Covington v. Edwards Brief and Appendix of Appellees

    No. 95-1425
Auu u 7

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)

-----------------♦ -----------------
BRIEF OF APPELLANTS

-----------------♦ -----------------

E la in e  R. J o n es 
Director-Counsel 
N o rm a n  J . C h a ch kin  
J a cq u elin e  B errien  
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street
New York, New York 10013
(212) 219-1900
G era ld  R. W eber  
American Civil Liberties 

Union of Georgia 
142 Mitchell Street, S.W. 
Suite 301
Atlanta, Georgia 30303 
(404) 523-6201

L a u gh lin  M cD onald  
Counsel of Record 
N eil  B ra dley  
M a h a  Z aki 
M ary  W ycko ff 
American Civil Liberties 

Union Foundation, Inc. 
44 Forsyth Street 
Suite 202
Atlanta, Georgia 30303 
(404) 523-2721

Attorneys for Appellants

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 
OR CALL COLLECT (402) 342-2831



1

QUESTIONS PRESENTED

1. Whether the district court, in drawing a remedial 
congressional redistricting plan, erred in disregarding the 
state's legislative policy choices and making changes that 
were not minimally necessary to cure the constitutional 
defects in the existing plan?

2. Whether the court ordered plan, which frag­
mented the black population in two majority black dis­
tricts and dispersed it throughout the state, dilutes 
minority voting strength in violation of Section 2 of the 
Voting Rights Act?

3. Whether the court ordered plan, which reduced 
the number of majority-minority districts from three to 
one, is retrogressive under Section 5 of the Voting Rights 
Act?

4. Whether the court ordered plan, which contains 
unnecessary population deviations, complies with the 
one person, one vote standard of Article I, Section 2 of the 
Constitution?

5. Whether the court erred in peremptorily barring 
private intervention to defend the constitutionality of the 
Second Congressional District although state officials did 
not seriously contest plaintiffs' claims of invalidity nor 
did they or the United States appeal the court's finding 
that the Second District was unconstitutional?



ii

PARTIES TO THE PROCEEDING

The appellants are Lucious Abrams, Jr., Rev. G. L. 
Avery, William Gary Chambers, Sr., and Karen Watson. 
The appellees are Davida Johnson, Pam Burke, Henry 
Zittrouer, George L. DeLoach, and George Seaton. The 
defendants below were Zell Miller, Governor of Georgia, 
Pierre Howard, Lieutenant Governor of Georgia, Thomas 
Murphy, Speaker of the House of Representatives of 
Georgia, and Max Cleland, Secretary of State of Georgia. 
Max Cleland has been succeeded as Secretary of State by 
Lewis Massey. The United States of America was a defen­
dant intervenor.



Ill

TABLE OF CONTENTS
Pagc

Questions Presented     i

Parties to the Proceeding ............... ...............................  ii

Table of Authorities ......................................... ...............  v

Opinions Below . ................   1

Jurisdiction....................................................     1

Constitutional and Statutory Provisions Involved.. . . . .  1

Statement of the Case ................................. .................... 2

A. The Parties Below ........................- ........................ 2

B. Miller v. Johnson and Its Aftermath......... 2

C. The Remedy Phase ......................... 5

1. Appellants' Proposed Plans ..............   7

2. Other Proposed Plans. . . . . . . . . . . . . . . . . . . .  14

D. History of Discrimination.. . . . . . . . . . . . . . . . . . .  14

E. Racial Bloc Voting ......................................... • • • • 16

F. The Decision of the District Court ................... 19

Summary of Argument ............................................  24

Argument...............................................    27

I. The District Court Abused Its Equitable 
Powers..............................................................   27

A. Ignoring District Cores . . . . . . . . . . . . . . . . .  31

B. Maximum Disruption................. ........ . • • • 34

C. Destroying Majority Black Districts . . . . .  34

D. Unnecessary Speculation.......................   37



IV

TABLE OF CONTENTS -  Continued
Page

II. The Court's Plan Violates Section 2 ............... 40

A. No Deference Is Due the Court's Ruling .. 44

III. The Plan Is Retrogressive in Violation of Sec­
tion 5 .............................................. ............. . 46

IV. The Plan Does not Comply with One Person,
One Vote ............................................................. .. 48

Conclusion ............................................... 50



V

TABLE OF AUTHORITIES
Page

C a ses :

Abrams v. Johnson, 116 S.Ct. 899 (1996).......................  24

Abrams v. Johnson, No. 94-797...................  15, 17, 19, 21

Abrams v. Johnson, A-982 ................................................. 24

Beer v. United States, 425 U.S. 130 (1976).......... .46, 48

Burton v. Sheheen, 793 F.Supp. 1329 (D.S.C. 1992) . . . .  49

Bush v. Vera, 64 U.S.L.W. 4452 (1996) .................... 38, 42

Chapman v. Meier, 420 U.S. 1 (1975).............................  28

City of Lockhart v. United States, 460 U.S. 125
(1983)................................. .......... ..................... .46, 47

Clark v. Roemer, 500 U.S. 646 (1991)...........................  48

Connor v. Finch, 431 U.S. 407 (1977)  .............28

DeWitt v. Wilson, 856 F.Supp. 1409 (E.D.Cal. 1994) . . . .  38

DeWitt v. Wilson, 115 S.Ct. 2637 (1995)......................... 38

Edge v. Sumter County School District, 775 F.2d
1509 (11th Cir. 1985)........................................................ 43

Growe v. Emison, 113 S.Ct. 1075 (1993) .......................  28

Hastert v. State Board of Elections, 777 F.Supp. 634
(N.D.I11. 1991) ................................ ................................49

Holder v. Hall, 114 S.Ct. 2581 (1994)..................... . 47

Inwood Laboratories v. Ives Laboratories, 456 U.S.
844 (1982).........................................................................-45

Johnson v. De Grandy, 114 S.Ct. 2647 (1994)...............  44

Johnson v. Miller, Civ. No. CV194-008 (S.D.Ga.) . . . . . .  3



VI

TABLE OF AUTHORITIES -  Continued
Page

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

Jordan v. Winter, 541 F.Supp. 1135 (N.D.Miss.
1982).................................................. .................................  43

Karcher v. Daggett, 462 U.S. 725 (1983) . . . . . .  47, 48, 49

McDaniel v. Sanchez, 452 U.S. 130 (1981)............. . 46

Miller v. Johnson, No. 94-631 .......................................... 35

Miller v. Johnson, 115 S.Ct. 2475 (1995) . . . . . . . . .  passim

Milliken v. Bradley, 418 U.S. 717 (1974).........   .27

Missouri v. Jenkins, 115 S.Ct. 2038 (1995)...............     27

Roman v. Sincock, 377 U.S. 695 (1964)............28, 33, 34

Shaw v. Reno, 113 S.Ct. 2816 (1993).............................   31

SRAC v. Theodore, No. 92-155 (S.Ct.)...............   43

SRAC v. Theodore, 113 S.Ct. 2954 (1993)......... .43, 44

Thornburg v. Gingles, 478 U.S. 30 (1986) 41, 42, 43, 44

United States v. Johnson, No. 95-1460..................... 14, 49

Upham v. Seamon, 456 U.S. 37 (1982)
............... .............................................  28, 29, 30, 37, 39, 48

Voinovich v. Quilter, 113 S.Ct. 1149 (1993)..................  42

Whitcomb v. Chavis, 403 U.S. 124 (1971)........27, 33, 39

White v. Weiser, 412 U.S. 783 (1973)............... 28, 29, 33

Winter v. Brooks, 461 U.S. 921 (1983)...........................  43

Wise v. Lipscomb, 437 U.S. 535 (1978)............... ..........  48

Zenith Radio Corp. v. Hazeltine Research, Inc.,
395 U.S. 100 (1969) ......................................................... 45



vii

TABLE OF AUTHORITIES -  Continued
Page

C o n stitu tio n a l  P ro v isio n s :

Article I, Section 2, Constitution of the United
States............................................................................... 1, 48

Article I, Section 4, cl. 1, Constitution of the
United States...............................  28

S tatutory P ro v isio n s :

28 U.S.C. §1253.............................    1

42 U.S.C. §1973, Section 2 of the Voting Rights Act
............................ .................. . 1, 40, 42, 43, 45

42 U.S.C. §1973(b), Section 2(b) of the Voting
Rights Act .......................     40

42 U.S.C. §1973c, Section 5 of the Voting Rights
A ct,.............................................. ........................ 1, 46, 48

O th er  A u th o r ities :

Ga. Laws 1995, Ex. Sess., p. 1 .......................................... 2

S.Rep. No. 295, 94th Cong. 18-9 (1975)........... ...........  46

S.Rep. No. 417, 97th Cong., 2d Sess. 28-9 (1982)..40, 41

Mike Christensen, "Reactions to the plan are all 
over the map," Atlanta Journal Constitution, 
December 14, 1995 .......................................................  29

Jeff Dickerson, "At Christmas, black party loyalty 
doesn't pay off," The Atlanta Journal, Decem­
ber 20, 1995..................... .......... ...................................  29

Kevin Merida, "ACLU to Appeal Decision Remap­
ping Ga. Districts," Washington Post, December 
15, 1995 . ............................................................................  29



V l l l

TABLE OF AUTHORITIES -  Continued
Page

Jeff Dickerson, "At Christmas, black party loyalty 
doesn't pay off," The Atlanta Journal, Decem­
ber 20, 1995 ...................................... . ............................ .29

Kevin Merida, "ACLU to Appeal Decision Remap­
ping Ga. Districts," Washington Post, December 
15, 1995 .............. .......................................... ............... 29



1

OPINIONS BELOW

The December 13, 1995 opinion of the three-judge 
court for the Southern District of Georgia implementing a 
court ordered redistricting plan for Georgia's congres­
sional districts is unreported and appears at J.S.App. 1. 
The August 22, 1995 order of the district court denying 
intervention to defend the constitutionality of Georgia's 
Second Congressional District is unreported and appears 
at J.S.App. 42. The January 8, 1996 order of the district 
court denying appellants' motion for a hearing and 
reconsideration is unreported and appears at J.S.App. 44.

-----------------♦ -----------------

JURISDICTION

The opinion and order of the three-judge court for 
the Southern District of Georgia was entered on Decem­
ber 13, 1995. Appellants filed their notice of appeal on 
January 11, 1996. J.S.App. 46. Probable jurisdiction was 
noted on May 20, 1996. 64 U.S.L.W. 3773. The jurisdiction 
of this Court is invoked under 28 U.S.C. §1253.

