Brief Amicus Curiae of Civil Liberties Union in Support of Appellants

    No. 98-85 
  
  

         
    
    

    

    

     
    
     
    

In The 

Supreme Court of the United States | 
October Term, 1998 

& 
v 

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

  

Appellants, 

MARTIN CROMARTIE, et al, 

Appellees. 
   

4 

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 

¢ 

  

  

  

     
   

    
        

    
    
    
    
    

    
    
    
    
    
    

  

     
    

  

    
     

  

LaugHLIN McDoNALD 

Counsel of Record 
NEIL BRADLEY 

MAHA S. Zaki 
CrisTINA CORREIA 
American Civil Liberties 

Union Foundation 
44 Forsyth Street 
Suite 202 
Atlanta, GA 30303 
(404) 523-2721 

SteveN R. SHAPIRO 
American Civil Liberties 

Union Foundation 
125 Broad Street 
New York, NY 10004 
(212) 549-2500 

Counsel for Amicus Curiae 

  

  

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 
OR CALL COLLECT (402) 342-2831





  

  

TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES . .... ia = ii 

INTEREST OF AMICUS CURIAE ................... 1 

SUMMARY OF ARGUMENT. ........0 nuh. 1 

ARGUMENT: i. 5 ei Than J te pei 3 

LaIntvoducHon. . .. one at ss ii ens 3 

II. The Voting Rights Act and the Importance of 
Majority-Minority Districts ................ 4 

III. Challenges to the Voting Rights Act....... 7 

IV. Majority White and Majority Nonwhite Dis- 
tricts; Dual Standards .......... 08. oo. 11 

V. Mistaken Assumptions about Segregation... 18 

VI. The Comparison with Affirmative Action.. 22 

VII. The Shaw /Miller Standards Are Unwork- 
BIB. os sR 25 

VIII. The Significance of Black Victories in 1996... 27 

CONCLUSION on. cal i ide a 30 

 



  

TABLE OF AUTHORITIES 

Casts: 

Abrams v. Johnson, Nos. 95-1425 & 95-1460 ......... 28 

Abrams v. Johnson, 117 S.Ct. 1925 (1997) 
a BL NI BGRY 1, 3,10, 12,17, 27 

(1995), do i oy EL Ne EE 23 

Allen v. Wright, 468 US. 737 (1984). ........ ........ 15 

Arlington Heights v. Metropolitan Housing Devel- 
opment Corp..429 U.S. 252 (1977)... . 5c... 16, 17 

Burton v. Sheheen, 793 F.Supp. 1329 (D.S.C. 1992) ..... 6 

Busbee v. Smith, 549 F.Supp. 494 (D.D.C. 1982)....6, 23 

Bush v. Vera, 116 S.Ct. 1941 (1996)...... 3, 4, 10, 13, 25 

Chapman v. Meier, 420 US. 1 (1975) ................ 26 

City of Memphis v. Greene, 451 U.S. 100 (1981)..... 17 

City of Mobile v. Bolden, 446 U.S. 55 (1980) ..... 17,22 

City of Richmond v. J.A. Croson, Co., 488 U.S. 469 
100 EAR TN Sh AIR SSI Tae A 23 

Currie v. Foster, No. 97-CV-368 (W.D.La.) ............ 8 

Daly v. High, No. 5:96 CV 86-V (W.D.N.C)).......... 8 

Davis v. Bandemer, 478 U.S. 109 (1986)... 5... on 7.22 

DeGrandy v. Wetherell, 794 F.Supp. 1076 (N.D. 
Fla," 1992) ... 5 .. 5% Go ER PRRLTI \ p 6 

DeWitt v. Wilson, 115 S.Ct. 2637 (1995).............. 11 

Diaz v. Silver, 932 F.Supp. 462 (E.D.N.Y. 1996). ....... 5 

   



