Miller v. Johnson Brief Amici Curiae in Support of Appellants

    Nos. 94-631, 94-797, and 94-929

IN THE
Supreme Court of the United States

October  Term , 1994

ZELL MILLER, ETAL., Appellants,

V.

Da  vida  Jo hnson , e t a l ., Appellees.

Lucious Abra m s , Jr ., e t a l ., Appellants, 

v.

Da vida  Jo hnson , e t a l ., Appellees.

United  States of Am erica , Appellant,

V.

Davida  Jo hnson , e t a l ., Appellees.

On  A p p e a l  f r o m  th e  Un it e d  S ta t e s  D is t r ic t  C o u r t

FOR THE SOUTHERN DISTRICT OF GEORGIA

BRIEF AMICI CURIAE OF THE STATES OF TEXAS, ET AL. 
IN SUPPORT OF APPELLANTS

Dan Morales 
Attorney General of Texas 
Jorge Vega
First Assistant Attorney General 
renea Hicks* *
State Solicitor
*Counsel o f Record
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
(512) 463-2085

February, 1995 Counsel for Amici Curiae States
(Additional counsel listed on inside cover)



M ichael  F. Ea sley  
Atto r n ey  Gen er a l  of 
N orth  Ca r o lin a  

Department of Justice 
Post Office Box 629 
Raleigh, NC 27602-0629

Counsel for Amici Curiae



T a ble  of Co ntents

TABLE OF AUTHORITIES .......................................  ii

INTEREST OF AMICI CURIAE STATES ................ 1

SUMMARY OF ARGUMENT ................................... 3

ARGUMENT ...............................................................  5

I. STANDING IS A CONSTITUTIONAL
PREREQUISITE WHICH MUST BE 
ESTABLISHED THROUGH PROBATIVE 
EVIDENCE OF THE KINDS OF HARMS 
(INCREASED POLARIZED VOTING AND 
SELECTIVELY INDIFFERENT LEGISLATIVE 
REPRESENTATION) IDENTIFIED IN SHAW 
AND WHICH CANNOT BE PRESUMED 
MERELY FROM THE PRESENCE OF 
OFFENDED SENSIBILITIES......... ...............................  5

II. THE LOWER COURTS’ APPLICATIONS
OF SHAW V. RENO UNDERMINE STATE 
PRIMACY IN REDISTRICTING, IGNORE 
POLITICAL REALITIES, AND REST ON THE 
UNACCEPTABLE PRINCIPLE THAT 
MINORITY VOTERS MUST ESCHEW 
POLITICAL GIVE AND TAKE IN WHICH ALL 
OTHER VOTERS PARTICIPATE ...............................  11

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

APPENDIX la



11

T a ble  of  A u th o r ities

Cases Page(s)

Allen v. Wright, 468 U.S. 737 (1984) ................. ......  7,10

Baker v. Carr, 369 U.S. 186 (1962) ....................... . 10

Board o f Regents v. Roth, 408 U.S. 564 (1971) ........ 16

Brewer v. Ham, 876 F.2d 448 (5th Cir. 1989) .......... 14

Davis v. Bandemer, 478 U.S. 109 (1986) ................ 9

DeWitt v. Wilson,
856 F.Supp. 3409 (E.D.Cal. 1994) ...... . 13

Edelman v. Jordan, 415 U.S. 651 (1974) ................ 7

Gaffney v. Cummings, 412 U.S. 735 (1973) ............. 11

Gregory v. Ashcroft, 501 U.S. 452 (1991) ...... 2

Growe v. Emison, 113 S.Ct. 1075 (1993) ................ 16

Hays v. Louisiana,
862 F.Supp. 119 (W.D. La. 1994).......................... . 3

Johnson v. DeGrandy, 114 S.Ct. 2647 (1994) ...........  14,15

Johnson v. Miller,
864 F.Supp. 1354 (S.D.Ga. 1994) .........................  1,7

League o f United Latin American Citizens v. Clements,
999 F.2d 831 (5th Cir. 3993) ................. ..............  13

Lujan v. Defenders o f Wildlife,
112 S.Ct. 2130 (1992) ........................ ......................  6,7,8,9



Ill

Moore v. City o f East Cleveland,
431 U.S. 494 (1977) ..............................................  17

Northeastern Florida Chapter o f the Associated General 
Contractors o f America v. City o f Jacksonville,
113 S.Ct. 2297 (1993) ............................................ 7

Palmore v. Sidoti, 466 U.S. 429 (1984) .....................  17

Pleasant Grove, City o f  v. United States,
479 U.S. 462 (1987) ............................................. 17

Regents o f the University o f California v. Bakke,
438 U.S. 265 (1978) ...............................................  8

Richards v. Vera, No. 94-805 .................................. 10

Rutan v. Republican Party o f Illinois,
497 U.S. 62 (1990)   12

Shaw v. Barr, 113 S.Ct. 653 (1992)   6

Shaw v. Hunt, 861 F.Supp. 408 (E.D.N.C. 1994) . 1,6

Shaw v. Reno, 113 S.Ct. 2816 (1993)  passim

Valley Forge Christian College v. Americans United,
454 U.S. 464 (1982) ...............................................  7

Vera v. Richards,
861 F.Supp. 1304 (S.D. Tex. 1994) ..................... passim

Voinovich v. Quilter, 113 S.Ct. 1149 (1993) ............  2

Whitcomb v. Chavis, 403 U.S. 124 (1971) ................ 13

White v. Weiser, 412 U.S. 783 (1973) 17



IV

Woodv. Broom, 287 U.S. 1 (1932) .......................... . 16

Constitutional Provisions. Statutes and Rules

2U.S.C. 2c ............................................... ........ ............ 3

42 U.S.C. 1973c ..................................................... . 3

Miscellaneous

Karlan, All Over the Map:
The Supreme Court’s Voting Rights Trilogy,
1993 Sup.Ct.Rev. 245 ........................................  6



INTEREST OF AMICI CURIAE STATES

Amici states submit this brief for one basic purpose: to highlight 
the threat to state primacy in fundamental redistricting decisions raised 
by lower court interpretations of the Court’s opinion in Shaw v. Reno, 
113 S.Ct. 2816(1993).

