# Opposition Brief — Hall v. Virginia

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1240%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2005
- **Citation:** 544 U.S. 961

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1240%3A2. Public record. Not legal advice.