Voinovich v. Quilter Brief Amici Curiae in Support of Appellees

    No. 91-1818

In The

Jkiptemc Court of t|}t Bmtefe States!
October Term , 1992

George Y. Voingvich, ei at.,
Appellants,

v.
Barney Quilter, et al.

Appellees.

On Appeal from the United States District 
Court for the Northern District of Ohio

BRIEF AMICI CURIAE IN SUPPORT OF APPELLEES 
OF THE NAACP LEGAL DEFENSE AND 

EDUCATIONAL FUND, INC., THE MEXICAN AMERICAN 
LEGAL DEFENSE AND EDUCATIONAL FUND, THE 

NATIONAL ASIAN PACIFIC AMERICAN LEGAL 
CONSORTIUM, THE LAWYERS’ COMMITTEE FOR 
CIVIL RIGHTS UNDER LAW, AND THE PUERTO 

RICAN LEGAL DEFENSE AND EDUCATION FUND, INC.

C. Lani Guinier 
University of Pennsylvania 
Law School 
3400 Chestnut Street 
Philadelphia, PA 13104 
(215) 838-7032

Pamela S. Karlan 
Yale Law School 
P.O. Box 401A Yale Station 
New Haven, CT 06520 
(203) 432-1620

Julius L. Chambers 
’Charles Stephen Ralston 
NAACP Legal Defense and 
Educational Fund, Inc.
99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 219-1900

* Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



TABLE OF CONTENTS

TABLE OF CONTENTS .............................................  i

TABLE OF AUTHORITIES .........    iii

INTEREST OF AMICI C U R IA E ............................................  1

Summary of Ar g u m e n t ...........................................  4

Argument ................................................................... 6
I. The Challenged Plan violated

THE FOURTEENTH AMENDMENT’S
Requirement of One-Person,
One-Vo t e .............................................  6

A. The Analytic Framework for
E va lu a tin g  C laim s o f  
Quantitative Vote Dilution . . . .  7

1. Proof of a Prima Facie
Case .................................  7

2. Identification of a
Serious State Interest 
S e r v e d  by  t h e  
Deviation ........................ 8

3. Proof of a Close "Fit"
Between Deviation and 
P olicy ...............................  9

B. The Failure of the Challenged
P la n ............................................  10



11

II The District Court’s Analysis 
of the Claim of Racial Vote 
Dilution Was Fatally Flawed . . 12

A. The Voting Rights Act Did Not 
Require the Apportionment 
Board to Use a Particular 
Analytic Framework as a 
P r e r e q u i s i t e  f o r
Reapportionment........................ 14

B. The District Court Itself Failed 
to Comply With Section 2 ’s 
Requirements...............................  17

C. The District Court’s Holding 
on P la in tiffs’ Fifteenth  
Am endm ent Claim was 
Unsupport able  ................. 21

Conclusion 23



Ill

TABLE OF AUTHORITIES

Cases: Pages:

Abate v. Mundt, 403 U.S. 182 (1971)...................  8, 11

Brown v. Thompson, 462 U.S. 835 (1983).........  4, 7-12

Chapman v. Meier, 420 U.S. 1 (1975) ........................9

Chisom v. Roemer, 111 S.Ct. 2354 (1991)................... 2

City of Lockhart v. United States, 460 U.S. 125 (1983) 2

City of Mobile v. Bolden, 446 U.S. 55 (1980) .......... 19

Clark v. Roemer, 111 S.Ct. 2096 (1991) ....................... 3

Connor v. Finch, 401 U.S. 407 (1977)........................ 13

Connor v. Finch, 431 U.S. 407 (1977).......................... 3

Gaffney v. Cummings, 412 U.S. 735 (1973) . . .  7, 15, 16

Garza v. County of Los Angeles, 756 F. Supp. 1298
(C.D. Cal.), aff’d, 918 F.2d 763 (9th Cir. 1990),
cert, denied, 498 U .S .__ , 111 S.Ct. 681, 112
L.Ed.2d 673 (1 991 )................................................ 2

Gingles v. Edmisten, 590 F.Supp. 345 (E.D.N.C. 1984), 
aff’d 478 U.S. 30 (1986)............................  19, 20

Gomillion v. Lightfoot, 364 U.S. 339 (1960) ............  22

Hastert v. State Board of Elections, 777 F. Supp. 634
(N.D. 111. 1991)....................................................... 2



IV

Pages:

Houston Lawyers Ass’n v. Attorney General of Texas,
111 S.Ct. 2376 (1991) .........................................2

Jeffers v. Clinton, 730 F. Supp. 196 (E.D. Ark. 1989),
summarily aff’d, 111 S.Ct. 662 (1991) ............  19

Kilgarlin v. Hill, 386 U.S. 120 (1967) .......................... 9

Mahan v. Howell, 410 U.S. 315 (1973)...................  8-11

NAACP v. Button, 371 U.S. 415 (1963) ................... . 2

Nevitt v. Sides, 571 F.2d 209 (5th Cir. 1978).............. 6

Reynolds v. Sims, 377 U.S. 533 (1964) . . 4, 6-8, 11, 15

Rogers v. Lodge, 458 U.S. 613 (1982)................. 18, 22

Smith v. Clinton, 488 U.S. 988 (1988).......................... 3

Thornburg v. Gingles, 478 U.S. 30 (1986)......... passim

United Jewish Organizations v. Carey, 430 U.S. 144
(1977) ............................................................ 2, 15

