Opposition Brief — Hall v. Virginia

Supreme Court, US

riiers

No. 04-870 OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

JOAN HALL, et ai.,

Petitioners,

v.

COMMONWEALTH OF VIRGINIA, ef a/..

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court of Appeals

For The Fourth Circuit

OPPOSITION TO PETITION FOR A WRIT OF

CERTIORARI

MICHAEL A. CARVIN

(Counsel of Record)

SHAY DVORETZKY LOUIS K. FISHER

JONES DAY JONES DAY

222 East 41st Street 51 Louisiana Avenue, N.W.

New York, NY 10017 Washington, D.C. 20001

(202) 326-3939 (202) 879-3939

Counsel for Respondents Gary Thompson, Charles Brown, James

Brown, James Alfred Carey, Evelyn Chandler, Clifton E. Hayes, Jr.,

Quentin E. Hicks, lrene Hurst, and Wayne Osmore

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20001

QUESTION PRESENTED

Whether minority plaintiffs challenging electoral districts

under Section 2 of the Voting Rights Act, 42 U.S.C.

§ 1973(b), fail to state a vote-dilution claim where they

affirmatively allege that their minority group is not

sufficiently numerous and _ geographically compact to

constitute a majority in a single-member district, and that the

group’s preferred candidates therefore cannot be elected

except by a political coalition of minority and nonminority

voters.

PARTIES TO THE PROCEEDINGS

The names of all Petitioners are: Joan Hall, Leslie

Speight, Richard Pruitt, Thomasina Pruitt, Vivian Curry,

Eunice McMillan, James Speller, and Robbie Garnes.

The names of all Respondents are: the Commonwealth of

Virginia; Jean Jensen, in her official capacity as Secretary of

the State Board of Elections; Jerry W. Kilgore, in his official

capacity as Attorney General of the Commonwealth of

Virginia; Gary Thompson, Charles Brown; James Brown,

James Alfred Carey; Evelyn Chandler; Clifton E. Hayes, Jr.;

Quentin E. Hicks; Irene Hurst; and Wayne Osmore.

TABLE OF CONTENTS

Page

QUESTION PRESENTED......... 5 thie oeted acne ealinavaeee i

PARTIES TO THE PROCEEDING ...........:cccccesseeeeeeeeeeneees ii

TABLE OF AUTHORITIES ....................csccscsssssscceseesesseseeee iv

STATEMENT OF THE CASE.............scccsscesscessecessessessserens I

1. Factual Background ............:ccsesssersecsssssssressseesensens I

2. The District Court’s Decision ...........::ccceeeeeeeeereeees 2

3. The Court of Appeals’ Decision ...........:csscsseeseesees 3

REASONS FOR DENYING THE WRIT ............::cceseeeeeeeees 3

I. | Overwhelming Precedent Establishes That A

Section 2 Claim Fails Where The Minority

Group Could Not Constitute A Majority In A

ARIES osccccocesccsseccscesensosesscqnecseccsosansswenssessccsssosooccoocossse 6

Il. The Facts Of This Case Make It Particularly

Unsuitable To Decide Whether The Gingles

Preconditions Should Be Altered To Permit

ny 1 TIN. cuagntunsnnsnaponnnseasanssgassomnenionnen 12

Ill. The Decisions Below And The Overwhelming

Prpcedant Age Comte ccccccccccccccssccsccescccsscccccossessescoosces 16

A. Petitioners’ Claim Is Foreclosed By The

Statute’s Plain Language ............cccccsceeeeeeeeeeeneees 16

B. Petitioners’ Claim Also Conflicts Irrecon-

cilably With The Purpose Of Section 2............. 19

C. Petitioners’ Claim Improperly Would

Authorize Section 2 Lawsuits Wherever

Minority-Supported Candidates Lose

EI OST TTT TR OT 22

D. Georgia v. Ashcroft Does Not Authorize

Ine REIGN... css desassuseunsnsonbensonesasneanenes 27

CONCLUSION ......0.ssscccccssssscossscccsscccccsesecresssesssssssccssscsssees 30

iV

TABLE OF AUTHORITIES

Page

Cases

Armour v. Ohio, 775 F. Supp. 1044

CINBD. CinIO 1991) nncccccoscccescnsansssrassscesscssescecscsonsesssessesenensses 9

Baird v. Consol. City of Indianapolis,

976 F.2d 357 (7th Cir. 1992) ...............ccccccsscrccsssssrceseseees 20

Balderas v. Texas, No. Civ. A. 6:01CV158,

2001 WL 34104836 (E.D. Tex. Nov. 28, 2001),

Aff d, 536 U.S. 919 (2002)........scesesesreersesreeerssereseressreeees 8

Cano vy. Davis, 211 F. Supp. 2d 1208 (C.D.

Cal. 2002), aff'd, 537 U.S. 1100 (2003)...........04. 8, 15, 16

Chapman v. Meier, 420 U.S. 1 (1975) ...cscceeeseeseeseerenseeteeees 29

Chisom v. Roemer, 501 U.S. 380 (1991) ......ccceeseteeeeseeeees 14

City of Mobile v. Bolden, 446 U.S. 55 (1980)......:cceceeeeseees 19

Colleton County Council v. McConnell,

201 F. Supp. 2d 618 (D.S.C. 2002) 0... ceeeseeeeeeees 8, 15, 19

Connor v. Finch, 431 U.S. 407 (1977) .......ccccssccccccssssceeseees 29

Cousin v. Sundquist, 145 F.3d 818 (6th Cir.

1998), cert. denied, 525 U.S. 1138 (1999) ........ cesses 6,9

Georgia v. Ashcroft,

$39 US. 461 (TEIIS) ..rcrncecersascscncnccsscessess 20, 21, 27, 28, 29

Growe v. Emison, 507 U.S. 25 (1993) ......eceseee 10, 16, 17, 18

Johnson v. De Grandy,

$12 U.S. 997 (IDPS) .cccrscsosscorecese 16, 23, 24, 25, 26, 27, 29

Latino Political Action Comm., Inc. v.

City of Boston, 784 F.2d 409 (1st Cir. 1986)... 21

Lewis v. Alamance County, 99 F.3d 600

CBs Cle. BDI cacccsesectsesnsnnitinancntiasennsnensasnesnabiinninsnssansnnne 20

Martinez v. Bush, 234 F. Supp. 2d 1275

(SDD. Pht, DIGED wicrasacascncsscnsaticcseninasensenensencssssnnascacassonsunenes 9

McNeil v. Springfield Park Dist.,

851 F.2d 937 (7th Cir. 1988), cert.

orld Ge UF, GS Ce ieicnsnctencetietacessntsaranannnesinn 7,14

Vv

TABLE OF AUTHORITIES

(Continued)

Page

Metts v. Murphy, 2003 WL 22434637

(Ist Cir. Oct. 28, 2003) (withdrawn

following grant of reh’g en banc)... eeesecesseeeeseeeees 10

Metts v. Murphy, 363 F.3d 8

CRORE AE, FD wiistetaninnieacaiatienensaibeaieiiianniemadin 10, 11, 22, 24

Miller v. Johnson, 515 U.S. 900 (1995)... ccccccccccccsseeeeee 29

Negron v. City of Miami Beach,

SED See Re CR GUIR Gatits. WED einccsichnasescicepadaniiniaenanecimnnes 7

Nixon v. Kent County, 76 F.3d 1381

RI CO PI ttsintaiiceceterteinacenieteniinintnnins 6, 7,9, 19, 20

O' Lear v. Miller, 222 F. Supp. 2d 850

(E.D. Mich.), aff'd, 537 U.S. 997 (2002) ...........cceeeee 8, 15

Parker v. Ohio, 263 F. Supp. 2d 1100

(S.D. Ohio), aff'd, 540 U.S. 1013 (2003)... 8,15

Puerto Rican Legal Defense & Educ.

