 25, 30 (Sept. 27, 1995).
At a status conference held on July 6, 1995, shortly after we
decided
Miller v.
Johnson, 515 U. S. 900 (1995), all
parties agreed to the appointment of a mediator to seek resolution
of the suit,2 see Record 78, at 2; 134 Tr. 13, 14, 16 (July 6,
1995), though pretrial proceedings continued during the ensuing
mediation. After the mediator declared an impasse in late October,
see 166 Tr. 8 (Oct. 26, 1995), the parties continued discussions on
their own and on November 2, 1995, filed with the District Court a
settlement agreement signed on behalf of all parties except
appellant. App. 17-21. The agreement noted that while the
defendants and defendantintervenors denied the plaintiffs' claims
that District 21 was unconstitutional, all parties to the
settlement concurred that "there is a reasonable factual and legal
basis for the plaintiffs' claim."
Id., at 17. The agreement
proposed revising District 21 under a new plan, called Plan 386,
which would be subject to public comment and, if approved by the
District Court after a public hearing, would be used in state
elections unless Florida adopted a new plan.
Id., at 18-19.
District
2 At the time, the District Court had permitted the Florida
Senate to intervene, see Record 33, but had yet to rule on motions
to intervene from Senator Hargrett and from the group of minority
voters in District 21. The District Court indicated that it
intended to grant all pending motions to intervene, and treated
prospective intervenors as parties. 134 Tr. 4 (July 6, 1995). The
House of Representatives had yet to file a motion to intervene, but
was represented at the status conference and indicated its
intention to file a motion to intervene.
Id., at 24. No one
at the status conference objected to submitting the matter to
mediation. The Secretary of State was not represented at the
conference.
573
21, as revised in Plan 386, would no longer extend into Polk
County or north toward Clearwater, would have a boundary length
decreased by 58%, and would include a resident black voting-age
population reduced from 45.0% to 36.2%.
Id., at 25, 40. The
proposed district would cover portions of three counties instead of
four and continue to include land on both sides of Tampa Bay.
Record 169, attachment 4.
At a status conference held the same day the parties filed the
settlement agreement, the District Court sought and received
specific assurances from lawyers for the President of the Senate
and the Speaker of the House that they were authorized to represent
their respective government bodies in the litigation and enter into
the settlement proposed. 180 Tr. 23-24 (Nov. 2, 1995). Appellant
argued that the District Court was required to hold Plan 330
unconstitutional before it could adopt a new districting plan, see
id., at 16, but the District Court disagreed, noting that "there is
simply not a litigable issue with respect to what we have for
shorthand purposes referred to as liability and we ought simply
then to proceed ... to resolve the issue of the fairness of this
proposed settlement and entertain any objections [concerning it]."
Id., at 26.
The District Court scheduled a hearing on the proposed plan for
November 20, giving notice in 13 area newspapers and making details
of the plan available for review in the clerk's office. See App.
161. Before the hearing, the settling parties submitted evidence
including affidavits and declarations addressing the factors
considered in revising District 21, Record 188, and appellant
submitted his own remedial plan for a District 21 wholly contained
within Hillsborough County, Record 172, at A4. At the hearing,
counsel for the State Senate summarized the pre hearing filings
submitted by proponents of the settlement and the rationale behind
the agreement. App.160-172. The District Court denied appellant's
motion for ruling on his motion for summary judgment on the
legality of Plan 330, saying that "[i]t makes
574
no difference whether we grant the motion or not .... [I]f we
granted your motion, we would be in this precise posture we are in
now."
Id., at 173. Appellant then argued that District 21,
as redrawn in Plan 386, would still be unconstitutional because
only race could explain its contours, see id., at 175-188, and
counsel for a former state legislator spoke to the same effect,
id., at 188-190.
On March 19, 1996, the District Court approved the settlement.
See 920 F. Supp. 1248, 1257 (MD Fla. 1996). The panel majority
first held that it was not obliged to find the existing District 21
unconstitutional in order to approve the settlement. While
recognizing the need to "guard against any disingenuous adventures"
by litigants, id., at 1252, n. 2, the majority noted that a State
should not be deprived of the opportunity to avoid "an expensive
and protracted contest and the possibility of an adverse and
disruptive adjudication" by a rule insisting on "a public
mea
culpa" as the sole condition for dispensing with "a
dispositive, specific determination of the controlling
constitutional issue."
