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

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

In The

Supreme Court of the United States
October Term, 1994

Zell M iller, et al.
Appellants,

Davida Johnson, et al.
Appellees.

Lucious Abrams, Jr ., et al .
Appellants,

V.

Davida Johnson, et al.
___________  Appellees.

United States
Appellant,

V.

Davida Johnson, et al .
Appellees.

On Appeal from the United States District 
Court for the Southern District of Georgia

M OTION FOR LEAVE TO FILE A BRIEF AMICUS 
CURIAE AND BRIEF OF AMICUS CURIAE 

GEORGIA ASSOCIATION OF BLACK ELECTED 
OFFICIALS IN SUPPORT OF APPELLANTS

Pamela S. Karlan 
Counsel o f Record 
580 Massie Road 

Charlottesville, VA 22903 
(617) 924-7810/7534 (Fax)

Eben Moglen 
Columbia Law School 
435 West 116th Street 
New York, NY 10027 
(212) 854-8382/7946 (Fax)

Attorneys for Amicus Curiae



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

IN The

Supreme Court of the United States
October Term, 1994

Zell Miller, et al.
V .

Appellants,

Davida Johnson, et al.
Appellees.

Lucious Abrams, Jr. et al.
V.

Appellants,

Davida Johnson, et al.
Appellees.

United States

V.
Appellant,

Davida Johnson, et al.
Appellees.

On Appeal from the United States District 
Court for the Southern District of Georgia

MOTION FOR LEAVE TO FILE A BRIEF AMICUS 
CURIAE BY THE

GEORGIA ASSOCIATION OF BLACK ELECTED 
OFFICIALS IN SUPPORT OF APPELLANTS

The Georgia Association of Black Elected Officials 
("GABEO") hereby moves for leave to file a brief amicus 
curiae in the above-captioned cases.

GABEO is an organization of African Americans elected 
to public office in Georgia at the congressional, state, and 
local levels. GABEO is approximately 25 years old and has



2

more than 700 members. Its basic purposes are to promote 
excellence in public officials and inclusiveness in 
government. Throughout its history GABEO has supported 
the adoption of non-dilutive methods of election that ensure 
the full participation of all persons in the political and 
electoral processes.

GABEO has obtained the consent of counsel for the 
appellants in all three cases. Letters reflecting that consent 
have been filed with the Clerk of the Court. Counsel for 
appellees have refused to give their consent; however, they 
have informed counsel for GABEO that they will not oppose 
GABEO’s motion for leave to file its brief.

GABEO’s members and the constituents they 
represent may be directly affected by the decision of the 
Court in these cases. Its brief presents several important 
issues that have not been fully addressed by the parties. 
First, GABEO’s brief explains why the broad reading of this 
Court’s decision in Shaw v. Reno, 113 S.Ct. 2618 (1993), 
offered by the court below runs afoul of the equal protection 
component of the Due Process Clause of the Fifth 
Amendment — an argument not addressed, to our knowledge, 
by any of the parties. Second, GABEO’s brief approaches 
both the question of appellees’ standing and the differences 
between race consciousness in the districting process and race 
consciousness in other governmental decisionmaking from a 
different perspective than that taken by the parties.

WHEREFORE, GABEO moves that the Court permit 
the filing of its brief.

Respectfully submitted,

Pamela S. Karlan 
Counsel for Amicus Curiae 
Georgia Association of Black 
Elected Officials

Dated: February 21, 1995



1

T a b l e  o f  C o n t e n t s

Page

Table of Contents ..................................................... i

Table of Authorities ..................................................  ii

Interest of Amicus C u r ia e .......................................  1

Summary of Argument . . . . . . . . . . . . . . .  2

Argument

I. Shaw v. Reno Identified a Narrow Class of 
Exceptional Cases in Which Federal Judicial 
Intervention into the Political Processes
of Redistricting Is Justified ........................... 5

II. The Differences Between Apportionment and 
Other Governmental Decisions Show Why 
Race Can Legitimately Be Taken Into
Account in Drawing District Lines . . . . . .  12

III. Shaw v. Reno Must Be Read Narrowly 
to Avoid Denying African Americans 
the Equal Protection of the Laws
Guaranteed by the Fifth Amendment . . . .  18

Conclusion ..........................................................  21



T a b l e  o f  A u t h o r it ie s

Pages
Cases

Allen v. Wright, 468 U.S. 737 (1984) ............... 3, 10

Baker v. Carr, 369 U.S. 186 (1962) .................. 6, 14

Busbee v. Smith, 549 F. Supp. 494 (D.D.C.
1982), a jf’d, 459 U.S. 1166 ( 1 9 8 3 ) .................. 6

City o f  Richmond v. J.A, Croson Co., 488 U.S.
469 (1989)    14

Davis v. Bandemer, 478 U.S. 109 (1986) . . . .  2 passim

Dickinson v. Indiana State Election B d.,
817 F. Supp. 737 (S.D. Ind. 1992) ............... 17

Edmonson v. Leesville Concrete Co., 500 U.S.
616 (1991)    21

Gaffney v. Cummings, 412 U.S. 735 (1973) . . 9, 13

Growe v. Emison, 113 S.Ct. 1075 (1993) . . . .  5

Hays v. Louisiana, 862 F. Supp. 119 (W.D.
La. 1994) (3-judge court), probable juris.
noted, Nos. 94-558 and 94-627   21