Fund, Inc. v. Gantt, 796 F. Supp. 681

CREATE. © sR PUUED scisiititiacciitailiannicsnsshiansdaniebameapiaminilsciaianlalilans 9

Romero v. City of Pomona,

nd Ze CSET Ce Gi Fee sinters inticsqncninpadindimatiaianinns 7

Session v. Perry, 298 F. Supp. 2d 451

(E.D. Tex.), vacated on other grounds,

SEP Be de eee ee sictisinitineinasanipicinetasdecentbecnndiaa 7, 8, 28

Shaw v. Reno, 509 U.S. 630 (1993) .........ccccccssssessssssecsssecers 22

Skorepa v. City of Chula Vista,

FES F. SU, TAO GRA Ss FPF D cecctssiisncnsscsniininnvintaante 9

Smith v. Clark, 189 F. Supp. 2d 529

(S.D. Miss. 2002), aff'd sub nom.

Branch v. Smith, 538 U.S. 254 (2003)... 8, 15, 19

Thornburg v. Gingles, 478 U.S. 30 (1986) ............eceee passim

Turner v. Arkansas, 784 F. Supp. 553

(E.D. Ark. 1991), aff'd, 504 U.S. 952 (1992)... 8,9

Valdespino v. Alamo Heights Indep. Sch.

Dist., 168 F.3d 848 (Sth Cir. 1999),

cert. denied, 528 U.S. 1114 (2000)............ceesseessreeeseeees 7

vi

TABLE OF AUTHORITIES

(Continued)

Page

Vieth v. Jubelirer, 124 S. Ct. 1769 (2004) oo... eee eeeeeeee 1]

Voinovich v. Quilter,

RE a, Se ee

West v. Clinton, 786 F. Supp. 803

CULE, Adit, 10D ipacinnionsccsitcinnpsinisencsitenissiniatintineiiidensiasiuinaia 9

Whitcomb v. Chavis, 403 U.S. 124 (1971). ecccceeeeeeeees 19

Statutes and Congressional Materials

42 UDA. | SFTS AD cccsncscinnsnicnsisisiniaiitiicudinnabiniiiaieaias 16, 18

42 USA. | TAT FG vccsisnsccsesiminieniniaaaaa 4, 14, 16, 18

S. ROD. INO. F747 F CTFRE) ccrcccccsconsscnninincsetinmansenipimabiians 26

Other Authorities

Brief for the United States as Amicus Curiae,

Voinovich v. Quilter, No. 91-1618,

SOT Ul She HED Ci rale ccsienidensconniaeiddbbicnceeincmmnuniiene 15

J. Gerald Hebert, Redistricting in

the Post-2000 Era, 8 Geo. Mason L.

OV. 4ST (AGCUP ccsesccccscnsessoncnvssonsborenceseustovinetuntesnassevoues 19

http://www.elections.ri.gov/2004GE/

DORMGEIIO DI cicrscscescscnreccsnnesnecsneebennenssennsusansibedncsinaasi 22

http://www.elections.ri.gov/2004Primary/

OMAIE IID DUR cccsnsccrcesnsesescnnsssnnessnsniceninanhensseseseniaisaiaat 22

STATEMENT OF THE CASE

1. Factual Background

Petitioners brought this action challenging _ the

configuration of Virginia’s Fourth Congressional District

under the reapportionment plan (the “2001! Redistricting

Plan”) enacted by the Virginia General Assembly and signed

into law by the Governor in 2001 based on the results of the

2000 census. The Department of Justice precleared the 2001

Redistricting Plan under Section 5 of the Voting Rights Act.

Pet. App. 53a.

The configuration of the Fourth Congressional District

challenged by Petitioners is inextricably tied to that of the

adjacent Third District. Pet. App. 49a, 50a. Whereas the

former Fourth Congressional District was close to the ideal

size for Virginia congressional districts under the 2000

census, the population of the former Third District was

nearly 76,000 people, or nearly 12%, below the ideal district

size. Pet. App. 26a, 48a-49a. Substantial reapportionment

was necessary to comply with the Fourteenth Amendment's

“one person, one vote” requirement. Accordingly, the 2001

Redistricting Plan shifted a number of black residents from

the former Fourth District to the Third District. Pet. App.

26a.

Before the enactment of the 2001 Redistricting Plan,

blacks constituted 39.4% of the total population (“TPOP”)

and 37.8% of the~voting-age population (“VAP”) in the

Fourth District. Pet. App. 3a. In the reconfigured Fourth

District, blacks constitute 33.6% of the TPOP and 32.3% of

the VAP. The 2001 Redistricting Plan left the TPOP and

VAP figures for blacks in the Third District virtually

unchanged. Pet. App. 3a-4a. In the reconfigured Third

District, blacks comprise 56.8% of the TPOP and 53.2% of

the VAP in the Third District, compared to 57% and 53.3%

in the former Third District. Pet. App. 4a.

Petitioners filed a complaint in the Eastern District of

Virginia, alleging that the Voting Rights Act required the

2

Fourth Congressional District to be drawn with a black

population of roughly 40%—well short of a majority, and

only about six percentage points higher than the enacted

plan. Pet. App. 26a-27a, 45a-46a, 48a-49a. Petitioners do

not allege that it is possible for both the Third and Fourth

Districts to be compact, majority-black districts. On the

contrary, the Complaint demonstrates that, to draw the

Fourth District with even a 40% black population, it is

necessary to imperil the majority-black status of the

neighboring Third District. Pet. App. 26a-27a, 52a.

2. The District Court’s Decision

The District Court dismissed the complaint.’ The court

explained that Thornburg v. Gingles, 478 U.S. 30, 50 (1986),

requires a Section 2 plaintiff to show that the minority group

is “sufficiently large and geographically compact to

constitute a majority in a single-member district.” Pet. App.

3la. The court noted that while Gingles “left open the

question of whether a vote dilution claim could be brought

with respect to an ‘influence district” where a minority

group is too small to be a majority in a district, lower courts

have “uniformly rejected such claims.” Pet. App. 36a-37a.

Recognizing Section 2 claims where a minority group could

not constitute a majority in a district, the court held, would

force courts to engage in “intrusive speculation on political

matters” beyond their capacities and would raise the specter

of a flood of marginal Section 2 claims. Pet. App. 44a.

Because Petitioners conceded that blacks could not constitute

a majority in the Fourth District, the District Court dismissed

Petitioners’ complaint.

' The District Court held that seven of nine Petitioners lacked standing to

bring a Section 2 claim because they lived outside the new Fourth

District. Pet. App. 29a-30a. The Fourth Circuit did not reach this issue,

Pet. App. 10a n.10, and Petitioners do not seek certiorari on this question.

Pet. at 3 n.2.

3

3. The Court of Appeals’ Decision

The Fourth Circuit affirmed unanimously. The court

explained that Petitioners’ vote-dilution claim required that

their voting strength under the challenged plan “be measured

against some reasonable benchmark of ‘undiluted’ minority

voting strength.” Pet. App. Ila. Relying on the majority

opinion in Gingles and on Justice O’Connor’s concurrence,

the Fourth Circuit held that “[t]he electoral ability of a group

concentrated within a hypothetical single-member district

makes sense as the measure of undiluted minority voting

strength” because “minority voters have the potential to elect

a candidate on the strength of their own ballots when they

can form a majority of the voters in some single-member

district.” Pet. App. 13a (emphases in original). In contrast,

when minority voters cannot form a majority in a district,

“they have no ability to elect candidates of their own

choice,” but must instead form political coalitions with other

groups to elect candidates. Pet. App. 14a (emphasis in

original). “Under these circumstances, minorities cannot

claim that their voting strength—that is, the potential to

independently decide the outcome of an election—has been

diluted in violation of Section 2.” Pet. App. 14a. “A

redistricting plan that does not adversely affect a minority

group’s potential to form a majority in a district,” the court

held, “but rather diminishes its ability to form a political

coalition with other racial or ethnic groups, does not result in

vote dilution ‘on account of race’ in violation of Section 2.”

Pet. App. 18a-19a. To hold otherwise wouid impermissibly

“transform the Voting Rights Act from a law that removes

disadvantages based on race, into one that creates advantages

for political coalitions that are not so defined.” Pet. App.

17a-18a,

REASONS FOR DENYING THE WRIT

Contrary to the premise of Petitioners’ challenge, the

Voting Rights Act does not mandate that redistricting plans

be designed to maximize the electoral success of a political

4

coalition of minority and nonminority voters. The Act

guarantees only an equal opportunity for minority voters.

