Amicus Curiae Brief — Miller v. Johnson

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Nos. 94-631, 94-797, and 94-929 | supreme Cours > |

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IN THE es > 4995

Supreme Court of the United States |

OCTOBER TERM, 1994

ns el *

ZELL MILLER, ET AL.,

Appellants,

vs.

DAVIDA JOHNSON, ET AL.,

Appellees.

(For Continuation of Caption See Reverse Side of Cover)

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

BRIEF AMICUS CURIAE OF

ANTI-DEFAMATION LEAGUE

IN SUPPORT OF APPELLEES

MARTIN E. KARLINSKY, ESQ. _F. PETER PHILLIPS, Esq.

(Counsel of Record) SCHULTE ROTH & ZABEL

ALLISON J. UNGER, Esq. 900 Third Avenue

CAMHY KARLINSKY & New York, New York 10022

STEIN LLP (212) 758-0404

1740 Broadway, 16th Floor

New York, New York RUTH L. LANSNER, ESQ.

10019-4315 JEFFREY P. SINENSKY, ESQ. -

(212) 977-6600 STEVEN M. FREEMAN, ESQ.

DEBBIE N. KAMINER, ESQ.

ANTI-DEFAMATION LEAGUE

823 United Nations Plaza

New York, New York 10017

(212) 490-2525

Attorneys for Anti-Defamation League,

Amicus Curiae

a3

;

LUCIOUS ABRAMS, JR., ET AL.,

Appellants,

vs.

DAVIDA JOHNSON, ET AL.,

Appellees. |

UNITED STATES OF AMERICA,

Appellant,

VS.

DAVIDA JOHNSON, ET AL.,

Appellees.

SSRIS:

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TABLE OF CONTENTS

py Nias 8 gg |. il

Ek) a l

ED er 3

SUMMARY OF ARGUMENT ................ 5

ARGUMENT

GEORGIA’S ADOPTION OF THE THIRD PLAN

AND CREATION OF THE ELEVENTH DISTRICT

VIOLATED EQUAL PROTECTION PRINCIPLES

AND THEREFORE PROPERLY TRIGGERED

STRICT SCRUTINY BECAUSE THE LEGISLATURE

USED RACE AS THE SUBSTANTIAL OR

MOTIVATING CONSIDERATION IN

ee 7

A. Georgia’s, Third Pian Constitutes A Racial

Classification Antithetical To Our Democratic

System Of Representative Self-Government ... 9

B. The District Court Correctly Applied The Equal

Protection Principles That Have Been

Asticulated By This Court .............. 12

C. States Must Comport With Equal Protection

Principles When Creating Voting Districts .... 15

D. Nothing In Shaw Or UJO Precludes The Court

From Affirming The Holding Of The District

Gg ts Sak Rule See 17

E. Shaw Did Not Add A New Requirement—

Bizarreness Of Shape—To The Settled Elements

Of An Equal ProtectionClam ........... 19

ee 22

il

TABLE OF AUTHORITIES

CASES

Anderson v. Martin, 375 U.S. 399 (1964) .......... 11

Boston Firefighter’s Union, Local 718 v. Boston

Chapter, NAACP, 461 U.S. 477 (1983) .......... 2

Brown v. Board of Educ. , 347 U.S. 483 (1954) .... 2, 21

Cardona v. Power, 384 U.S. 672 (1966) ........... 2

City of Richmond v. J.A. Croson Co., 488 U.S. 469

CE oe re ee ee es ee ee ee 2, 16

De Funis v. Odegaard, 416 U.S. 31 (1974) ......... 2

Firefighters Local Union No. 1784 v. Stotts, 467

CE, ee ko kek 0 a ee eee 2

Fullilove v. Klutznick, 448 U.S. 448 (1980) ......... 2

Gomillion v. Lightfoot, 364 U.S. 339 (1960) ........ 9

Harper v. Virginia St. Bd. of Elections, 383 U.S.

ATID. go 6 ace be ok en ee ee 16

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

Johnson v. Miller, 864 F. Supp. 1354

ae, Sa: Fe 60 ie ee ra passim

Jones vy. Alfred H. Mayer, Co., 392 U.S. 409 (1968) ... 2

McDonald v. Santa Fe Trail Transp. Co., 427 U.S.

Te te oe ee a ee ee eS 2

Metro Broadcasting, Inc. v. FCC, 497 U.S. 547

CO A gare hoe aaa a eee ea ee a ae ee 2

Mobile v. Bolden, 446 U.S. 55 (1980) ............ 16

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

MIO OD. FIG cc he ee eh eee tee 16

,

ill

Palmore v. Sidoti, 466 U.S. 429 (1984) ........... 2

Plessy v. Ferguson, 163 U.S. 587 (1896) .......... 21

Regents of Univ. of Cal. v. Bakke, 438 U.S. 265

lee de ee ee ahr oe ec nctae muah Soy AO 2, 16

Runyon v. McCrary, 427 U.S. 160 (1976) ..:....... 2

Shaw v. Reno, 113 S. Ct. 2816 (1993) ......... passim

Shelley v. Kraemer, 334 U.S. 1 (1948)... 2.2.2.2... 2

Sullivan v. Little Hunting Park, Inc. , 396 U.S.

