Letter from Lani Guinier to Elise Smith

    No. 95-1201

In T he

S u p re m e  C o u rt of tfje fin tte b  s ta te s
October Term, 1995

Vicky M. Lopez, et al., appellants

v.

Monterey County, California, et al., Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF CALIFORNIA

BRIEF AMICI CURIAE OF THE AMERICAN CIVIL 
LIBERTIES UNION, THE LAW YERS’ COMMITTEE 

FOR CIVIL RIGHTS UNDER LAW , AND THE 
NAACP LEGAL DEFENSE AND EDUCATIONAL 

FUND, INC. IN SUPPORT OF APPELLANTS

Sidney S. Rosdeitcher 
(Counsel of Record)
Gregory A. Clarick 
Paul, Weiss, Rifkind, Wharton 

& Garrison
1285 Avenue of the Americas 
New York, New York 10019-6064 
(212) 373-3000

Counsel to the Amici Curiae

Paul C. Saunders, Co-Chair 
Herbert J. Hansell, Co-Chair 
Norman Redlich, Trustee 
Barbara R. Arnwine 
Thomas J. Henderson 
Brenda Wright 
Samuel L. Walters 
Lawyers’ Committee for 

Civil Rights Under Law 
1450 G Street, N.W. 
Washington, D.C. 20005 
(202) 662-8320

(Counsel List Continues Inside Cover)



Laughlin McDonald 
Neil Bradley 
Maha S. Zaki
American Civil Liberties Union 
44 Forsyth Street 
Atlanta, GA 30303 
(404) 523-2721

Steven R. Shapiro 
American Civil Liberties Union 
132 West 43rd Street 
New York, New York 10036 
(212) 944-9800

Elaine R. Jones 
Director-Counsel 
Norman J. Chachkin 
Jacqueline A. Berrien 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street 
New York, NY 10013 
(212) 219-1900



TABLE OF CONTENTS

INTEREST OF THE AMICI CURIAE ...................................  1

STATEMENT OF THE CASE AND
SUMMARY OF ARGUMENT .................................................  2

The Proceedings Below .................................................  4

ARGUMENT ............................................................................... 8

I. THE DISTRICT COURT ERRED BY REFUSING
TO EXTEND ITS REMEDIAL INTERIM PLAN 
THAT AVOIDS RETROGRESSION BY INCLUD­
ING SINGLE-MEMBER MAJORITY-LATINO 
DISTRICTS ..................................................................... 8

II. THE DISTRICT COURT ERRONEOUSLY READ
MILLER V. JOHNSON AS JUSTIFYING ITS 
DEPARTURE FROM THE PREFERRED REMEDY 
OF A NON-RETROGRESSIVE PLAN THAT 
INCLUDES SINGLE-MEMBER DISTRICTS...........12

III. THE DISTRICT COURT ERRED BY 
CONCLUDING THAT CALIFORNIA LAW 
PROVIDED SUFFICIENT JUSTIFICATION 
FOR IT TO ALLOW IMPLEMENTATION OF
AN AT-LARGE P L A N ................................................... 16

CONCLUSION .............................................................................. 18

Page

i



TABLE OF AUTHORITIES

CASES Page(s)

Adarand Constructors, Inc. s. Pena, 115 S. Ct. 2097 ........... 13

Allen v. State Bd. o f Elections, 393 U.S. 544 (1969) ...........10

Beers. United States, 425 U.S. 133 (1976) ...........................  9

Brooks v. Winter, 461 U.S. 921 (1983) ...................................  9

Chapman s. Meier, 420 U.S. 1 (1975) ...................................  10

Chisom v. Roemer, 501 U.S. 380 (1991) ................................. 2

Clinton s. Smith, 488 U.S. 988 (1988) .................................  2

Connors. Finch, 431 U.S. 407 (1977) ............... 2,4,10,16,17

Clark v. Roemer, 500 U.S. 646 (1991) ............................... 2,3

Davis v. Bandemer, 478 U.S. 109 (1986) ..............................  1

DeWitt v. Wilson, 856 F. Supp. 1409
(E.D. Cal. 1994) .........................................................  11,14,17

H astens. State Bd. ofElecs., I l l  F. Supp. 634 (1991) . . .  13

Holders. Hall, 114 S. Ct. 2581 (1994) ................................. 1

Houston Lawyers Assoc, s. Attorney General o f Texas,
501 U.S. 419 (1991)   2

Jordan s. Winter, 604 F. Supp. 807 (N.D. Miss.), 
affd mem. sub nom., Mississippi Republican Exec. 
Comm. v. Brooks, 469 U.S. 1002 (1 9 8 4 ) .............. 8,9



Page(s)

King v. State Board o f Elections, 1996 WL 13049
(N.D. 111.) ........................................... .................................. 13

Louisiana v. United States, 380 U.S. 145 (1965) .............  8

McCain v. Lybrand, 465 U.S. 236 (1984) ..............................  1

McDaniel v. Sanchez, 452 U.S. 130 (1981) ...........................  9

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

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

Rogers v. Lodge, 458 U.S. 613 (1982) .................................... 1

Shaw v. Reno, 113 S. Ct. 2816 (1993) ...................  2,11,13,14

Statewide Reapportionment Advisory Comm. v.
Theodore, 508 U.S. 968 (1 9 9 3 )............................................ 9

