Bratton v. City of Michigan Petition for Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit

    No. 95-1425

In The

Supreme Court of the United States
October Term, 1995

-----------------♦ -----------------

LUCIOUS ABRAMS, JR., REV. G. L. AVERY, 
WILLIAM GARY CHAMBERS, SR., and KAREN WATSON,

Appellants,
v.

DAVIDA JOHNSON, et al„

♦
Appellees.

On Appeal From The United States District Court 
For The Southern District Of Georgia 

(Three Judge Court)
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BRIEF OPPOSING MOTIONS TO AFFIRM
---------------- ♦------- ----------

E laine R. J on es 
Director-Counsel 
T h eo do re  M. S haw  
N o rm a n  J . C h ach kin  
J a cq u elin e  B errien  
N A A C P  L egal D efen se  and  

E ducational F u n d , In c .
99 Hudson Street 
New York, New York 

10013
(212) 219-1900
G era ld  R. W eber 
A m erica n  C ivil L iberties 

U nion  o f G eorgia  
142 Mitchell Street, S.W. 
Suite 301
Atlanta, Georgia 30303 
(404) 523-6201

L augh lin  M cD onald  
Counsel of Record 
N eil  B radley 
M a ha  Z aki 
M ary W yckoff 
A m erican  C ivil L iberties 

U nion  F oundation , I n c . 
44 Forsyth Street 
Suite 202
Atlanta, Georgia 30303 
(404) 523-2721

Attorneys for Appellants

COCKLE LAW BRIEF PRINTING CO., (800) 2254S964 
OR CALL COLLECT (402) 342-2831



1

TABLE OF CONTENTS
Page

Argument:

I. Two Reasonably Compact Majority Black Dis­
tricts Can Be D raw n........ ..................................... .. 1

A. The State's First Plan Was Not Uncon­
stitutional ....................................    1

B: The Existence Of Other Alternative Plans. . 3

II. The Issue Presented Is Whether A Court May 
Ignore State Policy. ...................................................  5

III. There Was No Section 2 Hearing On The
Court's P lan ................. .. ............... ............ ................  6

IV. The Court's Plan Was Retrogressive.......... .. 6

V. Appellants Have Not Taken Inconsistent Posi­
tions On Deviation............. ................................ .. 8

C onclusion...................         9



ii

TABLE OF AUTHORITIES
Page

C a ses:

City of Richmond v. United States, 422 U.S. 358
(1 9 7 5 ).. .............................................................................. .................................................. . . . . . . . 6 ,  7

Clark v. Roemer, 500 U.S. 646 (1991)...............................8

Johnson v. Miller, Civ. No. 194-008 (S.D.Ga.) . . . .  2, 3, 8

Johnson v. Miller, Civ. No. CV196-040 (S.D.Ga.)..........7

Karcher v. Daggett, 462 U.S. 725 (1983)................. . .8, 9

Miller v. Johnson, No. 94-631 ............................................ 1

Miller v. Johnson, 115 S.Ct. 2475 (1995)...............  1, 3, 4

Missouri v. Jenkins, 115 S.Ct. 2038 (1955)..................... 5

SRAC v. Theodore, 113 S.Ct. 2954 (1993)......... 6

United States v. Johnson, No. 95-1460 ............................. 3

Upham v. Seamon, 456 U.S. 37 (1982)............. .......... 5, 7



1

I. Two Reasonably Compact M ajority Black Districts 
Can Be Drawn

A. The State's First Plan Was Not Unconstitutional

Appellees contend that the first congressional redis­
tricting plan enacted by the state in 1991 containing two 
majority black districts was based "solely" on race, and 
that the Eleventh District in that plan was found to be 
unconstitutional by the district court. Motion to Affirm of 
Appellees Miller et al., p. 12; Motion to Affirm of Appel­
lees Johnson et ah, p. 14. Both contentions are flatly 
wrong.

In Miller v. Johnson, 115 S.Ct. 2475 (1995) (Miller I), the 
Miller appellees made exactly the opposite argument in 
this Court. In its brief on the merits, the state said that:

It is undisputed that the General Assembly as a 
whole found the initial [1991 congressional 
redistricting] plan enacted to be reasonable. It 
w as n o t p e r c e i v e d  as a ' r a c i a l  g e r r y ­
mander.' . . . There is, in fact, no evidence that any 
legislator or reapportionment staffer ever believed 
the initial plan to be offensive as a racial gerry­
mander.