This equal opportunity may be denied when a compact black

community is split into two ineffective minorities in adjacent

districts, rather than preserved as an effe«ive majority in

one. But no such injury is possible where the relevant black

population is not sufficiently numerous or compact to

constitute a majority in a district. In such circumstances, the

redistricting plan does not deny black voters the ability “to

elect” a representative of their own choice. 42 U.S.C.

§ 1973(b). Rather, the only “deprivation” possibly caused by

the redistricting plan is the inability to influence the election

of a minority-preferred candidate by forming a winning

coalition with sympathetic white crossover voters. This

alleged political harm, however, is not a cognizable

deprivation under the Voting Rights Act because the Act

does not protect minority voters’ ability to “influence”

elections: does not protect multi-racial political coalitions

against vote dilution; does not grant minorities a superior

“right” to have their preferred candidate win; and otherwise

does not require redistricting plans to maximize minority-

preferred candidates’ potential electoral success in every

district. where minority voters constitute a cognizable

presence.

For these reasons, this Court established, in the seminal

case of Thornburg v. Gingles, 478 U.S. 30 (1986), that

minorities must be able to constitute a majority in a compact,

single-member district in order to allege vote dilution under

Section 2, and an avalanche of precedents from lower federal

courts has subsequently rejected any Section 2 dilution claim

brought by minority voters constituting less than a potential

majority. All of these decisions recognized that a minority-

preferred candidate could win in a majority-white district

with the aid of white crossover voting, but nevertheless

expressly held that Section 2 does not create any right to

have districts designed to ensure that such a potential bi-

racial coalition usually wins. Consequently, Petitioners’

5

repeated belaboring of the obvious—that courts and

commentators have frequently recognized that minority-

preferred candidates can be elected when minorities

comprise a minority of the population—is utterly beside the

point and lends no support to their radical assertion that bi-

racial coalitions supporting minority candidates have a

statutory entitlement to districts in which their potential

political coalition will usually win.

Because federal courts have overwhelmingly and correctly

rejected Section 2 claims where plaintiffs cannot meet

Gingles’ majority-in-a-district requirement, the Court should

adhere to its consistent past practice of declining to consider

the viability of such “influence” claims.”

> This Court and lower courts have often referred interchangeably to

“influence” and “ability-to-elect” claims. In Voinovich v. Quilter, 507

U.S. 146 (1993), the Court referred to an “influence district[]” as one “in

which black voters would not constitute a majority but in which they

could, with the help of a predictable number of cross-over votes from

white voters, elect their candidate of choice.” Id. at 150. Petitioners can

find no refuge in the semantic distinction between “influence” and

“ability-to-elect” claims, see Pet. at 4 n.4, because all of the cases

enforcing the Gingles majority-in-a-district requirement, see infra at 6-9,

required a majority in a district even though plaintiffs were seeking

districts where the minority-preferred candidate would prevail and that

potential was undisputed, or deemed irrelevant, because minorities could

not constitute a numerical majority. The reason most courts used the

“influence” terminology, rather than Petitioners’ newly minted “ability-

to-elect” nomenclature, is because this Court after Gingles routinely

denoted the type of districts sought by Petitioners here as “influence

districts.” Thus, the Court should not attach talismanic significance to

whether Petitioners’ claim is labeled with the “influence” or “ability -to-

elect” terminology.

Indeed, if anything, “ability-to-elect” claims are less viable than

“influence” claims. This is because Gingles expressly held that the

majority-in-a-district requirement applies where “plaintiffs allegle] .. .

that their ability to elect the representatives of their choice was impaired”

by the challenged redistricting plan. Gingles, 478 U.S. at 46 n.12

(emphasis in original). The only question reserved was whether a group

6

I. Overwhelming Precedent Establishes That A Section

2 Claim Fails Where The Minority Group Could Not

Constitute A Majority In A District.

Five federal courts of appeal have agreed with the Fourth

Circuit and rejected vote-dilution claims brought by

minorities comprising less than a compact majority.

Moreover, in each of these cases in which a petition for

certiorari was filed, this Court denied the petition.

For example, in Cousin v. Sundquist, 145 F.3d 818 (6th

Cir. 1998), cert. denied, 525 U.S. 1138 (1999), the Sixth

Circuit rejected the claim that the Voting Rights Act

compelled the creation of a single-member district with a

34% black voting-age population. 145 F.3d at 828. The

court found “the plaintiffs’ [claim] . . . particularly lacking

because it [was] based on the premise that the Section 2

violation . . . consist{ed] of an impairment of the minority’s

ability to influence the outcome of the election, rather than to

determine it.” Id. at 828-29 (emphasis in original). Earlier,

the Sixth Circuit, sitting en banc, confirmed that where a

single minority group cannot comprise the majority of a

proposed district's VAP, minorities have no valid Section 2

objection to a redistricting plan. Nixon v. Kent County, 76

F.3d 1381, 1389 (6th Cir. 1996). The court explained that, to

elect representatives of their choice, members of such a

group would be required to form political coalitions with

members of one or more other groups. /d. at 1391-92.

Requiring districts amenable to such bi-racial coalitions

would “transform{] the Voting Rights Act from a statute that

levels the playing field for all races to one that forcibly

that is less than a majority would be able to state a claim by alleging that

a plan impairs its ability to influence elections, see Gingles, 478 U.S. at

46 n.12, which Petitioners do not allege here. Thus, if one is to draw a

distinction between ability-to-elect claims and influence claims in cases

where the majority-in-a-district requirement is not satisfied, Gingles

forecloses the former and leaves open only the latter.

SLANE

7

advances contrived interest-group coalitions or racial or

ethnic minorities.” /d. at 1392 (internal citations omitted).

Similarly, the Seventh Circuit rejected a Section 2 claim

that a district could be created with a black VAP between 43

and 44%. The court explained that “minorities not large and

concentrated enough to comprise a majority” are “unable to

sustain a Section 2 claim” even though they “possess the

potential to elect candidates of their choice in a single-

member district with the help of a sizable and long-standing

white crossover vote.” McNeil v. Springfield Park Dist., 851

F.2d 937, 942 (7th Cir. 1988) (footnote omitted), cert.

denied, 490 U.S. 1031 (1989).

The Fifth, Ninth, and Eleventh Circuits have likewise

rejected influence claims. See Valdespino v. Alamo Heights

Indep. Sch. Dist., 168 F.3d 848, 851, 852-53 (Sth Cir. 1999)

(affirming a judgment against plaintiffs where Hispanics

could make up only 48.3% of a district’s citizen VAP,

because vote-dilution claimants are “required . . . to prove

that their minority group exceeds 50% of the relevant

population in [a potential] district”), cert. denied, 528 U.S.

1114 (2000); Negron v. City of Miami Beach, 113 F.3d 1563,

1569 (11th Cir. 1997) (rejecting a claim based on potential

districts in which Hispanics comprised less than 50% of the

citizen VAP); Romero v. City of Pomona, 883 F.2d 1418,

1424 n.7 (9th Cir. 1989) (“We are aware of no successful

section 2 voting rights claim ever made without a showing

that the minority group was capable of a majority vote in a

designated single district.”’).

In addition, three-judge district courts have unanimously

foreclosed influence claims, and this Court has repeatedly

affirmed their judgments without opinion. See Session v.

Perry, 298 F. Supp. 2d 451, 478-79, 486 (E.D. Tex.) (“[T]he

State was under no § 2 obligation to create [coalition]

districts [defined as “voting districts where minority voters

are able to form coalitions with voters from other racial and

ethnic groups, having no need to be a majority within a

8

single district in order to elect candidates of their choice”’],

and we find that the State labors under no corresponding

compulsion to preserve these districts.” (footnote and

internal quotation marks omitted)), vacated on other

grounds, 125 S. Ct. 3511 (2004); Parker v. Ohio, 263 F.

