The Leadership Conference on Civil and Human Rights

Volume 8 no. 2

MILLER v. JOHNSON

The Court on June 29, 1995, found that "race was...the predominant, overriding factor explaining the General Assembly's decision to attach to the Eleventh District various appendages containing dense majority-black population...As a result, Georgia's congressional redistricting plan cannot be upheld unless it satisfies strict scrutiny, our most rigorous and exacting standard of constitutional review." The Court went on to hold that compliance with the Voting Rights Act 'standing alone' was not sufficient to establish a compelling state interest and affirmed the decision of the three judge district court that held the plan unconstitutional.

Background

The state of Georgia gained an additional congressional district during the 1990 reapportionment process bringing its number to 11. In the process of redrawing its congressional map, the state legislature drew a second majority-African American district (11th) which included the city of Macon, the existing majority African-American district (5th) being in the Atlanta area. A third district (2nd) had an African-American voting age population of more than 35 percent. Because the state of Georgia is cover ed by the Voting Rights Act it was required to submit its redistricting plan to the Department of Justice or the U.S. District Court for the District of Columbia for preclearance. The Department of Justice refused to preclear the first plan as well as a second state-drawn plan arguing that the State could create a third majority African-American district and that such was required by the Voting Rights Act. The legislature complied and submitted a third plan that included three majority African-American districts, the 2nd, 5th, and 11th. The new eleventh district dropped the city of Macon, but picked up African-American communities in Savannah and extended across the state to pick up African-American communities in Atlanta. The 2nd district included Af rican-American communities in Macon and the southwest part of the state. The 5th district was centered in Atlanta. DOJ precleared the third plan. The constitutionality of the 11th district was challenged.

On September 12, 1994, the district court panel ruled that the 11th district was unconstitutional, holding that race was the predominant factor in drawing the lines. The court held that compliance with the Voting Rights Act may be a compelling state int erest but that the creation of three districts was not required to comply with the Act and thus the redistricting plan was not narrowly tailored.

The Opinions

Justice Kennedy wrote the Court's opinion. The majority found that the State's assertion that for the plaintiffs to state a claim under Shaw the district's shape must be bizarre was a misreading of Shaw.

"Shape is relevant not because bizarreness is a necessary element of the constitutional wrong or a threshold requirement of proof, but because it may be persuasive circumstantial evidence that race for its own sake, and not other districting principl es, was the legislature's dominant and controlling rationale in drawing its district. The logical implication, as courts applying Shaw have recognized, is that parties may rely on evidence other than bizarreness to establish race-based districting ."

The opinion then discusses the evidence presented in this case and agrees with the District Court's finding that race was the "predominant, overriding factor" explaining the creation of the 11th district, and that the "legislature subordina ted traditional race-neutral districting principles, including...compactness, contiguity, respect for political subdivisions or communities defined by actual shared interests, to racial considerations." Thus, the Court states, the plan cannot be uph eld unless it satisfies strict scrutiny, i.e., is narrowly tailored to meet a compelling state interest.

The opinion adds that compliance with the Voting Rights Act standing alone may in some cases provide a compelling state interest but it does not do so in this case because creation of the 11th district was not required to comply with the Voting Rights Act notwithstanding DOJ's insistence on its creation.

"The Justice Department refused to preclear both of Georgia's first two submitted redistricting plans. The District Court found that the Justice Department had adopted a 'black maximization' policy under section 5, and that it was clear from its obj ection letters that the Department would not grant preclearance until the State made the 'Macon/Savannah trade' and created a third majority-black district.... It is, therefore, safe to say that the congressional plan enacted in the end was required in o rder to obtain preclearance. It does not follow, however, that the plan was required by the substantive provisions of the Voting Rights Act....

"...the Justice Department's implicit command that States engage in presumptively unconstitutional race-based districting brings the Voting Rights Act, once upheld as a proper exercise of Congress' authority under section 2 of the Fifteenth Amendment ...into tension with the Fourteenth Amendment...Congress' exercise of its Fifteenth Amendment authority even when otherwise proper still must 'consist with the letter and spirit of the constitution.'.... We need not, however, resolve these troubling and difficult constitutional questions today. There is no indication Congress intended such a far-reaching application of section 5, so we reject the Justice Department's interpretation of the statute and avoid the constitutional problems that interpretation raises."