---------------- ♦ -----------------

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

The constitutional and statutory provisions involved 
in the case are Article I, Section 2 of the Constitution of 
the United States, and Sections 2 and 5 of the Voting 
Rights Act, 42 U.S.C. §§1973 and 1973c, the pertinent texts 
of which are set out at J.S.App. 49-52.

---------------- ♦ -----------------



2

STATEMENT OF THE CASE

A. The Parties Below. Appellants, who were defen­
dant intervenors below ("Abrams interveners"), are a 
group of black and white registered voters and residents 
of Georgia's Eleventh Congressional District. Appellees, 
plaintiffs below, are white residents of Georgia who chal­
lenged the state's 1990 congressional redistricting on con­
stitutional grounds. The defendants below were Zell 
Miller, Governor of Georgia, Pierre Howard, Lieutenant 
Governor of Georgia, Thomas Murphy, Speaker of the 
House of Representatives of Georgia, and Max Cleland, 
Secretary of State of Georgia. Max Cleland has been suc­
ceeded as Secretary of State by Lewis Massey. The United 
States of America was also a defendant intervenor.

B. Miller v. Johnson and Its Aftermath. In Miller v. 
Johnson, 115 S.Ct. 2475 (1995), this Court held that Geor­
gia's Eleventh Congressional District was unconstitu­
tional because the state, absent a compelling reason for 
doing so, had relied upon race as a predominant factor in 
redistricting in substantial disregard of customary and 
traditional districting practices. The redistricting plan 
contained three majority black districts out of eleven, the 
Second, the Fifth, and the Eleventh, but only the Eleventh 
was challenged in the district court. Johnson v. Miller, 864 
F.Supp. 1354 (S.D.Ga. 1994) (Johnson I), aff'd sub nom. 
Miller v. Johnson. Blacks are 27% of the population of the 
state of Georgia. J.S.App. 39.

After the decision in Miller v. Johnson the Governor 
called the general assembly into special session to redis­
trict the state's congressional districts. Ga. Laws 1995, Ex. 
Sess., p. 1. The three-judge court conducted a hearing on



3

remand on August 22, 1995. It ruled that "Georgia has 
until October 15th to enact a congressional reapportion­
ment plan and have it precleared before this Court will 
become vigorously active in handling the matter of rem­
edy." Johnson v. Miller, Civ. No. CV194-008 (S.D.Ga.) Tran­
script of Hearing, August 22, 1995, p. 110 ("T., Aug. 22, 
1995").

The court also allowed the plaintiffs to amend their 
complaint to add additional plaintiffs and to challenge 
the constitutionality of the state's majority black Second 
Congressional District. The court refused, however, to 
allow appellants to defend the constitutionality of the 
Second District and barred in advance any further inter­
vention by private parties. The court ruled that:

The Abrams interveners will not participate 
. . .  in the evidentiary proceedings on the matter 
of the constitutionality of the Second Congres­
sional District of Georgia. It is our view that 
there is no need for intervenors in this litigation.
The record is that the State of Georgia and its 
elected officials will defend the congressional 
districts that were enacted by the legislature to 
the full extent of the law. We have seen that and 
we expect that they will do that again and there­
fore we see no need to have intervenors.

J.S.App. 42-3.

The general assembly remained in special session for 
approximately a month. Defendant Murphy took the 
position that "you ought to have two majority minority 
seats in Georgia." Johnson v. Miller, Trial Transcript, Octo­
ber 30, 1995, p. 433 (Testimony of Linda Meggers) ("T., 
Oct. 30, 1995"). The house, in fact, adopted a plan at the



4

special session that included two majority black districts, 
the Fifth located in the metropolitan Atlanta area and 
which had a 51.3% black voting age population (BVAP), 
and the Eleventh (50.1% BVAP) located in the east central 
part of the state. Status Report, Aug. 29, 1995 (Plan 
MSLSS, August 25, 1995).

The senate passed a plan that contained only one 
majority black district, the Fifth (51.5% BVAP). Status 
Report of Defendants Miller, Howard, and Cleland. The 
house and senate were unable to resolve their differences 
in conference committee, and on September 13, 1995 the 
defendants notified the court that the general assembly 
had been unable to enact a congressional redistricting 
plan and had adjourned. J.S.App. 2.

The court held a trial on the issue of the constitu­
tionality of the Second Congressional district on October 
30, 1995.1 Immediately after the trial, the court conducted 
a hearing as to remedy instructing the parties "to assume, 
arguendo at least, that the Second District may be 
declared unconstitutional." T., Oct. 30, 1995, p. 5.

Prior to the October 30, 1995 trial, defendant Murphy 
stipulated that the Second District "fails the constitu­
tionality test as articulated by the Supreme Court." Joint 
Stipulations of Fact and Statement of Issues Pertaining to 
Plaintiffs' Challenge to Georgia's Second Congressional 
District, stip. 108. The remaining state defendants did not 
vigorously defend the constitutionality of the Second Dis­
trict.

1 Appellants did not participate in that trial.



5

The state did not argue that a majority black Second 
District was needed to eliminate the effects of past dis­
crimination in voting, nor to comply with Section 2 of the 
Voting Rights Act. Johnson v. Miller, Order of December 1, 
1995, slip. op. at 10, 12 ("Order, Dec. 1, 1995"). By their 
own admission, "the State Defendants presented no wit­
nesses and asked no questions of other witnesses at the 
liability hearing." Response of Defendants Miller, How­
ard and Cleland to 'Plaintiffs' Second Interim Petition for 
Fees and Expenses/ p. 5.

The state's defense was that the Second District dif­
fered from the Eleventh because the Second had always 
existed in the southwestern corner of the State, there was 
a greater community of interest in the Second District, 
and the Second District had a lower percentage of black 
voters. Order, Dec. 1, 1995, slip. op. at 10-1. The court 
rejected these defenses concluding that "race was the 
overriding and predominant motivating factor in design­
ing the Second Congressional District," and the state 
"fails to meet its burden under the strict scrutiny anal­
ysis." Id. at 12.

The United States did not contest liability. The dis­
trict court found that "[t]he Department of Justice con­
tended that, as a matter of law, the Second District was 
unconstitutional" in light of Miller v. Johnson. Order, Dec. 
1, 1995, slip op. at 3 n.l.

The three-judge court declared the Second District 
unconstitutional on December 1, 1995. J.S.App. 1-2. None 
of the state defendants appealed the decision.

C. The Remedy Phase. Prior to the October 30, 1995 
trial, the court entered two orders. The first instructed the



6

parties to submit "a plan that makes the least changes, in 
terms of line drawing, in Georgia's present congressional 
plan but at the same time brings the Eleventh and the 
Second Congressional Districts . . . into compliance with 
the United States Constitution." Order, October 17, 1995, 
slip op. at 2-3. The second order directed the parties to 
"further submit a plan based on the first plan that Geor­
gia submitted to the Department of Justice [following the 
1990 census] for preclearance." Order, October 20, 1995, 
slip op. at 1. Despite the submission of least-change alter­
natives by the parties and amici, the district court com­
pletely redrew the congressional map of Georgia.

State defendants Miller, Howard, and Cleland 
refused to submit or sponsor any plans, advising the 
court that:

the Defendants do not know what the Constitu­
tion now requires in terms of remedy. They do 
not have a view of what plan might satisfy the 
particular criteria set forth in the Court's orders.
For that reason, they are unable to submit what 
the Court directs.

Submission of Defendants Miller, Cleland and Howard in 
Connection with the Issue of Remedy, p. 2. Defendant 
Howard, however, provided the court a copy of the redis­
tricting plan that had passed the senate. Id.

Defendant Murphy submitted a plan which he said 
"represents only his own opinion and beliefs as an indi­
vidual public officer and not necessarily those of any 
other member of the House of Representatives or the 
House Democratic Caucus." Defendant Murphy's Rem­
edy Submission in Response to Orders of October 17 and 
20, 1995, p. 3. His plan created only one majority black



7

district, the Fifth (54% VAP). The Second District had a 
black VAP of 36.8%, and the Eleventh District a black 
VAP of 36.1%. Id.

Appellants, the United States, and amici incumbent 
members of Congress (including Representatives John 
Lewis and Newt Gingrich) submitted various remedial 
plans. They are discussed below.

1. Appellants' Proposed Plans. Appellants submit­
ted four plans prepared by their expert Selwyn Carter.2 
One of the plans was a least-change plan (referred to as 
ACLU1A), submitted at the direction of the district court, 
designed to cure the constitutional defects in the existing 
plan but at the same time make no more changes than 
were necessary to accomplish that purpose. J.App.* 
198-99.

In Miller v. Johnson this Court identified the manner 
in which the state had unconstitutionally subordinated its 
traditional redistricting principles to race in the construc­
tion of the Eleventh District, i.e., "by extending the Elev­
enth to include the black populations in Savannah;" by 
splitting "Effingham and Chatham Counties . . . to make 
way for the Savannah extension, which itself split the 
City of Savannah;" by "splitting eight counties and five 
municipalities along the way;" and, by using "narrow 
corridors" to link "the black neighborhoods in Augusta, 
Savannah and southern DeKalb County." 115 S.Ct. at 
2484. The district court, in its December 1, 1995 opinion,

2 Mr. Carter, a specialist in redistricting, is the director of 
voting rights programs for the Southern Regional Council, a bi- 
racial organization in Atlanta, Georgia. T., Oct. 30, 1995, p. 294.



8

identified features of the Second District which it found 
rendered it unconstitutional, i.e., "the sole reason for 
splitting precincts was racial and . . . the predominant 
reason for splitting . . . counties and cities was racial as 
well;" and, the district "makes use of narrow land bridges 
to connect parts of the district and involves a number of 
irregular appendages." Order, Dec. 1, 1995, slip op. at 6.

In preparing appellants' least-change plan, Mr. Car­
ter proceeded in light of this Court's findings with regard 
to the Eleventh District and in anticipation of the findings 
of the district court with regard to the Second District. 
His "overriding methodology . . . was to correct the 
constitutional defects in the Eleventh Congressional Dis­
trict and assume that the Second Congressional District 
was unconstitutional and correct . . . [the] assumed defect 
in that district and to maintain the remaining districts 
with as little change as possible." J.App. 161. He also 
applied the redistricting principles embodied in the 
state's prior plans, particularly the 1970 and 1980 plans. 
Those principles included constructing districts with a 
substantial number of counties, and which contained 
both rural and urban areas. J.App. 165.

