United States v. Johnson Reply Brief for Appellant

    Nos. 94-929, 94-631, and 94-797

In tjje Supreme Court of tjje ®niteb ̂ tates«
October Term, 1994

U nited States of America, appellant

V.

Davida Johnson, et al.

Zell Miller, et al., appellants

V.

Davida Johnson, et al.

Lucious Abrams, Jr., et al., appellants

V.

Davida Johnson, et al.

ON APPPEAL FROM THE UNITED STATES DISTRICT 
COURT FOR THE SOUTHERN DISTRICT OF GEORGIA

REPLY BRIEF FOR THE UNITED STATES

Drew S. Days, III 
Solicitor General 
Department of Justice 
Washington, D.C. 20530 
(202) 5U-2217



TABLE OF AUTHORITIES

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

(1989) ............................... ......... .......... .......................
Davis V. Bandemer, 478 U.S. 109 (1986) .......................
Gaffney v. Cummings, 412 U.S. 735 (1973) ..................
McCain v. Lybrand, 465 U.S. 236 (1984) ........... .
McDaniel v. Sanchez, 452 U.S. 130 (1981) ...................
Mississippi University for Women v. Hogan,

458 U.S. 718 (1982) ............ .........................................
Morris v. Gressette, 432 U.S. 491 (1977) .......................
Perkins v. Matthews, 400 U.S 379 (1971) ....................
Rutan V. Republican Party of Illinois, 497 U.S. 62

(1990) .......................................... ......... .......................
Shaw V. Reno, 113 S. Ct. 2816 (1993) ............................
Village of Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252 (1977) ....................
Weinberger v. Wiesenfeld, 420 U.S. 636 (1975)...........

Page

10
5
5

13
13

10
13
13

5
6

3, 13 
10

Constitution, statutes and regulation:
U.S. Const. Amend. XIV (Equal Protection Clause) ....... 3
Voting Rights Act of 1965, 42 U.S.C. 1973 et seq.:

§ 2, 42 U.S.C. 1973 ................................... .....................  11, 12
§ 5, 42 U.S.C. 1973c ..............................  5, 10, 11, 12, 13, 14

(I)



In tl̂ e Supreme Court of tfjt ®niteb ̂ tateŝ
October Term, 1994

No. 94-929
United States of America, appellant

V.
Davida Johnson, et al.

No. 94-631
Zell Miller, et al., appellants

V.
Davida Johnson, et al.

No. 94-797
Lucious Abrams, Jr., et al., appellants

V.
Davida Johnson, et al.

ON APPPEAL FROM THE UNITED STATES DISTRICT 
COURT FOR THE SOUTHERN DISTRICT OF GEORGIA

REPLY BRIEF FOR THE UNITED STATES

1. a. In our opening briefs in this case and in 
United States v. Hays, Nos. 94-558 and 94-627, we 
argue in some detail that the configuration of an 
electoral district is not subject to strict scrutiny

(1)



merely because the State intended to—and did— 
create the district with a majority-minority pop­
ulation. See U.S. Br. 17-22; Hays U.S. Br. 14-20. 
Underlying our argument is the premise that 
subjecting a district to strict scrutiny on that basis 
would, in effect, require States to place racial 
minority groups at a political disadvantage.

One important purpose of drawing district lines 
in one place rather than another is to recognize 
politically cohesive communities of voters. Minor­
ities in this country—and, in particular, African- 
Americans—frequently constitute distinctive geo­
graphical and political communities, and the evidence 
of political cohesion of African-Americans in this 
case, see U.S. Br. 37-38, establishes that African- 
Americans living in the area encompassed by the 
Eleventh District of Georgia constitute such a 
community, with many common political interests.^

1 The political cohesion of this minority group is explicable 
at least in part as a result of the political interests shared 
by African-Americans in the Eleventh District. Extensive 
evidence on that subject was presented at trial. See, e.g., 6 Tr. 
27-48 (testimony of Rev. Mitchell), 137-194 (testimony of Dr. 
Marsha Darling); see also J.S. App. 45a (referring to such 
evidence). The district court found such evidence at least 
“partially convincing,” id. at 44a, although it expressed doubt 
that “the poor black populations of coastal Chatham County 
feel a significant bond to the black neighborhoods of metro 
Atlanta.” Ibid. Nor did the court doubt that African- 
Americans in the Eleventh District were politically cohesive. It 
found that “the average percentage of blacks voting for white 
candidates ranged from 20%-23%,” i.e., 77% to 80% of 
African-Americans voted for African-American candidates 
when they had the opportunity. Id. at 82a. For the reasons 
given in our opening brief, see U.S. Br. 37 n.20, even those 
figures are substantially understated. Dr. Lichtman, the