Supp. 2d 1100, 1104-05 (S.D. Ohio) (three-judge court)

(defining an influence district as “one where a distinct group

cannot form a majority, but they are sufficiently large and

cohesive to effectively influence elections, getting their

candidate of choice elected” and holding that “influence

claims are not cognizable”), aff'd, 540 U.S. 1013 (2003);

Q’ Lear v. Miller, 222 F. Supp. 2d 850, 861 (E.D. Mich.)

(three-judge court) (“Because plaintiffs cannot satisfy the

Gingles preconditions and because we do not recognize

‘influence’ claims, plaintiffs cannot state a claim under the

Voting Rights Act.”), aff'd, 537 U.S. 997 (2002); Cano v.

Davis, 211 F. Supp. 2d 1208, 1231 (C.D. Cai. 2002) (three-

judge court) (“[U]nless the minority group can establish that

an effective majority-minority district can be created, a vote

dilution claim is not cognizable because there is no minority

voting power to dilute.” (footnote omitted)), aff d, 537 U.S.

1100 (2003); Smith v. Clark, 189 F. Supp. 2d 529, 537 (S.D.

Miss. 2002) (three-judge court) (rejecting a claim that the

black VAP in a district should have been higher than the

30% in the court’s plan and concluding that influence claims

“are inappropriate for a federal court to consider”), aff'd sub

nom. Branch y. Smith, 538 U.S. 254 (2003); Balderas v.

Texas, No. Civ. A. 6:01CV158, 2001 WL 34104836, at “2

(E.D. Tex. Nov. 28, 2001) (three-judge court) (“To the

extent the [plaintiffs] invite us to recognize and sustain a

challenge to the [enacted] plan based on minority ‘influence

districts’, we have no warrant to do so.”), aff d, 536 U.S. 919

(2002); Colleton County C ouncil v. McConnell, 201 F. Supp.

Id 618, 643 n.22 (D.S.C. 2002) (three-judge court)

(concluding that the creation of influence districts is “an

inherently politically based policy” not to be considered by

courts): Turner v. Arkansas, 784 F. Supp. 553, 569-70 (E.D.

9

Ark. 1991) (three-judge court) (rejecting “ability to elect”

and “influence” claims when minority voters cannot form a

district majority), aff d, 504 U.S. 952 (1992); Skorepa v. City

of Chula Vista, 723 F. Supp. 1384, 1392 (S.D. Cal. 1989)

(“{This] Court finds that there exists no legally cognizable

‘influence’ claim under §2 that would require a lesser

standard of proof than set forth in Thornburg.”).

Faced with the overwhelming weight of these precedents

denying influence claims, Petitioners distort numerous cases

in an attempt to create the appearance of a split of authority.

Pet. at 14-16. In Martinez v. Bush, 234 F. Supp. 2d 1275

(S.D. Fla. 2002) (three-judge court), the viability of

influence districts was never in question, since the plaintiffs

proposed majority-black districts and the court, in upholding

the challenged plan, declined to decide “the percentage of

total population, voting age population, or registered voters”

that would be required to satisfy the first Gingles

precondition. Jd. at 1321-24. Likewise, in Puerto Rican

Legal Defense & Education Fund, Inc. v. Gantt, 796 F.

Supp. 681 (E.D.N.Y. 1992) (three-judge court), all of the

districts at issue had “over a 55% VAP of the relevant

minority.” Id. at 694. In West v. Clinton, 786 F. Supp. 803

(W.D. Ark. 1992) (three-judge court), the court merely

“assume[d] that the influence theory [was] legally viable”

before concluding that “the facts of [the] case” did not

“make out a cognizable claim under that theory.” /d. at 806

(emphasis added). And in Armour v. Ohio, 775 F. Supp.

1044 (N.D. Ohio 1991) (three-judge court), a case abrogated

by the Sixth Circuit in Cousin and Nixon, the court based its

analysis of influence claims on the premise that the Gingles

preconditions did not apply to single-member districts, a

premise subsequently rejected by this Court, see Growe v.

Emison, 507 U.S. 25, 40-41 (1993).

Thus, notwithstanding Petitioners’ mystifying assertion

that “legislative bodies and courts are increasingly uncertain

about their obligations” to form districts in which minorities

constitute less than 50% of the relevant population, Pet. at

10

18, overwhelming precedent makes clear that Section 2

plaintiffs must satisfy the majority-in-a-district requirement.

Against this backdrop, only one federal court has recognized

an influence claim, and even that court did so tentatively and

without setting forth any standard that would govern the

claim. In Metts v. Murphy, 363 F.3d 8 (Ist Cir. 2004) (en

banc), the divided court refused to affirm a Rule 12(b)(6)

dismissal based on the plaintiffs’ inability to satisfy the first

necessary Gingles precondition. While the decision is wrong

for all the reasons stated infra at 16-29, the opinion is more

accurately characterized as a decision not to decide the issue.

The court stated that it was unwilling “to foreclose the

possibility that a section 2 claim can ever be made out where

the African-American population of a single member district

is reduced in redistricting legislation from 26 to 21 percent.”

363 F.3d at 11 (emphasis in original). The court noted,

however, that “[a]s courts get more experience dealing with

these cases and the rules firm up, it may be more feasible to

dismiss weaker cases on the pleadings... .” Id.

It is plainly a mistake to defer resolution of the Gingles

preconditions until after fact-finding because, as the original

panel’s dissenting opinion noted, “the Gingles preconditions

act as a sentry at the gates—a bright-line rule that must be

satisfied before the totality of circumstances comes into

play.” Metts v. Murphy, No. 02-2204, 2003 WL 22434637,

at *17 (Ist Cir. Oct. 28, 2003) (withdrawn following grant of

reh’g en banc) (Selya, J., dissenting) (emphasis in original).

Moreover, the en banc majority leaves influence claims

utterly standardless, since it provides no hint about relevant

factors that would determine the viability of such claims.

The court said it wanted to examine the “motive for the

change in district or the selection of the present

configuration, the contours of the district chosen or the

feasible alternatives” —all of which go to the purpose behind

how the district lines were drawn. 363 F.3d at 12. The

whole point of the 1982 amendment to Section 2, however,

was to ensure that the purpose of the line-drawers was not

dispositive, see, e.g., Voinovich, 507 U.S. at 155, so the

focus of the First Circuit is precisely wrong. Moreover, the

majority stated that “plaintiffs cannot prevail merely by

showing that an alternative plan gives them a greater

opportunity to win the election . . . or that an otherwise

justified boundary change happened to cost African-

Americans a seat.” 363 F.3d at 12. But the entire gravamen

of the claim here is that the redistricting plan has “cost

African-Americans a seat” and denied minorities an

“opportunity to win the election.” It is therefore quite

difficult to reconcile this assertion by the First Circuit with

acceptance of a claim like Petitioners’, or to discern what

plaintiffs might be able to show (other than purpose) that

would allow them to succeed.

The sum total of the Metts opinion, then, is that influence

claims remain a theoretical possibility, yet Metts provides no

idea of what would constitute a viable claim. Indeed,

because even Metts reserves the possibility of dismissing

cases on the pleadings where plaintiffs fail to meet the first

Gingles precondition, it creates no clear conflict with the

overwhelming number of federal courts that have rejected

such claims. But even if this Court were inclined to consider

the question, it would be premature to do so before any court

has articulated standards that would govern an influence

claim. If the Court were to authorize influence claims, but

see infra at 16-29, it should do so in a way that provides

guidance to lower courts and to state legislatures about the

duties imposed by Section 2. Cf. Vieth v. Jubelirer, 124 S.

Ct. 1769, 1777 (2004) (plurality op.) (lamenting the Court's

“inability to specify a standard” for political gerrymandering

claims); id. at 1793 (Kennedy, J., concurring in the

judgment) (noting that “clear, manageable, and _ political

neutral standards” are “critical” to political gerrymandering

claims). Unless and until courts articulate a clear standard

by which valid influence claims can be differentiated from

meritless ones, there is no ripe conflict among lower courts

and no reason for the Court to depart from its consistent

12

practice of declining to rule on the viability of influence

claims.

