Miller v. Johnson Brief of the Appellees

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

In  T he

B’ujtrmr (Smart nf %  Ittitefc Stairs
October T erm , 1994

Zell M iller, et a l,
y Appellants

D avida Johnson, et al,
________  Appellees

Lucious A brams, Jr ., et al.,
Appellants

V *

D avida Johnson, et al,
Appellees

United  States of A merica,
y Appellant

D avida Johnson, et a l,
________  Appellees

On Appeal from the United States District Court 
Southern District of Georgia (Three Judge Court)

BRIEF OF THE APPELLEES

A. Lee Parks 
Counsel of Record 

Larry H, Chesin 
Kirwan, Goger, Chesin 

& Parks, P.C.
74 Fourteenth Street 
2600 The Grand 
Atlanta, Georgia 30809 
(404) 873-8000 
Counsel for Appellees

W ilso n  - Ep e s  p r in t in g  Co . ,  In c . - 7 8 9 - 0 0 9 6  - W a s h in g t o n , d .C .  8 0 0 0 1



QUESTIONS PRESENTED

1. Whether Appellants have carried their burden of prov­
ing the District Court’s determination that the Eleventh 
District is the product of racial gerrymandering is 
clearly erroneous?

2. Whether the legislation creating the Eleventh District 
is subject to strict scrutiny?

3. Whether the State abandoned any constitutional de­
fense of the District by its failure to articulate any 
compelling state interest furthered by the intentional 
use of racial classifications in its creation?

4. Whether Intervenors may advance compelling state 
interests to purportedly justify racial gerrymandering 
where the State expressly denies it was so motivated?

5. Assuming the Court accepts one of the proffered 
rationalizations for the gerrymandering as a compelling 
state interest, whether the District Court correctly 
determined the Eleventh District can not survive strict 
scrutiny?

(i)



TABLE OF CONTENTS
Page

QUESTIONS PRESENTED ............................................  i

TABLE OF AUTHORITIES ............. .........-.....-............-  v

STATEMENT OF THE CASE ........................................  1
Georgia’s 1992 Redistricting Plan Creates Lines 
Which Are Exceedingly Irregular ........... ................  3
Race Was the Overriding Consideration in Geor­
gia’s 1992 Congressional Redistricting Plan -------  6
Georgia’s 1992 Redistricting Plan Makes a Mock­
ery of Traditional Districting Principles ................ 11
The DQJ and the Demand for Maximization.........  18

SUMMARY OF ARGUMENT ..........................................  23

ARGUMENT...... .................. ....................................... -......- 25

I. PLAINTIFFS HAVE STANDING TO CHAL­
LENGE RACIAL GERRYMANDERING IN 
THEIR DISTRICT ............ ............................ -......... 25

II. THE DISTRICT COURT’S DETERMINATION 
THAT THE ELEVENTH DISTRICT IS THE 
PRODUCT OF RACIAL GERRYMANDERING
IS NOT CLEARLY ERRONEOUS .................... 29
A. Objective Criteria to Govern Application of

Shaw Already E x is t .........................................  32

III. THE LEGISLATION ESTABLISHING THE
ELEVENTH DISTRICT IS SUBJECT TO 
STRICT SCRUTINY ........ ..................................... 33

IV. THE ELEVENTH DISTRICT CANNOT SUR­
VIVE STRICT SCRUTINY ..................................  37
A. Third Parties Cannot Supply Compelling 

Governmental Interests Which The State 
Refuses To Acknowledge........     37

(iii)



IV

Page
TABLE OF CONTENTS—Continued

B. The Lines of the Eleventh District Are Not
Arguably Necessary Under Section 5 Of The 
Voting Rights Act ............................................. 39

C. The Lines of the Eleventh District Are Not
Arguably Necessary Under Section 2 Of The 
Voting Rights Act ............................. ...............  43

D. The Desire To Redress The Unquantified Ef­
fects of Historical Discrimination Is Not A 
Compelling State Interest....................     46

CONCLUSION ...................      50



TABLE OF AUTHORITIES
CASES Page

Arlington Heights v. Metropolitan Housing Dev.
Corp., 429 U.S. 252 (1977)............... - ..............34, 35, 36

Batson v. Kentucky, 476 U.S. 79 (1986)................. 28
Beer v. United States, 425 U.S. 130 (1976).........-  40
Brooks v. Mississippi, 469 U.S. 1002 (1984).......— 47
Brown v. Board of Education, 347 U.S. 483

(1954) ___________ ._______________________  24, 28
Busbee v. Smith, 549 F.Supp. 494 (D.D.C. 1982).. 40
City of Rome v. United States, 446 U.S. 156

(1980).......- .................................................................. 30
City of Richmond v. J.A. Croson, 488 U.S. 469

(1989) ..............................................................27, 34, 38, 39
Evans v. Abney, 396 U.S. 435 (1970) ..... .............. 28
Gayle v. Browder, 352 U.S. 903 (1956) .................. 28
Gomillion v. Lightfoot, 364 U.S. 339, 80 S.Ct. 669

(1960) ...................................................................... . 25, 35
Growe v. Emison, 113 S.Ct. 1075 (1993) ....   44
Hays v. Louisiana, 839 F. Supp. 1188 (W.D. La.

1993), vacated omd remanded, 113 S.Ct. 2731
(1994) ......... .................... ............... ....................... 26, 30, 33

Hernandez v. New York, 500 U.S. 352 (1991)-----  28
Holder v. Hall, 114 S.Ct. 2598 (1994) .................... 32, 50
Holmes v. Atlanta, 350 U.S. 879 (1955) .................  28
Hunter v. Underwood, 471 U.S. 222 (1985)..........  35
Johnson v. DeGrandy, 114 S.Ct. 2647 (1994).......  41,49
Katzenbach v. South Carolina, 383 U.S. 301

(1966) ................................. -............................... -...... 40
Kramer v. Union Free School Dist. No. 15, 395

U.S. 621 (1969) ......................................... .............. 38
Loving v. Virginia, 388 U.S. 1 (1967).......... .......... 28
Mayor of Baltimore v. Dawson, 350 U.S. 877

(1955) ................ ......................................................... 28
Palmer v. Thompson, 403 U.S. 217 (1971) ...........  28
Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138,

41 L.Ed.2d 256 (1896) ........................... - ...........-  25
Regents of the Univ. of Calif, v. Bakke, 438 U.S.

265 (1978) ......................................... -..................... 38,39
Rogers v. Lodge, 458 U.S. 613 (1982) ....... ........... 30
Shaw v. Hunt, 861 F. Supp. 408 (E.D.N.C. 1994).. 26, 30,

36

V



vi

TABLE OF AUTHORITIES—Continued
Page

Shaw v. Reno, 113 S.Ct. 2816 (1993) ......................'passim
Thornburg v. Gingles, 478 U.S. 30 (1986) ...30,31,43,44 
United Jewish Orgs. v. Carey, 430 U.S. 144

(1971) ......... ........................................................... 46,49
United States v. United States Gypsum Co., 333

U.S. 364 (1948) ................................ ......................  31
Vera v. Richards, 861 F.Supp. 1304 (S.D. Tex.

1994) ........... .................................................... ...........  26
Voinivich v. Quitter, 113 S.Ct. 1149 (1993) ............  37
Washington v. Davis, 426 U.S. 229 (1976) _____  36
White v. Register, 412 U.S. 755 (1973)___ _____  30
Wright v. Rockefeller, 376 U.S. 52 (1964)........ 25, 31, 34
Wygant v. Jackson Bd. of Educ., 476 U.S. 267

(1986)........... ................ ........................... ............ ..27, 38, 39
Zenith Radio Corp. v. Hazeltine Research, Inc.,

395 U.S. 100 (1969)............. ............................ ...... 31

CONSTITUTIONS
U.S. Const, amend. XIV (Equal Protection 

Clause)............. .. .................... ....................................................................... . 1,  24, 34, 36, 38, 49

STATUTES
42 U.S.C. § 1973(a), § 1973(b), § 1973c ..... ..........passim
Ga. Code Ann. § 21-2-3 (1993) ......... .......................... 1

RULES
Federal Rules of Civil Procedure, Rule 52a...............  30

MISCELLANEOUS
Blumstein, Defining and Proving Race Discrimi­

nation: Perspectives on the Purpose v. Results 
Approach from  the Voting Rights Act, 69 Va. L.
Rev. 633 (1983) .......................................... ............ 28

Aleinkoff and Issacharoff, Race and Redistricting: 
Draining Constitutional Lines A fter  Shaw v.
Reno, 92 Mich. L. Rev. 588, 589, n.8 (1993).......  45

Brace, Grofman, Handley & Niemi, Minority Vot­
ing Equality: The 65% Rule, 10 Law & Policy 
(1988) ...................................... ..................................  45



Vll

Brace, Grofman, Handley, Does Redistricting 
Aimed to Help Blacks Necessarily Help Republi­
cans?, 49 J. Pol. 69 (1987) ........... ........................

Grofman and Handley, Black Representation 
Making Sense of Electoral Geography at Differ­
ent Levels of Government, 2 Legis. Stud. Q., 
XIV, 265 (1989) ......... ........................ ..................

TABLE OF AUTHORITIES—Continued
Page

46

48



BRIEF OF THE APPELLEES

STATEMENT OF THE CASE
This case presents the question whether the extreme 

racial gerrymandering embodied in the legislation estab­
lishing Georgia’s Eleventh Congressional District violates 
the Equal Protection Clause of the Constitution. Apply­
ing this Court’s decison in Shaw v. Reno, 113 S.Ct. 2816 
(1993), the District Court found such a violation since 
race was the overriding consideration in the District’s 
bizarre configuration and since the legislation creating 
these lines (O.C.G.A. § 21-2-3) was not narrowly tailored 
to further a compelling governmental interest.

Without acknowledging the standard of review appli­
cable to the District Court’s findings of fact, Appellants 
assail the decision from a variety of angles. The “State 
Defendants” (Defendants Miller, Howard and Cleland), 
concede the district was racially gerrymandered as defined 
in Shaw, supra at 2823 (“the deliberate and arbitrary 
distortion of distinct boundaries . . .  for [racial] pur­
poses”), but assert that the District’s appearance is not 
sufficiently irregular or bizarre to come within the reach 
of Shaw} The Appellant United States, acting through 
the Department of Justice (“DOJ”) goes so far as to 
assert that “the appearance of the Eleventh District on a 
map comports reasonably with Georgia’s ordinary dis­
tricting practices.” DOJ Brief, p. 23. Appellants collec­
tively downplay race as but one of several considerations 1

1 One of the Defendants at trial, Speaker of Georgia’s House of 
Representatives, the Hon. Thomas Murphy, reluctantly cast the tie­
breaking vote in favor of the final Georgia plan. He stated at the 
time the State was engaging in racial gerrymandering because 
“what we did is went into counties and precincts and picked up 
pockets of African-Americans to make a strong district with vot­
ing age black population so that it would guarantee a black would 
be elected from there.” Tr. II, 62. He characterized the District 
as resembling an “octopus.” Tr. II, 63. Speaker Murphy did not 
appeal the decision of the District Court.



which affected the boundaries of the District, thus preclud­
ing relief.

These portrayals are, at best, advocacy. The lines of 
Georgia’s Eleventh District are extraordinarily irregular 
by any honest reckoning. They are absolutely without 
precedent in the history of Georgia congressional redis­
tricting. To contend that race did not drive the decision­
making concerning the lines of the Eleventh District is to 
deny reality. Georgia’s entire congressional districting 
scheme could not be more racialized than it is today. 
It is the epitome of what this Court decried in Shaw.

If one fact pervades this case, it is the fact that the 
1992 redistricting plan does not remotely resemble what 
the Georgia legislature wanted. Georgia is subject to the 
preclearance requirements of Section 5 of the Voting 
Rights Act. Once Georgia chose not to seek a judicial 
stamp of approval for its redistricting—an extraordinarily 
difficult undertaking in March of an election year—its 
only option was to follow the mandate of the DOJ. If it 
refused, a federal court in Atlanta had already scheduled 
a hearing to draw the lines for the State by default. See 
note 22, infra.

The evidence presented at trial established beyond any 
doubt that the DOJ approached redistricting in Georgia 
with a specific mission. That mission was to maximize 
by whatever means necessary both the number of majority 
black congressional districts in the State and the percent­
age of black voting age population within these districts. 
The fact that the State’s African-American population, 
other than in Atlanta, is widely and unevenly disbursed 
throughout the State south of Atlanta mattered not to 
the DOJ:2 J.A. 130. The command was that blacks

2

2 Only 17 out of 159 counties in Georgia are majority black. 
They are largely rural and sparsely populated, representing only 
7.2 percent of the State’s total black population, according to the 
1990 census. Over a third of these people reside in Dougherty 
County, in Southwest Georgia, where Albany is the county seat. 
PI. Ex. 16A, at 123-24.



3
needed to be linked together with other blacks regardless 
of location, regardless of economics, regardless of voter 
confusion, regardless of literally anaything other than the 
constitutional requirement of one person one vote.3

Georgia’s 1992 Redistricting Plan 
Creates Lines Which Are Exceedingly Irregular

Appellants go to significant lengths to make the Elev­
enth District appear somehow normal.4 Staring Appellants 
in the face, however, are the lines themselves. The most 
cursory inspection by someone knowledgeable about Geor­
gia’s geography would reveal their extremely irregular 
character.