Miller v. Johnson, No. 94-631, Brief of Appellant Miller et 
al., p. 49 (emphasis in original). The state repeatedly 
stressed "the undisputed consensus of all of the legisla­
tors involved — both white and black, Republican and 
Democrat -  that the first plan was reasonable." Id. and at
p. 18.

In addition, the Johnson appellees never contended 
in the district court that the first or second congressional 
redistricting plans were unconstitutional, and introduced



2

no evidence that they were. In response to a question 
from the district court, the plaintiffs' lawyer answered 
that "I don't think that we have a position on the first two 
plans because they never went to law." Johnson v. Miller, 
Civ. No. 194-008 (S.D.Ga.), Trial Transcript, July 22, 1994, 
Volume II, p. 23 ("T. Vol., July 22, 1994"). Nor was there 
any finding by the district court that the first plan 
enacted by the state was unconstitutional.

The record itself refutes any contention that the Elev­
enth District was initially drawn "solely" on the basis of 
race. The first plan excluded "a sizable black population 
in Baldwin County," T. Vol. II, July 22, 1994, p. 21 (Testi­
mony of Linda Meggers), as well as "a sizable black 
population of Chatham [County]". Id. at 25. Had the 
construction of the Eleventh District been driven solely 
by race it would have included these areas.

The speaker of the house said that the Eleventh Dis­
trict as drawn in the first plan "suited me," was "obvi­
ously" acceptable, and denied that it was "a racial 
gerrymander." T. Vol. II, July 22, 1994, p. 81. The chair of 
the house reapportionment committee similarly testified 
that in enacting the first congressional plan, "[we] 
thought we had done pretty well." T. Vol. Ill, July 22, 
1994, p. 252 (Testimony of Bob Hanner). The state com­
plied with the Voting Rights Act, as well as followed its 
traditional redistricting principles, i.e., "we kept cities 
and counties intact." Id.



3

B. The Existence Of Other Alternative Plans

While the state now argues post hoc that a second 
majority black district cannot be drawn consistent with 
the state's traditional redistricting principles, that was 
not the view of members of the general assembly after the 
decision in Miller l. The speaker of the house, "even after 
the court decision, said that he thought you ought to have 
two majority minority seats in Georgia." Johnson v. Miller, 
supra, Trial Transcript, October 30, 1995, p. 433 (Testi­
mony of Linda Meggers) ("T., Oct. 30, 1995").

The house, in fact, after the decision in Miller I, 
adopted a plan that included two majority black districts, 
the Fifth located in the metropolitan Atlanta area and the 
Eleventh located in the east central part of the state. 
Johnson v. Miller, supra, Abrams Exhibit 37. The state's 
demographer testified that the Eleventh District under 
that plan contained fewer counties than many other Geor­
gia congressional districts, and in terms of its size and 
length was "w ithin the range of districts that the state has 
created in the past." T., Oct. 30, 1995, p. 444.

Other proposed remedial plans similarly contained 
two reasonably compact majority black districts, e.g., the 
coalition 3RN Plan, T., Oct. 30, 1995, p. 445, the Illustra­
tive Plan submitted by the Department of Justice, United 
States v. Johnson, No. 95-1460, J.S. App. 44a-45a, and sev­
eral plans submitted by the Abrams appellants. T., Oct. 
30, 1995, p. 297, Abrams Exhibit 35, 36.

In criticizing appellants' plans, the Johnson appellees 
go to absurd lengths. They say that two majority white 
counties included in one of the plans are a whole



4

county' land bridge." Motion to Affirm of appellees John­
son et al., p. 6. Of course, whole counties cannot be "land 
bridges," i.e., narrow unpopulated corridors. Miller v. 
Johnson, supra, 115 S.Ct. at 2484. In addition, appellants 
"least change" plan split no rural counties. T., Oct. 30, 
1995, 301; Abrams Exhibit 36. It therefore did not subordi­
nate the state's traditional redistricting principles to race.

