Abrams v. Johnson Brief for Appellants

    No. 94-797

In The

Supreme Court of the United States
October Term, 1994

-----------------♦ -----------------

LUCIOUS ABRAMS, JR., REV. G.L. AVERY, WILLIAM 
GARY CHAMBERS, SR., and KAREN WATSON,

Appellants,
v.

DAVID A JOHNSON, et al.,

♦
Appellees.

On Appeal From The United States District Court 
For The Southern District Of Georgia 

(Three Judge Court)
----------------- ♦ -----------------

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

E la in e  R. J o n es 
Director-Counsel 
T h eo d o r e  M. S haw  
N o rm a n  J . C h a c h k in  
J a c q u elin e  A. B er r ien  
NAACP Legal Defense and 

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

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

L a u g h lin  M cD o n a ld  
Counsel of Record
M a ry  W yck o ff  
N eil  B ra dley  
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

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



1

QUESTIONS PRESENTED

1. Whether plaintiffs, who suffered no dilution of 
their voting strength or other "individual harm/' have 
standing to challenge Georgia's congressional redistrict­
ing, or are entitled to any remedy?

2. Whether plaintiffs satisfied the threshold test of 
Shaw v. Reno of proving that Georgia's Eleventh Congres­
sional District was so bizarre or irrational on its face that 
it could only be understood as an effort to segregate 
voters into separate districts on the basis of race?

3. Whether the three judge court erred in holding 
that the racial community of interest shared by black 
citizens in Georgia was barred from constitutional recog­
nition, and that the consideration of race as a substantial 
or motivating factor in congressional redistricting, with­
out regard to district shape, automatically triggers strict 
constitutional scrutiny?

4. Whether the court below erred in reviewing the 
objection of the Attorney General under Section 5 of the 
Voting Rights Act, 42 U.S.C. § 1973c, to the state's pro­
posed congressional redistricting and in concluding that 
the objection was improper, and that as a consequence the 
state did not have a compelling interest in complying 
with the objection?

5. Whether the lower court erred in ruling that the 
state did not have a compelling interest in complying 
with Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, 
or in remedying the effects of past discrimination in 
congressional redistricting?



11

QUESTIONS PRESENTED -  Continued

6. Whether, assuming a compelling or other requi­
site state interest, the lower court erred in holding that 
the state's plan was not narrowly tailored?



Ill

PARTIES TO THE PROCEEDING

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



IV

TABLE OF CONTENTS
Page

Questions Presented...............    i

Parties to the Proceeding.............    iii

Table of Authorities ..........................................................  vi

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

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

Constitutional and Statutory Provisions Involved. . .  2

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

A. The Proceedings Below .................................... 2

B. Racial Discrimination and Bloc Voting in
G eorgia................................................................  4

C. Discrim ination in Prior Congressional
Redistricting............................................    10

1. The 1971 Plan ..........................................  10

2. The 1981 P la n ........................................... 11

D. 1991 Congressional Redistricting.................  13

1. The First P la n ..................... . ................ . . 16

2. The Second Plan....................................... 17

3. The Third P la n ......................................... 18

E. The Decision of the District Court.............. 23

Summary of Argument.................     29

Argument.....................................   30

I. Georgia's Congressional Redistricting Is not 
Subject to Strict Scrutiny.........................................  30

A. The Eleventh District Is not Bizarre.............  36



V

TABLE OF CONTENTS -  Continued
Page

B. Race Was not the Sole Motivating Factor.. 38

C. The Absence of H arm ......................................  38

II. The Eleventh District Would Survive Strict Scru­
tiny .........................................................   42

A. The State's Interest Is Compelling.................. 42

B. The Eleventh District Is Narrowly Tailored .. 45

III. The Court Below Erred in Judicially Reviewing the 
Section 5 Objection of the Attorney General . . . . .  46

IV. Plaintiffs Lack Standing..........................................  48

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

Appendix...................................................................... .App. 1



VI

TABLE OF AUTHORITIES
Page

C a se s :

Allen v. State Board of Elections, 393 U.S. 544
(1969)....................................... ................................... 47

Allen v. Wright, 468 U.S. 737 (1984).............................  49
Beer v. United States, 425 U.S. 130 (1976)............. 34, 43
Burton v. Sheheen, 793 F.2d 1329 (D.S.C. 1992).......... 37
Busbee v. Smith, 549 F.Supp. 494 (D.D.C. 1982),

aff'd 459 U.S. 1166 (1983) . . . . . . .  10, 11, 12, 13, 18, 26
Cane v. Worcester County, Maryland, 35 F.3d 921

(4th Cir. 1994)....................................................................  37
City of Richmond v. J.A. Croson, Co., 488 U.S. 469

(1989) ......................................................................41, 43, 44
City of Rome v. United States, 446 U.S. 156 (1980) . . . .  45
Clark v. Calhoun County, 21 F.3d 92 (5th Cir. 1994) . . . .  36
Concerned Citizens Committee v. Laurens County,

Georgia, Civ. No. CV392-033 (Sept. 8, 1994)........... 25

Davis v. Bandemer, 478 U.S. 109 (1986)................. 34, 39
Diamond v. Charles, 476 U.S. 54 (1986) .......................  49
Fullilove v. Klutznick, 448 U.S. 448 (1980)...................  43
Gaffney v. Cummings, 412 U.S. 735 (1973)............. 31, 34
Georgia v. United States, 411 U.S. 526 (1973).............  28
Gingles v. Edmisten, 590 F.Supp. 345 (E.D.N.C.

1984)............................... ......................................................  41
Harris v. Bell, 562 F.2d 772 (D.C.Cir. 1977).................  47
Holder v. Hall, 114 S.Ct. 2581 (1994).............................  36
Johnson v. De Grandy, 114 S.Ct. 2647 (1994)..........45, 46
Karcher v. Daggett, 462 U.S. 725 (1983).......................  46



vii

TABLE OF AUTHORITIES -  Continued
Page

Katzenbach v. Morgan, 384 U.S. 641 (1966).................  41

Lujan v. Defenders of Wildlife, 112 S.Ct. 2130
(1992).......................................................................... .. .48, 49

McDaniel v. Sanchez, 452 U.S. 130 (1981).....................  47

Metro Broadcasting, Inc. v. F.C.C., 497 U.S. 547
(1990)............................................................................. 42. 43

Mobile v. Bolden, 446 U.S. 55 (1980).............................  34

Morris v. Gressette, 432 U.S. 491 (1977).......................  47

Perkins v. Matthews, 400 U.S. 379 (1971).....................  46

Presley v. Etowah County Commission, 112 S.Ct.
820 (1992)....................................................................   43

Regents of the University of California v. Bakke,
438 U.S. 265 (1978)..................................     41

Reynolds v. Sims, 377 U.S. 533 (1964)..........................  32

Rogers v. Lodge, 458 U.S. 613 (1982).............................  35

Shaw v. Hunt, 861 F.Supp. 408 (E.D.N.C. 1994).............  44

Shaw v. Reno, 113 S.Ct. 2826 (1993).............................. passim

South Carolina v. Katzenbach, 383 U.S. 301 (1966)
.............................................................. ....................42, 44, 47

SRAC v. Theodore, 113 S.Ct. 2954 (1992)................. . . 37

Thornburg v. Gingles, 478 U.S. 30 (1986).... 14, 35, 41, 44

United Jewish Organizations of Williamsburg, Inc.
v. Carey, 430 U.S. 144 (1977)...................  32, 33, 34, 43

United States v. Board of Supervisors of Warren
County, Mississippi, 429 U.S. 642 (1977).......... 47

United States v. Paradise, 480 U.S. 149 (1987)............ 45



V l l l

TABLE OF AUTHORITIES -  Continued
Page

Voinovich v. Quilter, 113 S.Ct 1149 (1993)...................  32

Warth v. Seldin, 422 U.S. 490 (1975).  .........................  49

Wilson v. Eu, 823 P.2d 545 (Cal. 1992)...................... . . 37

Wesberry v. Sanders, 376 U.S. 1 (1964)..................... . . 10

Wygant v. Board of Education, 476 U.S. 276 (1986)
. ...............................................................................41, 44, 45

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

Article III, Section I of the Constitution of the
United States.......................... ......................................... 47

Fourteenth Amendment of the Constitution of the
United States............................................................ 2, 3, 31

S tatutes a n d  R eg u la tio n s:

28 U.S.C. § 1253........................ ............................................. 2

Section 2 of the Voting Rights Act, 42 U.S.C. § 1973 
........................................................... .......................2, 6, 35, 44

Section 5 of the Voting Rights Act, 42 U.S.C.
§ 1973c............................................................................ passim

28 C.F.R. § 51.29.............................................. - .................  28

O th er  A u th o r ities :

Aleinkoff and Issacharoff, "Race and Redistrict­
ing: Drawing Constitutional Lines After Shaw v.
Reno," 92 Mich.L.Rev. 588 (1993)..............................  33

Barone and Ujifusa, The Almanac of American
Politics (1984).............................................................. 13, 40



IX

TABLE OF AUTHORITIES -  Continued
Page

Barone, Ujifusa, and Matthews, The Almanac of
American Politics (1974)................................................. 11

Bositis, Redistricting and Representation: The Cre­
ation of Majority-Minority Districts in the 
South, The Evolving Party System and Some 
Observations on the New Political Order (Joint 
Center for Political and Economic Studies, 1995)
(forthcoming)........................................................................40

Dixon, "Fair Criteria and Procedure for Establish­
ing Legislative Districts" in Representation and 
Redistricting Issues (Grofman, Lijphart, McKay,
& Scarrow eds. 1982)............................................ 34

Grofman, "Criteria for Districting: A Social Sci­
ence Perspective," 33 U.C.L.A.L.Rev. 77 (1985) . . . .  37

Pildes and Niemi, "Expressive Harms, 'Bizarre 
District,' and Voting Rights: Evaluating Elec­
tion-District Appearances after Shaw v. Reno,"
92 Mich.L.Rev. 483 (1993)....................................   33

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

Voting Rights Act: Hearings Before the Subcomm. 
on the Constitution of the Senate Comm, on the 
Judiciary, 97th Cong., 2d Sess. (1982)......................  40



No. 94-797
------- ---------

In The

Supreme Court of the United States
October Term, 1994

............. ..... 4---------------

LUCIOUS ABRAMS, JR., REV. G. L. AVERY, WILLIAM 
GARY CHAMBERS, SR., and KAREN WATSON,

Appellants,
v.

DAVIDA JOHNSON, et al„
Appellees.

-----------------♦ --------------- -

On Appeal From The United States District Court 
For The Southern District Of Georgia 

(Three Judge Court)
------------------------------- 4 . --------------------------------

BRIEF OF APPELLANTS
--------------- 4---------------

OPINIONS BELOW

The September 12, 1994 opinion of the three judge 
court for the Southern District of Georgia (J.S.App. 1-102) 
holding Georgia's Eleventh Congressional District uncon­
stitutional is reported at 864 F.Supp. 1354. The June 14, 
1994 order of the court denying the motion to dismiss for 
lack of standing is unreported and appears at J.S.App. 103.

JURISDICTION

The opinion and order of the three judge district 
court was entered on September 12, 1994. Appellants

1



2

filed their notice of appeal on September 14, 1994, 
J.S.App. 112. Probable jurisdiction was noted on January 
6, 1995. 63 U.S.L.W. 3499. The jurisdiction of this Court is 
invoked under 28 U.S.C. § 1253.

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

The constitutional and statutory provisions involved 
in the case are the equal protection clause of the Four­
teenth Amendment of the Constitution of the United 
States, and Sections 2 and 5 of the Voting Rights Act, 42 
U.S.C. §§ 1973 and 1973c, the pertinent texts of which are 
set out at J.S.App. 115-18.

STATEMENT OF THE CASE
A. The Proceedings Below.

Appellees, plaintiffs below, are white residents of 
Georgia who challenged the state's 1990 congressional 
redistricting on constitutional grounds. One of the plain­
tiffs, George L. DeLoach, was an unsuccessful candidate 
in the 1992 Democratic primary for the Eleventh Congres­
sional District. Substitute Joint Submission of the Parties, 
Exhibit A, Stipulations 44, 47 (hereinafter "Stip.");1 Trial 
Transcript, Volume I, p. 5 (hereinafter "T.Vol."); 
T.Vol.VI,53. The defendants below were Zell Miller, Gov­
ernor of Georgia, Pierre Howard, Lieutenant Governor of 
Georgia, Thomas Murphy, Speaker of the House of Repre­
sentatives of Georgia, and Max Cleland, Secretary of State

1 The parties agreed as to the accuracy and m ateriality of 
Stips. 1-73, and as to the accuracy but not the m ateriality of 
Stips. 74-242.



