Amicus Curiae Brief — Abrams v. Johnson

la Supreme Court, U.S.

Ly, G @BasSs 2.

Nos. 95-1425, 95-1460 JUL 19 1996

IN THE

Supreme Court of the Whited States

OCTOBER TERM, 1996

Lucious ABRAMS, et al.,

. Appellants,

DAVIDA JOHNSON, et al.,

Appellees.

UNITED STATES OF AMERICA,

. Appellant,

DAVIDA JOHNSON, et ai.,

Appellees.

On Appeal from the United States District Court

for the Southern District of Georgia

Q4AI3993U

3.1440 5.MUDV

1) L8NOS 3W3ud Ns

2

BRIEF AMICUS CURIAE OF THE GEORGIA

ASSOCIATION OF BLACK ELECTED OFFICIALS

IN SUPPORT OF APPELLANTS

J. GERALD HEBERT *

800 Parkway Terrace

Alexandria, VA 22302

(703) 684-3585

Counsel for Amicus Curiae

* Counsel of Record

WILSON - Eras PRINTING Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

TABLE OF AUTHORITIES .....................-ccccssssecesesseeseeees

INTEREST OF AMICUS CURIAE ..................-...:.c00-00

INTRODUCTION AND SUMMARY OF ARGUMENT...

ARGUMENT ........................ deriatiibdaetiidideebsnebnatienianeddyjieapeeite

I.

Il.

III.

UNDER UPHAM AND WEISER, FED-

ERAL COURTS REMEDYING UNCONSTI-

TUTIONAL DISTRICTING PLANS MUST

DEFER TO THE STATE, AND MAY DO

ONLY WHAT IS NECESSARY TO REDRESS

THE PARTICULAR INJURIES CAUSED BY

THE CONSTITUTIONAL VIOLATION .........

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 DISTRICTING CRITERIA

AND MUST AVOID UNNECESSARILY RE-

DISTRIBUTING POLITICAL POWER AND

ALTERING LIKELY ELECTORAL OUT-

THE GEORGIA DISTRICT COURT ABUSED

ITS DISCRETION BY UNNECESSARILY IN-

JECTING ITSELF INTO THE STATE’S

POLITICAL PROCESSES, OVERTURNING

THE STATE’S SPECIFIC DISTRICTING

POLICIES, AND SELECTING A PLAN THAT

WAS LIKELY TO WREAK HAVOC ON

GEORGIA’S CONGRESSIONAL DELEGA-

TION, WHEN IT COULD HAVE CURED THE

VIOLATION WHILE RESPECTING STATE

POLITICAL POLICIES AND MINIMALLY

AFFECTING LIKELY ELECTORAL OUT-

a |

12

18

ii

TABLE OF CONTENTS—Continued

Page

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

Chena... ...ccccosssesescneunssssiuninansaienensassaenensanannnnnnnnnnnnn 19

B. The District Court Abused Its Discretion...... 21

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

OR AT THE POU. .....2.2..:0.-cc-ccceccscessossssscessrsatomnes 28

OAL |) 30

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)... 29

Burns v. Richardson, 384 U.S. 73 (1966) __. 8, 9, 23

Bush v. Vera, 64 U.S.L.W. 4452 (U.S. June 13,

1996) . —————

Chapman 1 v. . Meier, 420 US. 1 (1975) . + eee 8

Colegrove v. Green, 328 U.S. 549 (1946)... 28

Connor v. Finch, 481 U.S. 407 (1977) _ 8,9, 14, 15,19

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

Daggett v. Kimmelman, 580 F. Supp. 1259

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

Daggett, 467 U.S. 1222 (1984) ........................... 19

Davis v. Bandemer, 478 U.S. 109 (1986) ................ 9, 29

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

i ecenetnstbentens 6,7

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

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

ff ae UR

Ely v. Klahr, 408 U.S. 108 (1971) ........................... x

Freeman v. Pitts, 503 U.S. 467 (1992) Seo Ce

Growe v. Emison, 507 U.S. 25 (1993) awe F Rh

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

La. Jan. 5, 1996), appeals dismissed as moot, 64

U.S.L.W. 3848 (U.S. June 24, 1996) . an 26

Johnson v. De Grandy, 114 S. Ct. 2647 (1994)... 11, 12,

25, 26, 30

a Miller, No. Civ.A. CV 196-40, 1996 WL

288986 (S.D. Ga. May 24, 1996) ............0.00...... 23

Johnson v. Mortham, No. TCA 94-40025-MMP,

1996 WL 297280 (N.D. Fla. May 31, 1996)... «45, 117

Johnson v. Mortham, No. TCA 94-40025-MMP,

1996 WL 189235 (N.D. Fla. Apr. 17, 1996) . 6

Johnson v. Mortham, 915 F. Supp. 1529 (N.D.

Fla. 1995) ... ad : 23

Karcher v. Daggett, 462 US. 125 (1983) . . 14, 23

King v. State Bd. of Elections, No. 95-C-827, 1996

WL 130439 (N.D. Til. Mar. 15, 1996) . 29

Lewis v. Casey, 64 U.S.L.W. 4587 (US. June 24,

Sala ae 6, 7, 10

eo v. Hays, 64 US.LW. 3848 (US. June

EE 27

iv

TABLE OF AUTHORITIES—Continued

Page

McDaniel v. Sanchez, 452 U.S. 130 (1981) .............. 8

Miller v. Johnson, 115 8. Ct. 2475 (1995) —............ passim

Milliken v. Bradley, 418 U.S. 717 (1974) —............... 6,7

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

Missouri v. Jenkins, 115 S. Ct. 2088 (1995) —........... 7

Reynolds v. Sims, 377 U.S. 5383 (1964) .............. s

Rizzo v. Goode, 423 U.S. 362 (1976) 6

Rogers v. Lodge, 458 U.S. 613 (1982) 0... 7

Roman v. Sincock, 377 U.S. 695 (1964) .............. 9

Shaw v. Hunt, 64 U.S.L.W. 4487 (U.S. June 13,

= pothesis onttlineaitigsiiiipceditiiaeaieliaadsittiiiaieeibdiliibaideiaiaty passim

Shaw v. Reno, 509 U.S. 630 (1998) ....... secaitiiaiaild passim

Sirty-seventh Minnesota State Senate v. Beens,

Se Ss Ce CIEE cectbhecetbetiithictenentiinaerndiiciintils 8, 10

Spallone v. United States, 493 U.S. 265 (1990)... 7

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

U.S. 1 (1971) | iesibaeae 6

Thornburg v. Gingles, 478 US. 30. (1986) +4 11

United States v. Hays, 115 8. Ct. 2431 (1995)... 14

United States v. Saylor, 322 U.S. 385 (1944) 11

United States v. Virginia, 64 U.S.L.W. 46388 (U.S.

