Shaw v Barr Brief Amicus Curiae

    No. 92-357

In The

Supreme Court of tfjc ^Hm'tet* States
October Term , 1992

R uth 0 .  S haw , et al,

v.
W illiam  B arr , et al,,

Appellants,

Appellees.

On Appeal from the United S tates D istrict Court 
for the Eastern D istrict of North Carolina 

Raleigh Division

BRIEF AMICUS CURIAE IN SUPPORT OF APPELLEES 
OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL

FUND, INC.

E laine  R. Jo nes  
Charles St e ph e n  Ralston 

*D ayna  L. Cunningham  
Gailon W. McGow en  
NAACP Legal Defense 
and Educational Fund, Inc.
99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 219-1900

Attorneys for Amicus Curiae 
* Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



1

TABLE OF CONTENTS

TABLE OF AUTHORITIES...........................................  iii

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

SUMMARY OF A R G U M EN T.......................................  2

ARGUMENT .....................................................................  4

INTRODUCTION..............................................................  4

I. A pp e l l a n t s’ Pr o p o s e d  R e q u ir e m e n t  o f  
"Ra c e -N e u t r a l " D ist r ic t in g  is In c a p a b l e  
o f  R e a l i z a t i o n .................................................................  6

A. Legislatures Cannot Draw Electoral 
Districts Without Taking Race Into 
Account .......................................................  6

B. A "Ra c e -N e u t r a l " Districting
Requirement Would Conflict with 
W ell-Established Principles in 
Reapportionment Cases and Would be 
Inconsistent with the Voting Rights 
A c t..............................................................  9

II. Appellants’ "Race-Neutral" Districting
Approach Is Inconsistent With The Voting
Rights A c t............................................................  11

A. Section 5 of the Act Requires Race-
Conscious Districting...............................  11

B. Section 2 of the Act Requires Race
Conscious Districting...............................  13

C. The Disclaimer on Proportional
Representation Does Not Limit Black 
Electors’ Opportunity..............................  14



u

III. A pp e l l a n t s’ "Ra c e -N e u t r a l " A p p r o a c h

to  R e d ist r ic t in g  is N o t  R e q u ir e d  B y  
A ppl ic a b l e  C o n st it u t io n a l  P r in c ipl e s  . . 16

A. The State’s Interest In Complying with
the Voting Rights A c t ............................  16

B. The Creation of Majority Minority
Districts Does Not Impose A 
Constitutionally Forbidden Burden on 
White Voters ..........................................  18

IV. P r o h i b i t i n g  R a c e - C o n s c i o u s
R e d ist r ic t in g  W o u l d  b e  In c o n sist e n t  
W it h  t h e  F o u r t e e n t h  A m e n d m e n t ................ 22

CONCLUSION............................................................... 25



Ill

TABLE OF AUTHORITIES

Cases: Pages:

Abate v. Mundt,
403 U.S. 182 (1971) ............................................  9

Alexander v. Louisiana,
405 U.S. 625 (1972) ............................................  7

Allen v. State Board of Elections,
393 U.S. 544 (1969) .....................................  12, 17

Brown v. Board of Commissioners of Chattanooga,
722 F. Supp. 380 (E.D. Tenn. 1989)..................  8

Brown v. Thomson,
462 U.S. 835 (1983)   9

Castenada v. Partida,
430 U.S. 482 (1977)   7

Chisom v. Roemer,
111 S. Ct. 2354 (1991).......................................... 2

Citizens for a Better Gretna v. City of Gretna,
834 F.2d 496 (5th Cir. 1987), cert, denied, 492 
U.S. 905 (1989).....................................................  8

City of Richmond v. Croson,
488 U.S. 469 (1989)   passim

City of Richmond v. United States,
422 U.S. 358 (1975) .......................................  2, 12

City of Rome v. United States,
446 U.S. 156 (1980) .......................................  2, 12



IV

Clark v. Edwards,
725 F. Supp. 285 (M.D. La. 1988), vacated sub 
nom. Clark v. Roemer, 750 F. Supp. 200 
(M.D. La. 1990), vacated and remanded,
111 S. Ct. 2881 (1 9 9 1 )............................ .............  9

Connor v. Finch,
431 U.S. 407 (1977) ............................................  5

Cousins v. City Council of the City of Chicago,
466 F.2d 847 (7th Cir. 1972) ..............................  10

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

Ewing v. Monroe County,
740 F. Supp. 417 (N.D. Miss. 1990) ................... 8

Fullilove v. Klutznick,
448 U.S. 448 (1980) .......................................... 16

Gaffney v. Cummings,
412 U.S. 735 (1973) ................................... 7, 9, 10

Garza v. County of Los Angeles,
918 F.2d 763 (9th Cir. 1990), cert, denied,
111 S.Ct. 681 (1991) ............................................  8

Gingles v. Edminston,
590 F. Supp. 345 (E.D.N.C. 1984), at'fd,
Thornburg v. Gingles, 478 U.S. 30 (1986) . . 14, 15

Gomez v. City of Watsonville,
863 F.2d 1407 (9th Cir. 1988) ............................ 8

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



V

Growe v. Emison,
No. 91-1420, 1993 WL 42842 (U.S. Minn.
Feb 23, 1993) .......................................................  9

Houston Lawyers Ass’n v. Attorney General of Texas,
111 S. Ct. 2376 (1991).........................................  2

Hunter v. Erickson,
393 U.S. 385 (1969) .....................................  23, 24

Jeffers v. Clinton,
730 F. Supp. 196 (E.D. Ark. 1989), affd,
111 S.Ct. 662 (1991) ............................................ 8

Johnson v. Transportation Agency,
480 U.S. 616 (1987) .........................................  19

Karcher v. Daggett,
462 U.S. 725 (1983) ............................................ 7

Lane v. Wilson,
307 U.S. 268 (1939) .......................................... 11

Lee v. Nyquist,
318 F. Supp. 710 (W.D.N.Y. 1970),
aff’d, 402 U.S. 935 (1971)..................................  23

Mahan v. Howell,
410 U.S. 315 (1973) ............................................  9

Martin v. Allain,
658 F. Supp. 1183 (S.D. Miss. 1987) ................  9

McDaniel v. Barresi,
402 U.S. 39 (1971)..............................................  17

McDaniels v. Mehfoud,
702 F. Supp. 588 (E.D. Va. 1988).......................  9



VI

McNeil v. City of Springfield,
658 F. Supp. 1015 (C.D. 111. 1987) .....................  9