Hunter v. Erickson, 393 U.S. 385 (1969) 4, 18-19, 21

Johnson v. DeGrandy, 114 S.Ct. 2647 (1994) . 2, 5

11



Ill

Johnson v. Miller, 864 F. Supp. 1354 (S.D.
Ga. 1994) (3-judge court) ................................ ..  7

Ex parte Levitt, 302 U.S. 633 (1937) . . . . . . .  10

Lujan v. Defenders o f  Wildlife, 112 S. Ct.
2130 (1992)................................................. ..  3, 9

LULAC v. Clements, 999 F.2d 831 (5th Cir) (en 
banc), cert, denied, 114 S Ct 878 (1994) . . .  17

Metro Broadcasting, Inc. v. FCC, 497 U.S.
547 (1990)      13

Pope v. Blue, 809 F. Supp. 392 (W .D.N.C.)
3-judge court), aff’d, 113 S.Ct. 30 (1992) . . .  18

Regents o f  the Univ. o f  Cal. v. Bakke, 438 U.S.
265 (1978)   14

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

Shaw v. Hunt, 861 F. Supp. 408 (E.D.N.C.
1994) (3-judge court) . ....................   18

Shaw v. Reno, 113 S.Ct. 2816 (1993) . . . . . .  2 passim

Thornburg v. Gingles, 478 U.S. 30 (1986) . . .  5, 8

United States v. Richardson, 418 U.S.
166 (1974) .................................................  3, 10-11

Voinovich v. Quilter, 113 S.Ct. 1149 (1993) . . 5

Whitcomb v. Chavis, 403 U.S. 124 (1971) . . .  2, 15



Wygant v. Jackson Board ofEduc., 476 U.S.
267 (1986) . . . . . . . -------. . . . . . . . . .  14, 15

Constitutional and Statutory Provisions

U.S. Const., amend. V .......................  4, 20-21

U.S. Const., amend. XIV ...................................  20

Civil Rights Act of 1964 (codified as amended 
in scattered sections of 42 U.S.C. (1988)) . . .  16

Civil Rights Act of 1991 (to be codified in 
scattered sections of 42 U.S.C.) ..................... 16

Equal Employment Opportunity Act of 1972,
(codified in 42 U.S.C. § 2000e (1988) . . . .  16

Fair Housing Act of 1968 (codified as amended at 
42 U.S.C. § 3601 et seq. (1988)) . ...............  16

Fair Housing Amendments Act of 1988 (to be 
codified at 42 U.S.C. § 3601 et seq.) ............ 16

Voting Rights Act of 1965, (codified as amended 
at 42 U.S.C. § 1973 et seq. (1988)) . . . . . .  16

Voting Rights Act Amendments of 1982 (codified 
at 42 U.S.C. § 1973 et seq. (1988)) ............... 16

iv



V

Other Materials

T. Alexander Aleinikoff & Samuel Issacharoff,
Race and Redistricting: Drawing 
Constitutional Lines After Shaw v.
Reno, 92 Mich. L. Rev. 588 (1993) . . . . . .  13

Pamela S. Karlan, The Rights To Vote: Some 
Realism About Formalism, 71 Tex. L. Rev.
1705 (1993) .......................................................... ..  13

Pamela S. Karlan, Undoing the Right Thing:
Single Member Offices and the Voting Rights
Act, 77 Va. L. Rev. 1 (1991) ........................... 15

Richard H. Pildes & Richard G. Niemi,
Expressive Harms, "Bizarre Districts," 
and Voting Rights: Evaluating Election-District 
Appearances After Shaw v. Reno, 92 Mich.
L. Rev. 483 (1993) ............................. ..  20

Antonin Scalia, The Doctrine o f  Standing as 
an Essential Element o f  the Separation o f  
Powers, 17 Suffolk U.L. Rev. 881 (1983) . . 10

S. Rep. No. 92-415, p. 10 (1971)) . . . . . . . .  16



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

In The

Supreme Court of the United States
October Term, 1994

Zell Miller, et al.
Appellants,

V.

Davida Johnson, et al.
___________ Appellees.

Lucious Abrams, Jr. et al.
Appellants,

V.

Davida Johnson, et al.
Appellees.

United States
Appellant,

V.

Davida Johnson, et al.
Appellees.

On Appeal from the United States District 
Court for the Southern District of Georgia

BRIEF OF AMICUS CURIAE GEORGIA 
ASSOCIATION OF BLACK ELECTED OFFICIALS 

IN SUPPORT OF APPELLANTS

I n t e r e s t  o f  A m ic u s  C u r ia e

The Georgia Association of Black Elected Officials 
("GABEO") is an organization of African Americans elected 
to public office in Georgia at the congressional, state, and 
local levels. GABEO is approximately 25 years old and has



2

more than 700 members. Its basic purposes are to promote 
excellence in public officials and inclusiveness in 
government. Throughout its history GABEO has supported 
the adoption of non-dilutive methods of election that ensure 
the full participation of all persons in the political and 
electoral processes.

S u m m a r y  o f  A r g u m e n t

This Court has long accepted the proposition that 
redistricting inevitably takes into account the competing 
claims of political, ethnic, racial, and socioeconomic groups. 
See, e.g., Johnson v. DeGrandy, 114 S.Ct. 2647 (1994); 
Shaw v. Reno, 113 S.Ct. 2816 (1993); Davis v. Bandemer, 
478 U.S. 109 (1986); Whitcomb v. Chavis, 403 U.S. 124 
(1971). What distinguished the post-1990 round of 
reapportionment from its predecessors was not the sudden 
emergence of race consciousness but rather the unprecedented 
integration of Southern congressional delegations. This 
integration was achieved wholly by the state and federal 
political branches, without the need for direct judicial 
intervention.