SEP CUPOD. bb oc thse eer ewe ene dareaewas 2

Texas Dep’t of Community Affairs v. Burdine,

de eo | | 14

United Jewish Orgs. of Williamsburg, Inc. v.

Carey, 430 U.S. 144 (1977) .....0.0000... 2, 13, 17

United Steelworkers v. Weber, 443 U.S. 193 (1979) ... 2

Village of Arlington Heights v. Metropolitan

Housing Dev. Corp. , 429 U.S. 252 (1977) ... 8, 13, 14

Washington v. Davis, 426 U.S. 229 (1976) .... 7. 12, 14

Wright v. Rockefeller, 376 U.S.52 (1964) ...... 11, 18

Wygant v. Jackson Bd. of Educ. , 476 U.S. 267

GED 6 6s cence asad ennrcreweedocacee 2, 16

STATUTES, REGULATIONS AND RULE

42 U.S.C. § 1973(b) 2. ee, 16

42 U.S.C. §§ 1973b-c 22 ee, 3

28 C.F.R. § S1.S4(a). 2. 16

Supreme Court Rule 36.2 ........2....2........ |

SECONDARY AUTHORITIES

John Hart Ely, Democracy and Distrust 87 (1980)... .. 21

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1994

No. 94-631

ZELL MILLER, ET AL., APPELLANTS,

VS.

DAVIDA JOHNSON, ET AL., APPELLEES.

No. 94-797

LUCIOUS ABRAMS, JR., ET AL., APPELLANTS,

VS.

DAVIDA JOHNSON, ET AL., APPELLEES.

No. 94-929

UNITED STATES OF AMERICA, APPELLANT,

VS.

DAVIDA JOHNSON, ET AL., APPELLEES.

On Appeal From The United States District Court

For The Southern District of Georgia

BRIEF AMICUS CURIAE OF

ANTI-DEFAMATION LEAGUE

IN SUPPORT OF APPELLEES

INTEREST OF AMICUS

This brief is submitted on behalf of the Anti-

Defamation League (“ADL”) as amicus curiae. Pursuant to

Rule 36.2 of the Rules of this Court, ADL has obtained and

files herewith the written consent of all parties to this appeal

to the submission of this brief.

ADL was organized in 1913 to advance good will and

mutual understanding among Americans of all creeds and

races, and to combat racial and religious prejudice in the

United States. ADL is vitally interested in protecting the civil

rights of all persons, whether they are members of a minority

or of the majority, and in assuring that each individual

receives equal treatment under the law regardless of that

person’s race, ethnicity, or religion. ADL advocates that each

citizen has a constitutional right to be treated as an individual,

rather than as a component part of a racial or ethnic group.

Among its many activities directed to these ends, ADL

has filed amicus briefs in this Court urging the

unconstitutionality or illegality of racially discriminatory laws

or practices in Shelley v. Kraemer, 334 U.S. 1 (1948): Brown

v. Board of Educ., 347 U.S. 483 (1954); Jones vy. Alfred H.

Mayer, Co., 392 U.S. 409 (1968); Sullivan v. Little Hunting

Park, Inc., 396 U.S. 229 (1969); De Funis vy. Odegaard, 416

U.S. 312 (1974); Runyon vy. McCrary, 427 U.S. 160 (1976):

McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273

(1976); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265

(1978); United Steelworkers v. Weber, 443 U.S. 193 (1979):

Fullilove v. Klutznick, 448 U.S. 448 (1980); Boston

Firefighter’s Union, Local 718 v. Boston Chapter, NAACP,

461 U.S. 477 (1983); Palmore v. Sidoti, 466 U.S. 429 (1984);

Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561

(1984); Wygant v. Jackson Bd. of Educ. , 476 U.S. 267 (1986):

City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989):

and Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990).

In the area of voting rights, ADL has filed amicus briefs in

Cardona v. Power, 384 U.S. 672 (1966); United Jewish Ores.

of Williamsburg, Inc. v. Carey, 430 U.S. 144 (1977); and

most recently in Johnson v. De Grandy, 114 S. Ct. 2647

(1994).

ADL submits this brief to advance its conviction that

redistricting substantially motivated by racial considerations

impairs the liberties secured by the Equal Protection Clause of

fais.

the Fourteenth Amendment to the United States Constitution.

In ADL’s view, such state action offends core equal protection

principles, is inimical to democratic values, and undermines

the fundamental importance of the franchise to our society and

democratic system of government.

In taking this position, ADL strongly reaffirms its

principled adherence to a policy opposing racial classifications

of all kinds. Although ADL recognizes that the goal of

increasing specific minority group participation in the political

process is commendable, ADL equally insists that racial

classification in redistricting—the premise of maximization and

proportionality—is constitutionally indefensible and, in the

end, will defeat the laudable motives of the appellants. The

presumption that only a member of a certain race can or will

effectively represent his or her constituents of that same race

is antithetical to the goal of a society—and a Constitution

—blind to racial classifications.