Metromedia Broadcasting v. Federal
Communications Comm., 497 U .S .___,
111 L. Ed. 2d 445 (1990)..............................  18, 19

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

NAACP v. Button,
371 U.S. 415 (1963) ............................................ 1

Railway Mail Association v. Corsi,
326 U.S. 88 (1945)..............................................  24

Reitman v. Mulkey,
387 U.S. 369 (1967) .......................................... 23

Reynolds v. Sims,
377 U.S. 533 (1964) ................................... passim

Rogers v. Lodge,
458 U.S. 613 (1988)   passim

Shaw v. Barr,
C.A. No. 92-202-Civ-5-BR (E.D.N.C.
Aug. 7, 1992).......................................................... 4

South Carolina v. Katzenbach,
383 U.S. 301 (1966) ................................. 2, 11, 17

Swann v. Charlotte Mecklenberg Board of Education,
402 U.S. 1 (1971) ..............................................  16

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



V X l

United Jewish Organizations v. Carey,
430 U.S. 144 (1977) ................................... passim

United States v. Beer,
425 U.S. 130 (1976) ................................... passim

Washington v. Seattle School Dist. No. 1,
458 U.S. 457 (1982) .....................................  23, 24

Whitcomb v. Chavis,
403 U.S. 124 (1971)............................ 9, 10, 19, 20

White v. Regester,
412 U.S. 755 (1973) .....................................  13, 20

White v. Weiser,
412 U.S. 783 (1973) .......................................... 10

Wise v. Lipscomb,
437 U.S. 535 (1978)..............................................  5

Wright v. Rockefeller,
376 U.S. 52 (1964)............................................ 8, 9

Wygant v. Jackson Board of Education,
476 U.S. 267 (1986) .....................................  16, 18

Yick Wo v. Hopkins,
118 U.S. 356 (1886) .......................................... 17

Zimmer v. McKeithen,
485 F.2d 1297 (5th Cir. 1973) .........................  13



vm

STATUTES

28 C.F.R. 51.44 ................................................................  5

Voting Rights Act, 42 U.S.C. §1973 .......................... 2, 5

2 U.S.C.A. §2c ......... ....................................................... 3

MISCELLANEOUS

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

Guinier, "The Representation of Minority Interests: The 
Question of Single Member Districts," 14 Cardozo 
L. Rev. 1001 (1993).........................................  6, 21



No. 92-357

In The

Supreme Court of tfje HmteiJ States;
O c t o b e r  T e r m , 1992

R u t h  O. Sh a w , et al,
Appellants,

v.

W illia m  P. B a r r , et al.,
Appellees.

On Appeal from the United States District Court 
for the Eastern District of North Carolina 

Raleigh Division

BRIEF AMICUS CURIAE IN SUPPORT OF 
APPELLEES OF THE NAACP LEGAL DEFENSE AND 

EDUCATIONAL FUND, INC.

In t e r e st  o f  A m ic u s  Cu r ia e '

The NAACP Legal Defense and Educational Fund, 
Inc. ("the Fund") is a non-profit corporation that was 
established for the purpose of assisting African Americans 
in securing their constitutional and civil rights. This Court 
has noted the Fund’s "reputation for expertness in presenting 
and arguing the difficult questions of law that frequently 
arise in civil rights litigation." NAACP v. Button, 371 U.S.

Letters consenting to the filing of this brief have been filed with 
the Clerk of Court.



2

415, 422 (1963). The Fund has participated in many of the 
significant constitutional and statutory voting rights cases in 
this Court. See, e.g., Houston Lawyers Ass’n v. Attorney 
General o f Texas, 111 S.Ct. 2376 (1991); Chisom v. Roemer, 
111 S.Ct. 2354 (1991); Thornburg v. Gingles, 478 U.S. 30 
(1986); United Jewish Organizations v. Carey, 430 U.S. 144 
(1977).

SUMMARY OF ARGUMENT

This case raises critically important issues about the 
scope of a state’s authority to remedy race-based voting 
discrimination to comply with the Voting Rights Act, 42 
U.S.C. §1973, as amended in 1982. At the outset, however, 
it is important to clarify what this case is not about. This 
case does not present a question about the State’s failure to 
comply with a remedial directive by the Attorney General. 
There is no dispute that the state action challenged by 
appellants was taken at the suggestion of the United States 
Attorney General and was subsequently approved by the 
Attorney General. Letter from Assistant United States 
Attorney General for Civil Rights, John Dunne, to Tiare B. 
Smiley, North Carolina Special Deputy Attorney General, of 
2/6/92 at 2.

The question raised by this case is whether a state 
constitutionally may use race-conscious measures to preserve 
minority voting strength. Under this Court’s decisions in 
United Jewish Organizations v. Carey, 430 U.S. 144 
(1977)("L70") South Carolina v. Katzenbach, 383 U.S. 301 
(1966); City o f Rome v. United States, 446 U.S. 156 (1980); 
City o f Richmond v. United States, 422 U.S. 358 (1975) and 
United States v. Beer, 425 U.S. 130 (1976), a state 
unquestionably can. These cases were correctly decided and 
govern the disposition of this case, requiring affirmance of 
the judgment below.

In reality, redistricting cannot be "race-neutral". By 
its very nature, drawing lines to allocate political power 
requires classification of people according to group



3

characteristics, whether social, political, economic or racial. 
Those who draw political boundaries inevitably are aware of, 
and take into account, the race and other demographic 
characteristics of their constituents.

The core principles enunciated in JJJO and the other 
cases cited above have continuing validity. As long as it 
does not use race invidiously to cancel out the voting 
strength of nonminority groups, a state constitutionally may 
act to ensure equal electoral opportunity for minority voters 
by creating districts in which they constitute the majority of 
the voting age population ("majority minority districts"). 
Such actions by the state are not prohibited by, and in fact 
are wholly consistent with, the critical national policy, as 
expressed in the Voting Rights Act, of eradicating race- 
based voting discrimination. The Court’s recent decisions 
involving race-conscious measures do not require a different 
result.

Because of the statutory single-member district 
requirement for congressional elections,1 the only way to 
effectuate the equal participation guarantees of the 
fourteenth and fifteenth amendments in the context of 
congressional elections is through the creation of majority 
minority districts. Moreover, there is no cognizable harm 
suffered by nonminority group members included within 
fairly drawn majority minority districts.

A prohibition against considering race in redistricting, 
while permitting the consideration of a host of other factors, 
would itself violate the fourteenth and fifteenth 
amendments. Such a prohibition would impose substantial 
and unique burdens on racial minorities in the redistricting 
process and would inhibit their ability to have a fair 
opportunity to elect representatives of their choice.

lSee 2 U.S.C.A. §2c.



