International Union v. Johnson Controls, Inc. Brief of the NAACP LDF as Amici Curiae Supporting Petitioners

    Nos. 94-631,94-797,94-029

In  T he

Ihqiremr (Emtrt rtf tfy? HUnxtrb States
October T erm , 1994

Zell M iller , in his official capacity 
as Governor, State of Georgia, et al.,

Appellants,versus
D avida J ohnson, et a l ,

and Appellees,

United States of A merica and 
L ucious Abrams, Jr ., et al,

A ppellant-Intervenors.

On Appeal from a Three Judge Panel 
of the United States District Court 

for the Southern District of Georgia

MOTION TO AFFIRM

A. Lee Parks 
Counsel of Record 

Larry H. Chesin 
Kirwan, Goger, Chesin 

& Parks, P.C.
75 Fourteenth Street 
2600 The Grand 
Atlanta, Georgia 30309 
(404) 873-8000 
Attorneys for

Movants-Appellees

W i l s o n  E p e s  P r i n t i n g  C o . ,  In c . -  7 8 9 -0 0 9 6  -  W a s h i n g t o n , D , C .  2 0 0 0 1



QUESTIONS PRESENTED

I. Whether the District Court’s finding of a racial 
gerrymander is reviewed under the clearly erro­
neous standard?

II. Whether the decision below presents any substan­
tive departure from the holding of Shaw v. Reno 
which defined the constitutional limits the Four­
teenth Amendment places on race based reappor­
tionment legislation?

III. Whether Georgia’s admission that racial gerry­
mandering occurred as a direct consequence of the 
Justice Department’s demand Georgia maximize 
black voting strength without due regard for tradi­
tional districting principles mandates summary 
affirmance of the decision below?

IV. Whether the absence of any legal obligation under 
the Voting Rights Act to maximize black voting 
strength in derogation of Georgia’s traditional dis­
tricting principles pretermits any contention that a 
compelling interest was furthered by this race based 
district?

(i)



TABLE OF CONTENTS
Page

QUESTIONS PRESENTED...........................................  i

TABLE OF AUTHORITIES ..........................................  v

STATEMENT OF THE CASE ......................................  2

ARGUMENT................... ..................................................  6
I. THE DISTRICT COURT’S CONCLUSION

THAT RACIAL GERRYMANDERING RE­
SULTED IN A BIZARRELY CONFIGURED 
DISTRICT IS REVIEWED UNDER THE 
CLEARLY ERRONEOUS STANDARD........ 6

II. THE DISTRICT COURT PROPERLY HELD,
IN ACCORDANCE WITH SHAW v. RENO,
THAT GEORGIA’S LEGISLATION CREAT­
ING THE ELEVENTH CONGRESSIONAL 
DISTRICT VIOLATED THE PLAINTIFFS’ 
RIGHT TO EQUAL PROTECTION.................. 8

III. GEORGIA’S UNPRECEDENTED AND EX­
TREME DEPARTURE FROM ITS TRADI­
TIONAL DISTRICTING PRINCIPLES FOR 
PURELY RACIAL REASONS IS SUBJECT
TO STRICT SCRUTINY.....................................  18

IV. COMPLIANCE WITH THE VOTING RIGHTS
ACT CAN NOT CONSTITUTE A COMPEL­
LING GOVERNMENTAL INTEREST IN 
THIS CASE SINCE THE STATE AFFIRMA­
TIVELY DISAVOWED THE VOTING RIGHTS 
ACT AS ITS RATIONALE FOR THE REDIS­
TRICTING LEGISLATION.................. ............  15
A. A Congressional District Which Is Bizarrely 

Configured And Is Overly Safe From The 
Vantage Point Of Assuring The Election Of 
A Black Representative, Is Not Narrowly 
Tailored To Further A Compelling Govern­
mental Interest ................................................ 16

(iii)



IV

TABLE OF CONTENTS—Continued
Page

V. GEORGIA DOES NOT HAVE A COMPEL­
LING GOVERNMENTAL INTEREST IN 
PROPORTIONAL REPRESENTATION OF 
MINORITIES........................    18

VI. THE ABRAMS INTERVENORS SHOULD 
NOT BE PERMITTED TO PARTICIPATE 
IN ANY PLENARY REVIEW OF THIS 
CASE...................................................................  21

CONCLUSION........................................      24

APPENDIX
Population Density Map ....................... .................. App. 1
Race Map of Chatham County................................... App. 2
Race Map of Effingham County ....... .......... ....... . App. 3
Race Map of Richmond County .............. ......... ........ . App. 4
Race Map of DeKalb County............................. ........ App. 5



V

TABLE OF AUTHORITIES
CASES Page

Anderson v. City of Bessemer City, N.C., 470 U.S.
564, 105 S. Ct, 1504, 84 L.Ed. 518 (1985))..........  7

City of Richmond v. J. A. Croson Co., 488 U.S.
469, 109 S. Ct. 706, 102 L.Ed.2d 854 (1989)-----  19

City of Rome v. United States, 446 U.S. 156, 100
S. Ct. 1548, 64 L.Ed.2d (1980) ........................... 6

Gomillion v. Lightfoot, 364 U.S. 339, 80 S. Ct. 669
(1960) ....................... ............................................-  8

Johnson v. DeGrandy, 114 S. Ct. 2647 (1994) ....17,18, 23 
Regents of the University of California v. Bakke,

438 U.S. 265 98 S. Ct. 2733, 57 L.Ed.2d 750
(1978)_____ _____ ___ - ........................- ............  19

Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362
(1964) ......................... - .............................- .........  2

Rogers v. Lodge, 458 U.S. 613, 102 S. Ct. 3272,
73 L.Ed.2d 1012 (1982) .... ................................... 6

Shaw v. Hunt, 1994 WL 457269 (E.D.N.C. Au­
gust 1, 1994, as amended August 22, 1994 ......... 14

Shaw v. Reno,----- - U.S. —-— 113 S. Ct. 2816, 125
L.Ed.2d 511 (1993)....................   passim

Thornburg v. Gingles, 106 S. Ct. 478 U.S. 30, 92
L.Ed.2d 25 (1986) ................................   6,15,20