Indeed, it would be particularly dangerous to simply

abandon the Gingles “majority-in-a-district” precondition

without providing clear guidance on what new standard

would emerge to establish a prima facie case of a Section 2

violation. This is because, as we explain more fully below,

elimination of the first Gingles precondition creates a

virtually irrebuttable mandate for proportional

representation. See infra at 23-24. Under the second and

third Gingles preconditions, a prima facie Section 2 violation

is established if the candidate supported by most minority

voters does not usually win and it is physically possible to

create a district where that candidate would win. See id.

Thus, under Petitioners’ proposed regime, it would be

presumptively illegal not to create a district favoring

minority-preferred candidates, wherever feasible, and the

remaining totality-of-circumstances factors would provide no

inkling on whether or when such a failure to maximize might

be permissible. Since elimination of the majority-in-a-

district requirement impermissibly creates a de facto

proportional representation mandate, its potential elimination

necessarily needs to be accompanied by further alteration of

Section 2 standards to avoid this result. But neither Metts

nor any other case has provided any hint as to what such an

adjustment might encompass, and therefore it is premature

for this Court to consider this question.

Il. The Facts Of This Case Make It Particularly

Unsuitable To Decide Whether The Gingles

Preconditions Should Be Altered To Permit

Influence Claims.

Not only has no federal court articulated a standard for

assessing the viability of influence claims, but Petitioners

themselves offer no alternative beyond a grab bag oi

amorphous factors—‘real-world variables such as plurality

vote requirements, primary elections, political cohesiveness,

13

and voter turnout” that may make it possible for “less-than-

50% minority groups . . . to elect candidates of their choice.”

Pet. at 8. Petitioners’ “flexible, fact-specific standard”

amounts to nothing more than a “totality of the

circumstances” test, id. at 22, 24, that eviscerates the purpose

of the Gingles preconditions—to weed out meritless claims

before the totality of the circumstances comes into play, and

to prevent Section 2 from becoming a mandate for

proportional representation.

In any event, because none of the factors identified by

Petitioners as being theoretically relevant are present here,

this case is a poor vehicle for this Court to consider influence

claims. First, Petitioners argue that “under certain factual

circumstances, less-than-50% minority groups could have

the ability to elect without any white crossover voting.” Id.

at 21 (emphasis in original). | Whatever these factual

circumstances may be, they are not at issue here, as

Petitioners themselves allege that blacks in the Fourth

District can only elect their preferred candidate with the aid

of white crossover voting. Pet. App. 5a, 46a, 51a.

Second, Petitioners allege that “less-than-50% minority

groups” “have the ability to elect” by- a plurality in a race

involving more than two candidates. Pet. at 20. But

Petitioners have not alleged that there will be a three-way

race in this case or that minorities would be unable to elect

their preferred candidate in the challenged district if there

were such a multi-candidate race. Moreover, a three-way

race affords no reasonable basis for distinguishing Gingles,

in which the Court was obviously aware of the potential for

such a race when it erected the majority-in-a-district

requirement. It did so because vote dilution deals with

“structural” barriers that need to be assessed in terms of the

“usual” situation, not “special circumstances,” such as a

three-candidate race which will lead to “the success of a

minority candidate in a particular election.” 478 US. at 51,

57. There is no basis to depart from the majority-in-a-district

rule based on speculation about results that might occur ina

14

three-candidate contest that has never occurred and is not

alleged to be plausible in the future. See McNeil, 851 F.2d at

944 (“Movement away from the Gingles :.andard invites

courts to build castles in the air, based on quite speculative

foundations.”).

Third. Petitioners argue that in some instances, a minority

group that is not a majority may still constitute more than

50% of a particular political party. That minority group,

Petitioners argue, can decide the winner of that party's

primary, who, in turn, can win the general election with

white crossover votes. Pet. at 20-21. Again, however,

Petitioners’ hypothetical has nothing to do with this case or

the decision below. Petitioners do not allege that the Fourth

District as drawn deprives them of the opportunity to win the

Democratic primary. Rather, they allege that blacks cannot

win a general election against a predominantly white,

Republican electorate. Pet. App. 49a-Sla. Thus, it is

undisputed here that blacks will constitute a minority of

voters in the dispositive election and that a black-supported

candidate will need substantial white support to prevail.

Petitioners’ academic speculation about different districts

where white support might not be necessary is therefore

entirely beside the point here.

In short, Petitioners’ Section 2 claim fails even under their

own speculative factors for assessing an influence claim. In

addition, Petitioners’ complaint is legally insufficient for

another reason: Section 2 requires a showing that members

of a protected minority group have “less opportunity” than

others “to participate in the political process and to elect

representatives of their choice.” 42 U.S.C. § 1973(b)

(emphasis added). This Court has held that “[iJt would

distort the plain meaning of {Section 2] to substitute the

word ‘or’ for the word ‘and.’ Such radical surgery would be

required to separate the opportunity to participate from the

opportunity to elect.” Chisom v. Roemer, 501 U.S. 380, 397

(1991) (footnote omitted). Yet the complaint refers only to

minority voters’ opportunity to elect candidates of their

eee

ee

15

choice, without any suggestion that minority voters lack a

full opportunity to participate in the political process. Pet.

App. 46a, 53a. Thus, even if Petitioners were to prevail with

respect to the opportunity to elect, they would be entitled to

no relief because they have not alleged that minority voters

lack the opportunity to participate in the political process.

Finally, Petitioners make much of the Justice

Department’s purported support for influence claims. Pet. at

24-26. But as Petitioners tacitly acknowledge, see id. at 26,

the Justice Department urged this Court to reject influence

claims in its amicus brief in Voinovich v. Quilter, 507 U.S.

146 (1993). Citing the overwhelming precedent disallowing

influence claims, the Government expressed its “agree[ment]

with those courts that have rejected [the] notion” that

“Section 2 requires creation of districts in which minorities

are demonstrably not a majority of the voting age

population.” Brief for the United States as Amicus Curiae,

Voinovich v. Quilter, No. 91-1618, 507 U.S. 146 (1993)

(emphasis in original). Thus, the one time the Government

urged the Court to recognize influence claims, the Court

declined to consider the question, and the Government has

elsewhere taken the opposite position. Cases since

Valdespino and following the 2000 census, moreover, have

overwhelmingly confirmed the need to comply with Gingles’

majority-in-a-district requirement and been affirmed by this

Court. See Parker, 263 F. Supp. 2d at 1104-05; O’Lear, 222

F. Supp. 2d at 861; McConnell, 201 F. Supp. 2d at 643 n.22;

Cano, 211 F. Supp. 2d at 1231; Smith, 189 F. Supp. 2d at

537. If the Justice Department is, as Petitioners suggest, a

bellwether of when a voting-rights question merits the

Court’s attention, the Department’s silence in this case

reaffirms that the lower courts are in accord and that the

Court should deny the instant petition for certiorari.

16

Ill. The Decisions Below And The Overwhelming

Precedent Are Correct.

A. Petitioners’ Claim Is Foreclosed By The Statute’s

Plain Language.

The majority-in-a-district requirement is mandated by the

language of Section 2. Under the statute, it must be “shown”

that (1) a citizen’s right to vote is impaired “on account of

race.” in that members of a “protected” “class of citizens”

“have Jess opportunity than other members of the electorate

to elect representatives of their choice,” and (2) the

challenged practice “results” in this inequality. 42 U.S.C.

§ 1973(a) & (b) (emphasis added). Plaintiffs must prove

that, but for the challenged plan, minority voters would have

been able to elect representatives of their choice. Gingles,

478 U.S. at 50 n.17. Otherwise, the plan “cannot be

responsible for minority voters’ inability to elect its

candidates.” Id. at 50; accord Cano, 211 F. Supp. 2d at 1231

(claim of minority vote dilution not possible if “there is no

minority voting power to dilute’).

In Gingles, the Court squarely held that if “the minority

group is sO small in relation to the sut rounding white

population that it could not constitute a majority in a single-

member district, these minority voters cannot maintain that

they would have been able to elect representatives of their

choice in the absence of the” practice under attack. 478 U.S.

at 50 n.17 (emphasis added). At best, such a minority group

can allege “that the [challenged practice] impairs its ability

to influence elections” by joining multi-racial political

coalitions. Jd. at 46 n.12 (emphasis in original); accord

Johnson v. De Grandy, 512 U.S. 997, 1009 (1994) (where

“members of a minority group are a minority of the voters,”

they allege that their group is “potentially influential’);

Voinovich, 507 U.S. at 154 (voters allege “influence-

dilution” where they “do not allege that [the challenged plan]

prevented black voters from constituting a majority in

additional districts” (emphasis in original)); Growe, 507 U.S.