4

ARGUMENT
Introduction

For nearly one hundred years, African American 
voters had no opportunity to participate equally in the 
political process and no African American was elected to 
Congress from the State of North Carolina. In 1992, 
following the decennial reapportionment and the creation of 
two majority African American congressional districts, North 
Carolina sent its first two African American representatives 
since Reconstruction to Congress. The reapportionment 
plan that created these two districts is at issue in this case.

North Carolina has a long history of racial 
discrimination in voting. It was the subject of the landmark 
decision, Thornburg v. Gingles, 478 U.S. 30 (1986), in which 
this Court upheld findings of extreme racial bloc voting and 
vote dilution in the State’s legislative districts.

After a finding that the State had used racially 
discriminatory voting tests and devices leading to depressed 
minority voter registration and participation levels, forty of 
North Carolina’s one hundred counties were designated for 
preclearance under section 4(e) of the Voting Rights Act. 
As a "covered jurisdiction", North Carolina was required to 
submit its congressional reapportionment plan to the United 
states Attorney General for preclearance.

The congressional reapportionment plan originally 
submitted by the state contained one majority African 
American congressional district. A-3a.2 The Attorney 
General lodged a section 5 objection to this plan because it 
was dilutive of African American voting strength, noting that 
state authorities could have created an additional majority 
minority district. As evidence of this conclusion, the

2See Shaw v. Barr, C.A. No. 92-202-Civ-5-BR, slip op. at 13a 
(E.D.N.C. Aug. 7, 1992). The trial court opinion, from which most 
of this factual discussion is drawn, is found in the Appendix to 
Appellants’ Jurisdictional Statement. (U.S. App.)



5

Attorney General noted that it would have been possible to 
draw an additional combined majority African American and 
Native American district in the Southeastern portion of the 
state. Acting to cure the section 5 objection, the North 
Carolina General Assembly drew another reapportionment 
plan that contained a majority African American district in 
the center of the state. A-4a.

This brief will not address in detail the particular 
facts and circumstances of the North Carolina case. Nor will 
it discuss a covered state’s duty under the Voting Rights Act 
once the Attorney General has found that the state’s 
congressional reapportionment plan violates section 5. 
Amicus takes the position that once a covered state’s 
reapportionment plan is found to be in violation of section 
5, the state must remedy the violation. In its attempt to 
purge itself of the objection, the state enjoys great latitude. 
Neither the language of the statute, see 42 U.S.C. §1973c, 
the Attorney General’s section 5 regulations, see 28 C.F.R. 
51.44, nor case law, see Wise v. Lipscomb, 437 U.S. 535-41 
(1978); Connor v. Finch, 431 U.S. 407, 414-415 (1977) and 
Reynolds v. Sims, 377 U.S. 533, 586 (1964) requires a state 
to adhere specifically to any particular remedial plan. In 
reviewing the state’s remedial plan, the Attorney General’s 
inquiry is limited to whether the plan cures the basis for the 
objection, not whether the state adopted one or another 
remedy proposed in the Attorney General’s comments.3 As 
long as the state’s remedial plan corrects the violation 
without fencing nonminority groups out of the political 
process, it passes muster under the Voting Rights Act and 
the Constitution. Indeed, under the decisions of this Court,

3Indeed, in this case, the Attorney General’s objection letter does 
no more than identify, as evidence of discrimination, one possible 
alternative to the configuration adopted by the state that included 
two districts. Nowhere does the letter suggest that the Attorney 
General intended to require adoption of the particular district that 
was identified in the objection letter. And indeed, the Attorney 
General approved the second plan which did not contain the 
referenced district.



6

even in the absence of a violation, a state may act voluntarily 
to avoid dilution of minority voting strength. UJO, 430 U.S. 
144.

We address here the argument made by petitioner 
and some of their amici that previously settled law should be 
changed - specifically, that the Constitution requires what 
they call "race-neutral" districting and that UJO v. Carey 
should be overruled.

I. A pp e l l a n t s’ Pr o p o s e d  R e q u ir e m e n t  o f  "r a c e - 
N e u t r a l " D ist r ic t in g  is In c a p a b l e  o f  
R e a l iz a t io n

A. Legislatures Cannot Draw Electoral Districts 
Without Taking Race Into Account

The term "race-conscious districting" purports to 
describe the process whereby minority voters are aggregated 
into majority minority districts to create an opportunity for 
these voters to elect a preferred candidate. When the 
election system in a jurisdiction is arranged to include some 
districts in which the minority group predominates, the racial 
majority group in the jurisdiction cannot control the election 
of all representatives as it would if elections were conducted 
at-large in a winner take all system, or solely in districts in 
which the majority predominated. See Guinier, "The 
Representation of Minority Interests: The Question of
Single Member Districts," 14 Cardozo L. Rev. 1001 (1993).

However, the term "race-conscious" is misleading in 
that it falsely suggests that there is such a thing as "race- 
neutral" districting. Appellants’ proposed requirement of 
"race neutral" districting is incapable of realization and 
would mask the practice of discriminating against racial 
minorities in the districting process.

By its very nature, redistricting is the process of 
aggregating people according to their group characteristics,



7

whether geographic, economic, social or racial. In addition, 
the Constitution requires that districts be substantially equal 
in population. It is inevitable that in the process of devising 
districts, a host of political or "nonneutral" considerations 
will affect how boundaries will be drawn. In deciding where 
to place the district lines, legislators decide which of several 
possible groups will constitute the district majority, and thus 
control the district. In so doing, legislators make decisions 
about which incumbents will be protected, which political 
parties will be advantaged, which political groups will be 
given a voice, and which communities will be advantaged by 
being allowed to remain whole. Karcher v. Daggett, 462 U.S. 
725 (1983); Gaffney v. Cummings, 412 U.S. 735 (1973). 
Invariably, such decisions have obvious racial consequences 
to which legislators cannot close their eyes. UJO, 430 U.S. 
at 176 (Brennan, J. concurring). Three factors support this 
conclusion.

First, census data must be used to meet constitutional 
equal population standards. This data is full of explicit 
racial information. Moreover, computer technology makes 
it possible to analyze the racial and political impact of each 
possible redistricting choice in considerable detail in very 
short periods of time. Karcher, 462 U.S. at 752, n.10 
(Stevens, J., concurring). Under these circumstances, to 
pretend that legislators and legislative staffs are unaware of 
race or national origin when they district is to wink at 
reality. Cf, Alexander v. Louisiana, 405 U.S. 625 (1972); 
Castenada v. Partida, 430 U.S. 482 (1977)(presence of data 
showing race or national origin sufficient to infer that 
information taken into account).

