Johnson v. De Grandy Motion for Leave to File and Brief Amicus Curiae

    No. 92-519

In  The

Bupxm? ( ta rt of tfp> Itttteb Bintm
October Term , 1992

Bolley Johnson, et al.,
v Appellants,

M iguel De Grandy, et al.,
Appellees.

On Appeal from the United States District Court 
for the Northern District of Florida

MOTION FOR LEAVE TO FILE BRIEF 
AMICUS CURIAE  AND BRIEF AMICUS CURIAE  

OF THE LAWYERS’ COMMITTEE FOR 
CIVIL RIGHTS UNDER LAW 

IN SUPPORT OF APPELLEES

Herbert M. Wachtell, Co-Chair 
William H. Brown, III, Co-Chair 
Barbara R. Arnwine 
Thomas J. Henderson 
Frank R. Parker 
Brenda Wright 

(Counsel of Record)
Jacqueline A. Berrien 

Lawyers’ Committee for 
Civil Rights Under Law 

1400 Eye Street, N.W., Suite 400 
Washington, D.C. 20005 
(202) 371-1212 

Counsel for Amicus Curiae

WU.SON -  E p k s  P r in t in g  C o . ,  In c . - 7 8 9 - 0 0 9 6  - W a s h in g t o n , d . c . 2 0 0 0 1



In The

OInurt nf %  Httftein
October Term , 1992

No. 92-519

Bolley Johnson, et ah,
A ppellants,

M iguel De Grandy, et ah,
________  Appellees.

On Appeal from the United States District Court 
for the Northern District of Florida

MOTION FOR LEAVE TO FILE BRIEF 
AMICUS CURIAE  OF THE LAWYERS’ COMMITTEE 

FOR CIVIL RIGHTS UNDER LAW 
IN SUPPORT OF APPELLEES

The Lawyers’ Committee for Civil Rights Under Law 
seeks leave to file the annexed brief as amicus curiae in 
support of the appellees.

The Lawyers’ Committee is a non-profit organization 
created in 1963 at the request of the President of the 
United States to involve private attorneys throughout the 
country in the national effort to assure equal rights to 
all Americans. Protection of the voting rights of citizens 
has been an important aspect of the work of the Com­
mittee. The Committee has provided legal representation 
to litigants in numerous voting rights cases throughout 
the nation over the last 30 years, including cases before
this Court, see, e.g., Clark v. Roemer, 500 U.S. ------,
111S. Ct. 2096 (1991); Clinton v. Smith, 488 U.S. 988



(1988); Connor v. Finch, 431 U.S. 407 (1977). The 
Committee has also participated as amicus curiae in other 
significant voting rights cases in this Court, see, e.g., 
Thornburg v. Gingles, 478 U.S. 30 (1986); Rogers v. 
Lodge, 458 U.S. 613 (1982); City of Mobile v. Bolden, 
446 U.S. 55 (1980).

Although the Committee is not a party to this appeal, 
the Committee represented several African-American citi­
zens in other aspects of the Florida redistricting litigation 
that led to the appeals now before this Court.1 The issues 
presented in this appeal are of great importance to the 
Committee’s work on behalf of minority voters through­
out the nation. In its effort to overturn the judgment 
below, Florida seeks the adoption of a greatly enlarged 
per se defense to Section 2 claims based on alleged pro­
portional representation of Hispanics, a minority group 
that did not elect its first representative to the state 
legislature until 1982. Further, Florida and its amici 
urge this Court to limit challenges to legislative redistrict­
ing schemes based on the fundamentally mistaken notion 
that enforcement of the Voting Rights Act is somehow 
responsible for racially polarized voting and racial politics, 
rather than a necessary response to those conditions. 
These arguments ignore the historical record of minority 
exclusion from equal political opportunity that guided 
Congress in amending Section 2 of the Voting Rights Act 
in 1982, and threaten the hard-won progress that has been 
made under the Voting Rights Act in securing equal 
access to the political process for minorities. Finally,

1 The Committee represented Gwen Humphrey and other inter- 
venors (collectively referred to as the “Humphrey intervenors”) in 
the proceedings below. In those proceedings, the claims of the 
Humphrey intervenors were limited to the dilution of African- 
American voting strength in the Florida House districts drawn in 
Escambia County and the Florida Senate districts drawn in the 
Tampa Bay area. Thus, while the Committee did not assert claims 
with respect to the Dade County area, it participated in the trial 
that resulted in this appeal and those in Nos, 92-767 and 92-593,



Florida urges a highly restrictive interpretation of the 
manner in which minority voters may satisfy the first of 
the factors set forth in this Court’s decision in Thornburg 
v. Gingles. Florida’s interpretation misconstrues the 
Gingles standard and is at odds with the broad remedial 
purpose of the Voting Rights Act.

Acceptance of the appellants’ arguments would impair 
the Committee’s ability to vindicate the rights of the 
minority citizens it represents throughout the nation. 
The Committee therefore has a substantial interest in the 
outcome of this case. We accordingly request that this 
motion for leave to file the attached brief be granted.

Counsel for appellants Florida House of Representa­
tives and the Executive Appellants, as well as counsel 
for the De Grandy appellees, the United States, and the 
Florida State Conference of NAACP Branches, et al. 
have consented to the filing of this brief.2

Respectfully submitted,

H erbert M. Wachtell, Co-Chair 
W illiam  H. Brown, III, Co-Chair 
Barbara R, Arnw ine  
T homas J. H enderson 
F rank  R. P arker 
Brenda Wright 

(Counsel of Record)
J acqueline A. Berrien 

Lawyers’ Committee for 
Civil R ights U nder Law 

1400 Eye Street, N.W., Suite 400 
Washington, D.C. 20005 
(202) 371-1212 

Counsel for Amicus Curiae

2 The letters of consent have been filed separately with the Court. 
In view of the large number of parties listed in this matter, we 
have also filed this motion out of an abundance of caution.



