Miller v. Johnson Motion for Leave to File and Brief Amici Curiae

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

IN THE
SUPREME COURT OF THE UNITED STATES

October Term, 1994 
Zell Miller, et al.,

Appellants,

Davida Johnson, et al.,
Appellees.

United States of America,
v Appellants,

Davida Johnson, et al.,
Appellees.

Lucious Abrams, Jr., et al.,
Appellants,

Davida Johnson, et al.,
Appellees.

On Appeal from the United States District 
Court for the Southern District of Georgia

BRIEF OF AMICI CURIAE 
M exican  A m erican  L ega l D efen se  an d  E d u ca tio n a l 

F und, N a tio n a l A sian  P a c ific  A m erican  L ega l 
C on sortiu m , N a tio n a l A sso c ia tio n  fo r  th e  
A d van cem en t o f C olored  P e o p le , N a tion a l 

O rg a n iza tio n  fo r  W om en, N a tio n a l O rg a n iza tio n  
fo r  W om en L egal D efen se  F u n d , N a tio n a l U rban  

L eagu e, P e o p le  F or T h e A m erican  W ay, W om en’s 
L egal D efen se F und , IN  SUPPO RT OF APPELLANTS

M OTION FO R LEAVE TO FILE A B R IE F  
AM ICI CURIAE

Charisse R. Lillie* 
Rodger D. Citron 
E. Thom Rumberger, Jr. 
Barry E. Gosin 
Michael D. Mabry'

Ballard  Spahr A ndrew s &
INGERSOLL

1735 Market Street, 51st Floor 
Philadelphia, PA 19103-7599 
(215) 665-8500 

*Counsel of Record
Attorneys for Amici Curiae
Mexican American Legal Defense and Educational Fund, National Asian 
Pacific American Legal Consortium, National Association for the Advance­
ment o f Colored People, National Organization for Women, National Orga­
nization for Women Legal Defense Fund, National Urban League, People 
For The American Way, Women’s Legal Defense Fund
PACKARD PRESS® / APPELLATE DIVISION, 16 17 JFK BOULEVARD, PHILA., PA. 19103 (215) 563-9000



Of Counsel:
Anthony Chavez
Mexican American Legal Defense and Educational Fund 
634 South Spring Street 
Los Angeles, CA 90014 
213-629-8016
Margaret Fung 
Karen Narasaki
National Asian Pacific American Legal Consortium 
1629 K Street, NW 
Washington, D.C. 20006 
202-296-2300
Wade Henderson 
Dennis Courtland Hayes
National Association for the Advancement of Colored People
4805 Mt. Hope Drive
Baltimore, MD 21215
202-667-1700
410-358-8900
Kim Gandy
National Organization for Women 
1000 16th Street, NW 
Washington, D.C. 20036
Deborah Ellis
National Organization for Women Legal Defense and 

Education Fund 
99 Hudson Street 
New York, NY 10013 
212-925-6635
Rodney G. Gregory 
National Urban League 
500 East 62nd Street 
New York, NY 10021 
212-310-9000
Elliot Mincberg
People For The American Way 
200 M Street, NW 
Washington, D.C. 20036 
202-467-4999
Donna R. Lenhoff 
Women’s Legal Defense Fund 
1875 Connecticut Avenue, NW 
Washington, D.C. 20009 
202-986-2600



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

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1994

Z e l l  M il l e r , e t  a l .,
Appellants,

D a v id a  Jo h n so n , e t  a l .,
Appellees.

U n it e d  States o f  Am e r ic a ,
Appellants,

D a v id a  J o h n so n , e t  a l .,
Appellees.

Lucious A b r a m s , J r ., e t  a l .,
Appellants,

D a v id a  J o h n so n , e t  a l ..
Appellees.

On Appeal from the United States District 
Court for the Southern District of Georgia

M OTION FO R  LEAVE TO FILE A  B R IE F  
AM ICI CURIAE



2

MOTION FOR LEAVE TO FILE A BRIEF 
AMICI CURIAE

Pursuant to Supreme Court Rule 37, the Mexican Ameri­
can Legal Defense and Educational Fund, the National Asian 
Pacific American Legal Consortium, the National Association 
for the Advancement of Colored People, the National Orga­
nization for Women, the National Organization for Women 
Legal Defense Fund, the National Urban League, People For 
The American Way and Women’s Legal Defense Fund, 
respectfully move the Court for leave to file the attached brief 
as amici curiae in support of the appellants. The appellants 
have consented to the filing of this brief. Appellees have 
refused to grant consent.

The Mexican American Legal Defense and Educational 
Fund (“MALDEF”) is a nonprofit, national civil rights orga­
nization headquartered in Los Angeles. Its principal objective 
is to secure, through litigation and education, the civil rights of 
Hispanics living in the United States. Because of the impor­
tance of the fundamental right to vote, MALDEF has repre­
sented Hispanic voters in numerous voting rights cases, includ­
ing City o f Lockhart v. United States, 460 U.S. 125 (1983), 
Garza v. County o f Los Angeles, 756 F. Supp. 1298 (C.D. Cal.), 
a ff’d, 918 F.2d 763 (9th Cir. 1990), cert, denied, 498 U.S. 1028 
(1991), and Hastert v. State Bd. o f Elections, 111 F. Supp. 634 
(N.D. 111. 1991) (three-judge court).

The National Asian Pacific American Legal Consortium 
(“NAPALC”) is a nonprofit, nonpartisan organization whose 
mission is to advance the legal and civil rights of Asian and 
Pacific Americans through a national collaborative structure 
that pursues litigation, advocacy, education, and public policy 
development. The NAPALC is composed of three organiza­
tions based in major urban areas with significant Asian and 
Pacific Islander populations: the Asian American Legal 
Defense and Education Fund (New York), the Asian Law 
Caucus, Inc. (San Francisco), and the Asian Pacific American 
Legal Center of Southern California (Los Angeles). The 
enforcement of the Voting Rights Act as a means for provid­
ing Asian Pacific Americans with meaningful access to the 
electoral process is one of NAPALC’s top priority programs.



3

The National Association for the Advancement of Col­
ored People (“NAACP”) is a private membership organiza­
tion of 500,000 members nationwide. It is the nation’s oldest 
and largest civil rights organization. The NAACP was active 
in the effort to win passage of the Voting Rights Act of 1965 
and the subsequent amendments enacted thereto. The 
NAACP has frequently provided representation to minorities 
in voting rights cases and has participated in litigation before 
this Court, including NAACP  v. Hampton County Election 
Comm’n, 470 U.S. 166 (1985), and Statewide Reapportionment 
Advisory Comm. v. Theodore, 113 S. Ct. 2954 (1993).

The National Organization for Women (“NOW”) is the 
nation’s largest feminist organization devoted to the advance­
ment of women’s rights, with over 280,000 members and more 
than 600 chapters in all 50 states and the District of Columbia. 
NOW has, since its inception, advocated the full and complete 
political participation of all people, particularly women and 
racial and ethnic minorities. Specifically, NOW and NOW’s 
political action committee has a project called “Elect Women 
For a Change,” that supports the election of women to public 
office.

The NOW Legal Defense and Education Fund (“NOW 
LDEF”) is a leading national non-profit civil rights organiza­
tion that performs a broad range of legal and educational ser­
vices in support of women’s efforts to secure equal rights and 
to eliminate sex-based discrimination. NOW LDEF was 
founded as an independent organization in 1970 by leaders of 
the National Organization for Women. A major focus of 
NOW LDEF’s work is to promote civil rights for women, 
including equal electoral participation.

The National Urban League (“League”), founded in 
1910, is the premier social service and civil rights organization 
in A m erica. The League is a nonprofit, nonpartisan  
community-based organization headquartered in New York 
City, with 113 affiliates in 34 states and the District of Colum­
bia. The mission of the League is to assist African Americans 
in the achievement of social and economic equality. The 
League implements its mission through advocacy, bridge 
building, program services, and research.



4

People For The American Way (“People For”) is a non­
partisan, education-oriented citizens organization established 
to prom ote and protect civil and constitutional rights. 
Founded in 1980 by a group of religious, civic and educational 
leaders devoted to our Nation’s heritage of tolerance, plural­
ism and liberty, People For now has over 300,000 members 
nationwide. People For has been actively involved in efforts to 
combat discrimination and its effects and to promote meaning­
ful and effective voter participation by all citizens. These 
efforts have included conducting nationally recognized voter 
education and registration programs, participating in legisla­
tive advocacy on these issues, and serving as counsel or as 
amicus curiae in important cases before this Court and courts 
across the country.

The Women’s Legal Defense Fund (“WLDF”), founded 
in 1971, is a national advocacy organization working at federal 
and state levels to promote policies that help women achieve 
equal opportunity, quality health care, and economic security 
for themselves and their families. WLDF has long advocated 
broad application of the constitutional and statutory guaran­
tees of civil rights under the law.

All of these organizations advocate on behalf of voters 
who are concerned with maintaining complete openness and 
diversity in the electoral process. The issue of how congres­
sional boundaries are drawn affects them and their constituen­
cies of minorities and women, and voters around the country.

The resolution of the issues in this case will have an 
impact on the interests of women and minority voters gener­
ally as well as on the particular parties before the Court. This 
amicus brief focuses on the issues before the Court in light of 
the historical development and expansion of the constitutional 
right to vote. Amici thus offer a broader perspective regarding 
the potential impact and importance of this case, as well as a 
more expansive analysis of the public policy issues in question, 
than that which is likely to be provided by the particular par­
ties to this case. This brief therefore presents arguments that 
complement rather than duplicate those of the appellants.

Amici represent several broad-based constituencies who 
will be directly affected by the decision herein. Amici also



5

offer arguments and analysis complementary to the briefs filed 
by Appellants. Amici therefore respectfully request that the 
motion be granted.