3

of Georgia. Appellants, who were defendant intervenors 
below (hereinafter "Abrams intervenors"), are a group of 
black and white registered voters and residents of Geor­
gia's Eleventh Congressional District. J.A. 2. The United 
States of America was also a defendant intervenor.

Appellees brought this action on January 13, 1994, 
alleging that "there is no explanation for the configura­
tion of the Eleventh Congressional District except as an 
expression of racial gerrymandering" in violation of Shaw 
v. Reno, 113 S.Ct. 2826 (1993). Complaint, f  1. Plaintiffs 
sought a declaration that the existing plan was uncon­
stitutional, and an injunction requiring the state "to pre­
pare a new redistricting plan." Complaint, p. 13.

The Abrams intervenors filed a motion to dismiss the 
complaint because plaintiffs lacked standing. That motion 
was denied without a hearing. J.S.App. 103, 111. Appel­
lees filed a motion for a preliminary injunction seeking to 
enjoin the state's congressional elections. Following a 
hearing, the three judge court unanimously denied the 
motion. J.A. 3. After trial on the merits a majority of the 
district court held that the Eleventh District violated the 
equal protection clause of the Fourteenth Amendment 
and permanently enjoined further elections in the district. 
Circuit Judge Edmondson dissented. J.S.App. 1, 91-2.

Defendants Miller, Howard, and Cleland (hereinafter 
"the state appellants"), the Abrams intervenors, and the 
United States filed notices of appeal. J.A. 7-8. This Court 
granted a stay upon separate applications of all appel­
lants on September 23, 1994. The Abrams intervenors 
filed a jurisdictional statement on November 2, 1994, and 
the Court noted probable jurisdiction.



4

B. Racial Discrimination and Bloc Voting in Geor­
gia.

Georgia has a long and continuing history of discrim­
ination against blacks in all areas of life, particularly in 
the electoral process and in congressional redistricting. 
That history was so well documented the district court 
ruled that evidence of discrimination "against black peo­
ple in the State of Georgia need not be presented for 
purposes of this case." J.S.App. 119; T.Vol.V,142. The 
court took judicial notice that:

No one can deny that state and local govern­
ments of Georgia in the past utilized wide­
spread, pervasive practices to segregate the 
races which had the effect of repressing black 
citizens, individually and as a group.

. . . .  By law, public schools and public housing 
were segregated according to race. Public recre­
ational facilities were segregated. Miscegenation 
was prohibited. Ordinances required segrega­
tion in public transportation, restaurants, hotels, 
restrooms, theaters, and other such facilities, 
even drinking fountains.

. . . .  Public services were allocated along racial 
lines. . . .  In public employment, black workers 
were often paid less than white workers for the 
same job. In addition, methods of jury selection 
were developed to exclude black people from 
jury service.

Georgia's history on voting rights includes 
discrimination against black citizens. From the 
state's first Constitution -  which barred blacks 
from voting altogether -  through recent times, the 
state has employed various means of destroying 
or diluting black voting strength. For example,



5

literacy tests (enacted as late as 1958) and prop­
erty requirements were early means of exclud­
ing large numbers of blacks from the voting 
process. Also, white primaries unconstitu­
tionally prevented blacks from voting in pri­
mary elections at the state and county level.

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

j.S.App. 119-20 (emphasis added).2

A continuing pattern of racial discrimination in vot­
ing in the state was so self-evident that the court refused 
to accept as exhibits 17 consent decrees offered by the 
Abrams intervenors entered between 1977 and 1993 in 
Section 2 challenges brought against jurisdictions located 
in whole or in part within the Eleventh District. The court

2 This history and its continuing effects are set out in 
greater detail in the stipulations of the parties. See, e.g., Stips. 5 
(whites registered in 1992 at 70.2% of voting age population; 
blacks at 59.8% ), 76-103 (detailing the history of discrimination 
in voting), 104-129 (describing segregation in educational insti­
tutions), 130-134 (noting other forms of racial discrim ination), 
135-55 (stipulating to racial disparities in income, education, 
unem ploym ent, and poverty status). J.A. 9-33.



6

ruled that the decrees showed "a pattern of racial dis­
crimination in Voting Rights that we have already taken 
judicial notice of." T.Vol.VI,207.

While the decrees themselves were disallowed as 
exhibits, the parties stipulated that "voting rights litiga­
tion against the jurisdiction [located in whole or in part in 
the present Eleventh District] resulted in changes in the 
challenged electoral system(s) and/or judicial findings of 
racial bloc voting" in Baldwin County, Milledgeviile, 
Burke County, Effingham County, Butts County, Greene 
County, Henry County, Jefferson County, Jenkins County, 
Putnam County, Richmond County, Augusta, Screven 
County, Twiggs County, Wilkes County, Waynesboro, and 
Warrenton. Stip. 103.3 Courts have also made findings of 
racial bloc voting in Bleckley, Carroll, Colquitt, DeKalb, 
Dougherty, and Fulton Counties. Stip. 102.

The experts who testified were in agreement that 
voting in Georgia is racially polarized. Dr. Allan Licht- 
man, an expert for the United States, examined more than 
300 elections spanning an approximately 20-year period. 
T.Vol.V,200. He used the standard statistical techniques of 
ecological regression and extreme case analysis, and 
examined four sets, or levels, of black/white contests: (1) 
county level contests throughout the state; (2) county 
level contests within the Eleventh and Second Districts; 
(3) six statewide elections partitioned within the bound­
aries of the Eleventh and Second Districts; and, (4) the

3 The court also refused on sim ilar grounds of redundancy 
to accept as exh ib its com pilations of Section 2 challenges 
brought betw een 1974 and 1990 to at-large elections in 40 cities 
and 57 counties throughout the state. T.Vol.VI,207.



7

1992 Eleventh and Second District elections. DOJ Exs. 24, 
41; T.Vol.V,199.

As for level one, Dr. Lichtman's analysis showed 
"strong" patterns of racial bloc voting, with blacks and 
whites voting "overwhelmingly" for candidates of their 
own race. DOJ Ex. 24, at 7-8. Level two and three analysis 
also showed "strong" patterns of racial bloc voting. Id. at 
8-9; T.Vol.V,202-03. In five of the six statewide contests in 
the Eleventh District, at least 89% of blacks voted for 
black candidates, and at least 74% of whites voted for 
white candidates. DOJ Ex. 24, at 9. The exception to the 
pattern was the 1992 Democratic primary for labor com­
missioner in which the black candidate got 45% of the 
white vote, and 96% of the black vote. In the ensuing 
primary runoff the black candidate got only 26% of the 
white vote, and 92% of the black vote. Id. at 14.

The 1992 primary and runoff in the Eleventh District 
were also racially polarized. In the primary, which 
involved one white and four black candidates, the white 
candidate, DeLoach, was the first choice among whites 
with 45% of the white vote. Cynthia McKinney, who was 
the leading vote getter over all, was second among whites 
with 20% of the white vote. Id. at 17; J.A. 22. In the runoff, 
whites increased their support of DeLoach to 77%. 
McKinney's white vote support increased to just 23%. Id.

Dr. Lichtman found voting patterns to be different in 
statewide non-partisan judicial elections in which 
appointed blacks ran as incumbents. He included these 
contests in his report but treated them as having "mini­
mal relevance." T.Vol.V7,228.

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



8

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

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

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

In addition to these judicial findings and expert opin­
ions, Representative Tyrone Brooks testified that 
"[rjacially polarized voting in this state is a reality, and 
we cannot run from that." T.Vol.IV,228. Lt. Governor 
Howard testified that "there are still a lot of white voters 
in Georgia, I'm sure, who won't vote for a black candi­
date, and I'm sure that there are a lot of black [voters] 
who won't vote for a white candidate." T.Vol.IV,220.



9

Intervenor Lucious Abrams, a Burke County farmer 
who has worked in a number of local political campaigns, 
testified that "a black will not win out of a majority white 
district." T.Vol.VI,57. Kathleen Wilde, a former ACLU 
staff attorney with extensive experience in voting rights 
litigation in Georgia who was called as a witness by the 
plaintiffs, said that "[rjacial polarization is sufficiently 

• strong throughout the state that majority white districts 
have historically elected white candidates, both state 
wide and in districting systems." T.Vol.IV,106.

Of the 40 black members of the Georgia general 
assembly, only one was elected from a majority white 
district. T.Vol.IV,236; J.A. 26-7. Of the 31 black members 
of the house, 26 were elected from districts that wrere 60% 
or more black. Of the nine black members of the senate, 
eight were elected from districts that were 60% or more 
black. Abrams Exs. 23-4; T.Vol.VI,208; DO} Ex. 57; 
T.Vol.VI,204. While only one black was elected from a 
majority white district, whites won in 16 (29%) of the 55 
majority black house and senate districts. J.A. 26-7.

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



10

C. Discrimination in Prior Congressional Redis­
tricting.4

Georgia's 1931 congressional reapportionment was 
invalidated in Wesberry v. Sanders, 376 U.S. 1 (1964), on 
one person, one vote grounds. The redistricting which 
followed based on the 1970 census was the first congres­
sional redistricting in the state subject to Section 5 review.

1. The 1971 Plan.

The plan initially passed by the state in 1971 discrim­
inated in three distinct ways. First, it divided the concen­
tration of black population in the metropolitan Atlanta 
area into the Fourth, Fifth, and Sixth Districts to insure 
that the Fifth would be majority white. Stips. 170, 173, 
180; Basbee v. Smith, supra, 549 F.Supp. at 500. Second, it 
moved the residences of blacks who were recognizable 
potential candidates from the Fifth to the Sixth District, 
i.e., Atlanta Vice-Mayor Maynard Jackson and Andrew 
Young, who had run for the Fifth District in 1970. Stips. 
172, 180; Busbee v. Smith, supra, 549 F.Supp. at 500. Third, 
it included in the Fifth District the residences of whites 
who were recognizable potential candidates. Stip. 172; 
Busbee v. Smith, supra.

Blacks in the house and senate proposed alternative 
plans during the 1971 redistricting process which 
increased the minority percentage in the Fifth District.

4 The description of the 1971 and 1981 redistricting pro­
cesses is taken, except where otherwise noted, from the findings 
of the court in Busbee v. Sm ith, 549 F.Supp. 494, 500 (D.D.C. 
1982), aff'd, 459 U.S. 1166 (1983), and the stipulations of the 
parties.



11

Although these plans were supported by the black mem­
bers, they were overwhelmingly rejected by the white 
majority. Stips. 175-78.

The state submitted its plan for preclearance, but the 
Attorney General objected. He was unable to conclude 
"that these new boundaries will not have a discrimina­
tory racial effect on voting by minimizing or diluting 
black voting strength in the Atlanta area." Stip. 179. The 
state drew another plan increasing the percentage of 
blacks in the Fifth District to 44%, and the plan was 
precleared. Stip. 181; Barone, Ujifusa, and Matthews, The 
Almanac of American Politics 232 (1974).

2. The 1981 Plan.

The state's 1981 congressional plan was also the 
product of intentional discrimination. Based on the 1980 
census, the 1971 plan was malapportioned. Stip. 187. All 
of the districts were majority white, with the exception of 
the Fifth which was 50.3% black based upon total popula­
tion. Busbee v. Smith, supra, 549 F.Supp. at 498.

The new plan drawn in 1982 maintained white major­
ities in nine of the ten districts and increased the black 
population in the Fifth to 57.3%. Stip. 188. While blacks 
were a slight majority (52%) of the voting age population 
("VAP") in the Fifth District, they were a minority (46%) 
of registered voters. Stip. 189. The plan, as did the 1971 
plan, split the concentrated black population in the met­
ropolitan Atlanta area into three districts, the Fourth, 
Fifth, and Sixth, to minimize minority voting strength. 
Stips. 190-91, 195, 206, 234-35; Busbee v. Smith, supra, 549 
F.Supp. at 515.



12

The state submitted the plan for Section 5 pre­
clearance and the Attorney General objected. Stip. 183. 
The state then filed a declaratory judgment action in the 
district court for the District of Columbia, which also 
denied preclearance. Stip. 186.

The senate, over the objections of some of its mem­
bers, had passed a congressional plan containing a 69% 
majority black Fifth District. Stip. 215. Those who objec­
ted claimed the plan would divide congressional districts 
into "black and white" and "bring out resegregation," 
Busbee v. Smith, supra, 549 F.Supp. at 507, and "might 
allow the black community an opportunity to elect a 
candidate of its choice to the United States Congress." 
Stip. 213; Busbee v. Smith, supra, 549 F.Supp. at 506.

