Abrams v. Johnson Reply Brief of Appellants

    No. 94-797

In The

Supreme Court of tfje aimteb States:
October Term, 1994

Lucious A bram s, J r ., R e v . G.L. A very , W illiam  Gary 
Cha m bers , Sr ., and Ka r e n  W atson ,

Appellants,
v.

D avida  J ohnson , et al.,

Appellees.

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

REPLY BRIEF OF APPELLANTS
E l a in e  R. J ones 
Director-Counsel 
Th e o d o r e  M. Shaw  
N o r m a n  J. Cha ch kin  
J a cq u elin e  A. Be r r ie n  
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street, 16th fl. 
New York, New York 10013 
(212) 219-1900
G e r a l d  R. W eber  
American Civil Liberties 

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

Laugillin M cD onald  
Counsel of Record 
Mary W yckoff 
Neil  Bradley  
Maha  Z aki 
American Civil Liberties 

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

Counsel for Appellants



TABLE OF CONTENTS
Page

Table of Authorities . . : ..........................................................ii

Argument —

I. The Decision Below Is not Shielded by
the Clearly Erroneous R u l e .......................................1

II. Appellees’ Description of the Eleventh 
District and the Redistricting Process Is
a Gross Distortion ........................................................2

A. The Redistricting P rocess.....................   2

B. The Eleventh D is tric t........................................... 6

III. Appellees (and the Court Below)
Improperly Seek to Review the 
Attorney General’s Section 5
Determinations ...................................    12

IV. Appellees Lack Standing ............................................ 15

Conclusion ................................................................................ 20

l



TABLE OF AUTHORITIES
Page

Cases:

Batson v. Kentucky, 476 U.S. 79 (1986) ...................... 19n

Bose Corp. v. Consumers Union of U.S., Inc.,
466 U.S. 485 (1 9 8 4 )......................................   1

Brown v. Board of Education, 347 U.S. 483
(1 9 5 4 )......................................................................  19n

City of Richmond v. J.A. Croson Co., 488 U.S.
469 (1989).......................................................... 14, 18

City of Rome v. United States, 446 U.S.
156 (1980) ..........................................................  15

Davis v. Passman, 422 U.S. 228 (1979) ........................... 16

Evans v. Abney, 396 U.S. 435 (1970).............................  19n

Gayle v. Browder, 352 U.S. 903 (1956) ........................  19n

Gomiliion v. Lightfoot, 364 U.S. 339 (1960) .................  19

Hernandez v. New York, 500 U.S. 352 (1991) ............  19n

Heckler v. Mathews, 465 U.S. 728 (1984) . ....................  19

Holmes v. Atlanta, 350 U.S. 879 (1955)........................  19n

Johnson v. De Grandy, 114 S. Ct. 2647 (1994)....................5

Loving v. Virginia, 388 U.S. 1 (1967)...............................  18

ii



TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

Lujan v. Defenders of Wildlife, 112 S. Ct.
2130 (1 9 9 2 )..................................................  15-16, 17

Mayor of Baltimore v. Dawson, 350 U.S. 877
(1 9 5 5 ).....................................................................  19n

McCain v. Lybrand, 465 U.S. 236 (1984) ........................  15

Morris v. Gressette, 432 U.S. 491 (1977) .................  13, 14

Northeastern Florida Contractors v. Jacksonville,
113 S. Ct. 2297 (1 9 9 3 ).............................. .. . 16, 19

Palmer v. Thompson, 403 U.S. 217 (1971) .................... 19n

Presley v. Etowah County Comm’n, 112 S. Ct.
820 (1992)................................................................. 14

Regents of Univ. of Calif, v. Bakke, 438 U.S.
265 (1978)............................    19

Rogers v. Lodge, 458 U.S. 613 (1 9 8 2 )............................... 1

Shaw v. Reno, 113 S. Ct. 2816
(1993) . ............................................ 15, 16, 17, 18, 19

Smith v. Allwright, 321 U.S. 649 (1944) ...........................  19

South Carolina v. Katzenbach, 383 U.S. 301
(1966) ..............................................................    15

iii



TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

Thornburg v. Gingles, 478 U.S. 30 (1986) .......... 1, 14, 20

Wygant v. Jackson Board of Education, 476 U.S.
276 (1986).................................................................  19

Constitutional Provisions:

Article III, Section 1 of the Constitution of
the United States .................................. .. .............16

Statutes and Rules:

Section 2 of the Voting Rights Act, 42 U.S.C.
§ 1973 . .........................................   14

Section 5 of the Voting Rights Act, 42 U.S.C.
§ 1 9 7 3 c ...................................................................... 15

Rule 52(a), Fed. R. Civ. P. ......................................................1

Other Authorities:

Congressional Quarterly’s Politics in America 
1994: The 103rd Congress (P. Duncan 
ed. 1994)............... ...... ................................................8

Laughlin McDonald, "The Quiet Revolution 
in Minority Voting Rights," 42 Vand.
L. Rev. 1249 (1989) ..............................................  18n