Page
TABLE OF CONTENTS

INTEREST OF AMICUS C U R IA E .......... ..................... 1

SUMMARY OF ARGUMENT.... ................     1

ARGUMENT........ ............................    3

I. FLORIDA DID NOT ESTABLISH A VALID 
DEFENSE OF PROPORTIONAL REPRE­
SENTATION ................................      3
A. The Vote Dilution Claim in this Case Is Not

Based on a Principle of Maximizing Minor­
ity Voting Strength____________________  3

B. Thornburg v. Gingles Provides the Appro­
priate Framework for Analysis of Chal­
lenges to Redistricting P lans..................   6

C. The State Did Not Make Out a Valid Defense 
Based on Alleged “Proportional Representa­
tion” of Minorities in the Florida House
Plan.... ..................................................................  11

TABLE OF A U T H O R IT IE S .................... ..................... . ii

II. GINGLES FACTOR 1 IS SATISFIED BY 
PROOF THAT THE MINORITY GROUP 
COULD COMPRISE A MAJORITY OF THE 
VOTING AGE POPULATION IN ONE OR 
MORE ADDITIONAL SINGLE-MEMBER 
DISTRICTS, AND THE COURT SHOULD 
NOT ENGRAFT NEW REQUIREMENTS
ONTO THE GINGLES TEST ................ ............ 15
A. Gingles Factor 1 Does Not Require Proof of

Citizen Voting Age Majorities____________ 17
B. Appellees’ Proof Satisfies the Requirements

of the First Gingles Factor ..... ......................  18

CONCLUSION 22



11

CASES
TABLE OF AUTHORITIES

Page
Allen v. State Bd. of Elections, 393 U.S 544

(1969) ....................... .................................... ............  21
Connor v. Finch, 431 U.S. 407 (1977) ___ ______ 13
Garza v. County of Los Angeles, 918 F.2d 763 (9th

Cir, 1990), cert, denied, ------ U.S. ------ 111
S. Ct. 681 (1991) ................... .............................. .5,13-14

Growe v. Emison, 507 U.S. ------, 113 S.Ct, 1075
(1993) ........ ................................................................ 4, 6

Jeffers v. Clinton, 730 F. Supp. 196 (E.D. Ark.
1989) (three-judge court), aff’d m em .------U.S.
------, 111 S.Ct. 662 (1991) .......... ........................ 4,14

Jordan v. Winter, 604 F. Supp. 807 (N.D. Miss.) 
(three-judge court), aff’d. mem. sub nom. Mis­
sissippi Republican Executive Comm. v. Brooks,
469 U.S. 1002 (1984) ............................ ................  4, 5

Ketchum v. Byrne, 740 F.2d 1398 (7th Cir. 1984),
cert, denied, 471 U.S. 1135 (1985) ............... ........4-5,13

Major v. Treen, 574 F. Supp. 325 (E.D. La. 1983)
(three-judge court) ............ ................................  4

McNeil v. Springfield Park District, 851 Fl.2d 937 
(7th Cir. 1988), cert, denied, 490 U.S. 1031
(1989) ............................................ .................... ........ 8)18

Overton v. City of Austin, 871 F.2d 529 (5th Cir.
1989) .................. ................ .................... ................ . g

Richardson v. Burns, 384 U.S. 73 (1966) ............  13
Robinson v. Commissioners Court, 505 F.2d 674

(5th Cir. 1974) _________ ________ _________  5
Rybicki v. State Bd. of Elections, 574 F. Supp.

1147 (N.D. 111. 1983) ........... ......... ............ ............ 5
Sanchez v. Bond, 875 F.2d 1488 (10th Cir. 1989), 

cert, denied, ------ U.S. ------, 111 S. Ct. 340
(1990)  .....................................................................  g

Shaw v. Barr, 808 F. Supp, 461 (E.D.N.C.), prob.
juris, noted sub nom. Shaw v. Reno, ------ U.S.
------•, 113 S.Ct. 653 (1992) ....... ............................. 14

Thornburg v. Gingles, 478 U.S. 30 (1986)......... .passim
Voinovich v. Quilter, 507 U .S ,------, 113 S.Ct. 1149

(1993)_____________ ________ ______ _______ 4f 6



I l l

STATUTES AND LEGISLATIVE MATERIALS
42 U.S.C. § 1973............................................... ...........1,
S. Rep. No. 417, 97th Cong., 2d Sess. (1982), 

reprinted in 1982 U.S.C.C.A.N. 177 ....... .........

OTHER AUTHORITIES
Bernard Grofman & Lisa Handley, Identifying  

and Remedying Racial Gerrymandering, 8 J. of
L. & Pol. 345 (1992) ........................ ................... .

J. Morgan Kousser, The Undermining of the F irst 
Reconstruction: Lessons for the Second, in Mi­
nority Vote Dilution (Chandler Davidson ed.,
1989) .................... ............. .... ................................ .

Frank R. Parker, Black Votes Court: Political Em ­
powerment in Mississippi after 1965 (1990)....

TABLE OF AUTHORITIES— Continued

Page
16.17

16

16.18

10

10



In The

§iT|tr£ittj> ( f e r t  o f  %
October Term , 1992

No. 92-519

Bolley Johnson, et al,
Appellants,

M iguel De Grandy, et al.,
Appellees.

On Appeal from the United States District Court 
for the Northern District of Florida

BRIEF AMICUS CURIAE  OF THE LAWYERS’ 
COMMITTEE FOR CIVIL RIGHTS UNDER LAW 

IN SUPPORT OF APPELLEES

INTEREST OF AMICUS CURIAE

The interest of amicus curiae is set forth in the accom­
panying motion for leave to file brief amicus curiae.

SUMMARY OF ARGUMENT

This Court should reject appellants’ arguments seeking 
the adoption of a greatly enlarged per se defense of pro­
portional representation in cases brought under Section 2 
of the Voting Rights Act, 42 U.S.C. § 1973. Those 
arguments are inconsistent with this Court’s decision in 
Thornburg v. Gingles, 478 U.S. 30 (1986), and conflict 
with the policies underlying Section 2,



2

Contrary to the arguments of appellants and their 
amici, a district court does not adopt an improper prin­
ciple of “maximizing” minority voting strength whenever 
it rules that the failure to create additional minority dis­
tricts violates Section 2. To the contrary, courts act well 
within the bounds of their discretion under Section 2 
when they examine districting plans to determine if they 
have a discriminatory impact on minorities. That exami­
nation is properly conducted under the standards set forth 
in Gingles. Neither proportional representation nor the 
lack of it is the touchstone for this analysis.