Id., at 1252, and n. 2. To balance
the competing interests, the court required a showing of a
substantial "evidentiary and legal" basis for the plaintiffs' claim
before the settlement would be approved, id., at 1252, and it held
the standard satisfied. "Each party either states unequivocally
that existing District 21 is unconstitutionally configured or
concedes, for purposes of settlement, that the plaintiffs have
established
prima facie unconstitutionality."
Id., at
1253, n. 3. The majority found that the "boundaries of current
District 21 are markedly uneven and, in some respects,
extraordinary," id., at 1253, and that the district "bears at least
some of the conspicuous signs of a racially conscious contrivance,"
id., at 1255.
The District Court then turned to the merits of Plan 386 to
determine whether its formation had been "dominated by the
single-minded focus" on race that it understood to be
constitutionally forbidden under
Miller. 920 F. Supp.,
at
575
1254. The court observed that the November 20 hearing "produced
but two dissenters, plaintiff Lawyer and a former state Senator,
both of whom neither presented relevant evidence nor offered
germane legal argument."
Id., at 1255. The District Court
concluded that a "constitutional objection to the proposed District
21 is not established. In its shape and composition, proposed
District 21 is, all said and done, demonstrably benign and
satisfactorily tidy, especially given the prevailing geography."
Ibid. The court noted that the new district's percentage of
minority residents would approximate the racial features of the
region surrounding Tampa Bay better than Plan 330 did, that the
district's boundaries would be "less strained and irregular" than
those in Plan 330, and that all candidates, regardless of race,
would have an opportunity to seek office, with "both a fair chance
to win and the usual risk of defeat."
Id., at 1255,
1256.
Chief Judge Tjofiat concurred specially. He agreed that Plan 386
was constitutional but thought that the new plan could not be
approved without a judicial determination that Plan 330 was
unconstitutional, as he concluded it was.
Id., at
1256-1257.
We noted probable jurisdiction, 519 U. S. 926 (1996), and now
affirm.
II A
Appellant argues that the District Court erred in approving the
settlement agreement without formally holding Plan 330
unconstitutional, thereby denying the State's legislature and
Supreme Court the opportunity to devise a new redistricting plan.3
See Brief for Appellant 23, 32-33. Appel-
3We reject appellees' contention that appellant failed to
preserve this claim for appeal. Appellant argued below that the
District Court should rule on the legality of Plan 330 before
approving a remedial plan, see,
e. g., Record 173, and
appellant's statements asking that the state legislature and
Supreme Court be given the opportunity to redistrict following a
find-
576
lant relies on
Growe v.
Emison, 507 U. S. 25 (1993), in
which we recognized that" 'reapportionment is primarily the duty
and responsibility of the State through its legislature or other
body, rather than of a federal court' [and that] [a]bsent evidence
that these state branches will fail timely to perform that duty, a
federal court must neither affirmatively obstruct state
apportionment nor permit federal litigation to be used to impede
it."
Id., at 34 (quoting
Chapman v.
Meier, 420
U. S. 1, 27 (1975)). Appellant cites
Wise v.
Lipscomb,
437 U. S. 535 (1978), for the proposition that when a federal
court declares an existing apportionment plan unconstitutional, it
should, if possible, afford "a reasonable opportunity for the
legislature to meet constitutional requirements by adopting a
substitute measure rather than ... devise and order into effect its
own plan."
Id., at 540 (opinion of White, J.). Appellant
claims that the District Court's approval of the settlement
agreement without first holding Plan 330 unconstitutional impaired
the State's interest in exercising "primary responsibility for
apportionment of [its] federal congressional and state legislative
districts,"
Growe, supra, at 34, and had the derivative
effect of "eviscerat[ing] the individual rights of" appellant, as a
citizen and voter, to "the liberties derived from the diffusion of
sovereign power ... to representative state government," Brief for
Appellant 26.