IV



I. The Decision Below Is not Shielded by the Clearly
Erroneous Rule

Rule 52(a), Fed . R. Q v . P., does not restrict the 
power of an appellate court to correct errors of law, 
"including those that may infect a so-called mixed finding of 
law and fact, or a finding of fact that is predicated on a 
misunderstanding of the governing rule of law." Thornburg 
v. Gingles, 478 U.S. 30, 79 (1986), quoting Bose Corp. v. 
Consumers Union o f U.S., Inc., 466 U.S. 485, 501 (1984). 
The district court in this case made numerous errors of law 
which infected the fact finding process, e.g., that a bizarre 
shape was not a predicate for strict scrutiny, J.S. App. 30, 36, 
that the Section 5 determinations of the Attorney General 
were subject to plenary review and that the Attorney 
General’s determinations were wrong, J.S. App. 62-63, that 
taking into account "the racial community of interest shared 
by black citizens . . .  is barred from constitutional 
recognition," J.S. App. 45, that the 1992 plan was not 
narrowly tailored because the state had no compelling 
interest in complying with the Section 5 objections, J.S. App. 
62, and that consideration of race as a substantial factor by 
the legislature rendered the plan constitutionally suspect and 
ultimately unconstitutional. Because of its numerous errors 
of law, review of virtually all of the fact finding by the 
district court is uninhibited by Rule 52(a), including its 
ultimate legal conclusion of a constitutional violation.

In addition, Rule 52(a) is no limitation on review 
where a district court, as here, failed to consider a 
substantial amount of the relevant evidence. Detailed fact 
finding is required in voting cases because the 
"determination [of a violation] is peculiarly dependent upon 
the facts of each case." Rogers v. Lodge, 458 U.S. 613, 621 
(1982). Accord Thornburg v; Gingles, 478 U.S. at 79. 
Because the district court failed to apply the proper legal 
standard of considering all the relevant facts and evidence,

1



its findings are not entitled to deference under Rule 52(a). 
Appellants have attempted to supply the requisite 
"searching" appraisal of the facts in this reply brief. Id.

II. Appellees’ Description of the Eleventh District and 
the Redistricting Process Is a Gross Distortion

Appellees’ description of the Eleventh District and 
the role of race in the redistricting process is a gross 
distortion built upon rhetorical excesses and disregard for 
the record.

A. The Redistricting Process. In their brief 
appellees insist repeatedly that the configuration of the 
Eleventh District is solely the product of race. See, e.g., 
Brief of Appellees at 2, 3 (race was considered "regardless 
of literally anything" other than one person, one vote), 7, 13 
(the "sole reason" for the shape of the district was race), 22 
(non-racial factors in redistricting "were entitled to no 
consideration whatsoever"), 37 (the configuration of the 
district is "‘unexplainable’ on grounds other than race . . . .  It 
would be . . . disingenuous to deny that this dramatic 
irregularity is the product of anything but race"), 41 
(emphasis added).

Appellees are driven to these descriptive excesses, as 
noted infra, not simply by advocacy, but because they 
acknowledge that "race awareness will often impact district 
lines in light of the Voting Rights Act," and that "the 
legislature ‘may intentionally consider race in redistricting.’" 
Brief of Appellees at 35-36. Appellees cite with apparent 
approval the district court’s holding that a legislature may 
alter district lines "‘in keeping with that consideration [of 
race]—without incurring [strict scrutiny].’" Id. at 36. Further, 
because non-racial factors are always present, proof of the 
improper use of race in redistricting will be difficult to prove 
"[i]n the vast majority of cases." Id. Because appellees 
understand that race may properly be taken into account in

2



redistricting, they must adopt the rhetoric that race was the 
sole factor here.1

Neither the record nor the findings of the district 
court support appellees’ unchecked hyperbole. Race was 
admittedly a factor in redistricting, but it was only one of 
many factors. The three-judge court acknowledged that the 
legislature "was concerned with passing redistricting 
legislation affecting all Georgians, and contended with 
numerous factors racial, political, economic, and personal." 
J.S. App. 26. The state’s plans "reflected many influences." 
Id. Moreover, in areas where the district is irregular, the 
cause of the irregularity had nothing to do with race.

As a premier example of the district’s alleged 
irregularity, appellees point to a "serpentine" appendage that 
"snakes along the Savannah River." Brief of Appellees at 3. 
However, appellees fail to note that the appendage exists 
because a white legislator wanted the district line drawn in 
Chatham County "by the narrowest means possible" to keep

lAs appellants have noted, Brief of Appellants at 25 n.5, App. 7, 
Judge Bowen, a member of the three-judge court, during a break in the 
trial of this case intentionally took race into account in drawing two 
majority-black districts for the Laurens County, Georgia Board of 
Commissioners. The plan was drawn to correct a one-person, one-vote 
violation and not a violation of the Voting Rights Act. Despite that, race 
was a "substantial" or "predominant" factor in the construction of the 
plan, and even though it was "bizarre” in that it was not contiguous, 
Judge Bowen did not regard the plan as constitutionally suspect nor did 
he subject it to strict scrutiny. He felt under "the obligation . . .  to 
construct two majority-minority districts," and noted that the districts "are 
mixed in all respects of an urban and an agricultural interest" and 
appropriate to "the sensitivities and traditions of the people." Id., App. 
6-7. In other words, the plan was not drawn solely on the basis of race, 
it was designed to be inclusive, and it did not injure anyone. The 
Eleventh District would be constitutional under the standard applied by 
Judge Bowen in the Laurens County case, and there is no basis for 
treating it differently.