Appellants and their amici also err in suggesting that 
a court’s findings on the three factors identified as central 
to Section 2 claims in Gingles should be treated as minor 
technical matters in the ultimate vote dilution inquiry. 
To the contrary, a court’s findings on the three Gingles 
factors—including findings of highly racially polarized 
voting and the inability of minority voters to elect candi­
dates of their choice in districts where they do not com­
prise a majority of the population—are properly entitled 
to great weight in an ultimate finding of vote dilution. 
Those findings are direclty tied to the question of whether 
minority voters have an equal opportunity to elect candi­
dates of their choice to office, the statutory standard for 
a Section 2 claim.

In this case, the district court properly considered the 
presence of the Gingles factors, as well as strong evidence 
of other factors relevant under the totality of circum­
stances test of Section 2, in concluding that Florida’s 
redistricting plan violated Section 2. As the district court 
found, racial and ethnic factors predominate over all 
others in Dade County politics. Indeed, because of racially 
polarized voting patterns, not a single Hispanic legislator 
was elected from South Florida until 1982, when Florida 
replaced its multi-member legislative districts with single­
member districts. The undisputed facts show that even 
the remedial plan adopted in this case would not provide 
Hispanics in Florida with proportional representation.



3

This Court should also reject appellants’ efforts to 
engraft new and unwarranted requirements onto the first 
Gingles factor—-whether minorities are sufficiently nu­
merous and geographically compact to form a majority in 
a single-member district. The district court’s finding that 
additional districts could be drawn containing effective 
Hispanic voting majorities was not clearly erroneous. 
Imposing on Section 2 plaintiffs the heightened evidentiary 
requirement of demonstrating that single-member districts 
containing citizen voting age majorities can be created is 
inconsistent with this Court’s reasoning in Gingles and is 
not required by the language of Section 2.

ARGUMENT

I. FLORIDA DID NOT ESTABLISH A VALID DE­
FENSE OF PROPORTIONAL REPRESENTATION

A. The Vote Dilution Claim in this Case Is Not Based 
on a Principle of Maximizing Minority Voting 
Strength

Under the pretense of challenging a dangerous “prin­
ciple” of “maximizing minority voting strength” suppos­
edly adopted by the court below, Florida seeks this Court’s 
endorsement of a dramatically enlarged per se defense to 
Section 2 claims. See Brief of Appellants at 29-30. The 
district court, however, embraced no “maximization” prin­
ciple. At bottom, Florida’s claim is merely that the 
district court erred by not finding that Hispanics enjoy 
proportional representation under the state’s reapportion­
ment plan. No such finding was compelled by the facts, 
however, as we discuss in Section I.C., infra. The state’s 
arguments to the contrary rest on an unwarranted expan­
sion of the limited defense of proportional representation 
recognized in Thornburg v. Gingles, 478 U.S. 30 (1986).

Before turning to that essentially fact-bound issue, 
however, it is necessary to address the exaggerated claims 
of Florida and its amici concerning the so-called “maxi­
mization principle” they erroneously attribute to the dis­



4

trict court or, at some points, to this Court’s decision in 
Thornburg v. Gingles. The district court, according to 
these claims, determined the existence of a Section 2 
violation by ascertaining whether Florida had created the 
maximum possible number of minority districts and in­
validating the state’s redistricting plan upon finding that 
it had not.1

The district court nowhere referred to or embraced 
any such “maximization” principle; indeed, it carefully 
followed the Thornburg v. Gingles standards which this 
Court recently ruled applicable to redistricting cases.
See Growe v. Emison, 507 U.S. ------ , 113 S,Ct. 1075
(1993); Voinovich v. Quilter, 507 U.S. ----- , 113
S.Ct. 1149 (1993). Florida and its amici simply 
invite this Court to hold that an illicit “maximization” 
principle has been adopted whenever a court rules that 
the failure to create additional minority districts violates 
Section 2. The invitation should be rejected. Courts act 
well within the bounds of their discretion under Section 2 
when they examine redistricting plans to determine if they 
have a discriminatory impact on minorities. See, e.g., 
Jeffers v. Clinton, 730 F. Supp. 196 (E.D. Ark. 1989)
(three-judge court), aff’d mem. ------- U.S. ------ , 111
S.Ct. 662 (1991) (Arkansas legislative redistricting plan 
deprived minority voters of equal opportunity to elect 
candidates of choice); Jordan v. Winter, 604 F. Supp. 
807 (N.D. Miss.) (three-judge court), aff’d mem. sub 
nom. Mississippi Republican Executive Comm. v. Brooks, 
469 U.S. 1002 (1984) (Mississippi congressional redis­
tricting plan unlawfully limited minority voting strength). 
These cases, and others,2 all involved claims that redis­

1 Like the state, amici American Jewish Congress and B’nai 
B’rith repeatedly refer to the “maximization standard” allegedly 
“adopted” by the district court. See, e.g., Brief of American Jewish 
Congress (“AJC”) at 5, 23; Brief of B’nai B’rith at 19.

2 See also, e.g., Major v. Treen, 574 F. Supp. 325 (E.D. La. 1983) 
(three-judge court) (congressional redistricting plan); Ketchum



5

tricting plans violated the Voting Rights Act by unduly 
limiting the number of districts in which minority voters 
would have an opportunity to elect candidates of choice 
to office. Both before and after this Court’s decision in 
Gingles, such claims have been well within the mainstream 
of Section 2 jurisprudence.* 3

Florida and its amici fail to suggest a principled basis 
for determining when a Section 2 challenge to a redis­
tricting plan is based on an impermissible “maximization” 
theory, and when it instead is meritorious. Courts should 
neither apply a maximization principle, nor presume that 
any increase in the number of majority minority districts 
in a plan is an illicit foray into racial “segregation.” 4 
The very purpose of this Court’s decision in Thornburg v. 
Gingles was to set out standards that would be used for 
establishing the dilutive effect of an electoral structure, 
instead of automatic presumptions based on proportional 
representation or the lack of it.

v. Byrne, 740 F.2d 1398 (7th Cir. 1984), cert, denied, 471 U.S. 
1135 (1985) (Chicago city council redistricting plan); Garza v. 
County of Los Angeles, 918 F.2d 763 (9th Cir. 1990), cert, denied, 
-----  U.S. ----- , 111 S.Ct. 681 (1991) (Los Angeles County Com­
mission redistricting plan) ; Rybicki v. State Bd. of Elections, 574 
F. Supp. 1147 (N.D. 111. 1983) (three-judge court) (Illinois legisla­
tive redistricting plan).