Respectfully submitted,

Charisse R. Lillie*
B a l l a r d  Spa h r  A n d r e w s  &

INGERSOLL
1735 Market Street, 51st Floor 
Philadelphia, PA 19103-7599 
(215) 665-8500 
* Counsel of Record 
for Amici Curiae



TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES.................................................  ii
INTEREST OF A M IC I ...........................................................  1
SUMMARY OF ARGUM ENT........ ...................    2

ARGUMENT ..........................................................................   5
INTRODUCTION .....................................................  5

I. Amendments to the Constitution Have Resulted 
in an Increasingly Diverse and Representative 
Electorate ........................ .............. ................... . • 6

II. The Voting Rights Act and its Amendments 
Demonstrate the Commitment of Congress to 
Enforcing the Constitutional Guarantee of 
Equal Political Opportunity....................................  13

III. The History of Voting Rights Litigation in the 
Supreme Court Shows the Court’s Commitment 
to Expanding the Right to V o te ............................  24

CONCLUSION ...................................................     29

l



TABLE OF AUTHORITIES

Cases: Page
Allen v. State Board o f Elections, 393 U.S. 544 (1969) . 23, 24
Baker v. Carr, 369 U.S. 186 (1962)..................................... 9, 26

Breedlove v. Suttle, 302 U.S. 277 (1937)......................... .. 12

Brown v. Board o f Education, 347 U.S. 483 (1954).......... 2

Cady v. State, 31 S.E. 2d 38 (Ga.), cert, denied, 323 U.S.
676 (1944)...................................................................... 12

Castro v. State o f California, 466 P.2d 244 (Cal. 1970) . . .  19
Chisom v. Roemer, 501 U.S. 380 (1991).............................  24

City o f Mobile v. Bolden, 446 U.S. 55 (1980) . . . . . . . . .  22, 23
Clark v. Roemer, 500 U.S. 646 (1991)..............................  24
Fortson v. Dorsey, 379 U.S. 433 (1965) .............................. 23

Garza v. County o f Los Angeles, 756 F. Supp. 1298 (C.D. 
Cal.), a ff’d, 918 F.2d 763 (9th Cir. 1990), cert, denied,
498 U.S. 1028 (1991)..........................................  18,19, 20

Georgia v. United States, 411 U.S. 526 (1973)...................  23

Gomillion v. Lightfoot, 364 U.S. 339 (1960)..................... 9, 26
Gong Lum  v. Rice, 275 U.S. 78 (1927) .............................. 10
Gray v. Sanders, 372 U.S. 368 (1963).........................  9, 26, 27
Guey Heung Lee v. Johnson, 404 U.S. 1215 (1 9 7 1 ) ...... 20
Guinn v. United States, 238 U.S. 347 (1915) ...................... 25
Harper v. Virginia Board o f Elections, 383 U.S. 663 

(1966)............................................................................. 2, 28

Hawthorne v. Turkey Creek School District, 134 S.E. 103 
(Ga. 1926).....................................................................  12

Hirabayashi v. United States, 320 U.S. 81 (1943).............. 21
Houston Lawyers’ Association v. Attorney General, 501

U.S. 419 (1991)........................................ .......... .. 24



TABLE OF AUTHORITIES— (Continued)

Cases: Page
Johnson v. DeGrandy, 114 S. Ct. 2647 (1994)...................  24

Korematsu v. United States, 323 U.S. 214 (1944)......... 21

League o f United Latin American Citizens v. Midland 
Independent School District, 812 F.2d 1494 (5th Cir.), 
vacated on other grounds en banc, 829 F.2d 546 (5th 
Cir. 1 9 8 7 ) . . . . . .............    18

Louisiana v. Hayes, No. 94-627 (probable jurisdiction
noted and appeal pending)...............    4

Loving v. Virginia, 388 U.S. 1 (1967)............................ .. 10

Naim v. Naim, 87 S.E.2d 749 (Va.), vacated, 350 U.S. 891 
(1955)...............       10

NAACP  v. Hampton County Elections Commission, 470
U.S. 166 (1985)...........................    23

Oregon v. Mitchell, 400 U.S. 112 (1970).........................  28, 29

Pleasant Grove v. United States, 479 U.S. 462 (1987) . . . .  24

Plessy v. Ferguson, 163 U.S. 537 (1896)............................... 10

Powers v. State, 157 S.E. 195 (Ga. 1931)...........................  12

Prewitt v. Wilson, 46 S.W.2d 90 (Ky. Ct. App. 1 9 3 2 )..... 14
Reynolds v. Sims, 377 U.S. 533 (1964)................ 9, 13, 28
Shaw v. Reno, 113 S. Ct. 2816 (1993)...........................passim

Smith v. Allwright, 321 U.S. 649 (1944)......................... 25, 26
South Carolina v. Katzenbach, 383 U.S. 301 (1966).... 14, 15

Stephens v. Ball Ground School District, 113 S.E. 85 (Ga.
1922).............................................................................. 12

Takao Ozawa v. United States, 260 U.S. 173 (192 2 )...... 21
Terry v. Adams, 345 U.S. 461 (1953)................................. 26
Thornburg v. Gingles, 478 U.S. 30 (1986) ...................... 23, 24



TABLE OF AUTHORITIES— (Continued)

Cases: Page
United States v. Hayes, No. 94-558 (probable jurisdiction

noted and appeal pending).........................................  4

Wesberry v. Sanders, 376 U.S. 1 (1964).................. 3, 7, 27, 28

Westminster School District v. Mendez, 161 F.2d 774 (9th
Cir. 1947)........................................................................  10

White v. Regester, 412 U.S. 755 (1973)...............................  16

Yick Wo v. Hopkins, 118 U.S. 356 (1896).........................  2

Constitution and Statutes:

United States Constitution:

Article 1..........................................................................  7

Thirteenth Amendment...............................................  8

Fourteenth Amendment........................................... passim

Fifteenth Amendment.............................  9, 10, 11, 13, 25
Seventeenth Amendment.................    11

Nineteenth Amendment...........................................  11, 12

Twenty-Fourth Amendment ........................................ 12

Twenty-Sixth Amendment  .............................  12, 13

Statutes:

National Voter Registration Act of 1993, Pub. L. No. 103- 
31, 107 Stat. 77 (codified at 42 U.S.C. § 1973gg-l et 
seq. (1994))......................................................................  13

The Voting Rights Act of 1965, Pub. L. No. 89-110, 79 
Stat. 437 (codified as amended at 42 U.S.C. §§ 1973 
et seq. (1994)).....................................    passim

The Voting Rights Act Amendments of 1970, Pub. L. No. 
91-285, 84 Stat. 314 (codified as amended at 42 
U.S.C. §§ 1973 to 1973bb-l (1994))........................... 15



Statutes: Page
The Voting Rights Act of 1965 Amendments, Pub. L. No. 

94-73, 89 Stat. 400 (codified as amended at 42 U.S.C.
§§ 1973 to 1973bb-l (1994)) .................. ................ passim

Voting Rights Act Amendments of 1982, § 3, Pub. L. No. 
97-205, 96 Stat. 131, 134 (codified as amended at 42 
U.S.C. § 1973(a) (1994))............................... ...............  22

Voting Rights Act Amendment of 1992, § 2, Pub. L. No. 
102-344, 106 Stat. 921 (codified as amended at 42 
U.S.C. § 1973aa-la) (1994)) .........................   22

Miscellaneous:
George Anastaplo, Amendments to the Constitution o f  

the United States: A  Commentary, 23 Loy. U. Chi.
L.J. 631 (1992) ...........................................................  8, 13

Karen McGill Arrington, The Struggle to Gain the Right 
to Vote: 1787-1965, in Voting Rights in America: 
Continuing the Quest for Full Participation 34 
(Karen McGill Arrington & William L. Taylor eds.,
1992).........      21

Chandler Davidson, The Voting Rights Act: A  Brief His­
tory, in Controversies in Minority Voting 7 (Bernard 
Grofman & R. Chandler Davidson eds., 1992)........  7, 8

Lani Guinier, The Triumph o f Tokenism: The Voting

TABLE OF AUTHORITIES— (Continued)

Rights Act and the Theory o f Black Electoral Success,
89 Mich. L. Rev. 1077 (1991)....................... ............. .. 6

Eugene Rostow, The Japanese-American Cases — A
Disaster, 54 Yale L.J. 489 (1945).................................  21

The Voting Rights Act Extension, H. Rep. No. 196, 94th 
Cong., 1st Sess. 16, 94th Cong., 1st Sess. 24 1975 . . .

17, 18, 20
The Voting Rights Act of 1965 Extension, S. Rep. No.

295, 94th Cong., 1st Sess. 24 (1975), reprinted in 1975 
U.S.C.C.A.N. 790 ...... .................................  17, 18, 20, 21

v



Miscellaneous: Page
Kris W. Kobach, Rethinking Article V: Term Limits and 

the Seventeenth and Nineteenth Amendments, 103 
Yale L.J. 1971 (1994)....................................................  11

J. Morgan Kousser, The Voting Rights Act and the Two 
Reconstructions, in Controversies in Minority Voting 
135 (Bernard Grofman & R. Chandler Davidson 
eds., 1992)...................................................................    10

Steven F. Lawson, Black Ballots: Voting Rights in the
South, 1944-1969 (1976)................................................. 14

The Southwest Voter Registration Education Project,
Legacy: 1974-1990..........................................................  20

National Association of Latino Elected and Appointed 
Officials Education Fund — 1993 National Roster of 
Hispanic Elected Officials (1993)...........................  19, 20

The Voting Rights Act Language Assistance Amendments 
o f 1992, S. Rep. No. 315, 102d Cong., 2d Sess.
(1992)..................................................     21

Amendments to the Voting Rights Act of 1965: Hearings 
Before the Subcommittee on Constitutional Rights 
of the Committee on the Judiciary, 91st Cong., 2d 
Sess. (1970)................................................................  15, 16

U.S. Civil Rights Commission, Civil Rights Issues Facing 
Asian Americans in the 1990s (1992)........................  21

U.S. Commission on Civil Rights, The Voting Rights Act:
Unfulfilled Goals (1981)............................................... 17

United States Senate, Subcommittee on Constitutional 
Rights of the Committee on the Judiciary, Extension 
of Voting Rights Act of 1965: Hearings on S. 407,
S. 903, S. 1509 and S. 1443, 94th Cong., 1st Sess. 
(1975).............................................................................. 17

TABLE OF AUTHORITIES— (Continued)

vi



TABLE OF AUTHORITIES— (Continued)

Miscellaneous: Page
Voting Rights Act Amendments of 1982, S. Rep. No.