Mr. Carter removed the extensions of the Eleventh 
District through Effingham and Chatham Counties 
because they were identified by the Court as being 
"examples of racial gerrymandering of the district." 
J.App. 161. He regularized the configuration of Richmond 
County "by bringing in a considerable number of white 
voters previously in the Tenth District and transferring 
them to the Eleventh District." J.App. 161. Richmond 
County, an urban county, remained split under the least- 
change plan but the split was not along racial lines. Id.



9

He reaggregated Baldwin, Twiggs, and Wilkes Coun­
ties, portions of which had been placed in the Eleventh 
District, and placed them in other districts. The reason for 
the reaggregation was to "restore the integrity of those 
rural political subdivisions and make the integrity of 
those subdivisions predominant. Clearly here . . .  an 
attempt was made to draw a plan in which race was not 
the predominant factor." J.App. 162.

He eliminated the narrow land corridor through 
Henry County and included the county in its entirety in 
the Eleventh District. J.App. 166. He also removed por­
tions of DeKalb County from the Fifth District and placed 
them in the Eleventh District so that the boundary 
between the Fifth and the Eleventh Districts would be the 
county line. J.App. 162-63, 170.

Under appellants' least-change plan, the Eleventh 
District has a black VAP of 52.8%. J.App. 198. It is com­
posed of 14 whole counties, and only the urban counties 
of Richmond and DeKalb are split. J.App. 163.

A number of changes were similarly made in the 
Second District. In Miller, this Court noted the criticism of 
the district court that "[t]he black population of Mer­
iwether County was gouged out of the Third District and 
attached to the Second District by the narrowest of land 
bridges." 115 S.Ct. at 2484. Accordingly, Mr. Carter reag­
gregated Meriwether County and placed the county in its 
entirety in the Seventh District. J.App. 174. Other coun­
ties which had been split by the Second District -  Low­
ndes, Colquitt, Dougherty, Lee, Crisp, Dooly, Houston, 
Bleckley, Twiggs, and Crawford -  were also reaggregated.



10

Lowndes, Colquitt, Lee, Crisp, Houston, Bleckley, and 
Twiggs were placed in the Eighth and Dougherty, Dooly, 
and Crawford were placed in the Second. Again, the 
reason for the reaggregation was to restore the integrity 
of the rural counties and make their preservation a pre­
dominant redistricting criterion. J.App. 168.

In order to comply with one person, one vote, Mr. 
Carter moved Talbot County from the Second District to 
the Third. J.App. 167, 170. The only counties split by the 
Second District are Bibb and Muscogee, both of which are 
urban. The county governments of both counties passed 
resolutions requesting that the two counties be split 
under any remedial plan to increase their representation 
in Congress, a non-racial factor which Mr. Carter took 
into account in drawing the Second District. J.App. 169.

In splitting Bibb County, Mr. Carter sought to elimi­
nate a narrow land bridge into the city of Macon by 
including a substantial number of white residents of the 
city in the Second District. J.App. 168. The existing Sec­
ond District also contains other urban areas, i.e., Col­
umbus and Valdosta. Because the state "had historically 
linked rural and urban areas together to form congres­
sional districts," he kept these areas in appellants' least 
change plan. J.App. 168, 170.

The changes in the remaining districts were those 
minimally required by the changes in the Second and 
Eleventh Districts. Because Effingham and Chatham 
Counties were placed in the First District, Montgomery, 
Tattnall, and Toombs Counties were taken out of the First



11

and placed in the Eighth District to comply with one 
person, one vote. Clinch County was moved from the 
Eighth to the First, also to comply with one person, one 
vote. J.App. 166-67. There are no split counties in the First 
District. Id.

Baldwin County was reaggregated and added to the 
Third District, together with Talbot County, to comply 
with one person, one vote. J.App. 170. Portions of Clay­
ton County that had been in the Third were, as noted 
above, placed in the Fifth District to comply with one 
person, one vote, and to avoid retrogression. J.App. 170. 
There are eleven intact counties in the Third, and the only 
split counties are the urban counties of Bibb, Muscogee, 
and Clayton. J.App. 170-71. Maintaining the integrity of 
counties was the predominant factor in the construction 
of the district, as it was in the construction of the plan as 
a whole. J.App. 171.

Changes in the Fourth District were minimal. They 
involved switching precincts between the Fourth and 
Tenth Districts and precinct changes in DeKalb County to 
comply with one person, one vote. J.App. 171.

In the Fifth District, portions of Clayton County were 
added to compensate for the portions of DeKalb County 
previously in the Fifth that were moved to the Eleventh 
to make the DeKalb/Fulton County line the boundary 
between the two districts. J.App. 172-73. The part of 
Clayton County that was added contained enough black 
population to avoid retrogression in the majority black 
Fifth District, but was whiter overall than the part of 
DeKalb County that was taken out. J.App. 170, 173. Por­
tions of northern Fulton County were moved to the



12

Fourth District to comply with one person, one vote, and 
also to avoid retrogression in the Fifth District. J.App.
173.

The changes in the Sixth District were also minor. 
They involved a handful of precinct changes in Gwinnett 
and Cobb Counties to comply with one person, one vote. 
J.App. 173.

The principal change in the Seventh was the addition 
of Meriwether County from the Second District, along 
with minor precinct changes involving Cobb County, 
again to comply with one person, one vote. J.App. 174.

In the Eighth District changes were made because of 
changes in other districts, to comply with one person, one 
vote, and to keep counties intact. J.App. 174-75. Mont­
gomery, Toombs, and Tattnall Counties, formerly in the 
First District, were added to the Eighth. Clinch County 
was excluded, as was the previous extension into Bibb 
County. J.App. 175.

There were no changes in the Ninth District. J.App.
175. In the Tenth District, Wilkes County was reaggre­
gated and added. A portion of Richmond County, which 
was heavily white, was moved to the Eleventh District, 
and there were a few precinct changes in Gwinnett 
County. All of these changes were made to comply with 
one person, one vote. J.App. 175-76.

None of the rural counties outside the metropolitan 
Atlanta area were split in the least-change plan. J.App.
176. A total of nine counties were split, all in urban areas 
of the state. The court ordered plan split six urban 
counties. J.S.App. 15. As the district court found, "[gjiven



13

the population density of those counties, it would be 
impossible to avoid splitting any counties." J.S.App. 15 
n.12.

Under appellants' least-change plan the Fifth District 
contained a black VAP of 54.3%, and the Second a black 
VAP of 45.5%. All the districts were contiguous, were 
based upon the state's traditional redistricting principles, 
were reasonably compact, and cured the constitutional 
defects identified by this Court.

The total deviation among districts in appellants' 
least-change plan was 0.93%, but the deviation could 
have been lowered with the splitting of additional coun­
ties. According to Mr. Carter, "if you draw a plan at a 
lower level of geography you can get more precise and 
bring the deviations down to almost zero if you want." 
J.App. 164.

Appellants also tendered three other plans. J.App. 
141-51. One of the plans, designated as Plan A, contained 
three majority black districts, had a total deviation among 
districts of 0.29%, but split more counties that ACLU1A.3 
J.App. 194-95. Plan C, which contained two majority 
black districts, split fewer counties than Plan A but as a 
result contained a greater total deviation, i.e., 0.99%. 
J.App. 197.

3 In preparing the joint appendix, appellants discovered 
that in Plan A a small area in the Ninth District was misallocated 
to the Tenth District. The misallocation can be easily corrected 
and the correction does not affect the total deviation among 
districts.



14

2. Other Proposed Plans. A plan containing two 
majority black districts, known as Amicus R, was submit­
ted by Congressmen John Lewis and Newt Gingrich. 
J.App. 204. It made minimal changes in the First, Third, 
Fourth, Fifth, Sixth, Seventh, Ninth, and Tenth Districts, 
and only those required to comply with one person, one 
vote, and cure the constitutional defects identified in the 
Second and Eleventh Districts. T., Oct. 30, 1995, pp. 
356-57. Counties were reaggregated (seven remained 
split) and appendages were removed. The Amicus R plan 
was also designed to be a minimal disruption plan in the 
sense that it did not create "any incumbent contest and it 
leaves an identifiable representative in each district." T., 
Oct. 30, 1995, p. 360. The plan was a "consensus" plan 
and had the support of ten of the eleven members of the 
state's congressional delegation. T., Oct. 30, 1995, p. 364.

The United States also submitted a plan, known as 
the Illustrative Plan, to show that a remedial plan could 
be drawn which created two compact majority black dis­
tricts and contained minimal population deviations. 
United States v. Johnson, No. 95-1460, J.S.App. 44a. The 
plan split only two counties outside the metropolitan 
Atlanta area, Bibb and Muscogee, and contained a total 
deviation of 0.19%, the lowest deviation of any of the 
plans submitted to the district court. The black VAP in 
the Second District was 42%, the black VAP in the Fifth 
District was 53.7%, and the black VAP in the Eleventh 
District was 51%. United States v. Johnson, J.S.App. 45a.

D. History of Discrimination. The record of the trial 
in Johnson I involving the Eleventh District was made part 
of the record of the trial involving the Second District. 
Order, Dec. 1, 1995, slip op. at 4 n.2. In Johnson I the



15

district court found that the history of discrimination in 
voting and other areas "against black people in the State 
of Georgia need not be presented for purposes of this 
case." Abrams v. Johnson, No. 94-797, J.S.App. 119; Johnson 
I, Trial Transcript, Volume V, p. 142 (Johnson I, T.Vol.). The 
court took judicial notice that:

Georgia's history on voting rights includes 
discrimination against black citizens. From the 
state's first Constitution -  which barred blacks 
from voting altogether -  through recent times, the 
state has employed various means of destroying 
or diluting black voting strength. For example, 
literacy tests (enacted as late as 1958) and prop­
erty requirements were early means of exclud­
ing large numbers of blacks from the voting 
process. Also, white primaries unconstitu­
tionally prevented blacks from voting in pri­
mary elections at the state and county level.

Even after black citizens were provided 
access to voting, the state used various means to 
minimize their voting power. For example, until 
1962 the county unit system was used to under­
mine the voting strength of counties with large 
black populations. Congressional districts have 
been drawn in the past to discriminate against 
black citizens by minimizing their voting poten­
tial. State plans discriminated by packing an 
excessive number of black citizens into a single 
district or splitting large and contiguous groups 
of black citizens between multiple districts.