Voinovich v. Ferguson, 586 N.E.2d 1020, (Ohio 1992) 12

Washington v. Yakima Indian Nation, 439 U.S. 463
(1979) ................................................................... 4

White v. Weiser, 412 U.S. 783 (1973)........................ 13

Wilson v. Eu, 823 P.2d 545 (Cal. 1992) ......................2



Pages:

Statutes: Pages:

Ohio Const, art. XI, § 9 ........................................ .. . 10

Voting Rights Act of 1965 ........................ 4-6, 14-17, 20

Other Authorities: Pages:

Daniel R. Ortiz, Federalism, Reapportionment, and 
Incumbency: Leading the Legislature to Police 
Itself, 4 J.L. & Pol. 653 (1 9 8 8 ).......................  13

S. Rep. No. 97-417 (1982)........................................ 16-20

V



N o. 91-1618

In The

Supreme Court of tfje Umteb States;
October Term, 1992

George V. Voinovich, et al.,
Appellants,

v.

Barney Quilter, et al.
Appellees

On Appeal from the United States District Court for 
the Northern District of Ohio

BRIEF AMICI CURIAE IN SUPPORT OF APPELLEES OF 
THE NAACP LEGAL DEFENSE AND EDUCATIONAL 

FUND, INC., THE MEXICAN AMERICAN LEGAL 
DEFENSE AND EDUCATIONAL FUND, THE NATIONAL 

ASIAN PACIFIC AMERICAN LEGAL CONSORTIUM, THE 
LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER 

LAW, AND THE PUERTO RICAN LEGAL DEFENSE AND 
EDUCATION FUND, INC.

Interest of Amici Curiae*

The NAlACP Legal Defense and Educational Fund, Inc. 
("the Fund") is a non-profit corporation that was

’ Letters consenting to the filing of this brief have been filed 
with the Clerk of Court.



2

established for the purpose of assisting black citizens in 
securing the constitutional and civil rights. This Court has 
noted the Fund’s "reputation for expertness in presenting 
and arguing the difficult questions of law that frequently 
arise in civil rights litigation." NAACP v. Button, 371 U.S. 
415, 422 (1963). The Fund has participated in many of 
the significant constitutional and statutory voting rights 
cases in this Court. See, e.g., Houston Lawyers Ass’n v. 
Attorney General of Texas, 111 S.Ct. 2376 (1991); Chisom 
v. Roemer, 111 S.Ct. 2354 (1991); Thornburg v. Gingles, 
478 U.S. 30 (1986); United Jewish Organizations v. Carey, 
430 U.S. 144 (1977).

The Mexican American Legal Defense and 
Educational Fund ("MALDEF") is a non-profit national 
civil rights organization headquartered in Los Angeles. 
Its principal objective is to secure, through litigation and 
education, the civil rights of Hispanics living in the United 
States. Because of the importance of the fundamental 
right to vote, MALDEF has represented Hispanic voters 
in numerous voting rights cases, has frequently appeared 
before this Court in such cases, see, e.g, City of Lockhan 
v. United States, 460 U.S. 125 (1983), has challenged the 
redistricting of the most populous local jurisdiction in the 
country, see Garza v. County of Los Angeles, 756 F. Supp. 
1298 (C.D. Cal.), aff’d, 918 F.2d 763 (9th Cir. 1990), cert.
denied, 498 U.S. ___, 111 S.Ct. 681, 112 L.Ed.2d 673
(1991), and has been intensely involved in redistricting 
advocacy following the 1990 census, see, e.g, Hasten v. 
State Board of Elections, 111 F. Supp. 634 (N.D. 111.
1991) (three-judge court); Wilson v. Eu, 823 P.2d 545 (Cal.
1992) .

The National Asian Pacific American Legal 
Consortium ("NALPAC") is a nonprofit organization 
whose mission is to advance the legal and civil rights of



3

Asian Pacific Americans through a national collaborative 
structure that pursues litigation, advocacy, education, and 
public policy development. The NALPAC is composed of 
three civil rights organizations that have advocated for the 
voting rights of Asian Pacific Americans: the Asian 
American Legal Defense and Education Fund (New 
York)s, the Asian Law Caucus, Inc. (San Francisco), and 
the Asian Pacific America Legal Center of Southern 
California (Los Angeles). All three members of the 
NALPAC have promoted the political empowerment of 
Asian Pacific Americans through litigation, legislative 
advocacy, and participation in state and local redistricting 
efforts.

The Lawyers’ Committee for Civil Rights Under Law 
was organized in 1963 at the request of the President of 
the United States to involve private attorneys throughout 
the country in the national effort to assure civil rights to 
all Americans. Protection of the voting rights of citizens 
is an important part of the Committee’s work. The 
Lawyers’ Committee has represented black citizens in 
reapportionment before this Court in several cases 
including Connor v. Finch, 431 U.S. 407 (1977), and Smith 
v. Clinton, 488 U.S. 988 (1988), and has appeared in 
numerous other significant voting rights cases in this 
Court. See, e.g., Clark v. Roemer, 111 S.Ct. 2096 (1991).