What defines the Eleventh District, both racially and 
geographically, is not its very sparsely populated center, 
but the serpentine appendages which dramatically spring 
from that center. One snakes along the Savannah River 
to select portions of the City of Savannah. Another hooks 
in a thoroughly confusing fashion through Richmond 
County and City of Augusta. Yet another runs like a 
thread through Henry County, where the District almost 
disappears, only to be reborn in select portions of DeKalb 
County adjacent to the City of Atlanta. Additional, odd

13 Even the one-person one-vote requirement was partially sacri­
ficed at the alter of racial classification. In order to satisfy the 
DOJ’s vision for the State, it was necessary to create an unsually 
high overall population deviation (.94). See O’Rourke Report, Pl. 
Ex. 85, at 2-3.

4 It is apparent from media reports that the District is widely 
perceived as anything but “normal.” An editorial in the Atlanta 
Journal describes the District as “grotesque.” A Wall Street Jour­
nal editorial has described the District as “bizarrely shaped.” The 
Augusta Chronicle has described it as a “crazy quilt.” Along with 
congressional districts in North Carolina and Louisiana, it was 
featured in the July 12, 1993 issue of Time Magazine, and the 
lead story in the February 14, 1994 edition of the New York Times. 
PI. Ex. 19-23. J.A. at 29 (Stip. 74). A widely-quoted reference 
source on congressional districts, the Almanac of American Politics 
1994, refers to the District as a “geographic monstrosity.” Tr. 
Ill, 105.



4

appendages are found in Wilkes, Baldwin and Twiggs 
Counties.'5

The Eleventh District is not only shocking on this 
“macro” level. The fact that the District traverses almost 
the entire State at its widest part is only the beginning. 
In many locations, the lines are very difficult if not im­
possible to follow, even with a road map. Dr. Timothy 
O’Rourke, an expert retained by Plaintiffs, personally 
tracked the district lines in several areas. In Augusta, 
he testified the lines “will follow a major cross-town road 
for a couple of blocks and it will then veer into residen­
tial neighborhoods. It is a very difficult line to find. It 
certainly is not a line that is easily demarcated on a 
map. . .” Tr. Ill, 106. Overall, he found the lines were 
“not readily identifiable so that if you are a citizen and 
its not really clear to you—one could not easily explain 
to you if you were in the vicinity of a line whether you 
were in the district or out.” Tr. Ill, 110. See Detail 
Map, O’Rourke Supp, Rpt., PI. Ex. 85, at 3.

In Chatham County and the City of Savannah, Dr. 
O’Rourke observed similarly strange line configurations.

5 The use of appendages in Georgia’s 1992 congressional redis­
tricting legislation to create artificial districts driven by race is 
by no means restricted to the Eleventh District. The Second Dis­
trict also has numerous appendages along its borders, which meth­
odically divide counties and cities in tortuous fashion. One pro­
trusion meanders through Houston, Peach and Bibb Counties in a 
manner which resembles a tomato splat. J.A. 187-188. At its 
northern end, the Eighth District loops around the Second to take 
in the western portion of Bibb County. J.A. 62. The resulting 
configuration of the Second, Third, Eighth and Eleventh Congres­
sional Districts in this area prompted Linda Meggers, Beapportion- 
ment Services Director for the Georgia General Assembly for more 
than twenty years, to observe: “It gets, very hard to understand 
right there.” Tr. I, 79. The Second Congressional District also 
includes portions of Meriwether County, taken in by means of a 
tiny pathway, which leaves that county divided into three segments, 
two of which are non-eontiguous, but nevertheless included in the 
same congressional district. Defendant Lt. Governor Howard char­
acterized what happened to Meriwether County as. a “terrible 
thing—it was just emasculated in this process.” Tr. IV, 218.



5

At the north end of the county, he found a “very, very 
narrow [land] bridge indeed” that was “not readilly ac­
cessible by roads on the maps” since it was swamp land 
within the Savannah Wildlife Refuge. Tr. Ill, 113-15. 
At one point inside the City of Savannah, the entire 
width of the district was between 2/10 and 3/10 of a 
mile. Tr. Ill, 113.

Extensive evidence was provided at trial to support 
Dr. O’Rourke’s conclusion that “a tour of the Eleventh 
District confirmed what the maps of the district only 
begin to suggest: that the lines of the district are, in many 
places, jagged and haphazard, difficult to follow, barely 
contiguous and plainly noncognizable.” PI. Ex. 85, at 8-9 
(Detail Maps).8

The grossly irregular lines of the Eleventh and Second 
Districts create very strange features in the Third and 
Eighth Congressional Districts as well. The Third District 
is “hollowed out” by virtue of the intrusion of the Second 
into Meriwether County. The Eighth District has an 
almost indecipherable western edge, directly caused by nu­
merous gossamer appendages from the Second. Absent a 
large detail map, the Eighth District appears to be com­
pletely dissected in Bibb County. J.A. 62.

While the lines of the Eleventh District are extraordi­
nary in absolute terms, they are even more so when 
viewed in light of where the population of the district is 
located. The portion of DeKalb County in the Eleventh 
District alone constitutes 35.3% of the district’s total 
population. The excised portions of DeKalb, Richmond, 
Chatham and Baldwin Counties account for nearly 70% 
of the district’s population. PI. Ex. 24. 6

6 The difficulty in ascertaining where the lines of the district are 
located has prompted the office of the present U.S. Representative 
for the Eleventh District to contact Georgia’s Legislative Re- 
apportionment Office for more detailed maps. The reason that 
staffers provided for the inquiry was “we can’t  figure out what’s 
ours.” These requests have continued even after the representative 
had been in office for almost two years. Tr. II, 34.



6

Of the 18 “other” counties (or parts thereof included 
in the Eleventh Congressional District), not one has a 
population constituting more than 3.5% of the entire 
district. Indeed, 12 have a population constituting 2% 
or less of the district’s total. The portion of DeKalb 
County included in the Eleventh District by itself repre­
sents 4.1% more of the district’s total population than 
all of these 18 counties put together. J.A. 131.

Race Was The Overriding Consideration 
In Georgia’s 1992 Congressional Redistricting Plan

By placing demographic information over the lines 
established in Georgia’s 1992 Congressional Redistricting 
Plan, it is immediately apparent that race dominated the 
1992 Georgia Congresional Redistricting Plan in general, 
and the Eleventh and Second Congressional Districts in 
particular. Indeed, it is quite apparent that the Eleventh 
District is not a district at all in the conventional sense. 
It is nothing but an amalgam of distantly located concen­
trations of black population located at the end of racially 
gerrymandered appendages attached to a thinly populated 
rural center. By means of these computer generated 
racially gerrymandered appendages, the district is trans­
formed into one which is almost 65% black.

The demographic heart of the population of the Elev­
enth District is split amongst portions of three distant 
counties, DeKalb, Richmond and Chatham. They account 
for almost two-thirds of the total population and more 
than 73.7% of the black population of the entire district. 
J.A. 131. No one can seriously deny that these areas 
were brought into the Eleventh District for purely racial 
reasons, and that the “land bridges” used to reach them 
exist to avoid including more whites in the district.

The statistics respecting these three counties are simply 
overwhelming. DeKalb County as a whole is 42.2% 
black. Yet, on the Eleventh District side of the line, 
74.6% of the population is black. On the other side of 
the line in DeKalb County, only 22.4% of the population 
is black. In Richmond County, blacks constitute 42%



7

of the county’s population. Yet, blacks constitute 66% 
of the county’s population within the district. Blacks con­
stitute only 18.8% of the non-Eleventh portion of Rich­
mond. In Chatham County, blacks constitute 38.1% of 
the population. Yet, in the portion of the county within 
the Eleventh, blacks constitute 84.1% of the population. 
On the other side of the line, they constitute only 15% 
of the population. PI. Ex. 16, Table 3.

The same phenomenon of dividing citizens by race 
exists in the three other non-land bridge split counties as 
well.7 PI. Ex. 16, Table 5. In Twiggs County, 88.8% 
of the County’s blacks are placed in the Eleventh. In 
Wilkes, the figure is 62%, and in Baldwin 89.5%. No 
one can seriously argue that such stark divisions are 
anything other than an intentional segregation of voters 
according to race.

In the face of this uncontroverted statistical evidence, 
the State Defendants in particular come forward with 
their own explanation for all the split counties, cities and 
precincts in the Eleventh District, somehow trying to show 
“non-racial considerations” in the dissection of these po­
litical subdivisions. While they criticize the Distrct Court 
for not commentng on every last squiggle, they surely

7 The two split counties which are exclusively land bridges are 
Henry and Effingham.

It was “necessary” to utilize a land bridge in Henry because it 
has a substantial population, which is 90% white. It can readily 
be seen that the Henry County corridor alone does not link the 
black population excised from DeKalb County to other population 
changes in the district by itself. The remainder of the linkage is 
provided by lining up three additional counties (Butts, Jasper and 
Putnam) in “single file” to reach the district’s: “geographic center.” 
While these counties remained whole, they are very sparsely popu­
lated, collectively accounting for only 3.5% of the district’s total 
population. Because they have no significant impact on the Dis­
trict’s racial percentages, it was acceptable to leave them whole.

It is admitted by the State that an Effingham County land 
bridge exists solely to link black population in Savannah with the 
rest of the District. See State Admissions of Fact, Tr. IV, 159-60. 
Effiingham County is 85% white.



8

realize that their efforts are an exercise in accentuating 
trivialities. Indeed, some of the most compelling evidence 
contradicting the State Defendants’ current argument came 
from the Defendant Lt. Gov. Howard. When asked what 
portions of the boundaries of the Eleventh he considered 
to be a function of race, Howard responded “Well, basi­
cally the whole district.” Tr. IV, 208. (Emphasis added). 
According to him, the district lines were drawn “for the 
purpose of achieving a certain racial—a certain racial 
composition of the district. I think that’s obvious. I 
don’t think anybody disagrees with that.” Id. When ad­
vised “Well, they [the Appellants] do”, he responded: 
“We’re trying to achieve a certain VAP in a certain 
population. Why else would you draw it like that?” Id.

Howard acknowledged that DeKalb County was an 
integral part of this effort. He noted that some black 
voters in DeKalb were “ceded” to the majority-minority 
Fifth District because of their history of low voter turn­
out. “They [the DOJ] wanted us to go in and get all the 
blacks that had the best voting records into this [Elev­
enth] district. . .” Tr. IV, 209-210. He further testified 
that the slice of Henry County that ended up in the 
Eleventh was a “bridge” designed to connect “the large 
block of black voters in DeKalb County and the large 
block of black voters elsewhere.” Tr. IV, 211. Other 
locations for this land bridge, such as portions of Newton 
and Rockdale Counties, were considered as alternatives 
to Henry since they too “don’t have any significant num­
ber of black voters.” Tr. IV, 211. Regardless of the 
specific route chosen, the State Defendants admitted the 
sole purpose of the land bridge was to avoid white popu­
lation in the search for black voters.

The Lt. Governor also acknowledged that the irregular 
lines in Twiggs County were the product of “computerized 
hunting for concentrations of blacks.” Tr. IV, 213. One 
portion of the county was “becoming more white so we 
left that out.” Id. As for Baldwin County, he recalled 
the understandable bitter opposition to splitting the county. 
“But the Justice Department told us that we had to go



9

in and get the blacks in Baldwin County . . . and include 
that in the Eleventh District. So we did that.” Tr. IV, 
312. Wilkes County followed the same pattern; the Lt. 
Governor explained its dissection as follows: “The areas 
that we have included in the Eleventh District in Wilkes 
County were more heavily black than the northern part 
of it. So we went in and just got as many black voters 
as we could on the southern edge, so that’s why the line 
sort of meanders around through there.” Tr. IV, 212. 
The land bridge in Effingham County “was done to mini­
mize the effects on Effingham County, but at the same 
time build a bridge to Savannah to get the black voters 
in Savannah as we were directed to do.” Tr. IV, 214.8

Aside from this and other compelling testimony, the 
State Defendants’ effort is premised on a logical flaw. 
Simply because a district line follows a portion of a pre­
cinct line or a municipal boundary line or partially 
coincides with a major thoroughfare does not begin to 
suggest that its placement was not race-based. Racial 
percentages of precincts are well known when they are 
included in a district. Tr. II, 271-82. It was the ACLU’s

8 While the Lt. Governor did not testify extensively about the 
district lines in Savannah and Augusta, other witnesses did. 
Augusta was slashed to pieces solely to achieve desired racial 
percentages. Tr. I, 93. It was a “block by block” racial search. 
P.I. Tr. 51. So many voting precincts were split that some 32 new 
ones had to be created. Tr. II, 224. The land bridge to reach 
Augusta is a strip of nearly deserted territory. The State took 
its cue from the ACLU’s Max Black plan. The reason for the differ­
ence between it and the final plan was explained by Ms. Meggers: 
“ l i l t  [the Max Black Plan] only drew the three [black majority] 
districts. I had to draw all eleven of them.” Tr. I, 102.

As for Savannah, Mr. Dixon, who drew the lines, made clear that 
his motives were purely race-based. “Frankly, taking the directive 
from the Justice Department, [I was] quite literally identifying 
the concentrations of the black urban concentrations in the City 
of Savannah and somehow getting to them and incorporating them 
in contigiuty [with] the Eleventh District. P.I. Tr., 52. He drew 
the lines “to make sure that blacks were on one side and the whites 
were on the other.” Id. When asked if there was any consideration 
besides race in this effort, he testified there were “none what­
soever.” Tr. IV, 159-60.