iii 

TABLE OF AUTHORITIES - Continued 
Page 

Diaz v. Silver, CV-95-2591 (E.D.N.Y. Feb. 26, 1997) ....:.11 

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

Gomillion v. Lightfoot, 364 U.S. 339 (1960) .......... 12 

Growe v. Emison, 507 U.S. 25 1993). . ih. 26 

Hays v. Louisiana, 839 F.Supp. 1188 (W.D. La. 
1993): ne ee SB Bs 6, 8 

Hays v. Louisiana, 862 F.Supp. 119 (W.D.La. 1994) .... 21 

Hays v. Louisiana, 936 F.Supp. 360 (W.D.La. 1996) .... 10 

Holder v.. Hall, 312 U.S.:874 (1994). .. ....... 050k ius 1 

Johnson v. Miller, 864 F.Supp. 1354 (S.D.Ga. 1994) 
IRS a LP ai, oom se ie 

Johnson v. Miller, 922 ESupp. 1552 (S.D.Ga. 1995). ..14, 20 

Johnson v. Miller, 929 F.Supp. 1529 (S.D.Ga. 1996) ..... 8 

Johnson v. Mortham, 926 F.Supp. 1460 (N.D.Fla. 
1996). AE CA Ea a Te iE 8, 10 

Jordan v. Winter, 604 F.Supp. 807 (N.D. Miss. 1984) ..... 6 

Katzenbach v. Morgan, 384 U.S. 641 (1966).......... 21 

King v. State Board of Elections, 979 F.Supp. 582 
ANLD.IN. 1996) ec chin esti i id ait 8 

King v. Illinois Board of Election, 118 S.Ct. 877 
(1998). cis. a ei BAL RE 11 

Kusper v. Pontikes, 414 U.S. 31 (1973) w.... oan. 2. 11 

Lawyer v. Department of Justice, 117 S.Ct. 2186 
(1997)... nu Fe NR Say ABE hr Ld 11 

Leonard v. Beasley, Civ. No. 3:96-CV-3540 (D.S.C.)..... 8  



  

iv 

TABLE OF AUTHORITIES - Continued 
Page 

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .... 14 

Major v. Treen, 574 F.Supp. 325 (E.D.La. 1983)........ 6 

McCain v. Lybrand, 465 U.S. 236 (1984)... . i. 05 1 

Miller v. Johnson, 115 S.Ct. 2475 (1095). , Ja... passim 

Moon v. Meadows, 952 F.Supp. 1141 (E.D.Va. 1997) ..8, 10 

NAACP v. Button, 371 US. 415 (1963) ...... ous i 11 

Personnel Administrator of Massachusetts v. 
Feeney, 442 US, 256 (1979) ....... 05.0 hs 16, 17 

Quilter v. Voinovich, 912 F.Supp. 1006 (N.D.Oh. 
50) 3 SRR tC Nat Cea eR eae 8 

Quilter v. Voinovich, 981 F.Supp. 1032 (N.D.Oh. 
0 SREY OR TIER aa Ciel Seas Tae 11 

Reno v. Bossier Parish School Board, 117 S.Ct. 
IA HAST). re dD hE aia a 1 

Rice v. Smith, CA No. 97-A-715-E M.D.Ala). ou 8 

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

Scott v. U.S. Dept. of Justice, 920 F.Supp. 1248 
(IMD.Fla. 1996) . isi... oo hamaidon vy Sata 8 

Shaw v. Barr, 808 F.Supp. 461 (E.D.N.C. 1992)...... 6, 8 

Shaw v. Hunt, 116 S.Ct. 1894 (1996)... ............ 3, 10 

Shaw v. Reno, 509 U.S. 620 (1993) oo a passim 

Smith v. Beasley, 946 F.Supp. 1174 (D.S.C. 1996)... ... 8 

South Carolina v. Katzenbach, 383 U.S. 301 (1966) 
Py pee ie a a iw ve 8, 19, 21 

   



Vv 

TABLE OF AUTHORITIES - Continued 

Page 

The Slaughter-House Cases, 83 U.S. (16 Wall) 36 
(1873). soa dpa in hia dah A ni 18 

Thomas v. Bush, No. A-95-CA 18655 (W.D.Tex:) ...... 8 

Thornburg v. Gingles, 478 U.S. 30 (1986) .......... 5, 18 

United Jewish Organizations of Williamsburg, Inc. 
v.:Carey, 430 US, 144 (1977)... ston i 5 iin cia 22,23 

United States v. Hays, 115 S.Ct. 2431 (1995).......... 1 

United States v. Scott, 437 U.S. 82 (1978)............. 4 

United States v. Students Challenging Regulatory 
Agency Procedures, 412 U.S. 669 (1973)........... 16 

Vera v. Richards, 861 F.Supp. 1304 (S.D.Tex. 1994) 
EURO SE leds VE anon a 6,8, 13 

