Brief Amicus Curiae of the ACLU in Support of Appellants

    Nos. 99-1864 & 99-1865 

  

  

In The 

Supreme Court of the United States 
+ 

JAMES B. HUNT, JR, 
Governor of the State of North Carolina, et al., 

  

Appellants, 

MARTIN CROMARTIE, et al, ® 

Appellees. 
  ¢ 

ALFRED SMALLWOOD, et al., 

Appellants, 

MARTIN CROMARTIE, et al., 

Appellees. 
14 

On Appeal From The United States District Court 
For The Eastern District Of North Carolina 

: » 
BRIEF AMICUS CURIAE OF AMERICAN 

CIVIL LIBERTIES UNION 
IN SUPPORT OF APPELLANTS 

* 

  

  

  

LAaugHLIN McDonALD 

Counsel of Record 
Ne. BRADLEY 

CrisTINA CORREIA 
BrRyAN SELLS 
AMERICAN CrviL LIBERTIES 

Union FounbpaTtiON 
2725 Harris Tower 
233 Peachtree Street 
Atlanta, GA 30303 
(404) 523-2721  



 
 
 

    

 



    

TABLE OF CONTENTS 
Page 

TABLE OF AUTHORITIES ........ ... 00 eds iid, ii 

INTEREST OF AMICUS CURIAE ..........0 00 cid 1 

SUMMARY OF ARGUMENT... ... ot assis 1 

ARGUMENT i: din vo hone 3 

LL Inbrodachon: oto te i tre SR A BE, 3 

II. The Voting Rights Act and the Importance 
of Majority-Minority Districts. .................. 5 

III. Challenges to Majority Black and Hispanic 

ISHICES oh i ER NE Se as 8 

IV. The Shaw /Miller Standards Are Unwork- 
Ln I To La SI en SRR Si SS 13 

V. Majority White and Majority Nonwhite Dis- 
triclts: Dual Standards... ci... ci sim iaiid 16 

VI. Mistaken Assumptions about Segregation. ..... 22 

VII. 
tive Action ® 8 2 8 8 ® + 53 ee TT ss ee EYE EE ew EE SE es see ss oes 

The Erroneous Comparison with Affirma- ww 

CONCLUSION oc oe cave dna da os ih inn vs 30 

 



    

ii 

TABLE OF AUTHORITIES 

  

Page 

Casks: 

Abrams v. Johnson, 521 U.S. 74 (1997) .......... passim 

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 
(1908) Cs ra ah EE Se Yaa 28 

@- v. Wright, 468 11.S5..737 (1084)... 5 oo. 00 20 

Arlington Heights v. Metropolitan Housing Devel- 
opment Corp., 429 U.S..252' (1977). ........... .., 21 

Burton v. Sheheen, 793 F. Supp. 1329 (D.S.C. 1992) ..... 7 

Busbee v. Smith, 549 F. Supp. 494 (D.D.C. 1982)...7, 27 

Bush v. Vera, 517 U.S. 952 (1996) .....3, 4, 5, 11, 13, 18 

Chapman v. Meier, 420 11.8. 1 (1975)......... io. .% 15 

City of Memphis v. Greene, 451 U.S. 100 (1981)..... 22 

City of Mobile v. Bolden, 446 U.S. 55 (1980) ..... 21, 27 

City of Richmond v. J.A. Croson, Co., 488 U.S. 469 
A980) a ae La 28 

Q. Vv. Finch, 431 U.S. 407: (1977)... .... co. ia 15 

Currie v. Foster, No. 97-CV-368 (W.D.La.) ............ 9 

Daly v. High, No. 5:96 CV 86-V (W.D.N.C.).......... 9 

Davis v. Bandemer, 478 U.S. 109 (1986) ........... 8, 27 

DeGrandy v. Wetherell, 794 F. Supp. 1076 (N.D. 
Fla. 1992) a en NA SNE 7 

DeWitt v. Wilson, 515 U.5.-1170 (1995)... 0... ie 12 

Diaz v. Silver, 932 FE. Supp. 462 (E.D.N.Y. 1996)....... 9 

Diaz v. Silver, 978 F. Supp. 96 (E.D.N.Y. 1997)....... 12 

   



111 

TABLE OF AUTHORITIES - Continued 

Page 

Gaffney v. Cummings, 412 U.S. 735 (1973)........... 17 

Gomillion v. Lightfoot, 364 U.S. 339 (1960) .......... 16 

Growe v. Emison, 507 U.S. 25 (1993) 

Hays v. Louisiana, 839 F. Supp. 1188 (W.D.La. 
1993). cu sum hE ad aa as 7. 8 

Hays v. Louisiana, 862 F. Supp. 119 (W.D.La. 1994) .... 26 

Hays v. Louisiana, 936 F. Supp. 360 (W.D.La. 1996) .... 11 

Holder vo Hall, 512° 11S. 874 (1994)... 0. Jil ainda 1 

Hunt v. Cromartie, 526 U.S. 541 (1999). .......... i... 3 

Johnson v. Miller, 864 F. Supp. 1354 (S.D.Ga. 1994) 
TSR Wr Ty le TE MO Th Re 7.9, 19.25 

Johnson v. Miller, 922 F. Supp. 1552 (S.D.Ga. 1995). .15, 24 

Johnson v. Miller, 929 F. Supp. 1529 (S.D.Ga. 1996) ... 

Johnson v. Mortham, 926 F. Supp. 1460 (N.D.Fla. 
3006)... a i aad Tu 8,11 

Jordan v. Winter, 604 F. Supp. 807 (N.D.Miss. 1984) ..... 7 

Katzenbach v. Morgan, 384 U.S. 641 (1966).......... 25 

King v. State Board of Elections, 979 F. Supp. 582 
IND 1998)2 sc a di ri sr i ends 9 

King v. Illinois Board of Election, 522 U.S. 1087 
(1998), aff'g, 979 F. Supp. 532 (N.D.Il. 1996) ....... 12 

Kusper v. Pontikes, 414 U.S. 51 (1973) .............. 12  



  

iv 

TABLE OF AUTHORITIES — Continued 
Page 

Lawyer v. Department of Justice, 521 U.S. 567 
1007) i: i a. sr a in eh a ea a wl 12 

Leonard v. Beasley, Civ. No. 3:96-CV-3540 (D.S.C.)..... 9 

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .... 19 

Co. v.. Treen, 574 F. Supp. 325 (E.D.La. 1983)....... 7 

McCain v. Lybrand, 465 U.S. 236 (1984) .............. 1 

Miller v. Johnson, 515 U.S. 900 (1995) ........... passim 

Moon v. Meadows, 952 F. Supp. 1141 (E.D.Va. 
WA CR DC TRA rhe PR EE 2 TI 9, 11 

NAACP v. Button, 371 US. 415 (1963) .............. 12 

Personnel Administrator of Massachusetts v. 
Feeney, 442 U.S. 256 (1979) ........ i Rud heii 21 

Quilter v. Voinovich, 912 F. Supp. 1006 (N.D.Oh. 
40,0 Se IR SE RT RA Bl Ae 9 

uilter v. Voinovich, 981 F. Supp. 1032 (N.D.Oh. 
iu I Te SN SRR RS Ne CI LS SN 12 

Reno v. Bossier Parish School Board, 520 U.S. 471 

(9973... ia od a 1 

Rice v. Smith, 988 F. Supp. 1437 (M.D.Ala. 1997) ..... 9 

Rogers v. Lodge, 458 14.8. 613 (1982)................. 5 

Scott v. United States Dept. of Justice, 920 F. Supp. 
1248 MDBla. 1996), . ons shel ve i Sa id 

Shaw v. Barr, 808 F. Supp. 461 (E.D.N.C. 1992)..... 7,8 

Shaw 'v. Hunt, 5172.8. 89911996) . =... 0... 3,11 

Shaw v. Reno, 509 US. 620 (1993) ............0. passim 

   



TABLE OF AUTHORITIES - Continued 

Page 

Smith v. Beasley, 946 F. Supp. 1174 (D.S.C. 1996) ..... 9 

South Carolina v. Katzenbach, 383 U.S. 301 (1966) 
WERET VFL TUM dr Ee ea eh RR OO Te 9.23, 25 

The Slaughter-House Cases, 83 U.S. (16 Wall) 36 ® 
7) nl i a i a a 

Thomas v. Bush, No. A-95-CA 18655 (W.D.Tex.) ...... 9 

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

United Jewish Organizations of Williamsburg, Inc. 
v, Carey 430 US, 144 (1977)... couviis ss inns 27, 28 