The substance of what appellant claims as a right to the benefit
of political diffusion is nothing other than the rule declared in
the cases he cites, that state redistricting responsibility should
be accorded primacy to the extent possible when a federal court
exercises remedial power. See
Growe, 507 U. S., at 34. A
State should be given the opportunity to make its own redistricting
decisions so long as that is practically possible and the State
chooses to take the opportunity.
ing of liability fairly encompass the claim he presents here.
See 166 Tr. 30-31, 36-37, 39, 40 (Oct. 26, 1995); 180 Tr. 15-16
(Nov. 2, 1995).
577
Ibid. When it does take the opportunity, the discretion
of the federal court is limited except to the extent that the plan
itself runs afoul of federal law.
In this case, the State has selected its opportunity by entering
into the settlement agreement, which for reasons set out below in
Part II-B it had every right to do. And it has availed itself of
that opportunity by proposing a plan as embodied in the settlement
agreement. There can be no question on the present record that
proponents of the plan included counsel authorized to represent the
State itself, and there is no reason to suppose that the State's
attorney general lacked authority to propose a plan as an incident
of his authority to represent the State in this litigation.4 The
evidence, indeed, was entirely in his favor. The participation of
counsel for each legislative chamber confirmed both the continuing
refusal of the legislature to address the issue in
4 The dissent argues that Article III, § 16, of the Florida
Constitution provides the exclusive means by which redistricting
can take place. See
post, at 585-586, and n. 2. But this
article in terms provides only that the state legislature is bound
to redistrict within a certain time after each decennial census,
for which it may be required to convene. See Fla. Const., Art. III,
§ 16(a). The dissent says that the state legislature is "implicitly
authorized to reapportion" after an existing plan is held
unconstitutional and, further, that the Supreme Court of Florida
has "by implication" the authority to redraw districts in the event
a federal court invalidates a redistricting plan on constitutional
grounds. See
post, at 585-586, n. 2. We disagree on this
question of state law only insofar as the dissent views this
implicit authority to limit the broad discretion possessed by the
attorney general of Florida in representing the State in
litigation. See,
e. g., Ervin v.
Collins, 85 So. 2d
852, 854 (Fla. 1956) (noting that, under Florida law, "the Attorney
General as the chief law officer of the state and absent express
legislative restriction to the contrary, may exercise his power and
authority in the premises [the power to litigate] as the public
interest may require"); see also
State ex rel. Shevin v.
Yarborough, 257 So. 2d 891, 894-896 (Fla. 1972) (Ervin, J.,
specially concurring). Absent a state-court determination to the
contrary, we do not see Article III, § 16, as placing the attorney
general's settling authority in doubt, over against his
representation to the contrary.
578
formal session and the authority of the attorney general to
propose the settlement plan on the State's behalf.5
On these facts, the District Court's approval of the settlement
agreement was entirely consistent with the principles underlying
our cases that have granted relief on the ground that a district
court had failed to respect the affected government's entitlement
to originate its own redistricting policy. Since the State, through
its attorney general, has taken advantage of the option recognized
in
Growe and
Wise to make redistricting decisions in
the first instance, there are no reasons in those cases to burden
its exercise of choice by requiring a formal adjudication of
unconstitutionality.
B
We find no merit, either, in appellant's apparently distinct
claim that, regardless of any effect on the State's districting
responsibility, the District Court was bound to adjudicate
liability before settlement because appellant did not agree to
settle. See Brief for Appellant 27. "It has never been supposed
that one party-whether an original party, a party
5 The District Court indicated that it would look to the Florida
House and Senate as an initial matter to fashion any new
districting plan, see Tr. 14, 18-19,21-22 (Sept. 27, 1995), and
directed the state appellees to file a monthly "report informing
the Court of any formal actions initiated by any public official or
branch of government regarding Florida's senatorial
'reapportionment plan.' " Record 78, at 5. The Florida Senate filed
such status reports as directed, indicating that apart from the
ongoing litigation, no formal actions had been initiated by any
public official or branch of state government regarding Florida's
senatorial plan. Record 121, 141,160.
The dissent challenges the authority of those representing the
State House and Senate to speak for those bodies and further claims
that even if they were authorized, the District Court was required
to "demand clearer credentials" on their part. See
post, at
586. However this may be, the State was represented by the attorney
general and it is by virtue of his agreement as counsel that the
State was a party to the agreement. The settlement and subsequent
judgment do not, of course, prevent the state legislature from
redistricting yet again. See App. 19.