STATEMENT

Following the 1990 Census, the State of Georgia

became entitled to an increase in the number—from ten to

eleven—of its seats in the United States House of

Representatives. Johnson y. Miller, 864 F. Supp. 1354, 1360

(S.D. Ga. 1994). The Georgia General Assembly convened

in August 1991 to create an eleventh district and, pursuant to

the preclearance requirements of Sections 2 and 5 of the

Voting Rights Act of 1965, as amended, 42 U.S.C. §§ 1973b-

c (“Voting Rights Act”), submitted a redistricting plan to the

United States Department of Justice (“DOJ”) on October 1,

1991. Id. at 1363. DOJ refused preclearance. I/d.

The Georgia General Assembly approved and

submitted a second plan to DOJ on March 3, 1992. Id. at

1364. Both the first and the second plans contained two

majority black districts, the Second District and the Fifth

District. DOJ again refused preclearance. /d. at 1365.

Georgia prepared and submitted a third plan on March 31,

1992. This plan contained three majority black districts, the

Second, Fifth, and Eleventh Districts. DOJ approved the third

plan on April 2, 1992. Jd. at 1367.

The Georgia legislature had adopted redistricting

guidelines and objectives that it adhered to throughout the

legislative redistricting process. /d. at 1360. After the first

plan was rejected by DOJ, however, one of these objectives

became predominant: It “soon became obvious” that no plan

would gain preclearance by DOJ unless the Eleventh District

included a majority of blacks of voting age. Jd. at 1363-64.

The district court found, and the parties do not

seriously dispute, that the revisions that the Georgia Assembly

made to its initial plan in order to obtain DOJ preclearance

were “purely race-based.” /d. at 1377. In its brief in this

Court, Georgia concedes that “[t]he only real dispute

concerning the general question of race and congressional

reapportionment related to whether Georgia should have two

or three majority black districts”; that “the general objective

of enacting a majority-minority [Eleventh] district [in the third

and final plan was} never in dispute”; and that “it is

indisputably true that the Eleventh District was purposely

drawn as a majority-minority district.” Brief of Appellants

Miller, et al. (“Miller Br.”) at 8, 9-10, 23: see also Brief of

the United States (“U.S. Br.”) at 6 (“In enacting this plan, the

State clearly intended to create three majority-minority

districts.”).

That the redistricting plan was expressly adopted in

order to manipulate election results along racial lines is also

not subject to dispute. Thus, the Speaker of the Georgia

House of Representatives testified at trial that certain district

boundaries were drawn based upon race in order to “guarantee

a black would be elected from there.” 864 F. Supp. at 1377.

Appellees commenced their action in the district court

on January 13, 1994. /d. at 1369. They alleged, among other

things, that adoption of the third plan and the creation of the

-_

Eleventh District for the reasons set forth above violated the

Equal Protection Clause of the Fourteenth Amendment to the

United States Constitution. Jd. at 1359.

Observing that the Eleventh District was the product of

“government allocations on the basis of race, coupled with

drawing lines tracing concentrations of black citizens,

smack{ing] of government-enforced ghettoization,” the district

court determined that the redistricting plan, insofar as it was

designed for the primary purpose of creating a third majority-

minority district, was subject to constitutional strict scrutiny.

Id. The district court analyzed the third plan under that

standard and, finding that it did not survive such strict

scrutiny, held that the plan was violative of the Equal

Protection Clause. /d. at 1393. .

This appeal followed.

SUMMARY OF ARGUMENT

Having demonstrated by its adoption of the first and

second plans that it could design a constitutionally sound

redistricting scheme that resulted neither in minority dilution

nor minority retrogression in violation of the Voting Rights

Act, the Georgia legislature may not, consistent with the Equal

Protection Clause of the Fourteenth Amendment, modify that

plan and redraw district boundaries based predominantly on

racial considerations. Georgia concedes that the third plan and

the Eleventh District were products of a racial classification

and not of a traditional combination of various districting

principles. Race was the substantial and motivating factor in

the adoption of the third plan and the creation of the Eleventh

District.

The constitutional right of the vote is fundamental to

our system of democratic self-government. The voting right

must be protected from attempts, however broadly favored or

well-intentioned, to manipulate the predicted results of

elections according to race. Appellants’ premise—that the

Constitution will tolerate the third plan’s race-based creation

of political majorities—is repugnant to and unacceptable in this

nation’s democratic system of representative self-government.

The Court’s equal protection jurisprudence furnishes

the proper standard of review with respect to Georgia’s

legislative action. Whenever state action outside the context

of redistricting has any racially discriminatory intent or

purpose, it invokes strict scrutiny. Legislatures are always

aware of race in redistricting, just as they are aware of other

demographic factors; yet states may not racially gerrymander.

When race is the substantial or motivating factor in

redistricting, strict scrutiny is compelled under the Equal

Protection Clause.

Nothing in the Voting Rights Act exempts a state from

satisfying the principles enunciated by the Equal Protection

Ciause. DOJ’s mandates and regulations do not and cannot

immunize a state from the requiremem that it comply with

rudimentary and well settled Equal Protection Clause

principles in the creation of voting districts.

This Court has never held that the use of race as the

substantial or motivating factor in redistricting is

constitutionally permissible. Intent to segregate the electorate

according to race, however established, is a necessary element

of a cause of action for violation of the Equal Protection

Clause in the redistricting context. The facially irregular

shape of a voting district is one, but not the only, method for

establishing such intent; it is not an element of a claim.

Where racial intent or purpose is the predominant motive

behind state action in redistricting, an equal protection claim

is Stated.