United States v. United States Gypsum Co., 333 
U.S. 364, 68 S. Ct. 524, 92 L.Ed.2d 746 (1948).. 7

White v. Regester, 412 U.S., 755, 93 S. Ct. 2332,
37 L.Ed.2d 314 (1973)...........................................  6

Wright v. Rockefeller, 376 U.S. 52, 84 S. Ct. 603
(1964)............................................. -............. -.........  18

Zenith Radio Corp. v. Hazeltine Research, Inc.,
395 U.S. 100, 89 S. Ct. 1562, 23 L.Ed.2d 129 
(1969) ....      7

CONSTITUTIONS
U.S. Const, amend. XIV, § 1....... ....................—-....... passim

STATUTES
Voting Rights Act of 1965, § 2 and 5 ............... ......... passim

RULES
Fed. R. Civ. P. 5 2 (a )....
Supr. Court Rule 18.6

2
1



In The

i ’uprTmF (tart 0! ttjr Imtrb
October T erm , 1994

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

Zell M iller , in his official capacity 
as Governor, State of Georgia, et ah,

Appellants,versus
Davida J ohnson, et ah,

and Appellees,

U nited States of A merica and 
L ucious A brams, Jr ., et al.,

A ppellant-Intervenors.

On Appeal from a Three Judge Panel 
of the United States District Court 

for the Southern District of Georgia

MOTION TO AFFIRM

Pursuant to Rule 18.6, Appellees move this Court to 
affirm the Order and judgment of the three judge panel 
in this matter. Affirmance is appropriate in light of the 
State’s own candid acknowledgement that it was forced 
to enact a black vote maximization plan, concocted by 
the American Civil Liberties Union and imposed on 
Georgia by the Department of Justice which employed 
racial gerrymandering as its modus operandi.

The issues upon which this case turns are fact intensive. 
The District Court correctly concluded that the Eleventh



2

District’s shape was highly irregular—bizarre in the par­
lance of these cases—due to racial gerrymandering. The 
facts on which this pivotal finding is based are ex­
haustively cataloged in the majority opinion. Given the 
deference due those findings by this Court, affirmance 
is warranted without further argument under Fed. R. 
Civ. P. 52(a).

STATEMENT OF THE CASE

With the completion of the 1990 census, states were 
obligated to reapportion their Congressional districts to 
bring them into conformity with the one man-one vote 
ruling of Reynolds v. Sims, 377 U.S. 555 (1964). Prior 
to the 1990 census, Georgia had ten (10) districts. Its 
increased population entitled it to one additional seat. 
(J.S. App. 5)

Since the 1980 census, there had been a quantum 
leap in the technology of computer software available to 
assist states in the reapportionment process. Racial data 
for each census block (100 or less people) became the 
building blocks employed to fashion districts with a racial 
rather than geographical focus. (J.S. App. 12, n.6)

This case is ultimately between the State of Georgia 
and the plaintiff citizens and voters of Georgia who ob­
jected to the State’s decision to racially gerrymander the 
boundaries of the Eleventh District. And the State does 
not dispute any of the salient facts presented by Plain­
tiffs which the District Court found to be true in connec­
tion with the enactment of the reapportionment plan. 
Miller, et al. Jurisdictional Statement [hereinafter Miller 
J.S.] at p. 2. Those facts include the following:

(1) The District Court found Georgia was forced to 
engage in racial gerrymandering by the Department of 
Justice [hereinafter referred to as the DOJ] to maximize 
the Black population in the Eleventh District. Georgia is



3
a state still under the jurisdiction of the DOJ for purposes 
of reapportionment. The race based legislation the State 
adopted was the DOJ’s quid pro quo for preclearance 
under Section 5 of the Voting Rights Act [hereinafter, 
the VRA]. (J.S. App. 26-27) It resulted in a district 
that was unprecedented in Georgia’s history in terms of 
its shape. The plan surgically segregated every major 
population center south of Atlanta in order to maximize 
the inclusion of Blacks and exclusion of whites within the 
two new majority minority districts the DOJ required 
the State create.

(2) “The amount of evidence of the General Assem­
bly’s intent to racially gerrymander the Eleventh District 
is overwhelming and practically stipulated to by the par­
ties involved.” (J.S. App. 42-43). In its jurisdictional 
statement, the State embraces the District Court’s de­
scription of the process by which the Eleventh District was 
created as “a search for [minority voting] maximization 
by the crudest means, the pursuit of ‘maximization of the 
black vote, whatever the cost’, and the like.” (Miller J.S., 
p. 3 quoting from the Opinion at App. 27, 11-12, n.4 28).

(3) During the 1990 reapportionment process, the 
DOJ, in concert with the ACLU, pursued a policy of 
minority vote maximization throughout the South. (J.S. 
App. 11). Majority minority districts called “Max-Black” 
plans were created by the ACLU, ostensibly for their 
clients, then state legislators Cynthia McKinney and San­
ford Bishop. Both were subsequently elected to Con­
gress to represent the very Max-Black districts they 
worked with the ACLU and DOJ to create. (J.S. App. 
13 n.7).

(4) There was no evidence of any intent to discrimi­
nate against minorities uncovered at any time during the 
reapportionment process. (J.S. App. 13). Regardless of 
that fact, the DOJ adopted the ACLU’s Max-Black ra­
cial population quotas as the benchmarks for the three 
majority minority districts the DOJ required Georgia to



4
create. Those percentages could not be attained without 
resort to gerrymandering. As stated by the District Court:

“. . . [T]he slow convergence of size and shape between 
the Max-Black plan and the plan the DOJ finally 
precleared, bespeak a direct link between the Max- 
Black plan formulated by the ACLU and the pre­
clearance requirements imposed by the DOJ.” (J.S. 
App. 26).