The decisions of the lower courts in this case out of Georgia, in 
Hays v. Louisiana, 862 F.Supp. 119 (W.D. La. 1994), probable 
jurisdiction noted (Nos. 94-558 and -627), and in Vera v. Richards, 861 
F.Supp. 1304 (S.D. Tex. 1994), appeals docketed (Nos. 94-805, -806, 
and -988), draw largely identical conclusions from widely divergent 
factual settings.1 Particularly disturbing in these conclusions is the 
denigration of state policy choices which are independent of race but 
made in the maelstrom of redistricting where, by dint of both federal law 
and unavoidable reality, race necessarily plays a role. As these rulings 
signify, lower courts read Shaw as laying down such broadly prohibitory 
constitutional rules that they are overlooking significant state interests 
having nothing to do with race and how those interests play out in quite 
different ways in the widely differing politics of the various states. The 
Court emphasized that Shaw’s prohibition was intended to reach the 
“exceptional cases,” 113 S.Ct. at 2826, yet wielding the Shaw sword to 
strike down state enactments has become commonplace. Shaw should 
be confined to its original narrow channel.

The force of the lower courts’ predominant approach -- 
combining the most open-ended of standing requirements with the most 
confining reading of the role of traditional, long-employed state policy 
considerations2 — threatens to convert state legislatures into mere

1 Shaw v. Hunt, 861 F.Supp. 408 (E.D.N.C. 1994), appeal docketed (No. 94-923), while 
upholding the North Carolina congressional redistricting effort, disposed of the standing 
question in a troubling, expansive fashion, and adopted a disturbingly narrow view of 
non-racial redistricting rationales.

2 There are inconsistencies, though, on such fundamental legal points as what counts as a 
traditional districting principle. Compare Johnson v. Miller, 864 F.Supp. at 1369 (listing 
“protecting incumbents” as a traditional districting principle) with Vera v. Richards, 861 
F.Supp. at 1335-36, and Hays v. Louisiana, 862 F.Supp. at 123.



2

formalistic checkpoints on the way to rigid federal judicial control of 
redistricting and impermissibly to frustrate conscientious state 
legislators by confronting them with indecipherable and possibly 
conflicting federal judicial dictates. If the lower court decision here 
stands, the path to constitutional redistricting will have become so 
narrow and obscure that the only way to successfully navigate it is either 
by sheer, blind luck or with a guide — a federal judicial panel — holding 
what amounts to a secret map but refusing to reveal it until journey’s 
end.

The Court’s stated principles reject such an outcome. 
“[Rjeapportionment is primarily the duty and responsibility of the State .
. . rather than of a federal court.” Voinovich v. Quilter, 113 S.Ct. 1149, 
1157 (1993). Furthermore, such a result would be anathema to the kind 
of federalism the Court has discerned in our federal Constitution, a 
federalism which acknowledges the unique and specially protected 
position of the states in making choices going to the heart of 
representative government. See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 
461 (1991).

The states have a strong interest in seeing that their elected 
policymakers choose the non-constitutional ideas -- the traditional 
districting principles — which inform the configuration of districts 
whose voters will elect their representatives in the national Congress. 
Now, before a major new round of redistricting has begun and 
expectations have settled around lower court interpretations of Shaw v. 
Reno, is the time to insure the states retain the authority which some of 
the lower courts hearing Shaw claims have taken away: the ability (and 
federalism-based right) to comply with the dictates of the Voting Rights 
Act while simultaneously balancing and honoring a panoply of other 
legitimate state interests.

Almost all states must redistrict congressional seats following 
the decennial census and accompanying decennial reapportionment.3

3 At this point, seven states do not have this obligation because they are apportioned 
only one congressional representative. They are Alaska, Delaware, Montana, North 
Dakota, South Dakota, Vermont, and Wyoming. Congressional District Atlas, 103rd



3

All states must perform this task consistently with federal constitutional 
law (one-person/one-vote, partisan gerrymandering, and intentional 
racial vote dilution, plus, now, whatever the Shaw principle imposes) 
and federal statutory law (section 2 of the Voting Rights Act for all 
states and section 5 of the Voting Rights Act for some states)4 as well as 
with the constitutional and statutory law of the various states.

The increasing complexity of our society, the population growth 
which forces more populous congressional districts because of the fixed 
number of overall seats, and the indifference of technological 
developments in communications and transportation to old political 
alignments and subdivisions mean that the next round of redistricting 
will call for even more difficult judgments about how to handle the vast 
array of state-based, often idiosyncratic considerations falling outside 
firmly established federal mandates. Our interest here is to help insure 
that Shaw v. Reno will no longer be read by lower federal courts in a 
fashion that denigrates non-racial state policy choices.

Aspirations to color-blindness should not be permitted to foist 
upon the states a tone-deafness to either their own unique political 
concerns or the private racial discrimination which sometimes accretes 
through the private ballot to become a powerful bloc of political 
exclusion. The lower court’s overly expansive reading of Shaw’s 
doctrine threatens precisely such a result, displacing the finely-tuned 
political ears of the people’s elected state representatives with the 
figurative tin ear of an unelected federal judiciary in a matter lying at the 
heart of state governance. The states do not want this to happen.

Congress of the United States, vol. 1 at v (U.S. Dept, of Commerce Feb. 1993). By 
federal statute, all congressional districts must be single-member. 2 U.S.C. 2c.

4 All or parts of sixteen states are subject to the preclearance requirements of section 5 of 
the Voting Rights Act, 42 U.S.C. 1973c. 28 C.F.R. Part 51 App. (listing the states, 9 of 
which are covered in their entirety and 7 of which have only parts covered, and giving 
the dates on which coverage was formally announced).



4

SUMMARY OF ARGUMENT

Constitutional standing to raise a Shaw claim was not implicitly 
or explicitly determined in Shaw v. Reno. In fact, the court expressly 
reserved on this issue. The requirement that a Shaw plaintiff 
demonstrate some kind of concrete harm from the state action giving 
rise to a Shaw claim certainly has not been eliminated, nor, under the 
Court’s Article III jurisprudence, could it be. The lower court’s explicit 
determination in this case that the plaintiffs had not demonstrated any 
harm should suffice to dispose of the case.

Shaw did provide markers for what would constitute standing by 
identifying the harms that could arise from a Shaw claim. Demonstrable 
evidence of increased racial polarization as a result of the creation of a 
contorted minority opportunity district or of a narrowing of the polity to 
which the representative elected from a challenged district responds, to a 
racially dominant group only, might suffice to establish the kinds of 
harm sufficient to impart standing.