Washington v. Davis. 426 U.S. 229 (1976). .......... 17 

Wesch v. Hunt, 785 F.Supp. 1491 (S.D. Ala.).......... 6 

Wygant v. Jackson Board of Ed., 476 U.S. 267 
(I9BB) cc cal hs i cs eT a RE 23 

ConsTiITuTIONAL PROVISIONS: 

Fourteenth Amendment. ......o....0 0005. 00 passim 

Fifteenth Amendment............. 0000 8 ans, 21 

STATUTORY PROVISIONS: : 

Civil Rights Act of 1957... 0nd i 9 

Civil Rights Act of 1960... coc... ii iu, 9 

Civil Rights Actof 1964......0...... oi. a 9 

Voting Rights Act of JOGh ET ie me 1, 3, 9  



  

TABLE OF AUTHORITIES - Continued 
Page 

42 US.C.'§ 1973, Section 2... oiaitiis, bu dm 3,5 

42 U.S.C. § 1973¢°Section BD. ..c. oo oF. Bat 5 

CONGRESSIONAL REPORTS: 

S.Rep. No. 417, 97th Cong., 2d Sess. (1982).......... 20 

Voting Rights Act: Hearings Before the Subcomm. 
on the Constitution of the Senate Comm. on the 
Judiciary, 97th Cong., 2d Sess. 662 (1982)... ...=.. 20 

Ruts: 

S.Ct. Rule 373... 0... 00 or a er Bag ht 1 

OTHER: 

T. Alexander Aleinikoff & Samuel Issacharoff, 
“Race and Redistricting: Drawing Constitu- 
tional Lines After Shaw v. Reno,” 92 Mich. L. 
Rev. 588 (1993)... ut rr ul ac Oo as 26 

Michael Barone & Grant Ujifusa, The Almanac of 
American Politics 1974 (1973)... 0. . C. iteiis u oo 7 

James U. Blacksher, “Dred Scott’s Unwon Free- 
dom: The Redistricting Cases As Badges of 
Slavery,” 39 How. L. J. 633 (1996) ................. 24 

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, 1995)... ..a.o-  CmiE], uo ae ye 7, 19 

   



vii 

TABLE OF AUTHORITIES - Continued 

Page 

David A. Bositis, “The future of majority-minority 
districts and black and Hispanic legislative rep- 
resentation,” in Redistricting and Minority Rep- 
resentation (Bositis ed., 1998) .................. 28, 29 

Congressional Quarterly, Inc., Politics in America 
1994: 103rd Congress (Phil Duncan ed., 1993) ..... 12 

Critical Race Theory: The Concept of “Race” in 
Natural and Social Science (E. Nathaniel Gates 
Md NR i a SS aa a 19 

Armand Derfner, “Racial Discrimination and the 
Right to Vote,” 26 Vand. L. Rev. 523 1073) .......0. 8 

Robert G. Dixon, Jr; Democratic Representation: 
Reapportionment in Law and Politics (1968) ....... 7 

Nathan Glazer, “Reflections on Citizenship and 
Diversity,” in Diversity and Citizenship: Redis- 
covering American Nationhood (Gary J]. Jacob- 
sohn & Susan Dunn eds., 1996)................... 19 

Bernard Grofman & Lisa Handley, “1990s Issues in 
Voting Rights,” 65 Miss. L. J. 205 (1995) .......... 26 

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..Grofmanceds., 1994) .... A... 00 0h sh rs 6 

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). 5 ......... 9  



  

viii 

TABLE OF AUTHORITIES - Continued 

Joint Center for Political and Economic Studies, 
Black Elected Officials: A National Roster (1993) 

Pamela S. Karlan, “All Over the Map: The 
Supreme Court’s Voting Rights Trilogy,” 1993 
Sup..Ct. Rev. 245......0 as... 0 a 

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, “Shaw v. Reno and the Real 
World of Redistricting and Representation,” 26 
Rut. L..J. 625 A995)... 0 connie. i 

Paul Lewinson, Race, Class, and Party: A History 
of Negro Suffrage and White Politics in the 
South (1932).%.5-........... 3.3. Se Ne a 

Cynthia A. McKinney, “A Product of The Voting 
Rights Act,” The Washington Post, Nov. 26, 
1996, p. ALB: 5 hans Ln Sa i Cn 