417, 97th Cong., 2d Sess., reprinted in, 1982 
U.S.C.C.A.N. I l l  (1982).................................... 22, 23

White House Press Release (June 29, 1 9 9 2 ) . . . . . . . . . . . .  23

Vll



IN THE

SUPREME COURT OF THE UNITED STATES
October Term, 1994 

Z e l l  M il l e r , e t  a l .,
Appellants,

D a v id a  J o h n so n , e t  a l .,
Appellees.

U n it e d  States o f  A m e r ic a ,
Appellants,

D a v id a  J o h n so n , e t  a l .,
Appellees.

Lucious A b r a m s , J r ., e t  a l .,
Appellants,

D a v id a  Jo h n so n , e t  a l .,
Appellees.

On Appeal from the United States District 
Court for the Southern District of Georgia

B R IE F  OF AM ICI CURIAE  
IN  SU P P O R T  OF A PPELLA N TS

M OTION FO R  LEAVE TO FILE A B R IE F  
AM ICI CEBIAE

INTEREST OF AMICI

Amici, Mexican American Legal Defense and Educa­
tional Fund, National Asian Pacific American Legal Consor­
tium, National Association for the Advancement of Colored 
People, National Organization for Women, National Organi­
zation for Women Legal Defense Fund, National Urban 
League, People for the American Way and Women’s Legal 
Defense Fund have extensive experience in advocacy on vot­
ing rights issues and/or in voting rights litigation, and share the 
goal of preventing any retrenchment by the Courts and Con-

1



2

gress of statutes and decisional law which have expanded the 
right to vote and resulted in the creation of a more inclusive 
democracy.1

SUMMARY OF ARGUMENT

Since Brown v. Board o f Education, 347 U.S. 483 (1954), 
the country has made steady progress in eliminating the 
effects of its unfortunate history of segregation and discrimi­
nation against African Americans. As a result of the enact­
ment and enforcement of the Voting Rights Act of 19652 and 
the amendments to the statute, the longstanding exclusion of 
minority groups from a voice in governance has begun to 
change. In the last decade, the perception of the United States 
as a country governed only by whites (or Anglos) has begun 
to change. This change in the perception and the reality has 
provided an avenue of hope for Americans of all colors and 
backgrounds, and has fostered a sense of inclusion and partici­
pation that for so long was nonexistent.

The steady progress which this country has made in 
expanding the franchise is threatened by the litigation result­
ing from this Court’s decision in Shaw v. Reno, 113 S. Ct. 2816
(1993). Through its history our nation has demonstrated an 
interest in expanding the franchise and fostering participation 
by different parts of society. The decisions of the courts below 
and other cases signal a retrenchment which should be 
avoided. Amici urge this Court, when ruling on the merits of 
these appeals, to consider this case in its historical and legal 
context.

The Supreme Court has recognized that “the political 
franchise of voting is a ‘fundamental political right, because [it 
is] preservative of all rights.’ ” Harper v. Virginia Bd. o f Elec­
tions, 383 U.S. 663, 667 (1966); see also Yick Wo v. Hopkins, 
118 U.S. 356, 370 (1896) (recognizing that the right to vote “is 
preservative of all rights”). Nevertheless, for many years after

1. Each organization is described fully in the preceding Motion for 
Leave to File, which is incorporated by reference herein.

2. The Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 
(codified as amended at 42 U.S.C. §§ 1973 et seq. (1994)).



3

the founding of this nation, the fundamental right to vote was 
denied to all except white male property owners.

The nation continues to make its gradual advance toward 
the achievement of a universal right to suffrage for all adult 
citizens of the United States, without regard to wealth, race, 
previous condition of servitude, color, gender, national origin, 
language minority status, or age. As a result, the “fundamen­
tal political right” to vote is no longer the province of a small 
minority of the citizenry. Rather, it is a right enjoyed and cher­
ished by millions of Americans whose lives are affected by the 
decisions made by their elected representatives.

Amici are committed to ensuring that the right to vote 
and to participate equally in the electoral process receive this 
Court’s most esteemed recognition, fervent protection and 
reaffirmation. These appeals, which arise from a decision 
invalidating one of the districts of the post-1990 Census con­
gressional redistricting plan for the state of Georgia (the Elev­
enth Congressional District, currently represented by Con­
gresswoman Cynthia McKinney), present issues of great 
concern to Amici and their members and constituents, all of 
whom are concerned with ensuring that constitutional and 
statutory provisions prohibiting race-, gender-, wealth-, 
English literacy- and age-based restrictions upon the right to 
vote are fully enforced.

Amici believe that the right to equal participation in the 
election of members of the United States Congress is among 
the most cherished rights of citizens of the United States. Jus­
tice Hugo Black wrote that the “Constitution’s plain objective 
of making equal representation for equal numbers of people 
[was] the fundamental goal for the House of Representatives 
. . .  [and] the high standard of justice and common sense which 
the Founders set for us.” Wesberry v. Sanders, 376 U.S. 1, 18 
(1964).

Constitutional amendments and congressional enactments 
since the Civil War have expanded the right of suffrage, con­
sistent with this “plain objective” of the United States Consti­
tution. Racial, ethnic and language minorities and women in 
America continue to suffer discrimination in employment, 
housing and other circumstances, despite the progress which



4

has been made. Amendments to the Constitution, coupled 
with federal legislation, have been instrumental to the efforts 
to remedy the effects of discrimination against minorities and 
women.

The vitality of both the constitutional amendments 
extending the franchise, as well as the body of laws enacted by 
Congress to enforce these amendments, are at issue in the 
appeals now before the Court. Amici join the Appellants in 
urging the Court to reverse the decision below, which seriously 
conflicts with the fundamental message of the numerous deci­
sions of this Court recognizing the importance of the right to 
vote. These decisions, acknowledging the damaging and per­
sistent effects of the varied means of disenfranchising large 
segments of the citizenry of the United States, and remedying 
the impact of decades of exclusion from the political process 
that is the legacy of many members of the modern electorate, 
should not be disturbed.

Our society and the federal courts, including the United 
States Supreme Court, have struggled in this era with the 
appropriate limits on explicit consideration of race, national 
origin and sex. It is important to recognize that congressional 
enactments such as the Voting Rights Act represent a signifi­
cant and proper balancing of the interests and concerns at 
stake.

Amici urge the Court to maintain that balance and to 
reject the unwarranted expansion and misreading of Shaw that 
has spawned these appeals, and similar lawsuits,3 against post- 
1990 Congressional and state legislative districts. It would be 
a national tragedy if Shaw was interpreted and followed with 
finality in such a manner that it would adversely and unneces­
sarily cause a sudden and drastic reduction of African Ameri­
can and other minority citizens’ political participation and rep­
resentation at this critical time in this still-evolving history of 
our democracy. This country’s commitment to democracy, plu­

3. See, e.g., United States v. Hays, No. 94-558 (prob. jur. noted and 
appeal pending); Louisiana v. Hays, No. 94-627 (prob. jur. noted and appeal 
pending).



5

ralism and diversity, which insures and safeguards the rights of 
all of our citizens to equal participation in our electoral pro­
cess, requires no less.

ARGUMENT
INTRODUCTION

Appellees are a group of black and white registered vot­
ers and residents of Georgia’s Eleventh Congressional District 
who have successfully challenged Georgia’s 1990 congressional 
redistricting on constitutional grounds. Appellees alleged in 
their complaint that the configuration of the Eleventh Con­
gressional District amounted to unconstitutional racial gerry­
mandering in violation of Shaw.

A  majority of the district court held that Georgia’s Elev­
enth Congressional District violated the Equal Protection 
Clause of the Fourteenth Amendment and permanently 
enjoined further elections in the district. Amici urge this Court 
to review constitutional history, the legislative history of the 
Voting Rights Act of 1965 (the “Act”) and the case law inter­
preting the Act as it considers the questions presented in these 
appeals. Shaw acknowledges that race-conscious redistricting 
may violate the rights of white citizens under some circum­
stances. But Shaw does not require the result reached in the 
court below. Amici urge reversal of the decision below. Con­
stitutional history, legislative history of the Act and its amend­
ments, and the case law interpreting the Act reveal an overall 
benefit to all citizens — both whites and members of minority 
groups — when expansions of the right to vote are under­
taken. The actions of the State of Georgia and the United 
States Attorney General are legal and constitutional, and the 
Eleventh Congressional District should be preserved.

Appellees below have failed to prove any harm suffered 
by them. They have also failed to prove that Georgia’s Elev­
enth Congressional District is so bizarre or irrational on its 
face that the only conclusion that could be reached by the 
Court is that it was created solely on the basis of race. Amici 
urge the Court to resist this attempt to expand the reach of 
Shaw. Some gradual progress has been made in opening up



6

the American political system to minorities and women. Any 
retraction of this progress will have a deleterious effect on the 
political process and the political landscape.

The central underpinning of a free and democratic system 
of government is the right to vote. The struggle to guarantee 
that every citizen has an equal voice in government has long 
commanded the attention and the emotions of this Nation. 
The expansion of the right to vote is a sign of — and ensures 
the promotion of — the vitality of democracy in the United 
States. Dr. Martin Luther King, Jr., once said:

Give us the ballot, and we will no longer have to worry 
the federal government about our basic rights.. . .  Give us 
the ballot and we will fill our legislative halls with men of 
good will. . . .  Give us the ballot and we will help bring 
this nation to a new society based on justice and dedica­
tion to peace.4

In his remarks, Dr. King asserted that the protection, availabil­
ity and opportunity to use the franchise guarantees the integ­
rity of the political process and strengthens the society served 
by that process.