United States v. Hays, 515 U.S. 737 (1995)............ 1 

United States v. Scott, 437 U.S. 82 (1978).............. 5 

United States v. Students Challenging Regulatory 
Agency. Procedures, 412 U.S. 669 (1973). .......... 20 

Vera v. Richards, 861 F. Supp. 1304 (S.D.Tex. 1994) 
® # 8 6 2 8 8 Pe PT se ss 8 es se ET RE SE ee AS es eee ee Esse soe 

Wesch v. Hunt, 785 F. Supp. 1491 (S5.D.Ala. 1992) ..... 7 

Wygant v. Jackson Board of Ed. 476 U.S. 267 
(1986) is cide, cr ar ar REN 28 

Constitutional Provisions: 

Fourteenth Amendment. . J. -.............. 000 passim 

Fifteenth Amendment. o. dh date) dss liens 25 

StaTtuTORY PROVISIONS: 

Civil Rights Act of 1987. 0... cuvah So laa ian’ 10  



  

vi 

TABLE OF AUTHORITIES - Continued 

Civil Rights Act of 1960 . orev. oi. 0is Fin i 

Civil Rights Act of 1964... ... ...0....0 0 Fees ca. 

Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq. . 

@ 2 of the Voting Rights Act, 42 U.S.C. § 1973 

Section 5 of the Voting Rights Act, 42 U.S.C. 
B Y070c.. an a sa i A re Be TE 

CONGRESSIONAL REPORTS: 

S.Rep. No. 417, 9th Cong., 2d Sess. 32-3 (1982).. 

Voting Rights Act: Hearings Before the Subcomm. 
on the Constitution of the Senate Comm. on the 

Judiciary, 97th Cong., 2d Sess. 662 (1982) ..... 

RuLEs: 

¢ Rule 37.3. i as ios das ans 

OTHER: 

T. Alexander Aleinikoff & Samuel Issacharoff, 
“Race and Redistricting: Drawing Constitu- 
tional Lines After Shaw v. Reno,” 92 Mich. L. 

Rev -883-(1993) ..... oo rs NE 

Michael Barone & Grant Ujifusa, The Almanac of 
American Politics 1974 (1973) 

James U. Blacksher, “Dred Scott's Unwon Free- 
dom: The Redistricting Cases As Badges of 
Slavery,” 39 How. L. J. 633 (1996) 

bait 1 

   



Vii 

TABLE OF AUTHORITIES - Continued 

David A. Bositis, Redistricting and Representa- 
tion: The Creation of Majority-Minority Dis- 
tricts and the Evolving Party System in the 
South (Joint Center for Political and Economic 
Studies, 1905) ....... 0. iodide 

Congressional Quarterly, Inc., Politics in America 

1994: 103rd Congress (Phil Duncan ed., 1993) .. 

Critical Race Theory: The Concept of “Race” in 
Natural and Social Science (E. Nathaniel Gates 
ed, 1997) Cee ba 

Armand Derfner, “Racial Discrimination and the 
Right to Vote,” 26 Vand. L. Rev. 523 (1973) .... 

Robert G. Dixon, Jr., Democratic Representation: 

Reapportionment in Law and Politics (1968) . .. 

Nathan Glazer, “Reflections on Citizenship and 
Diversity,” in Diversity and Citizenship: Redis- 
covering American Nationhood (Gary J. Jacob- 
sohh' & Susan Dunn-eds., 1996)... ....... 5... 

Bernard Grofman & Lisa Handley, “1990s Issues in 
Voting Rights,” 65 Miss. L. J. 205 (1995) ....... 

Lisa Handley & Bernard Grofman, “The Impact of 

the Voting Rights Act on Minority Representa- 
tion: Black Officeholding in Southern State Leg- 
islatures and Congressional Delegations” in 
Quiet Revolution in the South (C. Davidson & 
B. Grofman eds! 1994) 1... oh a cei aes 

A. Leon Higginbotham, Jr., Gregory A. Clarick & 
Marcella David, “Shaw v. Reno: A Mirage of 
Good Intentions with Devastating Racial Conse- 
quences,” 62 Ford. L. Rev. 1593 (1994)......... 

Page 

 



  

viii 

TABLE OF AUTHORITIES - Continued 

Joint Center for Political and Economic Studies, 
Black Elected Officials: A Statistical Summary 
O08) co tne i ae a 

Pamela S. Karlan, “All Over the Map: The 
Supreme Court’s Voting Rights Trilogy,” 1993 

@ Ct. Rev. 245 

J. Morgan Kousser, The Shaping of Southern Poli- 
tics: Suffrage Restriction and the Establishment 
of the One-Part South, 1880-1910 (1974)........ 

J. Morgan Kousser, Colorblind Injustice (1999). ... 

Paul Lewinson, Race, Class, and Party: A History 
of Negro Suffrage and White Politics in the 
South (1932) 

Frank R. Parker, Black Votes Count (1987) 

Frank R. Parker, “The Constitutionality of Racial 
Redistricting: A Critique of Shaw v. Reno,” 3 D. 
Col. L. Rey. 1.(1995). .., ..... not oa oe. 14, 

@ H. Pildes, “The Politics of Race,” 108 
Haty, I: Bey 135%: (1995)... foie sada 

Quiet Revolution in the South (C. Davidson & B. 
Grofman eds., 1994) 

Mark Sherman, “Redrawn Districts Expected To 
Face Challenge,” Atlanta Journal & Constitu- 

tion, Aug. 2,:1995, p. BB... coc. cos hiner 

1990 U.S. Census, Population and Housing Profile, 

Congressional Districts of the 103rd Congress, 
C.Q. Weekly Report, 'V. 51, 3473-87 .......u svi 

U.S. Commission on Civil Rights, Political Partici- 
pation (1968) ® ® 8 8 8 eo oe ® ss ee es 8B B® ss SE ET Ee ss se see ea 

® 9 © 8 = ® 5 eo ® ® es = 9° Es VT SE EE see eee es se 

® © 8 ® 8 8 ee 8 8 8 eT 4 se 6 8 ue ees 8 BEE eee SS es se 

® ® oo ® 5 eo 2 8 ®ve se es ST EB BE see se 

Page 

   



TABLE OF AUTHORITIES - Continued 
Page 

Bill Wasson, “Wilder Plan Expected to Win 
Assembly OK,” The Richmond News Leader, 

Dec. 3, 199), pri). ini iin iil ian a vai sine 7 

 



    

 



INTEREST OF AMICI CURIAE! 

The American Civil Liberties Union (ACLU) is a 

nationwide, nonprofit, nonpartisan organization with 

nearly 300,000 members dedicated to defending the prin- 

ciples of liberty and equality embodied in the Constitu- 

tion and this nation’s civil rights laws. As part of the 

commitment, the ACLU has been active in defending ® 

equal right of racial and other minorities to participate in 

the electoral process. Specifically, the ACLU has partici- 

pated in numerous voting cases before this Court, both as 

direct counsel, e.g., McCain v. Lybrand, 465 U.S. 236 (1984), 

Holder v. Hall, 512 U.S. 874 (1994), Abrams v. Johnson, 521 

U.S. 74 (1997), and as amicus curiae, e.g., United States v. 

Hays, 515 U.S. 737 (1995), Reno v. Bossier Parish School 

Board, 520 U.S. 471 (1997). 

  

SUMMARY OF ARGUMENT 

Amicus respectfully suggests that this case offers an 

appropriate occasion for the Court to reconsider its redis- 

tricting cases that began with Shaw v. Reno, 509 U.S. 620 

(1993). Majority-minority districts, which have been chal- 

lenged systematically in the wake of Shaw, have been the 

key to the increase in black officeholding since passage of 

  

1 Letters of consent to the filing of this brief have been 
lodged with the Clerk of the Court pursuant to Rule 37.3. This 
brief was not authored in whole or in part by counsel for a party 
and no person or entity, other than the amicus curiae, its 
members, or its counsel, made a monetary contribution to the 
preparation or submission of this brief.  



  

the Voting Rights Act of 1965. By creating lenient stand- 

ing rules for white voters and relieving them of the 

obligation to show that majority-minority districts have 

been drawn for a discriminatory purpose, Shaw and its 

progeny have transformed the Fourteenth Amendment 

from a law designed to prohibit discrimination against 

racial minorities to one that can now be used to dismantle 

jority-minority districts and allow whites once again 

0 maximize their control of the electoral process. 