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. Rev. 1(1998).. .......45 .. ou alos 15,.22, 26 

Richard H. Pildes, “The Politics of Race,” 108 
Hatv. L.-Rev. 185941995)... . co iv. vin isis 

Quiet Revolution in the South (C. Davidson & B. 
Grolman-eds., 1994)... 0.00 Gi lipd a 

Mark Sherman, “Redrawn Districts Expected To 
Face Challenge,” Atlanta Journal & Constitu- 
Hon, Aug. 2, 1995, pb. Bb... 0 coca viii 

   



1X 

TABLE OF AUTHORITIES - Continued 

Page 

1990 U.S. Census, Population and Housing Profile, 
Congressional Districts of the 103rd Congress, 
C.O. Weekly Report, V. 51, 3473-87... ........ ..xs 7 

U.S. Commission on Civil Rights, Political Partici- 
PAUHON (1968). ....c vii tah’ iit die den iss Sadi din 4 

Bill Wasson, “Wilder Plan Expected to Win 
Assembly OK,” The Richmond News Leader, 
Dec. 3, 1991, Polis eiiniiisits vibe san. 6 

www?2.state.ga.us/elections/federal.htm ............. 28 

 



    

 



1 

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 that 

commitment, the ACLU has been active in defending the 
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, 117 

S.Ct. 1925 (1997), and as amicus curiae, e.g., United States v. 

Hays, 115 S.Ct. 2431 (1995), Reno v. Bossier Parish School 

Board, 117 S.Ct. 1491 (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 sys- 

tematically challenged in the wake of Shaw, have been the 

key to the increase in black office holding since passage 

of the Voting Rights Act of 1965. By creating lenient 

standing rules for white voters and relieving them of the 

obligation to show that majority-minority districts have 

  

I 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.  



  

2 

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 
majority-minority districts and allow whites once again 
to 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 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. 

In requiring strict scrutiny of majority-minority dis- 
tricts, the Shaw cases have singled nonwhites out for 

special, discriminatory treatment in the redistricting pro- 
cess. 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 pro- 
cess. 

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 inconsistent 

   



3 

with reversal, those decisions should be reconsidered and 

reversed. 

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. Legisla- 

tors no longer know the extent to which race can or 

should be taken into account in drawing district lines. 

The result of that confusion has been to draw the federal 

courts increasingly, and unnecessarily, into the redistrict- 

ing process. Shaw and its progeny have also created rules 

that give special preferences to whites and shackle racial 

minorities with special disadvantages in redistricting. 

Five years after Shaw we are witnessing a systematic 

attack on majority-minority districts, which threatens to 

erode the gains in minority political participation so 

laboriously accumulated since passage of the Voting 

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

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 

communities that have a particular racial or ethnic 

makeup to account for their common, shared interests. 

  

2 The cases following Shaw are Miller v. Johnson, 115 S.Ct. 
2475 (1995), Shaw v. Hunt, 116 S.Ct. 1894 (1996), Bush v. Vera, 

116 S.Ct. 1941 (1996), and Abrams v. Johnson, 117 S.Ct. 1925 

(1997). 7  



  

4 

Amicus submits that, prior to the millennium census and 
the next round of redistricting, the Court should frankly 
admit that the Shaw cases demand reconsideration, and 
that federal judicial intrusion 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 

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. U.S. Commission on Civil 
Rights, Political Participation 15 (1968). By January, 1993 
the number had increased to 4,924. Joint Center for Politi- 
cal and Economic Studies, Black Elected Officials: A 
National Roster xxiii (1993).4 This increase was caused 
primarily by the creation of majority-minority districts 
pursuant to the preclearance provisions of Section 5 of 

  

3 Two members of the Court have stated or implied that 
they would abandon Shaw. See Bush v. Vera, 116 S.Ct. at 1975 (“1 
would return to the well-traveled path that we left in Shaw 1”) 
(Stevens, J., dissenting); id. at 2011 (“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 overrule it. 
United States v. Scott, 437 U.S. 82, 101 (1978). 

* 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 6.1% of its elected officials. National Roster at 1, 39, 
93, 105, 175, 237, 319, 377, 399, 409, 439. 

   



5 

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

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

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.6 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 

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. 

  

> 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). 

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).  