3 Cases challenging the dilution of minority voting strength in 
single-member district plans were also regularly litigated prior to 
the amendment of Section 2 in 1982. E.g., Robinson v. Commis­
sioners Court, 505 F.2d 674 (5th Cir. 1974) (failure to create 
majority black county commissioners’ district unlawfully diluted 
minority voting strength).

4 As Justice Stevens noted in Mississippi Republican Executive 
Comm. v. Brooks, the fact that a court orders a districting plan 
that increases minorities’ opportunity to elect a candidate of choice 
does not mean that the district court has embraced a requirement of 
proportional representation, 469 U.S. at 1004 (Stevens, J., con­
curring) .



6

B. Thornburg v. Gingles Provides the Appropriate 
Framework for Analysis of Challenges to Redis­
tricting Plans

Amici AJC and B’nai B’rith attack Gingles itself and 
urge that its standards should be rewritten with respect 
to single-member district plans. This Court, however,
has specifically confirmed that the Gingles framework ap­
plies in Section 2 challenges to redistricting plans. Growe
v. Emison, 507 U.S. ------, 113 S.Ct. 1075; Voinovich
v. Quilter, 507 U.S. ----- , 113 S.Ct. 1149. And the
guidelines set out in Thornburg v. Gingles have not failed 
merely because Florida believes it has a defense of pro­
portional representation to which the district court gave 
insufficient weight.

Amicus AJC states that the court below created addi­
tional Hispanic districts in South Florida “merely because 
all three Gingles criteria could be satisfied in an addi­
tional two districts.” Brief of AJC at 19. This statement 
is not only flatly incorrect—the court made numerous 
specific findings on the other factors Congress identified 
as relevant to a Section 2 violation 5 *—but also totally 
misunderstands the significance of the three Gingles cri­
teria. In amicus AJC’s terminology, the district court 
found a Section 2 violation “merely” because voting is 
racially polarized, with Anglos bloc voting to a high 
degree against candidates preferred by Hispanics; “merely” 
because Hispanic voters have an opportunity to elect 
candidates of their choice only in districts with Hispanic 
majorities; “merely” because ethnic factors predominate 
over all others in Dade County politics; “merely” because 
Florida in addition has a long history of language-based 
discrimination against Hispanics, continuing tO' the present 
day; “merely” because Hispanics continue to be disadvan­
taged by substantial economic disparities between His­
panic and non-Hispanic white citizens in South Florida;

5 See Appendix to Jurisdictional Statement (“J.S. App ”) at
30a-55a.



7

and “merely” because overt racial appeals continue to per­
vade election contests between Hispanic and non-Hispanic 
candidates in the 1990s in South Florida.0

We submit that these are not minor considerations. 
The court’s findings on the three Gingles factors—par­
ticularly its findings of highly racially polarized voting 
and the inability of Hispanic voters to elect candidates of 
their choice in any but Hispanic-majority districts—prop­
erly carry great weight in an ultimate finding of vote 
dilution. As this Court found in Gingles, the presence 
of racial bloc voting and the predictability of the defeat 
of minority-preferred candidates is at the core of a 
dilutive electoral structure. 478 U.S. at 48-51. Where 
such factors are present—and this is particularly true in 
the highly ethnically polarized politics of South Florida— 
the ethnic composition of a district may, for better or 
worse, control the outcome of elections in that district. 
It is precisely for this reason that Florida did not elect 
its first Hispanic representative to the Florida House this 
century until 1982 (see Stipulated Facts, J.A. at 27), its 
first Hispanic state senator until 1988 (see In Re: Con­
stitutionality of Senate Joint Resolution 26, Special Ap­
portionment Session 1992, No. 79,674, slip op. (Fla, 
S.Ct. May 13, 1992) (Shaw, C.J., dissenting), J.S. App. 
at 133a), and its first Hispanic congressional representa­
tive until 1989 (see Affidavit of Dario Moreno, J.A. at 
186-190).

For these reasons, although the Gingles factors are not 
the only factors a court may consider under Section 2, 
they are far more than minor technical elements in the 
final vote dilution determination. Those factors are not 
only the starting point for a Section 2 claim, but are 
central in determining whether an electoral structure un­
lawfully dilutes minority voting strength. The existence 
of racially polarized voting, and the persistent inability of 8

8 See J.S. App. at 49a-51a, 53a, 79a; Affidavit of Dario Moreno, 
Joint Appendix (“J.A.”) at 175-77; Stipulated Facts, J.A. at 17.



8

minority voters to elect candidates except in majority 
minority districts, are directly tied to the question of 
whether minority voters have an equal opportunity to 
elect candidates of their choice to office—the statutory 
standard enacted in Section 2.7 And there is nothing in­
herently alarming in a district court decision that finds 
a Section 2 violation based in part, although not exclu­
sively, upon strong and undisputed evidence that racial 
and ethnic considerations predominate over all others in 
Dade County politics.

Amici AJC and B’nai B’rith, however, suggest that 
enforcement of the Voting Rights Act is responsible for 
racial politics; they contend that creating districts where 
black and Hispanic voters are in the majority “segregates” 
minorities and deprives them of the political influence they 
could otherwise wield. This social theory is advanced as 
the justification for adopting a restrictive interpretation of 
Section 2. In particular, this theory is argued to justify 
reworking this Court’s Section 2 jurisprudence so that a 
favorable finding on the three key Gingles factors would 
barely allow minorities inside the door of the courthouse, 
with the main part of their burden of demonstrating a 
Section 2 violation still before them. Amicus B’nai B’rith

7 Florida and its amici err in suggesting- that proving the three 
Gingles factors is a minor technical matter entitled to little or no 
weight in a court s inquiry into the totality of circumstances. To 
the contrary, proof of the three Gingles factors is a substantial 
undertaking that ordinarily requires expert statistical analysis, fact 
testimony on the workings of the local political processes, and prep­
aration of potential alternative redistricting plans meeting con­
stitutional and statutory requirements. These are by no means 
minor evidentiary hurdles. See, e.g., Overton v. City of Austin 
871 F.2d 529, 537-38 (5th Cir. 1989) (proof failed to establish 
legally significant white bloc voting) ; Sanchez v. Bond, 875 F.2d
1488, 1493-94 (10th Cir. 1989), cert, denied, -----  U.S. ___ , 111
S. Ct. 340 (1990) (proof failed to demonstrate political cohesion 
among minority voters) ; McNeil v. Springfield Park Dist., 851 
F.2d 937, 944-45 (7th Cir. 1988), cert, denied, 490 U.S. 1031 (1989) 
(proof failed to establish ability to draw black majority single­
member district).