(5) The DOJ summarily rejected the first two plans
passed by Georgia’s legislature. (J.S. App. 13). In the 
second rejection letter, the DOJ “suggested” the shape 
the Eleventh District needed to take to meet the 65% 
black population quota the ACLU had convinced the 
DOJ was “possible” for the Eleventh even without the 
Black population in Macon which was needed for the 
other new Black Max district the DOJ wanted to create. 
The only way to do that, according to the ACLU, 
was for the Eleventh, anchored in Atlanta, to find a way 
to get to Savannah. (J.S. App. 15-20) Georgia’s Attorney 
General complained, to no avail, that the proposed con­
figuration of the Eleventh District being advocated by 
the DOJ/ACLU as violative “. . . of all reasonable stand­
ards of compactness and contiguity.” (J.S. App. 19) 
The DOJ was unmoved. Traditional districting principles 
were then subordinated on a wholesale basis to further 
the black maximization policies of the DOJ/ACLU by 
drawing boundaries that specifically included Blacks and 
excluded whites. Ms. Wilde, the ACLU attorney and 
acknowledged architect of the gerrymandered District in 
issue, was not apologetic: “That is how you draw a
majority black district.” (J.S. App. 20).

(6) The State, acting through its Director of the State 
Reapportionment office, drew the Eleventh “as close as 
she could to copying the Max-Black percentages. She was 
prevented from exact duplication by the need to construct 
eight other districts . . . .” (J.S. App. 22).1

1 The DOJ/ACLU team did not even bother with requiring the 
Max-Black plan to be presented as a state-wide plan. The ACLU



5

(7) The twin forces that led to the racial gerrymander 
in issue were the ACLU’s advocacy of a black vote maxi­
mization policy and the DOJ’s misguided reading of the 
VRA as obligating states to maximize black voting 
strength wherever possible without regard to the resulting 
aberrations in the shape and size of the district and the 
fact states were forced to segregate voters on the basis 
of their race. This de facto delegation of authority by 
the DOJ to the ACLU was found by the District Court 
to be an “embarassment.” (J.S.App. 26-27).

The dissenting judge adopted a “shape over substance” 
approach to Shaw. In so doing, the dissent would turn 
a deaf ear and blind eye to the machinations of the 
ACLU and the DOJ’s abuse of its authority under the 
VRA. The dissent believed the existence of a racial 
gerrymander turned on the subjective opinion of the fact­
finder as to the geometric shape of the District, independ­
ent of where the people are concentrated and whether they 
were intentionally racially segregated by this district’s 
boundaries. With all due respect, the courts cannot hope 
to offer the kind of continuity we expect of our juris­
prudence if the standard is, essentially, a visceral one that 
will vary from judge to judge and be materially impacted 
by subjective perceptions that, in the end, are highly 
personal spatial observations unrelated to any objective 
standard.

just drew the Max-Black districts, and left the State to work out 
the rest as best it could.



6

ARGUMENT
I. THE DISTRICT COURT’S CONCLUSION THAT 

RACIAL GERRYMANDERING RESULTED IN A 
BIZARRELY CONFIGURED DISTRICT IS RE­
VIEWED UNDER THE CLEARLY ERRONEOUS 
STANDARD

This Court has made clear that findings of fact are 
reviewed under the clearly erroneous standard. This is a 
strict and longstanding rule. It has been expanded to 
include ultimate findings in Voting Rights Act cases. See 
Thornburg v. Gingles, 106 S. Ct. 478 U.S. 30, 92 
L.Ed.2d 25 (1986).

The standard is especially applicable in these types of 
cases because of the importance of local factors and 
geography in assessing whether a gerrymander has in­
fected a districting plan. By analogy, this Court has 
repeatedly held that the ultimate question of vote dilu­
tion under the VRA is a finding subject to review under 
the clearly erroneous standard:

“. . . [Ojur several precedents . . . have treated the 
ultimate finding of vote dilution as a question of 
fact subject to the clearly erroneous standard of Rule 
52(a).” See, e.g., Rogers v. Lodge, 458 U.S. at 
622-627; City of Rome v. United States, 446 U.S. 
156, 183, 100 S.Ct. 1548, 1564 . . . (1980); 
White v. Regester, 412 U.S., at 765, 770, 93 S.Ct. 
at 2339, 2341.” Thornburg v. Gingles, 106 S.Ct. 
at 2780.

This same reasoning must apply to the presence of a 
racial gerrymander because the rationale for the deference 
—the importance of local factors—is equally applicable 
in both types of cases. As the Court stated in White v. 
Regester, 412 U.S. at 769-770, 93 S. Ct. at 2341:

“[W]e are not inclined to overturn these findings, 
representing as they do a blend of history and an 
intensely local appraisal of the design and impact of 
the . . . district in the light of past and present 
reality, political and otherwise.”



7

The Gingles court concluded:
“Thus, the application of the clearly erroneous stand­
ard to ultimate findings of vote dilution preserves 
the benefit of the trial court’s particular familiarity 
with the indigenous political reality without endan­
gering the rule of law.”

106 S. Ct. at 2752.
A case of minority vote maximization via racial gerry­

mandering should be decided under the same standard as 
a vote dilution case. District courts possess the critical 
knowledge and experience of the local jurisdiction in 
issue to make the critical factual determinations on which 
these cases must turn.

A finding is only clearly erroneous when “although 
there is evidence to support it, the reviewing court on the 
entire evidence is left with a definite and firm conviction 
that a mistake has been committed.” Anderson v. City 
of Bessemer City, N.C., 470 U.S. 564, 573, 105 S. Ct. 
1504, 1511 84 L.Ed.2d 518 (1985), (quoting United 
States v. United States Gypsum Co., 333 U.S. 364, 395 
68 S. Ct. 524, 92 L.Ed.2d 746 (1948). Furthermore, 
the Court has emphasized that “ ‘[i]n applying the clearly 
erroneous standard to the findings of a district court 
sitting without a jury, appellate courts must constantly 
have in mind that their function is not to decide factual 
issues de novo.’ ” Anderson v. City of Bessemer City, 
N.C., 470 U.S. 573, 105 S. Ct. 1511 (1985), (quoting 
Zenith Radio Corp. v. Hazedtine Research, Inc., 395 U.S. 
100, 123, 89 S. Ct. 1562, 23 L.Ed.2d 129 (1969)).