The house leadership rejected the senate's proposed 
Fifth District. Stips. 216-18. Joe Mack Wilson, chair of the 
house reapportionment committee and the person who 
played the instrumental role in congressional redistrict­
ing, explained to his colleagues that "I don't want to 
draw nigger districts." Busbee v. Smith, supra, 549 F.Supp. 
at 501; Stip. 199. He generally opposed legislation of 
benefit to blacks, which he referred to as "nigger legisla­
tion." Stip. 199; Busbee v. Smith, supra, 549 F.Supp. at 500.

Speaker Murphy was also opposed to the senate's 
Fifth District because he felt "we were gerrymandering a 
district to create a black district where a black would 
certainly be elected." Busbee v. Smith, supra, 549 F.Supp. at 
509-10. The speaker "refused to appoint black persons to 
the conference committee [to resolve the dispute between 
the house and senate] solely because they might support 
a plan which would allow black voters, in one district, an



13

opportunity to elect a candidate of their choice." Stip. 
220; Busbee v. Smith, supra, 549 F.Supp. at 510.

The District of Columbia court concluded -  on the 
basis of "overt racial statements, the conscious minimiz­
ing of black voting strength, historical discrimination and 
the absence of a legitimate non-racial reason for adoption 
of the plan" -  that the state's submission had a discrimi­
natory purpose in violation of Section 5. Busbee v. Smith, 
supra, 549 F.Supp. at 517. The state submitted a remedial 
plan to the court which increased the black VAP in the 
Fifth District to 60%, and the plan was precleared. Stip. 
238; Barone and Ujifusa, The Almanac of American Politics 
289 (1984).

D. 1991 Congressional Redistricting.

Based on the 1990 census African-Americans are 27% 
of the total population and 24.6% of VAP in Georgia. J.A. 
9. As a result of the census, the state's congressional 
delegation increased from ten to 11 members. J.S.App. 5.

Prior to the beginning of the 1990s redistricting pro­
cess, and prior to any involvement by the Department of 
Justice, state officials agreed upon a goal of increasing the 
number of majority black congressional districts from one 
to two. T.Vol.II,37-8,69,123. The establishment of that goal 
was due to a great extent to the increased number of 
blacks serving in the general assembly and their advo­
cacy of increasing the number of majority-minority con­
gressional districts. T.Vol.II,124.

Members of the legislative black caucus, led by Rep­
resentatives Brooks, McKinney, and John White, origi­
nated and advocated the idea of creating not two but



14

three m ajo rity -m in o rity  congressional d istricts. 
T.Vol.IV,101,247-48. A similar position was advocated by 
black senators on the floor of the senate. T.Vol.111,234-35. 
They reasoned that because of racial bloc voting three 
majority-minority districts were needed to provide blacks 
with equal electoral opportunities roughly in keeping 
with the black percentage of the state's population. 
T.Vol.IV,228.

Ms. Wilde, at that time on the staff of the ACLU, 
prepared a plan for the black caucus which contained 
three majority-minority districts. J.A. 60-1; T.Vol.IV,101. 
Her intent in preparing the plan was to comply with the 
geographic compactness standard of Thornburg v. Gingles, 
478 U.S. 30 (1986), and to demonstrate that a roughly 
proportional number of majority black districts could be 
drawn, not to maximize black voting strength in the sense 
of creating the greatest possible number of majority- 
minority districts. T.Vol.IV,71-2. In drawing her plan she 
followed precinct lines, the state's traditional redistrict­
ing building blocks. T.Vol.IV,83.

Ms. Wilde's plan was entered on the state's computer 
and was officially named MCKINNEY.BMCCONGRESS 
after Representative McKinney, the plan's principal spon­
sor and a member of the house reapportionment commit­
tee. The plan was also referred to as the Black Max or 
Max plan. J.A. 60-1; J.S.App. 99 n.5; T.Vol.11,30-1. The 
NAACP, the Georgia Association of Black Elected Offi­
cials, Concerned Black Clergy, and the Southern Christian 
Leadership Conference endorsed the McKinney-black 
caucus plan. T.Vol.IV,86,230,233.

Lt. Governor Pierre Howard, who is white and is the 
president of the senate, also supported the concept of



15

three majority black congressional districts. He advised 
Senator Eugene Walker, the black chair of the senate 
reapportionment committee, that "I was willing to try to 
do the right thing about creating three districts." 
T.Vol.IV,205. He denied that in taking such a position he 
was acting under pressure from the Department of Jus­
tice. Id. at 206. He did not, however, support the inclusion 
of portions of Savannah in the Eleventh District. Id.

Redistricting began during the 1991 legislative ses­
sion. Stip. 7. Both houses adopted redistricting guidelines 
which included: complying with one person, one vote; 
using single member districts only; drawing districts that 
were contiguous; avoiding the dilution of minority voting 
strength; maintaining the integrity of political subdivi­
sions where possible; protecting incumbents; and, pre­
serving the core of existing districts. J.S.App. 5; J.A. 65-77. 
Compactness was not a redistricting criteria.

The guidelines were designed to "maximize public 
input before and after the committee's redistricting plans 
have been made." J.A. 65,72. The public was provided 
access to all the committees' documents and records, 
including all data bases used in redistricting. Proposed 
redistricting plans could be presented to the committees 
by any individual or organization. All proposed plans, 
including those prepared by legislators, were required to 
be race-conscious, i.e., to show "the minority population 
for each proposed district." J.A. 68,74.

Public hearings were held throughout the state in 
April, May, and August of 1991. At the first public hear­
ing in April, the chairman of the Georgia Republican 
Party submitted a plan creating a majority black district 
extending from south DeKalb County to Augusta. J.A. 82;



16

T.Vol. 11,153. The plan was entered on the state's computer 
as LINDA.TEMPLATE. LINDA.TEMPLATE became the 
model for the Eleventh District. T.Vol.11,16,20,153-54.

A special session of the general assembly was held 
from August 19 to September 5, 1991 for the purpose of 
redistricting. A great many congressional plans were pro­
posed and introduced during the public hearings, the 
work sessions of the redistricting committees, and the 
special session of the legislature. All the proposed plans 
included between one and three majority black districts. 
J.A. 13. Representative Brooks introduced the McKinney- 
black caucus plan in the house in committee and offered 
it as an amendment on the floor but the plan was never 
adopted. T.Vol.IV,230; J.S.App. 99 n.5.

1. The First Plan.

The state submitted its first congressional redistrict­
ing plan to the Department of Justice under Section 5 on 
October 1, 1991. The plan contained two majority-minor­
ity districts (the Fifth -  57.8% black VAP -  and the Elev­
enth -  56.6% black VAP), and a third district (the Second) 
with 35.4% black VAP. J.S.App. 12 n.5; J.A. 14-5. The 
Eleventh District in the first plan was modeled "almost 
exactly" after LINDA.TEMPLATE. T.Vol.II,20,153-54; J.A. 
82.

The Attorney General objected to the state's plan by 
letter dated January 21, 1992, on the grounds that: "elec­
tions in the State of Georgia are characterized by a pat­
tern of racially polarized voting;" "the Georgia legislative 
leadership was predisposed to limit black voting poten­
tial to two black majority districts;" the leadership did 
not make a good faith attempt to "recognize the black



17

voting potential of the large concentration of minorities 
in southwest Georgia;" and, the state had provided only 
pretextual reasons for failing to include in the Eleventh 
District the minority population in Baldwin County. J.A. 
99,105-07.

2. The Second Plan.

After the Section 5 objection, the reapportionment 
committees and the general assembly considered 
numerous other plans. J.A. 17. The senate passed a plan, 
REDRAW.SREDRAW2, containing three majority black 
districts and in which the black VAP in the Eleventh 
District was increased from 56.6% to 58.7%. The Eleventh 
District included concentrations of black population in 
south Dekalb County, Augusta, and Savannah. J.A. 62,98. 
The conference committee rejected the senate's plan. 
T.Vol.III,212-13,234.

The state enacted a second plan and submitted it for 
preclearance, again containing two majority black dis­
tricts (the Fifth -  57.5% black VAP -  and the Eleventh -  
58% black VAP) and a third district (the Second) with 45% 
black VAP. J.S.App. 17 n.9; J.A. 17-8,54. Once again, the 
Eleventh District was modeled on LINDA.TEMPLATE, 
and included minority population from Baldwin County. 
T.Vol.II,153-54; J.A. 82.

The Attorney General objected to the second plan on 
March 20, 1992 on the grounds that: the state remained 
"predisposed to limit black voting potential to two black 
majority voting age population districts;" "alternatives 
including one adopted by the Senate included a large 
number of black voters from Screven, Effingham and 
Chatham Counties in the 11th Congressional District;"



18

and, the state had provided "no legitimate reason" for its 
failure to include in a majority black congressional dis­
trict the second largest concentration of blacks in the 
state. J.A. 120,124-26.

The state made the decision not to seek judicial pre­
clearance of its plans from the district court for the Dis­
trict of Columbia. j.A. 21. Mark Cohen, the state's chief 
legal advisor during redistricting, recommended against 
seeking judicial preclearance because he felt the chances 
of winning approval "were very much harmed by the 
Busbee case, that we were in a similar situation because of 
the Senate's action." T.Vol.V,6. Representative Bob 
Hanner, chair of the house reapportionment committee, 
opposed filing a lawsuit because he felt the state should 
conduct its own redistricting and that the plan passed by 
the senate (REDRAW.SREDRAW2) would cause the court 
to reject the first and second plans. T.Vol.III,246,262. 
Speaker Murphy expressed similar reasons for not seek­
ing judicial preclearance. T.Vol.II,63,80,99.

3. The Third Plan.

The state submitted a third plan to the Attorney 
General, which is the subject of this litigation, containing 
three majority black districts (the Fifth -  57.5% black VAP, 
the Eleventh -  60.4% black VAP, and the Second -  52.3% 
black VAP) on April 1, 1992. J.A. 19-20,51-2. The plan 
maintained the south DeKalb to Augusta core of the 
Eleventh District similar to that in the first and second 
plans. It also incorporated features of the senate plan 
(REDRAW.SREDRAW2) in that it included portions of 
Savannah in the Eleventh District. J.S.App. 93 n.l. The 
plan was similar to the McKinney-black caucus plan in



19

that it contained three majority black districts, but as 
Judge Edmondson found it was "significantly different in 
shape in many ways." J.S.App. 99 n.5, 192. The submis­
sion was precleared on April 2, 1992. J.S.App. 23.

The Eleventh District is not a regular geometric form, 
but neither are any of the state's other congressional 
districts. Prior plans had irregular districts, such as the 
Eighth District under the 1980 plan. J.A. 80; T.Vol.II,84; 
T.Vol.VI,70. Under the 1992 plan the Eighth District goes 
from the suburbs of Atlanta all the way to the Florida 
line. T.Vol.III,268. In addition, as Judge Edmondson 
found, the Eleventh is far more regular looking in shape 
than other congressional districts that have been chal­
lenged in the wake of Shaw v. Reno, supra, such as the 
Twelfth in North Carolina and the Z-shaped Fourth in 
Louisiana. J.S.App. 99-100.

Plaintiffs' own expert testified that, based upon 
quantitative measures, "the Eleventh District scored 
above traditional cutoffs for compactness," J.S.App. 101 
n.6, and that if a district is above the cutoff, "you proba­
bly don't need to worry about these issues [of compact­
ness]", T.Vol.IV,276-279, "you don't look." Id. at 286. He 
also agreed that "geographical compactness" is "such a 
hazy and ill-defined concept that it seems impossible to 
apply it in any rigorous sense in matters of law." 
T.Vol.IV,282.

Judge Edmondson found that social science measures 
for compactness "show the Eleventh District is not 
bizarre or highly irregular." J.S.App. 100. While not 
endorsing the reliability of the measures, he concluded 
that "[according to perimeter scoring, the Eleventh is



20

more compact than approximately forty-six other con­
gressional districts in the country." Id.; T.Vol.111,179-80. 
Under "dispersion measurements, the Eleventh is more 
compact than about twenty-nine other districts." Id.

Creating a majority black Eleventh District and com­
plying with the Attorney General's Section 5 objections 
were admittedly significant factors in the state's adoption 
of its final plan, but they were not the only significant 
factors. While it did not discuss them in any detail, the 
majority noted that the general assembly "was concerned 
with passing redistricting legislation affecting all Geor­
gians, and contended with numerous factors racial, politi­
cal, economic, and personal." J.S.App. 26. The state's 
"submissions reflected many influences." Id.

