Amicus Curiae Brief — Abrams v. Johnson

Supreme Court, U.S,

FILE DO

No. 95-1460 APR 12 0%

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

UNITED STATES OF AMERICA,

Appellant,

v.

DAVIDA JOHNSON, ef al.,

Appellees.

On Appeal from the United States District Court

for the Southern District of Georgia

BRIEF AMICUS CURIAE OF THE

GEORGIA ASSOCIATION OF

BLACK ELECTED OFFICIALS

IN SUPPORT OF APPELLANT

J. GERALD HEBERT *

800 Parkway Terrace

Alexandria, VA 22302

(703) 684-3585

Counsel for Amicus Curiae

* Counsel of Record

WitLeon - Eres Paintine Co.. Inc. - 769-0006 - Wasnincron, 0.C. 80001

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..0000.0.....2....00:cccccccsevsessreseseeees

INTEREST OF AMICUS CURIAE 020000000. cccceeeceeee

INTRODUCTION AND SUMMARY OF ARGU-

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I.

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ITT.

UNDER UPHAM AND WEISER, FEDERAL

COURTS REMEDYING UNCONSTITUTION-

AL DISTRICTING PLANS MUST DEFER TO

THE STATE, AND MAY DO ONLY WHAT

IS NECESSARY TO REDRESS THE PAR-

TICULAR INJURIES CAUSED BY THE CON-

STITUTIONAL VIOLATION o.oo. cece ceceeeee

IN REMEDYING REDISTRICTING PLANS

THAT UNCONSTITUTIONALLY CLASSIFY

AND SEPARATE VOTERS ON THE BASIS

OF RACE, A FEDERAL COURT MUST RE-

DRAW LINES PREDOMINANTLY USING

TRADITIONAL NON-RACIAL DISTRICTING

CRITERIA AND MUST AVOID UNNECES-

SARILY REDISTRIBUTING POLITICAL

POWER AND ALTERING LIKELY ELEC-

TORAL OUTCOMES ..................... sesndenjicpotocsahdageaione

THE GEORGIA DISTRICT COURT ABUSED

ITS DISCRETION BY UNNECESSARILY

INJECTING ITSELF INTO THE STATE’S

POLITICAL PROCESSES, OVERTURNING

THE STATE’S SPECIFIC DISTRICTING

POLICIES, AND SELECTING A PLAN THAT

IS LIKELY TO WREAK HAVOC ON GEOR-

GIA’S CONGRESSIONAL DELEGATION,

WHEN IT COULD HAVE CURED THE VIO-

LATION WHILE RESPECTING STATE

POLITICAL POLICIES AND MINIMALLY

AFFECTING LIKELY ELECTORAL OUT-

SED ccrcercentanmesteneneensttintanngpamtitenenaneteteanenacsvererss

TABLE OF CONTENTS—Continued

Page

A. Illustrative Plan “GA-PLAN-A” Is Consti-

Outhomal .......cnincsisenmssesemimecnesaan il

B. The District Court Abused Its Discretion... 18

IV. AFFIRMANCE OF THE DECISION BELOW

WILL CONVERT SHAW LITIGATION INTO

A POWERFUL WEAPON FOR PARTISAN

AND FACTIONAL INTERESTS THAT SEEK

TO WIN IN FEDERAL COURT THE POLITI-

CAL VICTORIES THEY WERE UNABLE TO

ATTAIN IN THEIR STATE LEGISLATURES

oP ey 2) eee 19

CONCLAIBIOIN .xacccccecesssscocssessscenscssenssonsentastsnssemenentnneinnas 20

iii

TABLE OF AUTHORITIES

CASES Page

Badham v. Eu, 694 F. Supp. 664 (N.D. Cal. 1988),

summarily aff'd, 488 U.S. 1024 (1989) 19

Burns v. Richardson, 384 U.S. 73 (1966)... 5

Chapman v. Meier, 420 U.S. 1 (1975) —............... 5

Colegrove v. Green, 328 U.S. 549 (1946) | 19

Connor v. Finch, 431 U.S. 407 (1977)... 5, 6, 10

Connor v. Williams, 404 U.S. 549 (1972)... 5

Daggett v. Kimmelman, 580 F. Supp. 1259 (D.

N.J.), summarily aff'd sub nom. Karcher v.

Daggett, 467 U.S. 1222 (1984) . i atari 12

Davis v. Bandemer, 478 U.S. 109 (1986) - | 6, 19

Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406

(1977) .. 7,9

DeWitt v. Wilson, 856 F. ‘Supp. 1409 (ED. Cal.

1994), summarily aff'd in relevant part, 115

S. Ct. 2687 (1995) . aS ee

Ely v. Klahr, 403 U.S. 108 (1971) | aD er 5

Growe v. Emison, 507 U.S. 25 (1998) - ve, 5, 8,17

Hays v. Louisiana, Nos. 92-1522, 95-1241 (W.D.

La. Jan. 5, 1996) . 4

Johnson vr. DeGrandy, 114 Ss. Ct. 2647 (1994) 8-9, 16, 17

Johnson v. Miller, 864 F. Supp. 1354 (S.D. Ga.