  

6 

Lisa Handley & Bernard Grofman, “The Impact of the 

Voting Rights Act on Minority Representation: Black 

Officeholding in Southern State Legislatures and Con- 

gressional 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 

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

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

cess.” 

  

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.)), 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 threatened 
objections, by the Attorney General also resulted in the creation 
of two additional majority black districts in Georgia (the 2d and 
11th) (Johnson v. Miller, 864 F.Supp. 1354, 1366 (S.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) (Barr v. Shaw, 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 

   



7 

The increase in majority black districts was followed 

by an increase in black elected officials. Seventeen of the 

majority-minority congressional districts — and none of 

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

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

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

V. 51, 3473-87.8 

III. Challenges to the Voting Rights Act 

The Voting Rights Act has undeniably been the vic- 

tim of its own success. Following the 1992 elections the 

courts were flooded with challenges by white voters who 

claimed that the majority black districts were unconstitu- 

tional racial gerrymanders.® Lawsuits challenging con- 

gressional plans were filed in North Carolina (Shaw v. 

  

(majority black and Hispanic) in Texas. Michael Barone & Grant” 
Ujifusa, The Almanac of American Politics 1974 (1973). 

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 the South, the number of black state senators 

increased from 43 to 67, and the number of black house 

members from 159 to 213. David 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.”  



  

8 

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. 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 

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

979 E.Supp. 582 (N.D.Ill. 1996)), South Carolina (Leonard v. 

Beasley, Civ. No. 3:96-CV-3540 (D.S.C.)), and Alabama 

(Rice v. Smith, CA No. 97-A-715-E (M.D.Ala.)).10 

This litigation reflected a well established historical 

pattern. As this Court and others have poignantly 

observed, political mobilization in the black community, 

particularly in the South, has rarely gone unopposed 

since Reconstruction onwards. South Carolina v. Katzen- 

bach, 383 U.S. 301, 310 (1966) (noting the adoption by 

various southern states beginning in 1890 of tests “speci- 

fically designed to prevent 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 Suffrage and White Politics in the 

South (1932); Armand Derfner, “Racial Discrimination 

and the Right to Vote,” 26 Vand. L. Rev. 523 (1973). In 

  

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. U.S. 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.)) and, Ohio (Quilter v. Voinovich, 

912 ESupp. 1006 (N.D.Oh. 1995)). 

   



9 

modern times the Voting Rights Act, which has been the 

single most effective tool of black enfranchisement in our 

nation’s history, has 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).1! 

The first of the modern reverse discrimination cases 

to reach the Court following the 1990 census was Shaw v. 

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 

  

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 It 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 
important at the local level and by no means uncontroversial, 
lacked 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 had a similar 
impact, at least for some.  



  

10 . 

“bizarre” or “irrational” in shape, and were “unexplain- 

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

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 of 

proving a suspect racial classification or purpose. See 

Miller v. Johnson, 115 S.Ct. at 2485. 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 2488. 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 prac- 

tices.” Id. at 2497 (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, 116 S.Ct. at 1907), Georgia (the 

11th) (Miller v. Johnson, 115 S.Ct. at 2494) (the 2d) (Abrams 

v. Johnson, 117 S.Ct. at 1935), and Texas (the 18th, 29th, 

and 30th) (Bush v. Vera, 116 S.Ct. at 1951). Lower courts 

have done the same to majority-minority congressional 

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

   



11 

12th) (Diaz v. Silver, CV-95-2591 (E.D.N.Y. Feb. 26, 

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 

advancement 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. 

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

One principle that has emerged 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 

  

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, 115 S.Ct. 2637 (1995)), and Illinois 
(King v. Illinois Board of Election, 118 S.Ct. 877 (1998), aff'g, 979 
F.Supp. 582, 619 (N.D.Ill. 1996), as well as a legislative plan in 
Ohio (Quilter v. Voinovich, 981 ESupp. 1032 (N.D.Oh. 1997), 

aff'd, 118 S.Ct. 1358 (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, 117 S.Ct. 2186 (1997).  



  

12 

War Amendments sought to help.” Abrams v. Johnson, 117 
S.Ct. at 1950 (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. 

For example, the Congressional Quarterly has 
described District 4 in Tennessee (96% white) as “a long, 

sprawling district, extending nearly 300 miles . . . from 
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 Interstate 5.” Id. 
at 1635. District 13 in Ohio (94% white) “centers around 
two distinct sets of communities . . . [t]he 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 

  

14 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. 