579
that was joined later, or an intervenor-could preclude other
parties from settling their own disputes."
Firefighters v.
Cleveland, 478
U. S. 501, 528-529 (1986).6 While appellant was entitled to
present evidence and have his objections heard at the hearing to
consider approval of the agreement, he "does not have power to
block the decree merely by withholding [his] consent."
Id.,
at 529; cf. 7B C. Wright, A. Miller, & M. Kane, Federal
Practice and Procedure § 1797.1, p. 412 (2d ed. 1986) (fact of
opposition does not necessitate disapproval of class-action
settlement under Federal Rule of Civil Procedure 23). While a
settlement agreement subject to court approval in a nonclass action
may not impose duties or obligations on an unconsenting party or
"dispose" of his claims, see
Firefighters, supra, at 529,
the agreement here did none of those things. It disposed of
appellant's claim not in the forbidden sense of cutting him off
from a remedy to which he was entitled, but only in the legitimate
sense of granting him an element of the very relief he had sought.
As a remedy for what appellant claimed to be an unconstitutional
plan he had requested the elimination of that plan, and the
settlement and decree gave him that relief. To afford him a right
to the formality of a decree in addition to the substance of the
relief sought would be to allow a sore winner to obscure the point
of the suit. In most civil litigation, and in this suit in
particular, "the judicial decree is not the end but the means. At
the end of the rainbow lies not a judgment, but some action (or
cessation of action) by the defendant that the judgment produces
.... The real value of the judicial pronouncement-what makes it a
proper judi-
6 Notwithstanding the dissent's claim, see
post, at 584,
nothing in
Firefighters limits its rule to remedial consent
decrees that follow an adjudication of liability. To the contrary,
the holding in
Firefighters was expressly based on the
principle that "it is the parties' agreement that serves as the
source of the court's authority to enter any [consent] judgment at
all," 478 U. S., at 522, and our opinion in that case makes no
reference to any findings of liability.
580
cial resolution of a 'case or controversy' rather than an
advisory opinion-is in the settling of some dispute
which
affects the behavior of the defendant towards the plaintiff"
Hewitt v.
Helms, 482 U. S. 755, 761
(1987).
Appellant, of course, wanted something more than being rid of
Plan 330, for he wanted a new plan that would be constitutional.
But insofar as he would have been entitled to that following a
formal decree of the court, he is now in the same position he would
have enjoyed if he had had such a decree: his views on the merits
of the proposed plan were heard, and his right to attack it in this
appeal is entirely unimpaired. To the extent that he claims
anything more, he is trying to do what we have previously said he
may not do: to demand an adjudication that the State of Florida,
represented by the attorney general, could indeed have demanded,
see
Growe, 507 U. S., at 34;
Wise, 437 U. S., at 540
(opinion of White, J.), but instead waived.
III
The District Court concluded that Plan 386 did not subordinate
traditional districting principles to race.7 See 920 F. Supp., at
1254-1255. That finding is subject to review for clear error, see
Miller, 515 U. S., at 915-917, of which we find none.
The District Court looked to the shape and composition of
District 21 as redrawn in Plan 386 and found them "demonstrably
benign and satisfactorily tidy." 920 F. Supp., at 1255. The
district is located entirely in the Tampa Bay area, has an
end-to-end distance no greater than that of most Flor-
7 There is no merit to appellant's contention that the District
Court failed to adjudicate the constitutionality of District 21.
See Brief for Appellant 35. The District Court noted the deference
due the State, and expressly held Plan 386 to be constitutional.
920 F. Supp. 1248, 1255, 1256 (MD Fla. 1996) ("Plan 386 passes any
pertinent test of constitutionality and fairness").
581
ida Senate districts,S and in shape does not stand out as
different from numerous other Florida House and Senate districts.
See App. 26, 60-75. While District 21 crosses a body of water and
encompasses portions of three counties, evidence submitted showed
that both features are common characteristics of Florida
legislative districts, being products of the State's geography and
the fact that 40 Senate districts are superimposed on 67 counties.