The Puerto Rican Legal Defense and Education 
Fund, Inc. ("PRLDEF") is a national civil rights 
organization founded in 1972 to protect the civil rights of 
Puerto Ricans and other Latinos, and to ensure their 
equal protection under the law. Since its inception, 
PRLDEF has worked to politically empower the Puerto 
Rican and Latino communities. Barriers to Latino 
political participation have been lifted, and voting rights 
violations have been successfully challenged by PRLDEF



4

in the courts and before the United States Department of 
Justice. PRLDEF is currently working to ensure an equal 
opportunity for Puerto Ricans and other Latinos in the 
redistricting process, which is, and has been, occurring 
throughout the country as a consequence of the decennial 
census.

Su m m a r y  o f  a r g u m e n t

The district court’s opinions in this case 
fundamentally misunderstand the Voting Rights Act of 
1965 and the Fifteenth Amendment. Reapportionment is 
an inherently political process, and this Court has 
authorized judicial intervention only when the process 
results in a plan that violates a federal constitutional or 
statutory provision.

Nonetheless, the judgment below should be affirmed 
because the challenged plan violated the principles of 
equipopulous districting laid out by this Court in Reynolds 
v. Sims, 377 U.S. 533 (1964), and its progeny.1 Once a 
constitutionally significant deviation in population among 
districts has been shown, the State bears the burden of 
justifying the deviation. In challenges to state legislative 
apportionments, this burden is triggered by a total 
population deviation of more than ten percent. Brown v. 
Thompson, 462 U.S. 835 (1983). In this case, it is

1 Under Washington v. Yakima Indian Nation, 439 U.S. 463, 476 
n. 20 (1979), appellees, and thus amici supporting them, can defend 
the judgment "on any ground properly raised below, whether or not 
that ground was relied upon, rejected, or even considered by the 
District Court ...." We urge the Court to affirm solely on the narrow, 
albeit constitutional ground, that appellants failed to meet their 
burden of proof with regard to the one-person, one-vote issue.



5

undisputed that the challenged plan had a deviation of 
nearly thirteen percent. Nonetheless, appellants 
[hereafter the Apportionment Board] provided no 
evidence to substantiate their claim that the deviation was 
justifiable. In fact, at least a portion of the deviation was 
on its face unrelated to the professed state policy. Since 
the Apportionment Board failed to meet its burden of 
justifying an otherwise-unconstitutional deviation, the 
challenged plan must be invalidated.

But while the District Court correctly held that the 
Plan violated the Fourteenth Amendment on one-person, 
one-vote grounds, the remainder of its analysis was 
seriously flawed. To ensure that judicial invalidation of a 
plan developed and adopted by a state’s political branches 
is warranted, Congress and this Court have required 
district courts to engage in an intensely local appraisal of 
the design and impact of a challenged plan, and to make 
detailed findings of fact. Thornburg v. Gingles and the 
Senate Report accompanying the 1982 amendments to the 
Voting Rights Act delineate a range of relevant factors 
for courts to consider.

But because state political entities, unlike federal 
courts, have inherent authority to engage in 
reapportionment, they are simply not subject to the same 
procedural and factfinding constraints. States are free to 
devise a variety of reapportionment processes and to 
select from among a virtually infinite array of 
constitutionally and statutorily acceptable plans.

In this case, the district court turned these well- 
developed principles upside down. It required state 
political actors to follow the Gmgte-Senate Report 
framework as a prerequisite to adopting a plan but it 
completely disregarded the framework as a prerequisite to



6

its own action in judicially invalidating the plan. The 
court below struck down Ohio’s reapportionment plan 
[hereafter "the Plan"] without identifying any facts that 
would justify finding either a constitutional or a statutory 
violation. Because the district court never found that 
plaintiffs would suffer any cognizable injury as a result of 
the challenged plan — indeed, plaintiffs’ theory of the case 
was self-contradictory — it erred in striking down the plan 
as violative of the Voting Rights Act. Moreover, the 
district court’s treatment of the Fifteenth Amendment 
issue was shockingly offhanded: it simply asserted, without 
any discussion of underlying facts, that the plan was 
intentionally discriminatory.

A r g u m e n t

I. T h e  C h a l l e n g e d  P l a n  V io l a t e d  t h e  
F o u r t e e n t h  A m e n d m e n t ’s R e q u ir e m e n t  o f  
O n e -P e r s o n , O n e -V o t e

The central command of the equal protection clause 
with respect to state legislative apportionment is clear: the 
"basic constitutional standard" of one-person, one-vote 
requires a State to "make an honest and good faith effort 
to construct districts, in both houses of its legislature, as 
nearly of equal population as is practicable." Reynolds v. 
Sims, 377 U.S. 533, 568, 577 (1964). If districts are 
malapportioned, the ballots cast by voters in heavily 
populated districts will be devalued relative to the votes 
cast by individuals in less-populated districts. This form 
of vote dilution is characterized as quantitative because it 
is based on mathematical comparisons of various district 
sizes. Nevitt v. Sides, 571 F.2d 209, 215 (5th Cir. 1978).



7

In response to the two -post-Reynolds rounds of 
reapportionment activity, this Court has set out a clear 
analytic framework for assessing claims of quantitative 
vote dilution. In this case, application of the framework 
shows that the challenged plan failed to pass muster 
under the equal protection clause.