Second, even if racial considerations are not explicit 
in the districting process, there are a myriad of proxies for 
racial data. Minorities often are residentially segregated and 
share socioeconomic characteristics that define their political 
interests. Because of residential segregation, the precincts 
and wards that are the building blocs of districts often have



8

clearly identifiable racial characteristics.4 See Wright v. 
Rockefeller, 376 U.S. 52 (1964). In addition to residential 
patterns and income, other proxies such as traditional 
physical barriers (such as the railroad tracks customarily 
found in segregated communities), and in some instances, 
party affiliation may be used in the districting. The 
existence of these proxies for race make it implausible that 
racial considerations will not enter the districting process 
either directly or indirectly. A rule that requires legislators 
to ignore racial considerations while taking into account any 
other social, political, economic and geographic attribute of 
minority groups ignores plain reality. Imposing such a rule 
would not remove racial considerations from the districting 
process, it simply would prevent legislators from affirmatively 
acting to protect minority interests in the electoral sphere.

Third, redistricting largely is driven by incumbents. 
Davis v. Bandemer, 478 U.S. 109, 147 (1986), (O’Connor, J., 
dissenting); Garza v. County o f Los Angeles, 918 F.2d 763 
(9th Cir. 1990), cert, denied. 111 S. Ct. 681 (1991). In the 
context of congressional reapportionment, where incumbent 
state legislators draw the congressional districts, a primary 
motivation is maximizing the legislative influence of their 
parties by increasing, to the extent possible, the election 
prospects of fellow partisans. See Davis, supra. Given the 
known nationwide patterns of racially polarized voting5 and

’̂[Ljike bloc-voting by race, this too is a tact of life, well known 
to those responsible for drawing electoral district lines. These 
lawmakers are quite aware that the districts they create will have a 
white or a black majority; and with each new district comes the 
unavoidable choice as to the racial composition of the district." Beer 
v. United States, 425 U.S. 130, 144 (1976)(White, J., dissenting).

sSee Beer v. United States, 425 U.S. at 144 (White, J., dissenting); 
Thornburg v. Gingles, 478 U.S. 30 (1986); see also, Gomez v. City of 
Watsonville, 863 F.2d 1407, 1417 (9th Cir. 1988); Citizens for a Better 
Gretna v. City of Gretna, 834 F.2d 496 (5th Cir. 1987), cert, denied, 
492 U.S. 905 (1989); Ewing v. Monroe County, 740 F. Supp. 417, 421 
(N.D. Miss. 1990); Jeffers v. Clinton, 730 F. Supp. 196, 198 (E.D. Ark. 
1989); aff d, 111S Ct. 662 (1991); Brown v. Board of Commissioners



9

high level of loyalty to the Democratic Party among African 
Americans, in many jurisdictions, see e.g, Whitcomb v. 
Chavis, 403 U.S. 124 (1971), it is likely that these incumbents 
will closely consider the impact of their line-drawing on the 
racial composition of their districts. Even if incumbents do 
not monitor the racial impact of line-drawing, but merely 
seek to preserve the core of their constituencies, there is 
likely to be a racial impact given segregated housing 
patterns.

B. A  "Race-Neutral" Districting Requirement 
Would Conflict with Well-Established Principles 
in Reapportionment Cases and Would be 
Inconsistent with the Voting Rights Act

This Court consistently has recognized in its 
jurisprudence after Reynolds v. Sims, 377 U.S. 533 (1964), 
that state legislatures must be given room within one-person, 
one-vote parameters to consider and advance a variety of 
political and policy goals. Brown v. Thomson, 462 U.S. 835 
(1983); Abate v. Mundt, 403 U.S. 182 (1971); Mahan u 
Howell, 410 U.S. 315 (1973); Gaffney v. Cummings. 412 US 
735 (1973); Growe v. Emison, No. 91-1420, 1993 WL 42842 
(U.S. Minn. Feb 23, 1993), 1993)(slip op. pp.7-8). See also, 
Wright v. Rockefeller, 376 U.S. 52 (pre-Reynolds). Requiring 
the kind of highly antiseptic districting process that would be 
necessary to insure that racial information was not taken 
into account, either directly or indirectly, would unavoidably 
restrict legislative bodies’ ability to implement these other 
kinds of policies. Indeed, if appellants’ "race-neutral"

of Chattanooga, 122 F. Supp. 380, 393 (E.D. Tenn. 1989); Clark v. 
Edwards, 725 F. Supp. 285, 298-99 (M.D. La. 1988), vacated sub nom. 
Clark v. Roemer, 750 F. Supp. 200 (M.D. La. 1990), vacated and 
remanded, 111 S. Ct. 2881 (1991); McDaniels v. Mehfoud, 702 F. 
Supp. 588, 593-94 (E.D. Va. 1988); Martin v. Allain, 658 F. Supp. 
1183, 1193-94 (S.D. Miss. 1987); McNeil v. City of Springfield, 658 F. 
Supp. 1015, 1028 (C.D. 111. 1987).



10

districting approach is adopted, the only way legislatures will 
be able to draw plans immune from challenge is to 
completely remove themselves from the process and engage 
in computer-controlled, mathematical redistricting. Such a 
practice undoubtedly would run afoul of the clear Reynolds 
principle that districting is primarily a political and legislative 
process. Reynolds, 111 U.S. at 586.

For a variety of reasons, districts drawn to meet 
purely mathematical or "objective" criteria with no regard for 
racial or political impact are not a desired goal. See 
Whitcomb, 403 U.S. 124; White v. Weiser, 412 U.S. 783, 794- 
795 (1973). Such a "politically mindless approach may 
produce, whether intended or not, the most grossly 
gerrymandered results." Gaffney v. Cummings, 412 U.S. at 
753. Similarly, a purportedly racially mindless approach will 
likely result in only whites being represented.5 6
Alternatively, a purely mathematical formulation would 
require a state to adopt a series of district plans at random 
without regard to whether the lines minimize minority voting 
strength until it stumbles across a plan that does not have 
this illegal effect.7

5Indeed, application of such a "mindless" approach in a state like 
North Carolina, with a history of voting discrimination, will as often
as not result in only whites being represented.

7As (then) Circuit Judge Stevens observed in Cousins v. City 
Council of the City of Chicago:

A test which would require legislators to act with 
complete indifference to the impact of districting on 
cognizable groups of voters is simply much too strict.
It should either open the door to invalidation of all 
apportionment plans or require legislators to 
perform ridiculous charades in their public 
deliberations and to do their only significant work in 
private conference.