The majority-minority districts created after the 1990 

census were the most racially integrated districts in the 

country. Not only have they not caused segregation or 

other racial harm, but they have ameliorated to some 

extent the affliction of racial bloc voting and have thus 

bestowed a benefit upon the electorate and society as a 

whole. 

By requiring strict scrutiny of majority-minority dis- 

tricts, the Shaw cases have singled out nonwhites for 

ecial, discriminatory treatment in the redistricting pro- 

@. While whites are acknowledged to have a constitu- 

tionally protected right to organize politically, the 

comparable efforts of nonwhites alone are deemed consti- 

tutionally suspect. Such a result violates the concept of 

equal treatment under the Fourteenth Amendment. 

Experience has shown that, contrary to this Court's 

intent, the Shaw standards have proven both unworkable 

and unfair. Legislators no longer know when the consid- 

eration of race in redistricting is required, permissible, or 

impermissible. Because of the absence of clear and reli- 

able standards, the federal courts have been drawn 

   



increasingly and unnecessarily into the redistricting proc- 

ess. 

The decision below should be reversed because 

plaintiffs failed to prove a cognizable injury and that the 

legislature acted with a discriminatory purpose. To the 

extent that Shaw v. Reno and its progeny are inconsiste 

with reversal, those decisions should be reconsidered ® 

overruled. 

  

ARGUMENT 

I. Introduction 

This case provides the Court with an opportunity to 

reconsider its line of redistricting cases that began with 

Shaw v. Reno.?2 As described more fully below, the Shaw 

cases have created legal and political confusion. Exhibit A 

for that proposition is the Shaw litigation itself. Congres- 

sional redistricting in North Carolina has come befq 

this Court four times within the decade. And by the @ 

the Court has rendered a decision, the 2000 census may 

have triggered another round of redistricting in the state, 

starting the entire process of legislative enactment and 

litigation anew. 

The problem created by Shaw is that legislators and 

the lower courts no longer know the extent to which race 

can or should be taken into account in drawing district 

  

2 Cases following Shaw include Miller v. Johnson, 515 U.S. 
900 (1995), Shaw v. Hunt, 517 U.S. 899 (1996), Bush v. Vera, 517 

U.S. 952 (1996), Abrams v. Johnson, 521 U.S. 74 (1997), and Hunt 

v. Cromartie, 526 U.S. 541 (1999).  



  

lines. Indeed, the most recent decision of the court below 

has muddied the waters even further by invalidating a 

district that is not even majority black. The result of the 

confusion created by the Shaw cases has been to draw the 

federal courts increasingly, and unnecessarily, into the 

redistricting process. 

Shaw and its progeny have also created rules that 

@. special preferences to whites and shackle racial 

minorities with special disadvantages in redistricting. In 

the wake of Shaw we are witnessing a systematic attack 

on majority-minority districts, which threatens to erode 

the gains in minority political participation accumulated 

so laboriously since passage of the Voting Rights Act of 

1963, 42° U.S.C. § 1973 ¢f sey. 

This Court has acknowledged that states may legit- 

‘imately consider race in redistricting for a variety of 

reasons —- to overcome the effects of prior and continuing 

discrimination, to comply with the Fourteenth Amend- 

ment and the Voting Rights Act, or simply to recognize 

& common interests of communities that have a particu- 

ar racial or ethnic makeup. Amicus submits that, prior to 

the millennium census and the next round of redistrict- 

ing, the Court should frankly admit that the Shaw cases 

demand reconsideration, and that federal judicial intru- 

sion in redistricting is warranted only when the creation 

of majority-minority districts causes cognizable harm, 

such as the denial or abridgment of the right to vote or 

participate equally in the electoral process.3 

  

3 Two members of the Court have stated or implied that 

they would abandon Shaw. See Bush v. Vera, 517 U.S. at 1005 (“I 

   



II. The Voting Rights Act and the Importance of 

Majority-Minority Districts 

On the eve of passage of the Voting Rights Act there 

were fewer than 100 black elected officials in the entire 11 

states of the Old Confederacy. See U.S. Commission on 

Civil Rights, Political Participation 15 (1968). By Januar 

1997 the number had increased to 5,456. See Joint cen 

for Political and Economic Studies, Black Elected Officials: 

A Statistical Summary 9 (1998).4 This increase was caused 

primarily by the creation of majority-minority districts 

pursuant to the preclearance provisions of Section 5 of 

the Act, 42 U.S.C. § 1973c, and the vote dilution provi- 

sions of Section 2 of the Act, 42 U.S.C. § 1973.5 Any 

  

would return to the well-traveled path that we left in Shaw 1”) 
(Stevens, J., dissenting); id. at 1074 (“while I take the commands 

of stare decisis very seriously, the problems with Shaw and its 
progeny are themselves very serious”) (Souter, J., dissenting). 
Where “the lessons of experience” have shown a decision to be 
wrong or unworkable, the Court has not hesitated to overrul 

United States v. Scott, 437 U.S. 82, 101 (1978). 

4 This is not to suggest, however, that blacks in the South 

hold office in anything approaching their percent of the 
population. While blacks are 19.2% of the region’s population, 

they are only 6.6% of its elected officials. Black Elected Officials at 
10. 

> This Court has recognized the tendency of at-large 
elections to submerge or dilute the voting strength of cohesive 
minority communities “by permitting the political majority to 
elect all representatives of the district.” Rogers v. Lodge, 458 
U.S. 613, 616 (1982). The use of majority-minority districts has 
been an obvious, and successful, way of countering the 

debilitating effects of at-large bloc voting by the majority. 
Thornburg v. Gingles, 478 U.S. 30, 50 (1986).  



  

doubts in that regard were effectively eliminated by pub- 

lication of Quiet Revolution in the South (C. Davidson & B. 

Grofman eds., 1994), the most comprehensive, systematic 

study ever undertaken of the Voting Rights Act.® In par- 

ticular, that study supports three critical findings: 

First, the increase in the number of blacks 
elected to office in the South is a product of the 

A increase in the number of majority-black dis- 
tricts and not of blacks winning in majority- 
white districts. Second, even today black popu- 
lations well above 50 percent appear necessary 
if blacks are to have a realistic opportunity to 
elect representatives of their choice in the South. 
Third, the increase in the number of black dis- 

tricts in the South is primarily the result not of 
redistricting changes based on population shifts 
as reflected in the decennial census but, rather, 

of those required by the Voting Rights Act. 

Lisa Handley & Bernard Grofman, “The Impact of the 

Voting Rights Act on Minority Representation: Black 

Officeholding in Southern State Legislatures and Con- 

ressional Delegations” in Quiet Revolution at 335-36. 

The impact of the Act has been particularly visible 

and dramatic at the congressional level. Fifteen new 

majority-minority congressional districts were created in 

  

6 Quiet Revolution was a collaborative effort by 27 political 
scientists, historians, and lawyers funded by the National 
Science Foundation. According to Professor Richard Pildes, 
Quiet Revolution is “[u]tterly free of ideological cant . . . [and] 
presents the most sober, comprehensive, and significant 
empirical study of the precise effects of the VRA ever 
undertaken.” Richard H. Pildes, “The Politics of Race,” 108 

Harv. L. Rev. 1359, 1362 (1995). 

   



the South in the 1980s and 1990s as a result of litigation, 

the threat of litigation, or the Section 5 preclearance pro- 

cess.” 

The increase in majority black districts was followed 

by an increase in black elected officials. Seventeen of the 

majority-minority congressional districts — and @ 

the majority white districts — elected a black in 1992. 1990 

  

7 Vote dilution litigation in the 1980s produced majority 
black districts in Georgia (the 5th) (Busbee v. Smith, 549 F. Supp. 
494 (D.D.C. 1982)), Louisiana (the 2d) (Major v. Treen, 574 

F. Supp. 325, 355 (E.D.La. 1983)), and Mississippi (the 2d) 

(Jordan v. Winter, 604 F. Supp. 807, 813 (N.D.Miss. 1984)). 
Similar litigation in the 1990s produced a majority black 
congressional district in Alabama (the 7th) (Wesch v. Hunt, 785 

F. Supp. 1491, 1498-99 (S.D.Ala. 1992)), two in Florida (the 3d 

and 17th), and a third (the 23d) in which blacks and Hispanics 

combined were the majority (DeGrandy v. Wetherell, 794 
F. Supp. 1076, 1088 (N.D.Fla. 1992)), and one in South Carolina 

(the 6th) (Burton v. Sheheen, 793 F. Supp. 1329, 1367-69 (D.S.C. 