The District Court brought its considerable local knowl­
edge to bear in this case; that is readily evidenced by its 
exhaustive opinion. That knowledge is an indispensable 
ingredient to any sound judgment as to whether this dis­
trict so materially departed from Georgia’s traditional and 
historical districting principles for racial reasons that it 
must stand the test of strict scrutiny.



8

II. THE DISTRICT COURT PROPERLY HELD, IN 
ACCORDANCE WITH SHAW v. RENO, THAT 
GEORGIA’S LEGISLATION CREATING THE ELEV­
ENTH CONGRESSIONAL DISTRICT VIOLATED 
THE PLAINTIFFS’ RIGHT TO EQUAL PROTEC­
TION

Perhaps it is the simplicity of Shaw’s teaching that 
creates the problem for Appellants. The District Court’s 
summary of Shaw leaves little to quarrel about as to the 
standard by which racially gerrymandered districts are to 
be judged:

“Shaw holds that if a plaintiff shows that racial con­
cerns were the overriding consideration for drafting 
a redistricting plan, leading to the creation of dra­
matically irregular district boundaries, that plan is 
unconstitutional, unless it survives constitutional 
strict scrutiny.” See Shaw, 113 S.Ct. at 2826-27.

Contrary to Appellants’ view, Shaw makes clear that 
a “highly irregular” boundary line is not the only evidence 
that would be probative of the existence of a racial 
gerrymander:

“The difficulty of proof, of course, does not mean 
that a racial gerrymander, once established should 
receive less scrutiny under the Equal Protection 
clause than other state legislation classifying citizens 
by race. Moreover, it seems clear . . . that proof 
sometimes will not be difficult at all. In some excep­
tional cases, a reapportionment plan may be so highly 
irregular that, on its face, it rationally cannot be 
understood as anything other than an effort to ‘seg- 
regatfe] . . . voters’ on the basis of race, [cit.] 
Gomillion [v. Light foot], 364 U.S. 339, 81 S.Ct. 
127 . . . so, too, would be a case in which a state 
concentrated a dispersed minority population in a 
single district by disregarding traditional districting 
principles such as compactness, contiguity and re­
spect for political subdivisions.” (Emphasis added). 
113 S.Ct. at 2826.



9

No one can dispute the fact that the above-emphasized 
portion from Shaw fits the Eleventh District like a glove. 
While Georgia has persistently contended the gerryman­
der that formed the framework for this district was fash­
ioned by the ACLU and forced upon it by the DOJ, those 
facts hardly absolve the State from ultimate responsibility.

Appellees agree that the Eleventh District does not 
represent a voluntary act of the Georgia legislature. The 
District Court made voluminous findings in that regard. 
No party disputes those facts. Appellees acknowledge the 
State argued mightily against legislatively animating the 
gerrymandered version of the “Max-Black” plan that is 
now the Eleventh District, because of its blatant violation 
of Georgia’s traditional districting principles. (J.S. App. 
19). The Georgia Attorney General made this written 
statement to the DOJ before finally acquiescing to their 
demands:

“. . . [T]he extension of the 2nd District into Bibb 
County and the corresponding extension of the 11th 
District into Chatham County (Savannah), with 
all the necessary attendant changes, violate all reason­
able standards of compactness and contiguity.” J.S. 
App. 19, emphasis added).2

Given that statement, it is not surprising the State’s 
proof as to its adherence to traditional districitng prin­
ciples was virtually nonexistent. It would be an under­
statement to say that the State’s expert witness on com­
pactness, Lisa Handley, was not well received by the 
Court. In large measure, this was due to the fact the 
only way the State could generate any argument at all on 
compactness was to invent a compactness test just for 
this district.3 The District Court was not fooled:

2 It is difficult to understand how the Attorney General could now 
argue to this Court that the district is compact.

s The District Court found that the “. . . test, formulated . . . 
specifically for this litigation, constituted the State’s only notable 
submission on the subject of compactness.” (J.S. App. 78)



10

“[T]he . . . test is especially useless in analyzing the 
Eleventh District while the vast—and sparsely popu­
lated—core of the Eleventh accounts for the district’s 
favorable score on Dr. Handley’s test, the narrow— 
and densely populated—appendages escape notice. 
In fact, this test is an excellent means of highlighting 
the egregiously manipulated portions of any voting 
districts. . . . (J.S.App. 79, emphasis added).

On the issue of compactness, the District Court found:
“[T]he . . . Eleventh District, from a population 
based perspective . . ., is not compact for purposes 
of Section 2 of the VRA. The population of the 
Eleventh are centered around four discrete widely 
spread urban centers that have absolutely nothing 
to do with each other, and stretch the district hun­
dreds of miles across rural counties and narrow 
swamp corridors . . . .  These communities are so 
far apart that the DOJ’s insistence . . . they are “com­
pact” renders the term meaningless. The hooks, 
tails and protrusions of those counties reveal the 
true “shape” of the district. . . .” (J.S. App. 78-79)4 5

Neither the State nor the Intervenors offered any other 
witnesses on the question of the district’s shape. At trial, 
Plaintiffs offered the population density map attached as 
Appendix 1 to underscore the truth about this district. It 
is nothing more than four distant population centers, 
gerrymandered to make them majority black, stuck to­
gether by over 6000 square miles of farmland. Maps 
reevaling the gerrymander of DeKalb, Chatham, Rich­
mond and Effingham counties are also included in the 
Appendix so the Court can get a feel for just how cleanly 
a computer can separate the races. (App. 2-5)®

4 The District Court also found there was considerable potential 
for voter confusion due to the fact the “. . . erratic lines and split 
counties and precincts do not afford voters ready indications of 
the district in which they reside.” (J.S. App. 80, fn. 43)

5 These are known as race maps, the most common tool used by 
the DOJ/ACLU to fashion the Eleventh. The orange represents an



11
The State freely admitted race drove the district’s crea­

tion and that the ACLU’s Max-Black plan was the DOJ’s 
litmus test for the district’s racial population percentages. 
Given those admissions, the district had no hope of sur­
viving strict scrutiny. So, the State opted for an “all or 
nothing” defense by arguing first, that the admitted racial 
gerrymandering was accomplished without having to draw 
boundaries that were as bizarre as what was done in other 
Southern states. Second, the State contended the district 
was not bizarre because its boundaries track bits and 
pieces of state, county, city, precinct and highway lines. 
These arguments, if accepted, would allow wholesale 
racial gerrymandering to escape constitutional review.