1994), aff'd, 115 S. Ct. 2475 (1995) i, 14, 18

Karcher v. Daggett, 462 U.S. 725 (1983) 10, 15

McDaniel v. Sanchez, 452 U.S. 130 (1981) ......... 5

Miller v. Johnson, 115 S. Ct. 2475 (1995) passim

Milliken v. Bredley, 418 U.S. 717 (1974) 7

Milliken v. Bradley, 433 U.S. 267 (1977) 7

Missouri v. Jenkins, 115 S. Ct. 2038 (1995) 7

Reynolds » Sima, 377 U.S. 533 (1964) . 4

Rizzo v. Goode, 423 U.S. 362 (1976) wae 7

Rogers v. Lodge, 458 U.S. 613 (1982) 7

Roman v. Sincock, 377 U.S. 695 (1964) . ash 6

Shaw v. Reno, 509 U.S. 630, 113 S. Ct. 2816

(1993) .. passim

Sizty-seventh “Minnesota ‘State Senate v . Beene,

EE TE 5, 6

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402

I reeenene 7

Thornburg v. Gingles, 478 U.S. 30 (1986) _......... 8

iv

TABLE OF AUTHORITIES—Continued

Page

United States v. Hays, 115 8. Ct. 2431 (1995)... 10

United States «. Saylor, 322 U.S. 385 (1944) ......... 7

Upham v. Seamon, 456 U.S. 37 (1982) ................ passim

Voinovich v. Quilter, 507 U.S. 146 (1993) ............. 5, 6,7

Whitcomb v. Chavis, 403 U.S. 124 (1971) .............. 7

White v. Regester, 412 U.S. 755 (19738) —................ 7

White v. Weiser, 412 U.S. 783 (197%) ................. passim

Wise v. Lipscomb, 437 U.S. 585 (/ 97?) —................. 5

CONSTITUTIONAL AND STATUTORY

MATERIALS

MR SE Ea 4,10

Section 5 of the Voting Rights Act, 42 U.S.C.

a = a 3

Ga. Code Ann. § 21-2-501 Sirti ee ee 18

OTHER AUTHORITIES

American Leaders 1789-1991 (Colleen McGuiness

ES ee ee eer ee ee 17

Congressional Districts in the 19908 (1993) ... 14, 16

Philip D. Duncan & Christine C. Lawrence, Con-

gressional Quarterly’s Politics in America

(ee 16, 17

Charles Fried, The Supreme Court, 1994 Term—

Foreword: Revolutions?, 109 Harv. L. Rev. 13

| ae 19

Bernard Grofman, Shaw v. Reno and the Future

of Voting Rights, PS: Political Science & Poli-

)O OY OE eee ee 9

Joint Center for Political and Economic Studies,

National Roster of Black Elected Officials

(0 aS a ee 17

Pamela S. Karlan, All Over the Map: The Supreme

Court’s Voting Rights Trilogy, 1993 Sup. Ct.

i _ OO x————EEE 19

Gary King & Andrew Gelman, Systemic Conse-

quences of Incumbency Advantage in U.S. House

Elections, 35 Am. J. Pol. Sci. 110 (1991) —......... 14

v

TABLE OF AUTHORITIES—Continued

Page

Richard H. Pildes, The Politics of Race, 108 Harv.

OS 4 FEAST a ea 19

Quiet Revolution in the South (Chandler Davidson

& Bernard Grofman eds., 1994) 14

Mark Sherman, State Redistricting, Atlanta J.

& Const., July 16, 1995, at 2G 14

U.S. Dep’t of Commerce, Bureau of the Census,

Voting and Registration in the Election of No-

vember 1988, Ser. P-20, No. 440 (1989) 14

5 jae

Mae it tek 8

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er See eae

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BRIEF AMICUS CURIAE OF THE

GEORGIA ASSOCIATION OF

BLACK ELECTED OFFICIALS

IN SUPPORT OF APPELLANT

INTEREST OF AMICUS CURIAE

The Georgia Association of Black Elected Officials

(“GABEO”) is an organization of more than 700 African-

Americans elected to public office in Georgia.’ Its mem-

bers include three United States Representatives and forty-

two state legislators, as well as hundreds of county

and municipal officials. Amicus GABEO and its members

have a direct interest in the legal standards that will

govern federal district courts in the remedial phase of

cases under Shaw v. Reno, 113 S. Ct. 2816 (1993), and

Miller v. Johnson, 115 S. Ct. 2475 (1995). If remedial

courts are allowed to exercise unfettered discretion,

amicus fears that the power to draw congressional and

legislative districts will shift dramatically away from the

States, and partisan and factional interests of every stripe

will seek to attain in federal court the political victories

they were unable to win in their state legislatures or at

the polls.

INTRODUCTION AND SUMMARY OF ARGUMENT

In a long line of cases culminating in White v. Weiser,

412 U.S. 783 (1973), and Upham vy. Seamon, 456 US.

37 (1982), this Court has established principles and

procedures to constrain the discretion of federal courts at

the remedial phase of redistricting litigation. The Upham-

Weiser procedure gives the state legislature broad latitude

to cure a judicially established violation. But if the State

fails to produce a legal redistricting plan, the federal

court, in fashioning a remedy, must begin with the State’s

invalid plan and may alter only those aspects of it that

1 Letters of consent to the filing of this brief by al! parties

have been filed with the Clerk.

2

the court has specifically found to be unconstitutional

or illegal. All other aspects of the State’s plan must be

left untouched, as they are presumed to reflect the legiti-

mate policy choices of the State and its citizens. See

Upham, 456 U.S. at 40-44 (per curiam) (summarily

reversing three-judge District Court’s remedial order);

Weiser, 412 U.S. at 793-97.

The court below carved out an unprecedented and un-

warranted exception to the Upham-Weiser standard. J.S.

App. 2a-6a. The three-judge District Court had declared

unconstitutional the Second and Eleventh Districts in

Georgia’s 1992 congressional plan and initially had indi-

cated that, if the legislature failed to remedy the viola-

tions, the court would adopt a plan “as narrowly con-

ceived as possible to satisfy constitutional requirements

and [to] cause minimal disruptions to the political proc-

esses of the State of Georgia.” Order, Aug. 2, 1995;

accord Johnson v. Miller, 864 F. Supp. 1354, 1393 (S.D.

Ga. 1994) (per curiam), aff'd, 115 §. Ct. 2475 (1995).

However, when the legislature failed to enact a substitute

plan, the District Court (with one judge dissenting)

reversed course and held that the State’s 1992 plan could

not form the basis for a proper remedy because it “more

closely reflect{ed]” the intentions of the United States

Department of Justice than those of the Georgia General

Assembly. J.S. App. Sa; see id. at 4a-6a, 12a; see also

id. at 13a & n.9 (also refusing to base its remedy on the

State’s 199] plan, even though the General Assembly

enacted that plan before the Justice Department became

involved in Georgia's redistricting process ).