1992)). During the 1990s Section 5 objections, or threat 

objections, by the Attorney General also resulted in the “9 

of two additional majority black districts in Georgia (the 2d and 
11th) (Johnson v. Miller, 864 F. Supp. 1354, 1366 (S5.D.Ga. 1994)), 

one additional district in Louisiana (the 4th) (Hays v. Louisiana, 

839 F. Supp. 1188, 1196 n.21 (W.D.La. 1993)), and two in North 
Carolina (the 1st and 12th) (Shaw v. Barr, 808 F. Supp. 461, 464 
(E.D.N.C. 1992)). The threat of litigation or objections to 
preclearance by civil rights organizations was a factor in the 
creation of a second majority black district in Texas (the 13th) 
(Vera v. Richards, 861 F. Supp. 1304, 1315 (S.D.Tex. 1994)), and 

one in Virginia (the 3d). See Bill Wasson, “Wilder Plan Expected 

to Win Assembly OK,” The Richmond News Leader, Dec. 3, 

1991, p. 1. The two other majority-minority districts in the South 
were the 9th (majority black) in Memphis, and the 18th 
(majority black and Hispanic) in Texas. Michael Barone & Grant 
Ujifusa, The Almanac of American Politics 1974 (1973).  



  

U.S. Census, Population and Housing Profile, Congres- 

sional Districts of the 103rd Congress, C.Q. Weekly Report, 

V. 51, 3473-878 

III. Challenges to Majority Black and Hispanic Dis- 
tricts 

“ The Voting Rights Act was perhaps the victim of its 

n success. Following the 1992 elections the courts were 

flooded with challenges by white voters who claimed that 

the majority black districts were unconstitutional racial 

gerrymanders.® Lawsuits challenging congressional plans 

were filed in North Carolina (Shaw v. Barr, 808 F. Supp. at 

465-66), Texas (Vera v. Richards, 861 F. Supp. at 1309), 

Louisiana (Hays v. Louisiana, 839 F. Supp. at 1190-91), 

Florida (Johnson v. Mortham, 926 F. Supp. 1460 (N.D.Fla. 

  

8 There were also substantial increases in the number of 
majority-minority state legislative districts and a corresponding 
increase in black legislators following the 1990 redistricting. In 

e South, the number of black state senators increased from 43 

(0 and the number of black house members from 159 to 213. 

avid A. Bositis, Redistricting and Representation: The 
Creation of Majority-Minority Districts and the Evolving Party 
System in the South 46-7 (Joint Center for Political and 

Economic Studies, 1995). 

? Since all districting is designed to advance the interests of 
particular voters or groups, e.g., incumbents, Democrats, 

farmers, coastal residents, suburbanites, etc., one leading expert 

has said that “[a]ll districting is ‘gerrymandering.’ ” Robert G. 
Dixon, Jr., Democratic Representation: Reapportionment in Law 
and Politics 462 (1968). In Davis v. Bandemer, 478 U.S. 109, 132 

(1986), this Court defined a gerrymander as an electoral 
arrangement that denies or degrades “a voter’s or a group of 
voters’ influence on the political process as a whole.” 

   



1996)), New York (Diaz v. Silver, 932 F. Supp. 462 

(E.D.N.Y. 1996)), Virginia (Moon v. Meadows, 952 F. Supp. 

1141 (E.D.Va. 1997)), Georgia (Johnson v. Miller, 864 

E. Supp. at 1359), Illinois (King v. State Board of Elections, 

979 F. Supp. 582 (N.D.IIl. 1996)), and South Carolina 

(Leonard v. Beasley, Civ. No. 3:96-CV-3540 (D.S.C.)).10 

  

This litigation reflected a well established a 

pattern. As this Court and others have observed, political 

mobilization in the black community, particularly in the 

South, has rarely gone unopposed since Reconstruction 

onwards. South Carolina v. Katzenbach, 383 U.S. 301, 310 

(1966) (noting the adoption by various southern states 

beginning in 1890 of tests “specifically designed to pre- 

vent Negroes from voting”). See also J. Morgan Kousser, 

The Shaping of Southern Politics: Suffrage Restriction and the 

Establishment of the One-Part South, 1880-1910 (1974); Paul 

Lewinson, Race, Class, and Party: A History of Negro Suf- 

frage and White Politics in the South (1932); Armand 

Derfner, “Racial Discrimination and the Right to Vote,” 

Vand. L. Rev. 523 (1973). In modern times the Voting 

Rights Act, which has been the single most effective tool 

of black enfranchisement in our nation’s history, has 

  

10 Similar challenges were filed against majority black state 

legislative districts in South Carolina (Smith v. Beasley, 946 
F. Supp. 1174, 1175 (D.S.C. 1996)), Florida (Scott v. United States 

Dept. of Justice, 920 F. Supp. 1248 (M.D.Fla. 1996)), Texas 

(Thomas v. Bush, No. A-95-CA 18655 (W.D.Tex.)), Georgia 

(Johnson v. Miller, 929 F. Supp. 1529 (S.D.Ga. 1996)), Louisiana 
(Currie v. Foster, No. 97-CV-368 (W.D.La.)), North Carolina 

(Daly v. High, No. 5:96 CV 86-V (W.D.N.C.)), Ohio (Quilter v. 

Voinovich, 912 F. Supp. 1006 (N.D.Oh. 1995)), and Alabama 
(Rice v. Smith, 988 F. Supp. 1437 (M.D.Ala. 1977)).  



  

10 

become a natural lightning rod for this opposition. See, 

e.g., Frank R. Parker, Black Votes Count 34-5 (1987) 

(describing as a “massive resistance” campaign the 

efforts by Mississippi's white leadership to blunt the 

increase in black voter registration after passage of the 

1965 Act).11 

The first of the modern reverse discrimination cases 

@-.. the Court following the 1990 census was Shaw wv. 

Reno, a challenge to congressional redistricting in North 

Carolina and a precursor to this case.12 In Shaw, the Court 

held that plaintiffs who alleged that districts were 
“bizarre” or “irrational” in shape, and were “unexplain- 

able on grounds other than race,” stated a claim for relief 

  

11 Similar efforts in other southern states to thwart the civil 

rights acts of 1957, 1960, 1964, and 1965 are discussed in the 

various state chapters in Quiet Revolution. 

12 Tt is not surprising that the latest backlash erupted in the 
context of congressional redistricting. The creation of majority 
black districts for county commissions and city councils, while 

gi ortant at the local level and by no means uncontroversial, 

$. the visibility and impact of the creation of majority black 
districts for Congress. Members of Congress, axiomatically, 
wield national political power, and the election of blacks to 

national office is more likely to galvanize attention and 
opposition. There was also the critical issue of the sheer number 
of blacks elected to Congress. Courts and social scientists have 
frequently commented on the “tipping phenomenon,” where 
whites flee a neighborhood or the public schools when the 
perception takes hold that there has been “too much” 
integration. See, e.g., A. Leon Higginbotham, Jr, Gregory A. 
Clarick & Marcella David, “Shaw v. Reno: A Mirage of Good 
Intentions with Devastating Racial Consequences,” 62 Ford. L. 
Rev. 1593, 1632 n.194 (1994). The unprecedented success of black 
congressional candidates in the 1992 elections was undoubtedly 
a tipping event for many whites. 

   



11 

under the equal protection clause of the Fourteenth 

Amendment. 509 U.S. at 643, 658. 

Two years later the Court expanded on Shaw when it 

held that a bizarre district shape was not a prerequisite 

for a constitutional challenge but was simply one way 

proving a suspect racial classification or purpose. ® 

Miller v. Johnson, 515 U.S. at 911. As the Court explained 

in Miller, a plaintiff could establish 

either through circumstantial evidence of a dis- 
trict’s shape and demographics or more direct 
evidence going to legislative purpose, that race 

was the predominant factor motivating the leg- 
islature’s decision to place a significant number 
of voters within or without a particular district. 

Id. at 916. In sum, the plaintiffs’ burden under Miller is to 

“show that the State has relied on race in substantial 

disregard of customary and traditional districting pr 

tices.” Id. at 928 (O'Connor, J., concurring). 

    

Applying the rules in Shaw and Miller, the Court has 

struck down majority-minority districts in North Carolina 

(the 12th) (Shaw v. Hunt, 517 U.S. at 918), Georgia (the 

11th) (Miller v. Johnson, 515 U.S. at 927) (the 2d) (Abrams v. 