The District Court made short work of these arguments. 
It recognized that the way racial gerrymandering is ac­
complished at the Congressional level is to contort distant 
densely populated urban areas into super majority black 
population centers and then connect them. The urban 
cities/counties divided for racial purposes must, by defini­
tion, be located on the peripheries of the gerrymandered 
district. (J.S. App. 22) This is the only way to segregate 
a political subdivision’s population racially. Thus, myriad 
chards of the circumferences of these divided cities and 
counties always become conterminous with district bound­
aries. This is the very evidence from which gerrymander­
ing is proven.

The State, however, tried to turn this geographical 
truism to their advantage. In its view, bits and pieces of 
divided city, county lines that blend with the districts 
boundaries because of the gerrymandering taking place 
could be considered evidence of regularity. Incredibly, the 
tables the State hinges its case on are intended to quantify 
just such a contention. (Tables 1-2, Miller, J.S., p. 7-8).

Absurd results would follow if the consequences of 
racial gerrymandering were accepted as indicia of regu­

area that is over 50% Black; yellow is over 60% Black, and blue 
is 35-49% Black. Grey is less than 35% Black. See Plaintiff’s trial 
exhibits 11; 18-20.



12

larity. Just two examples should suffice. The State con­
tends adherence here and there to State boundaries is evi­
dence of a district’s regularity regardless of the location 
of the population centers. A review of the unconstitu­
tional Fourth District in Louisiana points out the fallacy 
of such a contention. Almost half its boundary is cotermi­
nous with the State’s northern boundary. See Miller’s 
J.S., App. 109. The district itself, however, hangs from 
that border like long icicles off a roof, fingers that grope 
for and grab pockets of Blacks, but thin out and elongate 
to skirt contiguous population centers that are predomi­
nantly white. The State would argue that the Court should 
not even inquire as to the reasons for the formation of the 
“icicles”, given the regularity of the roof line.

For a second example, consider the thin land bridge 
that runs through Effingham and Chatham County to 
reach the black neighborhoods of Savannah. (App. 3-4) 
Its purpose was to get Black people in Savannah into the 
Eleventh while maintaining technical contiguity with the 
rest of the district. This land bridge has, as its eastern 
border, the state line of Georgia and its coast. It has such 
a boundary, not because of any desire to follow a state 
line, but to avoid the predominantly white population in 
Effingham County by running the district to Savannah 
partially through a swamp. (J.S. App. 42-43) Should 
this racial motive be immune from strict scrutiny merely 
because a state line that runs through a swamp came into 
play? 8 If ever an argument could be said to put form 
over substance, the Appellants have done it.

The District Court correctly refused to ignore the 
reason for the unprecedented division of cities and coun- 6

6 Likewise, pieces of the boundaries of DeKalb, Richmond, 
Chatham, Wilkes and Baldwin counties that matched the ultimate 
boundaries of the Eleventh are touted by the State as proof of the 
district’s regularity while, in the same sentence, it freely admits 
these counties were torn apart solely to further the segregationist 
motives of the district architects.



13

ties required to create the DOJ mandated majority minor­
ity districts.7 The majority firmly grasped the fact that the 
mechanistic interpretation of Shaw urged by the State 
would create a gaping loophole in the fabric of our Con­
stitution through which all fashions of admitted racial 
gerrymanders would escape strict scrutiny. It did not per­
mit this attempted end run around the Equal Protection 
Clause.

III. GEORGIA’S UNPRECEDENTED AND EXTREME 
DEPARTURE FROM ITS TRADITIONAL DIS­
TRICTING PRINCIPLES FOR PURELY RACIAL 
REASONS IS SUBJECT TO STRICT SCRUTINY

There is nothing new about this Court’s view that the 
Fourteenth Amendment requires strict scrutiny of legisla­
tion that incorporates racial classifications. The State’s 
“shape only” argument is borne of the fact it cannot allow 
an analysis under the strict scrutiny test due to its ac­
knowledgement that the District is based on a “black max” 
plan—the converse of the “narrow tailoring” required for 
the use of racial classifications in legislation. The District 
Court made short work of the State’s contention that 
shape, and shape alone, must be the evidence from which 
a finding of gerrymandering is based:

“Defendants argued . . . that evidence of the legis­
lature’s intent to gerrymander must be inferred from 
the shape of the . . . District itself, and not from 
direct testimony of those involved in the process. 
This view finds little support in Shaw v. Reno. The 
purpose of scrutinizing a district’s shape is to glean 
the intent of the legislature by working backwards. 
If the district appears uninfluenced by accepted dis­
tricting principles . . .  it must have been influenced

7 The District Court also rejected the State’s contention that ad­
herence in some spots (the gerrymandered areas) to precinct lines 
was evidence of regularity. The State’s own Director of Reappor­
tionment Services testified that the use of such lines as racially 
motivated. (J.S. App. 46)



14

by unaccepted ones. The Supreme Court explicitly 
approved this inferential approach because legisla­
tive intent is notoriously difficult—if not logically 
impossible—to ascertain . . . .  What the Supreme 
Court did not do in imbue geography with constitu­
tional significance; the requirement for a successful 
Equal Protection claim is still intent, however 
proved. Foreclosing production of direct evidence 
of intent until Plaintiffs convince the Court that a 
district looks so weird that race must have dominated 
its creation is not what Shaw intended. [Defendants’] 
approach would make district shape a (previously 
unheard of) threshold to constitutional claims.” 
(J.S. App. 42, emphasis added).

In taking up the State’s banner, the dissent has chosen 
a path no subsequent court could hope to follow. There 
can be no universal standard by which shape, and shape 
alone, can govern the ability of citizens to seek relief from 
the disenfranchising and discriminatory effects of a racial 
gerrymander. Each case is unique to the locale where it 
arose. No one would ever suggest for a minute that Black 
voters would be so limited that motive and intent could 
be ignored in determining whether a gerrymander existed. 
That is racism in its purest form and has no place in the 
equal protection jurisprudence of this Court.