Shaw cannot be read to preclude minority voters from engaging 
in the rough and tumble of political activity typically associated with 
redistricting. Such a reading would run counter to the basic meaning of 
the very constitutional provision on which the decision rests, the Equal 
Protection Clause. Further, it would constitute its own kind of explicit 
racial classification, requiring minorities to abstain from electoral 
politics while permitting all others to participate.

Yet, the effect of the lower courts’ reading of Shaw is precisely 
to inject such disequilibrium into American redistricting politics. In part 
because of the posture in which the original case arrived at the Court, 
with the bare bones complaint about race forming the focal point of the 
decision, the lower courts have developed a kind of myopia about these 
cases. They misguidedly by attribute to race the distortions of the 
districts under attack, ignoring the political realities: that state political 
actors massage district boundaries to embed non-racial state policies into 
the districts finally drawn. Such traditional districting principles include 
incumbent protection, preservation of core districts, grouping of 
communities of interest (to which the unelected may be blind), and a



5

host of other state-based traditions that are intimately bound up with the 
political, economic and social life of the state.

Ultimately, what is at work here is the denigration of the state’s 
fundamental right to make non-racial policy choices in this area and the 
arrogation to federal courts of their own non-constitutional preferences 
about how sovereign states should establish the basic structures to elect 
their representatives. Shaw was not a signal for such a break with 
longstanding, basic doctrines of federalism. This should be the occasion 
for the Court to re-confine Shaw to its original narrow compass and 
make clear again what was said in the original decision: it reaches only 
the “exceptional cases.” The cases before the Court now do not fit this 
description, and they should be held to fall outside Shaw’s reach.

ARGUMENT

In the context of redistricting challenges, standing principles are 
being read too expansively and traditional districting principles too 
narrowly. Palpable reality — in terms of both individualized, concrete 
harm on the standing front and a cleateyed, commonsense acceptance 
of everyday political concerns on the traditional districting principle 
front -- is in danger of being cast aside in the wake of Shaw v. Reno. 
Shaw does not require, or even countenance, such departures, and the 
amici states urge the Court to reiterate reality’s place in Shaw 
jurisprudence.

I. STANDING IS A CONSTITUTIONAL PREREQUISITE 
WHICH MUST BE ESTABLISHED THROUGH PROBATIVE 
EVIDENCE OF THE KINDS OF HARMS (INCREASED 
POLARIZED VOTING AND SELECTIVELY INDIFFERENT 
LEGISLATIVE REPRESENTATION) IDENTIFIED IN SHAW 
AND WHICH CANNOT BE PRESUMED MERELY FROM THE 
PRESENCE OF OFFENDED SENSIBILITIES.

Standing is a threshold issue of constitutional dimension. The 
Court should delineate the contours of standing to raise a Shaw claim in 
the setting of this case, which has been fully tried on the merits, and 
make clear that the standing requirements applicable in other contexts



6

are fully applicable to redistricting cases and racial discrimination 
claims involving them.

Shaw v. Reno did not treat the standing issue at all. While some 
have expressed consternation about this omission, see Karlan, All Over 
the Map: The Supreme Court’s Voting Rights Trilogy, 1993 Sup.Ct.Rev. 
245, 278 (“remarkable departure”), it is fully understandable in the 
specific context of the case as it came to the Court the first time. The 
lower court had dismissed the action for failure to state a claim. There 
was only a bare complaint, and the Shaw plaintiffs at that point had 
adduced no evidence on any issue, including any fact-specific issues of 
injury and causation of the type emphasized in Lujan v. Defenders o f 
Wildlife, 112 S.Ct. 2130 (1992), as essential to the establishment of 
constitutional standing.

When the case came up on appeal from the district court’s Rule 
12(b)(6) dismissal, the Court expressly refused to note probable 
jurisdiction regarding a standing question proffered by the appellants.5 
Then, in its opinion, the Court explained that “[tjoday we hold only that 
appellants have stated a claim under the Equal Protection Clause . . .” 
113 S.Ct. at 2832 (emphasis added). Whether the allegations of a 
complaint state a cause of action, and whether the particular plaintiffs 
making the allegations have standing to press the action, are entirely 
separate issues.

/
Despite the Court’s refusal to reach the standing issue, the lower 

courts hearing Shaw claims have tended to find in the Shaw decision an 
implicit disposition of standing. Shaw v. Hunt, 861 F.Supp. at 427

5 See Jurisdictional Statement, No. 92-357, i (“Do white voters have standing to seek 
relief from congressional redistricting which was intended by both the state and federal 
defendants to result in the election of minority persons to Congress from two majority- 
minority districts?”) In noting probable jurisdiction, the Court directed that “[argument 
shall be limited to the following question:” “whether a state legislature’s intent to 
comply with the Voting Rights Act and the Attorney General’s interpretation thereof 
precludes a finding that the legislature’s congressional redistricting plan was adopted 
with invidious discriminatory intent where the legislature did not accede to the plan 
suggested by the Attorney General but instead developed its own.” Shaw v. Barr, 113 
S.Ct. 653 (1992).



7

{Shaw “implied a standing principle”), Vera v. Richards, 861 F.Supp. at 
1331 n.38 (Court “inferentially decided they had constitutional 
standing”), and Johnson v. Miller, 864 F.Supp. at 1370 {Shaw 
“implicitly recognizes”). Even were such a ruling “implicit” in Shaw — 
and it was not — the Court has repeatedly emphasized that implicit 
pronouncements on constitutional issues — and standing is just such an 
issue — do not settle them. Edelman v. Jordan, 415 U.S. 651, 671 
(1974). Thus, standing in cases raising Shaw claims remains an open 
issue.

The lower courts’ misreading of Shaw on standing, unless 
corrected by the Court, would dramatically increase the exposure of 
states to redistricting challenges by plaintiffs not constitutionally entitled 
to bring such claims and correspondingly enmesh the federal courts even 
further in micromanaging the details of core state activities. It would fly 
in the face of this Court’s admonition that federal judges do not have “an 
unconditional authority to determine the constitutionality of legislative 
or executive acts,” but may only do so where the constitutional 
requirements of a “case or controversy,” including the threshold 
requirement of standing, are met. Valley Forge Christian College v. 
Americans United, 454 U.S. 464, 471 (1982).