3



as much of the county in the First District as possible. 
Dixon, T. Vol. IV, 174. Similarly, the "thread through 
Henry County," Brief of Appellees at 3, was the result of 
political horse trading, Meggers, T. Vol. II, 206-09, and the 
state’s non-racial decision to follow precinct lines, Meggers, 
T. Vol. I, 207-09.

Appellees make the startling -  and inaccurate -  
claim that "without exception, every witness who testified" 
confirmed that the 1992 plan was "a deliberate effort to 
separate voters according to their race." Brief of Appellees 
at 10. According to Rep. Bob Hanner, however, one of the 
witnesses cited by appellees, the members of the legislature 
"tried our best" to follow the redistricting guidelines, none of 
which had anything to do with "separating" or segregating 
voters according to race. T. Vol. Ill, 260. The racial 
purpose of the redistricting process was not to achieve 
segregation but to avoid "diluting minority voting strength." 
T. Vol. Ill, 252. Considerations other than race influenced 
the drawing of district lines. T. Vol. Ill, 265. Rep. Hanner, 
a white legislator who was elected from a majority-black 
district, did not think he was harmed in any way by residing 
in a majority-minority district. T. Vol. Ill, 268. He did not 
think the Eleventh District was a district in which only a 
black could win. T. Vol. Ill, 263. Thus, while Rep. Hanner 
testified that race was taken into account in redistricting, it 
is incorrect to say that he believed the 1992 plan was nothing 
more than an effort to separate or segregate voters on the 
basis of race.

Appellees also completely ignore the testimony of 
Tyrone Brooks, a black member of the house. He denied 
that the 1992 plan was an effort to segregate voters by race. 
Rep. Brooks felt "just the opposite. I feel that we are 
bringing more diversity and giving all Americans . . .  an 
opportunity to realize representation in the American body 
of politics." T. Vol. IV, 242.

4



One thing that particularly distorts appellees’ analysis 
is its focus on the last act in the redistricting process to the 
exclusion of all that went before. Thus, if 99 of the 100 
discrete decisions made during the course of adopting a 
redistricting plan were unrelated to race, appellees would 
still argue that the plan was solely or predominantly the 
product of race if the 100th decision -  e.g., the decision to 
redraw a district line to comply with a Section 5 objection or 
to avoid fragmenting a concentration of minority population 
— were made on the basis of race. In determining the 
influence of race, the 1992 plan cannot be divorced from the 
process from which it evolved, a process that "contended 
with numerous factors racial, political, economic, and 
personal." J.S. App. 26.

Appellees also claim that "if one fact pervades this 
case it is that the 1992 redistricting plan does not remotely 
resemble what the Georgia legislature wanted." Brief of 
Appellees at 2. Beyond ignoring that the legislature did 
enact the plan and voted not to file a preclearance suit, the 
claim totally ignores the fact that the plan was strongly 
endorsed by members of the black legislative caucus. 
Appellees, however, in a shocking display of racial 
arrogance, either do not believe that blacks are real 
members of the legislature or that the views of blacks are 
entitled to any recognition at all.

In addition, appellees ignore the fact that many white 
members of the legislature also endorsed the 1992 plan, 
Republicans as well as some Democrats. Murphy, T. Vol. 
II, 67-68. Even the lieutenant governor, who did not 
support the final plan, "was willing to try to do the right 
thing about creating three districts." Howard, T. Vol. IV, 
205. The 1992 plan did not please everyone, but it was truly 
the product of the "pull, haul, and trade to find common 
political ground" that is the essence of the legislative process. 
Johnson it De Grandy, 114 S. Ct. 2647, 2661 (1994).

5



B. The Eleventh District. Aside from 
mischaracterizing the legislative process, appellees make a 
number of equally insupportable claims about the Eleventh 
District itself. They contend that the district is "shocking" 
because it "traverses almost the entire State," and "the lines 
are very difficult if not impossible to follow, even with a 
road map." Brief of Appellees at 4. The Ninth District does 
in fact cross the entire state, but appellees do not find that 
"shocking." J.A. 51-52. Undoubtedly, that is because the 
Ninth District is 95% white.2

The factual basis for the claim that the lines of the 
Eleventh District are "difficult if not impossible to follow" is 
primarily the testimony of Dr. Timothy O ’Rourke. Brief of 
Appellees at 4. Dr. O ’Rourke, a self-described "outsider," T. 
Vol. Ill, 107, said that the first time he visited the Eleventh 
District he got lost in the City of Augusta. That fact was 
proof that "[i]t’s simply difficult to tract these lines." T. Vol. 
Ill, 109. However, even Dr. O ’Rourke conceded that 
because he got lost in Augusta was not a good reason for 
invalidating the state’s congressional redistricting plan. T. 
Vol. Ill, 203.