10

Kathleen Wilde, the primary architect of the “Max Black” 
plan, who characterized precincts as the “traditional build­
ing blocks” of districting. Tr. IV, 83. The legislative 
guidelines say the same thing. J.A. 68-69, 75. It is like­
wise an unassailable fact that, in some urban areas, black 
population tends to be concentrated on one side of a 
major thoroughfare or rail line. Tr. IV, 80. This is the 
case both in parts of DeKalb County and in parts of the 
City of Savannah. Tr. II, 216. And the computer soft­
ware provided racial data in census blocks that often 
coincided with these types of “lines.” This was the lowest 
level at which the computer could access racial informa­
tion, which aside from VAP and total population, was the 
only demographic information maintained in the system. 
Tr. I, 50-5 l;T r. II, 14.

In light of the way this district’s lines corral black 
voters and exclude whites, as borne out by the statistics 
concerning the racial impact of those lines on Georgia’s 
congressional districts, further discussion of the massive 
direct evidence of racial gerrymandering would appear 
almost superfluous. As the District Court stated: “At a 
glance, the appendages of the Eleventh are obviously 
designed to do something; after cursory exploration, it 
rapidly becomes clear that the ‘something’ is maximiza­
tion of black voting strength.” J.S. App. 49. Suffice it 
to say that, without exception, every witness who testified 
in the case concerning the redistricting process confirmed 
that the 1992 congressional redistricting plan was a de­
liberate effort to separate voters according to their race. 
See Murphy, Tr. II, 62; Meggers, Tr. I, 101-02-106-07; 
125-25, 270-273; Dixon, P.I. Tr. 41-42, 46-49, 51-52; 
Hanner, Tr. Ill, 247-259; Garner, Tr. Ill, 210-214. 
While Appellants do their level best to downplay the 
evidence presented at trial, they cannot honestly disagree 
with the Court’s conclusion that “copious amounts of 
direct evidence” was presented to establish that the dra­
matically irregular lines of the Eleventh Congressional 
District were the product of race-based manipulation. J.S. 
App. 52.



11

Georgia’s 1992 Redistricting Plan Makes A 
Mockery Of Traditional Districting Principles

Shaw makes clear that traditional districting principles, 
such as compactness, contiguity and respect for political 
subdivisions are not constitutionally required. Neverthe­
less, they take on considerable significance in the context 
of ascertaining whether racial gerrymandering has oc­
curred. This is because they are “objective factors that 
may serve to defeat a claim that a district has been gerry­
mandered on racial lines.” Shaw, supra at 2827.

Appellants attempt to sidestep this aspect of Shaw 
by suggesting that a core traditional districting prin­
ciple like compactness has “relative unimportance” in 
Georgia. State Brief, at 20; DO! Brief, at 24-25. Such a 
contention is simply untrue. While it is correct that the 
guidelines of the House and Senate Reapportionment 
Committees do not expressly use the word “compactness”, 
both sets of guidelines plainly state that, where legal re­
quirements are satisfied, “efforts may be made to main­
tain the integrity of political subdivisions and the cores 
of existing districts.” J.A. 68, 75. Contrary to Appel­
lants’ suggestion, Georgia has a long history of reason­
ably compact districts, with common economic interests 
being the “prime driving force behind congressional re­
districting traditionally.” Tr. I, 21-22. Linda Meggers, 
among others, recounted the specialized interests tradi­
tionally lying at the heart of the First (coastal) District, 
the Second (specialized agricultural) District, the Third 
(military) District, and the Seventh (textile and carpet­
ing) District. Tr. I, 23-27. The Eighth District, not­
withstanding its relatively large size, was “definitely agri­
cultural from one end to the other.” Tr. I, 14. It was 
undisputed that its northward expansion was only under­
taken to comply with one-person one-vote. Tr. I, 31-34. 
The Ninth District is the State’s mountain district where 
poultry is the predominant industry.® Tr. I, 23-27. The 9

9 The Abrams Intervenors argue that the Ninth District was 
drawn to be a distinctive white community. This is incorrect. The



12

Tenth has traditionally encompassed the Athens-Augusta 
area and the surrounding rural areas of East Central 
Georgia. Tr. I, 25. See also P.I. Tr. 59-63; Tr. Ill, 251.

Georgia’s prior congressional maps confirm the signifi­
cance of compactness in congressional redistricting. A 
review of the maps from 1964, 1971, and 1982 invariably 
reflect reasonably compact districts. J.A. 78-81. By way 
of contrast, they also amply demonstrate the unprece­
dented departure the 1992 redistricting plan made from 
those practices.

That the State Defendants would now challenge the 
significance of compactness in Georgia congressional re­
districting is a remarkable turn of events. During the 
preclearance process, Georgia’s Attorney General was 
literally pleading with the DOJ not to require what ulti­
mately was required. In his letter of March 3, 1992, 
he wrote: “In addition, the extension of the Second Dis­
trict into Bibb County and the corresponding extension 
of the Eleventh District into Chatham County, with all 
of the necessary attendant changes, violate all reasonable 
standards of compactness and contiguity.” J.A. 118. (Em­
phasis added.) How could something which was so criti­
cal then become marginal now?

As the District Court found, the Eleventh District is 
not compact by any credible definition of the term.10 J.S.

mountain region of the State is not race-based. The region is 
geographically distinct. (In contrast, the Eleventh traverses four 
regions of the State. PL Ex. 43.). There are no adjacent black 
population concentrations that were excluded. No evidence was 
offered at trial to suggest that racial gerrymandering had anything 
to do with the configuration of the Ninth District. In a state 73% 
white, there will be predominantly white districts, particularly 
when 61.7% of its black citizens are packed into three majority- 
minority districts.

10 Even the Attorney General testified that the Eleventh District 
is not compact. P.I. Tr. 148. The only witness at trial to offer a 
contrary opinion was an expert retained by the State Defendants. 
She offered a “meanderingness” test developed by the State De­
fendants’ attorneys especially for this litgation. None of the



13

App. 80. The massive amount of evidence presented at 
trial on this subject confirms what any reasonable in­
dividual would conclude given even a nodding acquaint­
ance with the geography of the State and its redistricting 
history.11 12 The sole reason for this lack of compactness is 
that “reasonable standards of compactness and contiguity” 
were of no interest to the DOJ. All that mattered was the 
lumping together of distantly located urban and suburban 
blacks by means of a sprawling, and often tortuous, rural 
pathway.112

Appellants refer to it in the briefs, and for good reason. The 
District Court found it “especially useless in analyzing the Elev­
enth District” since its measures only “the vast—and sparsely 
populated” core of the District while the “narrow—and densely 
populated—appendages escape notice.” J.S. App. 79. Far from 
aiding Appellants, the test is “an excellent means of highlighting 
the egregiously manipulated portions of any voting district.” Id.

Not surprisingly, using mathematical measurements of compact­
ness the Eleventh District scores the lowest in Georgia, and among 
the lowest nationwide (bottom 8% in “dispersion score” ; bottom 
11% in “perimeter score” ). PI. Ex. 85, 7.

11 The State Defendants offered into evidence maps of certain 
Georgia cities for the ostensible purpose of showing that “geo­
metric niceness” is relatively unimportant in drawing municipal 
boundaries. These maps are irrelevant to whether compactness is 
a traditional districting principle in congressional redistricting. 
At the Pretrial Conference', the District Court advised the parties 
that municipal boundaries are accretions of annexations which are 
tax-driven and that the Court had little interest in them. At trial, 
the Court again advised the State these maps were without evi­
dentiary value. Tr. V, 120-21, 123. And the State offered no evi­
dence as to how they were relevant.

12 At pp. 23-24 of its Brief, the DOJ states the Eleventh District 
“generally occupies an area similar in shape to, but generally south 
of, the former Tenth District, which also spans a central part of 
the State from Augusta to the Atlanta suburbs.” What the DOJ 
bases this statement on is unknown. It is clearly wrong. A cursory 
review of prior redistricting maps shows that the “old Tenth” does 
not resemble the Eleventh District in any way, shape or form. 
The old Tenth had no hooks, tails or other wild protrusions nor did 
it ever extend, in the words of Ms. Meggers, “literally from the 
shadow of the Capital to Tybee [Lighthouse in Savannah].” Indeed,



14

Appellants had to acknowledge that “respect for politi­
cal subdivisions” is an important and traditional redis­
tricting principle in Georgia. They are thus forced to 
contend that political subdivisions were respected in 1992. 
In fact, nothing could be further from the truth.

The essence of the State Defendants’ argument is that 
“86.6% of the entire area of the Eleventh Congressional 
District is comprised of whole counties” and that “71.1% 
of the Eleventh Congressional District lines runs right 
along boundaries of the State, counties or municipali­
ties.” 13 These numbers, however, do not mean political 
subdivisions have been respected. All that these numbers 
demonstrate is that county boundaries have been followed 
only where relatively few people are located and where 
there is no material impact on the racial composition of the 
district. Once again, the statistics tell the story in dra­
matic fashion.

As shown in Plaintiffs’ Table 2 (PI. Ex. 24), the por­
tions of DeKalb, Richmond and Chatham Counties located 
in the Eleventh District represent less than 3 .5%  of the 
land area included in the district. Yet, almost two-thirds 
of the population of the district and almost three-quarters 
of the black population of the district resides in these three 
relatively small areas, all at the extreme ends of appen­
dages. LA. 131.

When the analysis is extended to include all eight split 
counties, it can be seen that political subdivisions have 
been “respected” where less than 27%  of the district’s 
citizens reside. Id. Where the vast majority of people live, 
political subdivisions have not been respected at all.

The degree to which political subdivisions have not 
been respected in the 1992 congressional redistricting plan

it never extended further southeast than Richmond County and the 
City of Augusta.

13 The State Defendants’ utilization of State boundaries to “up” 
its percentages is curious indeed. The State has little choice but 
to draw congressional districts within them.



15

is without precedent in Georgia history. Between 1931 
and 1964, Georgia’s congressional districts had no split 
counties. J.A. 81. In 1964, only Fulton County was 
split—in order to comply with one person one vote. J.A. 
78. In 1971, two counties were split, Fulton and Whit­
field.14 J.A. 79. In 1982, only three (of 159) counties 
were split—the metro Atlanta counties of Fulton, DeKalb 
and Gwinnett. J.A. 80.

The 1992 congressional redistricting plan splits 26 
counties. PL Ex. 16A. This represents a 1200% increase 
over the 1971 plan and a 767% increase over the 1982 
plan. In the Eleventh District alone, almost three times 
as many counties are split than were split in the entire 
1982 congressional redistricting plan. Of the 26 split 
counties in the current congressional redistricting plan, 
20 of them occur in the Eleventh and Second Districts. 
These numbers are stunning in light of the heavy em­
phasis citizens placed on not splitting counties at public 
hearings on redistricting held throughout the State in 
1991. Tr. Ill, 207, 246; P.I. Tr. 43.

The 1992 congressional redistricting plan is no less 
sparing of municipalities. J.A. 128. Prior to 1964, there 
were no split municipalities. In 1971 there were two, 
Atlanta and Dalton (Whitfield County). In 1982, five 
metro Atlanta cities were split. However, the 1992 plan 
splits 31 municipalities, an increase of 520% over the 
previous decade.

The evidence at trial was uncontradicted that the 
ACLU’s “Max Black” plan served as the minority popu­
lation benchmark throughout. Including whole, albeit 
sparsely populated, counties did not alter the racial com­
position of the district in any significant way because 
Ms. Meggers intensified the racial gerrymander where it 
counted—in the densely populated, but distantly located, 
black urban centers. As she testified: “I was trying to

14 The splitting of Whitfield County was due to political considera­
tions. The legislature took a “big beating” for having done so. 
Tr. I, 35. The split was removed in the next round of redistricting.



16

clean the plan up, get back the whole counties as much 
as I could, and at the same time achieve this benchmark 
number that had been presented to us in the Max Black 
plan.” Tr. I, 96-97. The lines Ms. Meggers drew in 
urban areas became even more irregular than the ACLU 
lines and necessitated splitting more precincts. Tr. I, 
98-99; Tr. IV, 84. “[W]hat I did was basically go in 
and find white areas to take out to offset the whites I 
may have added in the rural counties.” Tr. II, 30; Tr. I, 
102, 224. By creating more jagged and irregular lines 
in population centers, including splitting precincts, Ms. 
Meggers got the plan “within just fractions of a percent­
age of what they achieved” in the Max Black congres­
sional plan. Tr. II, 55.

As the foregoing makes clear, the State Defendants’ 
assertions regarding “respect for political subdivisions” is 
a charade. Essentially they argue that, as long as it can 
locate a “desert” in which to adhere to county lines, it 
then gained free rein to engage in racial gerrymandering 
the population centers that are the lifeblood of any voting 
district.1'5

Georgia’s 1992 redistricting plan maintains but token 
contiguity throughout its various districts. Dr. O’Rourke 
characterizes the Eleventh District as merely a “conglom­
eration of dissimilar places.” Tr. Ill, 134. Some of these 
places, he observed, were connected by “narrow threads.” 
In his Supplemental Report (PI. Ex. 85, at 8), he refer­
ences several areas where the Eleventh “barely satisfies 
the test of contiguity.” In the Richmond County “hook”, 
the district narrows to the width of the local airport. In 15

15 A similar disrespect for political subdivisions is evident in the 
Second District. There, twelve counties are split. In each, the 
district includes a highly disproportionate share of the county’s 
black residents. In Bibb County, the Second lassos in 82.4% of 
the county’s black citizens. In Dougherty County, the figures rises 
to 85%. In Muscogee County, the figure rises still further, to 
86.9%. As shown at J.A. 135-136, the inclusion of black voters 
in the Second District, via gerrymandered lines, had a determina­
tive impact upon the district racially.