Johnson, 521 U.S. at 90), and Texas (the 18th, 29th, and 

30th) (Bush v. Vera, 517 U.S. at 957). Lower courts have 

done the same to majority-minority congressional dis- 

tricts in Florida (the 3d) (Johnson v. Mortham, 926 F. Supp. 

at 1495), Virginia (the 3d) (Moon v. Meadows, 952 F. Supp. 

at 1150), Louisiana (the 4th) (Hays v. Louisiana, 936  



  

12 

FE. Supp. 360, 371 (W.D.La. 1996)), and New York (the 

12th) (Diaz v. Silver, 978 F. Supp. 96 (E.D.N.Y. 1997)).13 

There is nothing sinister or unlawful about the 

desires or efforts of whites to elect candidates of their 

choice, including candidates of their own race. To the 

contrary, the “freedom to associate with others for the 

common advancement of political beliefs and ideas is a 
form of ‘orderly group activity’ protected by the First and 

Fourteenth Amendments.” Kusper v. Pontikes, 414 U.S. 51, 

56-7 (1973) (quoting NAACP v. Button, 371 U.S. 415, 430 

(1963)). What is indefensible is that under the Shaw cases 

the freedom of whites to associate for the common advan- 

cement of political beliefs and ideas, including the right 

to construct and run in majority white districts, is 

deemed constitutionally protected, while the comparable 

efforts of blacks and other nonwhites are deemed consti- 

tutionally suspect. 

  

13 Not all the Shaw/Miller challenges have succeeded. The 
Court summarily affirmed without opinion lower court 
decisions rejecting challenges to congressional plans in 
California (DeWitt v. Wilson, 515 U.S. 1170 (1995)), and Illinois 
(King v. Illinois Board of Election, 522 U.S. 1087 (1998)), aff’g, 
979 FE. Supp. 582, 619 (N.D.I1l. 1996), as well as a legislative plan 
in Ohio (Quilter v. Voinovich, 981 E. Supp. 1032 (N.D.Oh. 1997), 
aff'd, 523 U.S. 1043 (1998). The Court also affirmed the decision 
of the district court rejecting a challenge to a legislative 
redistricting settlement in Florida. Lawyer v. Department of 
Justice, 521 U.S. 567 (1997). 

   



13 

IV. The Shaw /Miller Standards Are Unworkable 

The Shaw/Miller standards have left legislators in a 

quandary as to when the consideration of race in redis- 

tricting is impermissible, permissible, or required. 

According to the Court, a legislature may properly “be 

aware of racial demographics,” but it may not allow r 

to predominate in the redistricting process. Miller v, N 

son, 515 U.S. at 916. A state “is free to recognize commu- 

nities that have a particular racial makeup, provided its 

action is directed toward some common thread of rele- 

vant interests.” Id. at 920. Redistricting may be performed 

“with consciousness of race.” Bush v. Vera, 517 U.S. at 958. 

Indeed, it would be “irresponsible” for a state to disre- 

gard the racial fairness provisions of the Voting Rights 

Act. Id. at 991-92 (O'Connor, J., concurring). A state may 

therefore “create a majority-minority district without 

awaiting judicial findings” if it has a strong basis in 

evidence for avoiding a Voting Rights Act violation. Id. at 

994. Even the Court has acknowledged that it “may 

difficult” to make and apply such distinctions. Miller v. 

Johnson, 515 U.S. at 916. 

The Justices who have disagreed with the Court's 

new decisions have at various times said that the Shaw 

standards are “unworkable,” Abrams v. Johnson, 521 U.S. 

at 116 (Breyer, J., dissenting), Bush v. Vera, 517 U.S. at 1074 

(“[t]he Court has been unable to provide workable stan- 

dards”) (Souter, J. dissenting), are “a jurisprudential wil- 

derness that lacks a definable constitutional core,” Bush v. 

Vera, 517 U.S. at 1005 (Stevens, J., dissenting), and “ren- 

der[ | redistricting perilous work for state legislatures,”  



  

14 

Miller v. Johnson, 515 U.S. at 949 (Ginsburg, J., dissent- 

ing).14 The fact that congressional redistricting in North 
Carolina is now before the Court for the fourth time in 

seven years is proof of just how unworkable the stan- 

dards are and how perilous the redistricting process has 
become. 

Moreover, Shaw, which was presumably limited to 

majority-minority districts and instances where a juris- 

diction subordinated its traditional redistricting princi- 

ples to race, was used by the court below to invalidate a 

majority white district. It is difficult now to know how 

the rules in Shaw can be confined or applied in any 

principled or reliable way. 

Because of the absence of clear and reliable standards 

the courts have increasingly been drawn into redistrict- 

ing, which this Court has recognized “is primarily the 

duty and responsibility of the State through its legislature 

  

14 The views of the dissenters are widely shared by others. 
See, e.g., Higginbotham, et al., 62 Ford. L. Rev. at 1603 

(describing Shaw as “obscure”); Frank R. Parker, “The 

Constitutionality of Racial Redistricting: A Critique of Shaw v. 
Reno,” 3 D. Col. L. Rev. 1, 43 (1995) (the Shaw standards are 

“vague and subjective”); Bernard Grofman & Lisa Handley, 
“1990s Issues in Voting Rights,” 65 Miss. L. J. 205, 215 (1995) 
(Shaw “did not establish clearly manageable standards”); J. 

Morgan Kousser, Colorblind Injustice 368 (1999) (“Shaw v. Reno 
and its successors are revolutionary, contradictory, and 
incoherent”); T. Alexander Aleinikoff & Samuel Issacharoff, 

“Race and Redistricting: Drawing Constitutional Lines After 
Shaw v. Reno,” 92 Mich. L. Rev. 588, 651 (1993) (“[a]t the end of 
the day, Shaw remains an enigmatic decision”); Pamela S. 

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

   



15 

or other body, rather than of a federal court.” Chapman v. 

Meier, 420 U.S. 1, 27 (1975). Accord, Growe v. Emison, 507 

U.S. 25, 34 (1993). State legislatures “are by far the best 

situated to identify and then reconcile traditional state 

policies.” Connor v. Finch, 431 U.S. 407, 414-15 (1977). 

Federal courts, by contrast, “possess no distinctive man- 

date to compromise sometimes conflicting state rol 

tionment policies in the people's name.” Id. at 415: 

Though the Court often recites its adherence to these 

principle, Abrams v. Johnson, 521 U.S. at 101, it has none- 

theless affirmed a court drawn plan in Georgia that had 

“Interstate Eighty-Five as a very real connecting cable,” 

Johnson v. Miller, 922 F. Supp. 1552, 1564 (5.D.Ga. 1995), 

while declaring unconstitutional a district in North Caro- 

lina drawn along the very same highway. Shaw v. Reno. 

Whether or not a major highway is a connecting cable 

joining communities of interest is precisely the sort of 

political choice that should be left to state legislatures, 

and not the federal courts. 

Faced with the prospect of being sued for a constit 

tional violation if they create majority-minority districts 

and sued for a Voting Rights Act violation if they do not, 

states will be strongly tempted to leave redistricting to 

the federal courts.’> And those that do not will likely end 

  

15 That is what Georgia did. After the remand in Miller v. 
Johnson, the legislature met in special session to redistrict the 
Congress. After several weeks of discussion and plan drawing, 
the legislature adjourned without taking action, leaving 
redistricting to the federal court. Abrams v. Johnson, 521 U.S. at 
78. The chair of the senate reapportionment committee 
lamented that “[nJobody knows what they're doing.” Mark 
Sherman, “Redrawn Districts Expected To Face Challenge,” 
Atlanta Journal & Constitution, Aug. 2, 1995, p- B6.  



  

16 

up in court anyway. The flood of litigation generated by 

Shaw is itself proof of the accuracy of Justice Breyer’s 

observation that, given the subjective nature of the appli- 

cable standards, “[a]ny redistricting plan will generate 

potentially injured plaintiffs, willing and able to carry on 

their political battles in a judicial forum.” Abrams v. John- 

son, 521 U.S. at 118 (dissenting). 