A. The Analytic Framework for Evaluating Claims of 
Quantitative Vote Dilution

Because the right to vote is so fundamental to the 
governance of a democratic society, "any alleged 
infringement ... must be carefully and meticulously 
scrutinized." Reynolds, 377 U.S. at 562. Accordingly, 
once a plaintiff has made a prima facie showing of 
constitutionally significant population deviation, the State 
bears a heavy justificatory burden. This Court’s decisions 
provide a three-step process for assessing this question.

1. Proof o f a Prima Facie Case

The first step is to ask whether there is a 
constitutionally significant deviation in population among 
districts. In the context of state legislative 
reapportionment, this Court has squarely held that a total 
deviation of ten percent establishes a prima facie case. 
See Brown v. Thompson, 462 U.S. 835, 843 (1983); White 
v. Regester, 412 U.S. 755, 764 (1973). The plaintiffs bear 
the burden of proof on this issue, and if they fail to satisfy 
this "threshold requirement," their claim must be 
dismissed. See id. (deviation of 9.9% fails to meet 
threshold); Gaffney v. Cummings, 412 U.S. 735, 750-51 
(1973) (deviation of 7.83% fails to meet threshold).



8

Once plaintiffs have established a prima facie case, 
however, the burden shifts: Constitutionally significant 
deviations "must be justified by the State." Brown v. 
Thompson, 462 U.S. at 843. If the State fails to provide 
a sufficient justification, then the challenged plan must be 
invalidated.

2. Identification of a Serious State Interest 
Served by the Deviation

The second step of the process asks whether the 
challenged plan furthers a rational, legitimate state policy. 
See, e.g., Brown v. Thompson, 462 U.S. at 843-44; Mahan 
v. Howell, 410 U.S. 315, 324-26 (1973); Abate v. Mundt, 
403 U.S. 182, 185-86 (-1971); Reynolds, 377 U.S. at 577-81. 
Here, the State bears the burden of proof. And it is not 
enough simply to identify a potentially legitimate policy. 
Rather, the State must show why its "particular 
circumstances and needs," Abate v. Mundt, 403 U.S. at 
185, justify more than the constitutionally de minimis 
variations already accounted for by the ten percent 
threshold.

That this second step requires an intensely local 
appraisal of the basis for the deviation can be seen from 
this Court’s painstaking discussion of the particular 
governmental schemes at issue in previous one-person, 
one-vote cases. Although the Court has stated that 
preservation of subdivision boundaries may allow some 
deviation, see, e.g, Brown v. Thompson, 462 U.S. at 843- 
44; Mahan v. Howell, 410 U.S. at 325-27; Reynolds, 377 
U.S. at 580-81, it has been equally clear that prior cases 
provide no blanket license for departures from 
equipopulous districting. In Abate v. Mundt, for example, 
the Court emphasized the fact that the same individuals 
occupied the governing positions both in the county



9

legislature and on the boards of supervisors of the 
constituent political subdivisions to justify an 11.9 percent 
total deviation that it would otherwise have been "hesitant 
to accept Id. at 186. Similarly, in Mahan v. Howell, 
the Court pointed to the distinctive role of the Virginia 
General Assembly in enacting local legislation as a reason 
for upholding a plan whose 16.4 percent total deviation 
came close to "approach[ing] tolerable limits," 410 U.S. at 
329. Finally, in Brown v. Thompson, the Court found a 
policy of giving each county its own representative had 
"particular force, given the peculiar size and population of 
the State [of Wyoming] and the nature of its 
governmental structure." 462 U.S. at 844. Of special 
significance to the present case, some Wyoming counties 
were so much smaller than an ideal district that their 
interests as counties would be totally submerged if they 
were combined with other counties to form equipopulous 
districts. See id. at 841 n. 5. In short, in each case, the 
Court has required a showing that the articulated policy 
was rational and legitimate in light of the State’s 
particular governmental structure.

3. Proof of a Close "Fit" Between Deviation and 
Policy

The third step requires the State to show a close 
degree of "fit" between the actual deviations created by 
the challenged plan and the permissible state policy. It 
must show that the deviations incurred under its plan are 
necessary to the achievement of that policy. Compare, e.g., 
Mahan v. Howell, 410 U.S. at 326 (approving plan because 
it "produces the minimum deviation above and below the 
norm" attainable), with Chapman v. Meier, 420 U.S. 1, 25 
(1975) (invalidating plan, despite legitimacy of state 
policy, because it was possible to achieve policy with plan 
using a smaller deviation), and Kilgarlin v. Hill, 386 U.S.



10

120, 124 (1967) (per curiam) (same). If alternative plans 
could achieve the State’s goal while more closely 
complying with one-person, one-vote, then the deviation 
is unjustified.