SE Se Fe cctcntinstietishinti tet 7

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

Vera v. Bush, C.A. No. H-94-0277 (S.D. Tex.

Ee ee 5

Vera v. Richards, 861 F. Supp. 1304 (S.D. Tex.

1994), aff'd sub nom. Bush v. Vera, 64 U.S.L.W.

OG BP EES Ee 23

Voinovich v. Quilter, 507 U.S. 146 (1998) 8,9, 11

Whitcomb v. Chavis, 408 U.S. 124 (1971)... 10

White v. Regester, 412 U.S. 755 (1978)... 11

White v. Weiser, 412 U.S. 783 (1978) passim

Wilson v. Eu, 1 Cal. 4th 707 (1992) 2.00, 13

Wise v. Lipscomb, 437 U.S. 5385 (1978) 0000 8,9

CONSTITUTIONAL AND STATUTORY

MATERIALS

es es BIE, Bi ceckicciinccentiatdieninintiime ae,

ON” EN See. 7

v

TABLE OF AUTHORITIES—Continued

Page

Voting Rights Act, 42 U.S.C. § 1973 14

§1973c ....... pe 4,14,18

Ga. Code Ann. § 21-2-501 be Sa 26

OTHER MATERIALS

American Leaders 1789-1991 (Colleen McGuiness

ed., 1991) .. 26

Alan Bernstein, Judges Warn They May Draw Dis-

trict Lines, Houston Chron., July 12, 1996 6

Congressional Districts in the 1990s (1993) ._..._.. 22, 25

Michael C. Dorf, Incidental Burdens on Fundamen-

tal Rights, 109 Harv. L. Rev. 1175 (1996) ....... 13

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

gressional Quarterly’s Politics in America 344

(1996) ............ Ph SO BEETS PE OEE SL 25, 26

Charles Fried, The Supreme Court, 1994 ‘Term—

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

(1996) ........... 5 VA a EN i aE 29

Bernard Grofman, Shaw v. Reno and the Future of

Voting Rights, PS: Political Science & Politics,

eS RTS ARs a Ra a PS 2 PEE 13, 14

Charmagne Helton, New Congressional Lines Spell

Confusion for Voters, Atlanta J. & Const., June

EN Sees SORE 3 el a et ae 24

Joint Center for Political and Economic Studies,

National Roster of Black Elected Officials

REESE EE EE AR Ni IR

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

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

aR ca Bacar RSS NRE ek se A ee 29

Gary King & Andrew Gelman, Systemic Conse-

quences of Incumbency Advantage in U.S. House

‘S

Elections, 35 Am. J. Pol. Sci. 110, 112-16 (1991). 22

Daniel Hays Lowenstein, Election Law (1995)... 27

Daniel R. Ortiz, Federalism, Reapportionment, and

Incumbency: Leading the Legislature to Police

Itself, 4 J.L. & Pol. 653 (1988) .. 10

Clarence Page, Test Run on “Fair” Representation,

Chicago Trib., July 14, 1996 _................................. 24

vi

TABLE OF AUTHORITIES—Continued

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

SS 5 f £47 are

Richard H. Pildes & Richard G. Niemi, Expressive

Harms, “Bizarre Districts,” and Voting Rights:

Evaluating Election-District Appearances After

Shaw v. Reno, 92 Mich. L. Rev. 483 (1993) .......

Quiet Revolution in the South (Chandler Davidson

& Bernard Grofman eds., 1994)

Tim R. Sass & Stephen L. Mehay, “The Voting

Rights Act, District Elections, and the Success

of Black Candidates in Municipal Elections, 38

ey Ge Be CD deietnicennctiticienintiictinntiintn

Mark Sherman, State Redistricting, Atlanta J. &

PG) GS See

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

Number of Geographic Entities of the United

OR EE FE

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) _..............

Page

16

In THE

Supreme Court of the United States

OCTOBER TERM, 1996

Nos. 95-1425, 95-1460

Lucious ABRAMS, et al.,

» Appellants,

DAVIDA JOHNSON, et al.,

Appellees.

UNITED STATES OF AMERICA,

7 Appellant,

DAVIDA JOHNSON, et 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 APPELLANTS

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 more

than 40 state legislators, as well as hundreds of county

and municipal officials. Amicus GABEO and its mem-

1 The parties have consented to the filing of this brief. Their

letters of consent are on file with the Clerk of the Court.

2

bers have a direct interest in the legal standards that will

govern federal district courts in the remedial phase of

cases under Shaw v. Reno, 509 U.S. 630 (1993) (Shaw

1), Miller v. Johnson, 115 S. Ct. 2475 (1995), and their

progeny. If remedial courts are allowed to exercise

unfettered discretion, amicus fears that the power to draw

congressional and legislative districts will shift dramati-

cally 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 v. Seamon, 456 US.

37 (1982), this Court has established principles and pro-

cedures 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

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 legitimate

policy choices of the State and its citizens. See Upham,

456 U.S. at 40-44 (per curiam); Weiser, 412 U.S. at

793-97.

The court below carved out an unprecedented and un-

warranted exception to the Upham-Weiser standard. 922

F. Supp. 1556, 1559-61 (S.D. Ga. 1995). The three-

judge District Court had declared unconstitutional the

Second and Eleventh Districts in Georgia’s 1992 con-

gressional plan, 922 F. Supp. 1552, 1553-56 (S.D. Ga.

1995); 864 F. Supp. 1354, 1359, 1393 (S.D. Ga.

1994), and initially had indicated that, if the legislature

3

failed to remedy the violations, the court would adopt

a plan “as narrowly conceived as possible to satisfy

constitutional requirements and [to] cause minimal dis-

ruptions to the political processes of the State of Georgia.”

Order, Aug. 2, 1995; accord 864 F. Supp. at 1393. How-

ever, 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.

922 F. Supp. at 1560; see id. at 1560-61, 1563; see also

id. at 1563 & n.9 (also refusing to base its remedy on

the State’s /99/ plan, even though the General Assembly

enacted that plan before the Justice Department had

begun its review).