Nothing in this Court’s decision in Shaw was intended 
to reverse this development or to give the lower courts a 
warrant to upset the results of the political process of 
redistricting, especially when that process has neither denied 
nor diluted any individual’s right to vote. Shaw should be 
read narrowly -- to permit lawsuits challenging the creation 
of majority-nonwhite districts only when the shape of such 
districts represents a clear deviation from the kind of districts 
the state has drawn for other politically cohesive groups and 
threatens either to exacerbate racial bloc voting or to deny 
members of the racial minority within a district fair



3

representation. The Court should also take this opportunity 
to make clear that Shaw did not suspend the normal rules for 
standing: a plaintiff who alleges nothing more than a 
generally available claim that the government has not 
complied with the Constitution cannot bring suit. See Lujan 
v. Defenders o f  Wildlife, 112 S. Ct. 2130 (1992); Allen v. 
Wright, 468 U.S. 737 (1984); United States v. Richardson, 
418 U.S. 166 (1974).

Shaw did not hold that all race-conscious districting was 
either impermissible or subject to heightened scrutiny. The 
Court should take this opportunity to reiterate that 
proposition. Districting differs from other governmental 
activity in four critical respects that explain why race- 
consciousness here cannot be subjected to the same type of 
strict scrutiny accorded other race-conscious action.

First, the very purpose of apportionment is to treat 
voters as members of groups; thus the usual alternative to 
group-based treatment — individualized decisionmaking — is 
unavailable.

Second, unlike most other contexts, there are no 
objective, neutral, or merit-based criteria that provide 
judicially discoverable and manageable standards for selecting 
particular district lines.

Third, given decennial reapportionment and the 
inherently partisan and subjective nature of the process, an 
individual voter has no settled, legally cognizable expectation 
of being placed in any particular district.

Fourth, as Shaw’s statement about the inevitable 
awareness of race in American politics implicitly recognizes, 
racial affiliation often describes politically cohesive 
communities of interest. In contemporary America, it may



4

be impossible fairly to represent ostensibly "political" 
interests if  ethnicity is ignored* Race often serves as a 
shorthand or organizing principle for political communities. 
Given the intertwining of race and politics, a rule that treats 
all race-conscious districting with suspicion would raise 
serious questions of administrability: it would demand that 
federal courts artificially distinguish between race-based and 
political motivations.

Moreover, such a radical expansion of Shaw would raise 
a serious constitutional question. Decisions like the one 
below and in parallel cases from Texas and Louisiana make 
it more difficult for black voters to secure advantageous 
districts than for other voters to do so. Requiring regularity 
of boundaries for majority-nonwhite districts but not for 
majority-white districts constrains the options available to 
racial minorities in ways that other groups’ options are not 
constrained. This approach turns the Fourteenth Amendment 
on its head, making the Amendment’s original intended 
beneficiaries — black Americans — the only group whose 
political aspirations are stringently limited by considerations 
of compactness and regularity of district boundaries. As 
such, it would run afoul of this Court’s decision in Hunter v. 
Erickson, 393 U.S. 385 (1969), and the equal protection 
component of the Due Process Clause of the Fifth 
Amendment.



5

A r g u m e n t

I. Shaw v. Reno Identified a Narrow Class of 
Exceptional Cases in Which Federal Judicial 
Intervention into the Political Processes of 
Redistricting Is Justified

This Court’s decision in Shaw v. Reno, 113 S.Ct. 2816 
(1993), should be understood in the context of the other 
voting rights cases of the 1992 Term. That same Term, this 
Court unanimously declined to strike down two other state 
apportionments, despite the fact that both processes were 
explicitly race-conscious and despite the fact that, in Ohio, 
the legislature explicitly and intentionally drew district 
boundaries to create majority-black constituencies. See 
Growe v. Emison, 113 S.Ct. 1075 (1993); Voinovich v. 
Quilter, 113 S.Ct. 1149 (1993). Moreover, Shaw was 
decided against the backdrop of this Court’s repeated 
holdings that "the power to influence the political process is 
not limited to winning elections," Davis v. Bandemer, 478 
U.S. 109, 132 (1986); see also Thornburg v. Gingles, 478 
U.S. 30, 99 (1986) (O’Connor, J., concurring in the 
judgment); Whitcomb v. Chavis, 403 U.S. 124, 153 (1971). 
And subsequent to Shaw, this Court once again recognized 
that "society’s racial and ethnic cleavages sometimes 
necessitate majority-minority districts." Johnson v. 
DeGrandy, 114 S.Ct. 2647, 2661 (1994).

The 1990 round of reapportionment reflected the 
increased ability of minority voters to "pull, haul, and trade," 
Johnson, 114 S.Ct. at 2661, in the intensely partisan world 
of redistricting. Some of the bargaining and horsetrading 
was purely internal to state legislatures, where representatives 
of the black community now sit in unprecedented numbers. 
Sometimes the minority community gained additional



6

leverage from the national political consensus that extended 
and amended the Voting Rights Act of 1965 and required 
federal preclearance for states like Georgia with a history of 
excluding black voters from the redistricting process. See 
Busbee v. Smith, 549 F. Supp. 494 (D.D.C. 1982) 
(recounting the overt racism in Georgia’s post-1980 
congressional reapportionment), aff’d, 459 U.S. 1166 (1983). 
The results of the 1990 reapportionment are more than 
impressive: for the first time since Reconstruction, the 
legislative delegations of Southern states are racially 
integrated. More significantly, this long-desired, and long- 
resisted, integration was accomplished by the state and 
federal political branches, without the need for judicial 
intervention. The 1982 amendments and extension of the 
Voting Rights Act of 1965, and the post-1990 state legislative 
and federal executive responses, reflected "an aroused 
popular conscience that sear[ed] the conscience of the 
people’s representatives" Baker v. Carr, 369 U.S. 186, 270 
(1962) (Frankfurter, J., dissenting), to make full integration 
of the American political process a reality.