Having freed itself from the constraints that Upham

and Weiser normally uapose on a federal remedial court,

the two-judge majority proceeded to redraw all eleven

of Georgia’s congressional districts, to pit two pairs of

incumbents against each other (thus creating two open

seats), and to move a fifth incumbent to a new district.

In doing so, the District Court ran roughshod over the

specific criteria the Genera] Assembly had enunciated in

its 1991 redistricting guidelines and had embodied in its

EEO

3

1991 and 1992 congressional maps. J.S. App. la-29a

(remedial order and opinion), 41a-43a (court-imposed

plan); see id. at 6a (conceding that changes to the 1992

map are “drastic”); see also Miller, 115 S. Ct. at 2483

(citing General Assembly's express criteria, including

“preserving the core|s] of existing districts” and “avoid-

ing contests between incumbents” ).

The District Court failed to grasp the relevance of the

key analytical distinction between vote-dilution and Shaw

claims. A vote-<dilution claim seeks to correct an im-

balance in political and electoral opportunity. By neces-

sity, a remedy that fully cures that imbalance and offers

equal opportunity for all voters will probably alter the

results of the next election. A Shaw claim focuses upon

an entirely different problem—the classification and sepa-

ration of voters on the basis of race. A remedy that

fully cures a Shaw violation, therefore, need not have any

effect on electoral outcomes. Indeed, a federal remedial

court in a Shaw case abuses its equitable discretion if it

goes out of its way to redistribute political power by

dramatically enhancing the voting strength of some groups

at the expense of others, forcing particular incumbents to

run against each other, and effectively “picking winners

and losers.” The court below committed precisely that

error.

If this Court affirms the judgment below, the Upham-

Weiser constraints on federal remedial courts will prove

largely meaningless in Shaw cases. Wherever the Justice

Department, acting pursuant to Section 5 of the Voting

Rights Act, 42 U.S.C. § 1973c, is said to have “tainted”

or “subvert{[ed]” the districting process, J.S. App. 4a-Sa,

12a, federal remedial courts will be free to shunt aside

legitimate state policy decisions and to redraw districts

any way they see fit. Thus, Shaw litigation will give rise

to a new and extraordinarily lenient remedial standard

which will invite all manner of partisan and factional

interests to seek from the federal courts those political

victories that they were unable to win in the halls of

4

their state legislatures or at the polls. This enlargement

of the federal judicial role is unwarranted, and should not

stand. This Court should act now by summarily reversing

the District Court’s judgment and ordering prompt imposi-

tion of an appropriate remedial plan.

ARGUMENT

This Court has repeatedly stated that Shaw claims are

“analytically distinct” from vote-dilution claims, Shaw,

113 S. Ct. at 2830; Miller, 115 S. Ct. at 2485, but has

had no occasion to explain how that distinction should

affect a federal district court’s remedial actions in a Shaw

case. In the last four months, three-judge courts in

Georgia and Louisiana have—in rather different ways—

turned their backs on the remedial procedure established

by this Court in Upham and Weiser.’ This case provides

a clean vehicle for reaffirming Upham and Weiser and

explaining their relevance to Shaw cases.

I. UNDER UPHAM AND WEISER, FEDERAL COURTS

REMEDYING UNCONSTITUTIONAL DISTRICTING

PLANS MUST DEFER TO THE STATE, AND MAY

DO ONLY WHAT IS NECESSARY TO REDRESS

THE PARTICULAR INJURIES CAUSED BY THE

CONSTITUTIONAL VIOLATION.

The Constitution allocates to the States the primary

responsibility for reapportionment. U.S. Const., art. I,

§ 2; see Growe v. Emison, 507 U.S. 25, 34 (1993).

Since its decision in Reynolds v. Sims, 377 U.S. 533

(1964), this Court has consistently recognized that “re-

apportionment is primarily a matter for legislative con-

sideration and determination, and that judicial relief be-

comes appropriate only when a legislature fails to re-

apportion according to federal constitutional requisites in

2In Hays v. Louisiana, Nos. 92-1522, 95-1241, slip op. at 1-2,

24-27 (W.D. La. Jan. 5, 1996) (per curiam), the three-judge

District Court expressly refused to give the state legislature any

opportunity to redraw its districting plan.

5

a timely fashion after having had an adequate opportunity

to do so.” Id. at 586."

This Court has established a standard procedure to

constrain the remedial discretion of federal courts that

have invalidated districting plans. Upham, 456 U.S. at

40-44; Weiser, 412 U.S. at 793-97. After a district court

declares a plan invalid, its first step ordinarily is to give

the State a reasonable opportunity to draw a substitute.

Weiser, 412 U.S. at 794-95. As Justice Powell explained,

a plan enacted by the legislature is “likely to reflect a

State’s political policy and the will of its people more

accurately than a decision by unelected federal judges.”

Connor v. Finch, 431 U.S. 407, 431 (1977) (dissenting

opinion) (citing Chapman v. Meier, 420 U.S. | (1975)).*

If the State enacts no substitute plan, or if the plan

it enacts is itself invalid, the court’s second step is to

request that the parties and amici submit proposed re-

* See Burns v. Richardson, 384 U.S. 73, 84-85 (1966); Ely vr.

Klahr, 403 U.S. 108, 114 & n.6 (1971); Connor v. Williams, 404

U.S. 549, 552 n.4 (1972); Sizty-seventh Minnesota State Senate rv.

Beens, 406 U.S. 187, 196 (1972) (per curiam); Weiser, 412 U.S.

at 794-95; Wise v. Lipscomb, 437 U.S. 535, 539 (1978) (plurality

opinion) ; McDaniel v. Sanchez, 452 U.S. 130, 138, 150 n.30 (1981);

Upham, 456 U.S. at 41-42; Growe, 507 U.S. at 34; Voinovich v.