   



13 

district shape was not a federal constitutional require- 

ment. Gaffney v. Cummings, 412 U.S. 735, 752 n.18 (1973) 

(district “compactness or attractiveness has never been 

held to constitute an independent federal requirement”). 

Even Shaw v. Reno acknowledged that a compact district 

shape was “not . . . constitutionally required,” 509 U.S. at 

647, an acknowledgment 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. Vera v. Richards, 861 

F.Supp. at 1309. The district court invalidated just three 
districts, the only two that were majority black and one 

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, 116 S.Ct. at 1954. For that reason 

“irregular district lines” could be drawn for “incumbency  



  

14 

protection” and “to allocate seats proportionately to 

major political parties.” Id. See also id. at 1972 (“[d]istricts 

not drawn for impermissible reasons or according to 

impermissible criteria may take any shape, even a bizarre 

one”) (Kennedy, J., concurring). Amicus respectfully sub- 

mits that the creation of a dual standard in redistricting 

depending on whether a district is majority white or 

nonwhite is inconsistent with fundamental notions of 

equal protection under the Fourteenth Amendment.15 

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 

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.” Shaw 

v. Reno, 509 U.S. at 641.1 Even more dramatically, the 

  

15 Blacks have also frequently been denied the advantages 
of incumbency. In Johnson v. Miller, 929 F.Supp. 1552, 1565 
(5.D.Ga. 1995), the district court took note of the state’s historic 
policy of drawing district lines “so incumbents remain in their 
districts in a new plan and to avoid placing two incumbents in 
the same districts.” In its remedial plan, however, the court 
placed a black incumbent (McKinney) in a new district and put 

a white incumbent in the district of another black incumbent 
(Bishop). Id. 

16 Nor, as Justice White pointed out, could they. Whites 

were 79% of the state’s VAP but a majority in ten (83%) of its 12 

   



15 

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 plaintiffs 
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; Miller v. 

Johnson, 115 S.Ct. at 2485-86 (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 dis- 
tricts”). The injury identified by the Court was in being 
“stereotyped” or “stigmatized” by a racial classification. 
Miller v. Johnson, 115 S.Ct. at 2486; 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 

  

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.” Frank R. Parker, “The Constitutionality of Racial 
Redistricting: A Critique of Shaw v. Reno,” 3 D. Col. L. Rev. 1, 9 
(1995). :  



  

16 

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 

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 642.17 This is markedly different than 

  

17 The cases principally relied upon by the Court, 

Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 

256 (1979), and Arlington Heights v. Metropolitan Housing 

   



17 

the standard applied by the Court in other civil rights 
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 

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”).18 

  

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. 

18 In light of Shaw, whites challenging discrimination under 
the Constitution also have a lower burden of proof than blacks 
challenging discrimination under the Voting Rights Act. Such a  



  

18 

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. 

V. 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, 115 S.Ct. at 2486. Society is allegedly harmed 

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

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 

  

result is anomalous given the purpose of the Act to ease the 
standard of proof in statutory challenges. Thornburg v. Gingles, 
478 U.S. at 43-4. 

   



19 

most racially integrated districts in the country. They con- 

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

tricting and Representation at 28. No one familiar with Jim 

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, 115 S.Ct. at 2498 (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 merely an “assumption” or 

“stereotype,” it is also a social and political fact of Ameri- 

can life.1® 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. South Carolina v. Katzenbach, 383 U.S. at 337 (describ- 

ing 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”). 

  

19 This is very different from saying that race is a scientific 
fact. 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”). oy  



  

20 

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 having differ- 

ent 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 

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 

   



21 

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

sive, reliable and reassuring track record of court deci- 

sions using the very standard which the Committee bill 

would codify.” 1d.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 “the 

1992 congressional redistricting plans had no adverse 

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

864 F.Supp. at 1370. 

The district court reached a similar conclusion in 

Hays v. Louisiana. Although holding the state’s congres- 

sional plan unconstitutional under Shaw, the district court 

nonetheless acknowledged “the great benefits that are 

derived by an increase in minority representation in gov- 

ernment.” 862 F.Supp. 119, 128 (W.D.La. 1994) (Shaw, J., 

  

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.  



    

22 

concurring). Minority elected officials, the court wrote, 

“have shown that they perform admirably,” that their 

efforts in government “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 balkanization of Ameri- 

can society, and promotes a political system in which race 

does not matter as much as it did before.” Parker, 3 D. 