Shaw v. Reno does not necessitate the approach taken by the 
lower courts and, in fact, offers a roadmap for elucidation of a standing 
principle in these kinds of cases that is far more consistent with extant 
standing doctrine than the open-ended approach of the lower court in 
this case.6 One of the three essential elements of the constitutional law 
of standing is that plaintiffs must establish “injury in fact,” meaning that 
they must demonstrate some harm that is “concrete and particularized” 
instead of merely “conjectural or hypothetical.” Lujan v. Defenders o f 
Wildlife, 112 S.Ct. at 2130. Generalized grievances are insufficient for 
standing, and the mere claim of a right to a particular type of conduct 
falls short of constitutional minimums. Allen v. Wright, 468 U.S. 737 
(1984). Northeastern Florida Chapter o f the Associated General

6 The different considerations applicable to standing to raise a vote dilution claim are not 
discussed here because, as Shaw explained, the claim it recognizes is “analytically 
distinct” from a vote dilution claim. 113 S.Ct. at 2830.



8

Contractors o f America v. City o f Jacksonville, 113 S.Ct. 2297 (1993), 
explaining that the existence of higher hurdles, not the likelihood of 
achieving a particular goal, imparts standing in an equal protection case, 
does not alter Lujan’s fundamental requirement of an injury in fact. 
Even under Northeastern Florida, the benefit sought to be attained still 
must be concrete (as were the sought-after municipal construction 
contracts there).7

In explaining the kinds of concrete harms that might be 
attributable to a Shaw claim, the Court pointed to the possibility that 
creation of the kind of minority opportunity district targeted by the Shaw 
plaintiffs might exacerbate racial division by increasing racial bloc 
voting. 113 S.Ct. at 2827. Also, as another potential harm, the Court 
posited that representatives elected from the targeted minority 
opportunity districts might ignore their polity as a whole while focusing 
nearly exclusive attention on the dominant minority group in the district. 
Id.

However, whether one of these distinctive harms has actually 
occurred and is caused by a disputed districting plan is, like every issue 
of injury in a standing case, a question of fact. In this setting, as in all 
other standing cases, the plaintiffs bear the burden of demonstrating with 
probative evidence that the requisite injury had been caused by the 
districting plan at issue. t

The party invoking federal jurisdiction bears the burden 
of establishing these elements . . . Since they are not 
mere pleading requirements but rather an indispensable 
part o f the plaintiff’s case, each element must be 
supported in the same way as any other matter on which 
the plaintiff bears the burden of proof, i.e. with the 
manner and degree of evidence required at the 
successive stages of litigation . . . [Tjhose facts . . .

' Regents o f the University o f California v. Bakke, 438 U.S. 265 (1978), similarly 
requires a palpability in the goal which is sought to be attained. Once Allan Bakke could 
clear the challenged hurdles to admission, he wanted a medical education and degree. 
This concrete goal was essential to his standing. 438 U.S. at 280 n.14.



9

must be “supported adequately by the evidence adduced 
at the tria l. . . "

Lujan v. Defenders o f Wildlife, 112 S.Ct. at 2136-37 (emphasis added; 
internal citations omitted).

The plaintiffs in this case appear to have offered no evidence 
going to these two types of harms that must be associated with a Shaw 
claim, and the lower court made no findings about the existence of such 
harms.8 They thus have failed to establish the requisite injury in fact.

Shaw v. Reno could not have rested on any generalizations about 
injuries arising from the impact of irregularly shaped districts drawn 
with a race-consciousness. The kind of claim it recognized was, by the 
Court’s own terms, new, rare, and exceptional. Until the instant case 
and the Louisiana v. Hays case, no case which had been tried on the 
merits involving a Shaw claim had made its way to the Court. The Shaw 
opinion even continues the emphasis that “racial bloc voting . . . never 
can be assumed, but specifically must be proved in each case,” 113 S.Ct. 
at 2830, a proposition which necessarily carries with it the requirement 
that increases in bloc voting be proven.

Similarly, the Court has explained that evidence is required to 
establish that an elected official will fail to represent all of his or her 
constituents. In Davis v. Bandemer, 478 U.S. 109 (1986), the Court 
held:

An individual who votes for a losing candidate is usually 
deemed . . .  to have as much opportunity to influence that 
candidate as other voters in the district. We cannot 
presume in such a situation, without actual proof to the 
contrary, that the candidate elected will entirely ignore the 
interests of those voters . . . [Wjithout specific supporting 
evidence, a court cannot presume . . . that those who are 
elected will disregard the . . . under-represented group.

8 These types of harms cannot be assumed; indeed there is evidence to the contrary in the 
Louisiana, Texas and Maryland cases. See Appendix A.



10

478 U.S. at 132 (emphasis added).

Other lower courts have suggested that “stigmatization” by a 
race-based redistricting plan might impart standing, a proposition 
embraced by some of the parties before this Court in other cases. See, 
e.g., Richards v. Vera, No. 94-805, Appellees’ Motion to Affirm at 15. 
Yet, the Court in Allen v. Wright, 468 U.S. 737 (1984), rejected 
precisely such stigmatic harm as inadequate to establish standing. 
There, the Court stressed that stigmatic injury is never sufficient to 
support standing unless accompanied by proof of “some concrete 
interest with respect to which respondents are personally subject to 
discriminatory treatment. That interest must independently satisfy the 
causation requirement of standing doctrine.” Id. at 757 n.22 (emphasis 
added). The same absence of concrete injury that was fatal to standing 
in Allen is fatal to the stigmatic injury claim in this case.

The lower court in this case did make an explicit finding 
relevant to the standing issue. It determined that the plaintiffs “suffered 
no individual harm [and that] the 1992 congressional redistricting plans 
had no adverse consequences for these white voters.” 864 F.Supp. at 
1370. The fact that the court then went on to find standing demonstrates 
the abandonment of standing principles for Shaw v. Reno claims. The 
Court has not countenanced such an abandonment and cannot do so 
without overruling, at a minimum, Allen v. Wright.

Offended sensibilities were not enough for standing in Allen v. 
Wright, and they are not enough for standing in cases such as this one. 
Furthermore, the harms the Court has identified as possibly associated 
with a Shaw claim are not to be presumed; they must be proven as part 
of the plaintiffs case on standing. That did not happen in this case, and 
it does not appear to have happened in the other Shaw cases now 
pending before the Court.