17

at 41 n.5 (“a minority group not sufficiently large to

constitute a majority” alleges an “ability to influence, rather

than alter, election results”). Accordingly, the majority-in-a-

district showing is the first “necessary precondition[]” of a

claim that a challenged practice deprives black voters of the

ability to elect the candidates of their choice. Gingles, 478

U.S. at 50.

As Petitioners concede, Pet. at 20, the Court always has

recognized that candidates preferred by a group of minority

voters, however small, can be elected with the support of

white voters. See Gingles, 478 U.S. at 89 n.1 (O’Connor, J.,

concurring in judgment); De Grandy, 512 U.S. at 1020

(“[T]here are communities in which minority citizens are

able to form coalitions with voters from other racial and

ethnic groups, having no need to be a majority within a

single district in order to elect their candidates of their

choice.””); Voinovich, 507 U.S. at 154 (black voters that do

not constitute a district majority “could not dictate electoral

outcomes independently,” “[bJut they could elect their

candidate of choice nonetheless if they are numerous enough

and their candidate attracts sufficient cross-over votes from

white voters”). One of the challenged districts in Gingles

itself consistently had elected a black candidate even though

blacks constituted only 36.3% of the population. 478 U.S. at

77, 74 & n.35. Indeed, under Gingles, the absence of such

victories for minority-preferred candidates is an additional

precondition for vote-dilution claims. See id. at 56 (no

Section 2 claim where “the combined strength of minority

support plus white ‘crossover’ votes” usually prevails over a

white majority under the challenged plan).

Thus, in clearly holding that a group too small to be a

district majority “cannot maintain that they would have been

able to elect representatives of their choice,” Gingles, 478

U.S. at 50 n.17, the Gingles Court necessarily concluded that

the opportunity “to elect” protected by Section 2 is the

ability of a protected class “to elect a representative of its

own choice,” by “dictat[ing] outcomes independently.”

18

Growe, 507 U.S. at 40 (emphasis added); Voinovich, 507

U.S. at 154; see also Gingles, 478 U.S. at 67-68 (“Section

2(b) states that a violation is established if it can be shown

that members of a protected minority group ‘have less

opportunity than other members of the electorate to . . . elect

representatives of their choice.” (quoting 42 U.S.C. § 1973)

(emphasis added = in Gingles)), Pet. App. 14a-I5a.

Petitioners’ argument to the contrary rests on the

fundamentally mistaken premise that minority voters have a

statutory right to the election of their preferred candidates.

On the contrary, “[tlhe objective of Section 2 ‘s not to ensure

that a candidate supported by minority voters can be elected

ina district. Rather, it is to guarantee that a minority group

will not be denied, on account of race, color, or language

minority status, the ability “to elect its candidate of choice on

an equal basis with other voters.” Pet. App. 16a (quoting

Voinovich, 507 U.S. at 153).

When a districting plan denies black voters the numbers

they need to form a winning coalition with white voters, the

plan deprives the entire coalition, black and white, of the

ability to elect its preferred representatives. Such a plan does

not “result[{]” in vote dilution “on account of race” and does

not cause black voters to have “less opportunity than other

members of the electorate . . . to elect representatives of their

choice.” 42 U.S.C. § 1973(a) & (b) (emphasis added). Bi-

racial coalitions are not defined by “race” and are not

protected by the Voting Rights Act; racial groups are. And

members of a racial group are not provided with “less

opportunity thar other members of the electorate” if they are

unable to form a winning coalition, because no racial group

(or group defined by any other characteristic) has a right to

form a winning coalition. Granting minorities a right to

rearrange districts so that their political coalition will usually

win has nothing to do with equal opportunity, but is

preferential treatment afforded to no others. If a plan impairs

votes not “on account of race” but on account of membership

in a political coalition, the plan dees not violate Section 2.

19

See, e.g., Whitcomb v. Chavis, 403 U.S. 124, 153 (1971) (no

vote-dilution claim when a minority group, “along with all

other Democrats, suffers the disaster of losing too many

elections” (emphasis added)); City of Mobile v. Bolden, 446

U.S. 55, 109 (1980) (Marshall, J., dissenting) (no Section 2

claim where minorities’ “lack of success at the polls was the

result of partisan politics, not racial vote dilution”); Pet. App.

17a-19a.

B. Petitioners’ Claim Also Conflicts Irreconcilably

With The Purpose Of Section 2.

Petitioners’ claim runs afoul of not only the statutory

language but also its unmistakable purpose to protect racial

groups. Pet. App. 18a (“The Voting Rights Act is a balm for

racial minorities, not political ones—even though the two

often coincide.” (interial quotation marks omitted)).

Experience in the lower courts confirms that a “coalition”

claim simply seeks advantage for a political party to which

minority voters belong. See, e.g.. McConnell, 201 F. Supp.

Id at 643 n.22 (claim seeks 25% to 40% black districts

because “[w]ith the aid of a substantial (but not majority)

black population that votes nearly exclusively for a

Democratic candidate, a [Democratic candidate can] . . . use

the black vote to defeat any Republican challenger in the

general election”); Smith, 189 F. Supp. 2d at 537 (claim

reduces to argument “that more minorities are required in [a

district] to make the congressional race more competitive for

democratic candidates”). Indeed, Petitioners’ own counsel

acknowledges that these claims are driven by party

operatives who attempt—with uneven success—to gain

support from minority politicians. See J. Gerald Hebert,

Redistricting in the Post-2000 Era, 8 Geo, Mason L. Rev.

431. 455 (2000) (stating that “the Democratic Party will seek

to work closely with minority officeholders and civil rights

advocates to create districts that” are “less than 50%

minority”). As one court of appeals aptly put it, the plaintiffs

in these cases are “indistinguishable from political minorities

20

as opposed to racial minorities.” Nixon, 76 F.3d at 1392

(internal citations omitted).

Thus. “coalition” claims are not cognizable under Section

2 for the simple reason that “[t]he Act's purpose is not to

ensure the election of candidates ... of any particular

political party.” Lewis v. Alamance County, 99 F.3d 600,

617 (4th Cir. 1996). No exception to this rule exists where a

political party is supported by a minority group. See, e.g.,

Baird v. Consol. City of Indianapolis, 976 F.2d 357, 361 (7th

Cir. 1992) (“The Voting Rights Act does not guarantee that

nominees of the Democratic Party will be elected, even if

black voters are likely to favor that party’s candidates.”’);

Nixon, 76 F.3d at 1392 (A “group that is too small to be

expected to win a seat, were it purely a political group,

cannot legitimately have heightened expectations because

the basis for the group’s existence is tied to the race of its

members.”). Granting minorities a righ to rearrange

districts so that their political coalition will usually win has

nothing to do with equal opportunity, but is preferential

treatment afforded to no others.

Courts. moreover, are ill-equipped to decide which of two

plans will elect more minority-preferred candidates. It was

recognized as early as Gingles that shifting black voters

between districts has an inherently unpredictable effect on

the number of black-preferred candidates elected. See 478

U.S. at 87-89 (O'Connor, J., concurring in judgment);

accord Georgia v. Ashcroft, 539 U.S. 461, 480-82 (2003).

Petitioners’ claim illustrates this point perfectly. According

to Petitioners, Section 2 requires the black population of one

district to be increased from 34% to 40%, largely by shifting

black voters out of Virginia’s only majority-black

congressional district, which has a black voting-age

population of only 53.2%. Pet. App. 3a-Sa, 42a. By

“spreading out minority voters over” the two districts,

Petitioners’ proposal might result in the election of minority-

preferred representatives from both districts. Georgia, 539

U.S. at 481. “It also, however, creates the risk that the

21

—

minority group’s preferred candidate may lose” in both

districts. /d.; accord Pet. App. 42a.