Of all the three judge courts that have dealt with issue 
of racial gerrymandering and construed the standards es­
tablished in Shaw v. Reno for constitutional review of an 
alleged gerrymander, no court has agreed with the State’s 
position. Even in Shaw v. Hunt, where the District Court 
rejected the Plaintiffs’ claims in a 2-1 decision, the major­
ity refused to adopt such an extremely narrow view of 
Shaw. Once that contention is rejected, the State has no 
further defenses to offer.

Lest we lose right of it in the smoke and fire of the 
racial politics that drove the creation of this district, it is 
important to remember that the primary purposes of re­
apportionment is to equalize the voting districts’ popula­



15

tion so to comply with the constitutional mandate of one 
man-one vote. Each state has its own districting tradi­
tions, its own history of reapportionment. When those dis­
tricting traditions are ignored, when districts are drawn 
that twist and turn due solely to the need to meet racial 
percentages, the district must stand the test of scrutiny. 
That is the only way to insure white voters are not either 
being discriminated against, or, if they are, to insure the 
State is furthering a compelling state interest in a manner 
narrowly tailored to further that interest.

IV. COMPLIANCE WITH THE VOTING RIGHTS ACT 
CAN NOT CONSTITUTE A COMPELLING GOV­
ERNMENTAL INTEREST IN THIS CASE SINCE 
THE STATE AFFIRMATIVELY DISAVOWED THE 
VOTING RIGHTS ACT AS ITS RATIONALE FOR 
THE REDISTRICTING LEGISLATION

Unlike the other Southern states defending DOJ man­
dated gerrymanders, Georgia did not (because it could 
not) argue compliance with the Voting Rights Act as a 
compelling state interest to justify this district. It was 
wise not to. No court would ever hold the failure to 
combine the distant urban centers, skeletonized of their 
white citizenry by the computer driven gerrymandering 
techniques of the ACLU, would violate Section 2 of the 
VRA. The DOJ could never have met the test for vote 
dilution laid down by this Court in Gingles, supra. The 
District Court so found. (J.S. App. 78-80)

It is not surprising then that the DOJ urged this Court 
to great plenary review in the Louisiana case8 and hold 
the case at bar. In its jurisdictional statement, the DOJ 
carefully skirted the huge problem created by Georgia’s 
recognition that compliance with the Voting Rights Act 
cannot serve as a compelling state interest to justify the 
race based districting that took form as the Eleventh Dis­

8 United States v. Hayes, Docket No. 94-558.



16

trict. Note the language the DOJ chose to describe the 
dilemma:

“The first question in both [Hayes and this case] 
would be whether the State’s asserted interests in 
drawing an additional majority minority district 
were sufficiently compelling . . . .  In both cases, 
the primary interests that could be asserted were 
the need to comply with Section 2 and . . . Section 5 
of the Voting Rights Act . . . (p. 16, emphasis 
added).

The key words are “could be asserted.” In this case, it 
was not so asserted.

Georgia has gone to great lengths to disavow any cor­
relation between the State’s acquiescence on the preclear­
ance demands of the DOJ and any perception on the part 
of Georgia that the failure to draw such a gerrymandered 
district would violate either Section 2 or 5 of the Voting 
Rights Act. Georgia had this to say about its preclear­
ance experience and what the DOJ believed the Act 
required of a state:

“. . . [I]n [the DOJ’s] view . . . anything can be 
done in the name of minority voting opportuni­
ties. . . . [I]n the interveners’ view . . . ‘race 
trumps all else’.” (Miller, J.S., p. 15).

A. A Congressional District Which Is Bizarrely Con­
figured And Is Overly Safe From The Vantage 
Point Of Assuring The Election Of A Black Repre­
sentative, Is Not Narrowly Tailored To Further A 
Compelling Governmental Interest

Georgia affirmatively opposed the DOJ’s contention 
that the district’s gerrymandered boundaries were com­
pelled by the VRA to remedy racially polarized voting. 
And Georgia also demonstrated, via expert testimony, that 
even assuming a compelling state interest existed in the 
VRA, the district was far from being narrowly tailored. 
Georgia stood firmly with the plaintiffs on that issue at



17

trial and the District Court agreed. (J.S. App. at pp. 86- 
87.)9 Based on testimony offered by the State’s expert 
witness, the Court found that Black candidates would 
have “. . . an equal chance of being elected in a district 
containing 45-50% black registered voters.” (J.S. App. 
p. 88) The Eleventh District is overly safe with 57% 
Black registered voters which gives the Black candidate 
a 73% probability of winning. Obviously, an assessment 
using the district’s Black voting age population (61% ), 
the standard used by this Court in Johnson v. DeGrandy, 
114 S. Ct. 2752 (1994), “. . . would yield an even 
higher probability.” J.S. App. 88).

The District Court therefore had little problem finding 
that, even assuming the YRA provided a compelling state 
interest to engage in remedial districting, the district was 
not narrowly tailored. Georgia thus found itself vindi­
cated on the one hand, but devoid of any constitutional 
basis upon which to justify the race based districting that 
resulted from Georgia’s acquiescence to the DOJ/ACLU 
ultimatum to “maximize” Black voting strength, regard­
less of the bizarre shape of the resulting district, or be 
denied clearance under the VRA.