ARGUMENT

GEORGIA’S ADOPTION OF THE THIRD PLAN AND

CREATION OF THE ELEVENTH DISTRICT

VIOLATED EQUAL PROTECTION PRINCIPLES AND

THEREFORE PROPERLY TRIGGERED STRICT

SCRUTINY BECAUSE THE LEGISLATURE USED

RACE AS THE SUBSTANTIAL OR MOTIVATING

CONSIDERATION IN REDISTRICTING

It is axiomatic that “[t}he central purpose of the Equal

Protection Clause of the Fourteenth Amendment is _ the

prevention of official conduct discriminating on the basis of

race.” Washington v. Davis, 426 U.S. 229, 239 (1976). This

appeal requires the Court to apply this fundamental precept to

redistricting. The Court must determine whether a state may

use a racial classification as its primary motive in adopting a

redistricting plan.

ADL emphatically agrees with the district court’s

central holding that “in order to invoke strict scrutiny, it must

be shown that race was the substantial or motivating

consideration in creation of the district in question.” Johnson

v. Miller, 864 F. Supp. 1354, 1372 (S.D. Ga. 1994) (emphasis

in original) (footnote omitted). The court properly explained

that, where the state legislature “(a) was consciously

influenced by race, and (b) while other redistricting

considerations may also have consciously influenced the

district shape, race was the overriding, predominant force

determining the lines of the district,” strict scrutiny is

compelled. /d. (emphasis in original). It bears emphasis that

the court used the term “‘motivating’ in the sense that race

was the most prominent element driving the legislature’s

planning, not in the sense of one motivation among others of

equal strength propelling the process.” /d. at 1372 n.19.

Appellants criticize “the rule of law [the district court]

adopts, which holds that racial purpose is the controlling

issue.” Miller Br. at 30. The district cour properly focused

on discriminatory legislative intent or purpose as _ the

touchstone of the inquiry. See Village of Arlington Heights vy.

Metropolitan Housing Dev. Corp., 429 U.S. 252, 265 (1977)

(“Proof of racially discriminatory intent or purpose is required

to show a violation of the Equal Protection Clause.”). Where

a state has adopted a districting plan that conforms to all

traditional redistricting standards and requirements—as Georgia

may have done here in the first and second plans—and in the

absence of a finding of unlawful dilution or retrogression, it

was constitutionally impermissible for that state to modify that

redistricting plan and adopt a different one where race was the

substantial or motivating consideration in doing so.

Whatever features the third and final plan shared with

the first and second plans—such as relative size, length and

contiguity of borders, respect for incumbency, intactness of

counties, even “bizarreness” of shape—can for the purpose of

this analysis be set to one side. The first and second plans

may have been the result of the “pull, haul, and trade to find

common political ground,” Johnson v. De Grandy, 114 S. Ct.

2647, 2661 (1994); clearly the third was not. The primary

and substantial motivation of the third plan, constitutionally

differentiating it from the others, was to classify the electorate

according to race. ADL argues that Georgia may not approve

a voting district that was created with such an intent or

purpose.

This point—vital to the constitutional analysis offered

by ADL—merits elucidation. This appeal does not raise the

issue, set forth in the United States’ brief, of whether “a

‘predominant motive’ to create a majority-minority district

alone requires strict scrutiny.” U.S. Br. at 13 (emphasis

added). The district court condemned state action where race

was the substantial or motivating consideration in creating the

district in question—where race was the overriding and

predominant force determining the lines of the district.

Johnson, 864 F. Supp. at 1372. Race was merely one of

several coniderations in adopting the first two plans; when

these plans were rejected and the third plan was adopted,

however, race was the substantial and motivating

consideration. This the Constitution will not permit, absent

compelling justification and narrow tailoring.

A. Georgia’s Third Plan Constitutes A Racial Classification

Antithetical To Our Democratic System Of Representative

Self-Government.

This case presents a racial classification strikingly

similar to that condemned by the Court nearly thirty-five years

ago in Gomillion v. Lightfoot, 364 U.S. 339 (1960). In

Gomillion, the Court struck down a realignment of the

boundaries of a political subdivision effected by legislation

“solely concerned with segregating white and colored voters

by fencing Negro citizens out.” /d. at 341. Whether the

ac’ion of the Georgia General Assembly is characterized as

fencing black voters in, or fencing white voters out, such an

objective was patently the predominant concern of the

legislature when it modified the second plan and adopted the

third, and it is therefore constitutionally suspect.

As Justice Frankfurter wrote for the Gomillion Court,

“[w]hen a legislature thus singles out a readily isolated

segment of a racial minority for special discriminatory

treatment, it violates the Fifteenth Amendment.” /d. at 346.

Although Gomillion was decided under the Fifteenth

Amendment, the Court has explicitly recognized that the

“unlawful segregation of races of citizens” into different

voting districts is equally offensive in the Fourteenth

Amendment context. Shaw v. Reno, 113 S. Ct. 2816, 2825-26

(1993) (quoting Gomillion, 364 U.S. at 349 (Whittaker, J.,

concurring)). This Court has held that Gomillion supports the

contention that where district lines are obviously drawn for the

purpose of separating voters by race, scrutiny under the Equal

Protection Clause is mandated. See id. at 2826.