9

even asserts that Gingles itself “lessens the prospects of 
long term cross-racial political unity” by recognizing ra­
cially polarized voting as a factor favoring a finding of 
vote dilution. Brief at 13.®

To attribute racial politics in Dade County, or else­
where in the United States for that matter, to the creation 
of black and Hispanic majority districts is the sheerest 
fiction. Enforcement of Section 2 of the Voting Rights 
Act, and the creation of majority minority legislative 
If this were credible, Florida would be able to point to 
a long history of successful legislative races by minorities 
in white majority legislative districts predating the crea­
tion of majority minority districts. In fact, in Florida 
minority legislators have been elected almost exclusively 
from districts with majorities or near-majorities of mi­
nority citizens. See J.S. App. at 131a-133a (Opinion of 
Florida Supreme Court dated May 13, 1992, dissenting 
opinion of Shaw, C.J.). Indeed, not a single Hispanic 
legislator was elected to the Florida House of Representa­
tives from South Florida this century until the state 
eliminated its multi-member legislative districts and in­
stituted a system of single-member districts in 1982. 
Stipulated Facts, J.A. at 27.8 9

The near-total absence of Dade County minority legis­
lators from the statehouse during the first eight decades 
of this century does not reflect an era of racial harmony 
that has been destroyed by enforcement of the Voting

8 See also Brief of AJC at 53, which states that, as construed by 
Thornburg v. Gingles, the Voting Rights Act “is itself a factor in 
encouraging the politics of race.” See also id. at 52: “Under the 
Thornburgh [sic] plurality rule, there is little incentive for minor­
ity candidates to assert positions which appeal to a broad cross 
section of the electorate and to engage in cross-racial coalition 
building, for doing so would undermine a claim for a far safer 
majority-minority district.”

8 Similarly, from 1885 through 1982, only two African-American 
representatives were elected to the legislature from Dade County.
Stipulated Facts, J.A. at 27.



10

Rights Act, but merely the previous submergence of mi­
nority voting strength and political aspirations through 
dilutive countywide and multi-member legislative elec­
tions. Hence, to blame enforcement of the Voting Rights 
Act, and the creation of majority minority legislative 
districts starting in the mid-1980s, for racial politics and 
racially polarized voting is historically insupportable.10

Further, the social theory that minorities are better off 
in “integrated” districts—by which is usually meant dis­
tricts where white voters are in the majority—provides no 
legitimate basis for this Court’s interpretation of the Vot­
ing Rights Act. Congress amended Section 2 to permit 
minority voters to challenge an electoral practice or struc­
ture that denies them an equal opportunity to elect candi­
dates of their choice to office. The alleged desirability of 
a different political goal provides no principled basis for 
ratcheting up the evidentiary hurdles minority voters must 
overcome to establish a violation of Section 2.

10 Compare Frank R. Parker, Black Votes Count: Political Em­
powerment in Mississippi after 1965 198 (1990) (“Historically, 
race has been the central theme of Mississippi politics. Writing 
in 1949, political scientist V.O. Key, Jr. concluded that ‘the begin­
ning and the end of Mississippi politics is the Negro.’ . . . [T]he 
political massive resistance statutes of the 1966 session of the 
Mississippi Legislature, together with existing discriminatory elec­
tion structures . . . erected strong barriers to the effectiveness of 
the new Black vote [after the passage of the Voting Rights Act of 
1965], . . . Overcoming these barriers took years of litigations. . .”) ; 
J. Morgan Kousser, The Undermining of the First Reconstruction: 
Lessons for the Second, in Minority Vote Dilution 27, 31 (Chandler 
Davidson ed., 1989) (“Reconstruction and post-Reconstruction 
Southern Democrats used at least sixteen different techniques to 
hamper black political power. . . . [and] some of them, adopted as 
long as a century ago, are still in effect. . . Although they all had 
the same purpose—the minimization of officeholding by black or 
black-influenced white officeholders—the specific schemes varied 
because of differences in the black percentage of the population and 
its geographic distribution.”)



11

C. The State Did Not Make Out a Valid Defense Based 
on Alleged “Proportional Representation” of Minor­
ities in the Florida House Plan

Thornburg v. Gingles indicates that sustained electoral 
success that has resulted in consistent proportional repre­
sentation of minorities may be asserted as a defense to a 
Section 2 challenge. 478 U.S. at 77. Contrary to Flor­
ida’s contention, however, the facts in this case did not 
require a finding that Hispanics have enjoyed “propor­
tional representation” as a matter of law.

The context in which Florida asserts its defense of pro­
portional representation is critical. Here, the district court 
found that appellees’ proof satisfied all three Gingles fac­
tors, as well as relevant Senate Report factors, and ruled 
that the state’s districting plan diluted Hispanic voting 
strength. Because the court’s findings, including its ulti­
mate finding of vote dilution, are protected by the “clearly 
erroneous” standard of review in Rule 52(a) of the Fed­
eral Rules of Civil Procedure, Thornburg v. Gingles, 478 
U.S. at 79, the state’s arguments concerning proportional 
representation can prevail only if the facts of this case 
required a finding of proportional representation as a mat­
ter of law. No such conclusion is supported by this 
record.

First, Florida’s redistricting plan does not provide pro­
portional representation to minorities in any sense recog­
nized by this Court in Gingles. This Court recognized a 
defense of “sustained electoral success” in one of the 
multi-member districts at issue in Gingles where “the last 
six elections [had] resulted in proportional representation 
for black residents.” 478 U.S. at 77. In that district, 
black residents constituted 36% of the population and 
had elected a black legislator to one of the district’s three 
seats in each election for the previous 10 years. Id. at 74 
n.35. Here, Hispanics constitute 12% of the population 
of Florida, and proportional representation in the 120-



12

member Florida House of Representatives therefore would 
consist of 14 seats. Florida’s plan creates nine majority 
Hispanic House districts. Given these facts, it is unsur­
prising that Florida’s defense of “proportional representa­
tion” was barely mentioned at trial and that the district 
court made no finding that Hispanics were proportionally 
represented in the challenged House plan.