Quilter, 507 U.S. 146, 156 (1993); see also Miller, 115 S. Ct. at

2488; id. at 2500 (Ginsburg, J., dissenting) (Both the majority

and the dissenters “agree that federalism and the slim judicial

competence to draw district lines weigh heavily against judicial

intervention in apportionment decisions; as a rule, the task should

remain within the domain of state legislatures.” ).

‘In attempting to remedy its previous constitutional violation,

the legislature has very broad discretion and is free to reconsider

its goals and policies. For exai ‘ple, a legislature certainly could

decide that it no longer wanted to preserve the cores of existing

districts or to avoid contests between incumbents. See Burns,

384 U.S. at 83-85, 89 n.16. So long as the State enacts a new plan

that remedies the violation and complies with the applicable federal!

and state constitutional and statutory provisions, it will become

the governing law. Wise, 437 U.S. at 540 (plurality opinion) ;

Weiser, 412 U.S. at 795; Burns, 384 U.S. at 85.

6

medial plans. See, e.g., Upham, 456 U.S. at 38. The

present case involves no dispute as to these first two steps.

The third step—which is at issue here—is for the

court either to choose among the litigants’ proposed

plans or to draw its own remedial map (often with the

help of a special master). But the district court’s discre-

tion at this third step is far more constrained than is the

legislature’s at the first step. See Voinovich v. Quilter,

507 U.S. 146, 156-57 (1993); see also Connor v. Finch,

431 U.S. at 415 (“[The task of] a federal court .. .

left with the unwelcome obligation of performing in the

legislature’s stead, while lacking the [legislature’s] polit-

ical authoritativeness, . . . is inevitably an exposed and

sensitive one that must be accomplished circumspectly,

and in a manner ‘free from any taint of arbitrariness or

discrimination.””) (quoting Roman v. Sincock, 377 U.S.

695, 710 (1964) ); cf. Davis v. Bandemer, 478 U.S. 109,

147 (1986) (O’Connor, J., concurring in judgment)

(“Federal courts [should not] attempt to recreate the

complex process of legislative apportionment in the con-

text of adversary litigation in order to reconcile the com-

peting claims of political, religious, ethnic, racial, occu-

pational, and socioeconomic groups.”). A federal “court

seeking to remedy an unconstitutional apportionment

[must] right the constitutional wrong while minimizing

disturbance of legitimate state policies.” Sixty-seventh

Minresota State Senate v. Beens, 406 U.S. 187, 202

(1972) (Stewart, J., dissenting).

In essence, the remedial court must differentiate those

aspects of the State’s plan that are unconstitutional from

those that reflect the State’s legitimate political policies,

and then eliminate the former while minimizing interference

with the latter. See Upham, 456 U.S. at 43 (“An appro-

priate reconciliation of [the requirements of the Constitu-

tion with the goals of state political policy] can only be

reached if the district court’s modifications of a state

plan are limited to those necessary to cure any constitu-

7

tional or statutory defect.”); Weiser, 412 U.S. at 795

(“In fashioning a reapportionment plan or in choosing

among plans, a district court should not pre-empt the legis-

lative task nor ‘intrude upon state policy any more than

necessary.”") (quoting Whitcomb v. Chavis, 403 U.S.

124, 160 (1971)).

In devising a narrowly tailored remedy—making only

those changes “necessary to cure [the] . . . defect,”

Upham, 456 U.S. at 43 (emphasis added )—courts focus

upon the concrete, particularized “injury in fact” caused

by the invalid districting plan.” In a vote-dilution case,

voters who belong to a particular group claim to have

been illegally disadvantaged by a districting plan. Their

injury is, simply put, that the “wrong” representative was

elected because the plan improperly enhanced the political

strength of one identifiable group of voters, at the ex-

pense of some other group to which the plaintiffs belong.

Cf. United States v. Saylor, 322 U.S. 385, 386, 389 (1944)

(right to vote protects against the diluting effect of ballot-

box stuffing). For example, if voting is racially polarized

and members of a sizable, predominantly black com-

munity have been fragmented and dispersed among sev-

eral districts, the preferences and interests of whites will

be systematically overrepresented, at the expense of blacks.

See White v. Regester, 412 U.S. 755, 765-70 (1973):

see also Voinovich, 507 U.S. at 154-55 (minority vote-

dilution claims focus “exclusively on the consequences”

5“(T)he nature of the .. . remedy is to be determined by the

nature and scope of the constitutional violation. ... The remedy

must therefore be related to the condition alleged to offend the

Constitution ... .” Missouri v. Jenkins, 115 S. Ct. 2038, 2049

(1995) (citations and internal quotation marks omitted); see

Rogers v. Lodge, 458 U.S. 613, 628 (1982); see also Dayton Bd. of

Educ. v. Brinkman, 483 U.S. 406, 419-20 (1977); Milliken v.

Bradley, 433 U.S. 267, 280-82 (1977) ; Rizzo v. Goode, 423 U.S. 362,

378-80 (1976); Milliken v. Bradley, 418 U.S. 717, 738, 744 (1974) ;

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16

(1971).

of redistricting and on “electoral outcomes”); Growe,

507 U.S. at 40-41 (minority vote-dilution plaintiffs must

prove their group has the potential to elect its preferred

representative in a new, remedial district but is unable

to do so under the challenged districting plan); Thorn-

burg v. Gingles, 478 U.S. 30, 93 (1986) (O’Connor, J.,

concurring in judgment) (“electoral success” is “the linch-

pin of vote dilution claims” ).

Any cure that adequately reflects different groups’ un-

diluted voting strength—e.g., uniting a previously frag-

mented black community within a single district—will

likely alter the outcome of the next election. The federal

court’s remedy literally may result in the retirement or

defeat of a particular incumbent and the election of a new

candidate preferred by those minority voters whose polit-

ical strength the previous plan diluted. Indeed, that is the

very point of the litigation: to change the composition

of the relevant governing body by altering electoral re-

sults. As Point II explains, Shaw claims are entirely dif-

ferent, because they simply do not address electoral

outcomes.