Efforts to ensure that the right to vote is one available to 
all have been accomplished on several different levels. 
Through constitutional amendments, through legislative 
enactments and through the courts, our system has continually 
protected and broadened this fundamental right.

I. AMENDMENTS TO THE CONSTITUTION HAVE 
RESULTED IN AN INCREASINGLY DIVERSE AND 
REPRESENTATIVE ELECTORATE

The nation’s interest in promoting participation in the 
political process is evident in the expanding protections of the 
right to vote in our Constitution. In its original form, the Con­
stitution recognized this right. Several amendments to it have 
expanded this right to all persons: first to African Americans,

4. Quoted in Lani Guinier, The Triumph o f Tokenism: The Voting 
Rights Act and the Theory o f Black Electoral Success, 89 Mich. L. Rev. 1077, 
1082 n.14 (1991).



7

next to women, and later to those between the ages of 18 and 
21. The Constitution and its amendments demonstrate the 
vital national interest in promoting the participation and 
involvement of all segments of our population in the electoral 
process.

A rticle I, Section 2 of the Constitution provides that 
m em bers of the U nited States H ouse of Representatives 
shall be chosen “by the People of the several States” and 
shall “be apportioned  am ong the  several S tates . . . 
according to their respective N um bers.” U.S. Const, art. 
I, § 2. In his m ajority opinion in Wesberry v. Sanders, 376 
U.S. 1, Justice Black reviewed the debate among the del­
egates of the Constitutional Convention over whether 
election should be by the people. According to Justice 
Black, “ [o]ne principle was upperm ost in the minds of 
m any delegates: that . . .  ‘equal num bers of people ought 
to  have an equal num ber of representatives. . . . ’ ” Id. at 
10-11 (citation omitted).

African Americans were regarded as property for 
taxation purposes, and as such, were not allowed to share 
in having this equal voice, this im m utable right. The 
drafters of the Constitution, in fact, agreed that each 
slave would be counted as three-fifths of a free person. 
For the first two hundred and fifty years after America 
was colonized, most African Americans were enslaved 
and unable to vote. No woman of any color, race or 
national origin could vote. By the eve of the Civil War, 
A frican Americans, w hether “free” or not, were denied 
the suffrage in m ost States.5

Nevertheless, what can only be described as a deep- 
rooted  drive for equality in this country persisted. The 
Constitution had recognized and embodied the “ancient 
‘right of the people to participate in their legislative

5. African Americans were denied the franchise everywhere except 
New York and the New England states (excluding Connecticut where they 
were denied the right to vote). Moreover, in New York, African Americans, 
but not whites, were required to have $250 worth of property to vote. Chan­
dler Davidson, The Voting Rights Act: A  Brief History, in Controversies in 
Minority Voting 7 (Bernard Grofman & Chandler Davidson eds., 1992).



8

council.’” This, in turn, had been recognized as deriving 
from “the immutable laws of nature, the principles of the 
English constitution, and the several charters or com­
pacts” in the Declaration and Resolves of the First Con­
tinental Congress of October 14, 1774.6 In several of the 
amendments that followed, the m ovem ent toward univer­
sal suffrage, a natural extension of the idea of equality, 
would be advanced. Gradually the right to vote was 
extended beyond educated, wealthy, white, male citizens 
who owned property.

The right of universal suffrage rose to  the forefront 
of the American political agenda during the Civil War, 
and thereafter. The enactm ent of various amendments 
enlarging the reach of the franchise reflected this coun­
try ’s com m itm ent to its original prom ise of equality 
under law for all its citizens regardless of race, color or 
heritage.

The Thirteenth Am endm ent formally abolished the 
institution of slavery. U.S. Const, am end. X III. This 
am endm ent began the process of curing the single great­
est failure of the  C onstitu tion of 1787, assuring all 
Americans, including African Americans, a semblance of 
citizenship.

The drafters of the Fourteenth A m endm ent in Sec­
tion 2 addressed the issue of the right of suffrage by 
penalizing States that deny voting rights.7 In Section 1, 
although not explicitly mentioning race, all citizens are 
guaranteed their ‘privileges and im m unities’, in addition 
to the equal protection and due process of the laws. 
Minorities were now provided with a sword with which 
they would battle the historical vestiges of discrimina­
tion. The battle, however, was yet to come.8

6. See George Anastaplo, Amendments to the Constitution o f the United 
States: A  Commentary, 23 Loy. U. Chi. L.J. 631, 833 (1992).

7. U.S. Const, amend. XIV, § 2. It is no secret that this part of the 
Amendment was overlooked as the franchise for African Americans was 
eroded some years later. Davidson, supra note 4, at 9.

8. With respect to right of suffrage, the Fourteenth Amendment did not 
serve as a source of authority until the early vote dilution cases. See, e.g.,



9

The Fifteenth Am endm ent was enacted by Congress 
in 1870, less than a year after ratification of the Four­
teenth Am endm ent and was directed tow ard the im m e­
diate goal of securing and protecting m inority voting 
rights. It provided, “The right of citizens of the U nited 
States to vote shall not be denied or abridged by the 
United States or by any State on account of race, color 
or previous condition of servitude. The Congress shall 
have the power to enforce this by appropriate legisla­
tion.” U.S. Const, amend. XV. Despite the clear language 
of this provision, contrivances by southern States, along 
with often violent white southern resistance to African 
American suffrage, created the need for further congres­
sional action to fully enforce its guarantees.9

Congress made repeated  attem pts to  p ro tect the 
right of suffrage of African Americans, principally in the 
Military Reconstruction Acts, the various enforcem ent 
acts, Ku Klux Klan acts (to execute the dictates of the 
Fourteenth and Fifteenth A m endm ents) and the 1875 
Civil R ights Act. B ut w hite sou thern  in transigence  
proved to be a powerful force. African Am erican politi­
cal power, albeit in its nascency, was suffocated by a vari­
ety of means, from the insidious voting fraud and use of 
gerrymandering and at-large elections with white only 
prim aries, to  outright statu tory  suffrage restrictions, 
replacem ent of local elections with appointm ents and, of 
course, with intimidation and violence.10

Gray v. Sanders, 372 U.S. 368 (1963) (Equal Protection Clause requires that, 
once a geographical unit for which a representative is to be chosen is desig­
nated, all who participate in the election must have an equal vote regardless 
of race or sex); Baker v. Carr; 369 U.S. 186 (1962); Reynolds v. Sims, 377 
U.S. 533 (1964); see also Gomillion v. Lightfoot, 364 U.S. 339 (1960) (Whit­
taker, J., concurring) (noting that the Fourteenth Amendment, in addition to 
the Fifteenth Amendment, might provide a source of authority in voting 
rights cases).

9. Ratification of the Fifteenth Amendment did not alter the exclusion 
of women of color from the United States’ electorate. The right to vote was 
not extended to women until 50 years later, with the ratification of the 
Nineteenth Amendment.

10. For a detailed analysis of the legal and extralegal means by which



10

M ost African Americans effectively lost the right to 
vote by the end of the nineteenth century. Voters enfran­
chised during Reconstruction were purged from  the rolls. 
The nation lapsed back into pre-abolition times. African 
A m erican children were consigned to a separate and 
often tangibly inferior education. The separate but equal 
doctrine served to justify fu rther institutional racism, 
supported and enforced through governmental action. 
Nationwide, enforced separation in public accommoda­
tions and most aspects of social life was common.11 All 
this persisted despite the guarantee of racially impartial 
suffrage set forth  in the Fifteenth A m endm ent, and the 
guarantee of equal protection under law provided for in 
the Fourteenth  Am endm ent.

Just as the door was closing on the struggle for Afri­
can Am erican suffrage, the drive for wom en’s suffrage 
was gaining m om entum . The Civil War Am endm ents 
clearly served as an example and defined the objective

NOTES (Continued)
African American political power was diluted and African Americans were 
disenfranchised after the Reconstruction era, see J. Morgan Kousser, The 
Voting Rights Act and the Two Reconstructions, in Controversies in Minority 
Voting 135 (Bernard Grofman & Chandler Davidson eds., 1992).

11. See generally Plessy v. Ferguson, 163 U.S. 537 (1896). African 
Americans were not the only minority group subjected to such state- 
enforced segregation. Virginia’s anti-miscegenation statute, invalidated by 
this Court in Loving v. Virginia, 388 U.S. 1 (1967) was also applied to sanc­
tion a Chinese man and white woman who married in North Carolina and 
returned to Virginia to live. See Naim v. Naim, 87 S.E. 2d 749 (Va.), vacated, 
350 U.S. 891 (1955). The law made “any white person and colored person 
. . .  [leaving the] State, for the purpose of being married . . . with the inten­
tion of returning . . .  [and] cohabiting as man and wife” subject to one to five 
years imprisonment, if convicted. Loving, 388 U.S. at 4-5. Asian- and Mexi­
can American children, like African American children, were required to 
attend segregated schools for a substantial part of this century. See, e.g., 
Gong Lum v. Rice, 275 U.S. 78 (1927) (holding that exclusion of child of 
Chinese ancestry from white schools was constitutionally permissible); West­
minster Sch. Dist. v. Mendez, 161 F.2d 774 (9th Cir. 1947) (challenging seg­
regation of Mexican-American children in public school system).



11

for the movem ent to amend the Constitution to eliminate 
gender-based restrictions on the right to vote.12

The next series of voting rights related amendments, 
the  Seventeenth  and N ineteenth  A m endm ents, were 
enacted during the Progressive era in the first quarter of 
this century. The latter had a goal patently similar to that 
of the Fifteenth Am endm ent — expanding the franchise, 
in this case to include women. The form er’s extension of 
popular election for Senators was another im portant 
milestone in the development of the right to vote. 13

The N ineteenth  A m endm ent, echoing the simple 
text of the Fifteenth Amendment, provides, “The right of 
citizens of the U nited States to vote shall not be denied 
or abridged by the United States or by any State on 
account of sex.” U.S. Const, amend. XIX, § 1. The N ine­
teenth  Am endm ent, as in every other amendm ent of sig­
nificance to the right to vote, including the Fourteenth, 
the Fifteenth, the Twenty-Fourth and the Twenty-Sixth, 
includes a provision granting Congress the power “to 
enforce this article by appropriate legislation.” See, e.g., 
U.S. Const, amend. XIX, § 2.

