Abrams v. Johnson Brief for Appellants
Public Court Documents
September 8, 1994
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Brief Collection, LDF Court Filings. Abrams v. Johnson Brief for Appellants, 1994. dc501ac0-ab9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/7bda3217-1597-4df7-ac4c-9d05af421a21/abrams-v-johnson-brief-for-appellants. Accessed November 26, 2025.
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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