17

Effingham County, the Eleventh District contracts to a 
strand less than Vi mile wide. In Savannah, the district 
sends a tentacle through a breach in East Victory Drive 
that is even narrower. In Henry County, the western 
edge of the district is but several hundred yards from the 
eastern border. In Chatham County, one connecting point 
consists of swamp land. Tr. Ill, 115. At another point, 
the district is nothing more than the water column of the 
Savannah River itself. Tr. IV, 161. In a state as large 
as Georgia, and in a district which is 260 miles long, 
this is a remarkable spectacle.

A district which violates, in Georgia’s Attorney Gen­
eral’s own words, “all reasonable standards of compact­
ness and contiguity,” provides strong objective evidence 
that something dramatic is impacting the district lines. 
The District Court found it is “practcally stipulated” (J.S. 
App. 43) that but for race, none of this would have 
been considered, let alone implemented. No prior con­
gressional redistricting map in Georgia’s history contains 
districts even remotely resembling the Eleventh.18

The DOJ sums up its discussion of traditional dis­
tricting principles with the bald assertion that the Eleventh 
District “comports reasonably with Georgia’s ordinary 
districting practices.” DOJ Brief, p. 23. This is not a 16

16 While “communities of interest” were not specifically refer­
enced in Shaw, a significant amount of time was devoted to this 
subject at trial. The DOJ, along with the Abrams Intervenors, 
argued that blacks constitute a distinct community of interest co­
extensive with their skin color. The Court rejected this for a 
variety of reasons, among them that poor blacks in Savannah do 
not feel some automatic bond to those living in black neighborhoods 
in Metro Atlanta, many of which are quite affluent. J.S. App. 45- 
46. Dr. O’Rourke provided “compelling testimony . , . making it 
exceedingly clear that there are no tangible ‘communities of inter­
est’ spanning the hundreds of miles of the Eleventh District.” 
J.S. App. 81; PI. Ex. 85, at 10-29. Black medium income in DeKalb 
County, for example, is nearly 50% higher than black medium 
income in the next ranking county (Richmond) and more than 
twice as high as black medium income in the lowest ranking eight 
counties.



18

serious argument. Surely if the DOJ was aware of a 
prior Georgia congressional district dominated by tails, 
hooks, protrusions, with utterly indecipherable designs at 
the end of these appendages, it would have brought it to 
the District Court’s attention. It most assuredly did not.17

The DOJ And The Demand For Maximization
Long before the DOJ provided formal notice that it 

would not accept anything less than the maximum number 
of majority-minority districts that could be constructed 
in the State, the DOJ had communicated this requirement 
to members of Georgia’s Black Legislative Caucus, which 
was represented by the ACLU. As early as August, 1991, 
State Rep. Tyrone Brooks of Atlanta announced to the 
General Assembly:

“We are simply trying to maximize our voting 
strength, and I think we are right in line with the 
mandate for the U.S. Department of Justice.

The Justice Department is not going to say, well, 
the lines look funny, or you got a portion of 
Chatham, you got a portion of DeKalb, more citi­
zens of DeKalb are in this plan than Chatham. 
They are not going to be concerned about trivial 
issues like that. They are going to be concerned 
about whether or not you’re diluting the voting 
strength of minorities or whether or not you are max­
imizing the voting strength of minorities. That’s the 
only thing that I get from Washington when I talk 
to the lawyers. They want to make sure that, 
wherever possible—that you are drawing majority-

17 The DOJ’s assertion that districts the State “continues to 
draw” (i.e., in 1992) should serve as. an “appropriate benchmark” 
for determining- whether a district is highly irregular or bizarre 
is almost Kafkaesque. It was the DOJ’s pummelling which drove 
the State to draw the Second, Third, Fifth, and Eighth and Elev­
enth Districts as it did. As Bob Hanner, Chairman of the House 
Reapportionment Committee, testified, the only thing DOJ officials 
were interested in was racial percentages. Tr. Ill, 256. Ultimately, 
the Georgia legislature “split virtually everything except homes to 
. . . maximize black percentages.” Tr. Ill, 250.



19

minority districts. And that’s all I hear. I don’t 
hear them saying the lines look funny, the map looks 
crazy or it’s a zig-zag or it’s something someone just 
threw on the wall. I hear them saying, make sure 
you don’t dilute, and make sure, wherever possible, 
you create majority black districts, and I don’t hear 
anything different.”

PI. Ex. 130, 16-18. (Emphasis added.)
While the DOJ studiously avoided the term “maximiza­

tion” and the “wherever possible” standard in its written 
communications with the State, there is no question that 
the effect of its written communications was to require 
precisely what it told Representative Brooks was necessary 
to pass DOJ muster.

The technique used by the DOJ to coerce the State 
into maximizing the number of minority-majority districts 
was to exploit the “purpose” prong of Section 5 of the 
VRA. The initial plan offered by the State of Georgia was 
obviously not retrogressive since it doubled the number 
of majority-minority districts, from one to two.18 In this 
litigation, the DOJ freely admitted that neither Georgia’s 
first or second submissions were retrogressive.

In utilizing the “purpose” prong of Section 5 to impose 
its maximalist will on the State, the DOJ resorted to 
the concept of “pretext.” J.S. App. 25-26.19 Any plan

18 At a June, 1990 training conference of the State Legislature 
Reapportionment Task Force held in Baltimore, Maryland, then- 
Assistant Attorney General for the DOJ’s Civil Rights Division, 
John Dunne, advised the attendees that the DOJ was going to take 
a particularly exacting approach to redistricting in Georgia. P.I. 
Tr. 17. Georgia’s legislative leadership was determined to ap­
proach redistricting so as to “meet the mandates of the Justice 
Department. . . [T]hat was a positive thing the committee wanted 
to do.” Tr. Ill, 252.

19 Notwithstanding its admitted use of “confidential informants” 
to spy on State legislators and officials throughout the redistricting 
process, the DOJ presented absolutely no evidence at trial suggest­
ing any effort to discriminate against minorities in the two con­
gressional redistricting plans that were rejected by the DOJ. In­
deed the only evidence was to the contrary. Tr. Ill, 221, 258.



20

which did not lump as many blacks together as another 
plan was deemed suspect. Of course, the DOJ had before 
it the ACLU’s Max Black plan. It was obvious through­
out the redistricting process that this was the standard by 
which all other plans would be judged. J.S. App. 20; 
Tr. I, 65.

Initially, the DOJ did not formally require that the 
State extend the Eleventh District to Savannah. Its initial 
rejection letter, dated January 21, 1992, raised a concern 
“that the Georgia legislative leadership was predisposed 
to limit black voting potential to two black majority dis­
tricts”, and made specific comments concerning the need 
to better recognize “the black voting potential” in the 
southwest (Second) district and in Baldwin County in 
the Eleventh. J.A. 105-106.

The DOJ’s rejection letter did not specify what it meant 
concerning black voters in the Second District. However, 
as the District Court noted, to maximize the number of 
black districts in the State, it would be necessary to some­
how place black population concentrations in Macon 
into the Second District, and extend the Eleventh to 
Savannah. This was the “linchpin” of Ms. Wilde’s Max- 
Black plan. She had alerted the DOJ that it was the 
“key to drawing a third black district.” PI. Ex. 57. See 
J.S. App. 19-20.

Based on the information before him, Senate Majority 
Leader Wayne Garner became convinced that, despite 
the lack of specificity in the DOJ’s rejection letter, no 
plan was going to gain DOJ approval unless the Eleventh 
was extended into Chatham County and the black resi­
dents of Savannah were gerrymandered into the district. 
He testified: “[Ljooking at this entire process and listen­
ing to the other members of the committee, I was of the 
opinion and told the Lt. Governor early on, I said if we’re 
going to get a plan past the Justice Department and get 
us out of here and on to these elections, that district is 
going to have to go to Savannah. In talking with Ms. 
Meggers, my point was the district must have the highest



21

percentage of black population that we could get, [re­
gardless] of where we have to go.” Tr. Ill, 210. Solely 
to “get the percentages high enough” for the DOJ (Tr. 
Ill, 210), the Georgia Senate passed a plan in late 
February, 1992 containing an extension to Savannah in 
the Eleventh, and including black concentrations in 
Macon in the Second District by means of a tentacle 
extending into Bibb County.20

Senator Garner informed Georgia House Reapportion­
ment Committee Chairman Mr. Hanner that in his view, 
the DOJ “was going to mandate” a district extending from 
DeKalb to Savannah. Tr. Ill, 254. However, the House 
would not go along “unless the Justice Department man­
dated us to do it in writing.” Tr. Ill, 250. As Repre­
sentative Hanner testified: “I thought it was ridiculous. 
I thought—I just didn’t think we’d have to—I thought 
that was the max, and I did not think we would ever 
have to do that.” Tr. Ill, 250; Tr. II, 69.

By letter of March 20, 1992, the DOJ made it explicit 
where it stood. Georgia’s plea that the “extension of the 
Second District into Bibb County and the corresponding 
extension of the Eleventh into Chatham County, with 
all of the necessary attendant changes, violates all reason­
able standards of compactness and contiguity” fell on deaf 
ears. In the Eleventh District, the extension to Savannah 
would be required. The DOJ rationalized this require­
ment by citing the February 1992 Senate Plan referenced 
above—the Plan that was passed solely because the 
Senate leadership believed it was ultimately going to be 
mandated by the DOJ. J.A. 124. As for the Second 
District, the DOJ now made it clear that it was going 
to require the inclusion of “black population concentra­
tions in areas such as Meriwether, Houston, and Bibb 
[City of Macon] Counties.” J.S. App. 124-125. The fact

20 The Senate Plan generated three majority-minority districts 
in terms of population, but not in terms if VAP. In terms of VAP, 
the Senate Plan was 58.66% black in the Eleventh District, but 
“only” 47% black in the Second. J.A. 63.



22

that the State had previously been forced to split counties 
elsewhere to satisfy the DOJ served as the “evidence” 
that the failure to split additional counties elsewhere at 
the DOJ’s command was “pretextual.” 21 J.S. App. 125. 
Since the Macon/Savannah trade had been “suggested to 
the legislature during the redistricting process”, it simply 
had to be done. J.S. App. 125. Issues of compactness, 
contiguity, respect for political subdivisions and former 
district cores, local economic interests and the like were 
entitled to no consideration whatsoever.

All of the foregoing machinations aimed at minority 
vote maximization transpired prior to this Court’s opinion 
in Shaw v. Reno. Faced with litigation on one, if not two 
fronts,22 a legislative session which was over by April 1,

21 Although the DOJ cites earlier versions of metro Atlanta’s 
Sixth District in its brief (DOJ Brief at 32-33), its rejection 
letters make no reference to it. Its configuration is unremarkable. 
The district had to split counties due to one-person one-vote and 
the need to maintain the majority-minority Fifth District.

22 Absent DOJ preclearance, a State must obtain a declaratory 
judgment under Section 5 from the District Court for the District 
of Columbia before a redistricting law can take effect. If the 
failure to obtain preclearance results in a malapportionment, the 
State is subject to suit. In Georgia, such a suit was filed on 
February 12, 1992 in the U.S. District Court in Atlanta. The case, 
Jones v. Miller, C.A. No. 1:92-CV-330-JOF, was filed by Republican 
interests seeking to have the Court draw the State’s Congressional 
district lines. The complaint also alleged a violation of Section 2 
of the VRA and sought to have the Court draw “the maximum 
number of majority black districts” which could be drawn. PI. 
Ex. 80, p. 4. The Court in Jones had indicated that, if a plan 
was not precleared by the close of the legislative session, it would 
“commence drawing a plan” on April 3, 1992. P.I. Tr. 148; Tr. 
V, 23.

The State Defendants moved to dismiss the Complaint in Jones 
v. Miller on February 20, 1992. It labelled the maximization effort 
“legally unsupportable” (PL Ex. 81, at 5) and asserted that “ [t]his 
amounts to nothing more than a complaint that the State should 
have, but has not, sought proportional representation for minority 
citizens as a goal.” Id. at 17. The State Defendants lambasted the 
claim as “not only unprecedented, but dangerous to the political 
process in this nation.” Id. at 18. They noted how the resulting



23

candidate qualifying which was set to begin on April 27, 
a primary election in July and a general election in 
November, the State simply folded. Without formal com­
mittee review in either the House or Senate, the Georgia 
General Assembly hastily passed a third plan precisely 
as the DOJ had laid it out in its March 20 letter. This 
third plan was hand-carried to Washington on April 1, 
1992. A letter granting preclearance was issued the 
following day.

In strictly numeric terms, Georgia’s 1992 congressional 
redistricting plan was the proverbial political feast for 
blacks. Even though Georgia’s black VAP was 24.59% 
for the State’s total VAP, majority-minority districts con­
stituted 27.27% of the State’s eleven districts. In the 
Eleventh District, the lumping together of distantly lo­
cated blacks and the extensive surgery to avoid whites 
resulted in a saturated district containing a black popu­
lation of 64.07% and a black VAP of 60.36%.23

SUMMARY OF ARGUMENT
Incantations of historical discrimination cannot auto­

matically conjure up remedial action. Governments must 
quantify the present day effects, if any, and insure there 
is a tight fit between the continuing consequences of the 
past discrimination and the remedy being implemented.