Il. IN REMEDYING REDISTRICTING PLANS THAT

UNCONSTITUTIONALLY CLASSIFY AND SEPA-

RATE VOTERS ON THE BASIS OF RACE, A FED-

ERAL COURT MUST REDRAW LINES PREDOMI-

NANTLY USING TRADITIONAL NON-RACIAL

DISTRICTING CRITERIA AND MUST AVOID

UNNECESSARILY REDISTRIBUTING POLITICAL

POWER AND ALTERING LIKELY ELECTORAL

OUTCOMES.

Shaw claims are not reverse discrimination claims.

Here, for example, plaintiff-appellees do not argue that

Georgia’s 1992 plan minimized or diluted the voting

strength of whites or of any other racial group. Nor could

they. Whites constitute 71% of the State’s total popu-

lation and effectively control 73% of its congressional

seats. See Shaw, 113 S. Ct. at 2824: see also Johnson

9

v. DeGrandy, 114 S. Ct. 2647, 2664 (1994) (O'Connor,

J., concurring).

Rather, the claim here is that the State injured voters

when it disregarded its traditional districting criteria and

instead used race as the predominant motivating factor

in drawing district lines. Specifically, the District Court

found that Georgia had drawn the boundaries of its

Eleventh and Second Congressional Districts so that blacks

fell on one side of the lines and whites on the other—

rather than following preexisting lines that define recog-

nizable geographic or territorial units, such as counties,

municipalities, townships, communities, neighborhoods,

census tracts, precincts, media markets, or natural (or

man-made) geographic regions.” The plaintiffs in a typical

Shaw case allege that the State’s race-based line-drawing

—intentionally placing black voters in one district and

white voters in a separate district—creates an implied

racial classification which (like an express racial classifi-

cation) stigmatizes persons on the basis of their race

and therefore is presumptively unconstitutional. See Shaw,

113 S. Ct. at 2824-28. Any stigmatic harm proven in

a Shaw case flows from this implied racial classification—

not from the districting plan’s effects on electoral outcomes.

The cure for a Shaw violation is to “fix” the uncon-

Stitutional district’s boundary, so that it is not excessively

based on race in substantial disregard of traditional dis-

tricting criteria (such as respect for the preexisting borders

of counties, municipalities, communities of interest, or

other recognizable geographic units). See Miller, 115 S.

Ct. at 2488; id. at 2497 (O'Connor, J., concurring); cf.

Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 420

(1977). Such a narrowly tailored cure would remedy the

* See Bernard Grofman, Shaw v. Reno and the Future of Voting

Rights, PS: Political Science & Politics, Mar. 1995, at 27, 30-31

(legislators should be able to explain to their constituents the

boundaries of their districts in simple, commonsense terms, based

on recognizable geographic referents) .

10

“stigmatic harm” caused by the racial classification: once

the remedy is implemented, voters’ placement within or

without a particular district would be explained by their

residence in a particular county (or municipality or com-

munity) rather than by the State’s unconstitutional use

of race. See United States v. Hays, 115 S. Ct. 2431,

2433, 2436-37 (1995); Shaw, 113 S. Ct. at 2824, 2832.’

The process of redrawing an unconstitutional majority-

minority district will usually reduce the district's minority

population and increase its white population. Often, the

district will be transformed into a “majority-white” dis-

trict, albeit one with a sizable minority population.” Some-

times, the reduction in the minority group’s percentage of

the electorate will be so great that the minority-preferred

incumbent will retain no realistic potential for reelection.

Where such a result is unavoidable, the court may have

no choice.

But in many other cases, such as this one, the district

court will be faced with two or more proposed remedies

7 Given the strict “one person, one vote” requirement mandated

by Article I, Section 2 of the Constitution, see Karcher v. Daggett,

462 U.S. 725, 730-44 (1983), it is impossible for the entire boundary

of each congressional district to follow preexisting lines. See

Connor v. Finch, 481 U.S. at 419; id. at 429 (Blackmun, J., con-

curring in judgment). But a district is presumptively unconsti-

tutional if the State (or federal remedial court) relied on race

in substantial disregard of traditional districting principles when

placing “a significant number of voters within or without [that]

particular district.” Miller, 115 S. Ct. at 2488 (emphasis added) ;

see id. at 2497 (O’Connor, J., concurring) (reliance on race “in

substantial disregard” of traditional districting principles triggers

strict scrutiny).

8 The creation of such a district, where the number of white

voters equals or narrowly exceeds the number of black voters, will

redress the “representational harms” this Court warned against in

Shaw, 113 8. Ct. at 2827, and Hays, 115 S. Ct. at 2436. See also

Miller, 115 S. Ct. at 2485; Shaw, 118 S. Ct. at 2828. Absent severe

racial polarization, in a district with roughly equal numbers of

white voters and black voters, no elected official could survive by

appealing solely to members of one racial group.

11

(either submitted by the litigants, or drawn by the court

or its special master), each of which draws district lines

without excessively relying on race and largely adheres

to the State’s traditional districting principles. Faced with

such a choice, the court must minimize its intrusion into

the State’s political processes by rejecting the plans that

would be most disruptive to electoral outcomes. In the

Shaw context, unlike the vote-dilution context, the harm

has nothing to do with electoral results, and therefore any

unnecessary interference with those results would consti-

tute a clear abuse of the federal court's equitable

discretion.

Ill. THE GEORGIA DISTRICT COURT ABUSED ITS

DISCRETION BY UNNECESSARILY INJECTING

ITSELF INTO THE STATE’S POLITICAL PROC-

ESSES, OVERTURNING THE STATE’S SPECIFIC

DISTRICTING POLICIES, AND SELECTING A

PLAN THAT IS LIKELY TO WREAK HAVOC

ON GEORGIA’S CONGRESSIONAL DELEGATION,

WHEN IT COULD HAVE CURED THE VIOLATION

WHILE RESPECTING STATE POLITICAL POLI-

CIES AND MINIMALLY AFFECTING LIKELY

ELECTORAL OUTCOMES.