V. Majority White and Majority Nonwhite Districts; 
Dual Racial Standards 

One principle that does emerge with disturbing clar- 

ity from the Shaw cases is that they “place at a dis advan- 

tage the very group, African Americans, whom the Civil 

War Amendments sought to help.” Abrams v. Johnson, 521 

U.S. at 118 (Breyer, J., dissenting). The Court has never 

invalidated a majority white district on account of its 

bizarre shape, or because the jurisdiction subordinated its 

traditional redistricting principles to race, although there 

is a long and continuing history of protecting white 

incumbents through the creation of majority white dis- 

tricts, including those that are highly irregular in shape 

and disregard “traditional” districting principles.é 

For example, the Congressional Quarterly has 

described District 4 in Tennessee (96% white) as “a long, 

sprawling district, extending nearly 300 miles . . . from 

  

16 Gomillion v. Lightfoot, 364 U.S. 339 (1960), is not to the 
contrary. In Gomillion, the Court held that the redefinition of the 
city of Tuskegee’s boundaries “was not an ordinary geographic 
redistricting measure” but was subject to challenge because it 
removed most of the city’s black residents denying them “the 
right to vote in municipal elections.” 364 U.S. at 341. 

   



17 

east to west it touches four States — Mississippi, Alabama, 

Kentucky, and Virginia.” Congressional Quarterly, Inc., 

Politics in America 1994: 103rd Congress 1418 (Phil Duncan 

ed., 1993). The 11th District in Virginia (81% white) has “a 

shape that vaguely recalls the human digestive tract.” Id. 

at 1602. District 9 in Washington (85% white) has a 

“ ‘Main Street’ [which] is a sixty-mile stretch of Interst: 

5.” Id. at 1635. District 13 in Ohio (94% white) “centers 

around two distinct sets of communities . . . [tJhe Ohio 

Turnpike is all that connects the two.” Id. at 1210. Yet no 

court, even after Shaw, has held or suggested that any of 

these oddly shaped districts is constitutionally suspect. 

To the contrary, such majority white districts have 

always been regarded as immune from challenge under 

the Court's often stated principle that a regular looking 

district shape was not a federal constitutional require- 

ment. See Gaffney v. Cummings, 412 U.S. 735, 752 n.18 

(1973) (district “compactness or attractiveness has never 

been held to constitute an independent federal requirgs 

ment”). Even Shaw v. Reno acknowledged that a comp 

district shape was “not . . . constitutionally required,” 509 

U.S. at 647, an acknowledgment, however, that is difficult 

to reconcile with the Court’s contradictory holding that 

“reapportionment is one area in which appearances do 

matter,” id. at 647, and that the 12th District in North 

Carolina was subject to challenge because of its non- 

compact, or “extremely irregular,” shape. Id. at 642. 

In the Texas redistricting case, filed in 1994, the plain- 

tiffs challenged 24 of the state’s 30 congressional districts, 

18 of which were majority white. See Vera v. Richards, 861 

E. Supp. at 1309. The district court invalidated just three 

districts, the only two that were majority black and one  



  

18 

that was majority Hispanic. Id. at 1343-44. The court 

admitted that the other districts were irregular or bizarre 
in shape, but held that they were constitutional because 

they were “disfigured less to favor or disadvantage one 

race or ethnic group than to promote the re-election of 

incumbents.” Id. at 1309. Thus, the oddly shaped majority 

white districts, designed to keep white incumbents in 

office, were tolerable as “political” gerrymanders, while 

the oddly shaped majority black districts, designed to 

provide black voters the equal opportunity to elect candi- 

dates of their choice, were intolerable as “racial” gerry- 

manders. 

On appeal, this Court affirmed. According to the 

Court “political gerrymandering” was not subject to strict 

scrutiny. Bush v. Vera, 517 U.S. 964. For that reason “irreg- 

ular district lines” could be drawn for “incumbency pro- 

tection” and “to allocate seats proportionately to major 

political parties.” Id. See also id. at 999 (“[d]istricts not 

drawn for impermissible reasons or according to imper- 

missible criteria may take any shape, even a bizarre one”) 

(Kennedy, J., concurring). Amicus respectfully submits 

that the creation of a dual standard in redistricting 
depending on whether a district is majority white or 

majority nonwhite is inconsistent with fundamental 

notions of equal protection under the Fourteenth Amend- 

ment. 

The Shaw cases have also established special standing 

rules to facilitate challenges by white voters to majority- 

minority districts. The Court has described standing as 

“an essential and unchanging part of the case-or-contro- 

versy requirement of Article III,” that includes, among 

other things, the requirement of “an ‘injury in fact’ — an 

   



19 

invasion of a legally protected interest which is . . . 

concrete and particularized.” Lujan v. Defenders of Wildlife, 

504 U.S. 555, 560 (1992). 

In Shaw v. Reno, however, the plaintiffs “did not claim 

that the General Assembly’s reapportionment plan 

unconstitutionally ‘diluted’ white voting strength.” S/ 

v. Reno, 509 U.S. at 641.177 Even more dramatically, the 

three-judge court in Miller made an express finding that 

“the plaintiffs suffered no individual harm; the 1992 con- 

gressional redistricting plans had no adverse conse- 

quences for these white voters.” Johnson v. Miller, 864 

F. Supp. at 1370. The lack of a concrete and personal 

injury should have denied both the Shaw and Miller plain- 

tiffs standing to bring their cases to federal court. 

   

The Court nonetheless found that the plaintiffs in 

each case had standing because they alleged that their 

right to participate in a “color-blind” electoral process 

had been violated. Shaw v. Reno, 509 U.S. at 641; Mille 

Johnson, 515 U.S. at 911 (the essence of plaintiffs’ equal 

protection claim is not that their voting strength has been 

minimized or canceled out, but “that the State has used 

race as a basis for separating voters into districts”). The 

injury identified by the Court was in being “stereotyped” 

  

17 Nor, as Justice White pointed out, could they. Whites 
were 79% of the state’s voting age population but a majority in 
ten (83%) of its 12 congressional districts. Shaw v. Reno, 509 U.S. 

at 666-67 (White, J., dissenting). One commentator has 

described the Shaw plaintiffs “not as injured parties, but as 
spoilers, intent on eliminating the new majority-black districts 
as a matter of principle.” Parker, 3 D. Col. L. Rev. at 9.  



  

20 

or “stigmatized” by a racial classification. Miller v. John- 

son, 515 U.S. at 912; Shaw v. Reno, 509 U.S. at 643. 

In prior cases involving black plaintiffs, however, the 

Court held that a similar abstract, hypothetical, or stig- 

matic injury was not sufficient to confer standing to chal- 

lenge discriminatory governmental action. For example, 

in Allen v. Wright, 468 U.S. 737, 754 (1984), the Court 

rejected a challenge by blacks to alleged discrimination 

by the Internal Revenue Service because “stigmatic 

injury, or denigration” suffered by members of a racial 

group when the Government discriminates on the basis 

of race was insufficient harm to confer standing. Allow- 
ing standing in the absence of direct injury would, 

according to the Court, “transform the federal courts into 

‘no more than a vehicle for the vindication of the value 

interests of concerned bystanders.” ” Id. at 756 (quoting 

United States v. Students Challenging Regulatory Agency 

Procedures, 412 U.S. 669, 687 (1973)). 

Shaw and Miller have thus established a liberal rule of 

standing in the absence of direct injury for whites chal- 

lenging majority-minority districts that is different from 

the restrictive rule of standing applied to blacks challeng- 

ing official action as being discriminatory. 

In addition, Shaw also relaxed the requirement that 

white plaintiffs prove the state intended to discriminate 

against them in enacting a challenged redistricting plan. 

The Shaw v. Reno plaintiffs did not claim that the state’s 

plan was enacted for the purpose of diluting white voting 

strength. 509 U.S. at 641. Indeed, the legislature’s admit- 

ted purpose in creating majority black districts was the 

entirely nondiscriminatory one of complying with the 

   



21 

Voting Rights Act. Id. at 635, 655. The Court reasoned, 

however, that even though a districting plan was facially 

neutral, a racial classification was apparent or “express” 

where a majority black district had a “bizarre” shape, and 

that accordingly “[n]o inquiry into legislative purpose is 

necessary.” Id. at 642.18 This is markedly different than 

the standard applied by the Court in other civil rif) 

contexts. 