“racial polarization would encourage candidates of one race to be 
unresponsive to the needs or wishes of another race”, thereby 
breeding “extremism in both races to the detriment of all citizens.” 
Id. at 19. A Max Black plan in the State Defendants’ words, “will 
most certainly have the effect and result of diminishing minority 
effectiveness in the political process.” Id. at 4. There are astonish­
ing words in light of the positions taken by the State Defendants 
in this case.

23 The impact of racially gerrymandering congressional district 
lines for the purpose of creating majority-minority districts has 
a dramatic impact on the VAP in the remaining districts. These 
districts are now all overwhelmingly white in composition. Black 
VAP in these districts ranges from 3.47% to 20.32%, with the 
average being 12.9%. The racial polarization about which the 
State Defendants spoke so eloquently in Jones v. Miller, supra, has 
come to fruition.



24

In Georgia, the “remedy” was maximization, both of 
the number of majority black districts and the minority 
populations included within them. There is no connec­
tion between the “Max-Black” benchmark used by the 
DOJ and the narrow tailoring required whenever race 
conscious remedies are invoked, unless narrow tailoring 
is defined as proportional representation of the races. To 
argue otherwise is to fall victim to an entitlement men­
tality that demands indefinite dividends from a national 
debt that was truly due to past generations.

Appellees strongly disagree with the thesis of the State 
Defendants’ appeal which argues that the existence of any 
non-racial factor which influenced, however slightly, any 
twist or turn of the district’s boundary provides an ex­
emption from the teachings of Shaw v. Reno. Unless a 
district is 100% black, there will always be some bit or 
piece of boundary not drawn solely to segregate the races. 
For example, it might be a land bridge moving the dis­
trict from one concentration of minority voters to other 
distant populations. The racial purpose is still the same. 
Racial gerrymandering occurs when the State draws a dis­
trict that artificially manipulates non-compact dispersed 
minority populations into a majority black district with­
out regard for the State’s traditional districting principles. 
The test of such a districts legality begins with the Vot­
ing Rights Act, but ends with the Equal Protection Clause 
of the Fourteenth Amendment.

Under the Fourteenth Amendment, racial classifications 
are “presumptively invalid and can be upheld only upon 
extraordinary justification.” Brown v. Board of Educa­
tion, 347 U.S. 483 (1954). The racial gerrymander of 
voting districts must be subject to the same constitutional 
scrutiny as any other legislative use of race. Shaw clearly 
so held. We should not turn away from the principles 
that give primacy to our constitution because the siren 
song of racially proportional representation deafens us to 
the subtle, but ultimately racial plea Intervenors make to 
exempt majority-minority districts from constitutional ac­
countability.



25

Shaw v. Reno catalogs just why Appellants’ vision of 
America’s political landscape is inconsistent with our con­
stitutional limitations on the use of racial classifications 
as a basis for legislation. Congress has defined the extent 
to which the federal government will involve itself at the 
State ballot box with the passage of the Voting Rights 
Act. Congress never dreamed this Act would mutate into 
a justification for racial gerrymandering to further the 
DOJ’s mandate of proportional racial representation via 
a de facto affirmative action program purportedly de­
signed to redress “past discrimination”.

The Abrams Intervenors would eviscerate Shaw by de­
nying Plaintiffs’ standing. Do Appellants truly believe 
America is better off politically segregated because the 
end result may be more Black office holders? They seek 
to legitimize the gerrymander as “benign” discrimination 
when the tools used to fashion the racial gerrymander 
are straight out of Gomillion v. Lightfoot, 364 U.S. 339 
(1960) and Plessy v. Ferguson, 163 U.S. 537 (1896). 
The old rallying cry of ‘separate but equal’ has been 
reincarnated in the ‘separate but maximized’ demands 
of the Intervenors. Justice Douglas phrased it best, calling 
it the “separate but better off theory.” Wright v. Rocke­
feller, 376 U.S. 52, 61-62 (1964).

Because of the extensive fact finding critical to any 
analysis of this type of claim, the District Court’s judg­
ment as to the existence of a bizarre district that is the 
product of racial gerrymandering must be affirmed unless 
clearly erroneous. And since the State has declined to de­
fend this district once strict scrutiny is applied, the out­
come of this case should be clear.

ARGUMENT
I. PLAINTIFFS HAVE STANDING TO CHALLENGE 

RACIAL GERRYMANDERING
Leary of mounting a frontal assault to reverse Shaw 

so soon after its announcement, the Abrams Intervenors’ 
chosen strategy is to limit its reach. To deny Plaintiffs’ 
standing would completely eviscerate Shaw and redirect 
us from the path Shaw has blazed towards the color-



blind society all parties acknowledge to be the ultimate 
goal.

Only the Abrams Intervenors have raised the issue of 
standing before this Court.124 Their argument is a simple 
one—Appellees have purportedly suffered no “individual 
harm” and therefore lack the requisite standing to chal­
lenge a majority black voting district constructed by 
means of a racial gerrymander.

The Abrams Intervenors’ “individual harm” argument 
is really no more than a restatement of the dissenting 
view in Shaw that the plaintiffs suffered no “cognizable 
injury.” Shaw resolved that issue by untethering the in­
dividual harm suffered “[w]hen voting districts are care­
fully planned like racial wards” (Hays v. Louisiana, 
Case No. 92-1522, Slip Opinion, at 10 (on remand)) 
from the concept of group harm inherent in the vote 
dilution setting relied upon by the dissenting Justices. 
Notwithstanding stare decisis, the Abrams Intervenors 
effectively ask this Court to overrule Shaw after the ink 
has barely dried.35

The theory is a dangerous one because of its conse­
quences if it were ever accepted. Practically speaking, no 24 25 * *

24 In light of Shaw v. Reno, the District Court denied their Mo­
tion to Dismiss for lack of standing in its entirety. Abrams J.S. 
App. 104-111. As to the voters, the three judge Court unanimously 
stated that the Motion “borders on frivolous.” Abrams J.S. App. 
110. No post-N/mw district court has denied voters standing to 
challenge the constitutionality of a congressional redistricting 
scheme. See Hays v. Louisiana, 839 F. Supp. 1188 (W.D. La. 
1993) ; Shaw v. Hunt, 861 F. Supp. 408 (E.D. N.C. 1994); Vera 
v. Richards, 861 F. Supp. 1304 (S.D. Tex. 1994).

25 The District Court’s opinion acknowledges that, if Plaintiffs’ 
claim were considered solely in the context of vote dilution or inter­
ference with their ability to cast a ballot, these Plaintiffs have
suffered no individual harm. J.S. App. 33. The Court, correctly 
observed, that Shaw was not addressing these harms, but the harm 
which occurs when the state “reinforces racial stereotypes and 
threatens to undermine our system of representative democracy by
signaling to elected officials that they represent a particular racial 
group rather than their constituency has a whole.” J.S. App. a t 32, 
citing Shaw, 113 S.Ct. at 2828.

26



27
voter could ever challenge a racially gerrymandered ma­
jority minority district. This approach would sterilize 
Shaw v. Reno and wrongly insulate patently unconstitu­
tional racial classifications in the context of voting dis­
tricts from judicial review.

The argument also misperceives the nature of Plain­
tiffs’ claim. Shaw v. Reno clearly recognizes a voters’ 
entitlement to challenge the use of racial classifications 
in the creation of voting districts. As the District Court 
unanimously recognized, “the cases stress that unlawful 
racial gerrymandering and its resulting balkanization is 
harmful to citizens of all races. The injury flowing to 
an individual so classified for voting purposes is mani­
fest from Shaw.” Abrams J.S. App. at 11. This is not 
a vote dilution case brought by white voters. Plaintiffs 
bring the “analytically distinct claim” recognized in Shaw 
that the redistricting plan under review cannot rationally 
be understood as anything other than an effort to segre­
gate voters into separate voting districts on the basis of 
their race without sufficient justification. Shaw, 113 S.Ct. 
at 2830.

Stripped to the bare wood, the Abrams’ argument on 
standing is but a contention that overall proportionality 
—i.e., matching the percentages of majority white and 
majority black districts with the racial demographics of 
the entire state’s population— negates any basis for con­
stitutional scrutiny. They would forgive all intentional, 
race-based line drawing which creates majority black dis­
tricts no matter how egregious the gerrymandering.®8

This modern day version of “separate but equal” can­
not be squared with the precedents of this Court premised 26

26 The standing defense parallels the increasingly time worn, 
if not now obsolete, contention that deployment of racial classifica­
tions perceived as beneficial to the minority are considered “benign” 
racial discrimination exempt from strict scrutiny. The Court has 
rejected this contention time and time again. See e.g., Richmond 
v. J. A. Croson Co., 488 U.S. 469 (1989) ; Wygant v. Board of 
Education, 476 U.S. 276 (1986). Every post-STwiw District Court 
decision has rejected the argument.



28

on the nondiscrimination paradigm which “embodies the 
idea that race-dependent decisions are unacceptable ex­
cept in the most unusual and compelling circumstances.” 
Blumstein, Defining and Proving Race Discrimination: 
Perspectives on the Purpose v. Results Approach from 
the Voting Rights Act, 69 U.Va.L.Rev. 633, 638 (1983). 
This principle has been a central feature of this Court’s 
equal protection jurisprudence combatting government- 
sponsored separation of the races since Brown v. Board 
of Education, 347 U.S. 483 (1954).127 In Shaw, the 
Court made clear the non-discrimination principle ap­
plied equally to voting districts.

In Loving v. Virginia, 388 U.S. 1 (1967), this Court 
found Virginia’s anti-miscegenation statute barring inter­
racial marriage unconstitutional. The Court rejected the 
State’s argument that, since the law applied to white and 
black citizens alike, there was no violation of equal pro­
tection. The constitutional issue did not turn on proof 
of the law’s effect (or lack thereof) on any particular 
racial group but on the government’s sponsorship of 
racial classifications. The Court’s decisions rejecting 
race-based jury selection, regardless of what race is being 
excluded, make the same point. Hernandez v. New York, 
500 U.S. 352 (1991); Batson v. Kentucky, 476 U.S. 
79 (1986).

Plaintiffs challenging intentionally-crafted, drastically 
irregular black majority voting districts possess the same 
credentials to complain as the Loving plaintiffs. While 
there is no constitutional right to vote in any particular 
election or to be a member of any particular district, 
voters do have grounds to complain if the district in which 
they vote cannot rationally be understood as anything 
other than an effort to segregate voters into separate vot­
ing districts on the basis of their race without sufficient 27

27 See e.g., Palmer v. Thompson, 403 U.S. 217 (1971) (swimming 
pools) ; Evans v. Abney, 396 U.S. 435 (1970) (parks); Gayle v. 
Browder, 352 U.S. 903 (1956) (transportation) ; Mayor of Balti­
more v. Dawson, 350 U.S. 877 (1955) (beaches) ; Holmes v. Atlanta, 
350 U.S. 879 (1955) (golf courses).



29
justification. Under the Abrams’ view of standing, the 
State could assign its citizens into racially segregated dis­
tricts, loosened from all relevant geographical moorings, in 
order to achieve proportionality. Simply put, the argument 
makes no sense. If a citizen and registered voter in a gerry­
mandering congressional district cannot complain of the 
constitutional violation enunciated in Shaw, who can?128

The Abrams Intervenors finally argue that white citi­
zens should not be able to complain about being included 
in a majority black district. That is but an exercise in 
rhetoric. It is the artificiality of the district stemming 
from the intentional manipulation of its racial makeup 
that raises the constitutional ante to the level of strict 
scrutiny. While the Intervenors scoff at the stigmatic harm 
a voter suffers by being included in what the public sees 
as a racially rigged district, Plaintiff Henry Zittrouer 
gave poignant testimony about what it was like to be 
irrelevant to the congressional politcal process, to know 
you and your family now live in a spindly land bridge 
made up, in large part, of uninhabited swamp land that 
is politically divorced from your home county. He is 
separated from his relatives by only a dirt road; but that 
defines the dividing line between congressional districts. 
Tr. V, 26-29. Henry Zittrouer became a brick on the 
highway of electoral busing. Constitutionally, he deserves 
the right to have his case heard.

II. THE DISTRICT COURT’S DETERMINATION 
THAT THE ELEVENTH DISTRICT IS THE PROD­
UCT OF RACIAL GERRYMANDERING IS NOT 
CLEARLY ERRONEOUS

The State Defendants no longer pretend the Eleventh 
District can survive strict scrutiny.09 Instead, the State 28 29

28 Four of the Plaintiffs in this action are voters in the Eleventh 
District. The fifth, Plaintiff DeLoach, lost the 1992 democratic 
congressional runoff election to the current representative in the 
Eleventh, and desires to run again without the outcome being pre­
determined on the basis of race.

29 In their Brief, the State Defendants never discuss strict scru­
tiny. They only assert that the district would pass muster under



30
hinges its appeal on one argument—that “bizarreness” 
is an essential element of Plaintiffs’ claim and that this 
district is “not bizarre.” Appellees disagree with the State 
Defendants’ legal contention that “bizarreness” per se is 
an essential element in establishing an unconstitutional 
racial gerrymander. See J.S. App. at 30, 41-42; Shaw v. 
Hunt, 861 F.Supp. at 430-31; Hays v. Louisiana, 839 
F.Supp. at 1194-95, 1202 n.46. However, regardless of 
how this legal issue is resolved, the State’s case neverthe­
less depends on a factual issue—whether the Eleventh 
District satisfies a “bizarreness” threshold. Given the fact­
intensive nature of the State’s disagreement with the Dis­
trict Court’s decision, it is important to first establish the 
appropriate standard of review.