Having freed itself from the constraints that Upham

and Weiser normally impose on a federal remedial court,

the two-judge majority proceeded to redraw all eleven of

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

cumbents 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 General Assembly had enunciated in

its 1991 redistricting guidelines and had embodied in its

1991 and 1992 congressional maps. 922 F. Supp. at

1559-70 (remedial order and opinion); J.S. App. 4la-

43a (court-imposed plan);* see also Miller, 115 S. Ct.

at 2483 (citing the General Assembly’s express criteria,

including “preserving the core[s] of existing districts” and

“avoiding contests between incumbents”). Even the Dis-

trict Court conceded that the changes it had imposed

upon the 1992 map were “drastic.” 922 F. Supp. at 1561.

The District Court’s approach to its remedial task

makes clear that the court misapprehended a key analyti-

2 All references to J.S. (or J.S. App.) are to the jurisdictional

statement in No. 95-1460 (or the appendix thereto).

4

cal distinction between vote-dilution and Shaw claims. A

vote-dilution claim seeks to correct an imbalance in politi-

cal and electoral opportunity. A remedy that fully cures

that imbalance and offers all voters an equal opportunity

to elect their preferred candidates may well alter the re-

sults of the next election. By contrast, a Shaw claim

focuses upon an entirely different problem—the deliberate

classification and separation of voters on the basis of race.

Such racial classifications cause constitutional harm not

because they dilute anyone’s voting strength, but rather

because “they convey the message that political identity

is, Or should be, predominantly racial.” Bush v. Vera,

64 U.S.L.W. 4452, 4461 (U.S. June 13, 1996) (plurality

opinion); see also id. at 4462 (Shaw violations cause

“expressive harms”). A remedy that fully cures a Shaw

violation, therefore, need not have any effect on electoral

outcomes. Indeed, a Shaw remedy should not affect out-

comes unless doing so is necessary to cure the violation;

outcomes under an invalidated plan are presumptively

consistent with state policy objectives, and must therefore

be respected to the maximum extent possible. Thus, 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 certain

incumbents to run against each other, and effectively

“picking winners and losers.” The court below committed

precisely that error.

If the District Court’s sweeping remedial order is af-

firmed, the Upham-Weiser constraints on federal remedial

courts will be rendered largely meaningless in Shaw cases.

Wherever the Justice Department, acting pursuant to Sec-

tion 5 of the Voting Rights Act, 42 U.S.C. § 1973c, is

said to have “tainted” or “subvert[ed]” the districting

process, 922 F. Supp. at 1560, 1563, 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 extraordi-

5

narily lenient remedial standard which will invite partisan

and factional interests of all stripes to seek from the fed-

eral courts those political victories that they were unable

to win in the halls of their state legislatures or at the polls.

This enlargement of the federal judicial role transgresses

fundamental principles, and should not stand.

By clarifying (and constraining) the scope of federal

district courts’ remedial authority, this Court can prevent

Shaw litigation from degenerating into factional free-

for-alls and thereby usurping the political role reserved to

the States under our constitutional order. At the same

time, clear guidance from this Court can foster a return

to the sound redistricting principles and practices that

prevailed before 1990.

ARGU MENT

This Court has repeatedly stated that Shaw claims are

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

509 U.S. at 652; 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 recent months, three-judge courts in Georgia, Lou-

isiana, Florida, and Texas have—in different ways—

turned their backs on the remedial procedure established

by this Court in Upham and Weiser.” Now that eight

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

24-27 (W.D. La. Jan. 5, 1996) (per curiam), appeals dismissed as

moot, 64 U.S.L.W. 3848 (U.S. June 24, 1996), the three-judge

District Court expressly refused to give the state legislature any

opportunity to redraw its districting plan. In Johnson v. Mortham,

No. TCA 94-40025-MMP, 1996 WL 297280, at *1 (N.D. Fla. May 31,

1996), although the three-judge District Court ordered a legisla-

tively enacted remedial plan into effect, it refused to hold that the

plan was constitutionally valid and expressly stated that challenges

to the plan’s constitutionality could “be brought in a separate law-

suit.” In Vera v. Bush, C.A. No. H-94-0277 (S.D. Tex. July 11,

1996), the three-judge District Court, ruling from the bench, gave

the parties only six days to settle the case and indicated a willing-

ness to impose a court-drawn plan even though the Texas Legisla-

6

congressional districts in five States (Florida, Georgia,

Louisiana, North Carolina, and Texas) have been invali-

dated under Shaw principles,‘ remedial issues are coming

to the fore. This case provides the Court with a timely

opportunity to reaffirm Upham and Weiser and to explain

how they should be applied in 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.

“Principles of federalism and separation of powers im-

pose stringent limitations on the equitable power of fed-

eral courts.” Lewis v. Casey, 64 U.S.L.W. 4587, 4599

(U.S. June 24, 1996) (Thomas, J., concurring). “The

power of the federal courts to restructure the operation

of local and state governmental entities is not plenary.

It may be exercised only on the basis of a constitutional

violation.” Dayton Bd. of Educ. v. Brinkman, 433 U.S.

406, 419-20 (1977); see Freeman v. Pitts, 503 U.S. 467,

489 (1992): Rizzo v. Goode, 423 U.S. 362, 377 (1976);

Milliken v. Bradley, 418 U.S. 717, 738 (1974) (Milliken

1); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402

U.S. 1, 16 (1971).

ee

ture has been out of session and has had no opportunity to remedy

the violations since this Court handed down its decision in Bush

v. Vera, supra, on June 13. See Alan Bernstein, Judges Warn They

May Draw District Lines, Houston Chron., July 12, 1996, at 1A.

‘See Bush, 64 U.S.L.W. at 4454 (Texas Districts 18, 29, and

30); Shaw v. Hunt, 64 U.S.L.W. 4437, 4438 (U.S. June 13, 1996)

(Shaw 11) (North Carolina District 12); Miller v. Johnson, 115

S. Ct. at 2494 (Georgia District 11); Johnson v. Miller, 922

F. Supp. at 1553 (Georgia District 2); Hays v. Louisiana, supra,

slip op. at 1, 24 (Louisiana District 4); Johnson v. Mortham,

No. TCA 94-40025-MMP, 1996 WL 189235, at *27-*28 (N.D. Fla.

Apr. 17, 1996, as modified June 6, 1996) (Florida District 3).

;

Once a discrete constitutional violation is found, a

federal court is required to tailor the nature and scope of

the remedy to fit the nature and extent of the violation.