466 F. 2d 847, 856 (7th Cir. 1972) (Stevens, J., dissenting).



11

Indeed, a rule that would require each state to 
engage in a haphazard redistricting approach that did not 
take race into account, only to be sued later, would frustrate 
the unequivocal intent of Congress embodied in the Voting 
Rights Act. In passing the Act, Congress rejected, as wholly 
ineffective, piecemeal litigation to enforce constitutional 
voting guarantees. South Carolina v. Katzenbach, 383 U.S. at 
313. Such enforcement strategies were seen as "unusually 
onerous," "exceedingly slow," and inconsistent with the 
urgent national priority to end racial discrimination in voting 
once and for all. Id.., at 314. It is completely consistent with 
this congressional policy to allow states voluntarily to create 
majority minority districts in order to comply with the 
requirements of the Act.

Finally, even if the districting process were left solely 
to the computers, courts would be required to closely 
scrutinize the instructions given to the computer regarding 
factors to consider in drawing lines to insure that neither 
race nor racial proxies entered into the picture. What 
petitioners really propose is a mechanical rule that as long 
as race is not explicitly identified as a factor in the districting 
process, and no majority minority subdistrict is created 
within an otherwise majority white jurisdiction,
discrimination has not occurred. Such a rule would usher in 
a return to the era of "sophisticated, [not] simple-minded 
modes of discrimination." Lane v. Wilson, 307 U.S. 268, 279 
(1939).

II. A p p e l l a n t s’ "Ra c e  N e u t r a l " D ist r ic t in g

A p p r o a c h  Is In c o n sist e n t  W ith  T h e  V o t in g

R ig h ts  A ct

A. Section 5 o f the Act Requires Race-Conscious 
Districting.

To effect compliance with Section 5 of the Act, a 
state must take race into account in the districting process. 
This Court’s decisions consistently have recognized this 
simple principle. In Beer v. United States, 425 U.S. 130



12

(1976), the Court established an "effects" test under section 
5 that required covered jurisdictions to reject 
reapportionment plans that "[wjould lead to a retrogression 
in the position of racial minorities with respect to the 
effective exercise of the electoral franchise." Beer, 425 U.S. 
at 141. Similarly, in Allen v. State Board o f Elections, 393 
U.S. 544 (1969), the Court held that Section 5 scrutiny 
applied to a change from a district to an at-large system of 
election to ensure that minority voting strength was not 
diluted. 393 U.S. at 569.

In City o f Richmond v. United States, 422 U.S. 358 
(1975), the Court held that in order to avoid a violation of 
section 5, the City of Richmond was required to assess 
African American voting strength and develop a plan that 
fairly reflected that strength in the enlarged community 
following annexation. Richmond, 422 U.S. at 371 In 
Richmond, compliance with section 5 necessitated 
consideration of race and the impact on minority voting 
strength of proposed political boundary changes in the 
annexation process and affirmative action to ensure against 
dilution of minority voting strength. Failure to assess and 
fairly reflect the electoral strength of African Americans in 
the postannexation community would have created a 
violation. Id.

Also, in City o f Rome v. United States, 446 U.S. 156 
(1980), this Court concluded that annexations undertaken by 
the city violated Section 5 because "[b]y substantially 
enlarging the city’s number of white eligible voters without 
creating a corresponding increase in the number of Negroes, 
the annexations reduced the importance of the votes of 
Negro citizens who resided within the preannexation 
boundaries of the city." City o f Rome, 446 U.S. at 187. 
Underscoring the need for a jurisdiction to take race into 
account in changing its political boundaries, the Court held 
that the jurisdiction’s lack of detailed information on the 
racial breakdown of city population left the city with no 
defense against a charge that the annexations violated 
Section 5. Id. at 186.



13

Implicit in each of these rulings is the proposition 
that compliance with the Voting Rights Act necessarily 
requires that racial considerations be examined and 
employed to ensure that minorities be afforded the 
opportunity to participate and elect their candidates of 
choice.

Congress was well aware that compliance with 
Section 5 necessarily would require a state to consider race 
in reapportioning its districts. In amending the Act in 1982, 
Congress specifically endorsed the Section 5 retrogression 
standard of Beer v. United States, with its implicit 
requirement of race consciousness in evaluating the impact 
of political boundary changes .Id. Congress also cited the 
continued gerrymandering of election boundaries to exclude 
African Americans from the political process as a basis for 
extending section 5. S. Rep. No. 97-417, 97th Cong., 2d Sess. 
6 (1982)("S. Rep.''). Indeed, Congress expressly noted that 
"[t]he continuing problem with reapportionments is one of 
the major concerns of the Voting Rights Act." Id. at 12 
n.31.

B. Section 2 o f the Act Requires Race Conscious 
Districting.

Even in non-covered jurisdictions, racial data must be 
considered in districting because of the "effects" test adopted 
in the 1982 amendments to section 2. In 1982, Congress 
adopted the vote dilution analysis set out in White v. 
Regester, 412 U.S. 755 (1973) and Zimmer v. McKeithen 485 
F.2d 1297 (5th Cir. 1973) expressly identifying racially 
polarized voting as a key factor in establishing a vote 
dilution claim. S. Rep. at 29. In Thornburg v. Gingles, 478 
U.S. 30, interpreting the 1982 amendment to section 2, the 
Court identified: a) the existence of a minority group that is 
b) politically cohesive and sufficiently large and 
geographically compact as two of the three preconditions for



14

a finding of vote dilution under the Act. 478 U.S. at 48s 
This test requires states engaging in redistricting to consider, 
among other factors, the voting strength and the size and 
geographic concentration of minority groups in order to 
avoid violating section 2.

Compliance with section 2 necessarily requires states 
to explicitly consider race in districting matters. If they are 
prevented from considering racial data in the process they 
will be left vulnerable to attack under section 2. Such a 
result is fundamentally inconsistent with congressional intent. 
In amending section 2, Congress took into account, and 
rejected as unfounded, concerns raised by the Act’s 
detractors that imposing an affirmative obligation on 
government to secure minority voting rights by race­
conscious mechanisms was alien to this country’s political 
tradition. See Gingles v. Edminston, 590 F. Supp. 345, 356-57 
(E.D.N.C. 1984), affd, Thornburg v. Gingles, 478 U.S. 30 
(citing Voting Rights Act: Hearings Before the Subcomm. on 
the Constitution o f the Senate Comm, on the Judiciary, 97th 
Cong., 2d Sess. 1351-54 (Feb. 12, 1982) (statement o f Professor 
Blumstein), p. 509-10 (Jan. 28, 1982) (statement o f Professor 
Erler), p. 231 (Jan. 27, 1982) (testimony of Professor Bems). 
In doing so, Congress made it inevitable that states 
voluntarily will use race-conscious measures to secure 
compliance with section 2.