With the enactm ent of the Nineteenth Amendment, 
the movement toward universal suffrage in the U nited 
States made further strides. The inclusion of women, who 
once were excluded from the political process purely on 
the basis of sex, was a watershed event in American his­
tory. W omen’s suffrage and the ratification of the N ine­
teenth  A m e n d m e n t continued the process of actualiza­
tion of the principle of equality upon which the nation 
was founded.14

12. Kris W. Kobach, Rethinking Article V: Term Limits and the Seven­
teenth and Nineteenth Amendments, 103 Yale L.J. 1971, 1980 (1994).

13. The Seventeenth Amendment provides that: “The Senate of the 
United States shall be composed of two Senators from each State, elected 
by the people thereof, for six years; and each Senator shall have one vote. 
The electors in each State shall have the qualifications requisite for electors 
of the most numerous branch of the State legislature.” U.S. Const, amend. 
XVII.

14. In some parts of the country, women, like the emancipated African



12

The movement toward universal suffrage continued 
with the Twenty-Fourth and Twenty-Sixth Amendments. 
The Twenty-Fourth A m endm ent disallowed the use of a 
poll tax as a means of withholding the right to vote in 
presidential and congressional elections.15 The Twenty-

N O TES (Continued)
American males who preceded them in suffrage, found that even an unam­
biguous constitutional amendment could not ensure full incorporation into 
political life. In Georgia, for example, ballots cast by newly enfranchised 
women voters were targeted in disqualification petitions. See, e.g., Haw­
thorne v. Turkey Creek Sch. Dist., 134 S.E. 103 (Ga. 1926); Stephens v. Ball 
Ground Sch. Dist., 113 S.E. 85 (Ga. 1922). Within one year after the ratifi­
cation of the Nineteenth Amendment, the Georgia legislature enacted laws 
extending the poll tax (which was originally enacted after the ratification of 
the Fifteenth Amendment) to women registrants. Hawthorne, 134 S.E. at 
106-07. The poll tax applied somewhat differently to women than to men, 
however. Women, unlike men, were relieved of the obligation of paying any 
tax (at the rate of one dollar per year) for years after they became legally 
eligible to register (i.e., age 21) but declined to do so. Nolen R. Breedlove, 
a 28 year old white man who was unable to demonstrate that he had paid 
poll taxes during the seven years in which he was legally eligible to register, 
was not allowed to register to vote after refusing to pay his “back” poll 
taxes. Breedlove v. Suttle, 302 U.S. 277,280 (1937). Breedlove challenged the 
denial of registration on the ground that it violated the Nineteenth Amend­
ment and the Equal Protection Clause of the Fourteenth Amendment. This 
Court rejected Breedlove’s arguments, holding that “women may be 
exempted [from payment of accrued poll taxes] on the basis o f . . .  [the] bur­
dens necessarily borne by them for the preservation of the race,” and 
because “[t]he laws of Georgia declare the husband to be the head of the 
family and the wife subject to him.. . .  [Therefore, t]o subject her to the levy 
would be to add to his burden.” Id. at 282.

In the year after the ratification of the Nineteenth Amendment, the 
Georgia legislature also passed a law which provided “that ‘females’ shall 
not be liable to discharge any military, jury, police, patrol or road duty.’” 
Powers v. State, 157 S.E. 195 (Ga. 1931). The Georgia Supreme Court held 
that this law was “not obnoxious to the Nineteenth Amendment,” id., and 
reaffirmed the Powers holding more than a decade later in Cady v. State, 31 
S.E. 2d 38, 42 (Ga.), cert, denied, 323 U.S. 676 (1944).

Finally, Georgia was not among the states responsible for the ratifica­
tion of the Nineteenth Amendment in 1920. In fact, the Georgia Legislature 
did not ratify the amendment until February 20, 1970. U.S. Const., amend. 
XIX (West U.S.C.A. 1987) at 983.

15. U.S. Const, amend. XXIV, § 1.



13

Fourth Am endm ent, “testifies to the now prevalent opin­
ion that financial considerations or economic interests 
should n o t bear upon  o n e ’s eligibility or pow er to  
vote.”16

The Twenty-Sixth A m endm ent provides, “The right 
of citizens of the U nited States, who are eighteen years 
of age or older, to vote shall not be denied or abridged 
by the U nited States or by any State on account of age.” 
U.S. Const, amend. XXVI. This most recent am endm ent 
to the Constitution rem oved yet another great barrier to 
participation in the political process. The inclusion of 
younger people contributed immensely to the further 
expansion of the franchise.

This history of am endm ents to the C onstitu tion 
reveals the devotion to expansion and broadening of the 
right to vote for all Americans. This history also provides 
a fram ework for the following discussion of congres­
sional enactments to enforce these constitutional guaran­
tees, and the decisions of this Court that have reaffirm ed 
them.

II. THE VOTING RIGHTS ACT AND ITS AMEND­
MENTS DEMONSTRATE THE COMMITMENT OF 
CONGRESS TO ENFORCING THE CONSTITU­
TIONAL GUARANTEE OF EQUAL POLITICAL 
OPPORTUNITY
In Reynolds v. Sims, this Court recognized that “to the 

extent . . .  a citizen’s right to vote is debased, he is that much 
less a citizen.” 377 U.S. at 567. One year after Reynolds was 
decided, Congress exercised its power under Section 2 of the 
Fifteenth Amendment to pass the Voting Rights Act of 1965. 
An analysis of the legislative history of the Act provides fur­
ther evidence of the importance of inclusiveness as a funda­
mental principle of a fair and democratic government.

16. Anastaplo, supra note 6, at 836. See also National Voter Registra­
tion Act of 1993, Pub. L. No. 103-31, 107 Stat. 77 (codified at 42 U.S.C. 
§ 1973gg-l et seq. (1994)) (enhancing access to voter registration and pro­
viding, inter alia, for voter registration to be conducted at public assistance 
agencies).



14

President Lyndon Johnson’s comments upon signing 
the Act into law reveal the aspirations of those who 
fought for the A ct’s passage:

The vote is the most powerful instrument ever devised by 
man for breaking down injustice and destroying the ter­
rible walls which imprison men because they are different 
from other men.17

The Act represented a major contribution to the promotion of 
fairness and participation in the political process by a coordi­
nate branch of government.

In South Carolina v. Katzenbach, 383 U.S. 301 (1966), the 
Court upheld the constitutionality of the Act. Under the Act, 
literacy tests were suspended in states which had a history of 
discrimination in voting.18 The Court upheld this provision of 
the Act, explaining that the Act employed this remedy in

response [to] the feeling that States and political subdivi­
sions which had been allowing white illiterates to vote for 
years could not sincerely complain about ‘dilution’ of 
their electorates through the registration of Negro illiter­
ates. Congress knew that continuance of the tests and 
devices in use at the present time, no matter how fairly 
administered in the future, would freeze the effect of past 
discrimination in favor of unqualified white registrants.

Id. at 334.
At the conclusion of its opinion in Katzenbach, the Court 

stated that the Act is “a valid means for carrying out the com­
mands of the Fifteenth Amendment. Hopefully, millions of

17. Steven F. Lawson, Black Ballots: Voting Rights in the South, 1944- 
1969 at 3-4 (1976) (quoting President Lyndon B. Johnson).

18. While the use of literacy tests as a device for disenfranchising racial 
and language minorities is well known, in at least one state an attempt was 
made to invalidate ballots cast by women — but not men — on the ground 
of illiteracy. See Prewitt v. Wilson, 46 S.W.2d 90 (Ky. Ct. App. 1932). The 
court labelled the disqualification effort “specious” and held that “male vot­
ers [we]re not required to meet the same test . . .  [so] it is therefore discrimi­
natory against [women].” Id. at 92.



15

non-white Americans will now be able to participate for the 
first time on an equal basis in the government under which 
they live.” Id. at 337.

Since its enactment in 1965, the Act has been amended 
four times. Each set of amendments reflects the inexorable 
movement toward a more inclusive broad-based democracy. 
The first set of amendments, enacted as the Voting Rights Act 
Amendments of 1970, Pub. L. No. 91-285, 84 Stat. 314 (codi­
fied as amended at 42 U.S.C. §§ 1973 to 1973bb-l (1994)), 
broadened the franchise by expanding the Act’s coverage to 
include many jurisdictions, especially those outside the deep 
South, that were exempt from the Act as originally enacted. 
The amendments also expanded the franchise by granting 
eighteen-year-old citizens the right to vote. Id. The desire for 
full inclusion of all American citizens in the political process 
was at the core of Congress’ decision to amend the Act. Sena­
tor Barry Goldwater, one of the sponsors of the 1970 amend­
ments, testified:

Being members of the same political community, it is my 
view that all citizens possess the same inherent right to 
have a voice in the selection of the leaders who will guide 
their government.

Amendments to the Voting Rights Act o f 1965: Hearings before 
the Subcommittee on Constitutional Rights o f the Committee on 
the Judiciary, 91st Cong., 2d Sess. 282 (1970) (statement of 
Hon. Barry Goldwater). The statement of Attorney General 
John N. Mitchell also illustrates the spirit underlying the hear­
ings:

The right of each citizen to participate in the electoral 
process is fundamental in our system of Government. If 
that system is to function honestly, there must be no arbi­
trary or discriminatory denial of the voting franchise. . . .  
We have come to the conclusion that voting rights is . . .  a 
national concern for every American. . . .  Our commit­
ment must be to offer as many of our citizens as possible 
the opportunity to express their views at the polls on the 
issues and candidates of the day.