Appellants seek to avoid this logic by persuading the

Court that Georgia’s explicit race-conscious conduct in racially

10

manipulating the vote had a benign motive: they seek to

disguise the offensiveness of the conduct by using inoffensive

language to characterize it. The United States terms the third

plan merely an indication that Georgia was “willing to treat

minority interests on a par with those of other groups for

whom majority influence districts are created.” U.S. Br. at

14. It further argues that Georgia has not “taken action that

gives a special preference to [blacks] that it is unwilling to

give to others who are similarly situated.” Jd. at 20.' The

United States would have this Court conclude that a state acts

properly when it racially manipulates voting districts “in an

effort to achieve a fair allocation of political power between

white and nonwhite voters.” /d. at 39.

It emphatically is not the domain of the State of

Georgia or of the United States to “allocate political power”

on the basis of race. Political majorities exist: they are not

“created.” The democratic system assumes that the interests

of majorities are given voice through the franchise, not

manipulated through a process by which “majority influence

districts are created.” Such an argument relies upon precisely

the offensive logic and race-infected presumptions that Shaw

denounced:

It reinforces the perception that members of

the same racial group—regardless of their age,

education, economic status, or the community

in which they live—think alike, share the same

political interests, and will prefer the same

candidates at the polls... . By perpetuating

such notions, a racial gerrymander may

exacerbate the very patterns of racial bloc

The United States also attempts to justify the third plan as a way “to give

minority voters an opportunity to elect the candidates of their choice.” /d.

at 42. This contention is disingenuous. Residents of the newly-created

Eleventh District could always vote for the candidate of their choice. In fact

Georgia was seeking to assure the election of a candidate of a particular race.

voting that majority-minority districting 1s

sometimes said to counteract.

Shaw, 113 S. Ct. at 2827.7

The Court has not tolerated in the past, and should not

now tolerate, “the deliberate segregation of voters into

separate districts on the basis of race.” Jd. at 2824. In the

exercise of the self-determinative voting right, “[t]he vice [of

unconstitutional race-specific state action] lies not in the

resulting injury but in the placing of the power of the State

behind a racial classification that induces racial prejudice at the

polls.” Anderson v. Martin, 375 U.S. 399, 402 (1964)

(barring Louisiana from putting on a ballot opposite a Negro

candidate’s name the word “Negro” because it was a device

that encouraged racial discrimination).

As Shaw notes, racial classifications in redistricting are

“altogether antithetical to our system of representative

democracy.” 113 S. Ct. at 2827. Justice Douglas, in his

dissent in Wright v. Rockefeller, expounded upon this principle

in language that has particular force to this appeal:

When racial or religious lines are drawn by

the State, the multiracial, multireligious

communities that our Constitution seeks to

weld together as one become separatist;

antagonisms that relate to race or to religion

rather than to political issues are generated;

communities seek not the best representative

but the best racial or religious partisan. Since

that system is at war with the democratic ideal,

it should find no footing here.

376 U.S. 52, 67 (1964) (Douglas, J., dissenting). If the Equal

Protection Clause is to have actual meaning in our society,

? Even if, as the United States argues, districting is the process of fairly

allocating political power, the Equal Protection Clause prohibits political

power allocated on the basis of race. See discussion infra Point B.

a

12

surely a fundamental principle that it enunciates is the right of

all citizens to participate in an electoral process that is not

substantially dominated by racial considerations.

B. The District Court Correctly Applied The Equal

Protection Principles That Have Been Articulated By This

Court.

Appellants argue that “the district court’s reliance on

cases Outside the voting area for its view that race-motivated

districting is unconstitutional is misplaced.” Miller Br. at 34.

ADL submits, to the contrary, that the equal protection

principles articulated in the Court’s Equal Protection Clause

decisions furnished the district court with the correct standard

to be applied in redistricting cases.

The district court noted that “[i]f race, however

deliberately used, was one factor among many of equal or

greater significance to the drafters, the plan is not a racial

gerrymander/racial classification subject to strict scrutiny.”

Johnson v. Miller, 864 F. Supp. 1354, 1372 (S.D. Ga. 1994).

However, where racial motivation was of substantially greater

importance to the state than any other factor it considered in

drawing the district, strict scrutiny is required. /d. Thus, the

district court properly focused its inquiry “on the relative

weight of the different motivations that produced the district

under attack.” U.S. Br. at 19.3

In Washington v. Davis, 426 U.S. 229 (1976), this

Court made abundantly clear that the Equal Protection Clause

bars state action that has a “racially discriminatory intent or

purpose.” The Court held that the proper judicial inquiry is

* The United States also argues that “{t]he fact that a state strongly desires

to create a particular district with a majority-minority population says nothing

about whether the state has taken action that amounts to a special preference

for that group.” U.S. Br. at 20. However, “special preferences” for a

particular race are not the touchstone of the inquiry; that touchstone remains

whether Georgia had an overriding “racially discriminatory intent or

purpose” in adopting the third plan. It did.

13

what that state “purpose” was. 426 U.S. 229, 242 (1976).

The Court reaffirmed the application of this principle in

Village of Arlington Heights v. Metropolitan Housing

Development Corp., holding that where “a discriminatory

purpose has been a motivating factor in the [legislative]

decision,” the Equal Protection Clause is violated. 429 U.S.

252, 265-66 (1977).