This Court has made clear that the District Court’s 
findings of fact are reviewed under the “clearly erroneous” 
standard. This rule has been specifically held to include 
ultimate findings of fact in Voting Rights Act cases. As 
stated in Thornburg v. Gingles, 478 U.S. 30, 78 (1986):

“[G]ur several precedents . . . have treated the ulti­
mate finding of vote dilution as a question of fact 
subject to the clearly erroneous standard of Rule 
52(a). See, e.g., Rogers v. Lodge, 458 U.S. at 
622-627; City of Rome v. United States, 446 U.S. 
156, 183 (1980); White v. Register, 412 U.S., at 
765, 770.”

In White v. Register, 412 U.S. at 769-770, this Court 
employed a similar analysis, stating:

“[W]e are not inclined to overturn these findings, 
representing as they do abundant history and an in­
tensely local appraisal of the design and impact of 
the . . . district in the light of past and present 
reality, political and otherwise.”

“more intensive scrutiny” (State Brief, at 45), but provide almost 
no substantive analysis. At no point do the State Defendants pro­
pose a “compelilng governmental interest” to this Court, nor do 
they address the issue of “narrow tailoring.” Apparently, the 
State Defendants urge an intermediate standard of review, rather 
than strict scrutiny, perhaps taking their cue from Justice Souter’s 
dissent in Shaw.



Elsewhere in the Gingles opinion (478 U.S. at 79), 
the Court concluded:

“Thus, the application of the clearly erroneous 
standard to ultimate findings of vote dilution pre­
serves the benefit of the trial court’s particular fa­
miliarity with the indigenous political reality without 
endangering the rule of law.”

The same reasoning applies to whether a district’s lines 
are highly irregular and whether racial gerrymandering 
has occurred. The rationale for the deference to the fact­
finder is equally applicable in both types of cases. In each 
case, local district courts possess the knowledge and ex­
perience with the local jurisdiction at issue to make the 
factual determinations on which these cases must turn. 
See Wright v. Rockefeller.ao

The District Court here brought its considerable local 
knowledge to bear in this case, as evidenced by its ex­
haustive opinion. That knowledge is an indispensable in­
gredient to any sound judgment as to whether this district 
is characterized by such irregularity and so departed from 
Georgia’s traditional districting principles for racial rea­
sons that it constituted a suspect racial gerrymander 
which must stand the test of strict scrutiny.

Although the dissenting opinion focused exclusively on 
the factual issue of “bizarreness.” 3:1 it did not contend 30 31

31

30 The standard of review under the clearly erroneous standard 
is well settled. A finding is only clearly erroneous when “although 
there is evidence to support it, the reviewing court on the entire 
evidence is left with a definite and firm conviction that a mistake 
has been committed.” United States v. Gypsum.: Co., 333 U.S. 364, 
395 (1948). “In applying the clearly erroneous standard to the 
findings of a district court sitting without a jury, appellate courts 
must constantly have in mind that their function is not to decide 
factual issues de novo.” Zenith Radio Corp. v. Hazeltine Research, 
Inc., 395 U.S. 100, 123 (1969).

31 The dissenting judge considered “bizarreness” as an element 
of the Plaintiffs’ claim, barring any inquiry into legislative intent 
until the district was determined to be bizarre. The majority 
opinion positions “bizarreness” in the standing analysis, determin­
ing that in the absence of where a district does not “advertise”



32
that the majority opinion was “clearly erroneous” in any 
aspect. In fact, Circuit Judge Edmondson prefaced his 
dissent by “cheerfully admitting] that my colleagues may 
well be right about what is the correct result of this 
case.” J.S. App. at 92. With this preamble, he signaled 
to all readers that he had no cause to claim the ma­
jority’s factual findings should be reversed as “clearly 
erroneous.”

By Appellants’ failure to identify what, if any, factual 
findings of the District Court they contend are clearly 
erroneous, they impliedly accept what is abundantly clear 
from the record below—that all of the District Court’s 
findings are amply supported by the evidence presented 
at trial.

A. Objective Criteria to Govern Application of Shaw 
Already Exist

The State Defendant’s complain about the absence of 
“objective standards” with which to define a racial gerry­
mander. They seek more standards to help it better 
balance the demands of the Voting Rights Act, as en­
forced by the DOJ, with the constitutional rights of its 
citizens to be free of race based gerrymandering.®2 That 32

race-based line drawing, the harm referenced in Shaw is absent 
and citizens have no basis for suit. J.S. App. 30, 42 n.24. The 
District Court considered a district “bizarre” where, as here, it is 
not compact and its lines were “blatantly manipulated”. J.S. App. 
32-33 n.17. Plaintiffs do not believe a separate finding of “bizarre­
ness” is necessary either as an element of a claim or as part of 
standing. The fundamental issue is whether racial gerrymandering 
as defined in Shaw has occurred. The distinction, however, is more 
theoretical than real.

32 The State Defendants make this argument in a strained effort 
to involve the recent decision in Holder v. Hall, 62 U.S.L.W. 4728 
(1994). They argue the absence of “objective criteria” for defining 
racial gerrymandering somehow immunizes it from constitutional 
challenge. Once again, the confusion is traced to an attempt to 
employ the rationale of a vote dilution case to' a race discrimination 
case. In Holder, the Court could find “no principled reason” to 
pick betewen varying sizes of a county commission. This Court 
has already articulated its reasons for condemning the intentional



33
is “statespeak” for saying the DOJ’s administration of the 
Voting Rights Act in Georgia and throughout the South 
exceeded its statutory bounds. Appellants believe that, 
once the DOJ is returned to the oversight role that Con­
gress intended it serve under Section 5,33 the State will 
have ample “breathing room” between its obligations un­
der the Act and the constitutional rights of citizens as­
signed to racially gerrymandered districts.

The defendants involved in reapportionment—Speaker 
Murphy and Lt. Governor Howard—had little trouble 
identifying racial gerrymandering. It involved an overrid­
ing racial objective advanced by abandonment of tradi­
tional districting principles and the racial division of Geor­
gia’s cities. Georgia’s plight was not due to an unawareness 
of the fact it was racially gerymandering; it was borne of 
the unrelenting advocacy of the ACLU for a “Max- 
Black” approach to districting that the DOJ enforced via 
its Section 5 powers. Without Shaw v. Reno to warn 
Georgia there was a constitutional consequence to un­
restrained “Max-Black” gerrymandering, Georgia chose 
the sure road to DOJ preclearance and avoidance of judi­
cial redistricting under the pending malapportionment 
action of Jones v. Miller.
III. THE LEGISLATION ESTABLISHING THE ELEV­

ENTH DISTRICT IS SUBJECT TO STRICT SCRU­
TINY

In this case and in Hays, the DOJ offers a highly 
restrictive view of what triggers strict scrutiny of a racial 
gerrymander. It argues legislative intent should not be the 
determinant of whether strict scrutiny applies. Instead,

use of racial gerrymandering- (in the absence of facts that would 
satisfy the strict scrutiny such classifications must undergo) in 
Shaw.

83 The DOJ’s contention that it can essentially litigate theoretical 
Section 2 claims on the uneven playing field of a Section 5 review 
has little legal authority to support it. Georgia has never accepted 
this construction of Section 5. Georgia won the point before a 
three judge court in Georgia v. Reno, Civil Action No. 90-2065 
(D.D.C., Order of February 3, 1995).



34
it reads Shaw as mandating some type of “beauty con­
test” as a predicate to strict scrutiny.

The DOJ is mistaken. While it would be very difficult 
to even conceive of a congressional district that would be 
challenged (let alone subjected to strict scrutiny) without 
highly irregular features tied to race, it is the purposeful 
classification of citizens according to race to which the 
Equal Protection clause is directed. Shaw, 113 S.Ct. at 
2824. It is these classifications that “threaten to stigmatize 
individuals by reason of their membership in a racial group 
and to incite racial hostility.” Id. at 2824. It is the 
purpose to divide citizens according to race which de­
mands close judicial scrutiny. See Croson, 488 U.S. at 493.

A statute which draws “explicit racial distinctions” on 
its face will always be subject to strict scrutiny. How­
ever, merely because a statute is race-neutral on its face 
does not exempt it from strict scrutiny if it is, in fact, 
“unexplainable on grounds other than race.” Arlington 
Heights v. Metropolitan Housing Development Corp., 429 
U.S. 252, 266 (1977). Whether a facially race-neutral 
statute is “unexplainable on grounds other than race” is 
necessarily a fact-intensive inquiry. It is ultimately the 
legislative purpose which must be determined. The fact 
that the legislation at issue relates to redistricting does 
sion was “whether Appellants have sustained their burden 
not alter the essential inquiry. Indeed, in Wright v. 
Rockefeller, the question for decision was “whether Ap­
pellants have sustained their burden of proving that the 
boundaries of particular districts were purposefully drawn 
on racial lines.” 376 U.S. at 67 (Goldberg, J. dissenting).

Shaw should not be limited by the DOJ’s suggested 
reading that a district must meet some pre-determined 
level of overall “bizarreness” before being subjected to 
strict scrutiny. To the contrary, this Court indicated in 
Shaw that “a racial gerrymander, once established, should 
[not] receive less scrutiny under the Equal Protection 
clause than other state legislation classifying citizens by 
race.” Id. at 2826. As if to invoke the present case, 
the Court noted that proof of a racial gerrymander “some­



35
times will not be difficult at all.” Id. Two distinct 
scenarios were cited. One was the situation presented 
in Gomillion v. Lightfoot, where district lines were 
“so highly irregular” that they could not rationally 
be understood as anything other than an effort to 
segregate voters. The second scenario “would be a 
case in which a state concentrated a dispersed minority 
population in a single district by disregarding traditional 
districting principles such as compactness contiguity, and 
respect for political subdivisions.” Shaw, supra at 2826- 
27 (emphasis added). This language does not suggest 
some special geometric threshold for strict scrutiny 
whereby a district must maintain a particular level of 
visual “bizarreness” throughout. To Appellees, it suggests 
a Court deeply concerned, not about appearance per se, 
but purposeful race-based line drawing which balkanizes 
our electorate and reinforces “the perception that mem­
bers of the same racial group—regardless of their age, 
education, economic status, or the community in which 
they live—think alike, share the same political interests, 
and vote for the same candidates at the polls.” Id. at 
2827.

Under Arlington Heights and Hunter v. Underwood, 
A ll U.S. 222-228 (1985), once a racial classification is 
shown to have been a “substantial” or “motivating” factor 
behind an enactment, the burden then shifts to the state 
to demonstrate that the law would have been enacted 
without this factor. For practical reasons, the District 
Court here added the requirement that race be the “over­
riding” or “predominant” force determining the lines of 
the district. J.S. App. 36. The Court deemed this ele­
vated burden necessary in the redistricting context since 
race awareness will often impact district lines in light 
of the Voting Rights Act and the current attitude of the 
DOJ. J.S. App. 38.34 With this elevated standard, the

84 Plaintiffs appreciate the concerns of the District Court but 
do not believe it is necessary to depart from traditional equal 
protection analysis and the “substantial” or “motivating” test in 
the context of redistricting. “Properly applied, [the] distinction



36

Court made clear the legislature “may intentionally con­
sider race in redictricting—and even alter the occasional 
line in keeping with that consideration—without incur­
ring [strict scrutiny]. It is the abuse of that privilege, 
exposed to the world via perverse district shapes ‘unex­
plainable on grounds other than race’ that sparks further 
examination.” J.S. App. 39.

The District Court correctly emphasized that race need 
not be the sole motivation behind a redistricting plan 
before it is subjected to strict scrutiny. Such a standard 
is fundamentally inconsistent with Arlington Heights and 
Washington v. Davis, 426 U.S. 229 (1976). In redistrict­
ing, as in any other area of the law, race will almost 
never be literally the only factor which influences legis­
lation. The notion that an equal protection claim under 
Shaw cannot exist unless 100% of the district line is the 
product of racial gerrymandering would trivialize Shaw 
and immunize racial gerrymandering from established 
equal protection analysis contrary to the Shaw Court’s 
express pronouncement that racial gerrymandering, once 
established, should not receive less scrutiny under the 
Equal Protection clause than other state legislation classi­
fying citizens by race. Id. at 2826.* 35

between ‘race-conscious’ and ‘race-based’ districting should prevent 
legislatures from having to defend all districting plans under the 
strict scrutiny standard.” Shaw v. Hunt, 861 F. Supp. at 42. In 
the vast majority of cases, proof of the “requisite intent will be 
difficult indeed.” Id. at 433, n.20.

35 Arlington Heights severely undercut the DOJ’s position that 
only the district lines themselves can be examined in determining 
whether a district is subject to strict scrutiny. Arlington Heights 
calls for an “inquiry into such circumstantial and direct evidence 
of intent as may be available.” Id. at 266. In addition to examining 
impact, district courts are advised to examine the historical back­
ground of the decision, the specific sequence of events leading up 
to the challenged decision, unusual procedural or substantive de­
partures, legislative history and legislator testimony. Contrary to 
the DOJ’s representation, the District Court here was not left to 
rely on “after the fact testimony of some of the legislators who 
had been involved in the districting process” (DOJ Brief at 22) 
to ascertain legislative purpose. The Court relied primarily upon 
the District’s dramatically irregular configuration and the racial



37
The District Court’s unassailable findings that race 

dominated the formulation of the Eleventh District and 
that this caused a bizarre configuration “unexplainable” 
on grounds other than race (J.S. App. 67) renders fur­
ther discussion of applicable standards largely academic. 
If the Eleventh District is not subject to strict scrutiny 
under Shaw, it would be difficult to conceive of a district 
which is.3® It would simply be disingenuous to contend 
this district is not dramatically irregular in its shape, par­
ticularly if one understands Georgia’s geography, com­
pares it to decades of Georgia districting history, where 
compact districts had identifiable economic bases, and 
appreciates the predominant role of its 159 counties as 
the building blocks of its congressional districts. It would 
be equally disingenuous to deny that this dramatic irregu­
larity is the product of anything but race.