Thornburg v. Gingles, 478 U.S. 30 (1986) ........................  2,10

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

United States v. Hays, 115 S. Ct. 2431 (1995) ...................... 1

Upham v. Seamon, 456 U.S. 37 (1 9 8 2 ) ...................................  17

Voinovich v. Quilter, 507 U.S. 146 (1993),
on remand, 857 F. Supp. 579 (N.D. Ohio 1994) .............. 9

Washington v. Washington State Commercial
Passenger Fishing Vessel Ass’n, 443 U.S. 658 (1979) . . .  17

iii



Page(s)

Wilson v. Eu, 1 Cal. 4th 707, 823 P.2d 545
(Special Masters Report) ................................................ 11,17

Wise v. Lipscomb, 437 U.S. 535 (1978): ................................  10

STATUTES

Cal. Const. Art. XXI, § 1 .........................................................17

Voting Rights Act, 42 U.S.C. § 1973 ............................. passim

28 C.F.R. 51.4 ................................................ .......................... 5

IV



INTEREST OF THE AMICI CURIAE1'

The American Civil Liberties Union (the “ACLU”), the 
Lawyers’ Committee for Civil Rights Under Law (the “Lawyers’ 
Committee”) and the NAACP Legal Defense and Educational 
Fund, Inc. (the “Fund”) submit this brief as amici curiae, with the 
consent of the parties, in support of appellants’ argument that the 
three-judge district court erred in lifting its injunction against 
Monterey County’s implementation of an unprecleared, at-large 
voting plan for the election of municipal judges and in refusing to 
extend an interim district-based plan that secured minority voting 
rights. Protection of the voting rights of minorities is an important 
aspect of the ACLU’s, the Lawyers’ Committee’s, and the Fund’s 
work, as demonstrated by their frequent appearances before this 
Court in various voting rights cases since the adoption of the 
Voting Rights Act in 1965.

The ACLU is a nationwide, non-profit, nonpartisan organ­
ization with nearly 300,000 members dedicated to defending the 
principles of liberty and equality embodied in the Constitution and 
this nation’s civil rights laws. As part of that commitment, the 
ACLU has been active in defending the equal right of racial and 
other minorities to participate in the electoral process. Specifically, 
the ACLU has provided legal representation to minorities in 
numerous jurisdictions throughout the country and has frequently 
participated in voting rights cases before this Court, both as direct 
counsel, see, e.g., Miller v. Johnson, 115 S. Ct. 2475 (1995); 
Holder v. Hall, 114 S. Ct. 2581 (1994); McCain v. Lybrand, 465 
U.S. 236 (1984); Rogers v. Lodge, 458 U.S. 613 (1982), and as 
amicus curiae, see, e.g., United States v. Hays, 115 S. Ct. 2431 
(1995); Davis v. Bandemer, 478 U.S. 109 (1986).

The Lawyers’ Committee was formed in 1963 at the request 
of President Kennedy to involve private attorneys throughout the 
country in the national effort to assure civil rights to all Americans. 
The Lawyers’ Committee has frequently represented African- 
American citizens in voting rights cases before this Court, see,

- Letters of consent to the filing of this brief have been lodged with the 
Clerk of the Court pursuant to rule 37.3.



e.g., Clark v. Roemer, 500 U.S. 646 (1991); Clinton v. Smith, 488 
U.S. 988 (1988); Connors. Finch, 431 U.S. 407 (1977), and has 
appeared as amicus curiae in other significant voting rights cases 
in this Court, see, e.g., Shaw v. Reno, 113 S. Ct. 216 (1993); 
Miller, supra. The Lawyers’ Committee has a particular interest in 
this case because it involves the continued enforcement of the 
doctrines set forth in Clark v. Roemer, 500 U.S. 646 (1991), and 
Connor v. Finch, 431 U.S. 407 (1977), cases that it litigated.-

The Fund is a non-profit corporation that was established 
for the purpose of assisting African Americans in securing their 
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., United Jewish Org. v. 
Carey, 430 U.S. 144 (1977); Thornburg v. Gingles, 478 U.S. 30 
(1986); Chisom v. Roemer, 501 U.S. 380 (1991); Houston Lawyers 
Assoc, v. Attorney General o f Texas, 501 U.S. 419 (1991); Shaw, 
supra; Miller, supra.

STATEMENT OF THE CASE AND 
SUMMARY OF ARGUMENT

This case involves the appeal of a three-judge district 
court’s order that is totally at odds with Section 5 of the Voting 
Rights Act, 42 U.S.C. § 1973c. Section 5 requires that, with 
respect to covered jurisdictions, the Attorney General or the United 
States District Court for the District of Columbia preclear any 
changes affecting voting prior to their implementation. Id. Amici 
curiae fully agree with appellants that the three-judge district court 
(the “district court”) radically subverted Section 5’s mandate when

- The Lawyers’ Committee for Civil Rights of the San Francisco Bay 
Area, co-counsel to appellants in this action, is a separate entity from the 
national Lawyers’ Committee for Civil Rights Under Law. Although they 
are affiliates, the two organizations are separately incorporated and inde­
pendently operated and governed.