B. The Failure of the Challenged Plan

That the challenged Plan is prima facie 
unconstitutional is clear. According to the 1990 census, 
Ohio has a total population of 10,847,133. App. to Juris. 
St. 49a. Since the Ohio House has 99 members, the ideal 
House district size is 109,567. Id. at 21a. Under the Plan, 
the smallest district, comprised solely of Ashtabula 
County, had a population of 99,821, id. at 52a n. 11, or 
91.10 percent of an ideal district. The largest district, one 
of thirteen in Cuyahoga County, had a population of 
114,955, id. at 56a, or 104.92 percent of an ideal district. 
Thus, the total population deviation of the Plan was 13.82 
percent, well over the ten percent threshold.2

2 Ohio law would have permitted up to a 20 percent total 
deviation. See Ohio Const, art. XI, § 9 (requiring that "reasonable 
effort shall be made to create a house of representatives district 
consisting of the whole county" for any county that is at least 90 
percent of the ideal district size and for any county that is not more 
than 110 percent of the ideal district size). Such a deviation would 
clearly raise serious questions: indeed, it is not clear that any 
legitimate policy could justify it. See Mahan v. Howell, 410 U.S. at 
329; cf. Brown v. Thompson, 462 U.S. at 850 (O’Connor, J., 
concurring); id. at 853-56 (Brennan, J., dissenting).

To the extent, however, that the- district court based its 
invalidation of the 1992 Plan on the statutory authorization of a 20 
percent total deviation, rather than on the actual deviation created, 
see App. to Juris. St. 147a n. 12, it was mistaken: the real question in 
a one-person, one-vote case is whether the challenged plan 
unconstitutionally dilutes some citizens’ votes, not whether a another



11

In the face of this presumptively unconstitutional 
malapportionment, the Apportionment Board has raised 
only the most perfunctory defense: "Ohio’s longstanding 
policy to reflect political subdivision boundaries where 
reasonably possible." Juris. St. at 25. The Board has 
provided no details about Ohio’s state or local 
governmental structure that might justify elevating 
artificial subdivision boundaries above a fundamental 
constitutional command. A bare citation of Mahan v. 
Howell and Brown v. Thompson cannot substitute for the 
detailed description of "particular circumstances and 
needs," Abate v. Mundt, 403 U.S. at 185, that this Court 
has always required. Unless this Court is prepared to 
abdicate completely its commitment in Reynolds to give 
"careful judicial scrutiny" to claims regarding political 
subdivision boundaries, 377 U.S. at 580-81, it simply 
cannot countenance appellants’ desultory justification in 
this case.

Moreover, regardless of the legitimacy of Ohio’s 
purported policy, the Apportionment Board failed to show 
that the deviations incurred under the Plan were entirely 
necessary to the achievement of that policy. First, it 
presented no evidence that the portion of the total 
deviation attributable to the size of the most populous 
district had anything to do with the purported policy. 
While the smallest single district is a whole-county district, 
the largest district is not. Rather, it is one of thirteen 
Cuyahoga County districts. See App. to Juris. St. 56a. 
Merely by redrawing districts entirely within Cuyahoga 
County, the total deviation of the Plan could have been 
reduced without any impairment whatsoever of the policy

hypothetical plan might do so.



12

of preserving subdivisions.3 Second, it is not altogether 
clear, given the number of split-county districts adjacent 
to Ashtabula County, see Voinovich v. Ferguson, 586 
N.E.2d 1020, 1038-39 (Ohio 1992) (Resnick, J ,
dissenting), that portions of counties that were being split 
among districts anyway could not have been added to the 
Ashtabula-based district to bring it closer to the ideal 
district size. Given that Ashtabula would still have 
formed the vast majority of the district, it would have 
enjoyed an effective voice as a subdivision. Cf Brown v. 
Thompson, 462 U.S. at 841 n. 5 (where Niobrara County 
was so small that it would be completely swamped in a 
multi-county district, deviation needed to give it its own 
district might be justified).

None of this is to say that it would have been 
impossible for the Apportionment Board to justify the 
deviations in the Plan. But the fact remains: it did not do 
so. Accordingly, this Court should affirm the holding of 
the district court that the Board "failjed] to provide 
sufficient justification for1' a greater than ten percent total 
deviation.

II. T h e  D is t r ic t  C o u r t ’s A n a l y s is  o f  
t h e  C l a im  o f  R a c ia l  V o t e  D il u t io n  
W a s  F a t a l l y  F l a w e d

"From the beginning," this Court has maintained that 
"reapportionment is primarily a matter for legislative

3 Indeed, there is a substantial [9.2 percent] population deviation 
among Cuyahoga County districts: the smallest has a population of 
104,872, while the largest has a population of 114,955. App. to Juris. 
St. 56a.



13

consideration and determination" and that "state 
legislatures have primary jurisdiction over legislative 
reapportionment." White v. Weiser, 412 U.S. 783, 794-95 
(1973) (internal quotation marks omitted). Decisions 
about how to organize the legislature and how to allocate 
political power among competing groups lie at the very 
heart of democratic self-governance. Judicial intervention 
is warranted only when the normal, political — almost 
inevitably partisan — process fails.

Thus, the State’s political agencies and the federal 
judiciary operate under very different constraints when 
they participate in the districting process. For example, 
if a court is called upon to develop a districting system for 
state offices, it must adhere far more closely to the one- 
person, one-vote standard than would a state legislature: 
a court must provide "some compelling justification" for 
deviations that would not demand any justification 
whatsoever were they created by a legislative plan. See, 
e.g., Connor v. Finch, 401 U.S. 407, 416-21 (1977); see 
generally Daniel R. Ortiz, Federalism, Reapportionment, 
and Incumbency: Leading the Legislature to Police Itself, 4 
J.L. & Pol. 653, 662-64 (1988).