This Court’s decision in Shaw was not intended to 
reverse, and should not have the effect of reversing, this 
salutary development. In Shaw, this Court clearly refused to 
hold that this race-consciousness rendered all districting 
subject to heightened judicial scrutiny. See Shaw, 113 S.Ct. 
at 2824. Rather, it identified three circumstances under 
which heightened scrutiny of race-conscious districting is 
warranted.

First, and most importantly, Shaw limited judicial 
intervention to cases where the challenged district is 
"dramatically irregular," id. at 2820, "unusually shaped," 
id ., "extremely irregular on its face," id. at 2824, created 
"without regard for traditional districting principles," id., 
"bizarre," id. at 2825, "irrational," id. at 2829, and designed



7

to "separate voters into different districts on the basis of 
race," id. at 2828. These repeated references were not 
surplus verbiage. Rather, they were intended to convey the 
message that black voters were entitled to the same benefits 
and opportunities in the political process that all other 
"political, religious, ethnic, racial, occupational, and 
socioeconomic groups," Davis v. Bandemer, 478 U.S. at 146 
(O’Connor, J., concurring in the judgment), have 
traditionally enjoyed. If farmers, for example, or Irish- 
Americans, or Republicans, or the partisans of a particular 
aspirant for office have been able to create districts for 
themselves, then black voters should not be denied the same 
openings. Thus, Shaw required that challenged majority- 
black districts be viewed in context: are they decidedly more 
irregular than districts that have been drawn for other 
identifiable voting blocs, both in the past and 
contemporaneously? As Judge Edmondson’s dissent below 
points out, the Georgia Eleventh Congressional District does 
not run afoul of this standard: its size is "not particularly 
noteworthy"; the length of its borders is "not distinctive"; its 
respect for political boundaries "places the Eleventh at the 
average for the State’s ten other congressional districts"; and 
its use of "land bridges" is reminiscent of previously drawn 
majority-white districts within the state. Johnson v. Miller, 
864 F. Supp. 1354, 1396 (S.D. Ga. 1994). Using one 
commonly employed measure of compactness, the district is 
more regular than forty-six other congressional districts. Id. 
at 1397. Under these circumstances, the Georgia Eleventh 
Congressional District does not fall within the narrow class 
of districts subject to heightened scrutiny.

Second, Shaw justified intervention when there was a 
concrete danger that a district’s shape would communicate to 
elected representatives that "their primary obligation is to 
represent only the members of [the majority racial] group, 
rather than their constituency as a whole." Shaw, 113 S.Ct.



8

at 2827. This danger must be proved, rather than simply 
asserted or presumed:

"the power to influence the political process is not 
limited to winning elections. An individual or a 
group of individuals who votes for a losing 
candidate is usually deemed to be adequately 
represented by the winning candidate and 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. This is true 
even in a safe district where the losing group loses 
election after election."

Davis v. Bandemer, 478 U.S. at 132 (opinion of White, J.); 
see also Thornburg v. Gingles, 478 U.S. at 99 (O’Connor, 
J., concurring in the judgment); Whitcomb v. Chavis, 403 
U.S. 124 (1971). In a case where the plaintiffs do not allege 
either that they have been denied the right to vote or that 
their votes have been diluted on account of race, they should 
be held to the standard for proving that they have not been 
adequately represented that was delineated by the Davis 
plurality. No proof was offered in this case to suggest that 
Representative McKinney has not represented all her 
constituents fairly or that the political interests of the 
plaintiffs in this case have been "entirely ignorefd]."

Third, Shaw suggested intervention might be appropriate 
if  districting practices were shown to be "balkaniz[ing]," id. 
at 2832, that is, if the districting process "segregate^]" 
voters on the basis of race, id. at 2824, and thereby threatens 
to "exacerbate ... patterns of racial bloc voting," id. at 
2827. Again, however, this Court’s decisions make clear 
that polarization cannot simply be assumed; it must be



9

proved. Cf. Gingles, 478 U.S. at 46. Nothing in the record 
in this case provides any basis for concluding that the 
contours of the Georgia Eleventh Congressional District have 
increased the level of racial bloc voting within its territory or 
have exacerbated racial polarization.

Nothing in Shaw suggests this Court intended to give 
disappointed aspirants for office, citizens across the state, or 
individuals who simply disagree with the outcome of the 
political process of districting a roving warrant to spend the 
remainder of the decade challenging the decennial 
reapportionment. Clearly, this Court did not intend to leave 
states "trapped between the competing hazards of liability to 
minorities if affirmative action is not taken to remedy 
apparent ... discrimination and liability to nonminorities if 
affirmative action is taken." Wygant v. Jackson Board o f  
Educ., 476 U.S. 267, 291 (1986) (O’Connor, J., concurring 
in part and concurring in the judgment). The Court was well 
aware that the Voting Rights Act’s various prohibitions on 
racial vote dilution require states to take race into account in 
the districting process; it was also realistic enough to 
recognize that legislators would take race into account in any 
event. See Shaw, 113 S.Ct. at 2826. Nor did this Court 
intend to smuggle in, through the back door, stringent 
constraints on the partisan aspects of redistricting which this 
Court had realistically accepted in Gaffney v. Cummings, 412 
U.S. 735 (1973), and Davis v. Bandemer.

