The Leadership Conference on Civil and Human Rights

Volume 9 Number 1

On June 29, 1995, in Miller v. Johnson the Supreme Court 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 "stand ing alone" was not sufficient to establish a compelling state interest and affirmed the decision of the three-judge court that held the plan unconstitutional.

On remand from the Court, the Georgia legislature failed to agree on a revised plan and the task of redrawing the map then went to the three-judge federal district panel. The plan drawn by the panel eliminated the African-American majority in two of the three districts, decreasing the percentage in the 11th from 60.4 to 10.8 and in the 2nd from 52.3 to 35.1. The Atlanta-based 5th district retained its African-American voting age population of 57 percent.

The U.S. Solicitor General and other parties to the case filed appeals with the Court on a number of grounds including failure to comply with the "one-man, one-vote" constitutional requirement, and that the plan violates the Voting Rights Act and is uncon stitutional as it went too far in reducing the number of majority-minority districts from three to one.

Democratic Representatives Cynthia McKinney who represented the 11th and Sanford Bishop who represented the 5th both won reelection in November 1996 under the court-ordered plan.

Oral Argument

Oral argument in the case (a consolidation of three cases) was held on Monday, December 9, 1996. The parties were represented by Seth P. Waxman, U.S. Deputy Solicitor General for the U.S. Government; Laughlin McDonald of the ACLU for the Abrams appellant s, a group of black voters; Michael Bowers, Attorney General of Georgia on behalf of the state, the Miller appellees; and A. Lee Parks on behalf of the Johnson appellees, white voters who challenged the majority black districts.

The argument focused on (1) whether the district court had abused its power in eliminating two of the three majority-minority districts given that the state legislature's original plan in 1991 (prior to review by the Department of Justice (DOJ) and DOJ's instructions to the legislature to draw a third redistricting plan) had contained two majority-minority districts, and (2) that the DOJ had in this round of litigation provided the district court with an "illustrative plan" that included a second compact majority-minority district in the east-central part of the state with "no arms, no tentacles, no claws, no land bridges."

Attorney Waxman began by stating that the three-judge district court created a new apportionment plan with one majority-minority district after the Georgia legislature was unsuccessful in drawing a new plan following this Court's remand of Johnson v. Mill er. He continued quoting from the court's opinion: "if Georgia had a concentrated minority population large enough to create a second majority-minority district without subverting traditional districting principles, the court would have included one sinc e the Georgia legislature probably would have done so." Waxman continued that "a reasonably compact district can be drawn in East Central Georgia without neglecting, subverting, or subordinating Georgia's traditional districting principles and, thus the District Court erred in two fundamental respects:

1. 1. It failed to respect as required by Upham v. Seamon and White v. Wesier, the Georgia legislature's desire as expressed in word and deed for a second majority-minority district.
2. 2. It failed to recognize that section 2 of the Voting Rights Act required creation of a second district in East Central Georgia to remedy unlawful vote dilution.

Justice Kennedy began the questioning by stating that the government's questioning whether it was proper to reduce the majority black districts from three to one begins with consideration of a plan that has been ruled unconstitutional. Why would that be your starting point, Justice Kennedy asked. Waxman responded that Upham and White provide that a district court, in remedying an unconstitutional plan enacted by the legislature, must make the minimum number of changes necessary to remedy the constitutio nal violation but should otherwise adhere to the expressed intent and desire and policies of the state legislature.

Justice Scalia interjected that "the minimum number of changes in this case of three majority-minority districts where two have been ruled unconstitutional is to eliminate the two." Waxman responded that given the legislature's desire to have two majorit y-minority districts, the issue is whether that was possible consistent with traditional districting principles. Justice Scalia asserted that to the extent the legislature expressed the goal of having two it was because of DOJ's insistence -- "It might b e called an extracted desire." Waxman responded that the pressure from DOJ was to create three districts, and that the original Georgia plan had two majority-minority districts. Justice Scalia suggested that the court record said that the original Georg ia legislature's plan had been affected by DOJ pressure. Waxman said that the record suggested the contrary: "Counsel for the state of Georgia said before the Supreme Court [in the first round of litigation] 'There was a consensus politically, before the DOJ got involved, in the state of Georgia to try and draw a majority-minority district in East Central Georgia and extensive evidence to support that conclusion.'" Justice Scalia retorted that Waxman's response proves nothing: "The consensus could have been that if they didn't draw two districts, DOJ will not preclear the plan." According to Justice Scalia, the issue is what was the uncoerced desire of the Georgia legislature as to a second district.

Waxman was then asked if it was now his position that at least one district in the 1991 plan was unconstitutional. Waxman answered in the affirmative in light of Supreme Court decisions in Miller v. Johnson [Georgia], Bush v. Vera [Texas], and Shaw v. Hu nt [North Carolina].

A Justice said: "All of this is irrelevant, if the purpose you start out with is creating a majority-minority district then no matter how tidy it's no good. The district court said it is unconstitutional, it is racial gerrymandering." Waxman said that the test the District Court applied is not the test this Court has adopted in Miller v. Johnson and Bush v. Vera. This Court has said that a legislature may take race into account; may intentionally create majority-minority districts if race were not the predominant reason, Waxman stated. He continued: "the test is whether the legislature subordinated, substantially disregarded or neglected traditional race-neutral districting principles. If you look at the 11th district we [the DOJ] drew, it respects five of the six traditional principles that the court enunciated in its opinion as well or better than the court's plan." A Justice interjected that the opinion of the District Court is that if race is the driving force then it is the predominant factor even if other factors are accommodated. Waxman repeated that that position cannot be reconciled with the articulation of the law that this Court set forth in Miller v. Johnson and Bush v. Vera.

Laughlin McDonald began his argument for the Abrams appellants by stating that one fundamental error of the District Court's opinion is thinking that every aspect of the 1992 plan was unconstitutional and that, accordingly, the court could proceed in draw ing a remedial plan to ignore the least change principle of Upshaw v. Seamon. The court's plan, he continued, is "maximally disruptive -- it totally ignores the policy choice of the general assembly about the placement of the 11th and the racial compositi on, and also failed to apply the standards of section 2." A Justice asserted that if that were so, the state would be arguing what you are arguing, but they are on the other side. McDonald responded that the state was seeking an end to litigation by ask ing for affirmance, but the general assembly itself clearly articulated what the state policy was in 1991 when it enacted the first plan.