Those who, unlike Dr. O ’Rourke, have lived or 
campaigned in the Eleventh District have no difficulty in 
following the district’s lines. Brooks, T. Vol. IV, 247 ("I 
don’t have any trouble finding my way around"). According 
to former state senator and state labor commissioner Albert 
Scott, the most difficult congressional district in which to

2Appellees deny that race was a significant factor in the construction 
of the Ninth District, Brief of Appellees at 11 n.9, despite the fact that 
the evidence that race was a significant factor is uncontroverted. The 
state’s demographer admitted that the residents "are predominantly of an 
Anglo-Saxon bloodline," and the district was "drawn purposefully to 
maintain it as one district, a[n] area that has a distinct culture and 
heritage." Meggers, Tr. Prelim. Injun. 126-27.

6



campaign was the Ninth. The mountain terrain "slows down 
your travel," and media markets "end up touching North 
Carolina and Tennessee. It’s a veiy difficult place." T. Vol. 
VI, 88. Appellees do not claim that the Ninth is constitu­
tionally suspect because it’s difficult to campaign there. 
Again, that is undoubtedly because the district is 95% 
white.3

Appellees argue that Georgia has "a long history of 
reasonably compact districts, with common economic 
interests" being the primary traditional redistricting principle, 
which the 1992 plan ignored. Brief of Appellees at 11. 
According to appellees, one district is a "poultry" district, 
another is a "military" district, another is a "carpet" district, 
another "agricultural," and so on. Id. Such an analysis is 
simplistic and wrong on the facts. Compactness has never 
been a concern of the legislature, and there is such a broad 
range of economic interests across the state that it is not 
possible to arrange congressional districts in neat, self- 
contained economic units.

Albert Scott testified that during the time he was in 
the legislature in 1980 the driving criteria in redistricting 
were "the protection of incumbents [including members of

3The racial squint of appellees’ argument is abundantly clear. They 
are not concerned when race is taken into account in the construction of 
majority-white districts that insure the election of white candidates. It is 
only when blacks are provided equal electoral opportunities that they 
complain about being "brickjs] on the highway of electoral busing." Brief 
of Appellees at 29. What appellees want is a bleached Eleventh District 
in which a white can win. They say as much in their brief: "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 predetermined on the basis of race." Id. at 29 n.28. 
But as Rep. Hanner and the 15 other whites elected to the state 
legislature from majority-black districts prove, the outcome of an election 
in a majority-black district is not "predetermined on the basis of race." 
J.A. 26-27.

7



Congress], and where possible, to avoid electing 
Republicans." T. Vol. VI, 69-70. As for compactness, he 
"always felt that the funniest looking district, Congressional 
district, I ’ve ever seen was the Eighth Congressional District 
after the 1980 census . . . because it actually stretched from 
Florida all the way to what I refer to then as the suburbs of 
Atlanta." Id. at 70. The reapportionment staff considered 
shape, but "I do not believe that members of [the] legislature 
cared anything about shape . . . .  We had elongated districts 
that stretched close to 300 miles in duration. And that was 
never a consideration." Scott, T. Vol. VI, 73.

Appellees claim that the appearance of the Eleventh 
District is not "normal" and cite as proof of that proposition 
the fact that the district was described in the press as a 
"crazy quilt," "grotesque," etc. Brief of Appellees at 3 & n.4. 
Apart from the media being a questionable source of 
constitutional standards, prior congressional districts in 
Georgia have been described in similar terms and no one 
has contended that for that reason they were constitutionally 
suspect. Meggers, T. Vol. II, 261 (the shape of "[t]he Eighth 
has consistently been criticized" and "there were general 
complaints about the Fifth in shape").

In truth, it takes no imagination to dream up a 
pejorative label for a district. The Fourth District in 
Massachusetts has been described as being shaped like a 
"saxophone." C o n g r e s s io n a l  Q u a r t e r l y ’s P o l it ic s  in  
A m e r ic a  1994: T h e  103rd  C o n g r e s s  726 (P. Duncan ed. 
1994). Oregon’s Fifth District has been described as being 
shaped like "the state fish." Id. at 1277. Indeed, even 
Polonius, that most literal minded and unimaginative of 
men, was able to see — with some help from Hamlet -  
camels, whales, and even weasels in the clouds passing 
overhead. Hamlet, Act III, Scene II. Appellees’ repeated 
descriptions of the Eleventh as having a "hook" or a "tail" or

8



looking like a "snake" may be part of a tradition of political 
or media drollery, but they should not be confused with 
constitutional analysis.

Despite appellees’ contention, there is no such thing 
as a single "military" district in Georgia. Scott testified that 
"in the majority of the congressional districts [there] was a 
large military presence." Scott, T. Vol. VI, 74. For example:

in the Eighth, you had Warner Robins; and then if 
you go to the Second, you had a Marine Depot in 
Albany, and you had a Marine Air Station in 
Valdosta. And if you went over and looked at the 
First, you had Fort Stewart and then you had Hunter 
Army Airfield and Hinesville and here in Savannah, 
you had those two military installations. You had a 
large military installation in the Tenth. You had 
military installations back then in the Sixth . . . .  
Even if you went north, I think it looks like the 
Seventh where you had Cobb County, you had 
Lockheed and an Air Force facility there, and a 
major defense contractor.