Moreover, a broad reading of Shaw would seriously 
subvert this Court’s standing doctrine. This Court has 
repeatedly held that standing is not conferred by "a generally 
available grievance about government — claiming only harm 
to [the plaintiffs’] and every citizen’s interest in proper 
application of the Constitution and laws, and seeking relief 
that no more directly and tangibly benefits [them] than it 
does the public at large." Lujan v. Defenders o f  Wildlife, 112



10

S. Ct. 2130, 2143 (1992).1 As Allen v. Wright, 468 U.S. 
737, 754 (1984), explained, standing requires more than a 
"shared individuated right to a Government that obeys the 
Constitution."

Read broadly, Shaw would essentially overrule this 
Court’s decision in United States v. Richardson, 418 U.S. 
166, 176-77 (1974). There, the Court held that a plaintiff 
who claimed that he could not "properly fulfill his obligations 
as a member of the electorate in voting for candidates 
seeking national office" without detailed information about 
the CIA’s budget lacked standing to challenge a statute which 
relieved the CIA of the obligation to make such disclosures. 
Richardson’s complaint, like the claims of the plaintiffs in 
Johnson and the other post-Shaw cases, "is plainly 
undifferentiated and ’common to all members of the public.’” 
Of particular salience to this case, Richardson recognized, 
relying on Ex parte Levitt, 302 U.S. 633 (1937), that "if [the 
plaintiffs] allegations were true, they made out an arguable 
violation of an explicit prohibition of the Constitution. Yet," 
the Court concluded, "even this was held insufficient to 
support standing because, whatever Levitt’s injury, it was 
one he shared with ’all members of the public.’" 
Richardson, 418 U.S. at 178. Richardson's analysis can be 
translated directly into the context of this case:

It can be argued that if [appellees are] not permitted 
to litigate this issue, no one can do so. In a very 
real sense, the absence of any particular individual 
or class to litigate these claims gives support to the

See also Antonin Scalia, The Doctrine o f Standing as an 
Essential Element o f the Separation o f Powers, 17 Suffolk U.L. Rev. 881, 
881-82 (1983) ("[Cjourts need to accord greater weight than they have in 
recent times to the traditional requirement that the plaintiffs alleged injury 
be a particularized one, which sets him apart from the citizenry at large.").



11

argument that the subject matter is committed to the 
surveillance of Congress, and ultimately to the 
political process. Any other conclusion would 
mean that the Founding Fathers intended to set up 
something in the nature of an Athenian democracy 
or a New England town meeting to oversee the 
conduct of the [reapportionment process] by means 
of lawsuits in federal courts. The Constitution 
created a representative Government with the 
representatives directly responsible to their 
constituents that the Constitution does not 
afford a judicial remedy does not, of course, 
completely disable the citizen who is not satisfied 
with the "ground rules" established by the Congress 
[in amending and extending the Voting Rights Act]
... Lack of standing within the narrow confines of 
Art. Ill jurisdiction does not impair the right to 
assert his views in the political forum or at the 
polls.

Richardson, 418 U.S. at 179. To confer citizen standing 
whenever a single individual disapproves of the outcome of 
the redistricting process — without requiring that the plaintiff 
allege and prove the specific injuries Shaw identified — 
would plunge the Court far further into the political thicket 
than any of its previous forays. Cf. Davis v. Bandemer, 478 
U.S. at 153 (O’Connor, J., concurring in the judgment) 
(criticizing the plurality opinion because under its reasoning 
voters would be able to challenge apportionments if they 
lived outside the contested district or, indeed, outside the 
state).

Accordingly, the Court should take this case as an 
opportunity to reiterate the limited intervention authorized by 
Shaw and to instruct the lower courts to permit lawsuits 
challenging majority-nonwhite districts in the absence of any



12

claim of denial or dilution of the right to vote only when such 
districts both represent a clear departure from the state’s 
normal districting practices and threaten either to exacerbate 
racial bloc voting within the challenged districts or to deny 
members of the numerical racial minority within the district 
fair and adequate representation and only when the plaintiffs 
can point to a concrete and particularized injury that they 
have suffered as a result of creation of the challenged 
districts.

II. The Differences Between Apportionment and 
Other Governmental Decisions Show Why Race 
Can Legitimately Be Taken Into Account in 
Drawing District Lines

Shaw recognized that "redistricting differs from other 
state decisionmaking in that the legislature always is aware 
of race when it draws district lines, just as it is aware of age, 
economic status, religious and political persuasion, and a 
variety of other demographic factors.” Shaw, 113 S.Ct. at 
2826 (emphasis in original). In fact, the differences between 
redistricting and other governmental decisionmaking go 
beyond the legislature’s mere awareness of race. These 
differences explain why race-conscious districting cannot be 
subjected to the same type of strict scrutiny accorded other 
race-conscious action.