In this case, the court below made two critical errors. 
First, it imposed too onerous a standard on Ohio by 
requiring the Apportionment Board to undertake a full­
blown section 2 liability analysis as part of its 
reapportionment process. Second, it improperly relaxed 
the constraints upon itself by invalidating a democratically 
created plan without undertaking any section 2 analysis at 
all.



14

A. The Voting Rights Act Did Not Require the 
Apportionment Board to Use a Particular Analytic 
Framework as a Prerequisite for Reapportionment

In the district court’s January 31 opinion, the two 
reasons given for invalidating Ohio’s Plan were that James 
Tilling, the Plan’s architect, erroneously thought that the 
Voting Rights Act required him to maximize the number 
of districts with effective black voting majorities, see App. 
to Juris. St. 8a-10a, and that Tilling failed to conduct an 
adequate section 2 totality-of-the-circumstances analysis, 
id. at lla-14a. Neither reason provides any basis for 
enjoining the Plan.

First, Tilling’s opinion about the mandates of the 
Voting Rights Act is entirely irrelevant to the question 
whether the plan he produced passed muster under the 
Act. Thus, this Court need not address the question 
whether Ohio was compelled by the Voting Rights Act to 
create a significant number of majority-black districts. 
The only question properly before this Court is whether 
the Voting Rights Act permitted Ohio to take that tack.

As to this, the answer is plainly affirmative. In United 
Jewish Organizations v. Carey, 430 U.S. 144 (1977), this 
Court upheld a voluntary, race-conscious districting plan 
for state legislative seats in Kings County, New York 
(Brooklyn). Justice White, joined in that part of his 
opinion by Justices Stevens and Rehnquist, noted that 
there was "no doubt that in preparing the [districting 
plan], the State deliberately used race in a purposeful 
manner," id. at 165: the State had intentionally drawn 
several districts with effective black voting majorities of 
between 65 and 90 percent, see id. at 151-52. 
Nevertheless, because the plan could be viewed as seeking 
"to achieve a fair allocation of political power between



15

white and nonwhite voters in Kings County," id. at 167, it 
was permissible.4 Of particular salience to this case, UJO 
did not uphold the New York plan because the plan was 
necessarily required by the Voting Rights Act; rather, it 
upheld the plan because it represented one of potentially 
many acceptable responses to the political realities of 
Kings County.5

Moreover, to say that a State cannot pay attention to 
race in drawing districts ignores reality. By its very 
nature, the essence of the districting process is the 
aggregation of people by virtue of their group 
characteristics, whether these be geographical, political, 
social, or racial. Cf Reynolds v. Sims, 377 U.S. at 623-24 
(Harlan, J., dissenting). The reality of American life is

4 Although UJO v. Carey produced several opinions, only then- 
Chief Justice Burger explicitly disagreed with Justice White’s analysis, 
and Justice Stewart, joined by Justice Powell, reached a conclusion on 
this issue essentially identical to Justice White’s. See 430 U.S. at 179- 
80.

5 Similarly, in Gaffney v. Cummings, this Court upheld a 
"bipartisan gerrymander" of the Connecticut State Assembly because 
the resulting plan "purports fairly to allocate political power to the 
parties in accordance with their voting strength and, within quite 
tolerable limits, succeeds in doing so." 412 U.S. at 754. The Court 
noted that:

The Board also consciously and overtly adopted and 
followed a policy of "political fairness," . . . .  Senate and 
House districts were structured so that the composition of 
both Houses would reflect "as closely as possible . . . the 
actual [statewide] plurality of vote on the House or Senate 
line in a given election."

Id. at 738.
The Court’s discussion frequently relied on racial vote dilution 

cases in reaching its conclusion, see id. at 753, 754, thus suggesting 
that a similar analysis would apply in the context of claims of race­
conscious but fair districting.



16

that black communities are often geographically compact 
and that black voters often share a variety of 
socioeconomic characteristics that affect their voting 
behavior. Since the demographic profiles of a State "are 
available precinct by precinct, ward by ward," Gaffney v. 
Cummings, 412 U.S. at 735, it would be essentially 
impossible for a districting body not to foresee the likely 
racial impact of possible apportionment schemes.

Second, since the Apportionment Board was not 
required to justify its decision to draw majority-black 
districts by first establishing that alternative approaches 
would violate section 2, it had no obligation to conduct 
any formal inquiry before proposing its plan. The district 
court’s holding to the contrary reflects a complete 
misunderstanding of the basis of the Apportionment 
Board’s authority.

To ensure that judicial invalidation of a 
democratically adopted plan is warranted, Congress and 
this Court have required district courts to engage in an 
intensely local appraisal of the design and impact of a 
challenged plan, and to make detailed findings of fact. 
Thornburg v. Gingles and the Senate Report accompanying 
the 1982 amendments to the Voting Rights Act create a 
detailed analytic structure for this necessaiy judicial 
factfinding. See Thornburg v. Gingles, 478 U.S. at 46-51; 
S. Rep. No. 97-417, pp. 28-29 (1982) ["Senate Report"]. 
The district court must "consider the totality of the 
circumstances and ... determine, based upon a searching 
practical evaluation of the past and present reality .... 
[and] an intensely local appraisal of the design and impact 
of the contested electoral mechanisms" whether black 
voters have an equal opportunity to participate and elect 
their preferred candidates, Gingles, 478 U.S. at 79 
(internal quotation marks and citations omitted).