16

Id. at 182-83 (statement of Hon. John N. Mitchell).
White v. Regester, 412 U.S. 755 (1973), unanimously held 

that multimember state House of Representative districts in 
two Texas counties violated the constitutional rights of Afri­
can Americans and Mexican Americans, in violation of the 
Fifteenth Amendment to the Constitution, by “cancelling] 
out or minimiz[ing] thefir] voting strength,” Id. at 765. This 
Court specifically noted the district court’s findings that 
despite the substantial African American population in Dallas, 
“since Reconstruction . . .  there ha[d] been only two Negroes 
in the Dallas County delegation to the Texas House of Repre­
sentatives;” that a “white-dominated organization” in Dallas 
County controlled Democratic Party candidate slating; and 
that “racial campaign tactics . . .  [targeting white voters were 
used] to defeat candidates who had the overwhelming support 
of the black community.” Id. at 766-67.

Similarly, this Court noted in White that San Antonio’s 
Hispanic community, “along with other Mexican-Americans in 
Texas, had long suffered from, and continue[d] to suffer from, 
the results and effect of invidious discrimination and treat­
ment in the fields of education, employment, economics, 
health . . .  [and] politics.” Id. at 768. The Court also noted that 
although Mexican-Americans comprised nearly 30 percent of 
the total population of the county, “only five Mexican- 
Americans since 1880 ha[d] served in the Texas legislature 
from Bexar County.” Id. at 768-79. These factors, among oth­
ers, influenced this Court’s decision to affirm the district 
court’s holding that “the multimember district, as designed 
and operated in Bexar County, invidiously excluded Mexican- 
Americans from effective participation in political liege, spe­
cifically in the election of the representative to the Texas 
House of Representatives.” Id. at 769. In response to these 
circumstances, “[s]ingle-member districts were .. . required to 
remedy the effects of past and present discrimination against 
Mexican-Americans’ . . .  and bring the community into the full 
stream of political life of the county and State.” Id.

Two years after the White decision, “the minority lan­
guage provisions were added to the Act upon determination 
by the Congress that ‘voting discrimination against [language



17

minority] citizens . . .  is pervasive and national in scope.’ ” 
Congress found that because of the denial of equal educa­
tional opportunities by State and local governments, language 
minorities experienced severe disabilities and illiteracy in the 
English language that, together with English-only elections, 
excluded them from participation in the electoral process.19

The legislative history accompanying the language minor­
ity provisions added to the Voting Rights Act in 1975 (42 
U.S.C. §1973b(f)(l)) documents a pattern of discrimination 
against language minorities which has interfered with their 
exercise of the fundamental right to vote. See, e.g., Voting 
Rights Act Extension, H. Rep. No. 196, 94th Cong., 1st Sess. 
1975; Voting Rights Act of 1965 — Extension, S. Rep. No. 295, 
94th Cong, 1st Sess. 1975, reprinted in 1975 U.S.C.C.A.N. 11 A. 
Congress found that “[ljanguage minorities, like blacks 
throughout the South, must overcome the effects of discrimi­
nation as well as efforts to minimize the impact of their politi­
cal participation.” H.R. Rep. No. 196, 94th Cong., 1st Sess. 
(1975) at 16-17.

Congress recognized that by broadening the prohibition 
of “discriminatory tests or devices” so as to preclude English- 
only ballots, non-English-speaking citizens were more likely to 
realize a meaningful franchise. Id. As in 1965 and 1970, broad­
ening the franchise was, again, at the core of the debate:

In the quest for the right to vote, Spanish-speaking citi­
zens have had many experiences which were similar to 
those of blacks. It is time for the nation to end discrimi­
nation which is based on national origin. Just as the Vot­
ing Rights Act has brought about progress among blacks 
and whites in the South, it can be an instrument of 
progress for all people in those areas where there are 
Spanish-speaking communities.

19. U.S. Commission on Civil Rights, The Voting Rights Act: Unfulfilled 
Goals 77 (1981), quoting United States Senate, Subcommittee on Constitu­
tional Rights o f the Committee on the Judiciary, Extension o f the Voting 
Rights Act o f 1965: Hearings on S.407, S.903, S.1509, and S.1443, 94th Cong., 
1st Sess. (1975).



18

Hearings on the Voting Rights Act Amendments Before the 
Subcommittee on Civil and Constitutional Rights o f the Senate 
Judiciary Committee, 94th Cong., 1st Sess. 64 (1975) (testi­
mony of Hon. Andrew Young).

Some of the barriers to political participation that lan­
guage minorities have faced are identical to those used to 
impede African American voter participation and dilute Afri­
can American voting strength. They include imposition of the 
poll tax, erection of barriers to voter registration by hostile 
election officials, and the manipulation of election district 
boundaries to dilute political support for their preferred can­
didates and ensure control of elections by white voting blocs. 
H. Rep. No. 196, 94th Cong., 1st Sess. (1975), at 16-20; S. Rep. 
No. 295, 94th Cong., 1st Sess. (1975), at 26; see also H. Rep. 
No. 94-196 at 22 (noting federal court finding that state of 
Texas has “a history pockmarked by a pattern of racial dis­
crimination that has stunted the electoral and economic par­
ticipation of the black and brown communities in the life of 
the state”). More recently, the United States Court of Appeals 
for the Fifth Circuit, in League o f United Latin American Citi­
zens v. Midland Independent Sch. Dist., 812 F.2d 1494 (5th 
Cir.), vacated on other grounds en banc, 829 F.2d 546 (5th Cir. 
1987), recognized that African American and Hispanic Texans 
“share[d] common experiences in past discriminatory prac­
tices.” Id. at 1500.

At the beginning of this decade, a federal court found 
that Los Angeles, California’s Hispanic community “has borne 
the effects of a history of discrimination in the areas of educa­
tion, housing, employment, and other socioeconomic areas.” 
Garza v. County o f Los Angeles, 756 F. Supp. 1298, 1339-40 
(C.D. Cal.), a ff’d, 918 F.2d 763 (9th Cir. 1990), cert, denied, 498 
U.S. 1028 (1991). For a decade “in the aftermath of the 
Depression, some 200,000 to 300,000 Mexican-Americans 
returned to their ‘country of origin a part of a program insti­
tuted by the Justice Department. . . .  [MJany legal resident 
aliens and American citizens of Mexican descent were 
[thereby] forced or coerced out of the county.’ ” Id. The court 
noted that Mexican-Americans in Los Angeles were blatantly



19

discriminated against in public accommodations and education 
throughout the first half of this century:

School officials required Mexican children to have sepa­
rate graduation ceremonies from Anglos attending the 
same school. . .. California maintained segregated schools 
for Hispanics in Los Angeles until 1947 when the Califor­
nia Supreme Court struck down such segregation. . . .  
However, . . .  schools desegregation litigation involving 
[Los Angeles County school] districts . . .  continued until 
1989. . . .  [I]t was common during the first decade of this 
century, for access to public swimming pools to be 
restricted for Mexican-Americans and blacks, usually to 
the day before the pool was to be cleaned.

Id. at 1340. It was not until 1970 that the California Supreme 
Court invalidated a California constitutional provision “condi­
tioning the right of persons otherwise qualified to vote upon 
the ability to read the English language.” Id. (citing Castro v. 
State o f California, 466 P.2d 244 (Cal. 1970)).

The Garza court also found that Esteban Torres a His­
panic candidate for the United States House of Representa­
tives, “encountered racial appeals by his opponents in the 
form of statements that Mr. Torres catered only to Hispanics 
and in the use of his photograph in opponents’ campaign lit­
erature.” Id. at 1331, 1341. In Torres’ race, like all but a hand­
ful of the elections analyzed by plaintiffs’ experts, non- 
Hispanic voters overwhelmingly rejected the Hispanic 
candidate. Id. at 1336-37.

Since the extension of the Act in 1975 to cover language 
minorities, the number of Hispanic elected officials has 
increased dramatically. In 1973, the six states with the largest 
Hispanic populations had 1,280 Hispanic elected officials. 
Twenty years later this number had jumped to 3,999.20

20. 1993 National Roster of Hispanic Elected Officials at vii (1993) 
(Table 18: Hispanic Elected Officials by Selected States, 1984-1993). Pre- 
1980 data is available only for the following six states: Arizona, California, 
Florida, New Mexico, New York, and Texas. Nationwide data is available 
starting in 1984. In that year the total number of Hispanic elected officials 
was 3,128; in 1993 it was 4,420. This number excludes 750 local school coun-



20

Unquestionably, the creation of districts which afford Hispanic 
voters a realistic opportunity to elect candidates of their 
choice has contributed to these gains. Since the extension of 
the Act, the Hispanic population has also achieved substantial 
gains in its participation in the political process. The number 
of Hispanic registered voters nearly doubled from 1972 to 
1988, increasing from 2.495 million to 4.573 million.21 This 
increased registration manifested itself in higher Hispanic 
voter turnout, as well.22 Despite these gains, although Hispan- 
ics constitute nine percent of the total population of the 
United States, they account for only slightly more than one 
percent of the publicly-elected officials in the nation.23 The 
work started by the passage of the Act is not yet complete. 
The result herein must not create an environment in which the 
progress which has been made will be reversed.

The experience of Asian Americans in many respects par­
allels the experience of Mexican Americans described by the 
Garza court. “[UJntil 1947, a California statute authorized 
local school districts to maintain separate schools for children 
of Asian descent.” S. Rep. No. 295, 94th Cong., 1st Sess. 
(1975) at 28 (citing Guey Heung Lee v. Johnson, 404 U.S. 1215

N O TES (Continued)

cil members in the Chicago area, positions which were not included in the 
1984 count.

21. The Southwest Voter Registration Education Project, Legacy: 1974- 
1990, at 2. During this period the number of Hispanic registered voters 
increased by 83 percent. This number’s true significance becomes apparent 
only after comparable rates are considered for other segments of the popu­
lation. From 1972 to 1988 the number of white registered voters increased 
by 17 percent and that of African Americans by only 44 percent. Id.