Id.

There is also no such thing as a single agricultural 
congressional district in Georgia. Instead, several districts 
— the First, Second, Third, and Eighth -  have strong 
agricultural economies. Scott, T. Vol. VI, 75.

In arguing that the Eleventh is dysfunctional, 
appellees point to the fact that the district contains both 
urban and rural areas. But such a mix is inevitable, given 
the large rural areas of the state, and has always 
characterized redistricting in Georgia. Appellees’ expert Dr. 
O ’Rourke agreed that it was "impossible" to draw 
congressional districts in Georgia which did not include 
urban and rural areas. T. Vol. Ill, 190. And as Scott 
testified concerning the 1980 plan, "the Second is a good

9



example of where you had large urban centers, but yet you 
had a vast area of farm communities. So you had quite a 
diversity in the districts then." T. Vol. VI, 73-74.

The appellees’ contention that the Eleventh "is 
nothing but an amalgam of distantly located concentrations 
of black population located at the end of racially 
gerrymandered appendages" is likewise a gross distortion 
that has no basis in the record in this case. Brief of 
Appellees at 6. According to Scott, there is a strong 
industrial base throughout the Eleventh District:

You have some very large manufacturing facilities in 
Savannah in the district. I happen to be employed at 
one. One of the other ones is Stone Container here.

You have a tremendous amount of kaolin that’s 
processed right here on the Savannah River, in 
Savannah . . . .  All the kaolin is, of course, mined in 
the middle portion of the Eleventh, and then in turn 
shipped either by -  mainly by rail to the ports of 
Savannah, and processed and prepared for shipment 
throughout the world.

In addition to that, . . .  [y]ou’ve got an industrial base 
now in Effingham. You’ve got Fort Howard which 
is a large manufacturing facility, and . . .  in Burke 
[County] . . . [yjou’ve got . . . a large industrial 
facility there in the presence of a large nuclear power 
plant that’s owned by Georgia Power Company, 
which owns Savannah Electric and Power, which 
supply electricity throughout this entire region.

Richmond County has a large industrial base. 
You’ve got two large paper manufacturing facilities 
there; Federal Board and Paper, and you have 
Augusta News Print, which primarily manufactures 
news press from recycled paper.

1 0



So you have a large industrial base — and chemical 
manufacturing as well in Augusta.

And then you move on up to Dekalb and in that area 
of the district, you’ve got some manufacturing there 
. . .  of light fixtures and florescent lights.

And when you look in the middle of the district, 
when I look at the Baldwin County and in that area, 
and Putnam . . . you’ve got manufacturing there. 
You’ve got a lot of garment plants there.

You have a lot [of] your manufactured housing come 
out of the Eleventh Congressional District. In 
Putnam, for instance, there’s one of the largest 
manufacturers in this part of the country located in 
that Eleventh Congressional District. So you do have 
a heavy industrial base.

The other thing that you have is a heavy employment 
of people who are in the retail trade employment, 
and then you have a service . . . [based economy], 
and that’s throughout.

Scott, T. Vol. VI, 82-83.
Appellees attack the Eleventh District because it 

splits eight counties. Splitting counties, however, was far 
from sacrosanct in prior congressional redistricting. In 1980 
when "the congressman from the Ninth did not want all of 
Gwinnette [sic] County in his district, all of that [respect for 
counties] went out the window, and Gwinnette [sic] County 
was split." Scott, T. Vol. VI, 71. When former 
Congressman Elliott Levitas "wanted to increase what he 
perceived as Democratic voters in his district, the county of 
Dekalb was split." Id. Counties were split in districts other 
than the Eleventh in the 1992 plan as well, including all five 
of the counties in the Sixth District currently represented by 
Newt Gingrich. Garner, T. Vol. Ill, 229.

11



Relying on the testimony of Dr. O ’Rourke, the court 
found there "are no tangible ‘communities of interest’ 
spanning the hundreds of miles of the Eleventh District." 
J.S. App. 81. Yet, Dr. O ’Rourke testified that "communities 
of interest" are very subjective and that preserving them in 
redistricting is difficult because "they are very hard to 
interpret." T. Vol. Ill, 188-89. More to the point, he 
conceded that there is "a pattern of similarity" of residents 
throughout the district based upon socio-economic indicators 
such as poverty and education. T. Vol. Ill, 191-92.

Another distinctive feature of the Eleventh District 
is a history shared by both blacks and whites in that part of 
the state of generally being overlooked by elected 
representatives. Wilde, T. Vol. IV, 79-80; Chambers, T. Vol. 
VI, 117; Darling, T. Vol. VI, 150. The district now provides 
responsive representation for all residents. Wilde, T. Vol. 
IV, 80; Abrams, T. Vol. VI, 56, 59-60; Chambers, T. Vol. 
VI, 117. The Eleventh also reflects familial ties between 
rural and urban residents, Brooks, T. Vol. IV, 241, as well 
as ties between farmers, like appellant Abrams, and the 
transportation hubs necessary to export their farm products. 
Abrams, T. Vol. VI, 54-56.