Abrams v. Johnson, No. 94-797, J.S.App. 119-20 (emphasis 
added).4 See also Miller v. Johnson, 115 S.Ct. at 2500-02

4 This history and its continuing effects are set out in 
greater detail in the stipulations of the parties. See, e.g., Johnson



16

(noting the history of discrimination and denial of "equal 
voting rights" in Georgia) (Ginsburg, J., dissenting).

E. Racial Bloc Voting. There was substantial evi­
dence of racial bloc voting. The experts who testified 
were in agreement that voting in Georgia is racially 
polarized. Dr. Allan Lichtman, an expert for the United 
States, examined more than 300 elections spanning an 
approximately 20-year period. Johnson I, T.Vol.V,200. He 
used the standard statistical techniques of ecological 
regression and extreme case analysis, and examined four 
sets, or levels, of black/white contests: (1) county level 
contests throughout the state; (2) county level contests 
within the Eleventh and Second Districts; (3) six state­
wide elections partitioned within the boundaries of the 
Eleventh and Second Districts; and, (4) the 1992 Eleventh 
and Second District elections. Johnson I, Department of 
Justice Exhibits 24, 41 (Johnson I, DOJ Ex.); T.Vol.V,199.

As for level one, Dr. Lichtman's analysis showed 
"strong" patterns of racial bloc voting, with blacks and 
whites voting " overwhelmingly" for candidates of their 
own race. Johnson I, DOJ Ex. 24 at 7-8. Level two and 
three analysis also showed "strong" patterns of racial 
bloc voting. Id. at 8-9; T.Vol.V,202-03. In five of the six 
statewide contests in the Eleventh District, at least 89% of

I, Stips. 5 (whites registered in 1992 at 70.2% of voting age 
population; blacks at 59.8%), 76-103 (detailing the history of 
discrim ination in voting), 104-129 (describing segregation in 
educational institutions), 130-134 (noting other forms of racial 
d iscrim ination), 135-55 (stip ulating  to racial d isparities in 
in com e, ed u catio n , u nem p loym ent, and p ov erty  sta tu s). 
Abrams v. Johnson, No. 94-797, J.App. 9-33.



17

blacks voted for black candidates, and at least 74% of 
whites voted for white candidates. Johnson I, DOJ Ex. 24, 
at 9. The exception to the pattern was the 1992 Demo­
cratic primary for labor commissioner in which the black 
candidate got 45% of the white vote, and 96% of the black 
vote. In the ensuing primary runoff the black candidate 
got only 26% of the white vote, and 92% of the black vote. 
Id. at 14; J. App. 66-71.

The 1992 primary and runoff in the Eleventh District 
were also racially polarized. In the primary, which 
involved one white and four black candidates, the white 
candidate, DeLoach, was the first choice among whites 
with 45% of the white vote. Cynthia McKinney, who was 
the leading vote getter over all, was second among whites 
with 20% of the white vote. Johnson I, DOJ Ex. 24 at 17; 
Abrams v. Johnson, No. 94-797, J.App. 22. In the run-off, 
whites increased their support of DeLoach to 77%. 
McKinney's white vote support increased to just 23%. Id.

Dr. Lichtman found voting patterns to be different in 
statewide non-partisan judicial elections in which 
appointed blacks ran as incumbents. He included these 
contests in his report but treated them as having "mini­
mal relevance." Johnson I, T.Vol.V,228.

With the exception of judicial elections in which 
blacks were first appointed and ran as incumbents, no 
black has ever been elected to a statewide office in Geor­
gia. Johnson I, T.Vol.VI,77. No black, other than Andrew 
Young, has ever been elected to Congress from Georgia 
from a majority white district. Johnson I, Stip. 241.

Dr. Lichtman also testified that blacks have a lower 
socio-economic status than whites which was a barrier to



18

blacks' participation in the political process. Johnson I, 
T. Vol.V,206. In the 1988 and 1992 presidential elections, 
black turnout was 14-15% lower than white turnout. Id. at 
208. In the 1992 elections in the Eleventh District, blacks 
were 51.5% of all voters in the primary, but only 46-47% 
of voters in the runoff. Id. at 212-13; J. App. 77-8.

The state's expert, Dr. Joseph Katz, performed an 
independent homogeneous precinct analysis to estimate 
"average racial voting patterns." Johnson I, Defendants 
Exhibit 170; T.Vol.V,48,81. He agreed that "[wjhites tend 
to vote for white candidates and blacks tend to vote for 
black candidates." Johnson I, T.Vol.V,84. He concluded 
that whites vote for white candidates in the range of 
71-73%. Id. He did not believe a black candidate had an 
even (50%) chance to win until a district contained at 
least 50% of black registered voters. Id. at 84-5. Dr. Katz 
also found judicial elections to be "materially different" 
and that it would be "inappropriate" to use them in 
determining voting patterns in congressional elections. 
Id. at 74, 83.

The plaintiffs' expert, Dr. Ronald Weber, agreed there 
was "some evidence" of racial polarization in voting. 
Johnson I, T.Vol.IV,259. Taking into account judicial elec­
tions involving appointed black incumbents, he did not 
think the racial bloc voting was "very strong." Id. at 324.

Of the 40 black members of the Georgia general 
assembly, only one was elected from a majority white 
district. Johnson I, T.Vol.IV,236; J.A. 26-7. Of the 31 black 
members of the house, 26 were elected from districts that 
were 60% or more black. Of the nine black members of 
the senate, eight were elected from districts that were



19

60% or more black. Johnson I, Abrams Exhibits 23-4; 
T.Vol.VI,208; DOJ Ex. 57; T.Vol.VI,204. While only one 
black was elected from a majority white district, whites 
won in 16 (29%) of the 55 majority black house and senate 
districts. Abrams v. Johnson, No. 94-797, J.App. 26-7.

F. The Decision of the District Court. The court 
issued its plan on December 13, 1995 (Judge Edmondson 
dissenting). The district court, in its own words, pro­
ceeded as if the state had adopted "no plans." J.S.App. 7. 
According to the court,

Georgia's current congressional plan cannot 
form the basis for the remedy we now construct 
because it does not represent the goals of Geor­
gia's historic policies nor the state legislature's 
true intent.

J.S.App. 4. Also see J.S.App. 5 ("we cannot use Georgia's 
current plan as a surrogate for the legislature's reappor­
tionment policies and goals"), J.S.App. 6 ("we are unable 
to use Georgia's current plan as the basis for a remedy"), 
J.S.App. 7 ("the Court's task is akin to those cases in 
which states had no plans").

The district court was of the view that no deference 
was due the existing plan because it was the product of 
"Department of Justice [interference." J.S.App. 4. The 
court said that "DOJ basically used the preclearance pro­
cess to force Georgia to adopt the ACLU redistricting 
plan and, in the process, subvert its own legislative pref­
erences to those of the DOJ." J.S.App. 5. Accordingly, the 
court was "not bound by Upham to make only minimal 
changes to the current plan in fashioning a remedy."



20

J.S.App. 5-6. Adopting a remedy that would be "mini­
mally disruptive to Georgia's current plan was not an 
option." J.S.App. 29. Any remedy "would necessarily 
have resulted in drastic changes." J.S.App. 6.

The court's plan eliminated two of the three majority 
black districts in the existing plan, reducing the black 
VAP in the Second District from 52.3% to 35.1%, and in 
the Eleventh from 60.4% to 10.8%. Johnson I, 864 F.Supp. 
at 1366 n.12. The black VAP in the remaining majority 
black district, the Fifth, was increased from 53% to 57.2%. 
J.S.App. 16.

The court refused to draw a second majority black 
district because in its view "Georgia's minority popula­
tion is not geographically compact." J.S.App. 22. The 
court conceded, however, that:

If Georgia had a concentrated minority popula­
tion large enough to create a second majority- 
minority district without subverting traditional 
districting principles, the Court would have 
included one since Georgia's legislature proba­
bly would have done so.

J.S.App. 22 n.16.

In concluding that blacks were not geographically 
compact, the court failed to discuss the remedial plans 
proposed by appellants and the amici. The court dis­
missed the Illustrative Plan proposed by the United 
States because it allegedly split "numerous counties out­
side the metropolitan Atlanta area." J.S.App. 8, n.4. As 
noted supra, the Illustrative Plan in fact split only two 
counties outside the metropolitan Atlanta area.



21

The court's findings regarding the existence of racial 
bloc voting were contradictory. On the one hand, the 
court held that "while some degree of vote polarization 
exists, it is 'not in alarming quantities.' Johnson I, 864 
F.Supp. at 1390." J.S.App. 23. For that reason, "the rem­
edy we now impose meets the requirements of Section 2 
without containing two majority-minority districts." 
J.S.App. 24.

On the other hand, the court held that "Section 2 of 
the VRA required the Court to maintain the Fifth District 
as a majority-minority district." J.S.App. 18. Because of 
racial bloc voting "based on statewide figures," J.S.App. 
26 n.18, a district containing "the percentage of black 
registered voters as close to fifty-five percent as possible 
was necessary . . . to avoid dilution of the Fifth District 
minorities' rights." J.S.App. 26. The plan adopted by the 
court thus preserved the Fifth District as a majority- 
minority district. At the same time, the black population 
in the Second and Eleventh Districts was dispersed 
throughout the state into other districts. The black VAP 
was increased in the First District from 20.3% to 27.7%, in 
the Third from 16.3% to 22.5%, in the Fourth from 10.8% 
to 32%, in the Eighth from 18.4% to 28.3%, and in the 
Tenth from 16.5% to 34.5%. Abrams v. Johnson, No. 94-797, 
J.App. 20; J.S.App. 39.

The court's plan relocated the Eleventh District, 
which under all its prior configurations ran from South 
DeKalb County to the southeast, and put it "in the North­
east Atlanta corridor" where it would have an "urban/ 
suburban flavor," J.S.App. 13-4, and be "a 'radius' district 
reaching from suburban Atlanta to the state line." 
J.S.App. 14. The justification for the relocation was that



22

this was an area containing a "community of interests" 
and "where future growth is anticipated." J.S.App. 13-4. 
The Eleventh District was also structured around "Inter­
state Eighty-Five as a very real connecting cable." 
J.S.App. 14.

The court substantially reconfigured the Third, 
Eighth, and Tenth Districts as well. Under the prior plan 
the Third District was located essentially in the center of 
the state. Abrams v. Johnson, No. 94-797, J.App. 51. The 
court's plan moved it to the western edge of the state. 
J.S.App. 41. The new Tenth District was relocated south to 
fill the void left by moving the Eleventh to the northeast 
Atlanta corridor. Id. Under the court's plan the Eighth 
District runs from the Florida line north to metropolitan 
Bibb County and thence further north to the suburbs of 
Atlanta, including in a single district the metropolitan 
hub counties of Lamar, Upson, and Monroe with the 
rural, south Georgia counties of Echols, Clinch, and 
Charlton. Id.