22. For five southwestern states (Arizona, California, Colorado, New 
Mexico and Texas), votes cast by Hispanics increased 60.9 percent, from 
1.016 million in 1976 to 1.634 million in 1988. Legacy, supra note 21, at 2. 
Comparison data is available for the period 1984 to 1988. During this time 
Hispanic turnout increased 20 percent; for the nation as a whole, it increased 
0.3 percent. Id.

23. 5,170 Hispanics (including the Chicago school officials) held 
publicly-elected offices in 1993, as compared to 504,404 publicly-elected 
offices nationwide (1.0 percent). 1993 National Roster of Hispanic Elected 
Officials at viii.



21

(1971)). Hostility toward Asian immigrants led to strict regu­
lation of entry to the United States and bans on naturalization. 
Persons of Japanese ancestry were once completely denied the 
opportunity to become naturalized citizens. Takao Ozawa v. 
United States, 260 U.S. 173 (1922). “Filipinos, who were sub­
jects of the United States . . .  [were nevertheless] ineligible for 
citizenship unless they served three years in the U.S. Navy. . . .  
[and] Chinese immigrants were not allowed to gain citizenship 
until 1943. ”24 Japanese Americans were removed from their 
homes and confined to internment camps during World War 
II. See Hirabayashi v. United States, 320 U.S. 81 (1943); Kore- 
matsu v. United States, 323 U.S. 214 (1944).25 Regrettably, as 
Congress noted in the legislative history accompanying the 
1975 amendments to the Act, “[discrimination against Asian 
Americans is a well-known and sordid part of our history.” S. 
Rep. No. 94-295 at 28 n.21.

Limited English proficiency has remained a serious bar­
rier to effective political participation for many Asian- 
Americans in the United States. See The Voting Rights Act 
Language Assistance Amendments o f  1992, S. Rep. No. 315, at 
5-6, 102d Cong., 2d Sess. (1992). Although Asian-Americans 
comprise almost 10% of California’s population, only one 
Asian American, elected in 1992, is serving in the California 
state legislature. And in New York City, which has an Asian- 
American population of over 512,000, no Asian-American has 
ever been elected to the New York City Council or the New 
York state legislature. See U.S. Civil Rights Comm’n, Civil 
Rights Issues Facing Asian Americans in the 1990s 157 (1992).

The most recent amendments to the Act were passed with 
broad bipartisan support in August 1992, affecting over 
200,000 Asian Americans with limited English proficiency 
across the nation. The Voting Rights Language Assistance Act 
of 1992 expanded the minority language requirements of Sec­
tion 203 of the Act, 42 U.S.C. §1973aa-la, to require multilin­

24. Karen McGill Arrington, The Struggle to Gain the Right to Vote: 
1787-1965, in Voting Rights in America: Continuing the Quest for Full Par­
ticipation (Karen McGill Arrington and William L. Taylor, eds., 1992) at 34.

25. See also Eugene Rostow, The Japanese-American Cases — A  Disas­
ter, 54 Yale L.J. 489 (1945).



22

gual voting materials and assistance in jurisdictions with at 
least 10,000 voting age citizens of a single language minority 
group. Voting Rights Act Amendments of 1992, § 2, Pub. L. 
No. 102-344,106 Stat. 921 (codified as amended at 42 U.S.C. § 
1973aa-la (1994)). These amendments enable the Asian 
American community to participate more effectively in the 
political process.

The 1982 amendments to the Act, promulgated shortly 
after (and in response to) this Court’s decision in City o f 
Mobile v. Bolden, 446 U.S. 55 (1980), reflect Congress’ contin­
ued determination to refine the Act so as to expand and 
amplify the right to vote and, thereby, prevent vote dilution. 
In 1982, Congress rejected an intent-based standard in favor 
of a test that focused on the “effect” of a challenged practice. 
Voting Rights Act Amendments of 1982, S. Rep. No. 417, 97th 
Cong., 2d Sess., reprinted in, 1982 U.S.C.C.A.N. 177, 191. 
Thus, these amendments fostered access to the political pro­
cess by, inter alia, prohibiting voting practices that “result [] in 
a denial or abridgment of the r ight . . .  to vote.” Voting Rights 
Act Amendments of 1982, § 3, Pub. L. No. 97-205, 96 Stat. 
131, 134 (codified as amended at 42 U.S.C. § 1973(a)). These 
amendments were enacted to redress the more subtle forms of 
discrimination that had emerged during the seventeen year 
period since the Act was first passed.

The Senate Report accompanying the 1982 amendments 
reveals that, no less than in 1965, expanding the franchise 
remains inextricably intertwined with Congress’ intent to 
ensure electoral equality in an inclusive democracy:

The Committee bill will extend the essential protection of 
the historic Voting Rights Act. It will insure that the hard- 
won progress of the past is preserved and that the effort 
to achieve full participation for all Americans in our 
democracy will continue in the future.

Seventeen years ago, Americans of all races and creeds 
joined to persuade the Nation to confront its conscience 
and fulfill the guarantee of the Constitution.. . .
As a result of the Voting Rights Act of 1965, hundreds of



23

thousands of Americans can now vote and, equally impor­
tant, have their vote count as fully as do the votes of their 
fellow citizens.

See S. Rep. No. 417, 97th Cong., 2d Sess. (1982), at 214.
On June 29, 1982, President Reagan signed the Voting 

Rights Act Amendments of 1982 into law, announcing: “As 
I’ve said before, the right to vote is the crown jewel of Ameri­
can liberties, and we will not see its luster diminished.”26

In the almost thirty years since the enactment of the Act, 
the Court has generally endorsed its application and exten­
sion. In 1969, the Court held that minority citizens could assert 
a claim for “vote dilution” under the Act. Allen v. State Board 
o f Elections, 393 U.S. 544, 569 (1969) (at-large or multimem­
ber elections could nullify minority voters’ “ability to elect the 
candidate of their choice just as would prohibiting some of 
them from voting.”).27 It therefore gave a broad reading to the 
preclearance provisions of Section 5 of the Act.28

In 1986, the Court upheld the constitutionality of the 1982 
amendments to the Act and eased the evidentiary require­
ments for asserting a claim of minority vote dilution by elimi­
nating the requirement of proof of discriminatory' intent. 
Thornburg v. Gingles, 478 U.S. 30 (1986).

In subsequent decisions, the Court approved expanding 
the application of Section 5’s preclearance requirement and 
invigorated the remedy available to enforce Section 5. The 
Court held that Section 5 covered municipal annexation deci­

26. White House Press Release (June 29,1982).
27. C f Fortson v. Dorsey, 379 U.S. 433, 439 (1965) (multimember dis­

tricting plan that “designedly or otherwise, . . .  operatefd] to minimize or 
cancel out the voting strength of racial or political elements of the voting 
population” would violate the Equal Protection Clause); Mobile, 446 U.S. at 
126 (“The Court has long understood that the right to vote encompasses 
protection against vote dilution. ‘[T]he right to have one’s vote counted’ is 
of the same importance as ‘the right to put a ballot in a box.’ ”) (Marshall, 
J. dissenting).

28. See also NAACP  v. Hampton County Election Comm’n, 470 U.S. 
166, 175-76 (1985); Georgia v. United States, 411 U.S. 526 (1973) (holding 
that Section 5 must be liberally construed to effectuate its remedial pur­
pose).



24

sions motivated by an improper purpose. Pleasant Grove v. 
United States, 479 U.S. 462 (1987). It then held that a district 
court has the authority to enjoin elections if the challenged 
voting statutes have not been precleared under Section 5. 
Clark v. Roemer, 500 U.S. 646 (1991).

The Court recently extended the reach of Section 2 to 
elected state judiciaries, stating that the Act “should be inter­
preted in a manner that provides ‘the broadest possible scope’ 
in combatting racial discrimination.” Chisom v. Roemer, 501 
U.S. 380, 403 (1991) (quoting Allen, 393 U.S. at 567); see also 
Houston Lawyers’ Ass’n v. Attorney General, 501 U.S. 419 
(1991).

Finally, last term in Johnson v. DeGrandy, 114 S. Ct. 2647
(1994), the Court reaffirmed the Gingles framework for ana­
lyzing Section 2 claims and noted that “society’s racial and 
ethnic cleavages sometimes necessitate majority-minority dis­
tricts to ensure equal political and electoral opportunity.” Id. 
at 2661.

Amendments to the Act have resulted in a dramatic 
increase in the numbers of African American and Hispanic 
officials across the country. These minority groups have also 
greatly increased their participation in the political process. 
The Act, as amended, has contributed greatly to making the 
constitutional guarantees of the right to vote meaningful for 
the nation’s racial, ethnic, and language minority citizens. The 
decision below jeopardizes the benefits to minority citizens, 
and indeed to the entire body politic, that have resulted from 
the vigorous enforcement of the Act. Amici therefore urge the 
Court to reverse the decision below.

IH. THE HISTORY OF VOTING RIGHTS LITIGATION
IN THE SUPREME COURT SHOWS THE COURT’S
COMMITMENT TO EXPANDING THE RIGHT TO
VOTE

The history of Supreme Court case law of voting rights 
can be divided into three phases. In the first phase, from early 
in the twentieth century until 1960, the Court invalidated dis­
criminatory measures designed to prevent minorities from vot­



25

ing. During the second phase, which began in 1960 and lasted 
until 1966, the Court promoted the idea of one-person, one- 
vote. This phase coincided with the Court’s continued efforts 
to remove obstacles intended to prevent minorities from vot­
ing. In the third phase, which began in 1966 (as discussed in 
Section II), the Court upheld the constitutionality of the Act, 
and expanded the application of the Act to promote the effi­
cacy and fairness of the political process.

As early as 1915, the Court invalidated an Oklahoma 
s ta tu te  th a t included a g randfa ther clause excusing 
whites from  taking the state’s literacy test. Guinn  v. 
United States, 238 U.S. 347 (1915). A lthough the statute 
did not m ention race, it included an exception for per­
sons able to vote on January 1, 1866 — before the adop­
tion of the Fourteenth and Fifteenth Amendments. The 
Court nullified the statute even though it imposed the lit­
eracy test in a superficially neutral manner. Id. at 364-65.