17

The totality-of-the-circumstances inquiry mandated by 
the Senate Report and Gingles is a prerequisite to finding 
section 2 liability. But neither Congress nor this Court 
has ever required states to undertake a similarly 
painstaking analysis before they enact a plan in the first 
instance. Such a requirement would run roughshod over 
longstanding principles of federalism and deference to the 
political branches in this most quintessential^ political of 
endeavors. Of course, states are free to consider various 
Gingles or Senate Report factors in developing their plans, 
and prudent plan drawers might seek to avoid the later 
invalidation of their plans by thinking about whether the 
plans comply with section 2. And legislatures should 
review alternative plans to ensure that the plan they 
ultimately select does not dilute minority voting strength. 
But as long as the plan a State ultimately adopts does not 
violation section 2, the analysis a State used to arrive at 
that plan is not subject to being questioned separately.

In short, the district court’s January 31 opinion 
provided absolutely no basis for invalidating Ohio’s Plan.

B. The District Court Itself Failed to Comply With 
Section 2 ’s Requirements

Because it was preoccupied with its idiosyncratic 
theory imposing upon the Apportionment Board the 
obligation to follow Gingles’ analytic framework, the court 
below completely neglected to follow section 2 itself. The 
district court failed to find a single fact that would justify 
a conclusion that Ohio’s Plan violated the Voting Rights 
Act.

To begin with, the district court completely flouted 
Gingles’ directive to conduct an "intensely local appraisal



18

of the design and impact of the contested electoral 
mechanisms." 478 U.S. at 79 (quoting Rogers v. Lodge, 
458 U.S. 613, 622 (1982)). In Gingles itself, after all, this 
Court upheld North Carolina’s use of a multimember 
district in the Durham area despite finding such districts 
invalid in other parts of the State. See id. at 77. And it 
specifically disapproved of lumping different challenged 
districts together: "The inquiry into the existence of vote 
dilution ... is district-specific. When considering several 
separate vote dilution claims in a single case, courts must 
not rely on data aggregated from all the challenged 
districts ...." Id. at 59 n. 28. In this case, however, one 
can search the district court’s opinions in vain for any 
description of the characteristics of the various challenged 
districts that result in the denial of an equal opportunity 
for black voters to elect their preferred candidates. 
Indeed, the majority opinion does not even identify the 
challenged districts by number. The closest it comes to 
discussing any relevant information about the challenged 
districts is to mention the "average plurality" received by 
black candidates in various unidentified districts in various 
unspecified elections sometime between 1984 and 1990, 
App. to Juris. St. 7a, and to refer to the level of crossover 
voting in some districts, id. at 133a. But the court made 
no factual findings at all with regard to the socioeconomic 
disparities, past election results, campaign issues or any 
other Senate Report factor.

As a consequence, the district court never identified 
how black voters were actually injured by the challenged 
plan. It referred to plaintiffs’ contention that the Plan 
involved both improper "packing" and "cracking," App. to 
Juris. St. 7a, but it never identified where either of these 
injuries occurred.



19

This cavalier treatment not only defied the clear 
requirements of Gingles; it also flouted the requirement 
of Fed. R. Civ. P. 52(a) that the court make findings of 
fact sufficient to permit intelligent appellate review. Even 
the most cursory comparison of the opinions in this case 
with the detailed treatment of racial vote dilution claims 
by two district courts whose conclusions were affirmed by 
this court — see Thornburg v. Gingles, see Gingles v. 
Edmisten, 590 F.Supp. 345 (E.D.N.C. 1984), aff’d 478 U.S. 
30 (1986); Jeffers v. Clinton, 730 F. Supp. 196, 204-05 
(E.D. Ark. 1989) (three-judge court), summarily aff’d, 111 
S. Ct. 662 (1991) — shows how far short of the mark the 
opinions in this case fell. And for a court to devote one 
sentence, with no factual support, to a holding that the 
State of Ohio was deliberately racist in adopting the Plan 
-  the clear import of its finding that there was a Fifteenth 
Amendment violation, see App. to Juris. St. 119a — is 
judicially irresponsible. Moreover, it is not defensible 
under this Court’s precedent. See, e.g, City of Mobile v. 
Bolden, 446 U.S. 55 (1980).

Moreover, had the district court paid any serious 
attention to the issue, it would soon have seen that 
plaintiffs’ theory of their case contained within itself its 
own rebuttal. Plaintiffs began by claiming that under the 
1981 apportionment scheme, some black voters in 
particular majority white districts were nonetheless able to 
elect the candidates of their choice. See App. to Juris. St. 
7a, 13a, 132a-33a.6 If that is true (and amici take no

6 We also note, by the way, the essential triviality of evidence of 
responsiveness such as the voting records of white legislators who are 
not dependent on the support of the black community for their 
continued tenure. Although the district court pointed to such 
evidence, see App. to Juris. St. 7a, it failed to heed the Senate 
Report’s directive that "proof of some responsiveness" is not



20

position on that question), then, at least as to those 
districts, there was no legally significant racial bloc voting. 
See Thornburg v. Gingles, 478 U.S. at 54-61 (discussing the 
concept). But if there was no legally significant racial 
bloc voting under the 1981 plan, then unless plaintiffs can 
show that the 1991-92 Plan somehow generates legally 
significant racial polarization — and there is nothing in the 
record to support this claim — they cannot demonstrate 
one of the two "most important Senate Report factors," 
namely, racial bloc voting. Thornburg v. Gingles, 478 U.S. 
at 48 n. 15.