The consequences of the DOJ’s Section 5 review of 
the Georgia Congressional plan, if left to stand, would 
have cataclysmic effects on the democratic form of gov­
ernment we are guaranteed by our Constitution. In the 
Eleventh District, regional representation has been sup­
planted by racial representation. To tinker with such 
a fundamental aspect of our democracy would be un­
thinkable but for the fact its proponents advance their 
claim under the banner of “equal opportunity”. The road 
to a color blind society is surely not followed by method- 9

9 The District Court correctly observed that . . the State . . . 
retained Dr. Katz for the unusual purpose of undermining the 
testimony of both Intervenor United States’ expert . . . and 
Plaintiffs’ expei't. He was largely successful.” (J.S. App. 86)



18

ical segregation of the races into separate voting districts. 
The Constitution must remain unsullied in its pristine 
guarantee of equal protection if we are not to regress 
into a country of racial and ethnic enclaves. This Court 
has made this point time and time again. See e.g., Wright 
v. Rockefeller, 376 U.S. 52, 53-58, 84 S. Ct. 603 (1964). 
The District Court correctly implemented that message 
in this case. (J.S. App. 32, n.17)

V. GEORGIA CANNOT HAVE A COMPELLING GOV­
ERNMENTAL INTEREST IN PROPORTIONAL 
REPRESENTATION OF MINORITIES

This case was foreshadowed in Justice Kennedy’s con­
curring opinion last term in Johnson v. DcGrandy, 114 
S. Ct. 2647, 2666 (1994).

“Operating under the constraints of a statutory re­
gime in which proportionality has some relevance, 
States might consider it lawful and proper to act with 
the explicit goal of creating a proportional number of 
majority-minority districts in an effort to avoid Sec­
tion 2 litigation. . . . The Department of Justice 
might require (in effect) the same as a condition 
to granting preclearance under Section 5 of the 
Act. . . . Those governmental actions, in my view, 
tend to entrench the very practices and stereotypes 
the Equal Protection Clause its set against, [cit.] 
As a general matter, the sorting of persons with 
any interest to divide by reason of race presents 
the most serious constitutional questions.” Opinion 
at pp. 20-22.

Justice Kennedy’s fears became reality in Georgia.
After the DeGrandy decision was handed down, the 

State announced that its alleged interest in “proportion­
ality” would, standing alone, satisfy the troublesome need 
for a compelling state interest. (J.S. App. 51) This novel 
contention, borne of a most tortured reading of the 
Court’s DeGrandy opinion, was juxtaposed against the



19

explicit disavowel in the VRA of any requirement of pro­
portional representation and summarily dismissed by the 
District Court. (J.S. App. 53-54)

The State argues that the end (rough proportional­
ity) somehow justifies the means (segregation via gerry­
mander). The District Court characterized the State’s 
argument as tautological, holding proportionality standing 
alone, can never be a compelling state interest. (J.S. App. 
53) To require proportionality is to sanction racial quotas. 
The constitution forbids it, and the Voting Rights Act 
specifically disavows it. To accept the State’s claim that 
proportionality, in these circumstances, does not function 
as a racial quota, would require this Court to ignore the 
overwhelming and largely undisputed evidence to the con­
trary detailed in the District Court’s opinion regarding 
the origins of the Georgia plan. To evaluate proportional­
ity to such a level would require reversal of a long line 
of precedent that prohibits employment of racial quotas 
by governments, from admissions policies for professional 
schools, to public sector affirmative action plans and the 
awarding of public contracts. See e.g., City of Richmond 
v. /. A. Croson Co., 488 U.S. 469, 109 S. Ct. 706, 102 
L. Ed. 2d 854 (1989) (plurality opinion); Regents of 
University of California v. Bakke, 438 U.S. 265, 98 S. Ct. 
2733, 57 L. Ed. 2d 750 (1978).

The evidence was overwhelming on the issue. The 
Eleventh District’s boundaries were drawn specifically to 
maximize the number of minority controlled districts and 
to meet “Black-Max” racial population quotas. Not even 
Appellants contend that the district’s bizarre shape was 
an incidental and natural development during reappor­
tionment. The number of majority minority districts in 
the plan suddenly became proportionate to the percentage 
of black people living in the State only because the DOJ 
decreed it be so over the State’s strident objection. The 
State’s eleventh hour attempt to reply on proportionality



20

is an attempted revision borne out of advocacy rather than 
history.

If there were sufficiently large, concentrated and com­
pact minority populations capable of supporting the cre­
ation of three minority controlled districts, Section 2 of 
the VRA would have provided the mandate for their 
creation. See Gingles, supra. That was not the case 
here, the District Court finding “. . . the district does not 
satisfy the Gingles preconditions . . .”. J.S. App. 88) 
Were it otherwise, there would be no need for any dis­
cussion of proportionality in the context of what com­
pelling state interest could justify the race based district­
ing under challenge. The State correctly conceded it did 
not possess the kinds of contiguous and concentrated 
minority populations sufficient to justify, or even mandate, 
the creation of three minority districts under the Gingles 
standard. With this concession, the VRA falls away as 
substantiation for the blatant dominance of race as the 
creative force behind the Eleventh District.

The State acknowledged there is no legal obligation or 
authority under the VRA to excise the black people out 
of DeKalb County and link them by various land bridges 
to distant black populations excised out of coastal Savan­
nah. In fact, the State stipulated Savannah would not 
have been included in the District but for the need to 
increase the Black population of the District. (J.S. App. 
48-49)10 The ideal of proportionality can never justify 
a State’s creation of voting districts based on race with 
quota like black population percentages imposed by the 
DOJ/ACLU. This Court must leave this social debate 
without arming proponents of proportionality with con­

10 Incredibly, the line drawing in Chatham County (Savannah) 
excised a 80,000 plus population for inclusion in the Eleventh that 
was 84% Black from a general population that was 62% white. 
See Race Map of Chatham County at App. 2.



stitutional authority to gerrymander. Given the standard 
of review applicable to this case, this Court must accept 
the District Court’s findings on this issue and affirm the 
decision below.

VI. THE ABRAMS INTERVENORS SHOULD NOT BE 
PERMITTED TO PARTICIPATE IN ANY PLENARY 
REVIEW OF THIS CASE

From the onset, this litigation has been slowed and 
unduly complicated by the presence of the Intervenors.11 
That sentiment is borne out by a review of the ACLU’s 
jurisdictional statement. Their contentions at trial and 
on appeal are wholly duplicative of the DOJs position. 
The ACLU intervenors present no credible arguments or 
contentions not adequately advanced either by Georgia 
or the Justice Department.12 Should this Court not sum­
marily affirm the judgment below, they are not a neces­
sary party to any plenary review of this case. For this 
reason, the six (6) issues they urge the Court to consider 
are dealt with summarily below:

1. Plaintiffs lack of standing: The three judge Court 
characterized the lack of standing argument as frivolous. 
(Order of June 14, 1994). Shaw specifically states that 
nothing in the law precludes “white voters (or voters of 
any race) from bringing a . . . claim that a reappor­
tionment plan rationally cannot be understood as anything 
other than an effort to segregate citizens into separate 
voting districts on the basis of race without sufficient jus­
tification.” 113 S. Ct. at 2824, 2830. No Court has

11 During the trial of this case, the Court expressed constant 
displeasure over the role Intervenors sought to play in the presenta­
tion of the evidence. The Court’s frustration reached the point 
where Judge Edenfield observed that, in retrospect, granting the 
Intervenors party status was a mistake.