The District Court rejected several proper remedial

plans submitted by defendant-intervenors and their amici,

and instead reached out to create a new map, from

scratch, that largely ignored the State’s districting criteria

and could unnecessarily wreak havoc on the composition

of Georgia’s congressional delegation.

A. Illustrative Plan “GA-PLAN-A” Is Constitutional.

One of the remedial plans before the District Court was

“GA-PLAN-A,” the “Illustrative Plan” submitted by

defendant-intervenor the United States. J.S. App. 44a

(map). GA-PLAN-A’s congressional districts are con-

tiguous, geometrically and functionally compact, and

respectful of political subdivisions and of communities

12

defined by actual shared interests, including those “com-

munities that have a particular racial makeup.” Miller,

115 S. Ct. at 2488, 2490. The court conceded that GA-

PLAN-A contains a lower overall population deviation.

(0.19% ) than the court-imposed plan (0.35%).” JS.

App. 6a-8a; see Weiser, 412 U.S. at 786-88, 796-97 (re-

versing district court order rejecting the proposed reme-

dial plan with the lowest population deviation); Daggett

v. Kimmelman, 580 F. Supp. 1259, 1264-65 (D.N.J.)

(three-judge court) (adopting the proposed remedial

plan with the lowest population deviation, even though it

split two municipalities), summarily aff'd sub nom. Kar-

cher v. Daggett, 467 U.S. 1222 (1984).

But the court rejected GA-PLAN-A and called it “con-

stitutionally defective” solely on the ground that it “split

numerous counties outside of the metropolitan Atlanta

area, apparently for racial reasons.” J.S. App. 8a & n.4

(emphasis added). The District Court’s characterization

of GA-PLAN-A is blatantly incorrect. In fact, it splits

only two of the 139 counties outside the metropolitan

Atlanta area, see J.S. App. 44a, and primarily for equal-

population and other non-race-based reasons.” If merely

* Five of the districts in the court-imposed plan—-but none in

GA-PLAN-A—deviate more than 0.10% from the ideal district

population. Compare J.S. App. 48a with id. at 45a.

% GA-PLAN-A splits Bibb and Muscogee Counties, which are

two of the four most heavily and densely populated Georgia coun-

ties outside the metropolitan Atlanta area. In Bibb County, GA-

PLAN-A’s district lines are neither bizarre nor irregular, and its

Eleventh District does not split any census tracts. Cf. DeWitt v.

Wilson, 856 F. Supp. 1409, 1411, 1413-15 (E.D. Cal. 1994) (three-

judge court) (upholding California’s congressional! districts against

a Shaw challenge in part because they were built with undivided

census tracts), summarily aff'd in relevant part, 115 S. Ct. 2637

(1995). And splitting Muscogee County is necessary to keep intact

the Army’s Fort Benning, which lies on both sides of the Muscogee-

Chattahoochee County border. By contrast, the District Court's

blind allegiance to county boundaries led it to bisect Fort Ben-

ning—the State’s largest military base and far and away the

largest employer in the region.

13

splitting those two counties renders GA-PLAN-A “con-

stitutionally defective” under Shaw and Miller, then ap-

plication of the Miller Court's standard surely will “throw

into doubt” dozens of the Nation’s 435 congressional dis-

tricts. Miller, 115 S. Ct. at 2497 (O'Connor, J., con-

curring); see id. (Shaw subjects only “extreme instances

of gerrymandering” to strict scrutiny). Because none of

the districts in GA-PLAN-A can trigger strict scrutiny

under Shaw or Miller, as properly understood, that plan

would redress the constitutional infirmities in Georgia's

congressional map no less than the court-imrosed scheme.

B. The District Court Abused Its Discretion.

In choosing between GA-PLAN-A and its own plan,

then, the court should have considered only two ques-

tions. First, which plan is more faithful to the legitimate

districting criteria enunciated in the General Assembly's

1991 guidelines and embodied in the State's now-

invalidated plan? Second, which plan is less disruptive

to the likely outcomes of Georgia's 1996 congressional

elections? On both points, GA-PLAN-A is demonstrably

superior to the court-imposed scheme, and the District

Court therefore abused its discretion when it selected the

latter over the former.

GA-PLAN-A represents a “judicious and proper bal-

ancing” of the General Assembly's districting criteria.

DeWitt v. Wilson, 856 F. Supp. 1409, 1413 (E.D. Cal.

1994) (three-judge court), summarily aff'd in relevant

part, 115 S. Ct. 2637 (1995). It fairly and legally re-

flects the voting strength of Georgia's minority citizens

and of its white citizens, it preserves the cores of all

eleven districts, it avoids unnecessary contests between

incumbents, Miller, 115 S. Ct. at 2483 (reciting the Gen-

eral Assembly’s 1991 redistricting guidelines), and it

would not massively disrupt Georgia’s congressional elec-

tion results.

GA-PLAN-A leaves the homes of each of the eleven

Representatives in a separate district, thus avoiding un-

14

necessary contests between incumbents, and provides each

of the incumbents at least some realistic opportunity to

compete for reelection." With respect to the two dis-

tricts declared unconstitutional, GA-PLAN-A_ redraws

those districts such that white voters outnumber black

voters in both new districts.” But, in the newly con-

figured districts, both incumbents (Representatives Mc-

Kinney and Bishop) would stand at least a fighting

chance of reelection because they have the advantage of

incumbency,” that advantage would not be offset by

1! Specifically, the Eleventh District's Congresswoman, Cynthia

A. McKinney, an African-American Democrat, could run for re-

election in a newly configured Eleventh District that contains the

core of her old Eleventh, a 51.0% black voting-age population, and

the home of no other incumbent Member of Congress. The Second

District's Congressman, Sanford D. Bishop, Jr., also an African-

American Democrat, could run for reelection in a newly configured

Second District that contains the core of his old Second and a

42.0% black voting-age population, and that also contains the home

of no other incumbent.