See United States v. Virginia, 64 U.S.L.W. 4638, 4647

(U.S. June 26, 1996); Lewis, 64 U.S.L.W. at 4590

(majority opinion); Missouri v. Jenkins, 115 S. Ct. 2038,

2049 (1995): Brinkman, 433 U.S. at 420; Milliken vy.

Bradley, 433 U.S. 267, 280-82 (1977) (Milliken 11);

Milliken I, 418 U.S. at 738, 744; Swann, 402 US. at 16.

The remedial decree therefore must directly address and

relate to “ ‘the condition alleged to offend the Constitu-

tion.” Shaw v. Hunt, 64 U.S.L.W. 4437, 4442 (USS.

June 13, 1996) (Shaw //) (quoting Jenkins, 115 S. Ct.

at 2049); see Freeman, 503 U.S. at 487; Rogers v. Lodge,

458 U.S. 613, 628 (1982); Milliken II, 433 U.S. at 280-

82; Milliken I, 418 U.S. at 738; Swann, 402 U.S. at 16.

This Court has steadfastly refused to give the lower

“federal courts a blank check to impose unlimited reme-

dies upon a constitutional violator.” Jenkins, 115 S. Ct.

at 2058 (O'Connor, J., concurring).

Furthermore, “the federal courts in revising a remedy

must take into account the interests of state and local

authorities in managing their own affairs, consistent with

the Constitution.” Milliken 1], 433 U.S. at 280-81: accord

Jenkins, 115-S. Ct. at 2049, 2054; Freeman, 503 US. at

489: Spallone v. United States, 493 U.S. 265, 276 (1990).

“Judicial authority enters only when local authority de-

faults.” Swann, 402 U.S. at 16. “{O]verreaching by a

federal district court simply cannot be tolerated in our

federal system.” Lewis, 64 U.S.L.W. at 4593 (Thomas,

J., concurring ).

These general principles of judicial restraint, equity,

and federalism apply with particular force when federal

courts invalidate state redistricting plans. The Constitu-

tion allocates to the States the primary responsibility for

reapportionment. U.S. Const., art. I, § 2, cl. 1; id. § 4,

8

cl. 1; see Bush, 64 U.S.L.W. at 4465 (O'Connor, J., con-

curring); Growe v. Emison, 507 U.S. 25, 34 (1993);

Reynolds v Sims, 377 U.S. 533, 586 (1964).

In Upham, 456 U.S. at 40-44, and Weiser, 412 US.

at 793-97, this Court established a standard procedure

for the remedial stage of redistricting cases, to ensure

that federal courts respect these fundamental principles.

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;

Reynolds, 377 U.S. at 586.° 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. 1 (1975)).*

5 See Voinovich v. Quilter, 507 U.S. 146, 156 (1993); Growe, 507

U.S. at 34; Upham, 456 U.S. at 41-42; McDaniel v. Sanchez, 452

U.S. 130, 188, 150 n.30 (1981); Wise v. Lipscomb, 437 U.S. 535,

539 (1978) (plurality opinion); Sirty-seventh Minnesota State

Senate v. Beens, 406 U.S. 187, 196 (1972) (per curiam); Connor

v. Williams, 404 U.S. 549, 552 n.4 (1972); Ely v. Klahr, 403 US.

108, 114 & n.6 (1971); Burns v. Richardson, 384 U.S. 73, 84-85

(1966); see also Bush, 64 U.S.L.W. at 4460 (plurality opinion) ;

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 legisla-

tures.”).

*In attempting to remedy its previous violation, the legislature

has very broad discretion and is free to reconsider its goals and

policies. See Shaw II, 64 US.L.W. at 4442 n.9 (“States retain

broad discretion in drawing [remedial| districts... .”) (citing

Voinovich, 507 U.S. at 156-57; Growe, 507 U.S. at 32-37); Bush,

64 U.S.L.W. at 4460 (plurality opinion) (“States retain a flexi-

bility that federal [remedial] courts .. . lack”); cf. id. at 4464

(O’Connor, J., concurring) (“fundamental concerns of federalism

mandate that States be given some leeway”). For example, a

legislature certainly could decide that it no longer wanted to pre-

9

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-

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 discretion 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 Bush, 64 U.S.L.W. at 4487

(Souter, J., dissenting); 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] political authori-

tativeness, . . . 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 context of adversary liti-

gation in order to reconcile the competing claims of politi-

cal, religious, ethnic, racial, occupational, and socio-

economic groups.” ).

serve 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 com-

plies with the applicable federal! and state constitutional and statu-

tory 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; see also Voinovich, 507 U.S. at 156 (“[{T]he federal

courts are bound to respect the State’s apportionment choices

unless those choices contravene federal requirements.” ).

10

A federal court “seeking to remedy an unconstitutional

apportionment [must] right the constitutional wrong while

minimizing disturbance of legitimate state policies.” Sixty-

seventh Minnesota State Senate v. Beens, 406 U.S. 187,

202 (1972) (Stewart, J., dissenting). Federal courts

“are never free to ‘make’ the policy choices underlying

redistricting decisions, but must discover and faithfully

apply the State’s own choices. While the creation of state

policy is political, its discovery and apf. cation presum-

ably should not be.” Daniel R. Ortiz, Federalism, Re-

apportionment, and Incumbency: Leading the Legislature

to Police Itself, 4 J.L. & Pol. 653, 664-65 (1988).

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 interfer-

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

appropriate reconciliation of [the requirements of the

Constitution 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 con-

stitutional or statutory defect.” (emphasis added) );

Weiser, 412 U.S. at 795 (“In fashioning a reapportion-

ment plan or in choosing among plans, a district court

should not pre-empt the legislative task nor ‘intrude upon

State policy any more than necessary.’”) (quoting Whit-

comb v. Chavis, 403 U.S. 124, 160 (1971)).

In devising a narrowly tailored remedy—making only

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

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

upon the concrete, particularized “injury-in-fact” caused

by the invalid law. See Lewis, 64 U.S.L.W. at 4590

(“The remedy must . . . be limited to the inadequacy

that produced the injury-in-fact that the plaintiff has

established.”); id. at 4591 n.7 (“Courts have no power

to presume and remediate harm that has not been

established.” ).

11

In a vote-dilution case, voters who belong to a particu-

lar 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 im-

properly enhanced the political strength of one identifiable

group of voters, at the expense of the group to which the

plaintiffs belong. Cf. United States v. Saylor, 322 US.