To hold that the intent to create a district in which 
they are the majority is, for that reason alone, 
suspect under the Equal Protection Clause would be 
to place minority racial groups with distinctive 
political interests at a severe disadvantage in the 
political process. Under such a holding, a State that 
intentionally draws a district to recognize the voting 
power of a politically cohesive minority group—even 
a district that indisputably adheres to the State’s 
traditional districting practices with regard to 
compactness, etc.—would automatically subject that 
district to strict scrutiny if litigation ensued. The 
legal uncertainty and litigation costs that would 
result would give the States a powerful reason not to 
recognize the political interests of such groups, 
resulting in a substantial political disadvantage to 
the groups whom the Equal Protection Clause was 
primarily designed to protect.^ 

b. Appellees in some places argue that an in­
tentionally created majority-minority district must, 
nevertheless be subjected to strict scrutiny under 
the Equal Protection Clause. For example, they 
state that “[ujnder [Village of\ Arlington Heights [v. 
Metropolitan Housing Development Corp., 429 U.S. 
252, 266 (1977),] and Hunter v. Underwood, 471 U.S.

United States’ expert, using statewide and congressional 
Democratic primary elections in the Eleventh Districts, found 
that 65% to 97% of African-Americans voted for African- 
American candidates in races involving white candidates as 
well; in seven of the eight races analyzed, that figure was 89% 
or higher. See U.S. Exh. 24, tables 1-2.

2 Minority political groups would be at an even greater 
political disadvantage under the district court’s view that 
“such a [racially defined] community of interest is barred from 
constitutional recognition.” J.S. App. 44a (emphasis added).



222-228 (1985), once a racial classification is shown to 
have been a ‘substantial’ or ‘motivating’ factor behind 
an enactment, the burden then shifts to the state to 
demonstrate that the law would have been enacted 
without this factor.” Appellees’ Br. 35. Precisely 
because members of a minority group are in the 
minority in a State’s overall population, however, 
majority-minority districts are ordinarily created by 
design, not coincidence. Therefore, under appellees’ 
approach, all majority-minority districts will 
potentially be subject to strict scrutiny.

Appellees claim that, under the standard they 
advocate, “it would be very difficult to even conceive 
of a congressional district that would be challenged 
(let alone subjected to strict scrutiny) without highly 
irregular features tied to race.” Appellees’ Br. 34. 
That statement is wrong. Under appellees’ standard, 
a perfectly compact district comprising a politically 
cohesive maj ority-minority community or commu­
nities would be subject to strict scrutiny so long as 
the State had a choice in drawing the district lines 
and drew them as it did in order to provide the 
minority community with representation. Should 
appellees’ standard be adopted, few maj ority-minority 
districts would avoid strict scrutiny. Indeed, ap­
pellees appear to recognize that fact when they 
acknowledge that, “[/]o r practical reasons, the 
District Court * * * added the requirement that 
race be the ‘overriding’ or ‘predominant’ force 
determining the lines of the district.” Appellees’ Br. 
35 (emphasis added). As we argue in our opening 
brief, however, the district court’s “predominant 
motive” standard poses essentially that same 
prospect that virtually every maj ority-minority



district will be subject to strict scrutiny. 
Br. 18-19.®

See U.S.

3 The district court’s numerous different formulations of 
the standard also give a hint of the analytical difficulties that 
would attend its application. The district court thus states 
variously that the test is whether race “was the substantial 
or motivating consideration in creation of the district in 
question,” J.S. App. 35a (footnote omitted); whether race was 
the “overriding, predominant force determining the lines of the 
district,” ibid.; whether race is not merely “one factor among 
many of equal or greater significance to the drafters,” ibid.; 
whether “race was the most prominent element driving the 
legislatures’ planning,” id. at 35a n.l9; and whether race was 
“not * * * one motivation among others of equal strength 
propelling the process,” ibid.