12 GA-PLAN-A’s Eleventh and Second Districts would likely

contain a significantly greater number of white voters than black

voters because in Georgia, as in most of the South, whites register

and turn out at a higher rate than blacks. As of 1990, blacks

constituted about 25% of Georgia's voting-age population, but

only 22% of its registered voters and less than 21% of its actual

electorate. See U.S. Dep't of Commerce, Bureau of the Census,

Voting and Registration in the Election of November 1988, Ser.

P-20, no. 440 (1989); Congressional Districts in the 1990s 827

(1998); Quiet Revolution in the South 102 (Chandler Davidson &

Bernard Grofman eds., 1994) ; see also Johnson, 864 F. Supp. at 1392

(blacks are 60.4% of the voting-age population but only 57% of the

registered voters in Georgia's Eleventh District) ; Mark Sherman,

State Redistricting, Atlanta J. & Const., July 16, 1995, at 2G

(blacks are 52.3% of the voting-age population but only 45% of

the registered voters in the Second District) .

13 Political scientists estimate that the incumbency advantage,

over the last few decades, has varied between 6 and 12 percentage

points. See, e.g., Gary King & Andrew Gelman, Systemic Conse-

quences of Incumbency Advantage in U.S. House Elections, 35 Am.

J. Pol. Sei. 110, 112-16 (1991).

15

having to run against another incumbent, and most of

the voters in the new districts would already be familiar

with (and represented by) Representative McKinney or

Bishop. And there is no doubt that the other nine in-

cumbents, each of whom could run in a largely familiar

district, without facing another incumbent, and without

having to move his home, would not be greatly damaged

or aided by GA-PLAN-A.

By contrast, the court-imposed plan—supposedly de-

signed to remedy a constitutional violation that does not

focus on electoral outcomes ‘‘\— ignored the State's legiti-

mate political policies and could needlessly wreak havoc

on the composition of its congressional delegation. Al-

though Georgia had not placed two Members of Congress

in the same district since 1931 (when federal census

results shrunk Georgia's congressional delegation from

twelve to ten and thereby forced the pairing of incum-

bents), the court below dismissed Georgia's policy of

“avoiding contests between incumbents,” Miller, 115 S.

Ct. at 2483, as “inherently [too] political” and “not [a]

predominant factor[] the state has considered in the past.”

J.S. App. 14a n.10, 18a. Compare Karcher v. Daggett,

462 U.S. 725, 740 (1983) (“avoiding contests between

incumbent Representatives” is a legitimate state objec-

tive). The court then went on to place four incumbents

in two districts, thereby unnecessarily creating two open

seats.

The District Court claimed that, by basing ten of its

districts on Georgia’s 1/982 plan, J.S. App. 10a, 13a-14a,

17a-18a, it was being faithful to the State’s announced

policy of “preserving the core[s] of existing districts,”

Miller, 115 S. Ct. at 2483 (emphasis added). As this

Court explained in Weiser, however, that particular policy

is “aimed at maintaining existing relationships between

™ Although plaintiff-appellee George L. DeLoach is the white

Democrat who McKinney narrowly defeated in the 1992 runoff

election, he brought the present action in his capacity as a voter,

not as a failed candidate for Congress.

16

incumbent congressmen and their constituents and pre-

serving the seniority the members of the State’s delega-

tion have achieved in the United States House of Repre-

sentatives.” 412 U.S. at 791. The State’s policy aims

could hardly be furthered by a court-imposed scheme that

defers to a plan from the /980s and places in jeopardy

the seats of nearly half the members of Georgia’s present

congressional delegation.

Two of the Members of Congress placed in districts

with other incumbents are Representatives McKinney and

Bishop. When they first ran for Congress in 1992, their

victories in the Democratic runoff elections were narrow,

as their white opponents received overwhelming support

from voters in heavily white precincts. See U.S. Exh. 24,

tables 3, 4, 10. In 1994, both were renominated without a

runoff. In the 1994 general elections, Congresswoman

McKinney and Congressman Bishop garnered 65.6% and

66.2% of the vote, respectively, even though the voting-

age populations of their districts were only 60.4% and

52.3% black, respectively. Philip D. Duncan & Christine

C. Lawrence, Congressional Quarterly’s Politics in Amer-

ica 344, 365 (1995); Congressional Districts in the

1990s 203 (1993). Their success was doubtless attrib-

utable both to the advantages of incumbency and to the

lessening of racial polarization, as once-reluctant white

voters saw—for the first time—that their interests could

be vigorously represented in Washington by African-

American Members of Congress. Thus, it is clear that in

1996 Congresswoman McKinney and Congressman

Bishop—with two more years of seniority and public

service behind them, and with their proven willingness

“to pull, haul, and trade to find common political

ground,” DeGrandy, 114 S. Ct. at 2661—could poten-

tially be elected by the narrowly majority-white electorates

1S Atlanta’s fifth-term Congressman, John Lewis, received 69.1%

of the vote in a district whose voting-age population was only

57.5% black. Duncan & Lawrence, at 351; Congressional Districts

in the 1990s, at 203.

17

in the reconfigured Eleventh and Second Districts of GA-

PLAN-A.”*

The court-imposed plan, however, places Congress-

woman McKinney and Congressman Bishop in districts

whose voting-age populations are only 32.8% and 22.5%

black, respectively." No African-American has ever been

elected in Georgia for Congressman, State Senator, or

State Representative from any district with such a low

black percentage. See Joint Center for Political and

Economic Studies, National Roster of Black Elected Offi-

cials (1995). And no African-American has ever been

elected to Congress from such a district in any of the

eleven former States of the Confederacy. See American

Leaders 1789-1991 (Colleen McGuiness ed., 1991):

Duncan & Lawrence passim. Breaking these unfortunate

precedents will be particularly difficult for a candidate

who must hurdle the twin obstacles of a majority-vote

Amicus is not arguing here for the creation of so-called

“influence districts” in which minority voters are sufficiently nu-

merous to influence, but not alter, election results. See Growe.