2



it dissolved an injunction that had prohibited Monterey County, a 
covered jurisdiction, from implementing an unprecleared, at-large 
voting plan for the election of municipal judges in the County. See 
Clark v. Roemer, 500 U.S. 646, 652-54 (1991) (requiring that 
courts enjoin the implementation of covered, unprecleared voting 
changes absent “extreme” circumstances). The district court’s error 
was compounded by the fact that, prior to its order, Monterey 
County had sought to obtain preclearance for the plan from the 
District Court of the District of Columbia but abandoned that 
effort, stipulating that it was “unable to establish that [the at-large 
plan] . . .  did not have the effect of denying the right to vote to 
Latinos in Monterey County due to [its] retrogressive effect . . . .” 
(J.A. 126) The district court thus sanctioned the use not only of an 
unprecleared election plan but one for which Monterey County had 
stipulated it could not obtain preclearance.

We understand that appellants will fully address the district 
court’s error in dissolving its injunction against Monterey County’s 
implementation of the unprecleared plan and its violation of the 
standards set forth in Clark v. Roemer, supra. This brief of amici 
curiae focuses on another egregious error: the district court’s 
unwarranted refusal to extend an interim plan, already in place, that 
includes two majority-Latino districts and remedies the County’s 
violation of the Voting Rights Act.

The district court failed to meet its remedial obligation 
because of its fundamental misreading of this Court’s decision in 
Miller v. Johnson, 115 S. Ct. 2475 (1995). The district court read 
Miller to constrain a court’s authority to remedy a Section 5 
violation by implementing any plan that includes majority-minority 
districts, if race was a “significant factor” in the plan. As a result, 
the district court departed from well-settled federal law requiring 
that court-ordered plans be district-based and abdicated its 
obligation to devise an interim plan that would not cause the 
retrogression of Latino voting strength. Instead, the district court 
sanctioned the implementation of the unprecleared at-large plan that 
the County acknowledged it could not show to be non-retro- 
gressive. (Motion to Dismiss or Affirm of Intervenor Stephen A. 
Sillman (“Sillman Motion”) App. 4a; see J.A. 126)

3



Nothing in Miller justified this perverse result. Race, of 
course, will be a “significant factor” in any plan designed to 
remedy a violation of Section 5 and to assure adequate protection 
of a minority group’s voting rights. Miller held only that a dis­
tricting plan based “predominantly” on race was subject to strict 
scrutiny, and even then, that it would be lawful if narrowly tailored 
to meet a compelling state interest. Moreover, under Miller, race 
will not be deemed the predominant purpose behind a plan absent 
proof that the plan disregards traditional redistricting principles. In 
refusing to extend the interim plan, the district court did not 
attempt to make findings on any of these matters. Indeed, even its 
conclusion that race was a “significant factor” in the design of the 
interim plan was reached without holding any evidentiary hearing.

These circumstances require reversal of the district court 
and make it imperative that this Court clarify that Miller is not an 
obstacle to a lower court’s obligation, where it has found a 
violation of the Voting Rights Act, to implement a properly drawn, 
district-based remedial plan that protects minority voting rights.

Finally, the district court erroneously believed that a federal 
court was forbidden from fashioning an appropriate district-based 
remedial plan if it involved any departure from state law. This 
Court should re-affirm its decision in Conner v. Finch, 431 U.S. 
407 (1977), that, while a court should be aware of—and attempt to 
comply with—state law and policies to the extent possible in 
crafting a remedial plan, state law cannot be an absolute barrier to 
the effective enforcement of the Voting Rights Act.

The Proceedings Below

On September 6, 1991, appellants filed this action against 
Monterey County, seeking to enjoin the use of an at-large voting 
plan for the election of the County’s municipal judges. (J.A. 27- 
35)^ Appellants alleged that the County, which is subject to the

- Subsequently, the State of California was joined as a necessary party 
defendant and the Honorable Stephen A. Sillman, Presiding Judge of the

(continued...)

4



provisions of Section 5 of the Voting Rights Act, see 28 C.F.R. 
51.4 and App., had failed to obtain preclearance for the ordinances, 
enacted after November 1, 1968, which established the plan. (J.A. 
29-31)*

On March 31, 1993, the three-judge district court held that 
Monterey County had implemented the at-large plan in violation of 
Section 5 and enjoined its use pending preclearance by either the 
Attorney General or the United States District Court for the District 
of Columbia. (J.A. 58-59) On August 10, 1993, the County filed 
an action in the United States District Court for the District of 
Columbia, seeking the necessary declaration that the plan was not 
discriminatory. (J.A. 125-26) Eight months later, however, the 
County dismissed the action, stipulating:

The Board of Supervisors is unable to establish that 
the Municipal Court Judicial Court Consolidation 
Ordinances adopted by the County between 
1968 and 1983 did not have the effect of denying 
the right to vote to Latinos in Monterey County 
due to the retrogressive effect several of these ordi­
nances had on Latino voting strength in Monterey 
County.