Amici Washington Legal Foundation, et ah, assert that our 
objections to inquiring into a legislature’s “overriding” or 
“predominant” motive are “disingenuous coming from the 
federal government, which regularly engages in exhaustive 
examination of legislative intent in connection with its pre­
clearance authority under § 5 of the Voting Rights Act.” Br. 
13. Our Section 5 inquiry, however, does not require 
identification of an “overriding” or “predominant” motive. As 
we explain in our opening brief, see U.S. Br. 32-34, our Section 
5 inquiry looks into the possible existence of an improper 
legislative purpose to discriminate, employing the accepted 
“motivating factor” analysis derived from this Court’s decision 
in Arlington Heights. There is nothing improper, however, 
about a legislative purpose to recognize the political interests of 
a racial minority group in the same way that other (and often 
competing) political interests are recognized in a State. For 
similar reasons, this Court has upheld redistricting plans that 
plainly were based on the political affiliations of voters, see, 
e.g., Davis v. Bandem er, 478 U.S. 109 (1986); Gaffney  v. 
Cummings, 412 U.S. 735 (1973), while making clear that other 
governmental decisions based on political affiliation are subject 
to heightened scrutiny, see Rutan  v. Republican Party of 
Illinois, 497 U.S. 62, 74 (1990). See generally Amicus Curiae 
Georgia Ass’n of Black Elected Officials Br. 12-18.



For the reasons given above and in our opening 
brief, we submit that the State’s intent to create a 
majority-minority district—whether analyzed under 
a “motivating factor” standard or the “predominant 
motive” standard adopted by the district court in this 
case—does not alone require the application of strict 
scrutiny. Instead, this Court’s decision in Shaw v. 
Reno, 113 S. Ct. 2816 (1993), provides the appropriate 
guidepost. Where the shape of a challenged district is 
“so extremely irregular on its face that it rationally 
can be viewed only as an effort to segregate the races 
for purposes of voting,” Shaw, 113 S. Ct. at 2824, it 
betrays the State’s intent to draw lines for the 
minority group that it is unwilling to draw for other 
politically cohesive groups. In that “rare” cir­
cumstance, id. at 2825, the Court has held that the 
State must justify its action under strict scrutiny.

2. We state in our opening brief that the test for 
“extreme irregularity” or “bizarreness” under Shaw 
is whether, “in drawing the district, the State 
departs dramatically from its traditional districting 
practices.” U.S. Br. 14. Appellees do not appear to 
disagree; they state that “[rjacial gerrymandering 
occurs when the State draws a district that artifi­
cially manipulates non-compact dispersed minority 
populations into a majority black district without 
regard for the S tate’s traditional districting 
principles.” Appellees’ Br. 24. But they argue that 
the district court’s determination that the Eleventh 
District is “bizarre” under that standard was not 
clearly erroneous.

The district court, however, gave no indication that 
it employed the correct legal standard in reaching its 
conclusion. Instead, as we explain in our opening 
brief (U.S. Br. 25), the court approached the “bizarre­



ness” inquiry by assuming that its purpose was to 
uncover whether the State had an “overriding 
objective to include minority populations in the 
Eleventh [District].” J.S. App. 47a. That improper 
focus led the district court to give inappropriate 
weight to several facts that were of little or no 
relevance, and to disregard factors that should have 
guided the inquiry. See U.S. Br. 25-27. For the 
reasons given in our opening brief, see U.S. Br. 23-25, 
and by Judge Edmondson in his dissenting opinion, 
see J.S. App. 96a-100a, we believe that the Eleventh 
District satisfies the Shaw standard.