See id., at 28, 32-33.9
Addressing composition, the District Court found that the
residents of District 21 "regard themselves as a community." 920 F.
Supp., at 1255. Evidence indicated that District 21 comprises a
predominantly urban, low-income population, the poorest of the nine
districts in the Tampa Bay region and among the poorest districts
in the State, whose white and black members alike share a similarly
depressed economic condition, see App. 30-31, 49-51, and interests
that reflect it, id., at 149-154. The fact that District 21 under
Plan 386 is not a majority black district, the black voting-age
population being 36.2%, supports the District Court's finding that
the district is not a "safe" one for black-preferred candidates,
but one that "offers to any candidate, without regard to race, the
opportunity" to seek and be elected to office. 920 F. Supp., at
1256.
8 The distance is 50 miles and record evidence indicates that
only 15 of the 40 Senate districts in Florida cover less distance
from end-to-end. See App. 26.
9 The Supreme Court of Florida has held that the presence in a
district of a body of water, even without a connecting bridge and
even if such districting necessitates land travel outside the
district to reach other parts of the district, "does not violate
this Court's standard for determining contiguity under the Florida
Constitution."
In re Constitutionality of Senate Joint
Resolution 2G, 597 So. 2d 276, 280 (Fla. 1992).
In addition, only 9 of the State's 40 Senate districts are
located within a single county, and 5 of those are within Dade
County. See App. 33. Multicounty districting also increases the
number of legislators who can speak for each county, a districting
goal traditionally pursued in the State. See id., at 32, and n.
7.
582
Based on these and other considerations,lO the District Court
concluded that traditional districting principles had not been
subordinated to race in drawing revised District 21. Appellant
calls this finding clearly erroneous, charging that District 21
encompasses more than one county, crosses a body of water, is
irregular in shape, lacks compactness, and contains a percentage of
black voters significantly higher than the overall percentage of
black voters in Hillsborough, Manatee, and Pinellas Counties. Brief
for Appellant 40-45. Appellant's first four points ignore unrefuted
evidence showing that on each of these points District 21 is no
different from what Florida's traditional districting principles
could be expected to produce. See
supra, at 580-581. As to
appellant's final point, we have never suggested that the
percentage of black residents in a district may not exceed the
percentage of black residents in any of the counties from which the
district is created, and have never recognized similar racial
composition of different political districts as being necessary to
avoid an inference of racial gerrymandering in anyone of them.
Since districting can be difficult, after all, just because racial
composition varies from place to place, and counties and voting
districts do not depend on common principles of size and location,
facts about the one do not as such necessarily entail conclusions
about the other.
In short, the evidence amply supports the trial court's views
that race did not predominate over Florida's traditional
districting principles in drawing Plan 386. Appellant has provided
nothing that calls that conclusion into question, much less that
points to any clear error.
10 Record evidence indicates that the design of revised District
21 was also affected by the need to satisfy one-person, one-vote
requirements, App. 28, the desire to retain the existing partisan
balance in the Senate, id., at 31, and the desire to avoid
out-of-cycle elections, id., at 28-29. See also
In re
Apportionment Law, 414 So. 2d 1040, 1047-1050 (Fla. 1982)
(special elections must be held when district boundaries are
changed, disrupting staggered Senate terms).
583
We accordingly affirm the decision of the District Court.
It is so ordered.
JUSTICE SCALIA, with whom JUSTICE O'CONNOR, JUSTICE KENNEDY, and
JUSTICE THOMAS join, dissenting.
The Court today affirms a Federal District Court's redrawing of
Florida Senate District 21, despite the fact that the District
Court never determined that District 21 was unconstitutional, and
never gave the State an opportunity to do its own redrawing of the
district to remedy whatever unconstitutional features it contained.
In my view, the District Court's actions represent an unprecedented
intrusion upon state sovereignty.