Moreover, it is undisputed that prior to the 1992 elec­
tions Florida never had more than 7 Flispanic legislators 
from south Florida. See Stipulated Facts, J.S. App. at 27. 
No one argues that this constituted proportional repre­
sentation for Hispanics. Indeed, prior to the 1992 redis­
tricting, non-Hispanic whites in Dade County, who consti­
tute less than a third of the county’s population, com­
prised ten out of the twenty members of the Dade delega­
tion to the state House. J.A. at 181 (Affidavit of Dario 
Moreno). Thus, even if the level of Hispanic representa­
tion in the state’s current plan were “proportional,” by no 
means has that level of representation been “sustained.” 
The district court therefore did not err as a matter of law 
in declining to treat “proportional representation” as an 
absolute defense to Hispanics’ Section 2 claim in this 
case.

Moreover, unless the district court was required to 
adopt the most restrictive of all possible interpretations of 
“proportional representation,” Hispanics in Florida do not 
currently enjoy proportional representation under the 
state’s plan. As noted above, with an Hispanic population 
of 12%, Florida now has nine districts out of 120 with a 
majority Hispanic population, or 7.5%. Florida’s “pro­
portional representation” defense therefore depends upon 
narrowing the focus either to Hispanic citizens of voting 
age—excluding any consideration of non-citizens or per­
sons not yet of voting age—or to the Hispanic population 
percentages in the “Dade County area” rather than in the 
state as a whole. Neither of these measures is the only 
appropriate measure of proportional representation, and



13

accordingly the district court did not err by rejecting the 
state’s proportional representation defense.

In determining whether a challenged plan provides pro­
portional representation to minorities, it is appropriate to 
use total minority population as the measure of propor­
tional representation. Total population is consistently 
used in this Court’s one-person, one-vote jurisprudence as 
the measure of equal voting strength under the Fourteenth 
Amendment;11 it is no less appropriate as a measure of 
equal voting strength under the Voting Rights Act. In­
deed, recognizing an absolute defense of “proportional 
representation” based on the percentage of minority vot­
ing age population—putting aside the citizenship issue— 
would tend to create a built-in bias against minority repre­
sentation, because minority groups tend to be younger on 
average than the white population. See, e.g., Ketchum v. 
Byrne, 740 F.2d at 1412.12

Persons ineligible to vote are nevertheless entitled to 
petition their legislators, to seek their assistance, and to 
endeavor to influence legislative policymaking. Capping 
minority representation in a redistricting plan by use of 
citizen voting age population instead of total population 
percentages would infringe those rights by treating those 
ineligible to vote as nonpersons.13 See Garza v. County of

11 See, e.g., Connor v. Finch, 431 U.S. 407 (1977) ; Richardson v. 
Burns, 384 U.S. 73 (1966).

12 In this case, the state’s proportionality defense also fails if 
the statewide proportion of Hispanic residents of voting age 
(11.7%) may be a proper measure; again, only 7.5% of the House 
districts created have a Hispanic majority population. Only if 
citizen voting age population is the only appropriate measure of 
proportional representation can the state sustain its defense.

13 Moreover, Florida itself uses total population as the measure 
for dividing its legislative seats among different regions of the 
state. Thus, recognizing a defense based on alleged proportional 
representation of citizens of voting age would allow the state to 
use inconsistent measures of voting strength for Hispanic and non- 
Hispanic citizens. Such differential treatment is clearly contrary 
to the policies behind the Voting Rights Act.



14

Los Angeles, 918 F.2d 763, 775 (9th Cir. 1990), cert.
denied, ------U.S. ------- , 111 S.Ct. 681 (1991). Florida
has presented nothing to establish that the court was re­
quired to adopt such an approach in assessing the state’s 
proportional representation defense.

Furthermore, the appropriate reference for the state’s 
defense of proportional representation” is the percentage 
of Hispanics in the state as a whole, not their percentage 
in an arbitrarily defined sub-region of the state, A state­
wide framework is the only neutral reference point for 
determining the existence of proportional representation 
in a statewide legislative redistricting plan. Using a 
smaller region as a reference is subject to endless manipu­
lation, given that some area could always be defined in 
which minority voters would appear to enjoy proportional 
representation.14 Indeed, courts applying Section 2 to 
redistricting plans routinely refer to statewide minority 
percentages in describing the degree of representation af­
forded to minorities, regardless of whether the minority 
group is concentrated in a particular area of the state. 
Jeffers v. Clinton, 730 F. Supp. at 198, 200-01 (compar­
ing state’s 16% black total population with 6 of 135 
majority black House and Senate districts, although 
blacks are heavily concentrated in the southeastern por­
tion of the state). Cf. Shaw v. Barr, 808 F. Supp. 461, 
472 (E.D.N.C.), prob. juris, noted sub nom. Shaw v. 
Reno, ------ U.S. ------- , 113 S.Ct. 653-54 (1992) (com­
paring number of black majority districts in state’s con­
gressional plan with statewide black population, not 
merely with black population percentage in area where 
minority districts were drawn).

14 This case illustrates the inherent difficulty of choosing a sub- 
region of the state as the reference point for measuring the propor­
tionality of minority representation. Dade County cannot reason­
ably provide that reference point, because the state’s plan itself 
contains districts that cross the Dade County line.



15

For all these reasons, Florida failed to make out a valid 
defense of proportional representation to the Section 2 
vote dilution claim asserted by the United States and the 
De Grandy plaintiffs.

II. GINGLES FACTOR 1 IS SATISFIED BY PROOF 
THAT THE MINORITY GROUP COULD COMPRISE 
A MAJORITY OF THE VOTING AGE POPULATION 
IN ONE OR MORE ADDITIONAL SINGLE- 
MEMBER DISTRICTS, AND THE COURT SHOULD 
NOT ENGRAFT NEW REQUIREMENTS ONTO 
THE GINGLES TEST

The district court found that the proof offered by the 
United States and the minority plaintiffs established the 
presence of each of the three factors deemed central to a 
vote dilution claim in Thornburg v. Gingles. Florida’s ap­
peal, however, attacks the district court’s findings as to 
Gingles factor 1-—that is, the court’s conclusion that the 
Hispanic population is “sufficiently large and geograph­
ically compact to constitute a majority in a single-member 
district.” 478 U.S. at 50.