(Sillman Motion App. 4a; see J.A. 126)

Subsequently, on December 20, 1994, the court accepted 
the parties’ joint proposal that it implement a special election plan 
as an interim remedy and ordered that Monterey County hold

- (...continued)
Monterey County Municipal Court, was joined as a defendant-intervenor. 
(J.A. 161)

- As of November 1, 1968, Monterey County had four municipal court 
judges, elected from two districts, and seven justice court judges, each 
elected from a separate district. The post-November 1, 1968 ordinances 
created a consolidated system in which ten municipal judges were elected 
at-large from the entire county to a single municipal court. (See J.A. 125)

5



elections under the interim plan. The interim plan divided the 
County into a combination of single-member and multi-member 
districts, including two compact and contiguous single-member, 
Latino-majority districts. (J.A. 137) On March 6, 1995, the 
Department of Justice precleared the interim plan, and the judicial 
elections proceeded on June 6, 1995. (See J.A. 165)

On September 28, 1995, the court held a status conference 
to discuss the County’s progress in developing a permanent plan, 
at which time the County and appellants requested that the Court 
extend the terms of the sitting judges, set to expire in December 
1996, to afford the County more time to develop a permanent plan. 
(J.A. 162, 166)5' The court rejected the request. Rather, on 
November 1, 1995, the court entered an order “modifying” its two 
prior injunctions against the use of the unprecleared plan to “allow 
a county-wide election of municipal court judges in the general 
election in 1996.” (J.A. 167) Although the court stated that its plan 
was “temporary,” it ordered that the elected judges would serve a 
six-year-term. (Id.)

In refusing to extend the judicial terms of the sitting judges, 
the district court wrote:

Miller v. Johnson, 115 S. Ct. 2475 (1995), has 
cast substantial doubt upon the constitutionality of 
extending the duration of the previously ordered 
emergency, interim plan as that plan used race as 
a significant factor in dividing the County into 
election areas. . . .

. . . Miller raises substantial doubt as to whether 
legislative division into race-based districts or 
election areas can ever withstand constitutional 
scrutiny.

- At the conference, the State and Judge Sillman urged the court to 
dismiss the Section 5 proceedings or alternatively to order county-wide 
elections. (J.A. 166)

6



(J.A. 167) The district court reached this conclusion without 
holding any evidentiary hearing, or otherwise creating a record, to 
address factual issues related to Miller, and the court did not make 
findings concerning the interim plan or analyze its legality under 
Miller.

Nor did the district court disclose the basis for its 
conclusion in its opinion. Appellees, in opposing probable 
jurisdiction of this Court, have relied on an off-hand remark of a 
County attorney to explain the court’s ruling. (See State of 
California Motion to Dismiss or Affirm (“State Motion”) at 6; 
Sillman Motion at 8) In response to the court’s inquiry regarding 
Miller's effect on the interim plan, he had stated:

The reason is that it was an interim remedy to deal 
with a specific situation. I will be the first one to 
admit the reasons for the rationale for the 
boundaries were in fact race generated. There’s no 
question about it. That was the sole motiva­
tion. . . .

But I think that it was also necessary in order to 
resolve a particular problem that we were in at that 
time. We were looking at, quite frankly, again, 
looking at what the status quo ante is. Status quo 
ante is in a multi-district court system that would 
have had four minority, or four majority-minority 
districts in it, and this particular plan came up with 
a program, that was essentially, that had three 
majority-minority districts.

(Sillman Motion App. 43a) The district court did not refer to these 
remarks in its decision. Yet, this ambiguous, unexamined statement 
by an attorney for the County in the course of a status conference 
is the only “evidence” cited by the State in support of the district 
court’s action.

7



ARGUMENT

I.

THE DISTRICT COURT ERRED BY REFUSING TO 
EXTEND ITS REMEDIAL INTERIM PLAN THAT AVOIDS 

RETROGRESSION BY INCLUDING SINGLE-MEMBER 
MAJORITY-LATINO DISTRICTS

In March 1993, the district court held that Monterey 
County had violated Section 5 of the Voting Rights Act by failing 
to obtain preclearance for the ordinances establishing at-large 
judicial elections. (J.A. 58-59) That ruling remains in place today. 
To temporarily remedy its violation of Section 5, Monterey County 
agreed with plaintiffs on the structure of the interim plan, as well 
as the boundaries of its districts, and the court ordered 
implementation of that plan for elections held in June 1995. (J.A. 
137) This interim plan included single-member districts, two of 
which are majority-Latino in eligible voter population. The imple­
mentation of that plan was a permissible, appropriate remedy for 
Monterey County’s violation of Section 5. The district court erred 
by refusing to extend it and by imposing an at-large plan that would 
cause retrogression of Latino voting strength.