In compliance with the state's guidelines, the Elev­
enth District substantially follows traditional political 
boundaries. Seventy-one percent of the district's line fol­
lows state, county, and municipal boundaries, a greater 
percentage than in five other districts in the state. 
J.S.App. 98; T.Vol.V,109. Again following the redistricting 
guidelines, 87% of the area within the Eleventh District is 
composed of intact counties, a greater percentage than in 
seven other districts. J.S.App. 98. The majority (94%) 
white Sixth District contains no intact counties. J.A. 20,27.

Partisan politics played an important role in the con­
figuration of district lines. J.S.App. 95 n.2. In general, 
Republicans favored a plan which would increase the 
number of districts in which Republicans might control 
the outcome of elections by increasing the number of 
majority black districts. T.Vol.II,67-8.



21

Partisan political concerns and the purely personal 
preferences of individual legislators dictated the con­
struction of district lines in many ways. Speaker Murphy, 
an ardent Democrat, advised the chairman of the house 
reapportionment committee that he (Murphy) would not 
support any plan that included Harrelson County, Mur­
phy's county of residence, in the Sixth Congressional 
District. The reason the speaker did not want Harrelson 
County to be included in the Sixth District had nothing to 
do with race but was based on the fact that the district 
was represented by Republican Newt G ingrich. 
T.Vol.II,73,75,77. According to Speaker Murphy, "Con­
gressman Gingrich and I never got along. We didn't talk. 
We didn't like each other and I just wanted out of his 
district." T.Vol.II,77. As a result, "all the counties got split 
in the Sixth." T.Vol.III,729.

Speaker Murphy intervened in congressional redis- 
tricting on other occasions, none of which were related to 
race. After the second objection by the Attorney General, 
he helped move precinct lines in DeKalb County as a 
personal favor to the lieutenant governor. The lieutenant 
governor wanted to make sure the county of then Senator 
Don Johnson was in the Tenth District, a district in which 
Johnson could presumably win. On another occasion, 
Speaker Murphy helped move precinct lines in Gwinnett 
County at the request of a house colleague. T.Vol.II,78-9.

Other non-racial factors not discussed by the major­
ity drove congressional redistricting and contributed to 
the shape of the Eleventh District. The state made a 
political decision to keep several rural majority white 
counties in the Eleventh District intact, even though it 
resulted in drawing more irregular lines elsewhere in the 
district, i.e., making "them a little bit more crooked and



22

maybe not follow the major thoroughfare all the way 
through," in urban areas such as Augusta and Savannah. 
T.Vol.1,29-30,143-44.

The shape of the Eleventh District was drawn in an 
irregular manner near the eastern border of DeKalb 
County to accommodate the request of the chair of the 
senate reapportionment committee that the majority 
white precinct in which his son lived be included in the 
district. T.Vol.11,187,202. Perhaps the most irregular part 
of the Eleventh District is in western DeKalb County. 
However, the irregularity is a function of the fact that the 
line follows the boundary of the city of Atlanta. 
T.Vol.11,197. At its narrowest point in DeKalb County, the 
Eleventh District is constricted on one side by the tradi­
tional boundaries of a major highway and on the other by 
the city limits of Avondale Estates. T.Vol.II,199-200.

In Richmond County, the Eleventh District substan­
tially follows precinct lines, municipal boundaries, and 
major roadways. T.Vol.II,224. As Judge Edmondson 
found, "the Eleventh makes curious turns in some 
areas . . . [b]ut, in these areas most of the lines follow 
existing city boundaries or major highways and roads." 
J.S.App. 98.

Part of the Eleventh District was drawn into Butts 
and Henry Counties, rather than in Newton and Rockdale 
Counties, for purely political reasons to get the votes of 
certain legislators. T.Vol.II,206-09. The portion of the 
Eleventh District in Henry County is narrow because the 
state made the non-racial decision to follow precinct 
lines. T.Vol.1,207-09.

The district is narrow in Chatham County because a 
local white representative, Sonny Dixon, wanted it drawn



23

"by the narrowest means possible," T.Vol.IV,174, to keep 
as much of the county in the First District as possible, 
especially all of Port Wentworth, Garden City, the Garden 
City marine shipping terminal, and several industrial 
plants north of Savannah. T.Vol.IV,172-78. Even then, as 
Representative Dixon explained, the line "was not arbi­
trarily selected" but follows "my State House District," as 
well as the city of Savannah boundary. T.Vol.IV,177,178 
("[w]e tried to use common lines between State House 
Senate and congressional plans").

The Eleventh is narrow in Effingham County for 
virtually the same reason, i.e., a local white representative 
wanted to keep as much of the county out of the Eleventh 
as possible. J.S.App. 44 n.25; T.Vol.1,107-09. "Politics" 
influenced the decision about where to draw district lines 
in Baldwin County as well. T.Vol.III,265.

According to Speaker Murphy, redistricting is "vastly 
different" from other matters that come before the gen­
eral assembly because "it's not just a one-issue thing. 
There's hundreds of issues because there are hundreds of 
people wanting their property and their county in a dif­
ferent district." T.Vol.II,92-3.

E. The Decision of the District Court.

The majority found that "the plaintiffs suffered no 
individual harm; the 1992 congressional redistricting 
plans had no adverse consequences for these white 
voters." J.S.App. 31. The record is also devoid of evidence 
of harm to anyone else, or to any interest identified by 
the Court in Shaw, i.e., increasing racial bloc voting or 
depriving voters of effective representation. See 113 S.Ct.



24

at 2827-28. A parade of witnesses testified that the Elev­
enth D istrict has not increased racial tension, 
T.Vol.VI,45,120, caused segregation, T.Vol.IV,104,242, 
T.Vol.VI,47,58, imposed a racial stigma, T.Vol.IV,104,240, 
T .V ol.V I,38, deprived anyone of representation, 
T.Vol.VI,36,56,117, caused harm, T.Vol.Ill,268, and is not a 
guaranteed black seat. T.Vol.IV,106,239, T.Vol.VI,57,125. 
The court acknowledged that "[ujnder the Supreme 
Court's most recent pronouncements, this lack of con­
crete, individual harm would deny them standing to 
sue." J.S.App. 31. Nonetheless, in the majority's view 
"Shaw v. Reno's expanded notion of harm liberalizes the 
standing requirement." J.S.App. 33. In its order denying 
the Abrams interveners' motion to dismiss for lack of 
standing, the court ruled that it was not even necessary 
for a plaintiff to reside in an irregularly shaped district to 
have standing to challenge it. J.S.App. 104-09. The harm 
suffered by plaintiffs was "systemic," and flowed simply 
from the existence of a district which the majority 
deemed was irregularly shaped. J.S.App. 32. For that 
reason, a "regularly shaped" district, even though drawn 
for reasons of race, could not confer standing. J.S.App. 32 
and n.17 ("a compact majority-black voting district could 
not be challenged as a racial 'gerrymander' "); J.S.App. 42 
n.24 ("a bizarre district shape is indeed a 'threshold' for 
purposes of standing").

While a bizarre shape was a requirement for stand­
ing, the majority held that "[t]he shape of the district is 
not a 'threshold' inquiry preceding an exploration of the 
motives of the legislature." J.S.App. 30. Strict constitu­
tional scrutiny was required where it is "shown that race 
was the substantial or motivating consideration in creation 
of the district in question." J.S.App. 36 (footnote omitted).



25

Thus, the majority held that the consideration of race in 
redistricting was not sufficiently harmful to confer stand­
ing, but it was sufficiently harmful to trigger strict scru­
tiny.

Elsewhere in its opinion the majority held that any 
consideration of race in redistricting was constitutionally 
prohibited. Taking into account "the racial community of 
interest shared by black citizens in Georgia . . .  is barred 
from constitutional recognition." J.S.App. 45. Despite its 
extensive judicial notice of past discrimination and its 
continuing effects in Georgia, J.S.App. 119, the court held 
that "fa] voting district . . . that is configured to cater 
to . . . 'black7 concerns is simply a race-based voting 
district. It is based on superficial, racially founded gener­
alizations," and "trafficks in racial stereotypes." J.S.App. 
46. During the cross-examination of plaintiffs' expert, 
however, who admitted that he had taken race into 
account in drawing redistricting plans containing odd 
shapes as a consultant in other voting cases, Judge Bowen 
admonished the witness that "we've all done districting 
on account of race. There is no reason to be embarrassed 
about that." T.Vol.III,164.5

Race was a substantial factor in the construction of 
the state's Ninth Congressional District. The Ninth, 
which is approximately 95% white, J.A. 20, was created

5 Indeed, during a recess in the trial, Judge Bowen met with 
attorneys in another voting case "to  re-draw Laurens County." 
T.Vol.V,141. He drew a court ordered plan intentionally creating 
two m ajority black districts. Concerned Citizens Committee v. Lau­
rens County, Georgia, Civ. No. CV392-033 (Sept. 8, 1994). A copy 
of the order is reproduced in the appendix hereto at App. 1. One 
of the m ajority black districts was divided by a river and was 
"contiguous" only by virtue of an auto and foot bridge. App. 7.



26

during the 1980 redistricting process to preserve in one 
district the distinctive white community in the mountain 
area of the state. T.Vol.11,254-55; Busbee v. Smith, supra, 549
F.Supp. at 499, 517 (the state "placed cohesive white 
communities throughout the state of Georgia into single 
Congressional districts . . . [f]or example, the so-called 
'mountain counties' of North Georgia"). The district was 
again drawn as a majority white district during the 1990 
redistricting process, and for the same reasons as in 1980. 
Tr.Prelim.Injun. 126-28. Despite the fact that race was a 
substantial or motivating factor in its construction, the 
majority did not hold that the Ninth, like the Eleventh, 
was constitutionally suspect or should be subjected to 
strict scrutiny.

The majority held that the Eleventh District was 
racially gerrymandered and stressed that it used narrow 
"land bridges" to DeKalb, Richmond and Chatham Coun­
ties to link centers of population. J.S.App. 43. Land 
bridges, which are narrow corridors that may or may not 
contain population, are not unique to the Eleventh Dis­
trict, nor to the 1990 redistricting process. As Judge 
Edmondson found, land bridges are used in the current 
Seventh District, and were used in the 1970 congressional 
redistricting plan. J.S.App. 98-9. The current Eighth Dis­
trict also includes a land bridge. T.Vol.III,268. Moreover, 
as the majority found, the land bridge to Chatham 
County through Effingham was drawn in a narrow man­
ner for non-racial reasons, i.e., "the representative from 
that area succeeded in narrowing the bridge . . .  by 
keeping as much of the resident population within the 
adjacent First Congressional District as possible." 
J.S.App. 44 n.25.

In the majority's view, additional evidence of an 
improper racial motive in the construction of the district



27

included simply the fact that the district was majority 
black: "[ojther observations shed light on the racial 
manipulations behind the Eleventh, most notably the 
simple one that the total black population of Georgia is 
26.96%, while within the Eleventh it is 64.07%." J.S.App. 
48. The court did not find a similar racial motive in the 
construction of congressional districts in which whites 
exceeded their percentage of the state's population.

Although it acknowledged that "decisions of the 
Attorney General are not reviewable by this Court," 
J.S.App. 63 n.32, the majority nonetheless directly 
reviewed the Section 5 determination of the Attorney 
General and held that it was "improper . . . because it 
compelled legislative efforts not reasonably necessary/ 
narrowly tailored to the written dictates of the VRA." 
J.S.App. 63. According to the majority, "DOJ stretched the 
VRA farther than intended by Congress or allowed by the 
Constitution." J.S.App. 65; 66 ("DOJ clearly disregarded" 
applicable Voting Rights Act regulations); 26 (the Attor­
ney General's "reading of the Voting Rights Act" was 
"m isguided"). Because the Attorney General was 
"wrong" in his interpretation of Section 5, the state had 
"no compelling interest" in complying with the objection. 
J.S.App. 62.6 The majority also held that "Georgia's cur­
rent redistricting plan exceeds what is reasonably neces­
sary to avoid retrogression under Section 5." J.S.App. 68.

The majority was highly critical of the role played by 
black legislators in the redistricting process, whom it

6 The m ajority further held that a compelling state interest 
in rem edying prior discrim ination in voting "does not exist 
independent of the Voting Rights A ct." J.S.App. 56; 57 ("[a]ny 
independent state interest in the remedial revision of voting 
laws is subsum ed within that broad federal legislation").