Even though Hispanics of voting age would constitute 
a minimum of 60% of the population in all 11 of appel- 
less’ proposed alternative districts, and the district court 
made detailed findings that the Hispanic population level 
in the proposed districts was sufficient to elect candidates 
preferred by Hispanics to office, Florida argues that 
Gingles factor 1 was not satisfied because some of the 
proposed alternative districts may not have majorities of 
Hispanic voting age citizens. On that ground alone, the 
state argues, the minority plaintiffs’ vote dilution claim 
should have been rejected.

This argument invites the Court to engraft unwarranted 
evidentiary requirements onto the Gingles factor 1 analy­
sis—requirements that are inconsistent with the purpose 
of the Gingles test and of amended Section 2. This Court 
should reject the state’s contention.



16

The Gingles factor 1 test is unique among the three so- 
called Gingles factors; it is the only factor that has no 
source either in the text of the statute or among the rele­
vant factors listed in the authoritative statement of Sec­
tion 2’s legislative intent, the Senate Report accompanying 
the 1982 amendment of the Voting Rights Act (“Senate 
Report”). See S. Rep. No. 417, 97th Cong., 2d Sess. 28- 
29 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 206- 
07.13 As a judicially developed test, Gingles factor 1 is 
designed to help structure the analysis of Section 2 claims, 
by ascertaining whether the minority group would have 
the potential to elect candidates of choice to office if the 
challenged electoral structure were altered. 478 U.S. at 
50 n.17.15 16 The restrictive interpretation of this factor 
urged by the state, however, would improperly transform 
the Gingles factor 1 analysis into a formidable obstacle to 
the full consideration of vote dilution claims. Such a 
restrictive interpretation is not justified by the Court’s rea­
soning in Gingles. Moreover, given the lack of support 
for Gingles factor 1 in the text of Section 2 of the Senate 
Report, such a restrictive interpretation of Gingles factor

15 Gingles factors 2 and 3, which ask whether the minority group 
is politically cohesive (based primarily on evidence of minority 
electoral support for particular candidates, 478 U.S. at 51) and 
whether white bloc voting generally defeats the candidates preferred 
by minority voters, id., are drawn from Senate Report factors 2 
(“the extent to which voting in the elections of the State or political 
subdivision is racially polarized”), and 7 (“the extent to which 
members of the minority group have been elected to public office 
in the jurisdiction”). S. Rep. No. 417 at 28-29, 1982 U.S.C.C.A.N. 
at 206-07. See also Section 2 of the Voting Rights Act, 42 U.S.C. 
§ 1973, as amended (“The extent to which members of a protected 
class have been elected to office in the State or political subdivision 
is one circumstance which may be considered”).

16 See Bernard Grofman & Lisa Handley, Identifying and Reme­
dying Racial Gerrymandering, 8 J. of L. & Pol. 345, 376 (1992) 
(“ [W]e may take a fifty percent voting age share district as pre­
sumptive evidence (albeit not the only possible evidence) of such 
a potential”),



17

1 would undermine its legitimacy as a judge-made tool of 
analysis for Section 2 claims.

A. Gingles Factor 1 Does Not Require Proof of Citizen 
Voting Age Majorities

The state argues that because the word “citizens” ap­
pears in Section 2 of the Voting Rights Act,17 Gingles 
factor 1 requires proof that the proposed alternative dis­
tricts will have a majority of Hispanic voting age citizens. 
The fallacy of this argument is its assumption that 
Gingles factor 1 is a test set forth in Section 2 whose 
interpretation must therefore be controlled by the statu­
tory language of Section 2.

That assumption is erroneous, because Section 2 no­
where states that minority citizens must prove that they 
would constitute any specific quantum of the population 
in a proposed single-member district as a precondition to 
establishing a violation of the section. Gingles factor 1 
is a judge-made test, not a statutory requirement for a 
Section 2 claim. The manner in which the Gingles factor 
1 test can be satisfied, therefore, depends upon the pur­
pose for which the Gingles 1 test was created, not upon 
the use of the word “citizens” in the statute.18 Thus, even 
if the word “citizens” in Section 2 is read as excluding 
lawsuits by noncitizens, that limitation is in no way con­

17 “A violation . . .  is established if, based on the totality of 
circumstances it is shown that the political processes leading to 
nomination or election in the State or political subdivision are not 
equally open to participation by members of a class of citizens 
protected by [the Act].” 42 U.S.C. § 1973, as amended.

18 Indeed, if the term “citizens” controlled the proper interpre­
tation of Gingles factor 1, the state’s argument would still fail. 
Section 2 uses the term “citizens,” not “voting age citizens.” Ac­
cordingly, if the statutory language is controlling of the proper 
interpretation of Gingles factor 1, plaintiffs need only prove that 
they would constitute a majority of the Hispanic citizens in the 
alternative single-member districts, not a majority of the voting 
age Hispanic citizens.



18

trolling of the question whether the alternative districts 
proposed by the appellees below were adequate to satisfy 
the Gingles factor 1 test.

B. Appellees’ Proof Satisfies the Requirements of the 
First Gingles Factor

Appellees’ proof unquestionably satisfied the literal 
terms of the Gingles test, which asks whether minorities 
could comprise “a majority in a single-member district.” 
478 U.S. at 50. Not only would Hispanics be in the 
“majority” in each of appellees’ eleven proposed districts, 
but they would in fact constitute supermajorities of at 
least 64% in each district. This is true regardless of 
whether a simple majority of the population is adequate to 
satisfy Gingles factor 1, as the language of Gingles itself 
indicates, or whether voting age population is considered, 
as some cases interpreting Gingles have required. See 
McNeil v, Springfield Park Dist., 851 F.2d at 944-45.

Moreover, in Gingles this Court explained that the 
purpose of Gingles factor 1 is to determine whether 
“minority voters possess the potential to elect representa­
tives in the absence of the challenged structure or prac­
tice.” 478 U.S. at 50 n.17 (emphasis in original). In 
this case, the district court specifically found that “eleven 
geographically compact [House] districts can be drawn 
in which Hispanics in Dade County would have the po­
tential to elect candidates of their choice.” J.S. App. at 
68a. This factual finding is supported by expert testi­
mony and by evidence of the past success of Hispanic- 
preferred candidates in districts with Hispanic population 
percentages similar to those in appellees’ proposed dis­
tricts. J.S. App. at 31a-32a, 39a-4Qa & n.28. This is 
enough to establish that appellees would have an en­
hanced opportunity to elect candidates of their choice to 
office under an alternative election system.19

19 See Grofman & Handley, supra note 16, at 357 (“there must 
be an alternative to the challenged practice judged against whose 
baseline fairer representation would have been possible”).