It is not just with regard to race that different rules apply 
in the redistricting arena. In Rutan v. Republican Party o f  
Illinois, 497 U.S. 62, 74 (1990), for example, this Court 
invoked the general principle that governmental distinctions 
among individuals based on their political affiliation are 
subject to heightened scrutiny; it held that "[ujnless ... 
patronage practices are narrowly tailored to further vital 
government interests, we must conclude that they



13

impermissibly encroach on First Amendment freedoms." 
Nonetheless, the Court has repeatedly upheld intentional 
political gerrymanders -- which by definition assign 
individuals to districts on the basis of political affiliation -  
without requiring any special justification. See, e .g ., Davis 
v. Bandemer, 478 U.S. 109 (1986); Gaffney v. Cummings, 
412 U.S. 735 (1973).

The rationale for the different treatment of redistricting 
lies in the fact that the very purpose of apportionment is to 
treat voters as members of groups and to choose which of 
their group characteristics should be used to aggregate them 
for the purpose of electing representatives. See T. Alexander 
Aleinikoff & Samuel Issacharoff, Race and Redistricting: 
Drawing Constitutional Lines After Shaw v. Reno, 92 Mich. 
L. Rev. 588, 600-01 (1993); Pamela S. Karlan, The Rights 
To Vote: Some Realism About Formalism, 71 Tex. L. Rev. 
1705, 1712-13 (1993). Thus, apportionment decisions 
virtually never treat citizens as individuals.2 Instead, 
apportionments rely on a series of gross, if politically astute, 
generalizations about the likely voting behavior of 
demographically identifiable groups.

By contrast, other sorts of government decisionmaking 
begin from "the simple command that the Government must 
treat citizens as individuals, not as simply components of a 
racial, religious, sexual or national class." Metro 
Broadcasting, Inc. v. FCC, 497 U.S. 547, 602 (1990) 
(O’Connor, J. dissenting) (internal quotation marks omitted;

Incumbent legislators, their relatives, and major campaign 
contributors sometimes form an exception to this general rule, and these 
exceptions can often account for irregularities in district shape. See Brief of 
Appellants Abrams et al. (describing how several distinctive geographic 
features of the Eleventh District reflect legislators’ desires to place 
themselves or family members within particular congressional districts).



14

emphasis in original). In City o f  Richmond v. J.A. Croson 
Co., 488 U.S. 469 (1989), for example, the alternative to 
racial set-asides was awarding contracts to the individual with 
the lowest competitive bid. In Wygant v. Jackson Board o f  
Educ., 476 U.S. 267 (1986), the alternative to using race in 
deciding which teachers should be laid off was reliance on 
individual seniority. In Regents o f  the Univ. o f  Cal. v. 
Bakke, 438 U.S. 265 (1978), the alternative to rigid race­
conscious admission to medical school was resort to test 
scores, prior academic performance, and individual promise 
within the profession. The Court’s analysis rested on two 
premises: first, that reliance on race can derogate from 
objective, race-neutral, individualized selection criteria, and, 
second, that race-conscious treatment may unnecessarily 
trammel the interests of individual citizens whose legitimate 
expectations have been foiled.

Neither of these principles operates with the same force 
on apportionment decisions. First, "[t]he key concept to 
grasp [about reapportionment] is that there are no neutral 
lines for legislative districts." Davis v. Bandemer, 478 U.S. 
at 129 n. 10 (opinion of White, J.).3 There may be a set of 
"[traditional districting principles," Shaw, 113 S.Ct. at 2824 
— ranging from such easily measurable criteria as equality of 
population and contiguity through such inherently subjective 
criteria as respect for communities of interest and "political 
fairness." But beyond equipopulosity, there are few 
"judicially discoverable and manageable standards," Baker v. 
Carr, 369 U.S. at 217, for deciding the relative weight of 
these interests with regard to where particular district lines 
should be placed. The tradeoff among protection of 
incumbents (with its attendant benefits to a state from

Quoting Robert G. Dixon, Jr., Fair Criteria and Procedures 
fo r  Establishing Legislative Districts 7-8, in Representation and Redistricting 
Issue (EL Grofman, A. Lijphart, R. McKay, & H. Scarrow eds. 1982).



15

legislative seniority), geographic compactness, and partisan 
concerns — to give just one example — is a "political question 
in the truest sense of the word." Davis v. Bandemer, 478 
U.S. at 145 (O’Connor, J., concurring in the judgment).

Moreover, given decennial reapportionment and the 
overtly partisan nature of the redistricting process, voters 
simply have no "settled expectations," Wygant, 476 U.S. at 
283-84 (opinion of Powell, J.), about the contours of the 
district in which they will find themselves. Georgia gained 
a congressional seat between 1980 and 1990, and uneven 
growth of population within the state required further 
adjustments of 1980 district lines. Thus, no voter had any 
legally cognizable right to be placed in any particular district. 
Since the votes of the plaintiffs in this case and the other 
post-Shaw litigation were neither denied nor diluted, none of 
their expectations about the voting process were in any way 
impaired.

Not only is this Court’s concern about objective 
standards not relevant in the redistricting context, but the 
second premise of its affirmative action jurisprudence — that 
race-conscious behavior distinctively disadvantages the 
interests of white citizens — is also inapposite. "Traditional 
districting principles" have always focused on "the competing 
claims of political, religious, ethnic, racial, occupational, and 
socioeconomic groups." Davis v. Bandemer, 478 U.S. at 
146 (O’Connor, J., concurring in the judgment) (emphasis 
added). In the districting process, members of racially- 
defined groups occupy a position similar to many other 
politically cohesive groups such as "union oriented workers, 
the university community, religious or ethnic groups 
occupying identifiable areas of our heterogeneous cities and 
urban areas." Whitcomb v. Chavis, 403 U.S. at 155.. Such 
practices as the ethnically balanced ticket are a mainstay of 
American political history. See Pamela S. Karlan, Undoing



16

the Right Thing: Single Member Offices and the Voting Rights 
Act, 77 Va. L. Rev. 1, 35-36 (1991).