The court's plan moved a total of 2,020,820 people -  
31.2% of the state's population -  into new congressional 
districts. Abrams Intervenors' Motion for Hearing and for 
Reconsideration, Declaration of Linda Meggers. By con­
trast, appellants' proposed least-change plan (ACLU1A) 
moved only 784,531 people into new districts, or 12.1% of 
the population of the state. Abrams Intervenors' Mem­
orandum in Response to Submission of Additional Demo­
graphic Evidence by Defendants Miller, Howard & 
Cleland, November 27, 1995 letter from Linda Meggers.



23

In devising its plan the court, by its own admission, 
"subordinated" protection of incumbents "to other con­
siderations." J.S.App. 18. It moved the incumbent in the 
Eleventh District to the Fourth District, the incumbent in 
the Second District to the Third District, and the incum­
bent in the Eighth District to the Second District. The 
effect of these changes was to create potential contests 
between incumbents in Districts Three and Four. J.S.App. 
18-9. Two of the three dislocated incumbents were black, 
and only these two were placed in new districts with 
other incumbents.

The court's plan contained a total deviation among 
districts of 0.35%. J.S.App. 39. As noted supra, alternative 
plans proposed by the parties contained lower devia­
tions, i.e., the Illustrative Plan proposed by the United 
States with a deviation of only 0.19%, and appellants' 
ACLU1A plan with a deviation of 0.29%.

The district court justified the deviation in its plan by 
deferring to the state's preference "for not splitting coun­
ties outside of the metropolitan area," J.S.App. 8, and 
because it wished to maintain "communities of interest." 
J.S.App. 11. In addition, the court noted that "no precise 
count of a district's population can be made using 1900 
data." J.S.App. 12.

Judge Edmondson did not file a written dissenting 
opinion. During the August 22, 1995 hearing, however, he 
indicated in comments from the bench that the duty of a 
federal court was "in each instance to make the least 
amount of changes, the fewest amounts of changes, and 
the least dramatic changes, possible" to bring a plan into 
compliance with the Constitution. T., Aug. 22, 1995, p. 29.



24

In his view, the court did not have a license to "just 
redraw Georgia." Id. at 36.

On January 8, 1996 the court denied appellants' 
motion for reconsideration and an evidentiary hearing to 
challenge the court ordered plan. Appellants filed their 
notice of appeal on January 11, 1996. J.S.App. 46. The 
district court denied appellants' application for a stay 
pending appeal on January 26, 1996. This Court denied 
appellants' application for a stay on February 6, 1996. 
Abrams v. Johnson, 116 S.Ct. 899 (1996). After noting prob­
able jurisdiction, the Court denied appellants' renewed 
application for a stay on June 7, 1996. Abrams v. Johnson, 
A-982.

-----------------♦----------- -

SUMMARY OF ARGUMENT

The district court abused its equitable powers in 
completely redrawing the congressional map of Georgia. 
The powers of the federal courts must be adequate to the 
task of fashioning remedies for violations, but those 
powers are limited. Any remedy must be related to the 
conditions that are found to offend the Constitution.

In the area of redistricting, deference by federal 
courts to state policy choices is especially compelling. 
That is true because the states have primary respon­
sibility for apportionment. When a district court must act 
in the legislature's stead, it must accomplish its task 
circumspectly, and in a manner that is free from any taint 
of arbitrariness or discrimination.



25

The district court ignored the state's traditional inter­
est in preserving the core of existing districts. It com­
pletely relocated the Eleventh District and placed it in the 
northeast Atlanta corridor because it felt that was a better 
location for the district. The court also drastically recon­
figured other districts, including the Third, the Eighth, 
and the Tenth.

The court's plan moved incumbents and pitted them 
against each other in a number of districts in disregard 
for the state's traditional policy of avoiding contests 
between incumbents. Two of the three dislocated incum­
bents were black, and only these two were placed in new 
districts with other incumbents.

The court's plan shifted nearly a third of the state's 
population into new districts. Least-change plans pro­
posed by the parties and amici showed that it was possi­
ble to draw far less disruptive plans that at the same time 
cured the constitutional defects in the prior plan.

The court eliminated two of the three majority black 
districts in the existing plan, despite its acknowledgment 
of the legislature's decision to create a second majority 
black district after the 1990 census. The court's justifica­
tion for refusing to draw a second majority black district 
was that Georgia's minority population was not geo­
graphically compact. The legislature, however, in enact­
ing its first plan was of the view that the black population 
was sufficiently compact to constitute a majority in a 
second congressional district.

Proposed remedial plans were also submitted by the 
parties and amici which showed that a compact second 
majority black district can be drawn in Georgia while



26

adhering to the state's traditional districting principles. 
As long as a state does not subordinate traditional redis­
tricting principles to race, it may intentionally create 
maj ority-minority districts, and may otherwise take race 
into consideration, without being subjected to strict scru­
tiny.

The court's plan violates Section 2 of the Voting 
Rights Act. Blacks in Georgia are geographically compact. 
As appears from various plans submitted to the district 
court, it is clearly possible to draw two reasonably com­
pact majority black congressional districts in the state. 
Blacks are also politically cohesive, while their preferred 
candidates are usually defeated by whites voting as a 
bloc. As the lower court found, a district containing 
approximately 55% of black registered voters was neces­
sary to avoid dilution of minority voting strength.

The district court's plan is retrogressive in violation 
of Section 5. The court's plan reduced the number of 
majority black districts from the levels in the third legis­
lative plan (which had three of eleven) and the first 
legislative plan (which had two of eleven), to only one of 
eleven in a state that is 27% black. Minorities admittedly 
have fewer electoral opportunities under the court 
ordered plan than under any of these pre-existing plans.

The court used the 1982 plan as a benchmark for 
measuring retrogression. The 1982 plan was not only 
malapportioned but contained ten districts while the 1992 
plan contains eleven. The ten seat 1982 plan by definition 
cannot serve as a reasonable benchmark by which to 
evaluate the court's eleven seat plan. The most appropri­
ate benchmarks for determining retrogression are either



27

the state's initial eleven seat plan containing two majority 
black districts, or the state's policy and goal of creating 
two majority black districts. Using either of these 
benchmarks, the court ordered plan would violate the 
retrogression standard of Section 5.

The court's plan does not comply with one person, 
one vote. Congressional redistricting is held to even stric­
ter standards than legislative redistricting. The total devi­
ation among districts in the district court's plan is 0.35%. 
Plans with lower overall deviations were submitted to the 
court by the United States (0.19%) and by appellants 
(0.29%). Other district courts have had no difficulty in 
drafting or approving plans with zero deviations.

-----------------+-----------------

ARGUMENT

I. The District Court Abused Its Equitable Powers

The powers of the federal courts must be adequate to 
the task of fashioning remedies for constitutional viola­
tions, but those powers "are not unlimited." Whitcomb v. 
Chavis, 403 U.S. 124, 161 (1971). Any remedy must be 
related to "the condition alleged to offend the Constitu­
tion." Milliken v. Bradley, 418 U.S. 717, 738 (1974). See 
Missouri v. Jenkins, 115 S.Ct. 2038, 2058 (1995) (federal 
courts do not have "a blank check to impose unlimited 
remedies upon a constitutional violator") (O'Connor, J., 
concurring).

In the area of redistricting, deference by federal 
courts to state policy choices is especially compelling. 
That is true because "the Constitution leaves writh the



28

States primary responsibility for apportionment of their 
federal congressional and state legislative districts." 
Grows v. Emison, 113 S.Ct. 1075, 1081 (1993). See Art. I, § 4, 
cl. 1, Constitution of the United States ("[t]he Times, 
Places and Manner of holding Elections for Senators and 
Representatives, shall be prescribed in each State by the 
Legislature thereof; but the Congress may at any time by 
Law make or alter such Regulations"). See also Chapman v. 
Meier, 420 U.S. 1, 27 (1975).

While an elected legislature is situated to identify 
and reconcile traditional state policies, "[t]he federal 
courts by contrast possess no distinctive mandate to com­
promise sometimes conflicting state apportionment poli­
cies in the people's name." Connor v. Finch, 431 U.S. 407, 
415 (1977). When a district court must act in the legisla­
ture's stead, its "task is inevitably an exposed and sensi­
tive one that must be accomplished circumspectly, and in 
a manner 'free from any taint of arbitrariness or discrimi­
nation.' " Connor v. Finch, 431 U.S. at 415, quoting Roman v. 
Sincock, 377 U.S. 695, 710 (1964).

A court
should follow the policies and preferences of the 
State, expressed in statutory and constitutional 
provisions or in reapportionment plans pro­
posed by the state legislature, whenever adher­
ence to state policy does not detract from the 
requirements of the Federal Constitution.

White v. Weiser, 412 U.S. 783, 795 (1973). Because states 
derive their reapportionment authority from independent 
provisions of state and federal law, "federal courts are 
bound to respect the States' apportionment choices unless 
those choices contravene federal requirements." Voinovich



29

v. Quilter, 113 S.Ct. 1149, 1157 (1993). The decisions and 
judgments of a state legislature "in pursuit of what are 
deemed important state interests . . . should not be 
unnecessarily put aside in the course of fashioning
relief." White v. Weiser, 412 U.S. at 796.5

These principles are exemplified by Upham v. Seaman, 
456 U.S. 37 (1982). There, the Attorney General objected 
under Section 5 to two congressional districts in Texas. 
The district court proceeded to resolve the objections to 
the districts but in addition devised its own plan for four

5 One of the reasons federal courts should act 
circumspectly and adhere to state legislative policy choices 
where possible is to avoid even the appearance of partisan or 
other bias. The "drastic changes" approach of the district court 
in this case has, unfortunately, given rise to speculation that the 
plan was driven by partisan bias favoring Democrats at the 
expense of Republicans. J.S.App. 6. See Jeff Dickerson, "At 
Christmas, black party loyalty doesn't pay off," The Atlanta 
Journal, December 20, 1995 ("The judges -  both appointed by 
Democrats, coincidentally -  did away with two of the state's 
three majority black districts, balkanizing the black vote in a 
way that benefits white Democrats"); Kevin Merida, "ACLU to 
Appeal Decision Remapping Ga. Districts," Washington Post, 
December 15,1995 (quoting the chair of the Georgia Democratic 
Party that "[tjhe changes that were made favored us in virtually 
every district"); Mike Christensen, "Reactions to the plan are all 
over the map," Atlanta Journal Constitution, December 14,1995 
(quoting Rep. John Linder that " ' [i]t appears that the two 
Democratic judges tried to draw a map for white 
Democrats . . . [wjhat [Georgia House Speaker] Tom Murphy 
couldn't get done on the floor of the Legislature he got the 
judges to do for him' "). Public trust and confidence in the 
impartiality of the judiciary cannot but be undermined by the 
unnecessary breadth of the redistricting by the district court in 
this case.