28

castigated as "partisan 'informants' " and "secret agents," 
as well as the ACLU in providing information to the 
Attorney General and proposing alternative redistricting 
plans on behalf of minority and civil rights groups. 
J.S.App. 24, 27. The chair of the house reapportionment 
committee, however, denied that there was anything 
improper about the ACLU assisting or being an effective 
advocate for the black caucus. T.Vol.Ill,271-72. The regu­
lations promulgated by the Attorney General for the 
administration of Section 5, which have been held consti­
tutional, Georgia v. United States, 411 U.S. 526, 536 (1973), 
permit, and indeed encourage, comments from interested 
third parties. 28 C.F.R. § 51.29.

Some black legislators and the ACLU urged the 
Attorney General to object to the plan that was pre­
cleared, T.Vol.IV,103, while as Judge Edmondson found, 
the adopted plan "is significantly different in shape in 
many ways" from the plan proposed by the ACLU. 
J.S.App. 99 n.5; T.Vol.IV,107. Far from showing that the 
ACLU or "partisan 'informants' " and "secret agents" 
dominated the Attorney General and the preclearance/ 
redistricting process, the plan adopted by the state 
showed, according to Judge Edmondson, "consideration 
of other matters beyond race, including traditional dis­
tricting factors (such as keeping political subdivisions 
intact) and the usual political process of compromise and 
trades for a variety of nonracial reasons." J.S.App. 99 n.5.

The majority also concluded that the Eleventh Dis­
trict was not narrowly tailored because it contained a 
larger concentration of minority voters than reasonably 
necessary to give blacks a realistic opportunity to elect 
candidates of their choice. J.S.App. 88-9. The court con­
ceded that "some degree of vote polarization exists," but 
that "[ejxact levels are unknowable." J.S.App. 83.



29

In his dissenting opinion, Judge Edmondson held 
that Shaw v. Reno, supra, 113 S.Ct. at 2832, is narrow and 
applies only to "a reapportionment scheme so irrational 
on its face that it can be understood only as an effort to 
segregate voters into separate voting districts because of 
their race." J.S.App. 97. In concluding that the Eleventh 
District was not bizarrely shaped, he found, inter alia, 
that: "[t]he size of the district is not particularly notewor­
thy;" "[t]he district's . . . miles of borders is not distinc­
tive;" the district "shows considerable respect for existing 
political boundaries;" "eighty-three percent of the Elev­
enth's area comes from whole counties. In comparison, 
the average among the State's other districts is sixty-two 
and one-half percent;" "Georgia's congressional districts 
have no tradition of being neat, geometric shapes;" areas 
in other Georgia congressional districts "look -  as irregu­
lar or -  much more irregular;" and, "[qualitative mea­
surements for compactness . . . show the Eleventh District 
is not bizarre or highly irregular." J.S.App. 97-100.

SUMMARY OF ARGUMENT

Shaw v. Reno is a narrow decision and subjects to 
strict scrutiny only those districts which are bizarre in 
shape, are race conscious, and segregate or harm voters. 
The Court has recognized that in the redistricting process 
race may be taken into account along with other factors.

The Eleventh District is not bizarre in shape com­
pared with the district in Shaw or with other congres­
sional districts. Race was not the sole factor in the 
construction of the Eleventh District. Numerous factors 
drove the redistricting process, such as following political 
boundaries, protecting incumbents, and accommodating 
a variety of economic, personal, and political interests.



30

No persons were harmed by the state's redistricting. 
There was no evidence that anyone was unfairly stereo­
typed, that patterns of racial bloc voting were exacer­
bated , that anyone was deprived of e ffectiv e  
representation, or that the voting strength of anyone was 
diluted. The majority black districts are in fact the most 
racially integrated districts in the state.

Although strict scrutiny is not applicable, the Elev­
enth District would be constitutional if it were. In adopt­
ing its plan the state had a compelling interest in 
complying with the Voting Rights Act. The plan is not a 
racial quota, makes no greater use of race than necessary, 
is limited in duration, and does not harm third parties.

The lower court erred in judicially reviewing the 
Attorney General's Section 5 objection and concluding 
that it was improper. While a local court may judicially 
decide coverage, only the District of Columbia court may 
determine if a voting change violates Section 5.

The plaintiffs were not harmed by the state's redis­
tricting. In the absence of individualized harm, plaintiffs 
lack standing.

ARGUMENT

I. Georgia's Congressional Redistricting Is not Subject 
to Strict Scrutiny

The court below held that strict constitutional scru­
tiny was required where it is "shown that race was the 
substantial or motivating consideration in creation of the 
district in question." J.S.App. 36. It also held that any 
consideration of race in redistricting was constitutionally 
prohibited. Taking into account "the racial community of 
interest shared by black citizens in Georgia . . . is barred



31

from constitutional recognition." J.S.App. 45. The deci­
sion of the district court is contrary to Shaw  v. R eno  and 
other decisions of this Court.

S haw  held that "a reapportionment scheme so irra­
tional on its face that it can be understood only as an 
effort to segregate voters into separate voting districts 
because of their race, and that the separation lacks suffi­
cient justification," is subject to strict scrutiny under the 
equal protection clause of the Fourteenth Amendment. 
113 S.Ct. at 2832. To establish a claim and invoke strict 
scrutiny under S h aw , therefore, a plaintiff must establish 
three elements: (1) the challenged plan must be "bizarre" 
or "irrational" on its face, 113 S.Ct. at 2825, 2832, and not 
merely "somewhat irregular," id. at 2826; (2) the plan 
must be "unexplainable on grounds other than race," id. 
at 2825; and, (3) the "only" possible explanation for the 
plan must be a purpose to "segregate" the races for 
purposes of voting. Id. at 2832. Stated succinctly, the 
conjunction of bizarre shape, race consciousness, and 
harm are the essential predicates for a claim under Shaw .

S haw  repeatedly stated that it concerned only district­
ing plans that were "bizarre," 113 S.Ct. at 2818, 2825-26, 
2831, 2843, 2845, 2848, facially "irrational," id. at 2818, 
2829, 2832, 2842, "highly irregular," id. at 2826, 2829, 
"extremely irregular," id. at 2824, "dramatically irregu­
lar," id. at 2820, or "tortured." Id. at 2827. By its terms the 
decision applies only to the "rare" and "exceptional 
cases." Id. at 2825-26.

Moreover, the Court did not indicate that bizarre 
shape a lon e  raised constitutional concerns or triggered 
strict scrutiny. It expressly reaffirmed that "compactness" 
was not "constitutionally required." 113 S.Ct, at 2827. See 
G affn ey  v. C u m m in g s, 412 U.S. 735, 752 n.18 (1973). A



32

contrary rule would radically transform federal-state 
relations in reapportionment by subordinating all state 
interests to an overriding federal requirement of com­
pactness. Cf. V o in ov ich  v. Q u ilter , 113 S.Ct. 1149, 1157 
(1993) ("it is the domain of the states, and not the federal 
courts, to conduct apportionment in the first place"). 
Elevating concerns about mere physical geography to 
constitutional status would also undermine the Court's 
oft-repeated admonition that "[legislators represent peo­
ple, not trees or acres." R ey n o ld s  v. S im s, 377 U.S. 533, 562 
(1964).

Nor does S haw  condemn the consideration of race in 
redistricting p er  se  as the lower court erroneously held. 
According to S haw , "race-conscious redistricting is not 
always unconstitutional." 113 S.Ct. at 2824, 2826 ("race 
consciousness does not lead inevitably to impermissible 
race discrimination"). The Court expressed "no view as to 
whether 'the intentional creation of majority-minority 
districts, without more' always gives rise to an equal 
protection claim." 113 S.Ct. at 2828.

S haw  did not overrule U nited  Jew ish  O rgan ization s o f  
W illiam sbu rg , Inc. v. C arey , 430 U.S. 144, 165 (1977), which 
upheld without subjecting to strict scrutiny a state's legis­
lative redistricting plan that "deliberately used race in a 
purposeful manner" to create majority-minority districts. 
The Court found no constitutional violation because there 
was no dilution of the plaintiffs' voting strength. Id. at 
165-66 (White, J. joined by Stevens, J. and Rehnquist, J.); 
id. at 179-80 (Stewart, J., concurring, joined by Powell, J.).

S haw  distinguished U JO  on the grounds that the 
plaintiffs in U JO  "did not allege that the plan, on its face, 
was so highly irregular that it rationally could be under­
stood only as an effort to segregate voters by race." 113



33

S.Ct. at 2829. Thus, in its discussion of UJO, Shaw under­
scores that the consideration of race in redistricting is 
constitutionally suspect only in the context of bizarre 
district shape and harm to voters.7

The decision of the district court that race "is barred 
from constitutional recognition" in redistricting, J.S.App. 
45, ignores both the reality and purpose of redistricting. 
Shaw recognized that:

redistricting differs from other kinds of state 
decisionmaking in that the legislature always is 
aware of race when it draws district lines, just as 
it is aware of age, economic status, religion and 
political persuasion, and a variety of other 
demographic factors.

113 S.Ct. at 2826.® This Court has consistently recognized 
that "[district lines are rarely neutral phenomena," and

7 Com m entators have agreed that "Shaw is best read as an 
exceptional doctrine for aberrational contexts rather than as a 
prelude to a sw eeping constitutional condemnation of race­
conscious redistricting." Pildes and Niemi, "Expressive Harms, 
'B izarre  D is tr ic t /  and V oting R ights: E valu ating  Election- 
District Appearances after Shaw v. Reno," 92 Mich.L.Rev. 483, 
495 (1993). According to Pildes and Niemi, the unique harm 
com m unicated by a bizarre district is "the social impression that 
race consciousness has overridden all other, traditionally rele­
vant redistricting values." Id. at 526. Non-bizarrely shaped dis­
tric ts , in clu d in g  those w hich are race conscious, do not 
com m unicate such concerns. Id. at 519. A leinkoff and Issa- 
charoff reach a sim ilar conclusion in "Race and Redistricting: 
D ra w in g  C o n s t itu t io n a l L in es A fte r  Shaw  v. R en o,"  92 
Mich.L.Rev. 588, 613-14, 644 (1993).

8 The state's chief demographer, who has drawn hundreds 
of redistricting plans at the congressional, state, and local levels 
over the past two decades, candidly acknowledged that she had 
"never drawn a redistricting plan . . . that didn't take race into 
a c c o u n t ,"  and  th a t " i f  ta k in g  race  in to  a cco u n t w ere



34

that "[t]he reality is that districting inevitably has and is 
intended to have substantial political consequences." G af­
fn e y  v. C u m m in g s, su p ra , 412 U.S. at 752-53. Legislators 
"necessarily make judgments about the probability that 
the members of certain identifiable groups, whether 
racial, ethnic, economic, or religious, will vote in the 
same way." M o b ile  v. B o ld en , 446 U.S. 55, 87 (1980) 
(Stevens, J., concurring in the judgment). S ee U JO , su pra, 
430 U.S. at 176 n.4 ("[i]t would be naive to suppose that 
racial considerations do not enter into apportionment 
decisions") (Brennan, J., concurring); B eer v. U n ited  S tates, 
425 U.S. 130, 144 (1976) ("lawmakers are quite aware that 
the districts they create will have a white or a black 
majority; and with each new district comes the unavoid­
able choice as to the racial composition of the district") 
(White, J., dissenting); D avis v. B an d em er, 478 U.S. 109, 147 
(1986) (O'Connor, J., concurring in the judgment) (one of 
the essential purposes of redistricting is to "reconcile the 
competing claims of political, religious, ethnic, racial, 
occupational and socioeconomic groups").9

unlawful . . . there is not a redistricting plan in the State of 
Georgia that would be valid ." T.Vol.11,265.

9 Robert G. Dixon, Jr., a leading scholar of reapportion­
ment, has w ritten: "[W jhether or not nonpopulation factors are 
expressly taken into account in shaping political districts, they 
are inevitably everpresent and operative. They influence all 
election outcom es in all sets of districts. The key concept to 
grasp is that there are no neutral lines for legislative districts . . . 
every line drawn aligns partisans and interest blocs in a particu­
lar way different from the alignm ent that would result from 
putting the line in some other p lace." "Fair Criteria and Pro­
cedure for Establishing Legislative D istricts" 7-8, in Representa­
tion and R edistricting Issues (Grofm an, Lijphart, McKay, & 
Scarrow eds. 1982).



35

Because race is inherent in redistricting, Shaw  repeat­
edly stressed that it must be the "only" factor driving the 
process to trigger strict scrutiny. 113 S.Ct. at 2824. See, 
e .g ., id. at 2824 (classification "solely on the basis of 
race"); id. at 2825 (action "unexplainable on grounds 
other than race"); id. at 2826 ("anything other than an 
effort" to segregate voters); id. at 2827 ("created solely" 
on the basis of race); id. at 2828 ("cannot be understood as 
anything other than an effort to separate voters").