Appellees argue that the Eleventh District is a 
dramatic departure from Georgia’s traditional 
districting principles because it splits eight counties 
(while leaving 14 intact) and the Georgia redistrict­
ing plan as a whole splits 31 municipalities. 
Appellees’ Br. 14-15. As appellees concede, however, 
Georgia has split counties in the past. Id. at 15. 
Equally important, the current Georgia redistricting 
plan splits numerous counties for reasons that in 
many places have nothing to do with race. See U.S. 
Br. 24 n.7. The Sixth District, for example, is 
comprised of parts of five different counties and no 
intact counties at all. Although appellees in a 
footnote claim that “[t]he [Sixth] district had to split 
counties due to one-person one-vote and the need to 
maintain the majority-minority Fifth District,” 
Appellees’ Br. 22 n.21, they cite to nothing in the 
record to support that statement. In fact, the 
evidence showed that the configuration of the Sixth



District was based on a desire to achieve certain 
largely political goals/

With respect to split municipalities, appellees also 
concede that Georgia’s plans in the past have 
split municipalities for reasons other than compli­
ance with the one-person, one-vote requirement. 
Appellees’ Br. 15. Moreover, although they state that 
the current Georgia plan as a whole splits 31 
municipalities, see ibid., they do not state that only 
six of these municipalities are split by the Eleventh 
District.® Elsewhere in the plan, other districts split 
more municipalities for reasons that appear to have 
nothing to do with race.®

 ̂ Senator Garner, who was the majority leader of the 
Georgia Senate, a member of its reapportionment committee, 
and a member of the conference committee on the re­
apportionment bills, and Speaker Murphy of the Georgia 
House of Representatives both testified that the Sixth 
District’s configuration was due in large part to Murphy’s 
desire that the district not include his residence. See 3 Tr. 229 
(Garner); 2 Tr. 75-79 (Murphy); accord 3 Tr. 264-265 
(testimony of Rep. Manner, Chair of House Reapportionment 
Committee); 4 Tr. 349 (testimony of Oscar Persons). 
Lieutenant Governor Pierre Howard also testified by video­
taped deposition, the transcript of which was admitted in 
evidence as Plaintiffs’ Exhibit (PX) 216A, see 4 Tr. 184. 
Referring to the Sixth District, Howard testified that the 
legislature was “trying to make sure that it’s as Republican as 
possible.” PX 216A, at 95.

® The six municipalities are Augusta, Savannah, Mil- 
ledgeville. Port Wentworth, Thunderbolt, and Washington.

® For example, six of the 31 municipalities on the list are in 
Gwinnett County and are split between some combination of 
the Fourth, Sixth, and Tenth districts, all of which are 
majority white. Those municipalities are Duluth, Lawrence- 
ville, Norcross, Snellville, Sugar Hill, and Suwanee. The 
majority-white Sixth District alone splits eight municipalities.



3. Appellees argue (Br. 37-39) that, if strict 
scrutiny is applied to the Eleventh District, the 
district does not survive it, because in their view the 
State in this litigation has not itself advanced any 
interest that it considers to be compelling and that 
motivated it in creating the Eleventh District. In 
appellees’ view, the State’s litigation position on this 
issue is dispositive, even though private individuals 
and the United States are now also parties defendant 
and offer compelling interests in support of the 
State’s position.

Appellees’ view is mistaken. When applying strict 
scrutiny, the question is whether the challenged 
state action (in this case, the creation of the Eleventh 
District) was narrowly tailored to satisfy a com­
pelling state interest. As a plurality of this Court 
stated (in a passage quoted by appellees themselves, 
see Appellees’ Br. 38-39), “the purpose of strict 
scrutiny is to ‘smoke out’ illegitimate uses of race by 
assuring that the legislative body is pursuing a goal 
important enough to warrant use of a highly suspect 
tool.” City of Richmond v. J.A. Croson Co., 488 U.S. 
469, 493 (1989) (opinion of O’Connor, J.). The crucial 
question is thus whether the legislative body—not

two more than are split by the Eleventh District. They are 
Duluth, Lawrenceville, Norcross, Sugar Hill, Suwanee, 
Marietta, Smyrna, and Woodstock. This information and that 
in the previous footnote are derived by locating the cities on 
appellees’ list on a map of Georgia; appellees themselves did 
not introduce evidence about which districts split each of the 
municipalities. It should be noted that appellees’ list is in any 
event misleading, since it omits the numerous split 
municipalities in the present and past plans that overlap more 
than one county. See 2 Tr. 138-140 (testimony of Linda 
Meggers).