C. The Disclaimer on Proportional Representation 
Does Not Limit Black Electors’ Opportunity.

Appellants’ argument that majority minority districts 
were created to ensure the election of a "quota" of minority 
representatives in violation of the Act’s proportional 
representation disclaimer, wholly misunderstands the law. 
The Act’s disclaimer provides that "nothing in this section

Indeed, in Gingles this Court stated that one of the two most 
important factors bearing on Section 2 challenges is the existence of 
racially polarized voting. 478 U.S. at 48 n.15.



15

establishes a right to have members of a protected class 
elected in numbers equal to their proportion in the 
population. This language focuses not on the minority voter, 
but on the election of minority individuals to office. By its 
plain language, the provision is a disavowal of election 
"quotas" for minority candidates. 42 U.S.C. Section 1973b 
See S. Rep. at 30-31(The disclaimer provision is "both clear 
and straightforward. . . .  It puts to rest any concerns that 
have been voiced about electoral quotas).

The language of this provision is consistent with the 
Act’s focus on providing the opportunity for minority voters 
to participate and elect their candidates of choice, not on 
guaranteeing the election of a particular number of the 
"members of a protected class." Id.; S. Rep. at 28; Gingles, 
478 U.S. at 46. The creation of majority minority districts in 
proportion equal to the minority proportion of the 
population is not inconsistent with this provision. However, 
even the creation of such districts does not guarantee the 
election of minority representatives. Indeed, the only 
guarantee afforded minority voters is that they be given the 
opportunity to elect a candidate who is actually accountable 
to them—because she is dependent on them for their 
votes—regardless of color. Cf. Rogers v. Lodge, 458 U.S. 
613, 623 (1988)(Racially polarized voting in an unfair 
electoral system allows elected officials to ignore the 
interests of minority constituents without repercussions).

The creation of two majority African American 
congressional districts out of twelve in the particular case of 
North Carolina does not violate the Voting Rights Act’s 
disclaimer of guaranteed proportional representation. From 
a purely mathematical standpoint, African Americans do not 
enjoy absolute proportional representation. African 
Americans constitute 22% of the population of North 
Carolina, but have the opportunity to elect their candidates 
of choice in two of twelve districts, or 16.6% of the districts. 
Since whites are a majority in 83.4% of the districts, whites 
are in fact overrepresented with respect to their percentage 
of the state’s population. The creation of two majority



16

African American districts out of a total of twelve does not 
violate the Voting Rights Act’s disclaimer on proportional 
representation.

III. A p p e l l a n t s’ "Ra c e  N e u t r a l " Ap p r o a c h  to
R e d ist r ic t in g  is N o t  R e q u ir e d  B y  A p p l ic a b l e

C o n st it u t io n a l  Pr in c ipl e s

A State voluntarily may use "race-conscious" 
measures to comply with statutory and constitutional voting 
guarantees and avoid abridgement of minority voting 
strength. UJO, 430 U.S. 144. Unless the districts are 
"conceived or operated as purposeful devices to further 
racial discrimination by minimizing, cancelling out or 
diluting the voting strength of racial elements in the voting 
population," no constitutional injury results. Rogers v. Lodge, 
458 U.S. at 617 (internal quotation marks omitted). See 
Gomillion v. Lightfoot, 364 U.S. 339 (1960). The cases 
decided since UJO, in which this Court has struck down 
race-conscious remedies, are inapplicable in the context of 
redistricting, and thus have no impact on UJO. City o f 
Richmond v. Croson, 488 U.S. 469 (1989); Wygant v. Jackson 
Board o f Education, 476 U.S. 267 (1986); Fullilove v. 
Klutznick, 448 U.S. 448 (1980).

In its Equal Protection jurisprudence this Court has 
looked at two factors in determining the permissibility of 
racial considerations-the strength of the State’s justification 
for using race-conscious measures, and the nature and extent 
of the burdens imposed on individuals affected by the 
measures. Both factors support the constitutionality of 
taking race into account in the districting process.

A. The State’s Interest In Complying with the 
Voting Rights Act

The Court consistently has held that overcoming the 
effects of past discrimination and avoiding current 
discrimination are sufficient governmental justifications for 
the employment of racial considerations. See Swann v.



17

Charlotte Mecklenberg Board of Education, 402 U.S. 1 (1971); 
McDaniel v. Barresi, 402 U.S. 39 (1971); UJO, supra. Where 
federal law creates a duty not to discriminate, the weight of 
this interest may be greater.

In the context of districting, the comprehensive 
remedial scheme under sections 5 and 2 of the Act creates 
a powerful justification for the use of race-conscious 
remedies. This justification arises out of the extensive 
findings of Congress, as recently as 1982, that racial 
discrimination in voting is a persistent evil that is national in 
scope and that ending this abridgement of a fundamental 
right9 is a national priority. See South Carolina v. 
Katzenbach, 383 U.S. at 309.

Under section 5, a covered jurisdiction may not 
implement any electoral change, no matter how small, unless 
it can prove that the change will not discriminate against 
minority voters. Allen v. State Board of Elections, 393 U.S. at 
566. This shift in the burden of proof was a clear expression 
of Congress’s intent to ensure that no new voting 
mechanisms be used to perpetuate past discrimination. This 
policy alone creates a vital state interest in using race 
conscious measures to avoid a violation of section 5. 
Similarly, states not covered by section 5 have a strong 
interest in avoiding violation of section 2. The only way to 
avoid this risk is by being cognizant of race and assuring 
minority electors a fair opportunity to elect candidates of 
their choice.

Wick Wo v. Hopkins, 118 U.S. 356 (1886); Reynolds v. Sims, 377 
U.S. at 555, 561-562 ("[Tjhe right of suffrage is a fundamental matter 
in a free and democratic society. . . .  the right of suffrage can be 
denied by a debasement or dilution of the weight of a citizen’s vote 
just as effectively as by wholly prohibiting the free exercise of the 
franchise.”); Mobile v. Bolden, 446 U.S. 55, 104-105 (1980), (Marshall, 
J. dissenting); Rogers v. Lodge, 458 U.S. 613 (1982).