To be sure, a minority in a district may always chal­
lenge a redistricting plan on statutory or constitutional 
grounds if its voting strength has been diluted. In such a 
challenge the plaintiffs would have the burden of proving 
that the plan was purposefully discriminatory, R ogers v. 
L odge, 458 U.S. 613 (1982), or had a discriminatory result. 
T horn bu rg  v. G in g les , su pra. But that is far different from 
holding, as did the lower court, that in the absence of 
proof of a discriminatory purpose or result a plan is 
unconstitutional simply because race was a factor in 
redistricting.

In T h orn bu rg  v. G in g les, su p ra , 478 U.S. at 50, the 
Court held that in proving a violation of Section 2, race 
m ust be taken into account in proposing an alternative 
redistricting plan to show that a minority could constitute 
a majority in a single member district. It would be irra­
tional, and would amount to repeal of Section 2, to hold 
that a plan drawn to comply with G in gles was itself an 
unconstitutional racial gerrymander because it took race



36

into account in showing that a minority was geograph­
ically compact.10

A. The Eleventh District Is not Bizarre. District 11 is 
not bizarre or irrational on its face. Although Shaw did 
not adopt a standard for compactness, one obvious 
method of determining bizarreness is to compare a chal­
lenged district with the district in Shaw.11 Judge 
Edmondson performed such a test and concluded that 
"the Eleventh District is not highly irregular, or put dif­
ferently, bizarre." J.S.App. 99.

The com pactness m easure applied by Judge 
Edmondson was not a subjective "know it when I see it" 
test. He applied an "objective standard," J.S.App. 95 n. 2, 
based on ascertainable criteria such as the size of the 
district, the district's miles of borders, the district's out­
line, whether the district respected existing political 
boundaries, the percent of the area of the district that 
came from whole counties, whether the state had a tradi­
tion of neat, geometrically shaped districts, whether the 
district was more irregular than other districts in Georgia 
or in prior plans or in other states, and whether the 
district was compact based upon qualitative social sci­
ence measures.12 J.S.App. 97-100.

10 In Holder v. Hall, 114 S.Ct. 2581, 2588, 2621 n.3, 2627 
(1994), a m ajority of the Court affirmed the continuing validity 
of its Section 2 jurisprudence.

11 Justice Souter suggested the appropriateness of such a 
test in his dissent in Shaw, supra, 113 S.Ct. at 2848: "The shape of 
the district at issue in this case is indeed so bizarre that few 
other exam ples are ever likely to carry the unequivocal im plica­
tion of im perm issible use of race that the Court finds here."

12 Other federal courts have used sim ilar com parative anal­
yses. See Clark v. Calhoun County, 21 F.3d 92, 95 (5th Cir. 1994)



37

The Eleventh District has an area of 6,780 square 
miles. By contrast, Districts One, Two, and Eight each 
have a total area of over 10,100 square miles. J.S.App. 97. 
The Second District has 1,243 miles of borders; the Elev­
enth 1,155. J.S.App. 98. The Ninth District, unlike the 
Eleventh, crosses the entire state. Id. Seventy-one percent 
of the Eleventh District's boundaries follow existing state, 
county, and city borders, which is average for the state's 
other congressional districts. Id. Areas in the Second, 
Third, and Eighth Districts are as, or more, irregular than 
areas in the Eleventh. Id. The Sixth District contains no 
whole counties. Id. at 100. Based on various qualitative 
measures, the Eleventh District is more compact than 29 
to 46 other congressional districts in the country, virtually 
all of which are majority white. See, e.g., Appendix to 
Brief of Appellants, State of Louisiana, et al., Louisiana v. 
Hays, No. 94-627. In light of these objective criteria, the

(approving a proposed district that was "not nearly as bizarre as 
the district under consideration in Shaw"); Cane v. Worcester 
County, M aryland, 35 F.3d 921, 926-27 n.6 (4th Cir. 1994) (district 
is not "b izarre" that is "sim ilar in appearance" to former resi­
dency districts) pet. for cert, filed, No. 94-995 (Dec. 2 ,1994). Still 
other courts have applied a "functional" rather than a geo­
graphic com pactness standard that determ ines w hether the 
shape of the district permits "effective representation." Burton 
v. Sheheen, 793 F.2d 1329, 1356-57 (D.S.C. 1992), rev'd on other 
grounds sub nom. SRAC v. Theodore, 113 S.Ct. 2954 (1992); 
W ilson v. Eu, 823 P.2d 545, 552-53 (Cal. 1992). The Eleventh 
D is tr ic t  w o u ld  m eet a fu n c tio n a l te st of co m p a ctn ess .
T. Vol.IV,242-43. There is apparently no generally accepted social 
science m easure of com pactness. T.Vol.V,110,124; Grofm an, 
"C riteria  for D istrictin g : A Social Science P ersp ective," 33
U. C.L.A.L.Rev. 77, 85 (1985) ("[tjh ere are many different ways of 
applying a com pactness requirem ent but none is generally 
accepted as definitive").



38

Eleventh District cannot be deemed to be bizarre in 
shape.

B. Race Was not the Sole Motivating Factor. Plain­
tiffs failed to prove that the Eleventh District is explain­
able only on the grounds of race or skin color. Numerous 
non-racial factors were taken into account in the district's 
construction.

The district was drawn to comply with one person, 
one vote; to be contiguous; to conform where possible to 
county lines and other political boundaries; to protect 
incumbents and to avoid contests between incumbents; to 
accommodate various political interests, economic con­
siderations, and the purely personal preferences of legis­
lators; to include communities of interest, including 
shared socio-economic interests and values and traditions 
of residents of the district; and, to comply with the Voting 
Rights Act. Because the district is not explainable simply 
on the basis of race, and because non-racial factors were 
critical in the design of the district, the second prong of 
Shaw was not met.

C. The Absence of Harm. According to Shaw, single 
minded race consciousness in redistricting is a predicate 
for strict scrutiny because it poses the harm of perpetuat­
ing "impermissible racial stereotypes" which may "exac­
erbate . . . patterns of racial bloc voting" and lead 
"elected officials . . .  to believe that their primary obliga­
tion is to represent only the members of that group." 113 
S.Ct. at 2827. Given the record in this case of past and 
continuing discrimination, racial bloc voting, the distinc­
tive socio-economic status of blacks, and the depressed 
levels of minority political participation, there is no basis 
for concluding that race conscious redistricting in Geor­
gia is based on racial stereotyping. That blacks have a



39

great deal in common with one another and share a 
history of discrimination, as well as many political inter­
ests, is not a stereotype; it is a manifest fact.

There is also no basis for contending that the Elev­
enth District has caused any harm, such as exacerbating 
patterns of racial bloc voting or depriving anyone of 
effective representation. The creation of the Eleventh Dis­
trict was a response to, not the cause of, racial bloc voting 
in the state. In addition, individuals or groups are pre­
sumed to be adequately represented by the winning can­
didate, whether they voted for her or not. As the Court 
held in Davis v. Bandemer, supra, 478 U.S. at 132, "[w]e 
cannot presume in such a situation, without actual proof 
to the contrary, that the candidate elected will entirely 
ignore the interests of those voters."

The court below found that plaintiffs suffered no 
harm. J.S.App. 31. In making this finding the court neces­
sarily found, and the witnesses so testified, that there was 
no evidence that the state's plan exacerbated racial ten­
sion, caused segregation, imposed a racial stigma, 
increased racial bloc voting, or deprived anyone of effec­
tive representation. See pages 23-4, supra.

The Eleventh District is in fact very integrated with a 
population that is over 34% white (40% non-black VAP). 
Stip. 37. There are more whites in the district than there 
are blacks in any of the state's eight majority white dis­
tricts. Stated differently, all of the state's majority white 
districts are more "segregated," i.e., composed of resi­
dents of the same race, than is District Eleven. The major­
ity black congressional districts in Georgia are the most 
racially diverse in the state, id.; this was true before and 
after the 1992 redistricting. Under the 1981 plan, there 
were more whites in the majority black Fifth District than



40

there were blacks in any of the nine majority white dis­
tricts. Barone and Ujifusa, su p ra , at 280-99.13

The finding of the lower court of no harm to voters is 
consistent with the legislative findings of Congress when 
it amended and extended the Voting Rights Act in 1982. 
Critics of the amendment argued that a results standard 
for Section 2 would limit the political opportunities of 
minorities by allowing them "to become isolated" in sin­
gle member districts, V otin g  R ights A ct: H earin g s B efore the 
S ubcom m . on the C on stitu tion  o f  the S en ate C om m , on the 
Ju d ic ia ry , 97th Cong., 2d Sess. 511 (1982), would "deepen 
the tensions, fragmentation and outright resentment 
among racial groups," id. at 662, "would exacerbate, race 
consciousness," id. at 1250, and "may well foster polariza­
tion," id. at 1328. S ee S.Rep. No. 417, 97th Cong., 2d Sess. 
103 (1982) (additional views of Sen. Orrin G. Hatch of 
Utah).

Congress weighed and rejected these arguments on 
the ground that there was no evidence to support them, 
and concluded that the amendment would not "be a 
divisive factor in local communities by emphasizing the 
role of racial politics." S.Rep. No. 417, su p ra , at 31-2. The 
subcommittee found there was "an extensive, reliable and 
reassuring track record of court decisions using the very

13 One com m entator has concluded on the basis of a nation­
wide study of post-1990 congressional redistricting that: "the 
black districts in the South are not all-black, rather they are the 
most genuinely racially integrated districts in the country, and, 
the white districts are not all-white, and those districts are more 
racially diverse than much of the U .S." Bositis, Redistricting and 
Representation: The Creation of M ajority-M inority Districts in 
the South, The Evolving Party System and Some Observations 
on the New Political Order 28 (jo int Center for Political and 
Economic Studies, 1995) (forthcom ing).



41

standard which the Committee bill would codify." Id. at 
32. S ee G in g le s  v. E d m is ten , 590 F.Supp. 345, 356-57 
(E.D.N.C. 1984) ("Congress necessarily took into account 
and rejected as unfounded . . . the risk that creating 'safe' 
black-majority single member districts would perpetuate 
racial ghettos and racial polarization in voting behav­
ior"), a ff'd  in re lev an t p art su b nom . T horn bu rg  v. G in gles, 
su p ra . As this Court has held, where Congress has 
assessed and weighed conflicting factors in an area such 
as voting rights in which it has a specially informed 
legislative competence, it is not the duty of the Court "to 
review the congressional resolution of these factors. It is 
enough that we be able to perceive a basis upon which 
the Congress might resolve the conflict as it did." K atzen- 
bach  v. M org an , 384 U.S. 641, 653 (1966). There clearly is a 
basis upon which Congress could determine that majority 
minority districts were neither stigmatizing nor racially 
polarizing.

It is the absence of harm that principally distin­
guishes redistricting cases from those involving the race 
conscious allocation of scarce employment or contractual 
opportunities to which strict scrutiny has been held to 
apply. In W ygant v. B oard  o f  E d u cation , 476 U.S. 276 (1986), 
preferential layoffs were subject to strict scrutiny because 
white teachers with greater seniority were laid off while 
minority teachers with less seniority were retained. The 
Court invalidated the layoff/retention scheme because 
the "burden is too intrusive" on third parties. Id. at 283. 
In C ity  o f  R ich m on d  v. J.A . C roson , C o., 488 U.S. 469, 493 
(1989), a city's minority set aside was subject to strict 
scrutiny because it "denies certain citizens the oppor­
tunity to compete for a fixed percentage of public con­
tracts." In R eg en ts  o f  the U n iversity  o f  C a liforn ia  v. B akke, 
438 U.S. 265 (1978), Bakke was injured because he was



42

denied the chance to compete for all the openings in a 
medical school class. Certain places had been set aside for 
minority applicants, whom Bakke contended were less 
qualified than he.

In each of these cases whites were palpably injured 
or had an independent claim of entitlement -  more 
seniority, acceptable bids for contracts, better qualifica­
tions -  that was denied by a racial preference. But under 
a non-dilutive race-conscious redistricting plan, no per­
son is injured or has an independent claim of entitlement.