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 community have been fragmented

and dispersed among several districts, the preferences and

interests of whites will be systematically overrepresented,

at the expense of blacks. See Shaw //, 64 U.S.L.W. at

4442 (citing Johnson v. De Grandy, 114 S. Ct. 2647,

2655 (1994)); White v. Regester, 412 U.S. 755, 765-70

(1973); see also Bush, 64 U.S.L.W. at 4482 n.3 (Souter,

J., dissenting); Voinovich, 507 U.S. at 154-55 (minority

vote-dilution claims focus “exclusively on the conse-

quences” of redistricting and on “electoral outcomes”);

Growe, 507 U.S. at 40-41 (unless minority vote-dilution

plaintiffs can prove that their group (a) has the potential

to elect its preferred representative in a new, remedial

district, but (b) is unable to do so under the challenged

districting plan, “there neither has been a wrong nor

can be a remedy”) (citing Thornburg v. Gingles, 478

U.S. 30, 50-51 & n.17 (1986)); Gingles, 478 U.S. at 93

(O’Connor, J., concurring in judgment) (“electoral suc-

cess” is “the linchpin of vote dilution claims”).

Any cure that adequately reflects different groups’ un-

diluted voting strength—e.g., uniting a fragmented black

community within a single district—will likely alter the

outcome of the next election. The federal court's remedy

may result in the retirement or defeat of a particular

incumbent and the election of a new candidate preferred

by those minority voters whose political strength the pre-

vious plan diluted. Indeed, that is the very point of the

12

litigation: to change the composition of the relevant gov-

erning body by altering electoral results. As Point II infra

explains, Shaw claims are entirely different, 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 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. See Shaw /, 509 U.S.

at 641; see also De Grandy, 114 S. Ct. at 2664 (O’Con-

nor, J., concurring).

Rather, the claim here is that the State injured voters

by using race as the predominant motivating factor in

drawing district lines. See Shaw /1, 64 U.S.L.W. at 4439

(“The constitutional wrong occurs when race becomes

the ‘dominant and controlling’ consideration.” (quoting

Miller, 115 S. Ct. at 2486)); id. at 4440 (quoting Miller,

115 S. Ct. at 2488); Bush, 64 U.S.L.W. at 4454-55

(plurality opinion); id. at 4464 (O'Connor, J., concur-

ring). Specifically, the District Court found that Georgia

had intentionally 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

7 Cf. Bush, 64 U.S.L.W. at 4458 n.* (plurality opinion) (focusing

on “the difference {in racial composition] between areas just in-

side and just outside the district lines”) ; id. at 4455, 4459 (strictly

scrutinizing district lines because they “separat{e] Hispanic voters

from African-American voters on a _ block-by-block basis” and

thereby “correlate almost perfectly” with computerized racial! data).

13

than following pre-existing lines that define recognizable

geographic or territorial units, such as counties, munici-

palities, townships, communities, media markets, neigh-

borhoods, census tracts (or census block numbering

areas),” local election precincts (or census voter tabula-

tion districts), or natural (or man-made) geographic

regions. 922 F. Supp. at 1553-56; see Bush, 64 U.S.L.W.

at 4461 (plurality opinion) (criticizing districts because

they “cut|] across pre-existing precinct lines and other

natural or traditional divisions”); see also Bernard Grof-

man, 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 ).

The plaintiffs in a typical Shaw case allege that the

State’s race-based line-drawing—intentionally assigning

black voters to one district and white voters to a separate

district—creates an implied racial classification which

(like an express racial classification) stigmatizes persons

on the basis of their race and therefore is presumptively

unconstitutional. See Shaw /, 509 U.S. at 642-49. Any

harm proven in a Shaw case flows from this implied racial

classification—not from the districting plan's effects on

electoral outcomes. See Bush, 64 U.S.L.W. at 4461

(plurality opinion) (“[T]he ultimate constitutional values

at stake involve the harms caused by the use of unjustified

racial classifications . . . .”); see also Michael C. Dorf,

Incidental Burdens on Fundamental Rights, 109 Harv. L.

Rev. 1175, 1184 n.35 (1996) (“[T}he harm ‘is, quite

literally, the drawing of lines based on race.’” (citation

omitted ) ).

* Census tracts are designed to encompass relatively socially

homogeneous populations, and they are typically bounded by promi-

nent natural or man-made geographical features (e.g. rivers or

highways). Wilson v. Eu, 1 Cal. 4th 707, 718 (1992).

14

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

tutional district’s boundary, so that it is not based on race

in substantial disregard of traditional districting criteria,

such as respect for the pre-existing borders of counties,

municipalities, communities of interest, or other recog-

nizable geographic units. See Miller, 115 S. Ct. at 2488; ~

id. at 2497 (O'Connor, J., concurring), quoted in Bush,

64 U.S.L.W. at 4454 (plurality opinion). Such a nar-

rowly tailored cure would remedy any harm caused by

the racial classification embodied in an electoral district:

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 I, 509 U.S. at 641-42, 657-58; see

also Shaw I1, 64 U.S.L.W. at 4439.”

The redistricting approach proposed here is essentially

a return to the traditional techniques that prevailed prior

to the 1990s round of redistricting. See Bush, 64 U.S.L.W.

at 4462 (plurality opinion). In combination with aggres-

sive application of Sections 2 and 5 of the Voting Rights

Act, 42 U.S.C. §§ 1973, 1973c, three technical factors

distinguished post-1990 congressional redistricting. See

Grofman, supra, at 27. First, fear of liability under

* Given the extremely strict “one person, one vote” requirement

mandated by Article 1, Section 2 of the Constitution, see Karcher

v. Daggett, 462 U.S. 725, 730-44 (1983), it may be impossible for the

entire boundary of each congressional district to follow pre-existing

lines. See Connor v. Finch, 431 U.S. at 419; id. at 429 (Blackmun,

J., concurring in judgment). But a district is presumptively un-

constitutional if the State (or federal remedial court) relied on

race in substantial disregard of traditional districting criteria

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 criteria

triggers strict scrutiny), quoted in Bush, 64 U.S.L.W. at 4454

(plurality opinion).

ee eee oe Oe

15

Article I, Section 2’s strict “one person, one vote” re-

quirement frequently drove redistricters to cross county,

city, and other socially meaningful lines in the search for

perfect population equality. See, e.¢g., Bush, 64 U.S.L.W. at

4470 n.10 (Stevens, J., dissenting) (“Every one of Texas’

30 congressional districts contains precisely 566,217 per-

sons. Of course, this precision could not have been ac-

complished without breaking apart counties, cities, neigh-

borhoods, and even pre-existing voting precincts.”); see

also Connor v. Finch, 431 U.S. at 429 (Blackmun, J.,

concurring in judgment) (“To the extent that the attain-

ment of precisely equal districts requires abandonment of

longstanding political boundaries, gerrymandering is that

much easier.” ).