Strict application of this standard to redistricting cases

that implicate the Voting Rights Act is not practicable,

however, because, as the Court in Shaw observed, “the

legislature always is aware of race when it draws district

lines.” Shaw v. Reno, 113 S. Ct. 2816, 2826 (1993)

(emphasis in original); see also United Jewish Orgs. of

Williamsburg, Inc. v. Carey, 430 U.S. 144, 161 (1977)

(recognizing that a state may use racial factors in redistricting

without violating either the Equal Protection Clause or Section

5 of the Voting Rights Act). Hence, the Shaw Court noted

that this “sort of race consciousness does not lead inevitably

to impermissible race discrimination.” 113 S. Ct. at 2826.

ADL acknowledges that “[rJarely can it be said that a

legislature or administrative body operating under a broad

mandate made a decision motivated solely by a single concern,

or even that a particular purpose was the single ‘dominant’ and

‘primary’ one.” Arlington Heights, 423 U.S. at 265 (footnote

omitted). Here, however, the parties concede that the Georgia

legislature was motivated by a single consideration in

modifying the second redistricting plan and adopting the third:

race. Under the facts of this case, the Court need not engage

in any weighing function. Cf. id.

On this appeal, the Court is presented with the

opportunity to reaffirm and harmonize the standards it has

enunciated in its equal protection jurisprudence. Because

Washington and its progeny make clear that “racially

discriminatory purpose or intent is required to show a violation

of the Equal Protection Clause,” Arlington Heights, 429 U.S.

at 265, and because Shaw makes equally clear that not every

14

instance of race-conscious state action in redistricting gives

rise to an equal protection claim, the analysis adopted by the

district court was the proper one. Legislative decisions about

redistricting may involve race awareness; it is only when race

is the substantial or motivating factor in such decisions that

strict scrutiny is compelled.

This standard properly erects constitutional protections

against state-sponsored racial redistricting classifications that

pose the clear danger of significant incursions on individual

liberties. The standard allows legislatures to take into account

competing considerations (including race) in the creation of

voting districts, while at the same time protecting rights

guaranteed by the Equal Protection Clause. It assures that

racial classifications will not impair the constitutional right to

participate in a fair electoral process.

Appellants nonetheless contend that a test of “intent”

is unworkable. They claim that the so-called Shaw test of

“bizarreness” is easier for a district court to apply. E.g., U.S.

Br. at 21-22 (courts cannot weigh “various goals the

legislature was attempting to achieve” in adopting a particular

districting plan, to determine which is “overriding,”

“predominant” or “most prominent”). This argument is

unsupported by precedent or logic.

Courts regularly reach decisions on matters requiring

proof of discriminatory intent. In Equal Protection Clause

cases and in employment discrimination cases this Court has

not hesiiated to prescribe procedures, such as techniques of

burden-shifting, to be used to evaluate the intent of a corporate

or govemmental entity. See, e.g., Texas Dep’t of Community

Affairs \. Burdine, 450 U.S. 248 (1981); Arlington Heights,

429 U.S. 252; Mt. Healthy City Sch. Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274 (1977); Washington, 426 U.S. 229.

Moreover, a fact-finder’s determination whether the

shape ofa district is “bizarre” also is an exercise in subjective

weighing. What is “bizarre” is inherently a function of that

15

factfinder’s subjective views.* For the purpose of the analysis

offered by ADL, whether the shape of the Eleventh District is

bizarre or not is of no constitutional import if that shape was

determined for a predominantly race-conscious purpose. The

constitutional principle is more decisively resolved by asking

the right question in the first place: Did a legislature

manipulate the composition of the electorate, motivated

primarily or substantially by racial considerations?

Appellants have suggested no other principled test;

they have advanced no reason, compelling or otherwise, to

depart from this strong line of equal protection precedent and

the well settled precepts this Court has articulated. Nor have

they offered any rationale as to why these compelling

authorities should be, either analytically or as a matter of

policy, inapplicable to voting or redistricting. Plainly, they

are directly apposite.

C. States Must Comport With Equal Protection Principles

When Creating Voting Districts.

Shaw recognized that “redistricting differs from other

kinds of state decisionmaking in that the legislature always is

aware of race when it draws district lines, just as it is aware

of age, economic status, religious and political persuasion, and

a variety of other demographic factors.” Shaw v. Reno, 113

S. Ct. 2816, 2826 (1993) (emphasis in origina!). However,

these differences do not mean that race-conscious redistricting

cannot be subjected to the same type of strict scrutiny

‘ Proof of this proposition may be found in the conflicting submissions

made to this Court on this very appeal, in which appellants and amici

continue to seek rulings on what is, purportedly, a question of fact: whether

the Eleventh District is “bizarre.” The district court found it unnecessary to

reach this point and, AI)L submits, this Court need not, should not, and in

any principled way, cannot, make such a de novo finding on appeal.

16

accorded other race-conscious state action.’ It is inconsistent

with the purpose of the Equal Protection Clause, and with this

Court’s past rulings, to immunize a state from complying with

equal protection principles because it obtained preclearance

from DOJ, where DOJ’s requirements themselves violate the

Equal Protection Clause.