II. The Eleventh District Would Survive Strict Scru­
tiny

Even if strict scrutiny were applicable, the Eleventh 
District would be constitutional. The state had a compel­
ling interest in complying with the Voting Rights Act, and 
the district is narrowly tailored.14

A. The State's Interest Is Compelling. The prior deci­
sions of this Court indicate that a state has a compelling

14 Benign race conscious measures mandated by Congress 
are subject to a less stringent standard of review than those 
adopted by state and local governm ents. The form er are "consti­
tutionally perm issive to the extent that they serve important 
governm ental objectives within the power of Congress and are 
substantially related to achievem ent of those objectives." Metro 
Broadcasting, Inc. v. F.C.C., 497 U.S. 547, 566 (1990). The state's 
plan was adopted pursuant to the mandate of Congress under 
the Voting Rights Act and is substantially related to an impor­
tant congressional objective, the eradication of the blight of 
continuing discrim ination in voting. South Carolina v. Katzen- 
bach, 383 U.S. 301, 313 (1966). Accordingly, the Eleventh District 
should be deem ed constitutional without resort to more height­
ened analysis.



43

interest in taking race into account in complying with the 
Section 5 objections of the Attorney General. See City o f  
R ichm ond v, J.A . Croson, Co., supra, 488 U.S. at 497 (race 
conscious state action is justified to remedy "judicial, legisla­
tive, or administrative findings of constitutional or statutory 
violations"); M etro Broadcasting, Inc. v. F.C.C., supra, 497 U.S. 
584 ("a State subject to § 5 of the Voting Rights Act . . . may 
'deliberately creat[e] or presence] black majorities in particu­
lar districts in order to ensure that its reapportionment plan 
complies with § 5' "); Fullilove v. K lutznick, 448 U.S. 448, 483 
(1980) ("a state may employ racial criteria that are reasonably 
necessary to assure compliance with federal voting rights 
legislation"); UJO, supra, 430 U.S. at 164-65.

The court below acknowledged "a putatively compel­
ling interest behind the drafting of the current Eleventh 
Congressional District," but held the interest failed 
because the Attorney General's objections to the prior 
plans were "improper." J.S.App. 63-4. Aside from the 
error in judicially reviewing the Section 5 determination 
of the Attorney General,15 this Court's decisions do not 
require a showing of an actual violation in order for a 
state to take remedial action.

A state may act where it has a reasonable or "firm" 
basis for believing that remedial measures are necessary.

15 See Section III infra. In a de novo Section 5 declaratory 
judgm ent action the D istrict of Columbia court would have the 
power to grant preclearance despite the Attorney General's 
objection. Beer v. United States, supra, 425 U.S. at 136. A local 
three judge court would sim ilarly have the power to determine 
coverage under Section 5 independent of the Attorney General. 
Presley v. Etowah County Commission, 112 S.Ct. 820, 831 (1992). 
That does not mean, however, that a state does not have a 
com pelling interest in com plying with a Section 5 objection or 
that a local district court is authorized to review that objection.



44

Wygant v. Board o f Education, supra, 476 U.S. at 277, 286; 
City o f Richmond v. f.A. Croson, Co., supra, 488 U.S. at 500 
(a state need only show a "strong basis in evidence for its 
conclusion that remedial action was necessary"). The 
Attorney General's objection furnishes the requisite 
strong basis in evidence for the state's remedial plan.

A state should not be required to challenge the Attor­
ney General's Section 5 objection in the District of Colum­
bia court before it could conclude that it had a compelling 
interest in adopting a remedial plan. Shaw v. Hunt, 861 
F.Supp. 408, 443 & n.34 (E.D.N.C. 1994). Such a require­
ment would denigrate the judgment of the Attorney Gen­
eral who was authorized by Congress to make Section 5 
determinations, would be contrary to the policy of 
encouraging voluntary compliance with federal civil 
rights laws, and would encourage needless litigation, 
something the Voting Rights Act was expressly designed 
to pretermit. South Carolina v. Katzenbach, supra, 383 U.S. 
at 335.

Georgia also had a strong basis in evidence for 
believing that its first two plans would expose the state to 
liability under the preconditions for a Section 2 violation 
set out in Thornburg v. Gingles, supra, 478 U.S. at 50-1. The 
state has a long history of discrimination, including 
intentional discrimination in congressional redistricting. 
Voting is racially polarized to such an extent that unless 
African American voters constitute a majority in a district 
their candidates of choice will usually be defeated. Var­
ious plans introduced during the redistricting process 
showed that the black population is sufficiently compact 
so as to constitute a majority in three districts. Under the 
circumstances, the state had a compelling interest in com­
plying with Section 2.



45

B. The Eleventh District Is Narrowly Tailored. Shaw  
did not define "narrow tailoring" except to indicate that a 
plan would not be narrowly tailored that "went beyond 
what was reasonably necessary to avoid retrogression." 
113 S.Ct. at 2831. The Attorney General's objection in this 
case was based upon the purpose, not the retrogression 
or effect, standard of Section 5. C ity  o f  R om e v. U nited  
S ta te s , 446 U.S. 156, 172 (1980) ("Congress plainly 
intended that a voting practice not be precleared unless 
b oth  discriminatory purpose and effect are absent"). 
Accordingly, whether the plan was narrowly tailored to 
avoid retrogression is not an issue in this appeal.

In other contexts, in determining if an affirmative 
action plan were narrowly tailored, the Court has looked 
at such factors as: (1) the existence of alternative 
remedies; (2) whether the plan is a rigid "quota" or a 
flexible "goal;" (3) the duration of the plan; (4) the pool of 
individuals to be benefitted by the plan; and (5) the effect 
of the plan on third parties. See, U nited S tates v. P aradise, 
480 U.S. 149, 171-85 (1987); W ygant v. B oard o f  E du cation , 
su p ra , 476 U.S. at 279-84. As to the first factor, there is no 
completely race neutral alternative means of accomplish­
ing the goal of complying with the Voting Rights Act. In 
addition, the state did not make more use of race than 
was necessary, i.e ., it did not create more majority black 
districts than was reasonably necessary to comply with 
the act, nor is the black population in the majority black 
districts larger than was reasonably necessary to provide 
blacks an equal opportunity to elect candidates of their 
choice.

As to the second factor, majority black districts are 
not a rigid racial quota. They do not prohibit non­
minorities from running for office nor do they guarantee 
the election of minorities. See John son  v. D e G ran dy, 114



46

S.Ct. 2647, 2665 (1994) (Kennedy, concurring in part 
and concurring in the judgment) ("[t]he assumption that 
majority-minority districts elect only minority represen­
tatives . . .  is false as an empirical matter").

As to the third factor, a congressional redistricting 
plan is by its very nature temporary. It will only last until 
the next decennial census, at which time a new plan will 
have to be drawn to account for changes in population 
and possible changes in the allocation of congressional 
seats. See Karcher v. Daggett, 462 U.S. 725, 731 (1983).

As to the fourth factor, the percentage of majority 
black districts does not exceed the percentage of blacks in 
the state as a whole. See Johnson v. De Grandy, supra, 114 
S.Ct. at 2658 and n .ll (noting that equality of political 
opportunity is to be judged by comparing the number of 
majority-minority districts with the number of minorities 
in the relevant population). As to the fifth factor, the 
state's redistricting plan does not harm third parties by 
diluting their voting strength, either by failing to comply 
with one person, one vote or the non-discrimination pro­
visions of the Voting Rights Act. Even if Georgia's con­
gressional redistricting plan were subject to strict 
scrutiny it would be narrowly tailored to promote a com­
pelling state interest.

I I I .  T h e  C o u rt B e lo w  E rred  in  Ju d ic ia l ly  R e v ie w in g  th e  
S e c tio n  5 O b je c t io n  o f  th e  A tto rn e y  G e n e ra l

The court below erred in reviewing the Attorney 
General's objection under Section 5, and holding it to be 
"improper." J.S.App. 63. This Court has consistently held 
that the merits of a Section 5 determination are not 
reviewable by a local three judge court. Perkins v.



47

M atth ew s, 400 U.S. 379, 385 (1971) ("Congress expressly 
reserved [Section 5 determinations] for consideration by 
the District Court for the District of Columbia or the 
Attorney General"); M orris  v. G ressette , 432 U.S. 491, 507 
n.24 (1977) ("Congress intended to preclude all judicial 
review of the Attorney General's exercise of discretion or 
failure to act" under Section 5). A ccord , H arris v. Bell, 562 
F.2d 772, 774 (D.C.Cir. 1977). Judicial review of proposed 
changes in voting is available, but only in the District 
Court for the District of Columbia. A llen  v. S tate B oard o f  
E lection s , 393 U.S. 544, 555-56 & n.19 (1969); U nited S tates  
v. B oard  o f  S u p erv iso rs  o f  W arren  C ounty, M ississ ip p i, 429 
U.S. 642, 647 (1977).

This Court approved the venue provisions of Section 
5 as an appropriate exercise of congressional authority 
pursuant to Article III, Section I of the Constitution. South  
C aro lin a  v. K a tz en b a ch , su pra , 383 U.S. at 331-32. Congress 
in the 1970, 1975, and 1982 amendments of the Voting 
Rights Act continued to vest the District of Columbia 
courts and the Attorney General with exclusive jurisdic­
tion to determine the merits of Section 5 submissions on 
the grounds that it was necessary to provide uniform 
interpretation and application of the act's standards and 
to continue to insure decision-making free from local 
pressures. M cD a n ie l v. S an ch ez , 452 U.S. 130, 151 (1981) 
("centralized review enhances the likelihood that recur­
ring problems will be resolved in a consistent and expe­
ditious way").

The effect of the decision below is essentially to 
destroy the centralized Section 5 review process estab­
lished by Congress. In addition, the decision is a prescrip­
tion for the multiplication of litigation. Disgruntled 
citizens would be encouraged to challenge remedies for



48

Section 5 violations in hopes that a local court would find 
the Attorney General's objection improper and allow 
some variant of a pre-existing discriminatory practice to 
be implemented. Covered jurisdictions, knowing that a 
local determination was possible, would have no incen­
tive voluntarily to submit their proposed voting changes 
for Section 5 preclearance.

The majority's review of the Section 5 process was 
egregious for other reasons. First, it essentially ignored 
the purpose prong of Section 5, which was the basis of 
the Attorney General's objection. J.S.App. 68. Second, its 
criticism of so-called "partisan 'informants'," "secret 
agents," and the ACLU is basically an attack upon the 
Department of Justice for making a factual investigation 
of the state's submissions. It is difficult to conceive how 
Section 5 decisionmaking could be reliable if the Attorney 
General were permitted to receive information only from 
the submitting jurisdiction and were barred from commu­
nicating with racial minorities and their representatives 
potentially affected by proposed voting changes.

IV. Plaintiffs Lack S ta n d in g

As the court below found, plaintiffs failed to show 
that they or any other group were harmed by the configu­
ration of the Eleventh District. J.S.App. 31. In the absence 
of harm, plaintiffs have no basis to complain of Georgia's 
congressional redistricting. In Lujan v. Defenders of Wild­
life, 112 S.Ct. 2130, 2136 (1992), the Court identified three 
elements as constituting "the irreducible constitutional 
minimum of standing:"



49

First, the plaintiff must have suffered an 'injury 
in fact' . . . which is (a) concrete and partic­
ularized . . . and (b) 'actual or imminent, not 
'conjectural' or hypothetical,' . . . Second . . . the 
injury has to be 'fairly . . . tracejable] to the 
challenged action of the defendant . . . Third, it 
must be 'likely,' as opposed to merely ' specula­
tive,' that the injury will be 'redressed by a 
favorable decision.'

Id. (citations omitted). Accord, Allen v. Wright, 468 U.S. 
737, 754 (1984) ("stigmatic injury, or denigration, suffered 
by all members of a racial group when the Government 
discriminates on the basis of race" is insufficient harm to 
confer standing); Diamond v. Charles, 476 U.S. 54, 66 
(1986); Warth v. Seldin, 422 U.S. 490, 501 (1975).

The requirements of standing "are not mere pleading 
requirements but rather [are] an indispensable part of the 
plaintiff's case." Lujan, supra, 112 S.Ct. at 2136. Plaintiffs 
did not meet their burden of proof. Consequently, the 
district court erred in deciding the plaintiffs' claims.



50

CONCLUSION

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

E la in e  R. J o n es  
Director-Counsel 
T h eo d o r e  M. S haw  
N o rm a n  J . C h a ch k in  
J a cq u elin e  A. B errien  
NAACP Legal Defense and 

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

G era ld  R. W eber  
American Civil Liberties 

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

Respectfully submitted,

L a u g h lin  M c D o n a ld  
Counsel of Record 
M ary  W yck o ff  
N eil  B ra d ley  
M a h a  Z aki

American Civil Liberties 
Union Foundation, Inc. 