Justice Ginsburg wrote a dissenting opinion which was joined by Justices Stevens, Breyer and in part by Justice Souter. She asserts that the majority's opinion expands the role of the judiciary in redistricting.

"Today the Court expands the judicial role, announcing that federal courts are to undertake searching review of any district with contours 'predominantly motivated' by race: 'strict scrutiny' will be triggered not only when traditional districting pr actices are abandoned, but also when those practices are 'subordinated to' - given less weight than - race.... Applying this new 'race-as-predominant-factor' standard, the Court invalidates Georgia's districting plan even though Georgia's Eleventh Distri ct, the focus of today's dispute, bears the imprint of familiar districting practices. Because I do not endorse the Court's new standard and would not upset Georgia's plan, I dissent."

Justice Ginsburg then outlines the entire Court's points of agreement:

1). As a rule, the task of redistricting should remain the province of state legislatures.

2). In addressing voting discrimination against African-Americans, "federal courts now respond to Equal Protection Clause and Voting Rights Act complaints of state action that dilute minority voting strength."

3). "...to meet statutory requirements, state legislatures must sometimes consider race as a factor highly relevant to the drawing of district lines."

4). "...state legislatures may recognize communities that have a particular racial or ethnic makeup, even in the absence of any compulsion to do so, in order to account for interests common to or shared by the persons grouped together." 5). "To offend the Equal Protection Clause...the legislature had to do more than consider race. How much more, is the issue that divides the Court today."

The opinion then briefly recounts the history of the disenfranchisement of African-Americans and states that prior to the Shaw decision, the Court had invoked the Equal Protection Clause to intervene in legislative redistricting in only two circums tances, to enforce one person one vote and to prevent dilution of a minority group's voting strength. In Shaw the Court identified a third basis: "if a district is 'so extremely irregular on its face that it rationally can be viewed only as a n effort to segregate the races for purposes of voting." In Shaw, she says that finding was made in that "traditional districting practices were cast aside...with race alone steering placement of district lines."

In contrast, Justice Ginsburg says, in this case "race did not crowd out all other factors as was found in Shaw." She notes that the 11th district is not bizarre in shape, its lines do not "disrespect the boundaries of political sub divisions, and "considerations other than race went into determining the Eleventh District's boundaries."

Justice Ginsburg also criticizes the Court's finding that there was not a community of interest in the Eleventh District.

"...ethnicity itself can tie people together, as volumes of social science literature have documented-even people with divergent economic interests. For this reason, ethnicity is a significant force in political life....

"To accommodate the reality of ethnic bonds, legislatures have long drawn voting districts along ethnic lines. Our Nation's cities are full of districts identified by their ethnic character-Chinese, Irish, Italian, Jewish, Polish, Russian, for examp le....The creation of ethnic districts reflecting felt identity is not ordinarily viewed as offensive or demeaning to those included in the delineation."

The dissent also questions the Court's determination that "judicial review of the same intensity, i.e., strict scrutiny," is in order whether the redistricting plan dilutes or enhances minority voting strength.

"Special circumstances justify vigilant judicial inspection to protect minority voters-circumstances that do not apply to majority voters...The majority, by definition, encounters no such blockage. White voters in Georgia do not lack means to exert strong pressure on their state legislature. The force of their numbers is itself a powerful determiner of what the legislature will do that does not coincide with perceived majority interests."

She concludes that:

"The Court's disposition renders redistricting perilous work for state legislatures. Statutory mandates and political realities may require States to consider race when drawing district lines.... But today's decision is a counterforce; it opens the way for federal litigation if 'traditional...redistricting principles' arguably were accorded less weight than race. Genuine attention to traditional districting practices and avoidance of bizarre configurations seemed, under Shaw, to provide a s afe harbor...This enlargement of the judicial role is unwarranted. The reapportionment plan that resulted from Georgia's political process merited this Court's approbation, not its condemnation. Accordingly, I dissent."

As the MONITOR went to press, the Georgia legislature had failed to agree on a revised plan and adjourned the special session that was called by Governor Zel Miller for the purpose of redrawing the congressional plan. The task now falls to the three judg e federal district panel.

For further discussion, see CIVIL RIGHTS MONITOR, vol. 7, no. 6, February 1995.