10

the lawyers representing the State or state officials 
in later litigation—was pursuing a compelling state 
interest and employed means narrowly tailored to 
advance it. As this Court explained in Weinberger v. 
Wiesenfeld, 420 U.S. 636, 648 (1975), “the mere 
recitation of a benign, compensatory purpose is not an 
automatic shield which protects against any inquiry 
into the actual purposes underlying a statutory 
scheme.” The appropriate inquiry turns on an 
examination of “the statutory scheme itself and 
* * * the legislative history”—not the litigation 

positions advanced by attorneys representing one of 
the parties. Ibid. Accord Mississippi University for 
Women v. Hogan, 458 U.S. 718, 728 (1982).

In any event, there is no doubt that, at the time the 
State adopted its plan, the State believed that 
creating the Eleventh District was necessary to 
comply with Section 5 of the Voting Rights Act, and 
that such compliance was a compelling state interest 
that supported the State’s action here. The State 
knew that the Attorney General had interposed 
Section 5 objections to the two previous redistricting 
plans, a fact that in our view is sufficient to support 
the State’s belief that its creation of the Eleventh 
District was necessary to comply with Section 5. 
Moreover, Mark Cohen, a Senior Assistant Attorney 
General of Georgia, testified at trial that he advised 
the leadership of the state legislature that the State 
should not file a Section 5 declaratory judgment suit 
to obtain preclearance for the State’s second plan, 
because he thought that the State would lose such a 
suit, as it had lost a similar Section 5 suit ten years 
earlier. 5 Tr. 5-6. The district court made no finding 
that the State did not create the Eleventh District on 
the basis of that belief. Thus, whatever may be the



11

S tate’s position now in litigation, the state 
legislature that drew the Eleventh District was 
motivated by a desire to comply with Section 5 of the 
Voting Rights Act.

The state legislature also acted for the purpose of 
complying with Section 2 of the Voting Rights Act.^ 
The district court did not suggest otherwise, but 
instead concluded that, in its view, the failure to draw 
a third majority-minority district would not have 
subjected the State to Section 2 liability. For the 
reasons given in our opening brief in this case and in 
Hays, we believe that the district court erred in 
undertaking a de novo inquiry into that issue. See 
U.S. Br. 28-29; Hays U.S. Br. 27-28. The question 
before the district court was not whether a court 
would have found Section 2 liability in a hypothetical 
lawsuit challenging the State’s failure to create 
a third maj ority-minority district. Rather, the 
question was whether the objective facts considered 
by the State would reasonably support a conclusion 
that a prima facie case existed under Section 2. As 
we argue in our opening brief, U.S. Br. 37-38, such 
facts were before the legislature.

The State has also contended throughout this 
litigation that it acted to advance a compelling 
interest in affording minority voters a fair 
opportunity for representation, and that contention is 
supported by the record. See e.g., 4 Tr. 239

Georgia was facing a number of statewide Section 2 
challenges at the time it enacted its redistricting legislation. 
See U.S. Br. 38 n.21. Moreover, as appellees themselves 
emphasize, at the time the legislature acted, it was also facing a 
pending suit alleging that the S tate’s then-current 
redistricting plan was in violation of Section 2. See Appellees’ 
Br. 22 n.22.



12

(testimony of State Rep. Brooks); PX 216A, at 55 
(deposition of Lieut. Gov. Howard). Where minority 
voters have little opportunity to elect candidates of 
their choice because of racially polarized voting, the 
State has an interest, independent of the Voting 
Rights Act, in drawing majority-minority districts. 
See U.S. Br. 39-40. Such a situation exists in 
Georgia, as demonstrated both by the direct evidence 
of racial polarization and by the fact that, with one 
exception, all of the black state legislators in Georgia 
were elected from majority-minority districts. See 
U.S. Br. 37-38. Although Section 2 of the Voting 
Rights Act requires States to create majority- 
minority districts in some circumstances, nothing in 
Section 2 suggests that it was intended to set a limit 
on the extent to which States could do so.

4. Appellees argue (Appellees’ Br. 39-43) that the 
Attorney General’s Section 5 objections to the 
State’s two earlier plans did not provide a basis for 
the State to believe that creating the State’s final 
plan, with three maj ority-minority districts and the 
current configuration of the Eleventh District, was 
required by Section 5 of the Voting Rights Act. 
They base their argument on their allegation that the 
Attorney General’s objections were meritless, and 
that the objections could therefore not have provided 
the State with a reasonable basis for believing that 
its actions were necessary to comply with Section 5.