Where a violation of the Voting Rights Act has occurred, 
the Act compels a remedy for racial discrimination in the electoral 
process that sufficiently redresses the violation found. See, e.g., 
Louisiana v. United States, 380 U.S. 145, 154 (1965) (“the district 
court has not merely the power but the duty to render a decree 
which will so far as possible eliminate the discriminatory effects of 
the past as well as bar like discrimination in the future”); Jordan 
v. Winter, 604 F. Supp. 807, 814 (N.D. Miss.) (three-judge panel) 
(remedial plan “must be sufficient to overcome the effects of past 
discrimination and racial bloc voting and [] provide a fair and equal 
contest to all voters who may participate in congressional 
elections”), aff'd mem. sub nom. Mississippi Republican Exec. 
Comm. v. Brooks, 469 U.S. 1002 (1984).

8



In remedying a Section 5 violation, a court’s obligation— 
at the very least— is to insure that remedial districts do not cause 
retrogression of the voting rights of protected minorities. See 
McDaniel v. Sanchez, 452 U.S. 130, 149 (1981); Beer v. United 
States, 425 U.S. 133, 141 (1976) (“The purpose of Section 5 has 
always been to insure that no voting-procedure changes would be 
made that would lead to a retrogression in the position of racial 
minorities with respect to their effective exercise of the electoral 
franchise.”). See also Statewide Reapportionment Advisory Comm. 
v. Theodore, 508 U.S. 968, 968 (1993) (vacating court-ordered 
plan and remanding “for further consideration in light of the 
position taken by the Solicitor General,” who argued that district 
court had not adequately considered whether plan complied with 
Voting Rights Act) (Brief of Solicitor General at 12-14); Brooks v. 
Winter, 461 U.S. 921, 921 (1983) (vacating court-ordered plan, 
implemented to remedy Section 5 violation, and remanding for 
consideration under amended Section 2 of Voting Rights Act).

To the extent necessary to remedy a violation of the Voting 
Rights Act, including the violation of Section 5, a district court 
may create majority-minority districts. See Jordan, 604 F. Supp. 
at 814—15 (creating a majority-black district to insure that court- 
ordered plan, implemented to remedy violation of Section 5, would 
not unlawfully dilute minority vote); see also Voinovich v. Quilter, 
507 U.S. 146, 156 (1993) (federal courts may order creation of 
majority-minority districts if “necessary to remedy a violation of 
federal law”), on remand, 857 F. Supp. 579 (N.D. Ohio 1994) 
(three-judge panel), app. pending, 64 U.S.L.W. 3238 (1995). 
These districts are a vital means of insuring that an electoral plan 
does not cause retrogression of minority voting strength and of 
ensuring that minority voters have an equal opportunity to elect 
their candidate of choice. See Voinovich, 507 U.S. at 154-55.

Further, where a court is called on to impose an electoral 
plan—whether due to a violation of the Voting Rights Act or 
otherwise—the preferred remedy is to impose a single-member 
district voting scheme and not an at-large one. As the Court wrote 
in Wise v. Lipscomb, 437 U.S. 535, 540 (1978) (citations omitted): 
“[A] court-drawn plan should prefer single-member districts over

9



multimember districts, absent persuasive justification to the 
contrary. We have repeatedly reaffirmed this remedial principle.” 
See also Chapman v. Meier, 420 U.S. 1, 26-27 (1975) (“unless 
there are persuasive justifications, a court-ordered reapportionment 
plan of a state legislature must avoid use of multimember 
districts”). The Court’s preference for single-member districts 
reflects its concern that “multimember districting can contribute to 
voter confusion, make legislative representatives more remote from 
their constituents, and tend to submerge electoral minorities and 
overrepresent electoral majorities . . . .” Connor v. Finch, 431 
U.S. 407, 415 (1977); see Thornburg v. Gingles, 478 U.S. 30, 
47-48 (1986) (“This Court has long recognized that multimember 
districts and at-large schemes may ‘operate to minimize or cancel 
out the voting strength of racial [minorities in] the voting 
population.’”) (citations omitted); Allen v. State Bd. o f  Elections, 
393 U.S. 544, 569 (1969) (“Voters who are members of a racial 
minority might well be in the majority in one district, but in a 
decided minority in the County as a whole. [An at-large plan] could 
therefore nullify their ability to elect the candidate of their choice 
just as would prohibiting some of them from voting.”).

The district court erred when it rejected the extension of the 
interim plan simply because it included majority-Latino districts. 
The interim plan provided single-member districts to protect the 
voting rights of the County’s Latino minority, while also retaining 
a majority-white, multimember voting district. The plan was 
therefore consistent with this Court’s doctrine that remedial plans 
should include single-member districts that will insure that the votes 
of minorities are not submerged by those of the majority. See Wise, 
437 U.S. at 540; Connor, 431 U.S. at 415.