IV. THE ELEVENTH DISTRICT CANNOT SURVIVE 
STRICT SCRUTINY
A. Third Parties Cannot Supply Compelling Govern­

mental Interests Which The State Refuses To 
Acknowledge

The State Defendants make no offer to defend the 
Eleventh District once strict scrutiny applies.37 As a self­

divisions occasioned thereby. While legislators certainly provided 
compelling, uncontradicted testimony as to legislative intent, the 
DOJ’s own communications with the State and the ensuing legisla­
tive enactments speak volumes on the subject.

86 The State Defendants try to generate conflict between the 
District Court’s opinion and Voinivich v. Quitter, 113 S.Ct. 1149 
(1993) by overstating the District Court’s holding to be a “. . . 
rejection of all benign race-conscious redistricting. . .”. State 
Brief at p. 33. That is not a fair reading of the opinion. There 
is a crucial difference between race conscious districting that 
comports with traditional districting principles (e.g., respect for 
county boundaries in redistricting was constitutionally required, 
113 S.Ct. at 1152) and the racial gerrymandering confronting the 
Court in this case. However, no equal protection issue was raised 
in Voinivich and the Court expressed no view on how such a 
claim might be evaluated.” 113 S.C. at 1157.

37 The State Defendants have never asserted the Voting Rights 
Act as a compelling governmental interest. They did once send



38
appointed surrogate for the State, the DOJ proffers the 
Voting Rights Act and “eradicating the effects of past dis­
crimination” as compelling governmental interests justi­
fying the race-driven configuration of the Eleventh Dis­
trict. (DOJ Brief, p. 39). This proffer by the DOJ 
raises an important issue—may a third party articulate 
a compelling governmental interest in defense of the 
State’s legislative use of race classifications when the 
State specifically denies that the State considers such 
interest compelling and denies that it motivated the State 
to employ racial classifications?

The precedents of this Court have always called upon 
the State to speak for itself in asserting the basis for its 
actions. In Regents of University of California v. Bakke, 
438 U.S. 265, 306 (1978), the Court stated that “to 
justify the use of a suspect classification, a state must 
show that its purpose or intent is both constitutionally 
permissible and substantial.” (Emphasis added). In 
Kramer v. Union Free School District No. 15, 395 U.S. 
621, 626 (1969), the court stated that “[i]n determining 
whether state law violates the Equal Protection Clause, 
we must consider the facts and circumstances behind the 
law, the interest which the state claims to be protecting, 
and the interest of those who are disadvantaged by the 
classification.” (Emphasis added). In Croson, 488 U.S. 
at 493 (1989), the Court noted that the “purpose of

up the trial balloon of “proportionality” as a compelling govern­
mental interest. This was an obvious after the fact rationalization 
which the District Court flatly rejected. J.S. App. 54-55. On ap­
peal, they obliquely urge the Court to consider some intermediate 
standard of review. See footnote 29 supra. Justice O’Connor’s 
majority opinion in Croson speaks directly to the suggestion that 
some “intermediate” level of review be employed where so called 
benign discrimination” is challenged:

“Any watered down version of equal protection effectively as­
sures that race will always foe relevant in American life and that 
the ultimate goal of eliminating entirely from governmental deci­
sionmaking such irrelevant factors as . . . race will never be 
achieved.” 488 U.S. at 495 (quoting Wygant v. Bd, of Educ., 476 
U.S. 267, 320 (Stevens, J. dissenting).



39
strict scrutiny is to smoke out illegitimate uses of race 
by assuring that the legislative body is pursuing a goal 
important enough to warrant the use of a highly suspect 
tool.” (Emphasis added). All of these cases illustrate 
that it is a state’s responsibility to advance the interest it 
deems sufficiently “compelling” to justify employing sus­
pect classifications in legislative enactments.

This Court not only requires states to articulate a con­
stitutionally cognizable compelling governmental interest, 
but in the context of affirmative action insists the state 
justify its use of a racial classification before, rather than 
after, it deploys it. See Croson, 488 U.S. at 501; Bakke, 
438 U.S. at 310 (states must identify specific evidence of 
racial discrimination before utilizing racial classifications); 
Wygant v. Jackson Board of Education, 476 U.S. at 277 
(1986) (public employer must ensure that before it em­
barks on an affirmative action program, it has convincing 
evidence that remedial action is warranted). If post hoc 
rationalizations by a state are insufficient, surely post hoc 
rationalizations offered by third parties cannot pass 
muster. Herein, the evidence is unrefuted that the only 
“interest” driving the State prior to the passage of the 
1992 redistricting plan “was to pass a plan that the Jus­
tice Department would approve.” Tr. II at 66.

None of this was lost on the District Court. Its ob­
served that the “articulated ‘compelling’ justifications ap­
pear to be post hoc rationalizations”; nevertheless, the 
Court “addressjed] all possibilities” and correctly found 
them lacking. J.S. App. at 53.

B. The Lines of the Eleventh District Are Not Argu­
ably Necessary Under Section 5 Of The Voting 
Rights Act

One “compelling governmental interest” which the 
DOJ advances to justify its demand for three majority- 
minority districts in Georgia and the resulting mayhem 
on the Eleventh District is Section 5 of the VRA.

The District Court determined that the lines of the 
Eleventh District are not “reasonably necessary” under



40
Section 5. In so doing, it followed the “reasonably nec­
essary” standard referenced by this Court in Shaw. Id. 
at 2831. The DOJ concedes that Georgia’s prior sub­
missions were non-retrogressive under Beer v. United 
States, 425 U.S. 131 (1976). It attempts to fashion an 
argument under the “purpose” prong of Section 5.

The notion that either of Georgia’s first two submis­
sions in 1991-92 were enacted for the “purpose” of deny­
ing or abridging the right to vote of black citizens is 
almost surreal. In each of these submissions, the number 
of majority-minority districts in Georgia doubled in com­
parison to the 1982 plan, which was also precleared.38 
No evidence was offered at trial that the legislature, by 
creating an additional majority-minority district, sought 
to suppress the ability of African-Americans to participate 
in the electoral process. Thomas Armstrong, the DOJ 
attorney assigned to the Georgia review team, “could not 
recall seeing any evidence of discriminatory motives on 
the part of the Georgia Legislature. Tr. IV, at 145-50.” 
J.S. App. at 14.

Section 5 was enacted for the purpose of breaking the 
cycle of “unremitting and ingenious defiance” of the 
constitutional guarantees of non-discrimination in voting 
by covered states. See Katzenbach v. South Carolina, 
383 U.S. 301, 309 (1966). The Section 5 review process 
is not a sword designed to force states to maximize 
minority voting strength. Preclearance was never in­
tended to become a code word for proportional repre­
sentation of minorities. To the contrary, the Act spe­

38 The DOJ cites Bushbee v. Smith, 549 F. Supp. 494 (D.D.C. 
1982) for the proposition that Georgia enacted a redistricting plan 
in 1982 which was motivated by a discriminatory purpose. The 
district lines at issue in Busbee and in the case at bar are worlds 
apart. Busbee involved only a small portion of the lines pertaining 
to Atlanta’s Fifth District. No suggestion was made by the DOJ 
at that time that the failure to create even a single additional 
majority-minority district in the State outside metropolitan Atlanta 
evinced a discriminatory purpose on the part of the State. Ap­
parently, the DOJ’s definition of “purpose” under Section 5 has 
changed drastically since that time.



41
cifically disavows any such purpose. See 42 U.S.G. 
§ 1973(b). There is nothing in the “purpose” prong of 
Section 5 which mandates that a state rig together in 
an unprecedented manner distantly located black popu­
lation clusters while carefully avoiding white population 
in the process. The District Court has well documented 
the excesses engaged in by the Department of Justice, 
both in its misconstruction of its function in a Section 5 
review and its the documented de facto delegation of crit­
ical preclearance decisionmaking functions to the ACLU. 
The State strongly protested the unprecedented approach 
the DOJ took to redistricting. J.A. 108, 118. Its tradi­
tional districting principles were ignored, existing districts 
were ripped apart and scores of cities dissected just for 
their black populations. J.A. 128.

The DOJ’s approach can find legal footing only if 
“purpose” under Section 5 is defined to mean anything 
less than maximizing the number of majority-minority 
districts within a state. Such a grossly expansive defini­
tion has no arguable place in the law. Johnson v. De- 
Grandy, 114 S.Ct. 2647 (1994) (Kennedy, J. concur­
ring). Yet, this is precisely the operative definition the 
DOJ imposed on Georgia and asks this Court to sanction.

The DOJ would have this Court jettison the “reason­
ably necessary” standard used for the narrow tailoring 
analysis as referenced in Shaw v. Reno, 113 S.Ct. at 
2831, and followed by the District Court. J.S. App. 65. 
It contends that race-based districting is always narrowly 
tailored if the State has a “strong basis in evidence” for 
believing that it would not be able to prove the absence 
of a discriminatory purpose and that a letter from the 
DOJ declining to grant preclearance under Section 5 pro­
vides that “strong basis in evidence” unless its findings 
are “clearly insupportable.” DOJ Brief, at 31.

The DOJ’s argument is frightening one. It vaporizes 
the concept of “strong basis in evidence.” Under Section 
5, the DOJ is empowered to “interpose an objection” to 
a plan. It has no established fact-finding procedures, no



42
administrative hearing and no discernible standards for 
evaluating information. With its confidential informants, 
it largely operates in secret and goes to great effort to 
maintain that secrecy. See J.A. 34. The DOJ would, in 
effect, elevate itself to the role of final arbiter of what 
survives strict scrutiny, and hence, of what is constitu­
tional. Courts, under this approach, become largely a 
rubber stamp.

Leaving aside for a moment the serious legal flaws in 
such a position, the facts will not support the DOJ’s con­
tention. The State Defendants nowhere concede they 
could not have demonstrated an absence of discriminatory 
purpose in Georgia’s first two submissions. In their Juris­
dictional Statement (at p. 5), they provide their own 
explanation for caving in which flatly contradicts the 
DOJ:

Because of the great costs, the delays, and the un­
certainties of litigation, a majority of the legislature 
voted against pursuing a Section 5 preclearance ac­
tion in the District of Columbia District Court. It ap­
peared that such could not have been concluded in 
sufficient time to allow a legislatively enacted plan 
to go into effect for the 1992 elections. Hence, the 
failure to enact the plan now at issue would likely 
have put the State under a court-ordered plan for the 
1992 elections by default.

Even if the DOJ were somehow right as to the con­
stitutional significance of its rejection letters, any claim 
of a Section 5 “purpose” violation is “clearly insupport­
able.” While the DOJ works hard to downplay its pre- 
Shaw maximization policies and its goal of proportional 
representation before this Court, the record in this case is 
overwhelming. In practice, the DOJ seriously abused 
Section 5 to effectuate these policies. The District 
Court’s characterization of the Department’s conduct as 
“an embarrassment”, “a search for maximization by the 
crudest means”, and the pursuit of “maximization of the 
black vote, whatever the cost” (J.S. App. 27, 12-14 n. 4, 
28) are not only correct, but they are supported—in the



43
State Defendants’ own words—by “abundant evidence.” 
J.S. at 3. As the District Court found, these policies led 
the DOJ to search for black voters in a manner which 
“completely ignored legitimate non-racial interests.” J.S. 
App. 67. The District Court did not simply find that 
the requirements of the Voting Rights Act had been ex­
ceeded. It found the lines of the Eleventh District “un­
explainable as anything other than an effort to exclude 
white voters” and to include black ones. J.S. App. 67. 
It decried the “gulf” between the VRA and the enacted 
plan. Id. Thus, even by the DOJ’s own improper test, 
the Eleventh District cannot be justified on the basis of 
Section 5.

C. The Lines Of The Eleventh District Are Not Argu­
ably Necessary Under Section 2 Of The Voting 
Rights Act

In offering Section 2 as a justification for the Eleventh 
District, the DOJ again asserts a “compelling govern­
mental interest” which the State expressly disavows. See 
.State Defendants’ Trial Brief, at 30-31. Essentially, the 
DOJ argues that, even though the State did not appreci­
ate it then and does not contend it now, it had a “strong 
basis” in evidence for believing that the Eleventh District 
was necessary to avoid a Section 2 violation.

The legislation establishing the Eleventh District is not 
arguably narrowly tailored to further compliance with 
Section 2. This Court’s well established preconditions for 
a Section 2 claim in a districting case are explained in 
Thornburg v. Gingles, 478 U.S.~30, 50-51 (1986). A 
plaintiff must show the minority population is (1) suffi­
ciently numerous and compact to constitute a majority 
in a single-member district, (2) is politically cohesive, 
and (3) that whites vote as a block to defeat the mi­
nority’s preferred candidate. Only when a plaintiff estab­
lishes all of these preconditions must the Court determine 
whether, under the totality of the circumstances, minori­
ties have been denied an “equal opportunity” to “partici­
pate in the political process and to elect representatives 
of their choice.” Id. at 80.