19

Indeed, this Court need look no further than the popu­
lation percentages in the state’s majority-Hispanic districts 
to reject the state’s attack on the court’s factual finding 
In the state’s plan, the nine majority Hispanic House 
districts in South Florida have Hispanic voting age popu­
lation majorities ranging from 63.85% in District 107 
to 83.64% in District 110. Defendants’ Joint Exhibit 2, 
J.S. App. 206a-2Q8a. The state argued throughout the 
litigation that these population percentages were sufficient 
to allow Hispanics to elect candidates of choice to office 
in all nine of these districts, including District 107; in­
deed, in this Court the state contends that Hispanic elec­
toral success in these nine districts is so predictable as 
to provide Hispanics with proportional representation in 
the Florida House. Not one of the eleven districts pro­
posed by appellees, however, has an Hispanic population 
percentage as low as that in District 107 of the state’s 
plan. Instead, the eleven proposed districts range from 
64.5% to 78.2% in Hispanic voting age population. Id. 
In other words, none of appellees’ proposed districts— 
which allegedly were inadequate to satisfy Gingles factor 
1—had an Hispanic majority as small as that in the 
state’s District 107, a district which the state contends 
will guarantee the election of an Hispanic-preferred can­
didates for the remainder of the decade.20 The state’s 
argument that appellees’ alternative districts failed to 
satisfy Gingles factor 1 is thus meritless for this reason 
alone.

Although the state produced statistical estimates indi­
cating that Hispanic citizen voting age percentages might 
fall below 50% in some districts in an 11-district plan, 
that same analysis also estimated that three of the state’s 
nine Hispanic majority districts fall below 50% in His­
panic citizen voting age population. J.S. App. at 206a- 
208 a. Again, of all the South Florida House districts in

20 Hispanic candidates were elected in each of the nine Hispanic 
majority districts in the state’s plan.



20

all the plans analyzed by the state, the district with the 
lowest estimated Hispanic citizen voting age percentage 
was District 107 in the state’s plan, with an Hispanic 
citizen voting age population of 46.74%. Id. at 206a. 
Moreover, all three majority Hispanic Senate districts in 
the state’s Senate plan are also estimated to have less 
than 50% Hispanic citizen voting age populations. J.A. 
at 454 (state’s Hispanic Senate districts range from 
42.8% to 49.1% in Hispanic citizen voting age popula­
tion). Thus, if the state’s analysis establishes anything, it 
establishes that the level of Hispanic citizen voting age 
population estimated by the state’s expert is not deter­
minative of the question posed by Gingles factor 1— 
whether minorities would have “the potential to elect rep­
resentatives” in the proposed alternative districts. 478 
U.S. at 50 n.17 (emphasis in original).21

Furthermore, a focus on citizenship cannot be justified 
on the theory that the Gingles factor 1 majority must con­
sist of eligible voters. Many persons of voting age are 
ineligible to vote for reasons other than citizenship: some 
voting age persons may not be year-round residents (a 
particularly pertinent category in Florida); some may be 
incarcerated for disqualifying felonies; some may be mem­
bers of the armed forces or college students who main­
tain voting residence elsewhere; some may be homeless 
and therefore ineligible to vote in some states. If voting- 
age persons who are ineligible to vote must be excluded 
from the Gingles factor 1 equation, there is no principled

21 Indeed, while the Florida House argues in this Court that no 
district with less than a 50% Hispanic citizen voting age popu­
lation is capable of electing an Hispanic candidate of choice to 
office, the Florida Senate argues in this Court that a district with 
an African-American voting age population of 35.5%—and an un­
known citizen voting age population—provides African-Americans 
with the opportunity to elect a candidate of choice to office. See, 
De Grandy v. Wetherell, No. TCA-92-40015-WS, slip op. (N.D. 
Fla. July 17, 1992) (three-judge court), J.S. App. at 65a; Florida 
Senate’s Motion to Dismiss or Affirm at 25, De Grandy v. Wetherell 
and United States v. Florida, Nos, 92-593 and 92-767.



21

basis to exclude only those who are ineligible by virtue of 
noncitizenship, while not excluding persons who are in­
eligible to vote in the district for other reasons. Indeed, 
excluding noncitizens from the calculation would ordi­
narily tend to decrease the apparent Hispanic percentage 
of a district in South Florida, but excluding army per­
sonnel or part-year residents might well tend to increase 
the Hispanic population percentage. Accordingly, no 
balanced approach to Gingles factor 1 could warrant 
singling out citizenship to the exclusion of other eligibility 
criteria.

Thus, if the state’s interpretation of Gingles factor 1 
were correct, proof of that factor would presumably de­
pend upon first establishing the total number of persons 
in the proposed district who are voting-age, U.S. citizens 
not disqualified from voting by felony convictions and 
who have year-round residences in the district and are 
not members of the armed forces or college students with 
voting residences elsewhere; and then determining the per­
centage of those persons who are Hispanic. Such an exer­
cise is totally inconsistent with the threshold nature of the 
Gingles factor 1 test, and would transform that test from 
a useful tool of analysis into a mini-trial of demographic 
arcana. Florida’s proposed gloss on the Gingles standard 
would thereby provide a potent weapon for defendant 
jurisdictions, forcing unwarranted expenditures by minor­
ity plaintiffs in order to survive even the first elementary 
step of the Section 2 analysis.

In Allen v. State Bd. of Elections, 393 U.S. 544, 567 
(1969), this Court held that the Voting Rights Act 
should be construed in a manner that provides “the broad­
est possible scope” for eliminating racial discrimination. 
Florida’s restrictive interpretation of the Gingles standard 
directly conflicts with this directive and should be rejected.



22

CONCLUSION
For these reasons, the judgment below should be 

affirmed.
Respectfully submitted,

H erbert M. Wachtell, Co-Chair 
W illiam  H. Brown, III, Co-Chair 
Barbara R. Ar nw ine  
T homas J. H enderson 
F rank R. P arker 
Brenda W right 

(Counsel of Record)
J acqueline A. Berrien 

Lawyers’ Committee for 
Civil R ights U nder Law 

1400 Eye Street, N.W., Suite 400 
Washington, D.C. 20005 
(202) 371-1212 

Counsel for Amicus Curiae