The interim plan’s creation of single-member districts that 
included compact and contiguous majority-Latino districts (J.A.137) 
was a considered remedy for Monterey County’s violation of 
Section 5. The voting scheme in place on November 1, 
1968—before passage of the unprecleared ordinances—was a 
district-based scheme. As a result, and particularly in light of the 
residential concentration of Latinos in Monterey County (J.S. 
App. 95), any subsequent at-large scheme was likely to cause

10



retrogression of Latino voting strength. Appellants and the County 
even had stipulated that, if single-member districts were drawn for 
the municipal court, “at least two geographically compact districts 
can be created each consisting of more than 50% Latino voter 
eligible population.” (J.S. App. 95)

Further, the Court was entitled—if not required—to rely on 
the County’s stipulation that it was unable to prove that an at-large 
scheme would not cause retrogression of the voting strength of 
Latino voters. Indeed, initially the district court had expressed its 
own appropriate “reluctan[ce] to consider a single district, county­
wide election plan . . .  in light of the supported stipulation that 
such a plan would be retrogressive in terms of Latino voting 
strength.” (J.A. 130 n.4 (emphasis added)) In fact, the panel of 
Special Masters that most recently had created a plan for state 
Assembly districts had divided Monterey County between two 
districts only to avoid retrogression and dilution of Latino voting 
strength. See Wilson v. Eu, 1 Cal. 4th 707, 772, 823 P.2d 545, 582 
(Special Masters Report), adopted, id. at 729-30, 823 P.2d at 
559-60 (Cal. 1992). A challenge to the Special Masters’ plan 
brought by white voters under the doctrine of Shaw v. Reno, 113 
S. Ct. 2816 (1993) was rejected in DeWitt v. Wilson, 856 F. Supp. 
1409 (E.D. Cal. 1994), and this Court summarily affirmed that 
decision, 115 S. Ct. 2637 (1995).

The district court here was correct in its initial conclusion 
that the creation of majority-Latino districts was necessary to 
prevent retrogression, and its implementation of the interim plan 
was an appropriate remedy for the County’s violation of Section 5. 
When, on November 1, 1995, the district court revised its initial 
order and failed to order the implementation of a remedial plan 
with single-member districts, including majority-Latino districts, it 
ignored this Court’s setded, well-reasoned authority and committed 
reversible error.

This Court should re-affirm that, where called upon to 
create remedial election plans, courts generally should create 
district-based plans, which may include majority-minority districts 
if necessary to avoid retrogression and dilution of minority voting

11



strength. Absent such plans, courts would be unable to remedy 
Section 5 violations, and their “remedies” would merely perpetuate 
unlawful voting plans. The creation of district-based plans with 
properly drawn, majority-minority districts works toward fulfilling 
the Voting Rights Act’s promise to protect the ability of minority 
voters to elect representatives of their choice. To fail to do so, in 
the face of a violation of the Voting Rights Act, subverts the Act.

II.

THE DISTRICT COURT ERRONEOUSLY READ 
MILLER V. JOHNSON AS JUSTIFYING ITS DEPARTURE 

FROM THE PREFERRED REMEDY OF A 
NON-RETROGRESSIVE PLAN THAT INCLUDES 

SINGLE-MEMBER DISTRICTS

To restore the at-large election plan and to reject the 
County’s and appellant’s request that it extend the interim plan, the 
district court relied on an erroneous interpretation of this Court’s 
decision in Miller v. Johnson, 115 S. Ct. 2475 (1995). The court 
below was wrong when it wrote that Miller “cast doubt upon the 
constitutionality of extending the duration of the previously ordered 
emergency, interim plan” and when it suggested that the Miller 
doctrine was “persuasive justification” for departing from the 
settled remedial standard. (J.A. 167)

In Miller, this Court held that, to subject a districting plan 
to strict scrutiny under the Constitution’s Equal Protection Clause, 
a plaintiff must establish that race was the “predominant” and 
“overriding” factor in the plan’s creation, 115 S. Ct. at 2488-89, 
by proving that “the legislature subordinated traditional race-neutral 
districting principles, including compactness, respect for political 
subdivisions or communities defined by actual shared interests to 
racial considerations.” Id. at 2488. As Justice O’Connor observed 
in Miller, “the threshold standard that the Court adopts . . .  [is] a 
demanding one,” requiring strict scrutiny of a race-conscious plan 
only where a jurisdiction has “relied on race in substantial 
disregard of customary and traditional districting practices.” Id. at 
2497. The Miller standard is thus limited to “extreme instances of

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gerrymandering.” Id. Further, under Miller, once strict scrutiny is 
invoked, a district court still should uphold a plan if it is narrowly 
tailored to serve a compelling state interest. Id. at 2490.

There is no basis for the district court’s view that Miller 
“raises substantial doubt as to whether legislative division into race- 
based districts or election areas can ever withstand constitutional 
scrutiny.” (J.A. 167) Miller makes clear that even district plans 
subject to strict scrutiny can survive that review. Miller, 115 S. Ct. 
at 2490-91; see also Adarand Constructors, Inc. v. Pena, 115 S. 
Ct. 2097, 2117 (rejecting the notion that strict scrutiny is “strict in 
theory, but fatal in fact”); Shaw v. Reno, 113 S. Ct. 2816, 2828 
(1993) (reserving the question whether “the intentional creation of 
majority-majority districts, without more, always gives rise to an 
equal protection claim”).