Until the decision in Baker v. Carr, 369 U.S. 186 (1962), just 
over thirty years ago, redistricting law fell largely outside federal 
jurisdiction for reasons of justiciability. Now, under the lower court’s 
theory at any rate, we have moved to the point where there are virtually



11

no justiciability restraints in this arena even though standing doctrine is 
widely perceived to have moved onto a more restrictive constitutional 
path. This unjustified expansion of Shaw v. Reno’s reach calls out for 
correction by the Court.

II. THE LOWER COURTS’ APPLICATIONS OF SHAW V 
RENO UNDERMINE STATE PRIMACY IN REDISTRICTING, 
IGNORE POLITICAL REALITIES, AND REST ON THE 
UNACCEPTABLE PRINCIPLE THAT MINORITY VOTERS 
MUST ESCHEW POLITICAL GIVE AND TAKE IN WHICH ALL 
OTHER VOTERS PARTICIPATE.

In Shaw v. Reno, the Court recognized a new, “analytically 
distinct” claim in the equal protection law of redistricting and voting 
rights.

[Rjedistricting legislation [is unconstitutional if it] is so 
extremely irregular on its face that it rationally can be 
viewed only as an effort to segregate the races for purposes 
of voting, without regard for traditional districting principles 
and without sufficiently compelling justification.

113 S.Ct. at 2824.

But nothing in Shaw serves to undo the Court’s longstanding 
acceptance of the quite obvious fact that politics in all its forms, both 
refined and raw, plays a central role in redistricting decisions. Labeling 
efforts to squeeze politics out of the redistricting process “politically 
mindless,” the Court has noted the “impossible task of extirpating 
politics from what are the essentially political processes of the sovereign 
states.” Gaffney v. Cummings, 412 U.S. 735, 753-54 (1973):

Nor is the goal of fair and effective representation 
furthered by making the standards of reapportionment so 
difficult to satisfy that the reapportionment task is 
recurringly removed from legislative hands and performed 
by federal courts which themselves must make the 
political decisions necessary to formulate a plan or accept



12

those made by reapportionment plaintiffs who may have 
wholly different goals from those embodied in the official 
plan. From the very outset, we recognized that the 
reapportionment task dealing as it must with fundamental 
“choices about the nature of representation,” . . .  is 
primarily a political and legislative process.

Gaffney, 412 U.S. at 749 (emphasis added; internal citations omitted).

Shaw’s necessarily narrow frame of reference has had 
unfortunate consequences for the lower courts deciding cases in its 
wake. Confined as it was to the pleadings, virtually its only ingredient 
was race; the rich stew of trial that holds other ingredients — an 
especially diverse mixture in redistricting cases — had not yet begun to 
be prepared.

This confined focus of the Shaw opinion has induced a myopia 
in the lower courts. Wherever they look, they seem to see only race.9 
This reflects “a naive vision of politics,” to use a phrase from Rutan v. 
Republican Party o f Illinois, 497 U.S. 62, 103 (1990) (Scalia, J. 
dissenting). More than race nearly always informs congressional (or, for 
that matter, any) redistricting. It is safe to observe that congressional 
districts never are drawn in a vacuum; potential candidates are evaluated 
and potential political repercussions are pored over regardless of 
whether a particular district is intended to be a minority opportunity 
district satisfying the commands of the Voting Rights Act or the redoubt 
of some important or long-powerful state political figure.

For this decade’s round of redistricting, the technology for these 
kinds of evaluations, in the form of sophisticated computer systems, had 
evolved to become at least an order of magnitude more powerful than 
ever before and the raw information similarly more voluminous and

9 For example, highly integrated, single-county urban districts have been struck down, 
see Vera v. Richards, supra, in the face of Shaw’s description of the archetype of a 
distorted district. Such a district, posited the Court, is one that includes “individuals who 
belong to the same race, but who are otherwise widely separated by geographical and 
political boundaries.” 113 S.Ct. at 2827 (emphasis added).



13

more detailed. Population data, for example, was available down to the 
census block level for the first time, and there were 7 million such 
blocks. Congressional District Atlas, supra n.3, vol. 1 at v. The result 
of this technological evolution tended to be the same in the political 
redistricting world as biological evolution has in the natural one: 
increased complexity of organization.

Some of the information used in this decade’s redistricting was 
racial in character. Compliance with sections 2 and 5 of the Voting 
Rights Act, not to mention the antidiscrimination principle of the Equal 
Protection Clause, required it. The census information on race also 
provided other useful insights about the consequences of drawing 
congressional district lines in one place or another, but only when used 
in combination with other data and the political knowledge peculiarly 
available to elected officials.10

It hardly follows from such uses, though, that race is the sole11 
or even dominant factor accounting for the ultimate shaping of any 
given district. It would be, to borrow a phrase from Shaw, an 
“exceptional case[]” in which this were so. Working from the tandem 
elements of a Shaw claim — that the district shape be irregular (i.e., 
wildly inconsistent with traditional districting practices) and that the sole 
(or even dominant) reason for the irregularity be race — it might be 
possible to arrive at an idea of an archetypal district which would require

10For example, in regions where racial voting patterns tend to divide along partisan 
lines, useful information about the partisan tendencies of a particular area could be 
gleaned from a sophisticated reading of such census data to get a reading “on the basis of 
their politics rather than their race or ethnicity[,]” Rutan, 497 U.S. at 108 (J. Scalia, 
dissenting). The Court has seen such phenomena at work in electoral settings and even 
found it determinative as a non-racial explanation for questioned voting activity. See, 
e.g., Whitcomb v. Chavis, 403 U.S. 124 (1971). Lower courts have taken a similar tack 
in rejecting section 2 claims, finding partisan activity where plaintiffs assert racial 
patterns. See, e.g., League o f United Latin American Citizens v. Clements, 999 F.2d 831 
(5th Cir. 1993) (en banc), cert, denied, 114 S.Ct. 878 (1994) (rejecting section 2 
challenge to Texas judicial election system).

' ' i n  a California redistricting case, the court read Shaw as condemning redistricting 
based “solely” on race. DeWitt v. Wilson, 856 F.Supp. 1409, 1412 (E.D.Cal. 1994), 
appeal docketed (No. 94-275). But other lower courts, including the one here, expand 
the Court’s language on this point. See 864 F.Supp. at 1373-74.