Since Washington v. Davis, 426 U.S. 229 (1976), the 

Court has required proof of a discriminatory purpose to 

establish a violation of the Fourteenth Amendment. And 

in City of Mobile v. Bolden, 446 U.S. 55 (1980), the Court 

applied that rule to the voting context. In setting aside a 

constitutional challenge by black voters to municipal at- 

large elections, the Court stressed that “only if there is 

purposeful discrimination can there be a violation of the 

Equal Protection Clause.” Id. at 66. Even proof that black 

  

18 The cases principally relied upon by the Co 
Personnel Administrator of Massachusetts v. Feeney, 442 4 

256 (1979), and Arlington Heights v. Metropolitan Housing 
Development Corp., 429 U.S. 252 (1977), do not support its 
analysis. In Arlington Heights, the Court held that a severe 
discriminatory impact may support an inference of 
discriminatory purpose, but that “[p]roof of racially 
discriminatory intent or purpose is required to show a violation 
of the Equal Protection Clause.” 429 U.S. at 265. In Feeney, in a 
passage omitted in Shaw v. Reno, the Court held that “even if a 
neutral law has a disproportionately adverse effect upon a racial 
minority, it is unconstitutional under the Equal Protection 

Clause only if that impact can be traced to a discriminatory 
purpose.” 442 U.S. at 272. A fortiori, the cases relied upon by the 
Court do not support the proposition that a facially neutral 
classification that has no discriminatory impact can be 
unconstitutional absent proof of a discriminatory purpose.  



  

22 

voting strength in the city had been diluted was, accord- 

ing to the Court, “most assuredly insufficient to prove an 

unconstitutionally discriminatory purpose.” Id. at 73. 
Accord, City of Memphis v. Greene, 451 U.S. 100, 119 (1981) 

(“the absence of proof of discriminatory intent forecloses 

any claim that the official action challenged in this case 

violates the Equal Protection Clause”). 

Shaw/Miller’s new cause of action based on bizarre 

district shape, new dual standard depending on whether 

a district is majority white or non-white, and absence of 

the requirements of showing a discriminatory purpose 

and effect now allow the Fourteenth Amendment, which 

was intended to prohibit discrimination against minor- 

ities, see The Slaughter-House Cases, 83 U.S. (16 Wall) 36, 81 

(1873) (the Fourteenth Amendment was adopted to rem- 

edy “discrimination against the negroes as a class, or on 

account of their race”), to be used to destroy majority- 

minority districts and deprive blacks of equal political 

opportunities. 

VI. Mistaken Assumptions about Segregation 

The underlying premise of the redistricting decisions 

is that creating nonwhite majority districts is a form of 

“segregation” which harms individuals and society. Shaw 

v. Reno, 509 U.S. at 641. Under this view, individuals are 

harmed because of “the offensive and demeaning 

assumption that voters of a particular race, because of 

their race, ‘think alike, share the same political interests, 

and will prefer the same candidates at the polls.” ” Miller 

v. Johnson, 515 U.S. at 911-12. Society is allegedly harmed 

because “ ‘[r]acial gerrymandering . . . may balkanize us 

   



23 

into competing racial factions.”” Id. As demonstrated 

below, each of these premises is seriously flawed. 

The majority-minority districts in the South created 

after the 1990 census, far from being segregated, were the 

most racially integrated districts in the country. They con- 

tained an average of 45% non-black voters. Bositis, Rega 

tricting and Representation at 28. No one familiar vin 

Crow could confuse the highly integrated redistricting 

plans of the 1990s with racial segregation under which 

blacks were not allowed to vote or run for office. As 

Justice Stevens has recognized, plans containing majority- 

minority districts are a form of “racial integration.” Miller 

v. Johnson, 515 U.S. at 932 (Stevens, J., dissenting). More- 

over, the notion that majority black districts are “segre- 

gated,” and that the only integrated districts are those in 

which whites are the majority, is precisely the sort of race 

based concept which the Court has consistently deplored. 

The premises of Shaw and Miller are flawed for the 

further reason that race is not simply an amp 

“stereotype.” Race is admittedly not a scientific or genetic 

fact,1® but it is a social and political fact of American life. 

See generally Nathan Glazer, “Reflections on Citizenship 

and Diversity,” in Diversity and Citizenship: Rediscovering 

American Nationhood (Gary J. Jacobsohn & Susan Dunn 

eds., 1996). Indeed, it is the acknowledgment of that fact 

that led Congress to enact the Voting Rights Act. See 

South Carolina v. Katzenbach, 383 U.S. at 337 (describing 

  

19 See Critical Race Theory: The Concept of “Race” in 
Natural and Social Science ix (E. Nathaniel Gates ed., 1997) 

(scientists are now agreed that “race” has “no scientifically 
verifiable referents”).  



  

24 

the purpose of the Act to insure that “millions of non- 

white Americans will now be able to participate for the 
first time on an equal basis in the government under 

which they live”). 

Lower courts applying the Act have reached the 

same conclusion. In Miller v. Johnson, for example, the 

trial court concluded that racial discrimination was such 

a pervasive feature of life in Georgia that it took judicial 

notice of it and dispensed with any requirement that it be 

proved. The district court also acknowledged that, on the 

basis of existing statewide racial bloc voting patterns, the 

Voting Rights Act required the creation of a majority 

black congressional district in the Atlanta metropolitan 

area to avoid dilution of black voting strength. Johnson v. 

Miller, 922 F. Supp. at 1568. Given the existence of racial 

bloc voting, treating blacks and whites as often having 

different voting preferences is to acknowledge reality, not 

indulge stereotypes. 

Nor is there any evidence that majority-minority dis- 

tricts have either caused or increased social or other 

harm. In 1982, opponents of the amendment of Section 2 

claimed that the creation of majority-minority districts 

would “deepen the tensions, fragmentation and outright 

resentment among racial groups,” Voting Rights Act: 

Hearings Before the Subcomm. on the Constitution of the 

Senate Comm. on the Judiciary, 97th Cong., 2d Sess. 662 

(1982) (statement of John H. Bunzel), “pit race against 

race,” id. at 745 (statement of Michael Levin), “foster 

polarization,” id. at 1328 (statement of Donald L. 

Horowitz), and “compel the worst tendencies toward 

race-based allegiances and divisions.” Id. at 1449 (letter 

from William Van Alstyne). Congress considered and 

   



25 

rejected these claims because there was no evidence to 

support them. It concluded that the amendment would 

not “be a divisive factor in local communities by empha- 

sizing the role of racial politics.” S.Rep. No. 417, 97th 

Cong., 2d Sess. at 32-3 (1982). It found there was “an 

extensive, reliable and reassuring track record of coyrt 

decisions using the very standard which the Commi 

bill would codify.” Id.20 

None of the Shaw cases, moreover, indicate that any 

of the theoretical harms suggested by the majority have 

in fact come to pass. In Miller v. Johnson, the witnesses at 

trial testified without contradiction that the challenged 

plan had not increased racial tension, caused segregation, 

imposed a racial stigma, deprived anyone of representa- 

tion, caused harm, or guaranteed blacks congressional 

seats. Johnson v. Miller, Trial Transcript, Vol. III, p. 268; 

Vol. IV, pp. 194, 106, 239, 240, 242; Vol. VI, pp. 36, 38, 45, 

47, 56, 58, 117, 120. The district court concluded that “ 

1992 congressional redistricting plans had no i 

consequences for these white voters.” Johnson v. Miller, 

864 EF. Supp. at 1370. 

  

20 In the political sphere, where Congress has “a specially 
informed legislative competence,” this Court has held that its 
duty is to determine only if there is “a basis upon which 
Congress might predicate a judgment” that a particular ‘practice 
was a valid means of carrying out the commands of the 
Constitution. Katzenbach v. Morgan, 384 U.S. 641, 656 (1966). 

Accord, South Carolina v. Katzenbach, 383 U.S. at 337. There 

clearly was a basis upon which Congress could conclude that 
majority-minority districts did not cause social or other harm 
and were thus a valid means of implementing the Fourteenth 
and Fifteenth Amendments.  



  

26 

The district court acknowledged as much in Hays v. 

Louisiana. Although holding the state’s congressional plan 

unconstitutional under Shaw, the district court nonethe- 

less noted “the great benefits that are derived by an 

increase in minority representation in government.” 862 

F. Supp. 119, 128 (W.D.La. 1994) (Shaw, J., concurring). 

Minority elected officials, the court wrote, “have shown 

that they perform admirably,” that their efforts in govern- 

ment “provide positive role models for all black citizens,” 

and that they “insure that the legal obstacles to minority 

advancement in all areas of life will be eliminated.” Id. 

In a similar vein, one veteran civil rights lawyer has 

said that, based on his experience in Mississippi: 

the creation of majority-minority districts and 

the subsequent election of minority candidates 

reduces white fear and harmful stereotyping of 

minority candidates, ameliorates the racial balk- 

anization of American society, and promotes a 

political system in which race does not matter as 
much as it did before. 