According to appellants' expert, one of the overrid­
ing goals of the "least change" plan was "to show that it 
is possible to draw districts in the State of Georgia for 
members of Congress that did not use race as a predomi­
nant feature and on the other hand were fair to black as 
well as white voters." T., Oct. 30, 1995, 301. It clearly was 
possible to draw a second reasonably compact majority 
black district based on the state's traditional redistricting 
principles, but the district court, substituting its own 
redistricting principles for those of the legislature, 
refused to do so.1

1 The Johnson appellees make the extraordinary and 
erroneous claim that the record is "devoid" of any analysis of 
voting patterns justifying any need for majority black districts 
in Georgia. Motion to Dismiss of Appellees Johnson et al., p. 23. 
To the contrary, there was extensive evidence of racial bloc 
voting introduced during the trial of the case, and in its 
remedial order the court found that "the percentage of black 
registered voters as close to fifty-five percent as possible was 
necessary . . .  to avoid [minority vote] dilution." J.S. App. 26.



5

II. The Issue Presented Is Whether A Court May
Ignore State Policy

The issue presented in this appeal is not, as the state 
appellees contend, whether a court may make "signifi­
cant changes" in a redistricting plan found to violate the 
Fourteenth Amendment. Motion to Affirm for appellees 
Miller et ah, p. 6. By definition, some change is required. 
Rather, the issue is whether a court may accord no defer­
ence whatever to a state's legislative plan, including 
those portions not found to be unconstitutional, ignore 
the state's redistricting policy choices, and proceed as if 
the state had adopted "no plans." J.S. App. 7.

The district court was of the view that "Georgia's 
current congressional plan cannot form the basis for the 
remedy we now construct." J.S. App. 4. See also J.S. App. 5 
("we cannot use Georgia's current plan as a surrogate for 
the legislature's reapportionment policies and goals"). 
Moreover, what the district court did is as revealing as 
what it said. It totally relocated the Eleventh District and 
put it in "the Northeast Atlanta corridor." J.S. App. 14. It 
also drastically reconfigured the Third, Tenth, and Eight 
Districts. The state's argument that the district court 
"[ Regarded the legislature's earlier actions in 1991 and 
1992" are not supported by the facts in this case. Motion 
to Affirm for Appellees Miller et al., p. 11 n.2.

The court committed legal error in taking a "blank 
check" approach to remedying the constitutional viola­
tions in this case. Missouri v, Jenkins, 115 S.Ct. 2038, 2058 
(1955) (O'Connor, J., concurring). See also Upham v. Sea- 
mon, 456 U.S. 37, 42 (1982) (a court may not reject state



6

policy more than is necessary "to meet the specific consti­
tutional violations involved").

III. There Was No Section 2 Hearing On The Court's
Plan

Appellees mistakenly claim that appellants were 
given a hearing on their Section 2 dilution claim. The 
district court did conduct a hearing at which it allowed 
the parties an opportunity to present proposed remedial 
plans, but it did not hold a hearing to allow the parties an 
opportunity to comment and present evidence concerning 
the plan that the court actually adopted. In light of SRAC 
v. Theodore, 113 S.Ct. 2954 (1993), the court erred.

IV. The Court's Plan Was Retrogressive

Appellees say that appellants' position is that "a new 
plan could never have less than ten percent majority 
black districts." Motion to Affirm of appellees Miller et 
ah, p. 14-5. Correctly stated, appellants' position is that 
given the state's existing demographics, a plan that con­
tains only one majority black district is retrogressive 
within the meaning of Section 5, and that is true whether 
the benchmark is the 1982 plan, the 1991 plan, or some 
other plan embodying the state's redistricting goal of 
creating two majority black districts. If the state's black 
population were to decline, or disappear altogether, 
appellants would not argue that the benchmark for retro­
gression would remain unchanged.