44
The DOJ cannot get past even the first Gingles pre­

condition. The minority populations in DeKalb, Rich­
mond and Chatham Counties “are so far apart that the 
DOJ’s insistence that they are ‘compact’ renders the term 
meaningless.” J.S. App. at 80. In its quest to implement 
a Max-Black plan and thereby achieve “proportionality 
plus”,39 the DOJ was simply oblivious to the concept of 
compactness in the preclearance process.

Although unnecessary to the disposition of the DOJ’s 
argument, the District Court did not limit its analysis to 
the first Gingles precondition. It assessed all of them. 
With respect to voting patterns among blacks and whites, 
the Court found “a significant degree of cross-over voting 
in Georgia and the Eleventh District, with white voters 
slightly more willing to vote for black candidates than 
black voters for white candidates.” J.S. App. at 83. The 
Court further found that percentages of black voters in 
the Eleventh District are far more than needed to afford 
blacks within the district an equal opportunity to elect 
a candidate of choice. J.S. App. at 88.40

Eleventh District election results verify the District 
Court’s conclusions. In the 1992 Democratic primary,

89 Measured by VAP, blacks are in fact overrepresented from 
the standpoint of proportionality by 2.68%. In Growe v. Emison, 
113 S.Ct. 1075, 1083 n.4 (1993), this Court noted that Gingles 
repeatedly refers to VAP, not population and that other courts 
have likewise referred to VAP in Section 2 cases.

40 The Court observed that under the analysis of Dr. Katz, the 
expert retained by the State Defendants, a black candidate has 
roughly a 73% probability of winning an election in the Eleventh 
District, and that this number would presumably be higher if the 
assessment were made on the basis of VAP. J.S. App. 88. Plain­
tiffs’ experts, Dr. Weber, concluded on the basis of extensive elec­
tion analysis that the Eleventh District in its present configuration 
is overly safe in the general, in the Democratic primary, and in 
the Democrtaic run-off elections from the standpoint of assuring 
the election of a candidate of choice of African-American voters. 
PL Ex. 82 at 32. His reconstituted election analysis of precincts 
within the Eleventh District confirms that black candidates received 
an average of 65.7% of the vote in ten elections. J.S. App. at 86; 
PL Ex. 84F.



45

the four African-American candidates collectively re­
ceived 74.8% of the vote. In the 1992 run-off, the black 
candidate received 56.4% of the vote. In the general 
election, that candidate received 73.1% of the vote. PI. 
Ex. 84. In 1994, there was no Democratic opposition and 
another romp in the general election.

The conclusion that the Eleventh District is overly safe 
from the standpoint of assuring the election of an African- 
American is bolstered by the electoral history in the other 
two majority-minority districts after the 1992 plan was 
enacted. In both the 52.33% black VAP Second District 
and the 57.46% black VAP Fifth District, African- 
Americans have prevailed in each and every congressional 
contest in which an African American has participated.

The Eleventh District, with its 60.36% black VAP, 
represents nothing more than an arbitrary and needless 
application of the DOJ’s now-infamous 65% rule, result­
ing in pointless electoral overkill.41 No law dictated the 
bizarre contortions of geography necessary to gamer the 
talismanic 65% black population quota the DOJ/ACLU 
established as the population benchmark. Election of a 
black candidate became a certainty in this district.

Whatever motivations drove the DOJ and, henceforth 
Georgia’s 1990 redistricting experience,42 the results un­

41 See Brace, et al., “Minority Voting Equality: The 65% Rule 
in Theory and Practice,” 10 Law & Policy 1 (1988) (concluding 
that such a percentage makes election of a black candidate a “cer­
tainty.”). Brace concluded:

“. . . [A.]s blacks are catching up and even surpassing 
whites in their levels of registration and turnout . . . use 
of the 65 percent figure may have the same effect as the
classic gerrymander . . . .”

42 As to the DOJ’s possible motive, see Aleinikoff, et al., “Race 
and Redistricting: Drawing Constitutional Lines After Shaw v. 
Reno’’, 92 Mich. L. Rev. 588, 589, n.8 (1993). See also PI .Ex. 
70-75, 162. Thanks to the DOJ’s relocation of the State’s minority 
population into separate districts, and the resulting destruction 
of biracial coalitions that elected democrats, Republican’s in­
creased their number in the delegation from one in 1990 to seven 
as of the last election. These results confirm the thesis many



46
derscore Justice Brennan’s warning in United Jewish
Organizations v. Carey, 430 U.S. 144, 171 (1971)43 
regarding the dangers of allowing race to drive the crea­
tion of voting districts. The Georgia experience with 
linking its widely dispersed black constituents into separ­
ate districts demonstrates how the oversimplistic theory 
that more majority black districts equals more black 
political power can be contorted into nothing more than 
a stratagem to destroy existing biracial coalitions that are 
the prototypes for how society must function politically 
if we are to achieve color blindness in the context of 
governmental action.

While the DOJ is free to disagree with the District 
Court’s factual conclusions, it has not shown them to 
be clearly erroneous. Given the Court’s meticulous fact­
ual findings and analysis, no legitimate claim can be 
made that the legislation creating the Eleventh District 
is narrowly tailored to further any interest under Sec­
tion 2.

D. The Desire To Redress The Unquantified Effects 
of Historical Discrimination Is Not A Compelling 
State Interest

The alternative compelling state interest offered by the 
DOJ is the remediation of the effects of historical dis­
crimination.44 The notion that a segregated pass will al­

commentators suggested well before the 1990’s round of redistrict­
ing. See, e.g., Brace, Grofman, Handley, “Does Redistricting 
Aimed to Help Black Necessarily Help Republicans?”, 49 Journal 
of Politics 69 (1987).

43 “An effort to achieve proportional representation . . . might be 
aimed at aiding a group’s participation in the political process . . . 
or, on the other hand, might be a ‘contrivance to segregate’ the 
group . . . thereby frustrating its potentially successful efforts at 
coalition building across racial lines.” Id. at 172-173.

44 It is characterized as “eradicating the effects of past dicrimi­
nation which have resulted in racially polarized voting and a 
diminution of the opportunities of minority voters to elect candi­
dates of their choice.” DOJ Brief, at 39. This interest ultimately 
merges with an assertedly compelling interest in “proportional 
representation.” Id. a t 40.



47
ways justify manipulation of a state’s voting districts to 
fashion artificial black majorities through gerrymander­
ing district lines finds no support in the law.45 46

The District Court flatly rejected this argument. 
Apart from the fact Georgia never articulated any such 
interest during redistricting, the District Court held that 
a compelling governmental interest in remedying prior 
discriminatory voting practices does not exist independ­
ent of the Voting Rights Act. J.S. App. 56-57. It rea­
soned that the Act is itself an “expansive remedial 
scheme imposing federal authority over much of the coun­
try’s state and local voting systems.” J.S. App. 57. Its 
reach is so pervasive that, if any state’s remedial program 
“exceeds the requirement sof the VRA, the separate in­
terest in further increasing minority voting strength is no 
longer compelling.” Id. at 57. The District Court’s 
analysis is correct.

Racial classifications that work to guarantee public 
benefits to persons based on the color of their skin have 
no place in this society unless they are temporary remedial 
measures that specifically redress the quantified damage 
the discrimination has caused. Racial classifications that 
define the boundaries of voting districts, where those 
boundaries are aberrational and not required by the Vot­
ing Rights Act, are incapable of meeting the constitu­
tional test for the remedial use of what is, in its essence, 
racial discrimination. Once gerrymandered districts are 
in place, they are institutionalized through the nonretro­
gression principle of Section 5. Considerations such as 
incumbency protection and respect for the cores and 
boundaries of existing districts work to cement the gerry­
mander into the social and political foundations of the 
afflicted state, contrary to this Court’s long standing man­
date that such remedial racial classifications be tempo­
rary in nature.48

45 Mr. Chief Justice Rehnquist made the point in his dissenting 
opinion in Brooks v. Mississippi, 469 U.S. 1002, 1003 (1984).

46 The stage whisper pervading the Intervenors’ briefs is that 
the South, Georgia included, is still in need of “reconstruction.”



48
Historical discrimination cannot be recognized as a 

“compelling states interest” in this case. It is undisputed 
that “the General Asembly never articulated such lofty 
goals during the 1990-1992 redistricting” process. J.S. 
App. 56. There is not one whit of evidence to suggest 
that the Eleventh District was “compelled” by anything 
other than the DOJ’s commands. Tr. II, 73. Georgia’s 
first submission to the DOJ—itself a product of the DOJ’s 
advance warning as to how vigorously the VRA was 
going to be “enforced”—provides some idea of what 
Georgia sought to accomplish in the way of “eradicating 
the effects of past discrimination.” It is vastly different 
from the current plan, and was so perceived at the time. 
P.I. Tr. 107; Tr. II, 69.47

Yet, the State’s own expert witness, Lisa Handley, has done ex­
tensive research into the question of black representation in the 
South and the factors that impact it. See Grofman and Handley, 
“Black Representation Making Sense of Electoral Geography at 
Different Levels of Government”, 2 Legislative Studies Quarterly, 
XIV, 265 (1989). She concluded that . . differences in geo­
graphic dispersion among southern and non-southern blacks . . . 
account [s] almost completely for the present-day pattern of dif­
ferences in black Congressional representation.” Id. at 269 (em­
phasis added). The study categorically “. . . ruled out . . . dif­
ferences in levels of Southern and non-Southern racism or in 
levels of black electoral participation in the South and the non- 
South. The study’s conclusion was “. . . once we control for urban 
concentrations of black large enough to form a majority of the 
constituency in a Congressional district, differences between the 
South and non-South in the degree of black Congressional rep­
resentation effectively vanish.” Id. at 269.

47 The State Defendants argue that “the final plan . . .  is funda­
mentally like the initial plan.” State Brief, at 49. This is a 
startling assertion none of the people who participated in the re- 
apportionment process agreed with. The initial plan created two 
majority-minority districts. The Eleventh combined black voters 
in Macon with black voters in DeKalb County and Augusta. Macon 
is approximately 90 miles away from Atlanta. Savannah is ap­
proximately 260 miles away. Moreover, ferreting out black voters 
in Macon and connecting them, to the Second District required out­
rageous gerrymandering. Georgia’s Attorney General surely did 
not see the initial and final plans as remotely similar, bitterly com­
plaining to the DOJ that these “extension [s] . . with all of the



49
Georgia’s 1990 Congressional redistricting experience 

was a case in point for the fact that the wide dispersion 
of Georgia’s black population provided an insurmountable 
constitutional hurdle to the DOJ’s quest for two more 
majority black districts. For the DOT, the issue was not 
must we maximize, or even should we maximize. Instead, 
the test became could we maximize. Rather than accept 
the demographics as they existed, tecnology made maxi­
mization possible through cartographical gymnastics con­
ceivable only in cyberspace.

This Court has not specifically addressed the question 
of whether a state has a compelling governmental interest 
to engage in race-based redistricting beyond what is rea­
sonably necessary under the Voting Rights Act.48 How­
ever, the interest being advanced here is nothing less than 
a call for proportional representation, as nothing else is 
left apart from the Voting Rights Act. The DOJ con­
cedes as much. DOJ Brief at 40. Such a compelling gov­
ernmental interest is unthinkable. The idea of designat­
ing congressional seats by race would “tend to entrench 
the very practices and stereotypes the Equal Protection 
Clause is set against.” Johnson v. DeGrandy, 114 U.S. * 45

necessary attendant changes, violate all reasonable standards of 
compactness and contiguity.” J.A. 108.118.

45 United Jewish Organizations v. Carey, 430 U.S. 144 (1977) 
was decided prior to the 1982 amendments, to the VRA which 
incorporated a “results” test into Section 2. In UJO, three Jus­
tices appeared to recognize a state interest in minimizing the con­
sequences of racial bloc voting apart from the VRA. Shaw, supra, 
at 2832. In the context of single-member districting, these three 
Justices expressly limited their approval of race-based line draw­
ing to those circumstances where the state employed “sound dis­
tricting principles such as compactness” and where members of 
the racial minority are “sufficiently numerous and whose residen­
tial patterns afford the opportunity of creating districts in which 
they will be in the majority.” Id. at 168. Thus, even before the 
analytically distinct claim in Shaw was recognized, the members of 
the Court were mindful of the abuses that lie ahead if a state’s 
ability to “remediate” were left unbounded. See also, UJO, supra, 
at 171 (Brennan, J., concurring in part). They probably did not 
foresee the extremes technology would one day make possible.



50
at 2666 (Kennedy, J., concurring). “If efforts to require 
proportional representation of minorities in democratic 
institutions are not stopped with clarity and force, they 
will divide this country into patchwork of racial provinces, 
and ensure that elected officials represent races before 
they represent citizens.” J.S. App. 71, citing Holder v. 
Hall, 114 S.Ct. 2598-99 (1994). This cannot become
the law.

CONCLUSION

The racial gerrymander that is the soul of the Eleventh 
District cannot be squared with the Fourteenth Amend­
ment of the United States Constitution. For that reason, 
the judgment below should be affirmed.

Respectfully submitted,

March, 1995

A. Lee P arks 
Counsel of Record 

Larry H. Chesin  
K irwan , Goger, Chesin  

& P arks, P.C.
2600 The Grand 
74 Fourteenth Street 
Atlanta, Georgia 30309 
(404) 873-8000 
Counsel for Appellees