Here, DOJ’s objections to Georgia’s first and second

plans were not based on a finding that those plans diluted

black voting rights or caused retrogression of black voting

power. Cf. 28 C.F.R. § 51.54(a) (defining “retrogression in

the position of racial minorities with respect to their effective

exercise of the electoral franchise” as the standard for finding

discriminatory effect in redistricting). DOJ objected precisely

because the plans failed to enhance black voting power to the.

extent DOJ believed appropriate. 864 F. Supp. at 1365. Yet

neither the Voting Rights Act nor the Constitution ensures a

right of proportional representation by race. See Mobile v.

Bolden, 446 U.S. 55, 75 (1980) (“[t]he Equal Protection

Clause of the Fourteenth Amendment does not require

proportional representation”); 42 U.S.C. § 1973(b) (“nothing

in this section establishes a right to have members of a

protected class elected in numbers equai to their proportion in

the population”).

ADL therefore agrees with appellants when, with

irrefutable logic, they observe that “[w]hat would otherwise be

* The fact that the Court has tolerated race-specific state action in other

social contexts does not alter this conclusion. See, e. g., Regents of Univ. of

Cal. v. Bakke, 438 U.S. 265 (1978) (education). City of Richmond y. J.A.

Croson, Co., 488 U.S. 469 (1989) (employment); Wygant v. Jackson Bd. of

Educ., 476 U.S. 267 (1986) (education). The franchise—the manner in

which citizens participate in the process of self-government—1s fundamentally

different from these social concerns. It 1s fundamentally different precisely

because it is the single political mght preservative of all rights. Harper v.

Virginia St. Bd. of Elections, 383 U.S. 663, 667 (1966) (referring to ~‘the

political franchise of voting’ as a ‘fundamental political might, because [it is}

preservative of all rights’™) (quoting Yick Wo v. Hopkins, 118 U.S. 356, 370

(1896)).

17

unconstitutional surely is not made constitutional just because

it might have been enacted in response to a DOJ objection.”

Miller Br. at 28. As this Court observed in Shaw, “the Voting

Rights Act and our case law make clear that a reapportionment

plan that satisfies § 5 still may be enjoined as

unconstitutional.” 113 S. Ct. at 2831.

Furthermore, to extend the effect of the Voting Rights

Act so as to grant states immunity from constitutional

restraints when they claim to act pursuant to its supposed

dictates is, effectively, to elevate a statute to a position

supreme to the Constitution itself. The Voting Rights Act was

designed to prohibit racial segregation in the franchise, not to

effect it. In sum, it cannot legitimately be argued that a state

may exempt itself from conforming to the Constitution by

reciting that it violated the Equal Protection Clause in order to

comply with a statute.

D. Nothing In Shaw Or UJO Precludes The Court From

Affirming The Holding Of The District Court.

The facts of this appeal are distinguishable from the

Court’s prior holdings in this area. Precedent guides, but does

not dictate, the determination of the vital issues raised herein.

In United Jewish Organizations of Williamsburg, Inc.

v. Carey (“UJO”), the Court held that “neither the Fourteenth

nor the Fifteenth Amendment mandates any per se rule against

using racial factors in districting and apportionment.” 430

U.S. 144, 161 (1977) (plurality opinion). In UJO, the Court

upheld without subjecting to strict scrutiny a state’s legislative

redistricting plan that “deliberately used race in a purposeful

manner” to create majority-minority districts in order to

comply with Section 5 of the Voting Rights Act. /d. at 165.

However, there was no claim in UJO that the creation of the

18

State's plan was motivated predominantly or exclusively by

6

race.

In Shaw v. Reno, the Court held that, “a plaintiff

challenging a reapportionment statute under the Equal

Protection Clause may state a claim by alleging that the

legislation, though race-neutral on its face, rationally cannot be

understood as anything other than an effort to separate voters

into different districts on the basis of race, and that the

separation lacks sufficient justification.” 113 S. Ct. 2816,

2828 (1993). The Shaw Court’s premise was consistent with

the settled proposition that, once a voting district “can be

explained only in racial terms,” Wright v. Rockefeller, 376

U.S. 52, 59 (1964) (Douglas, J., dissenting), it can pass

constitutional muster only if it survives strict scrutiny.

Thus, taken together, UJO and Shaw stand for the

proposition that legislatures may consider race among other

factors in redistricting, but that when redistricting may be

rationally understood only as an effort to segregate the

citizenry by race for the purpose of voting, without sufficient

justification, a claim lies under the Equal Protection Clause.

The Court has never expressed a view—and has explicitly

reserved the question—as to whether the intentional creation of

majority-minority districts in the absence of a finding of

minority dilution or retrogression gives rise to an equal

protection claim. See Shaw, 113 S. Ct. at 2828. The district

court correctly answered this question by holding that where

race is the “substantial or motivating consideration in creation

of the district in question,” strict scrutiny is compelled.

Johnson v. Miller, 864 F. Supp. 1354, 1372 (S.D. Ga. 1994).

* The Shaw Court noted that “nothing in [U/O] precludes white voters (or

voters of any other race) from bringing the analytically distinct claim that a

reapportionment plan rationally cannot be understood as anything other than

an effort to segregate citizens into separate voting districts on the basis of

race without sufficient justification.” Shaw v. Reno, 113 S. Ct. 2816, 2830

(1993).

19

E. Shaw Did Not Add A New Requirement—Bizarreness Of

Shape—To The Settled Elements Of An Equal Protection

Claim.