As then-Judge Breyer observed, entertaining claims like

Petitioners’ “would require courts to make the very finest of

political judgments about possibilities and effects—

judgments well beyond their capacities.” Latino Political

Action Comm., Inc. v. City of Boston, 784 F.2d 409, 412 (Ist

Cir. 1986). The district court here emphasized:

Plaintiffs allege that a 34 percent black population in the

Fourth District denies black voters their basic voting

rights but an ‘approximately 40%’ black population would

guarantee those rights. Thus, the Court will be required to

find that this six percent differential is of critical

significance, because white crossover voting is enough to

elect a black-preferred candidate at 40 percent, but plainly

insufficient at 34 percent.

Pet. App. 41a (footnote omitted). At the same time,

Petitioners allege that a corresponding reduction of black

population by approximately seven percent in the adjacent

district, which is Virginia’s first majority-black district,

would have no effect. See id. at 42a; see also id. at 4a, 26a-

27a & n.4. Thus, in adjudicating the type of claim advanced

by Petitioners, courts would be asked to decide whether the

slightest of population shifts has a dispositive effect in one

district and no impact in another. The Voting Rights Act

does not authorize claims that would require counterintuitive

prognostications with a level of certainty that no court can

achieve.

Nor, as Petitioners urge, would recognizing influence

claims “encourage the transition to a society where race no

longer matters.” Pet. at 29 (quoting Georgia, 539 U.S. at

490-91). Race-consciousness is not decreased if legislators

are required to adjust racial percentages in districts where

blacks. are present in sufficient numbers to “influence”

electoral outcomes. If legislatures must constantly tinker

with black percentages to avoid liability, then virtually no

22

redistricting decision will be made where race is not a

predominant factor (in violation of the color-blind

commands of Shaw v. Reno, 509 U.S. 630 (1993)). Nor is

the federal judiciary equipped, or authorized under Georgia,

to dictate to state legislatures on whether racial harmony is

better enhanced in a 34% black district than it would be in a

40% black district mandated by judicial fiat.

Moreover, racial harmony is hardly enhanced when the

interests of one minority group are subverted to further those

of another minority group. In Metts, for example, the district

challenged had a 21.4% black population and a 46.7%

Hispanic population. This had altered the preexisting district

from 25.7% black and 41% Hispanic. Perhaps as a

consequence, a Hispanic challenger defeated the black

‘ncumbent and went on to win the election in the new

district. 363 F.3d at 9. Following the en banc opinion in

Metts. the State settled the case by increasing the black

population back to 26%. Pet, at 13. In the next election, a

black candidate was elected instead of the Hispanic in the

district. See Pet. at 13 citing http://www.elections.ri.gov/

2004GE/SenateDis6.htm; http://www.elections.ri.gov/2004

Primary/SenateDis6.htm. The net result of Metts, then, was

to authorize the lower court to deprive Hispanic voters, who

constituted the bulk of the district, of their new electoral

opportunity and return power to the smaller black group that

had enjoyed representation during the prior decade. Neither

the Metts court nor Petitioners provide any inkling of why

modifying legislative choices in order to elevate blacks over

another minority group furthers racial harmony or is

authorized by the Voting Rights Act.

C. Petitioners’ Claim Improperly Would Authorize

Section 2 Lawsuits Wherever Minority-Supported

Candidates Lose Elections.

Petitioners directly concede that their theory would

eliminate the first Gingles precondition entirely, and there is

no merit to their assurance that claims may “easily be

23

rejected” under “the second and third Gingles prongs, and

[under] the totality of circumstances factors.” Pet. at 28. To

the contrary, the district court recognized that “{mJembers of

any protected minority group could always launch a lawsuit

to increase their presence in a district from 15 percent to 20

percent, or from 20 percent to 25 percent, and argue that this

increase will cause their candidate to prevail” in a district

where, for example, the Democratic candidate previously

received 45-46% of the vote. Pet. App. 40a. In these

circumstances, the second Gingles precondition would be

satisfied by the minority group’s cohesive support for

Democrats, and the third Gingles precondition would be

satisfied by the usual defeat of the Democratic candidate.

See Gingles, 478 U.S. at 56 (“[I]Jn general, a white bloc vote

that normally will defeat the combined strength of minority

support plus white ‘crossover’ votes rises to the level of

legally significant white bloc voting.”).

It is utterly absurd to argue that recognizing influence

claims—and eliminating the first Gingles precondition, the

principal bulwark against proportional representation and

against frivolous Section 2 claims—would somehow “reduce

the amount of Section 2 litigation brought by less-than-50%

minority groups.” Pet. at 18-19. Contrary to Petitioners’

claim, Pet. at 28, the floodgates would not be obstructed by

plaintiffs’ need to prove that their political coalition could

prevail under an alternative plan. This “requirement” is

nothing more than a restatement of the third Gingles prong,

which itself requires that the challenged plan causes the

minority group’s preferred candidates usually to lose

elections that they otherwise usually would win. Petitioners

effectively are saying that maximization is required “only”

when maximization is possible—hardly a serious limitation

on their proffered maximization rule.

Moreover, Petitioners’ vote-dilution theory would entail

judicial second-guessing and mandatory redrawing of district

lines in areas that do not present the sort of “racial and ethnic

cleavages” in the electorate that the Voting Rights Act was

24

designed to eradicate. De Grandy, 512 U.S. at 1020. If, as

Petitioners claim, the area encompassing the challenged

district is one in which black candidates can be elected in a

40% black district, then this is an electorate where white

voters will willingly support a black candidate and that

therefore does not present the sort of racial bloc voting

problem that Section 2 is designed to correct. This is in stark

contrast to the districts at issue in Gingles and elsewhere, in

which whites would not vote for minority candidates and

thus there was a demonstrable need for minorities to

constitute a majority in order for them to elect their preferred

candidate. Hence, the ultimate perversity of Petitioners’

proposed rule is that it would penalize those areas where

voters do engage in colorblind voting on the merits, such that

minority candidates can be elected through the aid of

substantial white crossover voting. On the other hand, it

would leave untouched those areas where whites continue to

- refrain from voting for candidates of a different race because,

in those jurisdictions, plaintiffs will not be able to argue that

minority-preferred candidates can be elected, since there will

be no white crossover voting to aid minorities in their

proposed bi-racial coalition.

This is well illustrated by the recent Metts case in the First

Circuit, where black voters had the potential to constitute

only 26% of a district. By alleging that their multi-racial

political coalition had the potential to elect its preferred

representatives, the plaintiffs necessarily were contending

that the white and Hispanic crossover rate w s at least 32%,

meaning that more non-black voters than black voters were

voting for black-preferred candidates. See 363 F.3d at 13

(Selya, J., dissenting). Thus, Petitioners ask the Court to

authorize greater judicial interference in the areas where

racially polarized voting is /ess of a problem. Such a rule

would be intolerable under “a statute meant to hasten the

waning of racism in American politics.” De Grandy, 512

U.S. at 1020.

—_—_

25

Petitioners’ de facto elimination of the first Gingles

precondition effectively would require creation of districts

where a minority group’s preferred representatives are

usually elected, at least up to the point of proportionality

between the percentage of such districts in the jurisdiction

and the group’s percentage of the jurisdiction’s population.

A Section 2 plaintiff would be able to establish a nearly

irrebuttable prima facie case by showing that whites outvote

a cohesive minority group, and courts would be required to

impose an alternative redistricting scheme that allows the

minority’s political coalition to outvote the white majority.

The Gingles preconditions do not technically establish a

Section 2 violation, since the “totality of circumstances”

must be further analyzed. See De Grandy, 512 U.S. at 1011.

But, in practice, the totality-of-circumstances factors have

not often been the basis for denial of Section 2 claims. See

id. at 1012 (“lack of equal electoral opportunity may be

readily imagined and unsurprising when demonstrated under

circumstances that include the three essential Gingles

factors”). The only reliable defense would be that

proportionality has been achieved under De Grandy, see id.,

thus confirming that Petitioners’ theory requires

representation up to the point of proportionality.