Second, the Bureau of the Census—for the first time—

provided racial data on a block-by-block level. See Bush,

64 U.S.L.W. at 4455 (plurality opinion). Because

African-Americans (and, to a lesser degree, Hispanics)

overwhelmingly vote for Democratic candidates, see, ¢.x.,

id. at 4457 (citing “evidence that 97% of African-Amer-

ican voters in and around the city of Dallas vote Dem-

ocrat”), the Census Bureau's “unprecedentedly detailed

racial data” effectively enabled redistricters to seek par-

tisan advantage on a block-by-block basis, even though

actual election data were only available by precinct. /d.

at 4455.

And third, the computer revolution made it easy to

draw numerous alternative districting plans, also on a

block-by-block basis, and to assess immediately each

districts’ racial composition and partisan balance of power

(in part, by inferring partisan data from racia! data).

See id. at 4455.

The 1990s redistricters’ extensive use of the census

block—which, as the Census Bureau's smallest geographic

unit, typically contains fewer than a hundred persons—as

the foundational “building block” for congressional dis-

tricts was critical. On average, a congressional district

contains fewer than a dozen counties, 40 incorporated

16

municipalities, 140 census tracts (and block numbering

areas), and three or four hundred local election pre-

cincts (or voter tabulation districts)——-but fully sixteen

thousand census blocks.” As the number of building

blocks realistically available to redistricters increased, the

number of technically feasible districting plans—and

hence the potential for political or racial manipulation—

rose exponentially. Moreover, the extensive use of census

blocks to define congressional district perimeters enabled

redistricters to weave in and out, assigning individual

blocks to particular districts on the basis of their racial

composition.

The new technologies and data of the 1990s are here

to stay, but their misuse can easily be prevented. So long

as a district is built primarily from geographic units such

as whole, undivided precincts, census tracts, municipali-

ties, and counties, district boundaries will make sense to

voters and candidates alike, and citizens cannot credibly

claim they have been personally subjected to any govern-

mental race-based classification. Indeed, precisely this

approach was used in drawing the California congressional

districts that withstood a Shaw challenge in DeWitt v.

Wilson, 856 F. Supp. 1409, 1411, 1413-15 (B.D. Cal.

1994) (three-judge court) (upholding districts built en-

tirely with undivided census tracts), summarily aff'd in

relevant part, 115 §S. Ct. 2637 (1995), cited with ap-

proval in Bush, 64 U.S.L.W. at 4454 (plurality opinion).

This approach should generally be followed when fed-

eral courts attempt to redraw an unconstitutional majority-

minority district. That redrawing process will usually af-

fect both the district’s shape and its demographics (but

not, of course, its total population). As for shape, the

district will become less bizarre and more compact, as

its perimeter is straightened out and thereby shortened (at

least in relation to the district’s total area). See Richard

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

of Geographic Entities of the United States (Aug. 4, 1994).

17

H. Pildes & Richard G. Niemi, Expressive Harms, “Bizarre

Districts,” and Voting Rights: Evaluating Election-District

Appearances After Shaw v. Reno, 92 Mich. L. Rev. 483,

505 & n.203, 565 table 3, 571-73 table 6 (1993) (defin-

ing compactness in terms of the ratio of a district’s area

to the square of its perimeter), cited in Bush, 64 U.S.L.W.

at 4455, 4458 (plurality opinion); see, e.g., Johnson v.

Mortham, 1996 WL 297280, at *1 (ordering into effect

a remedial district with a slightly larger geographic area,

but a 55% shorter perimeter, than the invalid district it

replaced ).

As for demographics, a proper remedy usually will re-

duce the district’s minority population and increase its

white population. Often, the district will be transformed

into a “majority-white” district, albeit one with a sizable

minority population. See, e.g., id. (transforming a 55.0%

African-American district into a 46.5% African-American

district). Sometimes, the reduction in the minority group's

percentage of the electorate will be so great that the

myinority-preferred incumbent will retain no realistic poten-

tial 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

(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 criteria. 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 discre-

tion. Thus, a properly fashioned Shaw remedy typically

will alter a district's shape and demographics, but not its

politics.

18

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 WAS 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 improperly revisited—and rejected

—legitimate and longstanding redistricting policies of the

State of Georgia. As a threshold matter, the District

Court committed a serious error in concluding that it was

free to ignore the state policy choices reflected in Geor-

gia’s legislatively enacted 1992 redistricting plan. That

the specific contours of that plan may have been influenced

by Department of Justice Section 5 objections is no reason

to find the plan an inauthentic expression of state policy

generally. Quite apart from the legislature’s putative de-

sire to create three majority-minority districts, the invalli-

dated plan reflected other longstanding state policies.

Some of those policies—for example, avoiding contests

between incumbents and preserving the cores of existing

districts—had been expressly endorsed by the Georgia

General Assembly in its 1991 redistricting guidelines and

had been consistently applied not only in the 1991 and

1992 districting maps, but in a series of congressiona:

plans dating back more than half a century. Nothing

about this Court’s decision invalidating the 1992 plan

renders those race-neutral policies less worthy of respect

at the remedial stage. By rejecting them, the federal court

usurped the General Assembly’s role and vastly exceeded

the scope of its own authority.

The evidence of the District Court’s overreaching is

powerful. The court expressly rejected several proper

remedial plans submitted by defendant-intervenors and

19

their amici, and instead reached out to create a new map,

from scratch, that largely ignored the State’s traditional

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 re-

spectful of political subdivisions and of communities

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 devia-

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

922 F. Supp. at 1561; see Weiser, 412 U.S. at 786-88,

796-97 (reversing a district court order that had rejected

the proposed remedial plan with the lowest population

deviation); Daggett v. Kimmelman, 580 F. Supp. 1259,

1264-65 (D.N.J.) (three-judge court) (adopting the pro-

posed remedial plan with the lowest population deviation,

even though it split two municipalities), summarily aff'd

sub nom. Karcher 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.” 922 F. Supp. at

1561 & n.4 (emphasis added). The District Court mis-

understood both the law and the facts. As explained

supra, Article I, Section 2’s strict population-equality re-

quirement effectively mandates the splitting of some

counties. See Connor v. Finch, 431 U.S. at 419 (“The

'! 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. 43a with id. at 45a.