14

the state to satisfy the twin tests of compelling interest and narrow 
tailoring. If circumstances in the state, especially those surrounding the 
question of whether racial bloc voting persists, were such that 
reasonable legislators drawing district lines would rtQl have concluded 
that section 2 of the Voting Rights Act required the creation of a 
minority opportunity district and that (for those covered) section 5 of the 
Voting Rights Act required the maintenance of such a district, and if 
they nonetheless drew such a district by meticulously searching for blocs 
of racial minorities to string together into a district without regard to 
state-based districting principles, then a Shaw claim could be made out.

In a less extreme scenario, it was not infrequent during the last 
round of redistricting that legislators preparing to redraw their state’s 
congressional districts were confronted with circumstances indicating 
that failure to draw a minority district in a region of the state12 would 
result in liability under section 2. Political reality suggests that they 
would hardly simply turn on the computer, find a concentration of 
minority voters sufficient to satisfy section 2’s requirements,13 and then 
draw the district lines in as neat a fashion as geography and the 
computer would permit. That would constitute making race the clearly 
dominant, if not sole, factor in the shape of a district, and that would 
probably constitute a Shaw violation, especially if the district were 
misshapen and there were an absence of meaningful communities of 
interest among the district’s residents.

But that scenario is not what happens in the real world of 
political redistricting. Once it is determined that the Voting Rights Act 
is going to require the creation or maintenance of a minority opportunity

12Despite the Court’s having left open the question of whether the proper frame of 
reference in a statewide redistricting for a statewide body for evaluating the first Gingles 
factor (geographic compactness and sufficient minority population) is localized or 
statewide, Johnson v. DeGrandy, 114 S.Ct. 2647, 2662 (1994), legislatures as a practical 
matter tend to assess the question by region. It is noteworthy that the United States, 
which urged a statewide frame of reference, id., is the principal enforcer of section 5 of 
the Voting Rights Act.

13A leading section 2 standard requires a threshold of 50% minority voting age 
population to create a minority opportunity district. See Brewer v. Ham, 876 F.2d 448 
(5th Cir. 1989).



15

district, a host of other factors and players make their appearance. 
Those factors and players (for example, incumbent members of 
Congress, or their surrogates, from the affected region) begin to mold 
the districts as much as they can so that Voting Rights Act compliance 
can coexist with other political interests and redistricting principles. 
When the molding is complete, the likelihood is high that the neat lines 
of the initial conceptual minority district have been changed, even 
distorted, to accommodate other interests having nothing to do with race. 
A minority opportunity district, compliant with the Voting Rights Act 
and perforce drawn with some attention to race, will continue to exist 
but as part of the state’s larger political, economic and social life. As 
long as the non-racial considerations affecting the ultimate boundary 
lines for such a minority opportunity district are reasonably related to 
the state’s larger political, economic or social life and the purpose of 
redistricting, a Shaw claim should fail.

Assuming sections 2 and 5 of the Voting Rights Act themselves 
are constitutional (an unchallenged proposition in the Shaw cases to 
date), to hold otherwise, and constitutionally forbid politics-driven 
distortion of minority opportunity districts while permitting it for other 
districts, would create its own invidious racial classification. It would 
set up one rule for the creation of minority opportunity districts — 
politics is forbidden and only purely racial considerations shall operate - 
- and quite another for non-minority (i.e., white dominant) districts. In 
short, minorities would be forbidden to play non-racial politics that are 
fully available to everyone else. 14 Not only is such a result not required 
by the Equal Protection Clause; it runs directly counter to it. Cf. 
DeGrandy, 114 S.Ct. at 2661 (“minority voters are not immune from the 
obligation to pull, haul, and trade” in the political sphere).

The appropriate test of whether the factors driving the shapes of 
minority opportunity districts are reasonably related to the state’s larger 
political economic or social life is keyed to the traditional districting

^4At least one of the lower courts hearing a Shaw claim insists on such a rule for 
minority opportunity districts. Vera v. Richards, 861 F.Supp. at 1343 (district “must 
have the least possible amount o f irregularity in shape, making allowance for the 
traditional districting criteria”) (emphasis added).



16

principles referenced in Shaw. Consistent with the longstanding 
doctrine that redistricting is primarily a state function, see, e.g., Growe 
v. Emison, 113 S.Ct. 1075, 1081 (1993), state law and state tradition are 
the proper source for discerning traditional districting principles. 
Certainly, federal law is not the place to look. In Wood v. Broom, 287 
U.S. 1, 7 (1932), the Court held that the 1929 federal reapportionment 
act for Congress deliberately omitted requirements of compactness and 
contiguity for congressional districts. These requirements never have 
been reinstated in federal law.

This, however, is a state-specific inquiry; just as the Court 
recognizes that different constitutional requirements flow from the 
states’ different rules about property, Board o f Regents v. Roth, 408 U.S. 
564 (1971), so too must it recognize that different Shaw implications 
flow from the states’ different traditions about redistricting. The 
specialized redistricting abstention doctrine applied in Growe v. Emison 
is implicit recognition of this proposition.

Some states have explicit congressional redistricting 
requirements. West Virginia, in article I, section 4, of its constitution 
requires compactness and contiguity. California, in article XXI, section 
1, of its constitution requires “respect” for the “geographical integrity of 
any city, county, or city and county, or of any geographical region” to 
the extent possible without violating other standards. Some states, on 
the other hand, have no explicit constitutional or statutory redistricting 
requirements for congressional seats. Texas, for example, falls in this 
latter category.

To discern in any given case whether a state has distorted 
minority districts with an indifference to its traditional districting 
criteria, a court considering a Shaw claim must look to several potential 
sources. State constitutional and statutory law on the topic, state case 
law, prior redistricting and political history, and contemporaneously- 
created districts other than the one under challenge all must be 
evaluated. If a minority opportunity district is severely distorted (for 
example, far beyond the kind of hypothesized district that might satisfy 
the first Gingles threshold factor in a section 2 setting) and creeps in and



17

out of city boundaries,15 while other contemporaneous wo/i-minority 
districts in the state do not do so, then further inquiry may be warranted 
to determine whether other traditions — e.g., incumbent protection and 
preservation of the core of old districts, White v. Weiser, 412 U.S. 783, 
791 (1973) -- explain the result.

The lower courts decisions to date in Shaw cases, however, fail 
to accord sufficient weight to the states’ own legitimate traditions. By 
giving an unduly pinched reading to “traditional districting criteria,” 
lower courts ignore the reality that these criteria spring from the states 
and their political, economic and social traditions, not from some free- 
floating federal ideal. The approach of the lower courts raises the 
concerns flagged by the plurality in Moore v. City o f East Cleveland, 
431 U.S. 494, 502 (1977) (Powell, J.) (“there is reason for concern lest 
the only limits to such judicial intervention become the predilections of 
those who happen at the time to be Members of this Court”).