The Miller appellees' argument that City o f Richmond 
v. United States, 422 U.S. 358 (1975), contains a "good



7

government" exception to Section 5 is misplaced. City of 
Richmond held that municipal annexations were not objec­
tionable under Section 5 where the resulting districting 
"system  fairly reflects the strength of the Negro commu­
nity as it exists after the annexation" 422 U.S. at 371. The 
court ordered plan in this case does not fairly reflect the 
strength of black voters as it currently exists, and under 
the rationale of City o f Richmond is retrogressive.2

The objected to 1991 plan was not legally enforceable 
as a matter of federal law because it was objected to 
under Section 5. However, it did embody the state's 
redistricting policy of creating two majority black dis­
tricts which was not objected to by the Attorney General 
and which can provide a benchmark for determining 
retrogression. Upham v. Seamon, supra, 456 U.S. at 42.

In the related case of Johnson v. Miller, Civ. No. 
CV196-040 (S.D.Ga.), the state has argued that plans for 
the house and senate objected to under Section 5 should 
nonetheless be implemented by the three judge court on 
an interim basis for the 1996 elections because "the 1995 
plans reflect a host of p olitical and policy choices 
throughout the state. It is those lines . . . that merit 
deference." Brief of Defendants Miller, Howard and Mas­
sey for the Preliminary Injunction, p. 11. While appellants 
do not believe an objected to plan can be implemented by

2 The Johnson appellees erroneously suggest that Section 5 
standards are not applicable to court ordered plans. Motion to 
Affirm for Appellees Johnson et al., p. 11. While court ordered 
plans are not subject to preclearance, they nevertheless must 
comply with Section 5 standards. McDaniel v. Sanchez, 452 U.S. 
130, 148-49 (1981).



8

a court, Clark v. Roemer, 500 U.S. 646, 654 (1991), the 
state's 1991 plan, as the state argued in the house and 
senate case, can serve as a benchmark for determining 
retrogression since it embodies the state's "political and 
policy choices" of having two majority black districts 
which were not objected to by the Attorney General,

V. Appellants Have Not Taken Inconsistent Positions
On Deviation

The Johnson appellees wrongly claim that "jejvery 
alternative plan" advanced by appellants had a deviation 
that greatly exceeded .35%, and that they took an incon­
sistent position in the district court on the issue of per­
missible deviation from ideal district size. First, one of 
the plans advanced by appellants has a deviation of only 
.29%, which is lower than the deviation contained in the 
court ordered plan. Johnson v. Miller, supra, Supplemental 
Declaration of Selwyn Carter, Plan A.

Second, counsel for appellants stressed that the court 
"has really got to be concerned about deviations in any 
plan. . . . There is no de minimis deviation and a jurisdic­
tion is obligated to make a good faith effort to comply 
with population equality concepts." T., Oct. 30, 1994, 
281-82. Counsel specifically said that "if the Court is 
going to have a higher deviation . . . you must be careful 
to articulate the reason for doing so," that the deviation 
in one of appellants' plans was .93%, "that you could split 
some counties . . . and cure those deviations," and that 
appellant's plan preserving counties intact and creating 
two minority districts "might" be acceptable under 
Karcher v. Daggett, 462 U.S. 725 (1983). Id. at 283-84. The



9

district court, however, in adopting a plan that included 
only one majority black district, failed to articulate a 
sufficient reason for not complying with the standard of 
population equality set out in Karcher.

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CONCLUSION

For the above reasons, this Court should summarily 
reverse or in the alternative note probable jurisdiction of 
this appeal.

E la in e  R. J o n es 
Director-Counsel 
T h eo d o re  M. S haw  
N o r m a n  J. C h a ch kin  
J a cq u elin e  B errien  
NAACP L eg a l  D efen se  a n d  

E du ca tio n a l  F u n d , I n c .
99 Fludson Street 
New York, New York 

10013
(212) 219-1900

G era ld  R. W eber  
A m eric a n  C iv il  L iberties 

U n io n  o f  G eo rg ia  
142 Mitchell Street, S.W. 
Suite 301
Atlanta, Georgia 30303 
(404) 523-6201

Respectfully submitted,

L a u gh lin  M c D on a ld  
Counsel of Record 
N eil B ra dley  
M a h a  Z aki 
M ary W ycko ff 
A m erica n  C ivil L iberties 

U n ion  F o u ndation , I n c . 
44 Forsyth Street, N.W. 
Suite 202
Atlanta, Georgia 30303 
(404) 523-2721

Attorneys for Appellants