20

policy of maintaining the inviolability of county lines. . .,

if strictly adhered to, must inevitably collide with the basic

equal protection standard of one person, one vote.”).

And, as to the facts, the District Court’s characteriza-

tion of GA-PLAN-A is plainly incorrect. GA-PLAN-A

splits only two of the 139 counties outside the metropoli-

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

equal-population and other non-race-based reasons. The

divided counties—Bibb and Muscogee—are two of the

four most heavily and densely populated Georgia counties

outside the metropolitan Atlanta area. Cf. Bush, 64

U.S.L.W. at 4455-56 (plurality opinion) (noting that

“large, densely populated urban counties” are likely to

be split among several congressional districts). Moreover,

the governments of both Bibb and Muscogee Counties

specifically requested that they be split, so that they would

each have more than one Representative to stand up for

their interests in Congress.” If merely splitting those two

counties renders GA-PLAN-A “constitutionally defective”

under Shaw and Miller, then application of the Miller

standard surely will “throw into doubt” dozens of the Na-

tion’s 435 congressional districts. Miller, 115 S. Ct. at

2497 (O'Connor, J., concurring); see id. (Shaw subjects

only “extreme instances of gerrymandering” to strict scru-

tiny). Because none of the districts in GA-PLAN-A can

trigger strict scrutiny under Shaw / and its progeny, as

properly understood, see, e.g., Bush, 64 U.S.L.W. at

4454-59 (plurality opinion); id. at 4464 (O'Connor, J.,

concurring); Shaw I], 64 U.S.L.W. at 4439-40, that plan

' Furthermore, in Bibb County, GA-PLAN-A’s district lines are

neither bizarre nor irregular, and its Eleventh District does not

divide any census tracts. C’. DeWitt, 856 F. Supp. at 1411, 1413-

15. 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 Benning

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

employer in the region.

21

would redress the constitutional infirmities in Georgia’s

congressional map no less than the court-imposed 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 questions.

First, which plan was more faithful to the legitimate dis-

tricting criteria enunciated in the General Assembly's

1991 guidelines and embodied in the State’s now-

invalidated plan? Second, which plan was less disruptive

to the likely outcomes of Georgia’s 1996 congressional

elections? On both points, GA-PLAN-A was 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 represented a “judicious and proper bal-

ancing” of the General Assembly’s districting criteria.

DeWitt, 856 F. Supp. at 1413. It fairly and legally re-

flected the voting strength of Georgia’s minority citizens

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

eleven districts, it avoided contests between incumbents,

Miller, 115 S. Ct. at 2483 (reciting the General Assem-

bly’s 1991 redistricting guidelines), and it could not have

massively disrupted Georgia's congressional election re-

sults.

GA-PLAN-A left the homes of each of the eleven Rep-

resentatives in a separate district, thus avoiding unneces-

sary contests between incumbents, and provided each of

the incumbents at least some realistic opportunity to com-

pete for reelection.” With respect to the two districts

'’ Specifically, the Eleventh District's Congresswoman, Cynthia

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

reelection in a newly configured Eleventh District that contained

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 have run for reelection in a

newly configured Second District that contained the core of his

22

declared unconstitutional, GA-PLAN-A redrew those dis-

tricts such that white voters would have outnumbered

black voters in both new districts.* But, in the newly

configured districts, both incumbents (Representatives

McKinney and Bishop) would have stood at least a fight-

ing chance of reelection because they would have had the

advantage of incumbency,” that advantage would not

have been offset by having to run against another incum-

bent, and most of the voters in the new districts would

have already been familiar with (and represented by)

Representative McKinney or Bishop. And there is no

doubt that the other nine incumbents, each of whom could

have run in a largely familiar district, without facing an-

other incumbent, and without having to move his home,

would not have been greatly damaged or aided by GA-

PLAN-A.

old Second and a 42.0% black voting-age population, and that also

contained the home of no other incumbent.

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

have contained 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

(1993) ; Quiet Revolution in the South 102 (Chandler Davidson &

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

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

45° of the registered voters in the Second District).

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. Sci. 110, 112-16 (1991).

23

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 needlessly risked wreaking

havoc on the composition of its congressional delegation.

Although Georgia had not placed two Members of Con-

gress in the same district since 1931 (when federal census

results shrank Georgia's congressional delegation from

twelve members to ten and thereby forced the pairing of

incumbents), 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.” 922 F. Supp. at 1564 n.10, 1565. Compare Bush,

64 U.S.L.W. at 4456 ( plurality opinion) ( “incumbency

protection” and “ ‘avoiding contests between incumbent

[Representatives]’” are legitimate redistricting goals)

(quoting Karcher v. Daggett, 462 U.S. 725, 740 (1983),

and citing Weiser, 412 U.S. at 797, and Burns vy. Richard-

son, 384 U.S. 73, 89 n.16 (1966)): Johnson v. Miller,

No. Civ.A. CV 196-40, 1996 WL 288936, at *3 n.14,

*20 (S.D. Ga. May 24, 1996) (three-judge court 7) (In

Georgia, incumbency protection is “a traditional redistrict-

ing principle” that “figure[s] greatly in the drawing of a

district, whether the district is majority white or black,

and likewise whether the incumbent is white or black.” ).

The court then went on to place four incumbents in two

districts, thereby unnecessarily creating two open seats.

'6 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. Successful Shaw claims in

Texas and Florida also were brought by unsuccessful congressional

“candidates. See Vera vr. Richards, 861 F. Supp. 1204, 1340 (S.D.

Tex. 1994) (three-judge court), aff'd sub nom. Bush v. Vera, supra:

Johnson v. Mortham, 915 F. Supp. 1529, 1534 (N.D. Fla. 1995)

(three-judge court).

'? This three-judge District Court is not the same court whose

decision is on appeal here.

24

General election contests pitting incumbent Democrats

against incumbent Republicans were averted only when

one of the incumbents decided to run in a district where

he did not live and two other incumbents moved to new

homes in newly created open districts.”

The District Court claimed that, by basing ten of its

districts on Georgia’s 1982 plan, 922 F. Supp. at 1562-

65, 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 in-

cumbent congressmen and their constituents and preserv-

ing the seniority the members of the State’s delegation

have achieved in the United States House of Representa-

tives.” 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 congres-

sional 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, nei-

ther could win the Democratic primary outright. and

'® Not surprisingly, all this disruption caused considerable con-

fusion among the voters, as well as the candidates, «« Charmagne

Helton, New Congressional Lines Spell Confusion for Voters,

Atlanta J. & Const., June 15, 1996, and may have contributed to

the extraordinarily low turnout in the July 9 primaries. See

Clarence Page, Test Run on “Fair” Represestation, Chicago Trib.,

July 14, 1996, at 15.