As we explain in our opening brief, the question 
whether the Attorney General was correct in ob­
jecting to Georgia’s first two plans was not before the 
district court.® Given the Attorney General’s role in

 ̂ Notwithstanding extensive statements on the issue in its 
opinion, the district court on several occasions assured the



13

the Section 5 statutory scheme, a State must 
ordinarily be able to rely on a Section 5 objection as 
an administrative finding of discrimination that can 
justify remedial action by the State. See U.S. Br. 30. 
Moreover, to permit back-door review of the merits of 
a Section 5 objection in the course of a S h a w  
challenge to a districting plan is inconsistent with 
the statutory scheme. Congress precluded all direct 
review of the Attorney General’s objections and 
channeled all litigation about the merits of those 
objections to a special judicial preclearance action in 
the District Court for the District of Columbia. See 
Morris v. Gressette, 432 U.S. 491, 504-505 (1977); see 
also McCain v. Lybrand, 465 U.S. 236, 246-247 (1984); 
McDaniel v. Sanchez, 452 U.S. 130, 150-151 (1981); 
Perkins v. Matthews, 400 U.S. 379, 385 (1971). If a 
Section 5 objection by the Attorney General is not 
clearly insupportable, it therefore provides a sound 
basis for the State to take action.

We argue in our opening brief that the Attorney 
General’s objections in this case were amply sup­
ported. U.S. Br. 31-34 (citing Arlington Heights, 429 
U.S. at 266-267). Appellees do not take issue with

parties that it would not review the merits of the Attorney 
General’s Section 5 objection. See, e.g., Order of March 30, 
1994, at 3 n.2 (“Plaintiffs have not petitioned the Court to 
directly rule on the correctness or the constitutionality of the 
DOJ’s pre-clearance decisions.”); Order of June 6, 1994, at 4-5 
(“The DOJ’s refusals to preclear the State’s first two 
congressional plans submitted may not be reviewed for their 
correctness; those refusals and communications regarding the 
preclearance process for the current plan may be probative, 
however, insofar as they may have provided the impetus for 
the drawing of the plan at issue here.”).



14

that analysis; what they offer instead is un­
persuasive.

Appellees claim that the Attorney General’s 
objections to the two earlier plans were unsound 
because the Attorney General was employing a 
mistaken “maximization” or “proportionality” 
standard in assessing purpose under Section 5. 
Appellees’ Br. 40-43. As we have explained, although 
it may be the case that some individuals or interest 
groups in Georgia desired “maximization” or 
“proportionality,” and that others brandished those 
terms to achieve goals of their own,® the Attorney 
General has never employed those standards in 
analyzing purpose under Section 5 and did not do so 
here. See U.S. Br. 35-36.̂ ®

® Individuals in Georgia who have their own goals in the 
redistricting process are not and were not authorized to speak 
for the Attorney General of the United States concerning the 
standards to be applied in making Section 5 preclearance 
decisions or any other matter. Appellees’ citation to statements 
by those individuals thus have no bearing on the issue. See, 
e.g., Appellees’ Br. 18 (quoting statement of State Rep. Tyrone 
Brooks), 20-21 (quoting statements of State Sen. Garner).

Appellees quote the district court’s statement that 
Thomas Armstrong, an attorney for the Department of 
Justice, testified that he “could not recall seeing any evidence 
of discriminatory motives on the part of the Georgia 
legislature.” Appellees’ Br. 40. See J.S. App. 13a n.7. The 
precise question asked of Mr. Armstrong was whether he could 
“recall * * * a single piece of evidence that would suggest 
that * * * the failure to go to [Savannah] was originally based 
on * * * discriminatory motives, other than the mere fact 
that it could be done.” 4 Tr. 148-149 (emphasis added). He 
responded that he could not recall any such evidence. 4 Tr. 
149. It was undisputed, however, that Mr. Armstrong’s 
responsibilities did not include examining the purpose issue in 
this case. See 4 Tr. 149. Therefore, Mr. Armstrong’s



15

For the foregoing reasons and those stated in our 
opening brief, the judgment of the district court 
should be reversed.

Respectfully submitted.
Drew S. Days, III 

Solicitor General
April 1995

statement at trial does not cast doubt on the validity of the 
Section 5 objections in this case.