The area encompassed by the Eleventh District also 
shares historical ties. Savannah was once the colonial capital 
of Georgia, and both Milledgeville in Baldwin County and 
Augusta in Richmond County served later as the state’s 
capital. T. Vol. VI, 88. Appellees’ claim that the Eleventh 
is "nothing but an amalgam of distantly located 
concentrations of black population" is belied by the record.

Ill, Appellees (and the Court Below) Improperly Seek to
Review the Attorney General’s Section 5
Determinations

Appellees (and the court below) assert that the 
Georgia legislature enacted the 1992 plan because of a

12



meritless Section 5 objection by the Attorney General to 
earlier plans. They attack both the correctness and the bona 
fides of the objection, and argue that it does not provide a 
basis for the adoption of the challenged plan. This Court 
should reject this argument, for it rests upon the sort of 
judicial review of the Attorney General’s exercise of 
authority under the Voting Rights Act that the Court has 
explicitly held to be outside the jurisdiction of a local federal 
court.

In Morris v. Gressette, 432 U.S. 491, 506 n.24 (1977), 
the Court held that no matter how erroneous the Attorney 
General’s decision not to interpose an objection to a voting 
change might be, minority citizens could not bring a civil 
action to challenge it. In Morris, moreover, the Attorney 
General’s failure to object had been based upon a 
misinterpretation of law later clarified by this Court. 432 
U.S. at 497 & n.8.

In responding to the dissent’s suggestion that an 
Attorney General might trade preclearance for the promise 
of electoral college votes, Justice Powell’s majority opinion 
anticipated and rejected the sorts of emotion-laden charges 
made by appellees about the motivations and actions of the 
Attorney General in this case. The majority held that there 
could be no review of the Attorney General’s decisions 
respecting preclearance because "Congress like the courts 
operates on the assumption that the Attorney General of the 
United States will perform faithfully his statutory 
responsibilities." 432 U.S. at 506 n.23. Justice Powell also 
rejected even limited review of the Attorney General’s 
exercise of Section 5 authority similar to that suggested by 
the United States in this case (see Brief at 30-31):

[It was argued] that there should be limited judicial 
review only when the Attorney General improperly 
relinquishes his responsibilities to evaluate 
independently the submitted legislation in light of the

13



standards established by Section 5 . . .  . For the 
reasons stated in text, we think Congress intended to 
preclude all judicial review o f the Attorney General’s 
exercise o f discretion or failure to act.

432 U.S. at 506 n.24 (emphasis added).

Morris recognized, of course, that the Attorney 
General’s interpretation of the Voting Rights Act is not 
binding upon the courts in cases within their jurisdiction. 432 
U.S. at 505. Accord Presley v. Etowah County Comm’n, 112
S. Ct. 820, 831 (1992) (local three-judge court may determine 
Section 5 coverage independent of the Attorney General). 
It noted that under the Act, states were free to seek a 
declaratory judgment from a three-judge court in the District 
of Columbia even after an objection from the Attorney 
General. Morris, 432 U.S. at 505 n.21. In such an action, of 
course, the issue is heard de novo and decided on the basis 
of the evidence presented to the court — not upon an 
administrative record. The judgment of the D.C. court repre­
sents an independent legal adjudication, rather than a review 
of the Attorney General’s action. See 432 U.S. at 506-07.

Even where the Attorney General has precleared a 
voting change, voters who are aggrieved can still bring an 
action under Section 2 of the Voting Rights Act. 42 U.S.C. 
§ 1973. Again, in such an action the issue is not the 
correctness of the Attorney General’s decision but the 
validity or invalidity of the challenged electoral practice. 
See, e.g., Thornburg v. Gingles.

The approach taken by the lower court in this case 
renders Section 5 unwieldy and ineffective. Consistent with 
Morris, the court should have pretermitted any inquiry into 
the circumstances surrounding the Attorney General’s 
objections and should have recognized that they provided a 
"strong basis in evidence" for the adoption of the 1992 plan. 
City o f Richmond v. J.A. Croson Co., 488 U.S. 469, 500 (1989).

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In castigating the Department of Justice for objecting 
to the state’s first and second submissions, the appellees also 
make the erroneous assumption that the DOJ has the 
burden of proving a Section 5 violation. Brief of Appellees 
at 19 n.19 ("the DOJ presented absolutely no evidence at 
trial" of purposeful discrimination). A covered jurisdiction, 
not the DOJ, has the burden of showing that a proposed 
voting change "does not have the purpose and will not have 
the effect of denying or abridging the right to vote on 
account of race, color," or membership in a language 
minority. 42 U.S.C. § 1973c. The allocation of the burden 
of proof to the submitting jurisdiction was a critical and 
innovative feature of Section 5 designed to "to shift the 
advantage of time and inertia from the perpetrators of the 
evil [of discrimination in voting] to its victims." South 
Carolina v. Katzenbach, 383 U.S. 301, 328 (1966).