In fact, Gingles specifically stated that the purpose of the

majority-in-a-district requirement is to foreclose a

proportionality rule: The “reason” that Section 2 authorizes

vote-dilution claims only “in districts in which members of a

racial minority would constitute a majority of the voters” is

to insure that Section 2 will “only protect racial minority

votes from diminution proximately caused by the

[re]districting; [but] would not assure racial minorities

proportional representation.” 478 U.S. at 50 n.17 (emphasis

in original; internal quotation marks omitted). As Justice

O’Connor’s concurring opinion explained, the majority-in-a-

district requirement is a thin barrier against a proportionality

rule because, under the framework adopted by the Court,

proportionality usually will be required whenever geography

26

permits the creation of majority-black districts in proportion

to the black population percentage. /d. at 91-92 (O'Connor,

J., concurring in judgment). Justice O’Connor’s opinion,

moreover, argued that the majority’s standards “come closer

to an absolute requirement of proportional representation

than Congress intended when it codified the results test in

§ 2.” Id. at 94 (emphasis added). The Gingles concurrence

thus provides an even stronger basis than the majority

opinion for rejecting Petitioners’ effort to eliminate the

majority-in-a-district obstacle to a proportionality mandate.

The Gingles Court unanimously concluded that Section 2’s

prohibition of a proportionality rule necessitates either the

majority-in-a-district requirement or a higher threshold for

vote-dilution claims.

Gingles also refutes Petitioners’ assertion that the Senate

Report on amended Section 2 requires courts to explore the

totality of the circumstances in every case. Gingles itself

“rel[ied] heavily on the Report,” Pet. at 23, and nevertheless

established three “necessary preconditions” to Section 2

vote-dilution claims. 478 U.S. at 50. To be sure, for a

finding in their favor, plaintiffs must show vote dilution “in

the context of all the circumstances,” S. Rep. No. 97-417, at

27 (1982), quoted in Pet. at 23, but this does not suggest that

a court cannot “provide[] some structure to the statute’s

‘totality of circumstances’ test” by recognizing threshold

elements. De Grandy, 512 U.S. at 1010; see also id. at 1011

(“{I]f Gingles so clearly identified the three [preconditions]

as generally necessary to prove a § 2 claim, it just as clearly

declined to hold them sufficient in combinatic 1... .”).

Nor is it true that Section 2 claims must be allowed

wherever minorities suffer political defeats because the

majority-in-a-district requirement is an “arbitrary” or

necessarily inflexible “numerical cutoff.” Pet. at 24. Far

from being arbitrary, the 50% figure identifies the point at

which the minority group cannot possibly need white

crossover votes to elect their candidates of choice. For all

the reasons discussed above, that point is central to the

ee ee

27

statute’s protection of racial groups, not multi-racial political

ones. Furthermore, this case does not present the issue

whether the 50% figure should be based on total population,

as opposed to voling-age population or citizen voting-age

population. See, e.g., De Grandy, 512 U.S. at 1008.

Similarly, as Petitioners themselves point out, Pet. at 20, it

might be shown in a particular jurisdiction that, due to the

consistent presence of more than two candidates, a group

need not constitute 50% of voters in order to provide all of

the votes that the winning candidate will need. In this case,

however, the complaint plainly states that black voters would

require “some white cross-over votes” to elect their preferred

candidates. Pet. App. 50a; accord Pet. at 2. This case

therefore presents only the issue whether the Court should

eliminate the first Gingles precondition in favor of a rough

proportionality rule.

D. Georgia v. Ashcroft Does Not Authorize Influence

Claims.

Georgia v. Ashcroft, 539 U.S. 461 (2003), confirms that

the Act does not require the creation of influence districts.

Georgia authorized state legislatures, even under the

stringent requirements of Section 5 of the Voting Rights Act,

to voluntarily create influence districts in place of majority-

minority districts. That influence districts are permissible,

however, in no way suggests that state legislatures are

required to create them under the Voting Rights Act.

Indeed, Georgia substantially enhanced state legislative.

autonomy to redistrict free from federal judicial interference.

Although Section 5, unlike Section 2, bluntly “insure[s]”

preservation of “current minority voting strength,” states are

nevertheless free to reduce the number of majority-minority

districts, creating “fewer minority representatives” and more

districts where “minority voters may not be able to elect a

candidate of choice.” /d. at 482. Such redistricting

decisions, this Court explained, constitute a “political

choice,” and state legislatures, not federal courts, are

28

empowered to “choose one theory of effective representation

over the other.” /d. at 482-483. This Court held:

In order to maximize the electoral success of a minority

group, a State may choose to create a certain number of

“cafe” districts, in which it is highly likely that minority

voters will be able to elect the candidate of their choice.

See Thornburg v. Gingles, 478 U.S. at 48-49; id. at 87-89

(O’Connor, J., concurring in judgment). Alternatively, a

State may choose to create a greater number of districts in

which it is likely—although perhaps not quite as likely as

under the benchmark plan—that minority voters will be

able to elect candidates of their choice. See id., at 88-89

(O'Connor, J., concurring in judgment); cf. Pildes, /s

Voting-Rights Law Now at War With Itself? Social

Science and Voting Rights in the 2000s, 80 N.C. L. Rev.

1517 (2002). ;

Section 5 does not dictate that a State must pick one of

these methods of redistricting over another.

Id. at 480.

Thus, Petitioners’ argument that Georgia authorizes

influence districts “turns the principle of Georgia v. Ashcroft

on its head.” Session, 298 F. Supp. 2d at 485. Georgia

“gave states greater latitude in complying with the Voting

Rights Act,” and thus cannot be read as “fencing even more

territory from state legislative reach.” /d. (emphasis added).

Since it is now clear th st, even under the blunt commands of

Section 5, federal courts may not require states to preserve

existing majority-minority districts where minorities can

elect their preferred candidates, because the Voting Rights

Act leaves such a political choice to legislatures, a fortiori

federal courts cannot dictate the preservation or creation of

influence districts, on the theory that Section 2 mandates that

any cognizable group of minority voters must always be able

to elect a candidate of choice.

Petitioners make the bizarre assertion that since Georgia

allows states to point to influence districts as a defense to

29

Section 5 liability, it somehow follows that Section 2

requires the creation of influence districts. Pet. at 27. But

the fact that a state need not blindly create majority-minority

districts, but may choose less-than-majority districts if

sufficient to empower minority voters, hardly suggests that

federal courts may require such influence districts in

addition to the majority-minority district(s) the state has

created. Any such rule would fly in the face of the

“political” choice entrusted to the states under Georgia, and

of this Court’s longstanding recognition that states are

entitled to deference in deciding how to ensure minorities the

opportunity to participate in the political process. See

Georgia, 539 U.S. at 481-82; see also Miller vy. Johnson, 515

U.S. 900, 915 (1995) (federal interference with state

districting “rep~2sents a serious intrusion on the most vital of

local functions”); Connor v. Finch, 431 U.S. 407, 414 (1977)

(reapportionment “is primarily a matter for legislative

consideration and determination”); Chapman v. Meier, 420

U.S. 1, 27 (1975) (“[R]eapportionment is primarily the duty

and responsibility of the State”). Moreover, it is illogical to

suggest that aspects of a districting plan that aid in its

defense are somehow required. For example, although

legislatures are free to seek proportionality and may cite

proportional representation as a defense to a Section 2 claim,

Section 2, by its terms, does not require such proportionality.

See De Grandy, 512 U.S. at 1220.

Thus, while Georgia recognizes again the obvious

electoral reality that minority-preferred candidates can

succeed in districts where blacks constitute less than a

majority, it did not require the creation of influence districts

because the Voting Rights Act does not ensure the success of

candidates supported by a bi-racial political coalition.

30

CONCLUSION

The petition should be denied.

Respectfully submitted,

MICHAEL A. CARVIN

(Counsel Of Record)

SHAY DVORETZKY Louis K. FISHER

JONES DAY JONES DAY

222 East 41st Street 51 Louisiana Avenue, N.W.

New York, NY 10017 Washington, D.C. 20001

(202) 326-3939 (202) 879-3939

Counsel for Respondents Gary Thompson, Charles Brown,

James Brown, James Alfred Carey, Evelyn Chandler,

Clifton E. Hayes, Jr., Quentin E. Hicks, Irene Hurst,

and Wayne Osmore

February 28, 2005