If left unchecked, this unduly restrictive view — constitutionally 
unwarranted and federalism-insensitive — inevitably will create strong 
disincentives for state compliance with the Voting Rights Act. State 
legislators hardly are going to embrace the Voting Rights Act and 
willingly comply with section 2’s strictures if they are being told by the 
federal courts that, in doing so, they must sacrifice a host of other 
perfectly legitimate objectives in a rippling effect across the state or 
region. The Shaw doctrine requires no such unraveling of states’ rights 
or of the protections afforded minority voters by the Voting Rights Act. 
It does not require a state to choose between its own non-racial politics 
and a recognition, where the facts warrant it, of the need to account for 
the reality of private racial biases, cf. Palmore v. Sidoti, 466 U.S. 429, 
433 (1984), in the way it groups voters into districts to roughly 
counterbalance those biases.

1 Political subdivision boundaries themselves carry no imprimatur of purity. Section 5’s 
preclearance requirement applies to changes in such boundaries precisely because they 
are subject to manipulation for racial ends. See City o f Pleasant Grove v. United States, 
479 U.S. 462 (1987) (upholding preclearance denial to annexation).



18

Shaw is not a license to lower courts to ignore legitimate state 
policy choices or to pick and choose among them according to what fits 
their judicial sensibilities. The states urge the Court to reinstate their 
primacy in the redistricting field, consistent with the longstanding 
principle the Court has embraced since redistricting became litigable in 
the federal courts.

CONCLUSION

For the foregoing reasons, the amici curiae states urge reversal 
of the decision of the court below.

Respectfully submitted,

Dan M orales 
Attorney General of Texas

Jorge Vega

First Assistant Attorney General

Renea  H icks*
State Solicitor 
*Counsel o f Record

P.O. Box 12548, Capitol Station 
Austin, Texas 78711-2548 
(512) 463-2085



APPENDIX



la

Summary of Record Evidence In Redistricting 
Cases Showing Decreasing Racial Polarization 

in Minority Opportunity Districts

The facts, taken from the record in this and other cases, show 
that the creation of minority opportunity districts has not 
exacerbated racially polarized voting. To the contrary, expert 
evidence on racially polarized voting shows that white voting for 
minority candidates generally has increased in minority opportunity 
districts. For example, Districts 2 and 11 in Georgia became 
minority opportunity districts for the first time in 1992. From 1984 
to 1990, only one percent of white voters in the precincts now within 
District 2 voted for black and hispanic candidates in statewide 
elections. The corresponding white vote for black and hispanic 
candidates in District 11 was only four percent. A dramatic increase 
in white voting for black and hispanic candidates occurred in 1992, 
simultaneously with the first campaigns in the new minority 
opportunity congressional districts. Twenty-nine percent of white 
voters in District 2 and 37 percent of white voters in District 11 
voted for black and hispanic candidates in statewide elections in 
1992.'

Evidence from other States shows that minority opportunity 
districts, including irregularly-shaped districts, have resulted in 
increased white support for minority candidates. In 1984, only 8 
percent of white voters voted for the black candidate in the 
Democratic congressional primary in what is now Louisiana, District 
2. In 1990, the first year as minority opportunity district, 44% of 
white voters voted for black candidates and in 1992 the white vote 
for black candidates rose to 74%. (Years between 1984 and 1990 did 
not involved any black vs. white congressional elections that could 
be included in the analysis). Louisiana’s District 4 became a 
minority opportunity district in 1992. From 1986 to 1990, white 
voting for black congressional candidates in that District ranged 
from a low of 3% (3 elections) to a high of 22% (one election). In 
1992, white voting for black candidates rose to 58%. Declaration of 
Richard Engstrom, July 20, 1994, Chart One, Hays v. Louisiana. 1

1 See DOJ Ex. 24, Report of Dr. Allan J. Lichtman, May 26, 1994, Tables 1-3.



2a

In Texas, the chart below2 reports pre-1992 and 1992 white 
voting for Black candidates in Texas’ two African American 
opportunity districts (Districts 18 and 30) and for Hispanic 
candidates in Texas’ seven Hispanic opportunity districts.

TEXAS POLARIZED VOTING 
ELECTIONS HELD IN MAJORITY-MINORITY 

CONGRESSIONAL DISTRICTS MINORITY VERSUS WHITE 
ELECTIONS 1992 AND PRE-1992

Minority Opportunity Districts

15 16 18 20 23 27 28 29 30

% WHITE VOTE 
FOR BLACK/HISPANIC 
CANDIDATES *

1992
ELECTIONS 37% 33% 29% 25% 16% 50% 0% 5% 64%

PRE-1992
ELECTIONS 22% 30% 24% 6% 9% 27% 7% 5% 15%

* Results are averages for Statewide, Countywide and 
Legislative District elections held within the precincts of the 
minority opportunity districts. 1992 results for Districts 27, 
28, and 30 are based on one election.

In both African American districts, white bloc voting decreased in 
1992. This decrease in white bloc voting occurred even though 
District 18 was made more irregular by the 1991 redistricting and 
District 30 is admittedly irregular in shape (although no more 
irregular than majority-white districts in Texas). Significantly, 
District 30, the newly-created African American opportunity district

2 From information set out in State Ex. 14, Final Report of Dr. Alan J. Lichtman, 
App. 2 Tables 1-9, Vera v. Richards.



3a

in Dallas, showed a large increase in white vote for black candidates, 
from only 15% of white voters in pre-1992 elections to 64% in 1992.

Texas’ Hispanic opportunity districts show a consistent 
pattern, with substantial decreases in white bloc voting in 5 districts, 
no change in one district (29) and an increase in only one of seven 
districts (28). Significantly, the single district which showed an 
increase in white bloc voting, District 28, is not irregularly shaped 
and was found to meet constitutional requirements by the District 
Court in Vera v. Richards.

Maryland is also consistent. A new African American 
opportunity district, District 4, was created in the 1991 redistricting. 
White voting for black congressional candidates in Prince George’s 
County, where both new District 4 and old District 5 were centered, 
increased from 0% in the 1990 Democratic primary to 44% in the 
1992 Democratic primary. Plaintiffs Trial Ex. 22, Affidavit of 
Theodore S. Arrington, Sept. 6, 1993, Table 4, NAACP v. Schaeffer, 
849 F. Supp. 1022 (D. Md. 1994).