This Court has consistently sustained this burden 
shifting and held that Section 5 creates a legal "presumption" 
that a proposed voting change is discriminatory. McCain v. 
Lybrand, 465 U.S. 236, 245 (1984). Any "ambiguities" in the 
preclearance process are to be resolved against the 
submitting jurisdiction. Id. at 257. According to the Court, 
"[t]he preclearance process is by design a stringent one . . . 
the burden of proof (the risk of nonpersuasion) is placed 
upon the covered jurisdiction." Id. Not surprisingly, many 
Section 5 submissions have turned on the failure of the 
jurisdiction to carry its burden of proof, rather than on a 
positive finding of discrimination by the courts or the 
Attorney General. See, e.g., City o f Rome v- United States, 
446 U.S. 156, 187 (1980).

IV. Appellees Lack Standing
Appellees contend that Shaw v. Reno, 113 S. Ct. 2816 

(1993), revolutionized this Court’s standing jurisprudence, 
eliminating the requirement of concrete individualized harm 
articulated in cases such as Lujan v. Defenders o f Wildlife,

15



112 S. Ct. 2130, 2136 (1992), and Northeastern Florida 
Contractors v. Jacksonville, 113 S. Ct. 2297 (1993), decided 
the same term as Shaw. Brief of Appellees at 26. Appellees 
take this position in light of the district court’s determination 
that "the plaintiffs suffered no individual harm; the 1992 
congressional redistricting plans had no adverse 
consequences for these white voters," J.S. App. 31, as well as 
its legal conclusion that Shaw "liberalizes the standing 
requirement." Id. at 33.

While Shaw recognized that white voters could state 
a claim challenging congressional redistricting plans under 
the Equal Protection Clause, it did not exempt those claims 
from routine Article III standing requirements. In their 
assertion that Shaw creates standing, the district court 
majority and appellees blur the distinction between standing 
and cause of action or claim, making the same mistake as 
the court of appeals reversed in Davis v. Passman, 422 U.S. 
228, 239 n.18 (1979). In Davis, this Court articulated the 
distinction between a cause of action, which is a necessary 
element of a "claim," 422 U.S. at 239, and standing. To state 
a cause of action a plaintiff must be "a member of the class 
of litigants that may, as a matter of law, appropriately invoke 
the power of the court." Davis, 442 U.S. at 239 n.18. 
However, to have standing, a plaintiff must satisfy the 
additional requirement of being "sufficiently adversary to a 
defendant to create an Art. I ll case or controversy, or at 
least to overcome prudential limitations on federal-court 
jurisdiction." Id. Concrete and particularized injury is the 
hallmark of this adverseness. Thus, under Davis it is clear 
that the class of persons able to state a cause of action is 
broader than those who would actually have sufficient 
standing to vindicate their claims.

In accordance with Davis, Shaw suggests that white 
voters, such as appellees, are in the class of litigants that 
may properly invoke the power of the court to enforce the

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equal protection guarantee in the redistricting context. But 
Shaw does not resolve the issue of whether these particular 
white voters in Georgia’s Eleventh District have sufficient 
injury so as to be sufficiently adverse.

At each successive stage of the litigation, plaintiffs 
bear the relevant burden of proof on standing. Lujan, 112 
S. Ct. at 2136. On a motion to dismiss, as in Shaw, general 
factual allegations of injury are sufficient. Id. at 2137. 
However, at trial, standing, if controverted, must be 
"supported adequately by the evidence adduced at trial." Id. 
(citation omitted). That the Shaw plaintiffs were able to 
survive a motion to dismiss does not support the district 
court’s determination here that Shaw provides standing for 
these plaintiffs at the trial stage, and after they have been 
found to have suffered "no individual harm," J.S. App. 31.

In support of standing, the only injury appellees point 
to is that of the sole plaintiff to testify at trial, Henry 
Zittrouer, that he lived in a different congressional district 
than his son and cousins, that he was not in a coastal 
district, that he lived in a land bridge and was not in the 
same congressional district as all other residents in his 
county, and that "the power structure from Dekalb will 
decide who will win elections." Brief of Appellees at 29; T. 
Vol. V, 27-28. Residing in a different congressional district 
than one’s family members as well as the other "injuries" 
cited by Mr. Zittrouer do not rise to the level of 
constitutional injuries or sufficient adverseness to create an 
Article III case or controversy. If they did, any redistricting 
plan would be subject to challenge by any citizen at any time 
and virtually for any reason.4

4Appellees assert that the 1992 plan has had the effect of destroying 
"existing biracial coalitions" in Georgia. Brief of Appellees at 46. There 
is no evidence in the record to support such a claim. To the contrary, 
the evidence, while admittedly limited, suggests that the creation of

17



Plaintiff Zittrouer’s more salient testimony was that 
the shape of the district was the result of the influence of his 
own state representative, Ann Purcell, to keep as much of 
Effingham County as possible out of the Eleventh District,
T. Vol. V, 34-35, and that since he had never attempted to 
contact his member of Congress, he found his representative 
neither responsive nor unresponsive. T. Vol. V, 30.