44 Forsyth Street -  Suite 202 
Atlanta, Georgia 30303 
(404) 523-2721

C ou n sel f o r  A p p ellan ts



App. 1

IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF GEORGIA 

DUBLIN DIVISION

CONCERNED CITIZENS )
COMMITTEE OF DUBLIN AND )
LAURENS COUNTY, ET AL., )

Plaintiffs j

vs. )

LAURENS COUNTY, GEORGIA, J 
ET AL., J

Defendants )

ORDER

Course of Proceedings: Plaintiffs initiated this action 
on July 20, 1992, under the due process and equal protec­
tion clauses of the Fourteenth Amendment of the Consti­
tution of the United States and prayed for declaratory 
and injunctive relief concerning the method of electing 
the members of the Laurens County Board of Commis­
sioners. In their complaint Plaintiffs alleged that the vot­
ing districts in effect for the Board of Commissioners 
contained substantially unequal populations in violation 
of the one person-one vote requirement of the Fourteenth 
Amendment.

CIVIL ACTION 
NO. CV392-033

(Filed
Sep. 8, 1994)

2 .

By its order of July 20, 1992, this Court denied Plain­
tiffs' motion for temporary restraining order and prelimi­
nary injunction against the holding of the July 21, 1992, 
primary election for the five (5) positions on the Board of



A p p . 2

Commissioners on timeliness grounds. See C on cern ed  C iti­
zen s C om m ittee  o f  D u blin  an d  L au ren s C ou n ty  v. L au rens  
C ou nty , G eorg ia , Civ. No. CV392-033 (S.D.Ga. July 20, 
1992).

3.

By its order of October 27, 1992, this Court denied 
Plaintiffs' motion for temporary restraining order and 
preliminary injunction against the holding of the Novem­
ber 3, 1992, general election for the five (5) positions on 
the Board of Commissioners. In doing so this Court noted 
that,

The denial of Plaintiffs' motion does not, how­
ever, reflect upon the merit of Plaintiffs' case. 
The permission to proceed with the November 
3, 1992, general election is subject, therefore, to 
the proviso that the terms of office for candi­
dates elected to the Laurens County Board of 
Commissioners under the existing district vot­
ing plans may, if necessary, be foreshortened by 
future order of this Court as part of a remedy in 
this case.

Id ., Order of October 27, 1992, p. 2.

4.

By its order of July 13, 1994, this Court denied Plain­
tiffs' motion for temporary restraining order and prelimi­
nary injunction against the holding of a special election 
on July 19, 1994, to fill a vacancy on the Board of Com­
missioners from District No. 4 on grounds that the public 
interest " . . .  is disserved when . . . inhabitants, have no



App. 3

voice or representative in local county government. . . . 
Id., Order of July 13, 1994, p. 3. In doing so this Court 
stated that,

. . .  it would appear that an election to Commis­
sion for District 4 is an interim and, probably, 
short term position. There should be no expecta­
tion of permanence of a full term. Indeed, the 
term will more likely be months than years.

Id., at p. 4.

The Constitutional Violation: According to the 1990 
Census of Population, the existing five (5) voting districts 
used in the election of the Board of Commissioners are as 
follows:

5.

Percent of 
Population

District
Number

Total
Population

Deviation from 
Ideal District

1
2
3
4
5

6,763
7,642
7,748
8,805
9,024

-15.44%
- 4.45%
- 3.13% 
+10.09% 
+12.83%

Total Range of Deviation = 28.27%
(Complaint, para. 12)



A p p . 4

6.

The decisions of the Supreme Court of the United 
States establish that an apportionment plan with a maxi­
mum population deviation over 10% creates a prima facie 
case of denial of equal protection, and that such a show­
ing shifts the burden to government officials to justify, if 
they can, the population inequality. See Swann v. Adams, 
385 U.S. 440, 444 (1967); and Brown v. Thomson, 462 U.S. 
835, 103 S.Ct. 2690 (1983). The total range of population 
deviation here (28.27%) easily satisfies this prima facie 
requirement. Defendants have offered no justification 
" . . . incident to the effectuation of a rational state 
policy;" Reynolds v. Sims, 377 U.S. 533, 579 (1964), for this 
substantial deviation. Instead, it appears that the reason 
that said population inequality presently exists is that the 
Georgia General Assembly failed to enact reapportion­
ment legislation during its 1992, 1993 and 1994 Sessions.

7.

Accordingly, IT IS HEREBY ADJUDGED AND 
DECREED that the present plan used in the election of 
the Board of Commissioners is violative of the Fourteenth 
Amendment of the Constitution of the United States, and 
Defendants and those acting in concert with them are 
ENJOINED from further enforcement of said voting plan.

A hearing was conducted with respect to the obvi­
ously necessary redistricting of the county, and the par­
ties' various submissions with respect to redistricting, on 
July 26, 1994, beginning at approximately 5:10 p.m. and 
concluding at approximately 9:00 p.m.



App. 5

The hearing was a free-range exchange of informa­
tion not limited to the taking of conventional evidence 
and testimony in such matters. This was necessitated and 
facilitated by virtue of the presence of the employees of 
the State Reapportionment Office, Ms. Linda Meggers 
and Ms. Penny Williams, both of whom have made an 
admirable contribution to the Court and to the citizens of 
Laurens County in their constancy to purpose and inde­
fatigable patience. For approximately three (3) hours we 
drew one (1) plan after another, and their good nature 
was never in question.

No great deal of time was spent on the need for 
redistricting in Laurens County. The Court had become 
completely familiar with the file, the various contentions 
of the parties through earlier hearings and through action 
upon the Plaintiffs' Motion for Preliminary and Tempor­
ary Injunctive Relief; the last such order having been 
entered on July 13, 1994.

The plain facts of the case, barring any consideration 
of the Section 2 contentions of the parties that the votes of 
black citizens were unconstitutionally and illegally 
diluted in the heretofore existing scheme of districting in 
Laurens County, were that the scheme of districting was 
already, and in all ways, violative of the constitutional 
and precedental interpretative rules which require an 
individual proportionality in voting -  that is, one man/ 
one vote.

This Court obviously has jurisdiction. It is uncon­
tested that jurisdiction is grounded not only in the Voting 
Rights Act but also in Title 28, United States Code. Fur­
ther notice of jurisdiction is unnecessary.



App. 6

The parties were represented by counsel at hearing, 
and while the parties seem to be cordially in a consensus 
and agreement at the close of our session, this plan for 
the redistricting of Laurens County and this order imple­
menting same is, in all respects, a court-ordered plan. It 
does not come from the legislative enactment of Laurens 
County nor from any proposal by the Plaintiffs, but from 
an assimilation of those and from the Court's indepen­
dent consideration of those submissions and the facts of 
the case as they lie upon land and in the residences of 
Laurens County.

Laurens County is one of Georgia's 159. It is a county 
which has both agricultural roots and urban aspects. The 
City of Dublin is the focus of Laurens County, and it is 
somewhere near the center of Laurens County. There are 
other burroughs [sic] in the county, most notably Dudley 
and Rentz and Montrose, but the only urban area is 
Dublin, and of course, East Dublin, which I believe is a 
separate municipality.

The Court's plan is depicted upon the attached com­
puter graphic map prepared by the Reapportionment Ser­
vices' Office of the Georgia General Assembly, as 
contracted with the University of Georgia.

A partial statement of the Court's findings of fact and 
conclusions of law, and the establishment of the plan 
were made in open court on July 27, 1994; the parties 
being absent by their own choice.

The districts as planned by the Court are under the 
circumstances relatively compact. They are mixed in all 
respects of an urban and an agricultural interest. The 
least urban, which is perhaps the most industrial, and one



A pp. 7

of the greater commercial interest but predominantly 
agricultural is District Number Two. District Four is the 
district that occurs on both sides of the river, and that 
initially troubled me, but on balance now it does not. 
District Four includes a portion of the City of Dublin and 
a portion of the City of East Dublin, and is made contig­
uous for ready access by foot or automobile by the river 
bridge that joins the cities of East Dublin and Dublin.

Under the circumstances and with the obligation that
1 felt to construct two majority-minority districts, the 
contiguity of District Four is sufficient for purposes of a 
county commission district.

I have the same concerns and reservations that I have 
heretofore expressed about our penchant in the Federal 
Judiciary for the use of one remedy exclusively in Section
2 cases -  that is, the creation of single-member majority 
districts for minorities -  I have expressed those previ­
ously in several orders, particularly the 1989 order 
regarding the City of Warrenton, Georgia. Those same 
concerns and observations are incorporated by such ref­
erence herein. However, that form of remedy was in 
vogue at the time of the filing of this lawsuit, still is, and 
despite those reservations that I hold does appear to 
satisfy the needs of Laurens County. It appears to me that 
any other form would be such a novel and innovative 
concept in the case of Laurens County and so opposed to 
the sensitivities and traditions of the people that I will 
not engage in any excursion outside the conventional 
remedy of the creation of such districts.



App. 8

8 .

Remedy: In order to remedy this constitutional vio­
lation, this Court ORDERS into effect the five (5) single 
member district plan which is described by census tracts 
in Exhibit "A" hereto and made a part hereof and which 
are shown and delineated on Exhibit "B" hereto and 
made a part thereof. This reapportionment plan will 
remain in effect until altered by the further order of this 
Court or until an alternate voting plan for the Board of 
Commissioners is enacted, pursuant to Georgia law, and 
precleared pursuant to Section 5 of the Voting Rights Act 
of 1965, as amended, 42 U.S.C. Section 1973c.

9.

At the time of the regularly scheduled general elec­
tion on November 8, 1994, the five (5) members of the 
Board of Commissioners shall be elected in a special non­
partisan election, and the voting plan set forth in para­
graph 8, supra, shall be used in said election.

10.

Defendant Superintendent of Elections Harper shall 
mark five (5) like pieces of paper District No. 1, District 
No. 2, District No. 3, District No. 4, and District No. 5, 
respectively, and place them in a container. At a practica­
ble time to be previously announced in the legal organ of 
Laurens County, Defendant Harper shall randomly draw 
two (2) pieces of paper from said container. Said drawing 
shall be conducted in the office of Judge of the Probate 
Court of Laurens County, and all interested residents of



App. 9

the county, including, but not limited to, Plaintiffs and 
Defendants, shall be allowed to attend and observe said 
drawing.

11 .

The terms for the two (2) voting districts which corre­
spond with the two (2) pieces of paper first randomly 
drawn by Defendant Harper shall be open for a term of 
two (2) years at the November 8, 1994, special election, so 
that their terms will commence on January 1, 1995, and 
run through December 31, 1996. At the time of the regu­
larly scheduled general election in November 1996, the 
terms for these two (2) positions on the County Commis­
sion will be open for a term of four (4) years and will 
continue on that basis unless changed by order of this 
Court or by an act of the Georgia General Assembly. The 
terms for the three (3) voting districts which do not 
correspond with the two (2) pieces of paper randomly 
drawn by Defendant Harper shall be open for a term of 
four (4) years at the November 8, 1994, special election, 
so that their terms will commence on January 1, 1995, and 
run through December 31, 1998, and will continue on that 
basis unless changed by order of this Court or by an act 
of the Georgia General Assembly.

12.

The period for candidate qualification for all five (5) 
positions on the Board of Commissioners for the Novem­
ber 8, 1994, special non-partisan election shall open at 
9:00 a.m. on Monday, September 12, 1994, and shall



A p p . 10

remain open until 12:00 noon on Friday, September 16, 
1994.

13.

In the event a run-off election is required, pursuant 
to O.C.G.A. Section 21-2-501, for any position on the 
Board of Commissioners elected in 1994, that run-off 
election shall be held on Tuesday, November 22, 1994.

14.

The members of the Board of Commissioners elected 
from each voting district shall be required to reside 
within the district from which they are elected and each 
member shall be nominated or elected in any future 
election, whether it be primary, run-off, special or gen­
eral, solely by the voters who reside in the respective 
voting districts.

15.

That except as they conflict with provisions of this 
order, the laws of the State of Georgia shall continue to 
govern elections for positions on the Board of Commis­
sioners, and the laws of the State shall continue to govern 
and prescribe the powers and duties of those officials.

16.

That the matter of Plaintiffs' entitlement to costs and 
attorney's fees and the amount thereof shall be submitted



A pp. 11

on motion at a later date in the event the parties are not 
able to reach agreement on this matter.

SO ORDERED, this 8th day of September, 1994.

/ s /  Dudley H. Bowen, Jr. 
UNITED STATES 
DISTRICT JUDGE