18

This Court has upheld Congress’s authority under the 
fourteenth and fifteenth amendments to adopt "prophylactic 
rules" and induce states to avoid conduct it has defined as 
unlawful. E.g., Croson 488 U.S. at 490 (citing Katzenbach v. 
Morgan, 384 U.S. 641; South Carolina v. Katzenbach, 383 
U.S. 301. Thus, specifically in the context of redistricting, a 
state can "take voluntary race-conscious action to achieve 
compliance with the law even in the absence of a specific 
finding of past discrimination." Wygant, 476 U.S. at 291 
(O’Connor, concurring)(citing UJO). See also, Metromedia 
Broadcasting v. Federal Communications Comm., 497 U.S.
___, ___, 111 L. Ed. 2d 445, 473 (1990) (affirming that
neither the fifteenth nor the fourteenth amendment 
"mandates any per se rule against using racial factors in 
districting and apportionment.")(citing UJO v. Carey).

B. The Creation of Majority Minority Districts 
Does Not Impose A Constitutionally Forbidden 
Burden on White Voters

The nature and extent of the "burden" imposed on 
white voters affected by the creation of majority minority 
districts does not violate equal protection concepts. As long 
as the state does not use race systematically to exclude white 
voters from the political process, white voters assigned to 
majority minority voting districts are not subject to any 
cognizable harm. There is no allegation in this case that 
white voters systematically are excluded from the political 
process.

The "burden" imposed on whites within majority 
white districts is not akin to the burdens created by the race­
conscious allocation of resources that has elsewhere 
concerned this Court. For example, in Wygant, before 
striking down the preferential layoff policy, the Court 
likened white workers’ expectation in job security to the 
value of equity in a house. It highlighted the likely 
disruption of this expectations in job security, noting that 
"layoffs impose the entire burden of achieving racial equality



19

on particular individuals, often resulting in serious disruption 
of their lives"10;

Similarly, in Croson, the Court highlighted the fact 
that minority contractors from anywhere in the country 
would receive preference over whites from the City of 
Richmond. ("Under Richmond’s [minority set-aside] scheme, 
a successful black, Hispanic, or Oriental entrepreneur from 
anywhere in the country enjoys an absolute preference over 
other citizens based solely on their race") Croson, 488 U.S. 
at 508; See also-, Metromedia, 111 L.Ed.2d at 475 (O’Connor, 
J. dissenting)("The distress sale imposes a particularly 
significant burden. The FCC has at base created a 
specialized market [for broadcast licenses] reserved 
exclusively for minority controlled applicants. There is no 
more rigid quota than a 100% set-aside.")

In contrast, "race-conscious" districting does not 
allocate representation in a way that unfairly burdens white 
voters. White voters who are assigned to majority minority 
districts are not deprived of the right to vote, nor is the 
weight of their individual votes arbitrarily debased or diluted 
in comparison to the votes of any other voters. Reynolds, 377 
U.S. 533. No individual voter has the right to vote for a 
particular candidate, nor does a voter have a constitutional 
claim if her candidate loses at the polls. Whitcomb v. 
Chavis, 403 U.S. at 153-154. In fact, the individual voter has 
no claim even if her candidate repeatedly loses—for example, 
when a Republican happens to live in majority Democratic 
district, Cf. Davis v. Bandemer, 478 U.S. at 109, or her party 
suffers crushing defeat statewide at the polls. Id., at 138-140; 
Whitcomb, 403 U.S. at 154.

The white voter who is assigned to a majority 
minority district is in no worse a position than the minority

10In Johnson v. Transportation Agency , 480 U.S. 616 (1987), on 
the other hand, the Court upheld an affirmative action plan because 
it was deemed not to frustrate the much lower expectation in being 
hired.



20

voter who is in a majority white district, or for that matter, 
the Democrat in a Republican district, even though their 
electoral choices may regularly be defeated. To the extent 
that the vote of an individual white voter within a majority 
minority district has been submerged, her complaint actually 
is with the system of districting itself. Districting is a 
compromise between at-large systems in which the majority 
controls 100% of the political power, and proportional 
representation systems where voters are allowed to form 
their own constituencies.11 See Whitcomb v. Chavis, 403 
U.S. at 146-147; Davis v. Bandemer, 478 U.S. at 159 
(O’Connor, J., dissenting). Submergence is inevitable in 
winner-take-all district systems because districts enhance the 
power of the majority, Whitcomb v. Chavis, 403 U.S. at 153, 
regardless of its race. In a system where there are only 
winners and losers, there is no way to moderate that power. 
Davis v. Bandemer, 478 U.S. at 159 (O’Connor, J., 
dissenting).

Appellants themselves readily concede that white 
voters have no cognizable claim to group representation as 
white voters. Brief of Appellants at 27, see UJO, 430 U.S. at 
144; White v. Regester, 412 U.S. 755 (1973); Whitcomb v.

u In none of these systems are racial considerations likely to be 
extirpated from the process of forming constituencies. In the 
districting context, legislators will make the race-conscious 
designations of electoral constituencies. Beer v. United States, 425 U.S. 
130, 144 (1976), (White, J., dissenting). Under a system of 
proportional representation, the voters themselves will make race­
conscious decisions about the constituency to which they belong. In 
an at-large, winner-take-all system, the voters’ race conscious 
decisions may allocate power in a particularly invidious way. A racial 
majority in a racially polarized constituency will completely submerge 
the minority’s choices and disproportionately enhance its own. 
Where this is true, this Court has invalidated winner-take-all at-large 
constituencies. See White v. Regester, 412 U.S. 755 (1973); Rogers v. 
Lodge, 458 U.S. 613 (1982); Thornburg v. Gingles, 478 U.S. 30.



21

Chavis, 403 U.S. at 124. Unless the election system is 
"arranged in a manner that will consistently degrade a 
voter’s or a group of voter’s influence on the political 
process as a whole," whites have no constitutional claim of 
voting discrimination. Davis v. Bandemer, 478 U.S. at 142- 
143; UJO, 430 U.S at 144, 165 (no cognizable claim where 
no "fencing out of the white population from participation 
in the political processes . . . and the plan did not minimize 
or unfairly cancel out white voting strength.").

In North Carolina, there was no claim that white 
voters have not been "fenced out from participation" in the 
political process. In fact, as we described above, white 
voters as a group still are overrepresented in the State as a 
whole. To the extent that voting and political concerns are 
racially polarized, the white voter within the majority 
minority district is "virtually represented" by, and may rely 
on, white representatives in other districts to protect her 
concerns.12 See UJO, 430 U.S at 171, n.l.