King v. State Board o f Elections, 1996 WL 13049 (N.D. 
111.) (three-judge court), is on point. In King, the court ruled that 
Illinois’ judicially-created congressional redistricting plan that 
created a majority-Hispanic district (see Hasten v. State Bd. o f 
Elecs., I l l  F. Supp. 634, (1991)) did not violate the Equal 
Protection Clause. Although the King Court found that race was the 
predominant factor in creating that court-ordered plan and that the 
plan was subject to strict scrutiny under Miller, the court upheld the 
creation of the majority-Hispanic district (and the plan) because 
it was narrowly tailored to serve a compelling state interest 
—remedying a Section 2 violation. Id. at *26, *27-28. The court 
stated: “Where a violation of the Voting Rights Act has been 
established, a race-based remedy may be appropriate. . . . This 
compelling interest extends to remedying past or present violations 
of federal statutes intended to eliminate discrimination.” Id. at *26.

Further, Miller explicitly holds that race-consciousness 
alone in districting is not sufficient to subject a plan to strict 
scrutiny review. The Miller Court wrote: “Redistricting legislatures 
will, for example, almost always be aware of racial demographics; 
but it does not follow that race predominates in the redistricting 
process.” 115 S. Ct. at 2488. Here, the district court stated only 
that race was a “significant factor” in establishing the interim plan.

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(J.A. 167) The court thus did not find that race was the “predomi­
nant” factor in the plan, nor even attempt to determine whether the 
interim plan “subordinated traditional race-neutral districting prin­
ciples, including but not limited to compactness, contiguity, respect 
for political subdivisions or communities defined by actual shared 
interests, to race.” Miller, 115 S. Ct. at 2488.

This Court’s summary affirmance of DeWitt v. Wilson, 856 
F. Supp. 1409, 1413-14 (E.D. Cal. 1994), a ff’d, 115 S. Ct. 2637 
(1995), confirms that the district court misread Miller. In DeWitt, 
a three-judge district court held that California’s congressional and 
legislative redistricting, which included majority-minority districts, 
was not subject to strict scrutiny under Shaw v. Reno, 113 S. Ct. 
2816, 2826 (1993). See DeWitt, 856 F. Supp. at 1413-14. The 
DeWitt court reasoned that the challenged redistricting act was not 
subject to strict scrutiny because

[t]he Masters, did not draw district lines based 
deliberately and solely on race, with arbitrary 
distortions of district boundaries. The Masters in 
formulating the redistricting plan, properly looked 
at race, not as the sole criteria in drawing lines but 
as one of the many factors to be considered . . . 
one of which was the consideration of the 
application of the Voting Rights Act’s objective of 
assuring that minority voters are not denied the 
chance effectively to influence the political process.

Id. at 1413-14. As in DeWitt, the court’s finding here that race was 
a “significant” factor in drawing the interim plan did not provide 
a basis for strict scrutiny review of that plan.-'

- Indeed, concurring in Miller, 115 S. Ct. at 2497, Justice O’Connor 
emphasized that “[application of the Court’s standard does not throw into 
doubt the vast majority of the Nation’s 435 congressional districts . . . 
even though race may well have been considered in the redistricting 
process.” Surely, Justice O’Connor’s admonition was not intended to 
exclude from its reach each of the some 60 majority-minority congres-

(continued...)

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Finally, Miller makes clear that intensive factual inquiry is 
necessary to resolve the questions of whether strict scrutiny applies 
and, if so, whether a districting plan can nevertheless withstand that 
review. The district court here compounded its error when it used 
Miller as a justification for its refusal to extend the interim 
districting plan without holding any evidentiary hearing to 
investigate the factual issues. The court concluded that “race was 
a significant factor” even though no party had presented evidence 
concerning the considerations that went into drawing the interim 
plan, including evidence concerning compactness, the division of 
political subdivisions, communities of interest, contiguity, or other 
principles that Monterey County and California may have 
traditionally considered in drawing districts.

According to appellees, the court’s conclusion was appro­
priate in light of the off-the-cuff description of the districting plan 
made by counsel for the County at the court’s status conference 
held on September 28, 1995. {See p. 7 supra) But, the court did 
not even credit that statement in its decision.- Moreover, the 
statement—which was taken out of context and reflected only the 
fact that the interim plan was a remedy for the County’s violation 
of Section 5—was not sufficient to carry a plaintiffs burden under 
Miller. Nor does it substitute for what should have been appellants’ 
right to establish by evidence that “race-neutral considerations” 
were not subordinated to the consideration of race in the creation 
of the interim plan or that the plan also would survive strict 
scrutiny.

- (...continued)
sional districts in place at that time.

- The court’s reliance on the County attorney’s remark would have been 
at odds with the its refusal to credit the County’s considered stipulation 
that it could not show that the at-large, county-wide election of judges in 
Monterey County “did not have the effect of denying the right to vote to 
Latinos in Monterey County due to the retrogressive effect several of these 
ordinances had on Latino voting strength in Monterey County.” (Sillman 
Motion App. 43a; see J.A. at 126)

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In drawing the hasty conclusion that Miller precludes 
Monterey County’s continued use of the interim plan, the district 
court misread Miller as a sweeping indictment of the creation of 
majority-minority districts. This view would not only cripple judi­
cial authority to create lawful majority-minority districts consistent 
with the state’s traditional districting practices but also would 
render meaningless Miller’s holding that even districts drawn 
predominantly on the basis of race are lawful if narrowly tailored 
to serve a compelling state interest. Miller does not command this 
result.