As long as all citizens are able to vote and no 
identifiable group’s votes are diluted, the traditional values 
of descriptive representation and an ethnically diverse cast of 
elected officials serves a variety of important values. Fair 
representation of racially defined interests is critical to the 
functioning of the political process. This insight underlies 
this Court’s racial vote dilution jurisprudence, which 
recognizes that individuals’ policy preferences may often be 
correlated with, and sometimes even caused by, their racial 
identity. Much modem legislation is concerned with issues 
of racial discrimination,4 and members of racial minority 
groups may be specially concerned with these issues. "The 
exclusion of minorities from effective participation in the 
bureaucracy not only promotes ignorance of minority 
problems in that particular community, but also creates 
mistrust, alienation, and all too often hostility toward the 
entire process of government." Wygant, 476 U.S. at 290 
(O’Connor, J. concurring) (quoting S. Rep. No. 92-415, p. 
10 (1971)). Shaw sought to balance the danger to the 
perceived legitimacy of government from race-conscious 
redistricting against the danger to the perceived legitimacy of

4 See, e.g. , Civil Rights Act of 1964, Pub. L. No. 88-352, 78
Stat. 214 (codified as amended in scattered sections of 42 U.S.C. (1988)); 
Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (codified as 
amended at 42 U.S.C. § 1973 et seq. (1988)); Fair Housing Act of 1968, 
Pub. L. No. 93-284, 82 Stat. 81 (codified as amended at 42 U.S.C. § 3601 
et seq. (1988)); Equal Employment Opportunity Act of 1972, Pub. L. No. 
92-261, 86 Stat. 103 (codified in scattered sections of 42 U.S.C. § 
2000e(1988); Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, 
96 Stat. 131 (codified at 42 U.S.C. § 1973 et seq. (1988)); Fair Housing 
Amendments Act of 1988, Pub. L. No. 100-430, 102 Stat. 1619 (to be 
codified at 42 U.S.C. § 3601 et seq.); Civil Rights Act of 1991, Pub. L. 
No. 102-166, 105 Stat. 1071 (to be codified in scattered sections of 42 
U.S.C.).



17

government posed by lily-white legislative delegations from 
racially diverse jurisdictions. The decision in this case and 
in its companion lawsuits from Texas and Louisiana stems 
from the lamentable blindness of the district courts to the 
latter danger.

Finally, in contemporary America, it may be impossible 
fairly to represent ostensibly "political" interests if  ethnicity 
is ignored. In the real world race often serves as a shorthand 
or organizing principle for political communities of interest. 
Consider, for example, blacks in Marion County, Indiana. 
In Whitcomb v. Chavis, residents of inner-city Indianapolis 
challenged the state’s use of multi-member state legislative 
districts, claiming that the scheme produced unconstitutional 
racial vote dilution. This Court disagreed: black voters lost 
not because they were black, but because they were 
Democrats: "The voting power of ghetto residents may have 
been ’cancelled out’ as the District Court held, but this seems 
a mere euphemism for political defeat at the polls." 403 
U.S. at 151. In Davis v. Bandemer, black residents of inner- 
city Indianapolis again challenged the Indiana scheme and 
again lost because their overwhelming support of Democratic 
candidates showed that it was politics, not race, that caused 
their exclusion. 478 U.S. at 118 n. 8. But in response to a 
post-Gingles challenge under section 2 of the Voting Rights 
Act to the very districts upheld in Davis, the state agreed to 
abandon its multimember scheme and create several majority- 
black single-member districts. See Dickinson v. Indiana 
State Election Bd., 817 F. Supp. 737 (S.D. Ind. 1992) 
(recounting the history of the section 2 litigation).

This overlapping of racial and political affiliations is a 
commonplace in contemporary politics. See also LULAC  v. 
Clements, 999 F.2d 831, 850-55 (5th Cir) (en. banc) 
(determining that black candidates for judicial office lost 
because they were Democrats, not because they were black),



18

cert, denied, 114 S Ct 878 (1994). The decision by the 
unsuccessful Republican plaintiffs in a political 
gerrymandering challenge to North Carolina’s congressional 
reapportionment, Pope v. Blue, 809 F. Supp. 392 
(W .D.N.C.) (three-judge court), aff'd, 113 S.Ct. 30 (1992), 
to recast themselves as plaintiff-intervenors in Shaw v. Hunt, 
861 F. Supp. 408 (E.D.N.C. 1994) (three-judge court), is 
another pointed illustration of this reality.

Given the intertwining of race and politics, an expansive 
rule that treats all race-conscious districting with suspicion 
raises serious questions of administrability. Suppose, for 
example, that Democrats had controlled the Indiana 
reapportionment process and that they had drawn districts 
that had advantaged Democrats, including the 
overwhelmingly black Democratic community of inner-city 
Indianapolis, and that white suburban Republicans challenged 
the plan. Would the level of judicial scrutiny depend on a 
federal court’s ability to disentangle the political and racial 
aspects of the legislature’s decision? Would plans that favor 
black Democrats be accorded more searching scrutiny than 
plans that advantaged white Democrats? Such as result 
would, we suggest in the next section, raise serious 
constitutional questions.