30

other districts as to which there had been no objection. 
456 U.S. at 40. In vacating the decision, the Court noted 
that "[t]he only limits on judicial deference to state 
apportionment policy . . . were the substantive constitu­
tional and statutory standards to which such plans are 
subject." 456 U.S. at 42. In fashioning a court ordered 
remedy, therefore, a district court may not reject state 
policy more than is necessary "to meet the specific consti­
tutional violations involved." Id. In remanding the case 
for further proceedings, the Court concluded that:

Whenever a district court is faced with entering 
an interim reapportionment order that will 
allow elections to go forward it is faced with the 
problem of 'reconciling the requirements of the 
Constitution with the goals of state policy.' Con­
nor v. Finch, supra, at 414, 97 S.Ct. at 1833. An 
appropriate reconciliation of these two goals can 
only be reached if the district court's modifica­
tions of a state plan are limited to those neces­
sary to cure any constitutional or statutory 
defect. Thus, in the absence of a finding that the 
Dallas County reapportionment plan offended 
either the Constitution or the Voting Rights Act, 
the District Court was not free, and certainly 
was not required, to disregard the political pro­
gram of the Texas State Legislature.

456 U.S. at 43.

In light of Upham, the district court's remedial 
powers in this case were limited to curing any constitu­
tional defects in the Second and Eleventh Districts. Far 
from following Upham, the district court redrew the entire 
congressional map for the state of Georgia, proceeding by



31

its own admission as if the state had adopted "no plans." 
J.S.App. 7.

A. Ignoring District Cores. The district court 
ignored the state's traditional, longstanding, and explic­
itly articulated interest of "preserving the core of existing 
districts." Miller v. Johnson, 115 S.Ct. at 2483. It completely 
relocated the Eleventh District and placed it "in the 
Northeast Atlanta corridor out to the northeast Georgia 
state line," where it would have an "urban/suburban 
flavor." J.S.App. 13-4. The court justified this new loca­
tion of the district on the grounds that it was in an area of 
anticipated future growth, and "[t]he road net, the area's 
commerce, its recreational aspect, and other features pro­
duce a district with a palpable community of interests." 
J.S.App. 14. Even assuming all of that to be true, it 
provides no basis for the court substituting its own judg­
ment for that of the legislature about where the district 
should be located in the state, particularly where a dis­
trict can be drawn southeast from South DeKalb County 
that cures the constitutional defects identified by the 
Court and which is based upon the state's traditional 
redistricting principles.

Elaborating on its "road net" rationale for relocating 
the Eleventh District, the district court explained that the 
new district follows a progression of counties that "have 
Interstate Eighty-Five as a very real connecting cable." 
J.S.App. 14. Ironically, it was the configuration of the 
Twelfth Congressional District in North Carolina along 
the very same interstate that drew the sharpest criticism 
of that district. See Shaw v. Reno, 113 S.Ct. 2816, 2821, 
2825, 2832 (1993) (describing the Twelfth District as being 
"unusually shaped," "bizarre on its face," and "irrational



32

on its face" because for much of its length it closely 
followed "the 1-85 corridor"). Constructing a district 
along a major highway can, therefore, depending on the 
redistricting outcome one favors, be evidence of bizarre­
ness and irrationality, or "a very real connecting cable." 
J.S.App. 14.

As the court's "road net" analysis demonstrates, a 
resourceful map maker can justify any plan, particularly 
one drawn at the congressional level, based upon "com­
munities of interests," including those similar to or differ­
ent from the ones identified by the district court. It would 
be quite impossible to draw a district in Georgia contain­
ing some 589,000 people without including a substantial 
number -  or an infinity -  of communities of interests, e.g., 
business people, working class families, poor people, 
members of the middle class, church goers, sports fans, 
high school graduates, high school dropouts, people and 
neighborhoods concerned about crime prevention and 
improving public education, or individuals and groups 
concerned about the national debt, the space program, 
international terrorism, and ethnic cleansing and geno­
cide, etc. Certainly these "communities of interest" have 
as much claim to congressional representation as an 
area's "road net," or its "commerce," or its "recreational 
aspect," communities of interest relied upon by the dis­
trict court to justify its relocation of the Eleventh District. 
J.S.App. 22.

In reality, "community of interests" is an amorphous 
and illusive concept. One can define it in any way one 
chooses, which is one reason why the federal courts 
should leave the definition to state legislatures. Certainly 
a federal court, whose equitable powers properly extend



33

only to curing identifiable constitutional and statutory 
defects, has no warrant gratuitously to substitute its own 
definition of what a community of interests is for that of 
the legislature. White v. Weiser, 412 U.S. at 795 ("[i]n 
fashioning a reapportionment plan or in choosing among 
plans, a district court should not pre-empt the legislative 
task nor 'intrude upon state policy any more than neces­
sary' "), quoting Whitcomb v. Chavis, 403 U.S. at 160. The 
district court's choice of communities of interest was 
exactly the arbitrariness that Roman v. Sincock, 377 U.S. at 
710, forbade.

The district court also drastically reconfigured the 
Third and Tenth Districts. It moved the Third District 
from the center of the state to its western edge. It relo­
cated the Tenth District, moving it south to fill the void 
created by moving the Eleventh District to the Northeast 
Atlanta corridor.

The court created an Eighth District that runs from 
the Florida line to the metropolitan hub counties of 
Lamar, Upson, and Monroe, and included in one sprawl­
ing district the smallest county in the state, Echols (popu­
lation 2,334), with one of the largest metropolitan 
counties in the state, Bibb (population 149,967). To use the 
words of this Court in invalidating the Eleventh, the 
Eighth District includes areas that are "miles apart in 
distance and worlds apart in culture." Miller v. Johnson, 
115 S.Ct. at 2484. The Eighth is the kind of "geographic 
monstrosity" criticized by the majority in Miller. Id.

The willingness of the district court to draw the kind 
of districts in its own plan that both it and this Court 
condemned in the plan drawn by the state indicates that



34

the district court applied a dual standard in redistricting. 
Moreover, it is a dual standard that is impermissibly 
based upon race, for it measures majority black districts 
by one set of size and compactness criteria and majority 
white districts by another. The use of such a dual stan­
dard inevitable calls into question the "arbitrariness" of 
the district court's plan, Roman v. Sincock, 377 U.S. at 710, 
and contravenes the assurance given by this Court that 
majority-minority districts are not to be treated "less 
favorably" than those that are majority white. Miller v. 
Johnson, 115 S.Ct. at 2497 (O'Connor, J., concurring).

B. Maximum Disruption. The court's plan moved 
incumbents and pitted them against each other in a 
number of districts, again in disregard for the state's 
traditional and stated policy of "avoiding contests 
between incumbents." Miller v. Johnson, 115 S.Ct. at 2483. 
Two of the three dislocated incumbents were black, and 
only these two were placed in new districts with other 
incumbents.

The court's plan shifted nearly a third of the state's 
population into new districts. Least-change plans pro­
posed by the parties and amici showed that it was possi­
ble to draw far less disruptive plans that at the same time 
cured the constitutional defects in the prior plan. Abrams 
Intervenors' Memorandum in Response to Submission of 
Additional Demographic Evidence by Defendants Miller, 
Howard & Cleland, November 27, 1995 letter from Linda 
Meggers. Under appellants' ACLU1A plan, only 12.1% of 
the state's population was placed in a different district.

C. Destroying Majority Black Districts. The court 
also eliminated two of the three majority black districts in



35

the existing plan, despite its acknowledgment of the legisla­
ture's decision to create a second majority black district after 
the 1990 census. J.S.App. 22 n.16. The first plan enacted by 
the legislature prior to any involvement by the Department of 
Justice contained a second majority black district (the Elev­
enth) running Southeast from DeKalb County. Miller v. John­
son, 115 S.Ct. at 2483. That plan necessarily reflected the 
legislature's, not DOJ's, reapportionment policies and goals.

In their brief in this Court in Miller v. Johnson, the state 
repeatedly stressed "the undisputed consensus of all the 
legislators involved -  both white and black, Republican and 
Democrat -  that the first plan was reasonable." Miller v. 
Johnson, No. 94-631, Brief of Appellant Miller et al., p. 18. 
There is no evidence that the first plan was based predomi­
nantly upon race or that the state subordinated its traditional 
redistricting principles to race in the construction of the plan. 
Again, in its brief, the state said that:

It is undisputed that the General Assembly as a 
whole found the initial [1991 congressional redis­
tricting] plan enacted to be reasonable. It was not 
perceived as a 'racial gerrymander.' . . . There is, in 
fact, no evidence that any legislator or reapportionment 
staffer ever believed the initial plan to be offensive as a 
racial gerrymander.

Miller v. Johnson, No. 94-631, Brief of Appellants Miller et al, 
p. 49 (emphasis in original).

In addition, the plaintiffs in Miller v. Johnson, never 
contended in the district court that the first or second con­
gressional redistricting plans were unconstitutional, and 
introduced no evidence that they were. In response to a 
question from the district court, the plaintiffs' lawyer 
responded that "I don't think that we have a position on the



36

first two plans because they never went to law." Johnson I, 
T.Vol.11,23. Nor was there any finding by the district court 
that the first plan enacted by the legislature was unconstitu­
tional.

The record itself refutes any contention that the Eleventh 
District was initially drawn "solely" on the basis of race. The 
first plan excluded "a sizable black population in Baldwin 
County," Johnson I, T.Vol.11,21 (Testimony 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 District 
as drawn in the first plan "suited me," was "obviously" 
acceptable, and denied that it was "a racial gerrymander." 
Johnson I, T.Vol.II,81. The chair of the house reapportionment 
committee similarly testified that in enacting the first con­
gressional plan, "[we] thought we had done pretty well." 
Johnson I, T.Vol.HI,252 (Testimony of Bob Hanner). The state 
complied with the Voting Rights Act, as well as followed its 
traditional redistricting principles, i.e., "we kept cities and 
counties intact." Id.