I
The District Court held that it could exercise its authority
under the Fourteenth Amendment to "compel the nullification and
re-establishment of state legislative boundaries" without finding a
violation of the Fourteenth Amendment, so long as "the case
presents a sufficient evidentiary and legal basis to warrant the
bona fide intervention of a federal court into matters
typically reserved to a state." 920 F. Supp. 1248, 1251-1252 (MD
Fla. 1996). Although acknowledging that the "'[d]efendants and
defendant-intervenors deny these assertions [of
unconstitutionality],'" id., at 1252-1253, n.3 (quoting Settlement
Agreement), the District Court determined that the claim that
District 21 was unconstitutional was "fairly litigable," id., at
1253, n. 3, and found this enough to justify its reapportionment
order.
The only authority cited by the District Court for the
proposition that a court can mandate a remedy without finding
liability is JUSTICE O'CONNOR'S concurring opinion in
Wygant
v.
Jackson Bd. of Ed., 476 U. S. 267, 284
(1986). But that opinion has no bearing on the present case. It
dealt with the question whether a school board could, consistent
with the Constitution, implement an affirmative-action pro-
584
gram without first making contemporaneous findings that such a
program is justified by specific instances of past discrimination.
Id., at 289-291. Quite obviously, whether a State may take
voluntary action without first determining that it has
violated the law has nothing to do with whether a federal court may
impose a remedy without first determining that the State has
violated the law.
The Court evidently believes that an adjudication of
unconstitutionality of District 21 was unnecessary here because the
State entered into a consent agreement accepting judicial
imposition of Plan 386. For this proposition it relies upon
Firefighters v.
Cleveland, 478 U. S. 501 (1986),
which said that "it is the parties' agreement that serves as the
source of the [District Court's] authority to enter ... judgment
.... "
Id., at 522. However, that passage from
Firefighters is of no help to the Court-even putting aside
the fact that the "agreement" there at issue, unlike the one here,
was an agreement to remedy unlawful conduct (a "pattern of racial
discrimination") that
had been adjudged, id., at 506,
511
512.1 Firefighters was a Title VII action by minority
firefighters, alleging that the city discriminated against them in
promotions. A union representing the majority of the city's
firefighters intervened as a party-plaintiff and objected to the
settlement, contending, among other things, that its consent was
required in order for the District Court to enter a consent decree.
We disagreed. The minority firefighters and the city, we said,
could have reached an out-of-court agreement to resolve their
dispute. See id., at 522-523, and
1 I am puzzled by the Court's assertion that "our opinion in
[Firefighters] makes no reference to any findings of
liability."
Ante, at 579, n. 6. We said: "Judge Lambros
found that '[t]he documents, statistics, and testimony presented at
[the] hearings reveal a historical pattern of racial discrimination
in the promotions in the City of Cleveland Fire Department.' "
Firefighters, 478 U. S., at 511-512 (quoting
Vanguards of Cleveland v.
Cleveland, Civ. Action
C-80-1964 (ND Ohio, Jan. 31, 1983), reprinted in Brief in
Opposition in
Firefighters v.
Cleveland, O. T. 1986,
No. 84-1999, pp. A3-A4).
585
n. 13. "[T]he choice of an enforcement scheme-whether to rely on
contractual remedies or to have an agreement entered as a consent
decree-is itself made voluntarily by the parties."
Id., at
523.
In today's case, by contrast, neither the appellant nor the
other original plaintiffs (now appellees) could have concluded a
binding out-of-court "redistricting agreement" with representatives
of the Florida Legislature, or with the state attorney general-and
the Court does not contend otherwise. The Florida Constitution,
Art. III, § 16, requires the legislature to draw districts "by
joint resolution," and provides no authority for the attorney
general to do SO.2 Any "redis-
2 The Florida Legislature is explicitly
required to
reapportion "at its regular session in the second year following
each decennial census." Fla. Const., Art. III, § 16(a). It seems
obvious that the legislature is implicitly
authorized to
reapportion when its prior reapportionment has been held
unconstitutional. See
In re Constitutionality of Senate Joint
Resolution 2G, 601 So. 2d 543, 544 (Fla. 1992); Tr. 29-30 (July
6, 1995) (view of counsel for the Florida House of
Representatives); Record 93, at 2 (view of District 21's incumbent
Senator). I cannot imagine any basis for asserting that anyone
else, such as the attorney general, has authority to reapportion
(by exercising his "settling authority,"
ante, at 577, n.