” Of course, all eleven incumbents may ultimately prevail in the

1996 elections, given the advantages of incumbency and the un-

certainty that this case, and this appeal, have cast over potential

challengers and their supporters. But the point here is that the

District Court went out of its way to draw a plan that could

potentially wreak havoc on Georgia polities, while it expressly

rejected a far less disruptive plan.

25

their victories in the 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 in the pri-

maries, 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 52.5% black, respectively. Philip D.

Duncan & Christine C. Lawrence, Congressional Quar-

terly’s Politics in America 344, 365 (1995); Congres-

sional Districts in the 1990s 203 (1993). Their success

was doubtless attributable both to the advantages of in-

cumbency 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 Washing

ton 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,” De Grandy, 114 S. Ct. at 2661—could

potentially have been elected by the narrowly majority-

white electorates in the reconfigured Eleventh and Second

Districts of GA-PLAN-A.”

* Similarly, Atlanta’s fifth-term Congressman, John Lewis, re-

ceived 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 19908 at 208.

Cf. Tim R. Sass & Stephen L. Mehay, The Voting Rights Act,

District Elections, and the Success of Black Candidates in Munici-

pal Elections, 38 J.L. & Econ. 367, 389-90 (1995) (statistical analy-

sis attributing the growing success of black candidates “to their

,

|

i

:

.

26

The court-imposed plan, however, placed Congress-

woman McKinney and Congressman Bishop in districts

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

black, respectively. Congressman Bishop subsequently

moved to a néw district with a 35.1% black voting-age

population. No African-American has ever been elected

in Georgia for Congressman, State Senator, or State Rep-

resentative from any district with such a low black per-

centage.” See Joint Center for Political and Economic

Studies, National Roster of Black Elected Officials

(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

would have been particularly difficult for an African-

American candidate who would have had to expend re-

sources in the summer to avoid a runoff election for the

Democratic nomination, see Ga. Code Ann. § 21-2-501,

only to face a well-funded Republican incumbent Member

U.S. at 41 n.5; ef. 922 F. Supp. at 1567-68. Rather, amicus is sim-

ply 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,” particularly when those candi-

dates are incumbent Members of Congress who have consistently

striven to represent all of their constituents regardless of race. De

Grandy, 114 8S. Ct. at 2661. As Justice Kennedy noted in De

Grandy, “{t)he assumption that majority-minority 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 922 F. Supp.

at 1568; ef. J.S. 18-22.

27

of Congress in the fali campaign.* Although that scenario

was averted when Congressman Bishop moved 80 miles

from Columbus to Albany and a Republican incumbent

chose to run in a district where he does not live, it could

have been avoided altogether, had the District Court

stayed within the scope of its remedial authority and

simply adopted GA-PLAN-A.

because their incumbencies are “tainted” by the consti-

tutional error that the Justice Department forced upon

Georgia's General Assembly. See 922 F. Supp. at 1560.

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

in the two years 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. Cf. Louisiana v. Hays, 64 U.S.L.W. 3848

(U.S. June 24, 1996) (summarily dismissing appeals as

moot). 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

; accord

at 1393. By repeatedly declining to adopt any substitute

plan, much less one resembling the plan imposed by the

court below, the State of Georgia has demonstrated its

unwillingness to undermine Congresswoman McKinney,

Congresman Bishop, or the constituents—black and white

—who they so ably represent.

** General elections, rather than partisan primary or runoff

elections, typically present the greatest threat to incumbents. See

Daniel Hays Lowenstein, Election Law 656, table 15.1 (1995) (from

1946 to 1994, incumbent Representatives were three-and-a-half

times as likely to lose in general elections as in primaries).

28

Georgia's 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 old districts. Indeed, their

performance as public servants has challenged racial

stereotypes held by whites and blacks alike, and has even

begun to reverse the racial polarization that has marred

politics in the State of Georgia for more than two cen-

turies. 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 /, 509

U.S. at 657—must not be jeopardized by an overzealous

federal district court that got itself needlessly entangled

in the “political thicket.” Colegrove v. Green, 328 US.

549, 556 (1946) (opinion of Frankfurter, J.).

Shaw litigation is now reaching a critical juncture. In

audition to the two Georgia districts, six of the Nation’s

most bizarrely shaped and non-compact congressional dis-

tricts * have been struck down. See cases cited supra in

** In the Georgia delegation, Congressman Lewis is the second

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

gresswoman McKinney and Congressman Bishop are tied for third.

** Using the statistical measure of compactness cited

in Bush, 64 U.S.L.W. at 4459 (plurality opinion) (citing Pildes &

Niemi, supra, at 565, table 3 (listing districts’ “perimeter scores”) ) ,

six of the Nation’s seven least compact majority-minority districts

have already been struck down, and the ninth least compact (Illinois

29

note 4. Federal courts have just begun turning to the

question of remediation.

If this Court affirms the decision below, unbridled dis-

cretion 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 remedying Shaw violations what they

were unable to gain through the State’s normal political

processes. The remedial phases of Shaw cases will quickly

degenerate into political free-for-alls, and a doctrine born

of the desire to constrain the Federal Government's “short-

sighted and unauthorized” intrusions into state politics,

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

way to the wholesale federalization of the redistricting

process.

That scenario need not come to pass. The approach to

Shaw remedies outlined here respects the constitutionally

mandated role of the States in redistricting and comports

with fundamental principles of federalism and judicial

restraint. And, unlike the approach taken by the court

District 4) has been upheld by a three-judge district court. See

King v. State Bd. of Elections, No. 95-C-827, 1996 WL 130439,

at *29 (N.D. Ill. Mar. 15, 1996).

** 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 ?,

-_ ‘7

30

below, it holds forth the promise of eliminating the Na-

tion’s “most egregious racial gerrymanders,” Shaw I, 509

U.S. at 641, without undermining the very persons whose

efforts to build cross-racial coalitions and to “find com-

mon political ground” are helping to “hasten the waning

of racism in American politics.” De Grandy, 114 S. Ct.

at 2661.

CONCLUSION

Accordingly, this Court should reverse the judgment of

the District Court amd remand the case with instructions

to implement 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

July 19, 1996 * Counsel of Record