12The concept of virtual representation is not a formulation to 
console losing white voters. It is a cornerstone principle of winner- 
take-all district representation. Virtual representation is assumed on 
several levels within the system. Within the district, all voters, 
including those who did not vote for the winning candidate are 
"deemed to be adequately represented by the winning candidate," 
Davis v. Bandemer, 478 U.S. at 132. Even where voters expressly did 
not choose the winning candidate and even in a "safe" district where 
the losing group loses election after election, losing voters are 
deemed to have as much opportunity to influence the winning 
candidate as anyone else in the district. Id. Looking at the system as 
a whole, moreover, as long as no group is unfairly fenced out of the 
political process, losing voters in any district are believed to be 
adequately represented vicariously by representatives of like mind in 
nearby districts. See Guinier, 14 Cardozo L. Rev. 1001, supra. This 
assumption breaks down where minorities systematically have been 
excluded and voting is racially polarized.



22

IV . P r o h ib it in g  R a c e -C o n s c io u s  R e d istr ic ttn g  
W o u l d  b e  In c o n sist e n t  W it h  t h e  F o u r t e e n t h  
A m e n d m e n t .

We have explained above that the view that the 
process of creating congressional or other legislative districts 
can be objective and neutral is illusory. By the very nature 
of the districting process, it is inevitable that a host of 
political considerations will affect the decisions as to where 
and how lines will be drawn. Protecting incumbents, 
ensuring districts that are safe for one party or another, 
compromises designed to allocate political power between 
competing groups and protecting various constituent groups, 
are but a few of the influences, often wholly unrelated to or 
inconsistent with the creation of compact and contiguous 
districts, that play a role. Inevitably, in the balancing of the 
various interests at work the race of voter blocs will also be 
a factor, directly or indirectly through proxies such as 
income or residency.

Of course, the invidious use of race — to exclude a 
minority group from meaningful participation by submerging 
it in a majority white district — is prohibited both by the 
Constitution and by the Voting Rights Act. The issue in this 
case, however, is whether the Constitution bans any 
consideration of race in order to allocate fairly 
representation in a legislative body or delegation by 
affording minority voters a reasonable opportunity to elect 
representatives of their choice. To make racial blindness a 
legal requirement for redistricting decisions would itself be 
inconsistent with the fourteenth and fifteenth amendments.

Consider the following hypothetical: a state
legislature or redistricting commission considers race along 
with many other factors and draws districts not to achieve 
"proportional representation" but, as in the present case, to 
afford minority voters a fair opportunity to elect 
representatives of their choice by creating some majority 
minority districts. Through the initiative process, a 
referendum is passed amending the state constitution so as



23

to prohibit "the consideration of race in the creation of 
electoral districts or the creation of electoral districts for the 
purpose of providing any racial group the opportunity of 
electing representatives of their choice." No other 
restrictions are placed on the factors that may be considered 
in constructing districts.

Under a number of decisions of this Court, such an 
enactment would violate the fourteenth amendment. In Lee 
v. Nyquist, 318 F. Supp. 710 (W.D.N.Y. 1970), affd, 402 U.S. 
935 (1971), this Court summarily affirmed, on the authority 
of Hunter v. Erickson, 393 U.S. 385 (1969), striking down a 
state statute that prohibited "assigning] or compelling] 
[students] to attend any school on account of race . . .  or for 
the purpose of achieving [racial] equality in attendance . . . 
at any school." 318 F. Supp. at 712. See also, Washington v. 
Seattle School Dist. No. 1, 458 U.S. 457 (1982)(state 
constitutional amendment requiring "neighborhood schools" 
with various exceptions unconstitutional since its purpose 
was to prohibit mandatory bussing for the purpose of ending 
racial isolation). Hunter itself held invalid a local ordinance 
that singled out fair housing laws for disfavored treatment 
compared to all other types of regulation of real estate 
transactions. See also, Reitman v. Mulkey, 387 U.S. 369 
(1967).

The primary basis for these decisions was that the 
effect of the challenged laws was to "place special burdens 
on the ability of minority groups to achieve beneficial 
legislation." Washington v. Seattle School Dist. No. 1, 458 
U.S. at 467. Thus, in Seattle School Dist. No. 1 and Lee v. 
Nyquist, the enactments did not require neighborhood 
schools as a neutral principal; rather they permitted school 
districts to deviate from neighborhood schools for a variety 
of reasons except for the purpose of assignment based on 
race to achieve integration. The ordinance in Hunter 
permitted persons seeking to regulate real estate transactions 
to obtain legislation from the Akron City Council; only if 
discrimination based on race was to be prohibited was voter 
approval required.



24

Similarly, in our hypothetical, the state would be 
permitted to take into account a variety of different factors 
in drawing district lines; only taking race into account for the 
purpose of giving minorities a fair opportunity to elect 
representatives of their choice would be prohibited. Just as 
in the cases above, the law "would not attemp[t] to allocate 
governmental power on the basis of any general principle." 
Hunter v. Erickson, 393 U.S. at 395. "Instead, it uses the 
racial nature of an issue to define the governmental decision 
making structure, and thus imposes substantial and unique 
burdens on racial minorities." Washington v. Seattle School 
District No. 1, 458 U.S. at 470.

If it would be a violation of the fourteenth and 
fifteenth amendments for a state to prohibit consideration of 
race in drawing district lines in order to achieve a fair 
allocation of electoral opportunity, then, we submit, those 
same amendments do not prohibit such consideration. As 
we have demonstrated above, white voters do not suffer any 
harm from the drawing of majority minority districts; whites 
have an opportunity to elect a disproportionate number of 
representatives of their choice, and no one has been denied 
the right to vote. The Constitution does not prohibit a state 
from voluntarily taking actions that take race into account to 
benefit minorities and, indeed, the body politic as a whole; 
therefore it does not prohibit a state from taking race into 
account to ensure a proper and fair distribution of political 
power. In the words of Justice Frankfurter: "To use the 
Fourteenth Amendment as a sword against such State power 
would stultify that Amendment." Railway Mail Association 
v. Corsi, 326 U.S. 88, 98 (1945)(Frankfurter, J., concurring).



25

C o n c l u sio n

For the foregoing reasons, the decision below should 
be affirmed.

Respectfully submitted,

E l a in e  R. Jo n es  
Ch a r l e s  St e p h e n  Ra l s t o n  

*D a y n a  L. Cu n n in g h a m  
G a il o n  W. M cG o w e n  

NAACP Legal Defense 
and Educational Fund, Inc. 
99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 219-1900

Attorneys for Amicus Curiae

*Counsel of Record