1:2 All DOJ/ACLU evidence at trial was presented jointly. The 
ACLU offered no independent expert testimony.



22

since questioned Shaw’s holding that voters having stand­
ing to challenge racially gerrymandered districts. The 
argument is not worthy of further discussion; perhaps 
that is why the ACLU Interveners only offered two sen­
tences on the subject.

2. The District is not bizarre: The Court below found 
the district’s boundaries to be bizarre as that term is de­
fined in Shaw. The standard of review of such fact finding 
makes it unworthy of plenary review. The ACLU inter- 
venors offered no independent evidence as to the appear­
ance of the district. Instead, they focused their presenta­
tion on the proposition, which no court has accepted to 
date, that being Black, in and of itself, creates a racial 
community of interest that transcends geography and le­
gitimizes majority minority districts, no matter how 
bizarre their shape. Again, the argument is not a serious 
one given the Court’s holding in Shaw.

3. Racial Community of Interest As Compelling State 
Interest: As noted above, the question is not substantial. 
The racial community of interest argument advanced by 
these intervenors would effectively overrule Shaw. The 
consolidation of Black voters into their own districts so 
to maximize their voting strength, regardless of the geo­
graphic aberrations required to bring together a “racial” 
community of interest, is the political apartheid Shaw 
speaks so eloquently against. In the search for an in­
tegrated color blind society, the ACLU intervenors advo­
cate resurrection of racial enclaves that, at least politi­
cally,, will resegregate society. That is precisely what 
Shaw was intended to prevent.

4-5. Voting Rights as a Compelling State Interest: 
Throughout the case, the State has refused to raise the 
VRA as a compelling state interest to justify the bizarre 
geography of the Eleventh District. The State put on 
expert testimony, accepted by the Court, rebutting In­
tervenors’ joint efforts to paint Georgia as suffering from 
rampant racially polarized voting that mandated con­



23

struction of a remedial district. Intervenors’ frustration 
with the State’s rejection of this defense has found a voice 
in their decision to vicariously advance compliance with 
the VRA as the State’s motive for the district’s con­
figuration. The missing link in the logic is, of course, 
the State’s refusal to participate in the plan and the incur­
able antagonism between the maximization goals that the 
district was based on and the narrow tailoring required 
under strict scrutiny. The Intervenors are left with the 
State’s post hoc rationalization, borne of its misreading 
of the DeGrandy decision, that proportionality was its 
“true motive”. However, this is not simply a compelling 
state interest sufficient to withstand strict scrutiny under 
the Equal Protection Clause. With that recognition, the 
equal protection analysis is at an end.

6. Narrow Tailoring: The issue is mooted from the 
State’s vantage point due: (1) to the absence of a com­
pelling state interest; and (2) the expert testimony it 
offered to rebut the Intervenors’ claim that the 65% 
Black population was needed to give minority candidates 
an equal opportunity. Intervenors are hard pressed to 
contend with any credibility that a plan known as the 
“Black Max” is “narrowly tailored”. The District Court 
meticulously traced the interrelationship between the ad­
vocacy of the ACLU, the positions taken by the DOJ 
during the preclearance process of the fact the ACLU’s 
Black-Max plan became the blueprint for what is, for 
now, the Eleventh District. Maximization is the antithesis 
of narrow tailoring. The ACLU is “hoisted on its own 
pitard” with respect to this aspect of the strict scrutiny 
test.



24

CONCLUSION

This case presents a scenario that is an anathema to a 
constitutional democracy. The will of the people, as ex­
pressed by their elected representatives, was subverted in 
ruthless fashion. And this subversion was accomplished 
by no less a force than the United States Department of 
Justice, whose conduct the District Court characterized 
as nothing less than an “embarrassment.” (J.S. App. 27)

Democracy is a system of government that depends on 
an intricate scheme of checks and balances for its viability. 
The genius of our democracy is that there is a check to 
correct every wrong—even when it is visited upon the 
people by the federal agency charged with enforcement of 
our constitution and laws. The trial court performed that 
function thoroughly and courageously.

This Court has repeatedly acknowledged the extreme 
deference due local tribunals in matters of this nature. It 
should not stray from that precedent, particularly where 
it is not presented with a single issue of first impression 
by this case due, in large measure, to the State’s admis­
sions and its refusal to rely upon the Voting Rights Act 
as justification for the gerrymander. Instead, Georgia has 
offered the weak pop fly of proportionality as its reason 
for deployment of a racial gerrymander. That is not an 
argument worthy of serious consideration.

Racial gerrymanders that torture our most fundamental 
right—to vote in elections free of governmental interven­
tion on the side of any candidate or any class of candi­
dates—are generally not welcome in a democracy. Given 
the well supported and largely stipulated findings upon 
which the District Court decision is based, coupled with 
the deference they are due, summary affirmance is war­
ranted.



25

Respectfully submitted,

A. Lee Parks 
Counsel of Record 

Larry H. Chesin 
Kirwan, Goger, Chesin 

& Parks, P.C.
75 Fourteenth Street 
2600 The Grand 
Atlanta, Georgia 30309 
(404) 873-8000 
Attorneys for

December, 1994 Movants-Appellees



Persons per Acre by Census Block Group
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Client : CONGRESS
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Type : Congressional

Reapportionment Services Office 
Suite 407, Legislative Office Bldg

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Client : CONGRESS
Plan : C1992
Type : Congressional

B R Y A N

Georgia Genera! Assembly

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