Appellees suggest that requiring white voters to show 
individual injury is tantamount to eliminating the cause of 
action recognized in Shaw. Brief of Appellees at 26-27. 
That is not so. As demonstrated by the cases relied on by 
appellees, this Court’s equal protection analysis has 
consistently been dependent upon showings of concrete 
particularized harm by those bringing the challenges. For 
example, in Loving v. Virginia, 388 U.S. 1 (1967), the 
plaintiffs were a biracial married couple indicted for 
violating Virginia’s miscegenation statute; in City o f 
Richmond v. J.A. Croson Co., the white plaintiff company 
lost a city contract; in Wyganl v. Jackson Board o f Education, 
476 U.S. 276 (1986), white teachers with more seniority were

majority black districts has encouraged the formation of biracial 
coalitions and has dampened racial bloc voting. For example, the Second 
and Eleventh Districts became majority black for the first time in 1992. 
From 1984 to 1990, only 1% of white voters in the precincts now within 
the Second District voted for minority candidates in statewide elections. 
The corresponding white vote for minority candidates in the Eleventh 
District was only 4%. A dramatic increase in white voting for minority 
candidates occurred in 1992. Twenty-nine percent of white voters in the 
Second District and 37% of white voters in the Eleventh District voted 
for minority candidates in statewide elections in 1992. DOJ Ex. 24, 
Tables 1-3. There was an equally dramatic increase in white cross-over 
voting in Mississippi after the creation of a majority-black congressional 
district. In the 1986 election Mike Espy got just 10% of the white vote 
and 52% of the vote overall. In 1988 he won re-election with 40% of the 
white vote and 66% of the vote overall. Laughlin McDonald, The Quiet 
Revolution in Minority Voting Rights, 42 VAND. L. Rev . 1249, 1278 n.166 
(1989).

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laid off in favor of less senior minority teachers; in Regents 
o f Univ. o f Calif v, Bakke, 438 U.S. 265 (1978), the white 
applicant was not able to compete for all medical school 
positions; in Northeastern Florida Contractors v. Jacksonville, 
white contractors could not compete for all city contracts; in 
Heckler v. Mathews, 465 U.S. 728 (1984), the plaintiff was 
denied Social Security benefits. These cases demonstrate 
the kind of concrete harm sufficient under this Court’s 
jurisprudence to establish standing.5

Appellees ask the rhetorical question, "[i]f a citizen 
and registered voter in a gerrymandering [sic] congressional 
district cannot complain of the constitutional violation 
enunciated in Shaw, who can?" Brief of Appellees at 29. 
The answer is "a person who has been injured." Individuals 
would be injured, for example, if they had been denied the 
right to vote because of their race, Smith v. Allwright, 321
U.S. 649 (1944); Gomillion v. Lightfoot, 364 U.S. 339 (1960), 
or if their voting strength had been diluted, Thornburg v. 
Gingles. But, as the district court found in this case,

5The remaining cases relied on by appellees also show individualized 
harm to the persons initiating the equal protection action: Brown v. 
Board o f Education, 347 U.S. 483 (1954) (black school children denied 
admission to white schools); Hernandez v. New York, 500 U.S. 352 (1991) 
(Latino criminal defendant tried by a jury with no Latinos due to use of 
peremptory strikes to eliminate all Latinos); Batson v. Kentucky, 476 U.S. 
79 (1986) (black criminal defendant tried by a jury with no blacks due to 
use of peremptory strikes to eliminate all blacks); Palmer v. Thompson, 
403 U.S. 217 (1971) (blacks lost their public swimming pool as city closed 
segregated black and white pools); Evans v. Abney, 396 U.S. 435 (1970) 
(blacks denied access to public park due to reversion of trust land back 
to white heirs — court found no equal protection violation); Gayle v. 
Browder, 352 U.S. 903 (1956) (blacks forced to comply with bus 
segregation laws or arrested and fined for violation); Mayor o f Baltimore 
v. Dawson, 350 U.S. 877 (1955) (blacks denied access to white only bath 
houses and bathing facilities); Holmes v. Atlanta, 350 U.S. 879 (1955) 
(blacks denied access to Bobby Jones Golf Course).

19



appellees have failed to prove that they were harmed. J.S. 
App. 31; Brief of Appellants at 38-40. There is no basis for 
relieving white voters challenging redistricting plans from 
requirements applied to all other plaintiffs bringing equal 
protection challenges.

Conclusion

For the above reasons, the decision of the court below 
should be reversed.

Respectfully submitted,

E la in e  R. J ones 
Director-Counsel 
Th e o d o r e  M. Shaw  
N orm a n  J. Cha ch kin  
Ja c q u elin e  A. Be r r ie n  
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street, 16th fl. 
New York, New York 10013 
(212) 219-1900
Ge r a l d  R. W eber  
American Civil Liberties 

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

Laugh lin  M cD onald  
Counsel of Record 
M ary W yckoef 
Neil  Bradley  
M a h a  Z aki 
American Civil Liberties 

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

Counsel for Appellants

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