III.

THE DISTRICT COURT ERRED BY CONCLUDING 
THAT CALIFORNIA LAW PROVIDED SUFFICIENT 

JUSTIFICATION FOR IT TO ALLOW 
IMPLEMENTATION OF AN AT-LARGE PLAN

Finally, the district court erroneously deferred to California 
state law and policy in refusing to extend the interim plan or 
to otherwise implement a remedial district-based plan. The court’s 
ruling disavowed longstanding principles that govern the involve­
ment of federal courts in the establishment and oversight of local 
districting plans.

As previously discussed, this Court has held that, in putting 
in place remedial plans, “single-member districts are to be 
preferred in court-ordered legislative plans unless the Court can 
articulate a ‘singular combination of unique factors’ that justifies a 
different result.” Connor v. Finch, 431 U.S. 407, 414-15 (1977) 
(citing Mahon v. Howell, 410 U.S. 315 (1973)). In Connor, this 
Court explicitly rejected adherence to local jurisdictional policies 
against splitting jurisdictional lines in districting as a sufficient 
reason “to overcome the strong preference for single-member 
districting” in court-ordered plans. Id. at 415. The Connor Court 
further held “that the latitude in court-ordered plans for departure 
from the [federal] standard in order to maintain county lines is 
considerably narrower than that afforded apportionments devised by 
state legislatures, and that the burden of articulating special reasons

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for following such a policy . . .  is correspondingly higher.” Id. at 
419-20; see also Washington v. Washington State Commercial 
Passenger Fishing Vessel Ass’n, 443 U.S. 658, 693-94 (1979) 
(state laws may be set aside to vindicate federal rights).

The remedial powers of the federal courts under the Voting 
Rights Act are not limited merely because a remedy may conflict 
with provisions of state law. When state law provisions can be 
accommodated in a remedial plan while also curing the violation of 
federal law, such accommodation generally is required. See 
Upham v. Seamon, 456 U.S. 37, 43 (1982). However, where 
adherence to state law provisions would prevent adoption of an 
effective remedy for a federally secured right, deference to state 
law is unwarranted. See Connor, 431 U.S. at 415.

The court here failed to articulate any persuasive features 
of Monterey County or California state policy that would justify 
adoption of an at-large voting scheme for the election of judges, 
particularly where the County itself has stipulated that it could not 
prove that such a scheme would not cause retrogression of minority 
voting strength. The California Constitution sets certain redistrict­
ing requirements, including “respect” for the “geographical 
integrity of any city, county, or city and county . . .  to the extent 
possible . . . .” Cal. Const. Art. XXI, § 1. This is not a strong 
state policy. Indeed, the state Constitution provides an exception 
for the City and County of San Diego, which “may be divided into 
more than one municipal court district,” id. Art. VI, § 5(d), and 
the Supreme Court of the State of California has upheld the 
drawing of election districts across city lines, where such districts 
were necessary to comply with federal voting rights law and policy. 
See Wilson v. Eu, 1 Cal. 4th 707, 762, 823 P.2d 545, 575 (Special 
Masters Report), adopted, id. at 729-30, 823 P.2d at 559-60 (Cal. 
1992); see also DeWitt, 856 F. Supp. at 1415 (rejecting a Shaw 
challenge to California’s districting plan adopted in Wilson).

The court here erred in doubting whether the interim plan 
was legally enforceable “because it suspended otherwise applicable 
provisions of state law . . .” (J.A. 172) This Court should reverse 
the court’s order, with instructions to accommodate state law,

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where possible, but not at the expense of enforcing the federal 
mandate of the Voting Rights Act and the Constitution.

CONCLUSION

The decision of the three-judge district court to allow 
Monterey County to implement an unprecleared, at-large election 
plan should be reversed and remanded with appropriate guidance 
to assure that the district court fulfills its remedial obligations to 
implement a non-retrogressive plan. The court below failed to do 
so based on its erroneous interpretation of Miller v. Johnson, 115 
S. Ct. 2475 (1995), and its unwarranted deference to state law. 
Accordingly, this Court should instruct the district court and other 
lower courts on their obligations to design remedial plans that 
comport with the Voting Rights Act and that include majority- 
minority districts, where necessary to avoid retrogression or 
dilution of a minority group’s voting strength. Neither Miller nor 
state law are or should be obstacles to such appropriate relief, 
which is critical to the enforcement of the Voting Rights Act and 
the Constitution.

Dated: May 31, 1996

Respectfully submitted,

Sidney S. Rosdeitcher 
Counsel of Record

Gregory A. Clarick
Paul, Weiss, Rifkind, Wharton & Garrison 
1285 Avenue of the Americas 
New York, New York 10019-6064 
(212) 373-3000

Counsel to The American Civil Liberties Union, 
The Lawyers’ Committee for Civil Rights Under 
Law and The NAACP Legal Defense and 
Educational Fund, Inc.

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