The white primary represented another discrimina­
tory m easure employed by the white majority in the 
South to  exclude minorities from the political process. 
The Court considered numerous challenges to the white 
prim ary in Texas before finally declaring the practice 
unconstitu tional in Smith  v. Allwright, 321 U.S. 649 
(1944).

In Smith, the Court held that Texas statutes excluding 
African-Americans from voting in a Democratic primary to 
select nominees for a general election violated the Fifteenth 
Amendment. The Court explained, “it may now be taken as a 
postulate that the right to vote in such a primary for the nomi­
nation of candidates without discrimination by the State, like 
the right to vote in a general election, is a right secured by the 
Constitution. By the terms of the Fifteenth Amendment that 
right may not be abridged by any State on account of race.” 
Id. at 661-62 (citations omitted).

Texas argued that participation in the primaries was 
determined by private organizations rather than the State, and 
that the Constitution did not reach the conduct of those orga­
nizations. The Smith decision demonstrates the Court’s com­



26

mitment to preserving the integrity of the democratic process 
by assuring equal electoral opportunity for all:

The United States is a constitutional democracy. Its 
organic law grants to all citizens a right to participate in 
the choice of elected officials without restriction by any 
State because of race. This grant to the people of the 
opportunity for choice is not to be nullified by a State 
through casting its electoral process in a form which per­
mits a private organization to practice racial discrimina­
tion in the election. Constitutional rights would be of 
little value if they could be thus indirectly denied.

Id. at 664.
Fort Bend County in Texas was undeterred by this admo­

nition. In that county, an association that dominated the 
Democratic Party employed a white “pre-primary.” The Court 
invalidated this practice in Terry v. Adams, 345 U.S. 461 
(1953), explaining that “the effect of the whole procedure . .. 
is to do precisely that which the Fifteenth Amendment forbids 
— strip Negroes of every vestige of influence in selecting the 
officials who control the local county matters that intimately 
touch the daily lives of citizens.” Id. at 469-70.

In Gomillion v. Lightfoot, 364 U.S. 339 (1960), the Court 
held that an Act of the Alabama Legislature changing the 
boundaries of the City of Tuskegee was unconstitutional 
because the Act eliminated nearly all of its African American 
voters from the City without eliminating any white voters. 
Shortly after Gomillion, the Court confronted the question of 
whether to review political measures that did not exclude 
minorities from the political process but instead diluted the 
value of their votes.

The seminal case, Baker v. Carr, 369 U.S. 186 (1962), held 
that the question of whether reapportionment in Tennessee — 
which legislators refused to do in a manner corresponding to 
actual population concentrations — presented a justiciable 
case. Id. at 209.

Georgia’s county unit system as a basis for counting votes 
was the subject of a constitutional challenge in Gray v. Sand­
ers, 372 U.S. 368. Under the county unit system, the vote of



27

each citizen in Georgia counted for less as the population of 
the county increased. “Georgia gives every qualified voter one 
vote in a statewide election; but in counting those votes she 
employs the county unit system which in end result weights 
the rural vote more heavily than the urban vote and weights 
some small rural counties heavier than other larger rural coun­
ties.” Id. at 379.

Because the county unit system diluted the vote of some 
state residents, the Court upheld the district court decision 
enjoining the use of the county unit system. The Court 
explained:

The Fifteenth Amendment prohibits a State from denying 
or abridging a Negro’s right to vote. The Nineteenth 
Amendment does the same for women. If a State in a 
statewide election weighted the male vote more heavily 
than the female vote or the white vote more heavily than 
the Negro; none could successfully contend that discrimi­
nation was allowable. . . .  Once the geographical unit for 
which a representative is to be chosen is designated, all 
who participate in the election are to have an equal vote 
— whatever their race, whatever their sex, whatever their 
occupation, whatever their income, and wherever their 
home may be in that geographical unit. This is required 
by the Equal Protection Clause of the Fourteenth 
Amendment. . . .  The conception of political equality 
from the Declaration of Independence to Lincoln’s Get­
tysburg Address, to the Fifteenth, Seventeenth, and Nine­
teenth Amendments can mean only one thing — one per­
son, one vote.

Id. at 379-81 (citations omitted).
Subsequently, another Georgia electoral practice was the 

subject of Wesberry v. Sanders, 376 U.S. 1, in which the Court 
held that the State’s failure to align its congressional districts 
in a way that reflected the population violated the Constitu­
tion. Under the 1931 Georgia Apportionment Statute, one 
Congressman represented “two times as many Fifth District 
voters as are represented by each of the Congressmen from 
the other Georgia congressional districts.” Id. at 7.



28

Wesberry may be viewed as a companion case to Reynolds 
v. Sims, 377 U.S. 533, in which the Court articulated the one- 
person, one-vote standard that is the foundation of voting 
rights jurisprudence. In Reynolds, the Court held that the 
Equal Protection Clause requires substantially equal legisla­
tive representation for all citizens in a state regardless of their 
residence. Discussing the right to vote, the Court stated:

Undeniably the Constitution of the United States protects 
the right of all qualified citizens to vote, in state as well as 
in federal elections. A consistent line of decisions by this 
Court in cases involving attempts to deny or restrict the 
right of suffrage has made this indelibly clear.. . .  [H]is- 
tory has seen a continuing expansion of the scope of the 
right of suffrage in this country. The right to vote freely 
for the candidate of one’s choice is of the essence of a 
democratic society, and any restrictions on that right 
strike at the heart of representative government. And the 
right of suffrage can be denied by a debasement or dilu­
tion of the weight of a citizen’s vote just as effectively as 
wholly prohibiting the free exercise of the franchise.

Id. 554-55 (citations omitted).
At the same time this Court established the one-person, 

one-vote principle, it continued to review the political process 
to remove barriers impeding participation in the process. In 
Harper v. Virginia Board o f Elections, 383 U.S. 663, the Court 
held that a poll tax is unconstitutional because it conditions 
the right to vote on the payment of a fee and therefore vio­
lates the Equal Protection Clause of the Fourteenth Amend­
ment. The Court concluded that “wealth or fee paying has, in 
our view, no relation to voting qualifications; the right to vote 
is too precious, too fundamental to be so burdened or condi­
tioned.” Id. at 670.

The Supreme Court upheld Congress’ decision to enfran­
chise 18-year old citizens in national elections. Oregon v. 
Mitchell, 400 U.S. 112 (1970). In the same case, the Court



29

upheld Congress’s prohibition of using literacy tests to dis­
criminate against voters on account of their race in both state 
and federal elections.29

These cases represent a vision of inclusiveness and an 
expansion of the right to the franchise to young people, 
women, language minorities and other people of color, that 
has been nurtured and made explicit by this Court. The broad 
and expansive view of Shaw v. Reno urged by Appellees 
herein will have the effect of retrenching and retracting rights 
which are firmly established in the case law of this Court. For 
these reasons, the decision below should be reversed.

CONCLUSION
This Court has been instrumental in giving life to a vision 

of an America that is diverse and inclusive. In a representative 
democracy, legislative bodies must be elected with input from 
all segments of the citizenry to be — in fact and perception — 
genuinely representative. The decisions of this Court and the 
Laws enacted by Congress (such as the Voting Rights Act), 
which implement the constitutional guarantees of the right to 
equal political participation, have consistently reinforced this 
principle.

The Voting Rights Act of 1965, as amended, ensures that 
racial and language minority voters are afforded the same 
opportunity as white citizens to participate in the political pro­
cess and elect candidates of their choice. The terrible legacy of 
govemmentally-enforced exclusion of these groups from full 
political participation has necessitated reliance on measures, 
including majority-minority electoral districts, which mitigate 
the deleterious, continuing effects of such exclusion and coun­
teract the persistent phenomenon of racially polarized voting.

As a result of such measures, racial and language minori­
ties in many parts of the country, including Georgia, now

29. Discussing the right to vote, Justice Douglas stated: “the right to 
vote is a civil right deeply embedded in the Constitution.. . .  Voting con­
cerns ‘political’ matters; but the right is not ‘political’ in the constitutional 
sense. Interference with it has given rise to a long and consistent line of 
decisions by the court; and the claim has always been upheld as justiciable.” 
Mitchell, 400 U.S. at 138-39 (citation omitted).



30

enjoy unprecedented opportunities to participate fully in the 
electoral process and have an equal opportunity to elect can­
didates of their choice to office. Thus, elected bodies, includ­
ing the United States Congress, have begun to reflect the 
diversity of backgrounds, perspectives, interests and values of 
the nation as a whole, rather than a select subset of the popu­
lation. This promotes the legitimacy of our political process 
and ensures that the interests of all citizens are considered and 
protected.

The modest gains which have been made in the American 
political landscape by minorities and women are fragile and 
should not be dismantled. At this critical point in American 
history, thirty years after initial passage of the Voting Rights 
Act and seventy-five years after the enfranchisement of 
women, Amici urge this Court to continue its legacy of vigor­
ously protecting the voting rights of all citizens and fully 
enforcing the constitutional and statutory provisions that have 
outlawed discriminatory barriers to full political participation 
by racial, ethnic and language minority citizens and women in 
the political process. The decision below should be reversed.

Respectfully submitted,

Charisse R. Lillie* 
Rodger D. Citron 
E. Thom. Rumberger, Jr. 
Barry E. Gosin 
Michael D. Mabry

Counsel for Amici Curiae 
*Counsel o f Record

Anthony Chavez 
Mexican American Legal

Of Counsel: Kim Gandy
National Organization for Women

Defense and Educational Fund Deborah Ellis
National Organization for Women

Margaret Fung 
Karen Narasaki 
National Asian Pacific

Legal Defense and Education Fund

American Legal Consortium
Rodney G. Gregory 
National Urban League

Wade Henderson 
Dennis Courtland Hayes 
National Association for the

Elliot Mincberg
People For The American Way

Advancement of Colored People Donna R. Lenhoff 
Women’s Legal Defense Fund