Frank R. Parker, “The Constitutionality of Racial Redis- 

tricting: A Critique of Shaw v. Reno,” 3 D. Col. L. Rew. 1, 

19-20 (1995). Indeed, in Abrams v. Johnson, 521 U.S. at 93, 

this Court read into the success of two black incumbents 

a “general willingness” of whites to vote for blacks. That 

“general willingness” was without doubt made possible 

by white exposure to black incumbents, whose election 

was made possible in the first instance by majority black 

districts. 

   



27 

VII. The Erroneous Comparison with Affirmative 
Action 

Prior to Shaw, the Court frequently noted that one of 

the essential purposes of redistricting was to “reconcile 

the competing claims of political, religious, ethnic, racial, 

occupational, and socioeconomic groups.” Davis v. Bag- 

demer, 478 U.S. at 147 (O'Connor, J., concurring). For » 

and other reasons, “legislators necessarily make judg- 

ments about the probability that the members of certain 

identifiable groups, whether racial, ethnic, economic, or 

religious, will vote in the same way.” City of Mobile v. 

Bolden, 465 U.S. at 87 (Stevens, J., concurring). See United 

Jewish Organizations of Williamsburg, Inc. v. Carey, 430 U.S. 

144, 176 n.4 (1977) (“[i]t would be naive to suppose that 

racial considerations do not enter into apportionment 

decisions”). 

Voting districts have regularly been drawn to accom- 

modate the interests of racial or ethnic groups, such as 

Irish Catholics in San Francisco, Italian-American 

South Philadelphia, Polish-Americans in Chicago, and 

Anglo-Saxons in North Georgia. See Miller v. Johnson, 515 

U.S. at 944-45 (Ginsburg, J., dissenting); Busbee v. Smith, 

549 F. Supp. at 502 (in the state’s 1980 congressional plan 

“keeping the cohesive [majority white] mountain coun- 

ties together was crucial”). The Court specifically rejected 

a challenge by white voters in 1977 to a New York plan 

that “deliberately used race in a purposeful manner” to 

create nonwhite majority state legislative districts in 

order to comply with the Voting Rights Act. United Jewish 

Organizations of Williamsburg, Inc. v. Carey, 430 U.S. at 165. 

The Court held that the use of race to insure fairness and  



  

28 

inclusiveness in redistricting did not impose a racial 

stigma and was proper where white voting strength was 

not diluted. Id. at 179-80. 

In requiring strict scrutiny of nonwhite majority dis- 

tricts, i.e., a showing that the districts are “narrowly 

tailored to achieve a compelling interest,” Miller v. John- 

son, 515 U.S. at 920, the Miller majority drew heavily upon 

the affirmative action cases, indicating that majority- 

minority districts were simply another form of race based 

preferences. Miller v. Johnson, 515 U.S. at 904.21 Whether 

or not one thinks that the affirmative action cases were 

rightly decided, their application to redistricting ignores 

the fundamental distinction between the race conscious 

allocation of limited employment or contractual oppor- 

tunities and the far different task of reconciling the claims 

of political, ethnic, racial, and other groups in the redis- 

tricting process. See Shaw v. Reno, 509 U.S. at 675 (“efforts 

to remedy minority vote dilution are wholly unlike what 

typically has been labeled ‘affirmative action’ ”) (White, 

J., dissenting). If anything, the current challenges to affir- 

mative action only highlight the importance of assuring 

equal opportunity in the political process. 

  

21 In support of this proposition, Miller cited Adarand 
Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (subjecting to 
strict scrutiny “all racial classifications, imposed by whatever 
federal, state, or local governmental actor”), City of Richmond 

v. J.A. Croson, Co., 488 U.S. 469, 494 (1989) (declaring 
unconstitutional a municipal set aside for minority contractors), 
and Wygant v. Jackson Board of Ed., 476 U.S. 267, 274 (1986) 
(invalidating teacher layoff provisions of an affirmative action 
agreement). 

   



29 

In light of the Court's recent decisions, racial minor- 

ities are now the only group that is targeted for special 

disadvantages in redistricting. White groups of all 

description — political, religious, occupational, or socio- 

economic — may organize themselves freely and press for 

recognition in the redistricting process. The efforts of 

non-whites alone are subject to the exacting and debil{ 

ing standards of strict scrutiny. See James U. Blacksher, 

“Dred Scott's Unwon Freedom: The Redistricting Cases 

As Badges of Slavery,” 39 How. L. J. 633, 634 (1996) (“it is 

black and Latino citizens alone who may not choose to 

associate with each other freely and try to optimize their 

legislative influence in pursuit of a common political 

agenda”) (footnote omitted). Such a result cannot be rec- 

onciled with the purposes of the Fourteenth Amendment. 
As Justice Stevens wrote in Shaw: 

If it is permissible to draw boundaries to pro- 
vide adequate representation for rural voters, 
for union members, for Hasidic Jews, for Polish 

Americans, or for Republicans, it necessarily fol- i 
lows that it is permissible to do the same thing 
for members of the very minority group whose 
history in the United States gave birth to the 
Equal Protection Clause. 

509 U.S. at 679 (Stevens, J., dissenting). 

  ¢  



  

CONCLUSION 

For the reasons stated herein the judgment below 

should be reversed. To the extent that Shaw v. Reno and its 

progeny are inconsistent with that result, they should be 

reconsidered. 

Respectfully submitted, 

LAuGHLIN McDoNALD 

Counsel of Record 
NEL. BRADLEY 

CrisTINA CORREIA 

BRYAN SELLS 

American Civil Liberties 

Union Foundation 

2725 Harris Tower 

233 Peachtree Street 

Atlanta, GA 30303 

(404) 523-2721 

Counsel for Amicus Curiae 

  
 



 
 

 



  

    
® ly 

2311 Douglas S , i i ouglas Street ¥ 

Omaha, Norns 68102-1283 (OCKLE PRINTING (©. E-Mail Address: 

1-800-225-6964 cocklelaw@worldnet.att.net 

(402) 342-2831 Law Brief Specialists Web Site: 
Fax: (402) 342-4850 Since 4923 www.cocklelaw.com 

No. 99-1864 & 99-1865 
JAMES B. HUNT, JR., ET AL., Appellants, 

Y. 

MARTIN CROMARTIE, ET AL., Appellees. 

    

       
  

  

  

  

  

and 
ALFRED SMALLWOOD, ET AL., Appellants, 

Vv. 

MARTIN CROMARTIE, ET AL., Appellees. 

AFFIDAVIT OF SERVICE 

  

  

|, Andy Cockle, of lawful age, being duly sworn, upon my oath state that | did, on the 6 day 
of SEPTEMBER, 2000 , send out, postage prepaid, from Omaha, NE, 3 package(s) containing 
3 copies of the BRIEF OF AMICUS CURIAE IN SUPPORT OF APPELLANTS 

in the above entitled case. All parties required to be served have been served. Proper postage was affixed to said 
envelope(s) and they were plainly addressed to the following: 

SEE ATTACHED 
  

Subscribed and sworn to before me this 6 day of SEPTEMBER, 200 
| am duly authorized under the laws of the State of Nebraska 
to administer oaths. En pe wl A 

4M GENERAL NOTARY-State of Nebraska Affiant 

| ANDREW COCKLE 
ARE My Comm. Exp. April 9, 2002 ( 

Notary Public 

To be filed for: Laughlin McDonald 

Counsel of Record 

Neil Bradley 

Cristina Correia 

Bryan Sells 

American Civil Liberties Union Foundation 

2725 Harris Tower 

233 Peachtree Street 

Atlanta, GA 30303 

(404) 523-2721 

  
  

         

Counsel for Amicus Curiae 

 



Service list 
  

Counsel for Appellants James B. Hunt, Jr., et al. 

Michael F. Easley 
Tiare B. Smiley 

Norma S. Harrell 

North Carolina Dept. of Justice 
P.O. Box 629 

Raleigh, NC 27602-0629 
(919) 716-6400 

Counsel for Appellants Alfred Smallwood, et al. 

Todd A. Cox 

Elaine R. Jones 

Norman J. Chachkin 

Jacqueline A. Berrien 

NAACP Legal Defense & Educational Fund, Inc. 

1444 Eye Street, NW 
10™ Floor 

Washington, DC 20005 

(202) 682-1300 

Counsel for Appellees 

Robinson O. Everett 

P.O. Box 586 

Durham, NC 27702 

(919) 682-5691