4), when the State's last reapportionment has
not been
invalidated. While the Court is correct that the attorney general
has broad discretion in representing Florida in litigation, see
ibid., neither the two cases it cites nor any I could find
comes even close to permitting the attorney general to agree with a
private citizen to redistrict the State. The Court also asserts,
without citation, that "counsel for each legislative chamber
confirmed ... the authority of the attorney general to propose the
settlement plan on the State's behalf."
Ante, at 577-578. I
am unaware of any such confirmation, and the record actually
suggests there was none. See Tr. 29-30 (July 6, 1995) (view of
counsel for the Florida House of Representatives); Record 93, at 2
(view of District 21's incumbent Senator).
Moreover, under the Florida Constitution the prescribed body to
reapportion when the legislature has failed to do so is the Florida
Supreme Court. The Florida Constitution itself states this
explicitly with regard to the legislature's failure to act after
the decennial census, Fla. Const., Art. III, § 16; and the Florida
Supreme Court has held that it has authority to reapportion (absent
legislative action) in the event of Justice Department refusal of
preclearance, and hence by implication in the event of
586
tricting agreement" entered into by these officials with
individual voters would obviously be null and void. And a court
decree that does not purport to be in remediation of an adjudged
violation of law cannot make it binding. See
Firefighters,
supra, at 522-523. See also,
e. g., Perkins v.
Chicago Heights, 47 F.3d
212, 216 (CA7 1995).
These principles would suffice to invalidate an unauthorized
private agreement as the basis for a federal judicial decree in
even the ordinary case, but they should apply even more rigorously
to an agreement purportedly supporting a federal judicial decree of
state reapportionment, which we have described as an "unwelcome
obligation,"
Connor v.
Finch, 431 U. S. 407, 415
(1977), that should be undertaken by a district court only as a
last resort, see,
e. g., White v.
Weiser, 412 U. S. 783 (1973).
Indeed, even if it were possible for the Florida Legislature to
authorize two of its members to negotiate an apportionment
agreement that could be the basis for a federal court decree, one
would think that the special solicitude we have shown for
preservation of the States' apportionment authority would cause the
court to demand clearer credentials on the part of those who
purport to speak for the legislature.3 The District Court asserted
that "Florida's House and Senate ... manifested ... the authority
to consent," 920 F. Supp., at 1251, but it points to no resolu-
federal-court invalidation, see In re Constitutionality of
Senate Joint Resolution 2G, supra, at 544-545.
3 The Court is of the view that participation by Florida's
legislative branches was beside the point, and that the attorney
general alone could propose a redistricting plan and settle this
lawsuit without participation by the legislature. See
ante,
at 578, n. 5. I know of no support for this proposition, and the
Court provides none. Moreover, this view is contrary to that of the
District Court. See 920 F. Supp. 1248, 1252-1253, n. 3 (MD Fla.
1996); id., at 1255 ("Foremost among the factors commending the
proposed resolution in this action is the consent of Florida's
Senate and House ... "); ibid. ("[P]roposed District 21, like
present District 21, is primarily a
legislative action and
is advanced ... by this court preeminently for that reason"
(emphasis added)).
587
tion conferring such authority upon the individual legislators
before the court; and as to the Senate, at least, there is some
evidence no such authority exists. The record contains a letter
from State Senator Howard C. Forman to the District Court reading
in part as follows:
"This letter is intended to communicate to you in the strongest
possible terms that the Florida Senate has not agreed to any
proposed settlement. As a constitutionally established collegial
body, the Florida Senate can agree to nothing without open debate
and action by the entire body. As a duly elected Member of the
Florida Senate, I have never waived my constitutional duty and
responsibility to participate in all Senate matters. And, under no
circumstances does any individual Senator, or group of individual
Senators, have the right to agree to anything in my name ....
"Therefore, I challenge any representation that the Florida
Senate has agreed to any proposed settlement in this case." Record
152.
But in fact all these inquiries into authorization to enter
private agreements are supererogatory. Even an
authorized
private agreement cannot serve as the basis for a federal
apportionment decree. We have said explicitly, and in unmistakable
terms, that "[f]ederal courts are
barred from intervening in
state apportionment in the absence of a
violation of federal
law."
Voinovich v.