507 U.S. at 41 n.5; ef. J.S. App. 28a-24a. Rather, amicus is simply

pointing out the empirical fact that, although Georgia’s racial

cleavages often “necessitate majority-minority districts to ensure

equal political and electoral opportunity,” in GA-PLAN-A’s Elev-

enth and Second Congressional Districts—where white voters would

constitute a narrow majority of the electorate—African-American

citizens might be “able to form coalitions with [white] voters . . .

to elect candidates of their choice,” particularily when those candi-

dates are incumbent Members of Congress who have consistently

striven to represent all of their constituents regardless of race.

DeGrandy, 114 S. Ct. at 2661. As Justice Kennedy noted in

DeGrandy, “(t)he assumption that majority-minority districts elect

only minority representatives, or that majority-white districts elect

only white representatives, is false as an empirical matter.” /d.

at 2665 (concurring opinion) (emphases added).

'? The District Court credited expert statistical testimony show-

ing that a district with no incumbent will elect a black candidate

if its population of registered voters is 55% black, but will elect

a white candidate if that figure falls to 50% or less. See J.S. App.

25a-26a ; cf. J.S. 18-22.

18

runoff requirement for the Democratic nomination, Ga.

Code Ann. § 21-2-501, followed by a general election

campaign against a Republican incumbent Member of

Congress.

Appellees may argue that Congresswoman McKinney —

and Congressman Bishop somehow “deserve” this fate

because their incumbencies are “tainted” by the constitu-

tional error that the Justice Department forced upon

Georgia’s General Assembly. See J.S. App. 4a. That

argument, however, ignores the facts. At any time in the

year and a half since the court below struck down Con-

gresswoman McKinney's district, the Georgia General

Assembly could have mooted this case by redrawing the

State’s congressional map, adopting any legal configura-

tion it desired. It consistently refused to do so, even

when the District Court indicated that, if the legislature

failed to act, it would adopt a “narrowly conceived” plan

with “minimal disruptions to the political processes of the

State of Georgia.” Order, Aug. 2, 1995; accord Johnson,

864 F. Supp. at 1393. By repeatedly declining to adopt

any substitute plan, much less one resembling the plan im-

posed by the court below, the State of Georgia has

demonstrated its unwillingness to undermine Congress-

woman McKinney, Congressman Bishop, or the constitu-

ents—black and white—who they so ably represent.

Georgia’s three African-American Representatives have

begun attaining considerable seniority in the House,”

and their service to the State of Georgia and its citizenry

has earned each of them the electoral support of a strong

majority of black voters and of a significant and growing

minority of white voters within their current districts.

Indeed, their performance as public servants has chal-

lenged racial stereotypes held by whites and blacks alike,

and has even begun to reverse the racial polarization that

18 In Georgia’s House delegation, Congressman Lewis is the second

most senior member (behind Speaker Newt Gingrich), and Con-

gresswoman McKinney and Congressman Bishop are tied for third.

19

has marred politics in the State of Georgia for more than

two centuries. Their efforts to “carry us [toward] the goal

of a political system in which race no longer matters—

a goal that the Fourteenth and Fifteenth Amendments

embody, and to which the Nation continues to aspire,”

Shaw, 113 S. Ct. at 2832—must not be jeopardized by

an overzealous federal district court that got itself need-

lessly entangled in the “political thicket.” Colegrove v.

Green, 328 U.S. 549, 556 (1946) (opinion of Frank-

furter, J.).

IV. AFFIRMANCE OF THE DECISION BELOW WILL

CONVERT SHAW LITIGATION INTO A POWER-

FUL WEAPON FOR PARTISAN AND FACTIONAL

INTERESTS THAT SEEK TO WIN IN FEDERAL

COURT THE POLITICAL VICTORIES THEY WERE

UNABLE TO ATTAIN IN THEIR STATE LEGIS-

LATURES OR AT THE POLLS.

Unbridled discretion on the part of Shaw remedial

courts will invite manipulation by partisan and factional

interests. Because it is exceedingly difficult to attack a

redistricting scheme on non-racial grounds, see, e.g., Davis

v. Bandemer, 478 U.S. at 132-33, 139 (plurality opinion);

Badham v. Eu, 694 F. Supp. 664, 667-72 (N.D. Cal.

1988) (three-judge court), summarily aff'd, 488 U.S.

1024 (1989), political parties, factions, and interest

groups have an incentive to couch their grievances in

racial terms.” Absent strict limits on remedial discretion

in Shaw cases, partisan manipulators surely will seize the

opportunity to gain from federal courts what they were

unable to gain through the State’s normal political proc-

esses. With ongoing Shaw cases attacking congressional

1 See Pamela 8. Karlan, All Over the Map: The Supreme Court’s

Voting Rights Trilogy, 1993 Sup. Ct. Rev. 245, 251; see also Charles

Fried, The Supreme Court, 1994 Term—Foreword: Revolutions?,

109 Harv. L. Rev. 13, 66 n.355 (1995); Richard H. Pildes, The

Politics of Race, 108 Harv. L. Rev. 1359, 1378-90 (1995) (book

review).

20

districts not only in Georgia and Louisiana, but also in

Florida, Illinois, New York, North Carolina, Texas, and

Virginia, the impact of this Court’s decision in this case

will quickly be felt throughout the Nation. Unless this

Court expressly requires adherence to the familiar prin-

ciples of Upham and Weiser, the remedial phases of Shaw

cases will become political free-for-alls, and a doctrine

born of the desire to constrain the Federal Government’s

“shortsighted and unauthorized” intrusions into state poli-

tics, Miller, 115 S. Ct. at 2494, will instead have opened

the way to the wholesale federalization of the redistricting

process.

CONCLUSION

This Court should summarily reverse the judgment of

the District Court and remand the case with instructions

to implement promptly a remedial plan that is narrowly

tailored to cure the constitutional violations found in the

State’s 1992 plan.

Respectfully submitted,

J. GERALD HEBERT *

800 Parkway Terrace

Alexandria, VA 22302

(703) 684-3585

Counsel for Amicus Curiae

April 12, 1996 * Counsel of Record