III. Shaw v. Reno Must Be Read Narrowly to Avoid 
Denying African Americans the Equal 
Protection of the Laws Guaranteed by the Fifth 
Amendment

In Hunter v. Erickson, 393 U.S. 385 (1969), this Court 
struck down a provision of the Akron City Charter that 
provided that:

"Any ordinance enacted by the Council of The
City of Akron which regulates the use, sale,



19

advertisement, transfer, listing assignment, lease, 
sublease or financing of real property of any kind 
or of any interest therein on the basis of race, 
color, religion, national origin or ancestry must 
first be approved by a majority of the electors 
voting on the question at a regular or general 
election before said ordinance shall be effective."

Akron City Charter § 137. The Court explained that the 
fatal weakness in the ordinance was that it "drew a 
distinction between those groups who sought the law’s 
protection against racial, religious, or ancestral 
discriminations" and those involved in "the pursuit of other 
ends." 393 U.S. at 390. The "reality" of such a provision, 
the Court explained, is that "the law’s impact falls on the 
minority" because they are more likely to "benefit from laws 
barring racial, religious, or ancestral discriminations ...."  
Id. at 391. Section 137 involved impermissible 
discrimination on the basis of race, the Court concluded, 
because "the State may no more disadvantage any particular 
group by making it more difficult to enact legislation in its 
behalf than it may dilute any person’s vote or give any group 
a smaller representation than another of comparable size." 
Id. at 393.

Suppose a state were to pass a statute declaring that "any 
group of voters shall be entitled to petition the legislature to 
draw a congressional district in which members of the group 
form a majority of the electorate: Provided, That if the 
primary common characteristic of the group is the race or 
color of its members, the group shall be entitled to constitute 
the majority in a district only if it can persuade the 
legislature to draw a district with a dispersion score of .40 or



20

above or a perimeter score of 3 0  or above. "5 Such a statute 
would clearly run afoul of Hunter, because it would treat 
voters who politically affiliate along racial lines differently 
from voters who choose to affiliate along other shared 
characteristics, and would make it more difficult for them to 
secure favorable apportionment plans. And although the 
hypothetical statute might be race-neutral on its face, this 
Court would surely conclude that in reality it would burden 
black voters more heavily, since racial bloc voting and their 
shared interest in governmental policies to combat racial 
discrimination make them especially likely to seek race­
conscious apportionments that provide them with majority- 
black districts. Such a hypothetical law, like the provision in 
Hunter, would make it more difficult for black voters than 
for other groups to enact favorable apportionment legislation, 
since it would constrain their available options in ways that 
other groups’ options were not constrained.6 To uphold 
such an ordinance would turn the Fourteenth Amendment on 
its head, making the Amendment’s original intended 
beneficiaries — black Americans — the only group whose 
political aspirations are stringently limited by considerations 
of compactness and regularity of district boundaries.

If that hypothetical statute would violate the Fourteenth 
Amendment -  as clearly it would -  then a similar federal 
judicially created rule would also run afoul of the 
Constitution. Federal courts are bound by the equal 
protection component of the Due Process Clause of the Fifth

For descriptions of these technical terms for measuring 
compactness, see Richard H. Pildes & Richard G. Niemi, Expressive Harms, 
"Bizarre Districts," and Voting Rights: Evaluating Election-District 
Appearances After Shaw v. Reno, 92 Mich. L. Rev. 483, 553-56 (1993).

Just as clearly, a statute that provided that “a majority-white 
district may be any shape but a majority-black district must be regular in its 
boundaries," would clearly violate the equal protection clause.



21

Amendment. Edmonson v. Leesville Concrete Co., 500 U.S. 
614, 616 (1991). Thus, the federal courts cannot place 
unique barrier in the path of black voters’ seeking legislative 
plans of their choice.

If Shaw is read narrowly, it certainly does not conflict 
with the Fifth Amendment’s guarantee of equal protection. 
Under such a reading, the Constitution simply requires 
heightened scrutiny for race-conscious districting when the 
outcome of the process is districts that are never drawn for 
other groups. But if Shaw is read broadly, as the courts 
below have shown themselves prone to do, such a reading 
poses serious equal protection problems. To render districts 
suspect when they are drawn at the behest of the black 
community -- when farmers, Republicans, incumbents, 
"North Louisiana English-Scotch-Irish," Hays v. Louisiana, 
862 F. Supp. 119 (W.D. La. 1994) (three-judge court), 
probable juris, noted, Nos. 94-558 and 94-627, can obtain 
equivalently shaped districts — poses precisely the equal 
protection threat identified in Hunter. This Court should 
make clear that black voters are entitled to an equal 
opportunity to participate in the redistricting process and to 
benefit from the kind of traditional districting practices, 
including the drawing of oddly shaped districts, that all other 
political groups enjoy.

C o n c l u s io n

The decision of the district court represents both an 
incorrect reading of this Court’s opinion in Shaw v. Reno and 
an unwarranted federal judicial intrusion into the political 
process. Accordingly, this Court should reverse the 
judgment of the court below and remand the case with 
directions to dismiss the plaintiffs’ complaint.



22

Respectfully submitted,

Pamela S. Karlan 
Counsel o f  Record 

580 Massie Road 
Charlottesville, VA 22903 
(804) 924-7810/7536 (Fax)

Eben Moglen 
Columbia Law School 
435 West 116th Street 
New York, NY 10027 
(212) 854-8382/7946 (Fax)

Attorneys fo r  Amicus Curiae



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