Quilter, 507 U. S. 146, 156 (1993)
(emphasis added). As Chief Judge Tjoftat's concurrence below
correctly stated, "to enter the judgment in question, the court
must find that District 21 is unconstitutional." 920 F. Supp., at
1256-1257. I would adhere to that principle.
Finally, I find no merit in the Court's apparent suggestion,
ante, at 578-580, that appellant has no standing to complain
of this defect. A judicial decree entered without jurisdiction has
mooted his suit. Surely that is enough to sustain his appeal.
588
II
The District Court's failure to find the pre-existing District
21 unconstitutional is alone enough to require reversal of the
judgment. But the District Court committed a second error, in
failing to give the Florida Legislature the opportunity to redraw
the district before imposing a courtordered solution. We have
repeatedly emphasized that federal interference with state
districting "represents a serious intrusion on the most vital of
local functions,"
Miller v.
Johnson, 515 U. S. 900, 915
(1995), and that "reapportionmente, which] is primarily the duty
and responsibility of the State,"
Chapman v.
Meier,
420 U. S. 1, 27
(1975), "'is primarily a matter for legislative consideration and
determination,'"
Connor v.
Finch, supra, at 414
(quoting
Reynolds v.
Sims, 377 U. S. 533, 586
(1964)). "'[J]udicial relief becomes appropriate,'" we have said,
"'only when a legislature fails to reapportion according to federal
constitutional requisites in a timely fashion after having had an
adequate opportunity to do so.'"
White v.
Weiser,
supra, at 794-795 (quoting
Reynolds, supra, at 586). See
also
Growe v.
Emison, 507 U. S. 25, 33-34 (1993);
Upham v.
Seamon, 456 U. S. 37, 41-42 (1982)
(per curiam); McDaniel v.
Sanchez, 452 U. S. 130, 142
(1981);
Wise v.
Lipscomb, 437 U. S. 535, 540 (1978)
(opinion of White, J.). The District Court's failure to give
Florida a reasonable opportunity to craft its own solution after a
judicial finding that the current districting was
unconstitutional-or even (since here such a finding was never made)
after the judicial finding that a constitutional claim is "fairly
litigable"-was most assuredly error.
The District Court repeatedly referred to Plan 386 as a
"legislative solution," 920 F. Supp., at 1255, and the concurrence
described it as a "plan that the Florida legislature has proposed,"
id., at 1257. But judicial characterization does not overcome
reality. The fact that the Speaker of Florida's House of
Representatives and the President of Florida's Sen-
589
ate participated in the negotiations and consented to the
settlement does not magically convert Plan 386 into a Florida law.
The "opportunity to apportion" that our case law requires the state
legislature to be afforded is an opportunity to apportion through
normal legislative processes, not through courthouse negotiations
attended by one member of each House, followed by a court
decree.
Appellees contend that the District Court actually offered the
legislature the opportunity to redistrict, but that the legislature
declined. This contention is based upon the fact that the
representatives of the Florida Legislature informed the District
Court, prior to any proceedings on the merits, that the legislature
would likely not
sua sponte redraw the districts in response
to
Miller v.
Johnson, supra, and on the status
reports filed by the Florida Senate, see
ante, at 578, n. 5.
But the requisite opportunity that our cases describe is an
opportunity to redraw districts after the extant districts have
been ruled unconstitutional-not after a Supreme Court case has been
announced which mayor may not ultimately lead to a ruling that the
extant districts are unconstitutional. See,
e. g., Growe,
supra, at 34;
McDaniel, supra, at 142;
Reynolds,
supra, at 585-586. The State is under no obligation to
redistrict unless and until a determination has been made that
there has been a violation of federal law.
***
Because the District Court lacked the authority to mandate
redistricting without first having found a constitutional
violation; and because the District Court failed to give the State
an opportunity to redistrict on its own after notice of the
constitutional violation (or even after notice of the court's
intention to proceed with its own plan), I would reverse the
judgment of the District Court and remand for further proceedings.
Given my conclusion on appellant's first two challenges to the
District Court's judgment, I have no occasion
590
to consider the constitutionality of the court-drawn district,
Plan 386.
I respectfully dissent.
Comments
Be the first to comment
Leave a Comment