Because the district court failed to find any of the 
facts that tend to show that under a challenged plan, 
blacks have less opportunity than other citizens to 
participate in the political process and elect the
representatives of their choice, it had absolutely no basis 
for striking down the Plan as violative of the Voting 
Rights Act. The complete failure to conduct the required 
"intensely local appraisal" makes this case an
inappropriate vehicle for considering fine points about 
how courts should assess section 2 challenges. Thus, 
contrary to the Solicitor General’s invitation, see Brief for 
the United States as Amicus Curiae Supporting 
Appellants at 10, 15-16, this Court should not address the 
broader questions of whether and how each of the Gingles 
preconditions should apply to state reapportionment

particularly probative. See Senate Report at 29 n. 116. In part 
because the finding of responsiveness is so subjective and so 
dependent on which aspects of legislative performance are deemed 
relevant, courts have generally avoided the inquiry. See, e.g., Gingles 
v. Edmisten, 590 F. Supp. 345 (E.D.N.C. 1984) (three-judge court), 
ajfd, 478 U.S. 30 (1986).



21

plans.7

C. The District Court’s Holding on Plaintiffs’ Fifteenth 
Amendment Claim was Unsupportable

The district court’s treatment of the Fifteenth 
Amendment issue is unfortunately typical of its overall 
approach to this case. Almost as an aside in its March 10 
Order, the district court included one sentence: "As noted 
in the Conclusion of our January 31, 1992 order and 
opinion, it has heretofore been unnecessary in these 
proceedings to reach the constitutional issue presented, 
but we now proceed to decide that the plan as submitted 
is also violative of the Fifteenth Amendment of the 
United States Constitution." App. to Juris. St. 119a. That 
sentence -- and a brief assertion that the Board must have 
intended to dilute black voting since that is the likely 
effect of the Plan, id. at 141-42a -  is the sum total of the 
lower court’s analysis of plaintiffs’ claim that the State of 
Ohio deliberately set out to deny its black citizens their 
fundamental constitutional right to vote.

It is hardly surprising that the district court cited no 
case law from this Court in support of its holding, for to 
cite the only case in which this Court has struck down a 
State’s delineation of district boundaries on Fifteenth 
Amendment grounds would have showed the complete 
absurdity of the district court’s holding. There is nothing 
in this record to suggest that Ohio’s decision to draw 
several majority-black legislative districts even remotely

7 If the Court ultimately remands this case for further proceedings 
in the district court, those issues can be addressed in the first instance 
in the context of the kind of detailed factfinding required in section 
2 cases.



22

resembles Alabama’s complete exclusion of black voters 
from Tuskegee, see Gomillion v. Lightfoot, 364 U.S. 339 
(1960).

Amici emphasize that we take no position on the sort 
of proof of discriminatory intent which might establish a 
Fourteenth Amendment violation: that issue was neither 
raised, briefed, nor decided below and this Court 
therefore should not reach it. But cf. Rogers v. Lodge, 458 
U.S. 613, 622 (1982) (setting out the standard for 
assessing Fourteenth Amendment-based claims of racial 
vote dilution). We argue here only that no Fifteenth 
Amendment violation has been shown. The court below 
erred in transforming its disagreement with the political 
philosophy of the Ohio Apportionment Board into a 
constitutional condemnation of the Board as intentionally 
discriminatory.



23

Conclusion

This Court should affirm the judgment below solely 
on the ground that the Board failed to provide sufficient 
justification for the maximum population deviation among 
districts.

Respectfully submitted,

Antonia Hernandez 
Theresa Busullos 
Mexican American Legal Defense 
634 South Spring Street, 11th Floor 
Los Angeles, CA 90014 
(213) 629-2512

Barbara R. Arnwine 
Brenda Wright 
Lawyers’ Committee for Civil 
Rights Under Law 
1400 Eye Street, N.W.
Washington, D.C. 20005 
(202) 371-1212

Kenneth Kimmerling 
Arthur Baer
Puerto Rican Legal Defense and 
Education Fund, Inc.
99 Hudson Street 
New York, NY 10013 
(212) 219-3360

Pamela S. Karlan 
Yale Law School 
P.O. Box 401A Yale Station 
New Haven, CT 06520 
(203) 432-1620

C. Lani Guinier 
University of Pennsylvania 
Law School 
3400 Chestnut Street 
Philadelphia, PA 19104-6204 
(214) 898-7032

Julius L. Chambers 
* Charles Stephen Ralston 

NAACP Legal Defense and 
Educational Fund, Inc.
99 Hudson Street, 16th Floor 
New York, NY 10013
(212) 219-1900

Angelo N. Ancheta 
Asian Pacific American Legal 
Center of Southern California 
1010 So. Flower St., Suite 302 
Los Angeles, CA 90015
(213) 748-2022

Counsel o f  Record

Counsel for Am ici Curiae