Col. L. Rev. at 19-20. 

VI. The 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. Ban- 

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

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-Americans in 

   



23 

South Philadelphia, Polish-Americans in Chicago, and 

Anglo-Saxons in North Georgia. Miller v. Johnson, 115 

S.Ct. at 2505 (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 

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 striet 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, 115 S.Ct. at 2490, the Miller majority drew heavily 

upon the affirmative action cases, indicating that major- 

ity-minority districts were simply another form of race 

based preferences. Miller v. Johnson, 115 S.Ct. at 2482.21 

  

21 In support of this proposition, Miller cited Adarand 
Constructors, Inc. v. Pena, 115 5.Ct. 2097, 2113 (1995) (subjecting 
to strict scrutiny “all racial classifications, imposed by whatever 
federal, state, or local governmental actor”), City of Richmond 

v. J.LA. 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). ;  



    

24 

Whether or not one thinks the affirmative action 

cases were rightly decided, their application to redistrict- 

ing ignores the fundamental distinction between the race 

conscious allocation of limited employment or contrac- 

tual opportunities and the far different task of reconciling 

the claims of political, ethnic, racial, and other groups in 

the redistricting 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 ac- 
tion’ ”) (White, J., dissenting). If anything, the current 

challenges to affirmative action only highlight the impor- 

tance of assuring equal opportunity in the political pro- 

cess. 

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

ities are now the only group that is targeted for special 

disadvantages in redistricting. All other groups — politi- 

cal, religious, occupational, or socioeconomic - may orga- 

nize themselves freely and press for recognition in the 

redistricting process. The efforts of non-whites alone are 

subject to the exacting and debilitating 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 omit- 

ted). Such a result cannot be reconciled 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- 

lows that it is permissible to do the same thing 
for members of the very minority group whose 

   



25 

history in the United States gave birth to the 
Equal Protection Clause. 

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

VII. 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 race 

to predominate in the redistricting process. Miller v. John- 

son, 115 S.Ct. at 2488. A state “is free to recognize com- 

munities that have a particular racial makeup, provided 

its action is directed toward some common thread of 

relevant interests.” Id. at 2490. Redistricting may be per- 

formed “with consciousness of race.” Bush v. Vera, 116 

S.Ct. at 1951. Indeed, it would be “irresponsible” for a 

State to disregard the racial fairness provisions of the 

Voting Rights Act. Id. at 1969 (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 1970. Even the Court has acknowledged that it “may be 

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

Johnson, 115 S.Ct. at 2488. 

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, 117 S.Ct. 

at 1949 (Breyer, ]., dissenting), Bush v. Vera, 116 S.Ct. at 

2011 (“[t]he Court has been unable to provide workable 

standards”) (Souter, J., dissenting), are “a jurisprudential 

wilderness that lacks a definable constitutional core,” 

Bush v. Vera, 116 S.Ct. at 1975 (Stevens, J., dissenting), and  



    

26 

“render ] redistricting perilous work for state legisla- 

tures,” Miller v. Johnson, 115 S.Ct. at 2507 (Ginsburg, J., 

dissenting). Justice Souter has recognized that “it is as 

impossible in theory as in practice to untangle racial 

considerations from the application of traditional district- 

ing principles in a society plagued by racial-bloc voting 

with a racial minority population of political signifi- 

cance.” Id. at 2005-06 (dissenting).22 

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 

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

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

U.S. 25, 34 (1993). Faced with the prospect of being sued 

for a constitutional violation if they create majority- 

minority districts and sued for a Voting Rights Act viola- 

tion if they do not, states will be strongly tempted to 

  

22 The views of the dissenters are widely shared by others. 
See, e.g., Bernard Grofman & Lisa Handley, “1990s Issues in 

Voting Rights,” 65 Miss. L. J. 205, 215 (1995) (Shaw “did not 

establish clearly manageable standards”); 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”); Parker, 3 D. Col. L. Rev. at 43 (the Shaw 
standards are “vague and subjective”); Higginbotham, et al., 62 
Ford. L. Rev. at 1603 (describing Shaw as “obscure”); Pamela S. 
Karlan, “All Over the Map: The Supreme Court's Voting Rights 

Trilogy,” 1993 Sup. Ct. Rev. 245; J. Morgan Kousser, “Shaw v. 