The court's justification for refusing to draw a second 
majority black district was that "Georgia's minority popula­
tion is not geographically compact." J.S.App. 22. The legisla­
ture, however, in enacting its first plan was obviously of the 
view that the black population was sufficiently compact to 
constitute a majority in a second congressional district.

The state's demographer also testified that the Eleventh 
District in the first plan contained fewer counties than many 
other Georgia congressional districts, and in terms of its size 
and length was "within the range of districts that the state



37

has created in the past." T., Oct. 30, 1995, p. 444. Proposed 
remedial plans submitted by the parties and amici, e.g., the 
Illustrative Plan, ACLU1A, and Amicus R, also showed that 
a compact second majority black district can be drawn in 
Georgia while adhering to the state's traditional districting 
principles.

While this Court held in Miller that the legislature's third 
post-1990 plan -  adopted after the Attorney General refused 
to preclear the first two plans -  is unconstitutional, the Court 
never held or suggested that the first plan is unconstitu­
tional. The first plan enacted by the state was based upon the 
state's traditional districting principles and would not trigger 
strict scrutiny under Miller v. Johnson, 115 S.Ct. at 2497 ("[t]o 
invoke strict scrutiny, a plaintiff must show that the State has 
relied on race in substantial disregard of customary and 
traditional districting practices") (O'Connor, J., concurring). 
It was error for the district court to ignore the judgment of 
the legislature, especially when, as noted infra, doing so 
diluted the voting strength of a "community defined by 
actual shared interests." Miller v. Johnson, 115 S.Ct. at 2475.

D. Unnecessary Speculation. The district court 
attempted to distinguish Upham by claiming that the existing 
plan "does not represent the goals of Georgia's historic 
policies nor the state legislature's true intent." J.S.App. 4. 
However, the "policies" and "true intent" of the state 
were represented in the first plan enacted by the legisla­
ture prior to any involvement by the Department of Jus­
tice.

The district court's defense of its "drastic changes" 
approach based upon speculation about what "the legis­
lature might have done had it not been for the DOJ's



38

subversion of the redistricting process," J.S.App. 13, is 
therefore misplaced. One does not have to resort to spec­
ulation; in enacting the first plan, we know what the 
legislature actually did. Unless the state's legislative pol­
icy and goal of a second majority black district was 
unconstitutional, the district court was not free to ignore 
it. This Court has never held or suggested that the cre­
ation of a majority black district is per se suspect. See Bush 
v. Vera, 64 U.S.L.W. 4452, 4455 (1996) ("as we have 
emphasized . . . the decision to create a majority-minority 
district [is not] objectionable in and of itself"). As long as 
a state does not subordinate traditional redistricting prin­
ciples to race, it "may intentionally create majority- 
minority districts, and may otherwise take race into con­
sideration, without coming under strict scrutiny." Id. at 
4464 (O'Connor, J., concurring). See DeWitt v. Wilson, 856 
F.Supp. 1409 (E.D.Cal. 1994) (strict scrutiny did not apply 
to a deliberately created compact majority-minority dis­
trict), aff'd, 115 S.Ct. 2637 (1995). Nor did the Court hold 
or suggest that Georgia's first plan was unconstitutional 
or in violation of the Voting Rights Act or subject to strict 
scrutiny. Insofar as the Voting Rights Act is concerned, 
the Court acknowledged that the first plan was " 'amelio­
rative' and could not have violated § 5's non-retrogres­
sion principle." Miller v. Johnson, 115 S.Ct. at 2492.

In summary, in implementing its plan the district 
court: (1) proceeded as if the state had previously enacted 
"no plans;" (2) ignored the state's traditional interest in 
preserving the cores of existing districts; (3) substituted 
its own judgment of what constituted a "community of 
interests" for that of the state; (4) applied a dual standard 
based upon race that measured majority black districts by



39

one set of size and compactness criteria and majority 
white districts by another; (5) subordinated the state's 
interest in protecting incumbents; (6) disproportionately 
disadvantaged black incumbents; (7) caused maximum 
disruption by shifting nearly a third of the state's popula­
tion into new districts; and, (8) destroyed two of the three 
majority black districts, despite the legislature's clearly 
stated objective of creating two majority black districts.

By contrast, plans submitted by appellants, the 
United States, and amici showed that plans could have 
been adopted which cured the constitutional defects in 
the existing plan, but at the same time caused minimum 
disruption, respected the state's traditional interest in 
preserving the cores of existing districts, respected the 
state's judgment of what constituted a "community of 
interest," applied the same size and compactness criteria 
to majority black as to majority white districts, respected 
the state's interest in protecting incumbents, did not dis­
proportionately disadvantage black incumbents, and 
respected the legislature's objective of creating two 
majority black districts.

The district court's plan is not the kind of minimally 
disruptive plan based upon the state's traditional redis­
tricting principles that the court was obligated to adopt. 
Upham v. Seaman, 456 U.S. at 43. Nor was the district 
court at liberty to brush the state's policies aside and 
substitute its own judgment that "Georgians deserve a 
better fate" than to have two majority black congressional 
districts. J.S.App. 22. See Whitcomb v. Chavis, 403 U.S. at 
161.



40

II. The Court's Plan Violates Section 2

Despite its conclusion to the contrary, the court 
ordered plan dilutes minority voting strength in violation 
of Section 2. In determining whether a challenged voting 
practice violates Section 2, a court must decide if the 
practice "results in a denial or abridgement of the 
right . . .  to vote on account of race or color," i.e., whether 
minority voters "have less opportunity than other mem­
bers of the electorate to participate in the political process 
and to elect representatives of their choice." 42 U.S.C. 
§ 1973(b).

The legislative history of Section 2, particularly the 
Senate Report, indicates that "a variety of factors, 
depending upon the kind of rule, practice, or procedure 
called into question," are relevant in determining if a 
plan "results" in discrimination. S. Rep. No. 417, 97th 
Cong. 2d Sess. 28-9 (1982). Typical factors include:

1. the extent of any history of official dis­
crimination in the state or political subdivision 
that touched the right of the members of the 
minority group to register, to vote, or otherwise 
to participate in the democratic process;

2. the extent to which voting in the elec­
tions of the state or political subdivision is 
racially polarized;

3. the extent to which the state or political 
subdivision has used unusually large election 
districts, majority vote requirements, anti-single 
shot provisions, or other voting practices or pro­
cedures that may enhance the opportunity for 
discrimination against the minority group.



41

4. if there is a candidate slating process, 
whether the members of the minority group 
have been denied access to that process;

5. the extent to which members of the 
minority group in the state or political subdivi­
sion bear the effects of discrimination in such 
areas as education, employment and health, 
which hinder their ability to participate effec­
tively in the political process;

6. whether political campaigns have been 
characterized by overt or subtle racial appeals;

7. the extent to which members of the 
minority group have been elected to public 
office in the jurisdiction.

Id. See Thornburg v. Gingles, 478 U.S. 30, 36-7 (1986) (list­
ing the Senate factors).

There is no requirement that any particular number 
of the Senate factors be proved, or that a majority of them 
point one way or the other. Instead, Section 2

requires the court's overall judgment, based on 
the totality of circumstances and guided by 
those relevant factors in the particular case, of 
whether the voting strength of minority voters 
is, in the language of Fortson and Burns, 'mini­
mized or canceled out.'

S. Rep. No. 417 at 29 n.118. Accord, Johnson v. De Grandy, 
114 S.Ct. 2647, 2657 (1994) (in resolving claims of vote 
dilution, courts must examine "evidence in the totality of 
circumstances").

The analysis of the Senate Report was approved and 
applied by the Court in Thornburg v. Gingles, 478 U.S. at 
43-5. In Gingles, a challenge to multimember legislative



42

districts in North Carolina, the Court analyzed the statu­
tory language and legislative history of Section 2 and 
simplified the application of the Senate factors. It held 
that:

the essence of a § 2 claim is that a certain elec­
toral law, practice, or structure, interacts with 
social and historical conditions to cause an 
inequality in the opportunities enjoyed by black 
and white voters to elect their preferred repre­
sentatives.

478 U.S. at 476.

According to the Court, the most important consider­
ations in determining a Section 2 violation are: (1) 
whether the minority group is sufficiently large and geo­
graphically compact to constitute a majority in one or 
more single member districts; (2) whether the minority is 
politically cohesive, i.e., tends to vote as a bloc; and, (3) 
whether the majority also votes as a bloc "usually to 
defeat the minority's preferred candidate." 478 U.S. at 
50-1. The other factors listed in the Senate report "are 
supportive of, but not essential to, a minority voter's 
claim." 478 U.S. at 48 n.15 (emphasis in original).

The Gingles formulation has been regularly applied 
by the lower federal courts, and its constitutionality has 
been assumed or affirmed by a majority of this Court. See 
Voinovich v. Quilter, 113 S.Ct. at 1155; Bush v. Vera, 64 
U.S.L.W. at 4464 ("[w]e should allow States to assume the 
constitutionality of § 2 of the Voting Rights Act, including 
the 1982 amendments") (O'Connor, J,, concurring); 4481 
("compliance with § 2 of the Voting Rights Act is a 
compelling state interest") (Souter, J., dissenting); 4476



43

("a state has a compelling interest in complying with § 2 
of the Voting Rights Act") (Stevens, J., dissenting).

This Court has also made it clear that Section 2 
standards apply to court ordered redistricting plans. In 
SRAC v. Theodore, 113 S.Ct. 2954 (1993), involving legisla­
tive and congressional redistricting in South Carolina, the 
Court vacated and remanded "for further consideration 
in light of the position presented by the Solicitor General 
in his Brief for the United States." The Solicitor General's 
position was that "the court was required to afford all 
parties the opportunity to present specific Section 2 objec­
tions before imposing those plans for use in future elec­
tions." SRAC v. Theodore, No. 92-155 (S.Ct.), Brief for the 
United States as Amicus Curiae, p. 18. See also Winter v. 
Brooks, 461 U.S. 921 (1983), vacating and remanding Jordan 
v. Winter, 541 F.Supp. 1135 (N.D.Miss. 1982) (remanding a 
court ordered redistricting plan "for further consider­
ation in light of Section 2 of the Voting Rights Act"); Edge 
v. Sumter County School District, 775 F.2d 1509, 1510 (11th 
Cir. 1985) ("the district court could not validly adopt a 
reapportionment plan without determining whether the 
plan complied with Section 2 of the Voting Rights Act").