Appellants, and the dissenting judge in the district

court, argue that a Shaw claim arises only when racial

redistricting motivations result in a bizarrely shaped district,

such as the particular district at issue in Shaw. Miller Br. at

24-25; Johnson v. Miller, 864 F. Supp. 1354, 1395 (S.D. Ga.

1994) (Edmondson, J., dissenting). They suggest that the

factfinder must make a subjective assessment of a district’s

“bizarreness” of appearance in order to satisfy what Judge

Edmondson, in dissent, called “a critical part of the cause of

action” under Shaw. Johnson, 864 F. Supp. at 1396

(Edmondson, J., dissenting). They contend that, without such

an assessment, “not even a prima facie equal protection claim

can be made out.” Miller Br. at 24. Shaw, however, does

not compel such a requirement. Shape may be one, but is not

the only, barometer of unconstitutional intent.

Shaw presented a unique set of facts, one of the most

prominent of which was a bizarrely shaped voting district.

Shaw v. Reno, 113 S. Ct. 2816, 2820 (1993) (citing a

description of the shape of the North Carolina plan at issue as

resembling a “bug splattered on a windshield”). The Shaw

Court had no occasion to rule upon the constitutionality of a

substantially race-motivated voting district that was not

bizarrely shaped. This does not compel the peculiar

conclusion that a state may segregate its voting population

according to race, as long as it does so in geometrically

pleasing ways. A state violates the Constitution by

intentionally denying its citizens equal protection under the law

—not by doing so inartfully.

Properly read, Shaw is not confined to the principle

that the Equal Protection Clause prohibits only racially

segregated districts that are bizarrely shaped. It prohibits any

legislation that, “though race-neutral on its face, rationally

cannot be understood as anything other than an effort to

|

20

separate voters into different districts on the basis of race.”

Shaw, 113 S. Ct. at 2832.

Hence, the district court correctly determined that the

bizarre shape of a district is not the only means of proving

intent to racially gerrymander, or for that matter, the only way

to make out a prima facie equal protection claim. Irregular

Shape is a beginning of an equal protection Claim; it is one

indication of prohibited overriding racial intent, but not the

only indication. For if a district on its face conforms to

traditional redistricting values (including shape), but an intent

to racially gerrymander is nevertheless established, by other

indicia, to have been the overriding consideration in creating

the new district, an equal protection claim nevertheless must

lie.

As the court below correctly noted, “the requirement

for a successful Equal Protection claim is still intent, however

proved.” Johnson, 864 F. Supp. at 1374 (emphasis in

original). “Foreclosing production of direct evidence of intent

until Plaintiffs convince the Court that a district looks so weird

that race must have dominated its creation” is not consistent

with the logic of Shaw or with the Equal Protection Clause

jurisprudence of the Court. /d. An analytical approach that

would make district shape a threshold to constitutional claims

is neither logically sound nor consonant with precedent, and

appellants’ arguments to the contrary should be rejected.

* * o*

ADL acknowledges that effective minority participation

in the political process is both necessary and proper and that

inexorable advancement toward that goal is a social good that

all must endorse. ADL does not believe, however, that we

advance toward that objective by doing violence to

fundamental constitutional precepts. To sustain Georgia’s

third plan against equal protection challenge would be to do

precisely that.

aa aetna

21

The Constitution is a procedural prescription and

enunciates no value other than the process of representative

self-government. That is necessarily the case for any

document intended to serve the span of generations. A value

that is generally recognized by one generation may not be

generally recognized by the next. Compare Plessy v.

Ferguson, 163 U.S. 587 (1896), with Brown v. Board of

Educ., 347 U.S. 483 (1954). It is not this Court’s role to

elevate even so pressing a concern as electoral proportionality

to the level of a constitutional right. It is rather the Court’s

duty to review such efforts and, ADL submits, to reject them

if they do not fall within the procedural confines of the

Constitution.

The Court acts with compelling authority when it

reviews legislative action, not in order to vindicate specific

substantive values, but rather to ensure that the political

mechanisms established in the Constitution are kept open and

viable—what John Hart Ely calls “policing the process of

representation,” assessing challenged statutes enacted by

popularly accountable legislatures through a process of “a

participation-oriented, representation-reinforcing approach to

judicial review.” John Hart Ely, Democracy and Distrust 87

(1980). Neither the access to, nor the effect of, voting can

therefore be manipulated by legislatures on the basis of race.

Consistent with these fundamental principles, the

district court correctly struck down Georgia’s third

redistricting plan.

22

CONCLUSION

The judgment of the district court should be affirmed.

Respectfully submitted,

MARTIN E. KARLINSKY, Esq.

(Counsel of Record)

ALLISON J. UNGER, Esq.

CAMHY KARLINSKY & STEIN LLP

1740 Broadway, 16th Floor

New York, New York 10019

(212) 977-6600

F. PETER PHILLIPS, Esq.

SCHULTE ROTH & ZABEL

900 Third Avenue

New York, New York 10022

(212) 758-0404

RUTH L. LANSNER, ESQ.

JEFFREY P. SINENSKY, Esq.

STEVEN M. FREEMAN, Esq.

DEBBIE N. KAMINER, ESQ.

ANTI-DEFAMATION LEAGUE

823 United Nations Plaza

New York, New York 10017

(212) 490-2525

Attorneys for

Anti-Defamation League,

Amicus Curiae

March 1995