Reno and the Real World of Redistricting and Representation,” 
26 Rut. L. J. 625 (1995). 

   



  

27 

leave redistricting to the federal courts.23 And those that 

do not will likely end 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 applicable 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. Johnson, 117 S.Ct. at 1950 (dissenting). 

VIII. The Significance of Black Victories in 1996 

In Abrams v. Johnson the Court cited the election of 
Cynthia McKinney and Sanford Bishop, the incumbents 

from the old 11th and 2d Districts in Georgia, to support 

its finding that whites had shown a “general willingness” 

to vote for black candidates and its conclusion that Sec- 

tion 2 did not require the creation of more than one 

majority black district in Georgia. 117 S.Ct. at 1936. 

Despite the white votes they received, the voting in 

McKinney's and Bishop's elections was in fact racially 

polarized. 

In the Democratic primary, McKinney got only 13% 

of the white vote. She won the nomination because she 
got most of the black vote and whites mainly stayed 

home or voted in the Republican primary. White turnout 

  

23 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, 117 S.Ct. at 
1929. 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. Bé6.  



    

28 

was extremely low — only 11% of registered voters com- 

pared to 31% for blacks. As a consequence, the electorate 

in the Democratic primary was effectively majority black. 

Abrams v. Johnson, Nos. 95-1425 & 95-1460, Response of 

Appellants Lucious Abrams, Jr., et al., to Appellees’ 

Motion to Supplement the Record on Appeal, p. 2. 

Running in a heavily Democratic district in the gen- 

eral election, McKinney increased her percentage of the 

white vote, but voting was still along racial lines. Most 

blacks again voted for McKinney while approximately 

70% of whites voted for her white Republican opponent. 

David A. Bositis, “The future of majority-minority dis- 

tricts and black and Hispanic legislative representation,” 

in Redistricting and Minority Representation 12 (Bositis ed., 

1998). The voting in the new 2d District was similarly 

polarized. In the general election Bishop got most of the 

black vote but approximately 65% of whites voted for his 

white opponent. Bositis, “The future of majority-minority 

districts” at 14. 

McKinney has credited her victory to the fact that she 

was initially elected in a majority black district and had 

an opportunity to establish a track record of service to 

constituents of both races. Cynthia A. McKinney, “A 

Product of The Voting Rights Act,” The Washington Post, 

Nov. 26, 1996, p. A15. Non-incumbent blacks, by contrast, 

who ran in majority white congressional districts in 1996 

in Arkansas, Mississippi, and Texas all lost. Bositis, “The 

future of majority-minority districts” at 38-9. McKinney 

and Bishop were reelected in 1998, but again both were 

running with the strong advantage of incumbency. 

www2 state.ga.us/elections/federal.htm. 

Given the persistent patterns of racial bloc voting 

over time in the South, it is prudent to suggest that the 

   



29 

real test of the new majority white congressional districts 

which have elected minorities will come when non- 

incumbent minorities run for office. The recent elections 

may be a sign of a gradual thaw in voter attitudes. If so, 

they will underscore the value of highly integrated major- 

ity-minority districts to society and voters of all races in 

helping to ameliorate the affliction of racial bloc voting. 
But in the meantime, it is premature to claim that the 

electorate is suddenly color blind and that racial bloc 

voting no longer exists. See Bositis, “The future of major- 

ity-minority districts” at 15 (“[d]espite the noteworthy 

election of four black U.S. representatives in majority- 

white districts in 1996, there is little reason to believe that 

any significant barrier has been breached or that electoral 

politics in the United States have become de-racialized to 

any significant degree”); Pildes, 108 Harv. L. Rev. at 1361 

(describing the color blind model of politics in the South 

as “among the great myths currently distorting public 

discussion”). 

 



  

. 30 

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 McDonNALD 

Counsel of Record 
NEL BRADLEY 

MAHA ZAK 

CrisTiINA CORREIA 

American Civil Liberties 

Union Foundation 

44 Forsyth Street 
Suite 202 

Atlanta, GA 30303 

(404) 523-2721 

STEVEN R. SHAPIRO 

American Civil Liberties 

Union Foundation 

125 Broad Street 

New York, NY 10004 

(212) 549-2500 

® Counsel for Amicus Curiae 

  
  

  
 



  

  

  

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