The evidence shows that blacks in Georgia are geo­
graphically compact. As appears from various plans sub­
mitted to the district court, e.g., the Illustrative Plan, 
ACLU1A, and Amicus R, as well as the first plan enacted 
by the legislature, it is clearly possible to draw two 
reasonably compact majority black congressional districts 
in the state.

Proof of the second and third Gingles factors, i.e., that 
the minority is politically cohesive and that its preferred



44

candidates are usually defeated by whites voting as a 
bloc, depends primarily upon proof of racial bloc voting. 
478 U.S. at 56. Consistent with the evidence that voting in 
Georgia is polarized and that blacks are politically cohe­
sive, the district court found "a significant drop in the 
probability of a black candidate being elected as the black 
percentage of registered voters declines to fifty percent." 
J.S.App. 26. For that reason, the court held that a district 
containing approximately 55% of black registered voters 
was necessary to avoid dilution of minority voting 
strength. Id. at 26.

The evidence also shows, as the district court indi­
cated, see J.S.App. 26, that the racial bloc voting is legally 
significant in that the majority votes as a bloc in the 
majority white jurisdictions "usually to defeat the minor­
ity's preferred candidate." Gingles, 478 U.S. at 50-1. In 
addition, the totality of the circumstances, including evi­
dence of past discrimination and its continuing effects, 
strongly supports a finding that the court's plan would 
result in discrimination in violation of Section 2. Johnson 
v. De Grandy, 114 S.Ct. at 2660. While it refused to grant 
appellants a hearing on the issue, the court's plan, which 
creates only one majority black district, violates Section 2 
of the Voting Rights Act. The court's finding that its plan 
does not violate Section 2 is clearly erroneous.

A. No Deference Is Due the Court's Ruling. Any 
deference ordinarily due the district court's Section 2 
finding under the clearly erroneous rule is undermined, 
not only because the court refused to hold a Section 2 
hearing on the adequacy of its plan, see, e.g., SRAC v. 
Theodore, but because it barred private intervention to 
defend the constitutionality of the Second District. By



45

doing so, it pretermitted the development of a full Section 
2 record.

The basis for denying private intervention was that 
the interests of any intervenors was adequately repre­
sented by the state. J.S.App. 42-3. Defendant Murphy, 
however, stipulated that the Second District was uncon­
stitutional. The remaining state defendants did not argue 
that a majority black Second District was needed to elimi­
nate the effects of past discrimination in voting, nor to 
comply with Section 2 of the Voting Rights Act. By their 
own admission, they presented no witnesses and took no 
part in the examination of witnesses. Finally, none of the 
state defendants appealed the decision of the district 
court invalidating the Second District. It is clear that 
appellants' interests were not adequately represented at 
trial, and that as a result a full Section 2 record was not 
developed.

Deference under the clearly erroneous rule is 
accorded on the assumption that the trial court has had 
an opportunity "to evaluate the credibility of witnesses 
and to weigh the evidence." Inwood Laboratories v. Ives 
Laboratories, 456 U.S. 844, 855 (1982). But where, as here, 
the state presented no witnesses and the trial court based 
its findings upon an inadequately developed record, a 
reviewing court should not be bound by the clearly erro­
neous standard. Zenith Radio Corip. v. Hazeltine Research, 
Inc., 395 U.S. 100, 123 (1969) (rationale for the clearly 
erroneous rule is that the trial court is in a position "to 
appraise and weigh the evidence"). No deference is due 
the finding of the district court that its plan complied 
with Section 2.



46

III. The Plan Is Retrogressive in Violation of Section 5

While federal court ordered plans are not themselves 
subject to Section 5 preclearance, they nevertheless must 
comply with Section 5 standards. McDaniel v. Sanchez, 452 
U.S. 130, 138, 148-49 (1981); S.Rep. No. 295, 94th Cong. 
18-9 (1975) (in fashioning a remedial plan a "court should 
follow the appropriate Section 5 standards, including the 
body of administrative and judicial precedent developed 
in Section 5 cases"). Court ordered plans must, therefore, 
avoid retrogression under the "effect" standard of Section 
5. J.S.App. 50-2.

In Beer v. United States, 425 U.S. 130, 141 (1976), the 
Court defined retrogression prohibited by Section 5 as a 
change in voting that diminishes the voting strength of a 
covered minority. See City of Lockhart v. United States, 460 
U.S. 125, 135 (1983) (retrogression is determined by 
whether or not minorities have the "same" electoral 
opportunities before and after a voting change).

The court ordered plan in this case reduced the 
number of majority black districts from the levels in the 
third legislative plan (which had three of eleven) and the 
first legislative plan (which had two of eleven), to only 
one of eleven in a state that is 27% black. Minorities 
admittedly have fewer electoral opportunities under the 
court ordered plan than under any of these pre-existing 
plans.

The court in Johnson I, 864 F.Supp. at 1369, acknowl­
edged that by invalidating the Eleventh District it was 
"depriving black citizens" of electoral opportunities. The 
court ordered plan which destroyed a second majority



47

black district imposed an even greater deprivation. The 
court ordered plan is plainly retrogressive.

The court took the position that its plan was not 
retrogressive "when compared to the 1982 plan." J.S.App. 
27. This comparison, however, overlooks the fact that the 
1982 plan contained ten districts while the 1992 plan 
contains eleven. To use the well-worn phrase, comparing 
the two plans is like comparing apples and oranges. The 
ten seat 1982 plan by definition cannot serve as "a reason­
able benchmark by which to evaluate" the court's eleven 
seat plan. Holder v. Hall, 114 S.Ct. 2581, 2586 (1994).

Even assuming the 1982 plan were a proper 
benchmark, the court ordered plan would still be retro­
gressive. Under the 1980 plan one (10%) of the ten dis­
tricts was majority black. Under the court's plan only one 
(9%) of the eleven districts is majority black. Blacks 
would not have the "same" electoral opportunities under 
a plan in which they were a majority in one of eleven 
districts than a plan in which they were a majority in one 
of ten districts. City o f Lockhart v. United States, 460 U.S. at 
135.

The district court's benchmark, the 1982 plan, is also 
malapportioned and therefore unconstitutional. Karcher v. 
Daggett, 462 U.S. 725, 732 (1983). There is no state or 
federal policy that is advanced by using an admittedly 
unconstitutional plan as a benchmark, particularly where, 
because of the intervening increase in size of the state's 
congressional delegation, other more appropriate 
benchmarks exist. The most appropriate benchmarks for 
determining retrogression are either the state's initial 
eleven seat plan containing two majority black districts,



48

or the state's policy and goal of creating two majority 
black districts. Using either of these benchmarks, the 
court ordered plan would violate the retrogression stan­
dard of Beer.

The plan first adopted by the state in 1991 was not 
legally enforceable as a matter of federal law because it 
was objected to under Section 5. Clark v. Roemer, 500 U.S. 
646, 654 (1991) (absent "extreme circumstance" an objec­
ted to voting practice is unenforceable). However, the 
plan did embody the state's redistricting policy of creat­
ing two majority black districts which was not objected to 
by the Attorney General. That policy can provide a 
benchmark for determining retrogression. Upham v. Sea- 
mon, 456 U.S. at 42 (a court must defer where possible to 
"state policy choices").

Moreover, this Court held in Miller v. Johnson, 115 
S.Ct. at 2492, that the first plan enacted by the state 
"could not have violated § 5's non-retrogression princi­
ple." Given the Court's imprimatur, it is entirely appro­
priate to use the 1991 plan containing two majority black 
districts as the benchmark for determining retrogression. 
Using an appropriate benchmark, the court ordered plan 
violates Section 5.

IV. The Plan Does not Comply with One Person, One 
Vote

Because congressional redistricting is governed by 
Article I, Section 2 of the Constitution, "absolute popula­
tion equality [is] the paramount objective." Karcher v. 
Daggett, 462 U.S. at 732. Federal courts, moreover, are 
held to even stricter standards in redistricting than legis­
latures. Wise v. Lipscomb, 437 U.S. 535, 540 (1978).



49

The total deviation among districts in the district 
court's plan is 0.35%. J.S.App. 39. Plans with lower over­
all deviations were submitted to the court by the United 
States, i.e., the Illustrative Plan with a deviation of 0.19%, 
United States v. Johnson, No. 95-1460, J.S.App. 45a, and by 
appellants, i.e., Plan A with a deviation of 0.29%. J.App. 
199. Given modern computer technology, there is no rea­
son why there should be any deviation in a court ordered 
congressional redistricting plan. Other district courts 
have had no difficulty in drafting or approving plans 
with zero deviations. See Hastert v. State Board of Elections, 
111 F.Supp. 634, 644 (N.D.I11. 1991) (adopting a plan con­
taining "mathematically perfect population equality"), 
and Burton v. Sheheen, 793 F.Supp. 1329, 1367-68 (D.S.C. 
1992) (court ordered plan containing zero deviation), 
vacated and remanded on other grounds sub nom. SRAC v. 
Theodore.

The district court attempted to justify the deviation 
by deferring to the state's alleged preference "for not 
splitting counties outside of the metropolitan area," 
J.S.App. 8, and because the 1990 census was stale. 
J.S.App. 12. Karcher v. Daggett, 462 U.S. at 738, rejected a 
similar attempt to "explain population deviations on the 
basis of flaws in census data." It also held that to justify 
deviations based upon asserted state interests such as 
preserving political boundaries, a state would have to do 
more than rely on "general assertions." 462 U.S. at 741. 
The general assertions made by the district court in this 
case do not begin to meet the standard of specificity 
demanded by Karcher to excuse compliance with the con­
stitutional standard of absolute population equality.

♦



50

CONCLUSION

For the above reasons, this Court should reverse the 
decision of the lower court.

Respectfully submitted,
L a u g h lin  M cD o n a ld  
Counsel of Record 
N eil  B ra d ley  
M a h a  Z aki 
M a ry  W yc k o ff  
A m er ic a n  C ivil  L iberties 

U n io n  F o u n da tio n , I n c .
44 Forsyth Street, N.W.
Suite 202
Atlanta, Georgia 30303 
(404) 523-2721
E la in e  R. J o n es 
Director-Counsel 
N o r m a n  J . C h a ch kin  
J a c q u elin e  B errien  
NAACP L eg a l  D efen se  a nd  

E d u ca tio n a l  F u n d , I n c .
99 Hudson Street
New York, New York 10013
(212) 219-1900
G er a ld  R. W eber  
A m er ic a n  C ivil  L iberties U nion  

o f  G eo rg ia

142 Mitchell Street, S.W.
Suite 301
Atlanta, Georgia 30303 
(404) 523-6201
Attorneys for Appellants