4a

TEXAS POLARIZED VOTING 
ELECTIONS HELD IN MAJORITY-MINORITY 

CONGRESSIONAL DISTRICTS 1992 AND PRE-1992

DISTRICT

15 16 18 20 23 27 28 29 30

% WHITE VOTE 
FOR
BLACK/HISPANIC
CANDIDATES

1992
ELECTIONS 37% 33% 29% 25% 16% 50% 0% 5% 64%

PRE-1992
ELECTIONS 22% 30% 24% 6% 9% 27% 7% 5% 15%

* 1992 RESULTS FOR DISTRICTS 27, 28, AND 30 ARE 
BASED ON ONE ELECTION.

SOURCE: FINAL REPORT OF DR. ALLAN J. LICHTMAN,
APPENDIX 2, TABLES 1-9, AL VERA ET AL. V. ANN 
RICHARDS ET AL.



5a

GEORGIA POLARIZED VOTING 
ELECTIONS HELD IN SECOND AND ELEVENTH 

CONGRESSIONAL DISTRICTS BLACK VERSUS WHITE 
ELECTIONS 1992 AND PRE-1992*

DISTRICT

2ND 11TH
% WHITE VOTE FOR 
BLACK/HISPANIC 
CANDIDATES *

1992
ELECTIONS 29% 37%

PRE-1992
ELECTIONS 1% 4%

* RESULTS ARE AVERAGES FOR STATEWIDE 
ELECTIONS HELD WITHIN THE PRECINCTS OF THE SECOND 
AND ELEVENTH DISTRICTS, 1984-1990 AND 1992.

SOURCE: REPORT OF DR. ALLAN J. LICHTMAN, REPORT ON 
ISSUES RELATING TO GEORGIA CONGRESSIONAL 
DISTRICTS, MAY 26, 1994, TABLES 1-3, DAVIDA JOHNSON, 
ET AL. V. ZELL MILLER, ET AL.



6a

LOUISIANA POLARIZED VOTING: 2ND AND 4TH 
CONGRESSIONAL DISTRICTS BLACK VERSUS WHITE 

CONGRESSIONAL ELECTIONS: 1984 TO 1992

SECOND DISTRICT: BECAME MAJORITY BLACK IN 1990 *

% WHITE VOTE 
FOR BLACK

1984
PRIMARY

1990
PRIMARY

1992
PRIMARY

CANDIDATES 8% 44% 74%

FOURTH DISTRICT: BECAME MAJORITY BLACK IN 1992 **

1986 1986 1988 1988 1990 1992
PRIM RUN PRIM RUN PRIM PRIM

% WHITE VOTE 
FOR BLACK 
CANDIDATES 3% 22% 3% 15% 3% 58%

* THERE WAS ONE BLACK CANDIDATE AND FOUR 
WHITE CANDIDATES IN THE 1984 PRIMARY; SIX BLACK 
CANDIDATES AND SIX WHITE CANDIDATES; AND TWO 
BLACK CANDIDATES AND ONE WHITE CANDIDATE IN THE 
1992 PRIMARY. THE SECOND DISTRICT IS BASED IN NEW 
ORLEANS AND HAS CONSIDERABLE OVERLAP DURING THE 
PERIOD STUDIED HERE. **

** THERE WAS ONE BLACK CANDIDATE AND FOUR 
WHITE CANDIDATES IN THE 1986 PRIMARY; ONE BLACK 
CANDIDATE AND ONE WHITE CANDIDATE IN THE 1986 
RUNOFF; ONE BLACK CANDIDATE AND FOUR WHITE 
CANDIDATES IN THE 1988 PRIMARY; ONE BLACK 
CANDIDATE AND ONE WHITE CANDIDATE IN THE 1988 
RUNOFF; ONE BLACK CANDIDATE AND TWO WHITE 
CANDIDATES IN THE 1990 PRIMARY; AND SIX BLACK



7a

CANDIDATES AND TWO WHITE CANDIDATES IN THE 1992 
PRIMARY. THE FOURTH DISTRICT IS BASED OUTSIDE OF 
NEW ORLEANS AND HAS LIMITED OVERLAP FOR THE 
PERIOD BEFORE AND AFTER THE 1992 REDISTRICTING.

SOURCE: DECLARATION OF RICHARD ENGSTROM, 
JULY 20, 1994, CHART ONE, RAY HAYS ET AL. V. STATE OF 
LOUISIANA, ET AL.



8a

MARYLAND POLARIZED VOTING:
FIFTH AND FOURTH CONGRESSIONAL DISTRICTS: 

BLACK VERSUS WHITE CONGRESSIONAL ELECTIONS 
PRINCE GEORGE’S COUNTY 1990 & 1992

ELECTION

1990 1992
DEM. PRIMARY DEM. PRIMARY

% WHITE VOTE FOR
BLACK CANDIDATES 0% 44%

* AFTER THE 1990 ELECTION, IN THE POST-1990 
REDISTRICTING, THE FIFTH CONGRESSIONAL DISTRICT, 
BASED IN PRINCE GEORGE’S COUNTY WAS REDRAWN. A 
NEW MAJORITY BLACK DISTRICT, THE FOURTH 
CONGRESSIONAL DISTRICT, WAS CREATED THAT WAS 
LARGELY BASED IN PRINCE GEORGE’S COUNTY. IN THE 
1990 DEMOCRATIC PRIMARY, BLACK CANDIDATE ABDUL 
MUHAMMAD RAN UNSUCCESSFULLY AGAINST 
INCUMBENT STENNY HOYER IN THE FIFTH DISTRICT. IN 
1992, SEVERAL BLACK AND WHITE CANDIDATES RAN FOR 
THE DEMOCRATIC NOMINATION FOR THE OPEN SEAT IN 
THE FOURTH DISTRICT. ELECTION RESULTS FOR THE TWO 
YEARS ARE FOR PRINCE GEORGE’S COUNTY ONLY.

SOURCE: AFFIDAVIT OF THEODORE S. ARRINGTON,
SEPTEMBER 6, 1993, TABLE 4, NAACP ET AL. V. WILLIAM 
DONALD SCHAEFER ET AL.



■