Volume 9 Numbers 2-3SUPREME COURT REJECTS MINORITY CLAIMS IN GEORGIA VOTING CASE
Second Round of Georgia Redistricting
On June 19, 1997, the Supreme Court in a 5-4 decision upheld a court-drawn redistricting plan that reduced the number of majority-minority Georgia congressional districts from three to one, Abrams v. Johnson, No. 95-1425, U.S. v. Johnson, No. 95-1460. This was the second time the Court had been asked to rule on the constitutionality of Georgia's congressional redistricting plan drawn pursuant to the 1990 Census.
In the earlier case, Miller v. Johnson, the Supreme 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 co ntaining 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 th at compliance with the Voting Rights Act "standing alone" was not sufficient to establish the requisite compelling state interest and affirmed the decision of the three-judge federal 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 complaint was amended to challenge also the 2nd district, also a majority Af rican-American district, on the same grounds. After finding both districts had been unconstitutionally drawn, the panel drew a plan that eliminated the African-American majority in each, 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 to the Supreme Court on a number of grounds including failure to comply with the "one-man, one-vote" constitutional requirement, violation of sections 2 and 5 of the Votin g Rights Act, and disregard of the State legislature's intent to draw at least two majority-minority districts. (For a thorough discussion of the December 9, 1996, oral argument in the cases, see the CIVIL RIGHTS MONITOR, vol. 9, no.1)
The Majority Opinion
Justice Kennedy wrote the opinion of the Court, in which Chief Justice Rehnquist, and Justices O'Connor, Scalia, and Thomas joined. The Court found the appellants' (private and Department of Justice) challenges unavailing and affirmed the judgment of the District Court. As to the appellants' argument that the three-judge panel abused its power in eliminating two of the three majority-minority districts since the state legislature's original plan in 1991 (prior to review by the DOJ and DOJ's instructi ons to the legislature to draw a third redistricting plan) contained two majority-minority districts, the Court distinguished this case from its direction in Upham v. Seamon, 456 U.S. 37 (1982), "to take account of legislative preferences.&quo t; The plan in this case, the Court asserted, is not due "deference to the extent the plan subordinated traditional districting principles to racial considerations." Secondly, the Court stated that the constitutional violation in this case aff ects a large geographic area of the state and thus requires a comprehensive remedy, while in Upham only two contiguous districts out of 27 were in violation.
In addressing the specific contention that the revised plan should have at least two majority-minority districts in line with the legislature's plan, the Court stated:
"Interference by the Justice Department, leading the state legislature to act based on an overriding concern with race, disturbed any sound basis to defer to the 1991 unprecleared plan; the unconstitutional predominance of race in the provenance o f the Second and Eleventh Districts of the 1992 precleared plan caused them to be improper departure points; and the proposals for either two or three majority-black districts in plans urged upon the trial court in the remedy phase were flawed by evidence of predominant racial motive in their design. In these circumstances, the trial court acted well within its discretion in deciding it could not draw two majority-black districts without itself engaging in racial gerrymandering."
The Court also dismissed the plaintiffs' assertion that the court-ordered plan violated sections 2 and 5 of the Voting Rights Act. Section 2 is violated if "it is shown that the political process leading to nomination or election in the State or political subdivision are not equally open to participation by members of [a racial minority]...in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their ch oice." In Thornburg v. Gingles, 478 U.S. 30 (1986), the Court established three conditions that must exist to establish a vote dilution claim:
1. Minority group must be "sufficiently large and geographically compact to constitute a majority in a single member district."
2. The minority group is "politically cohesive," a community of interest.
3. The majority "votes sufficiently as a bloc to enable it...to defeat the minority's preferred candidate."
Applying these standards to this case, the Court deferred to the district court's finding that "the black population was not sufficiently compact for a second majority-minority district," and conclusion that "the first of the Gingles factors is not satisfied." The opinion continues:
"As we have noted before, section 2 does not require a State to create, on predominantly racial lines, a district that is not 'reasonably compact'....And the section 2 compactness inquiry should take into account "traditional districting prin ciples such as maintaining communities of interest and traditional boundaries."
The Court also noted that the trial court found the second and third Gingles standards not met here, and cited statistics on white and black crossover voting showing that all three black incumbents won reelection in 1996, with two now in majorit y-white districts.
In examining a potential violation of section 5, the Court discussed the purpose of section 5 which is to ensure that no voting-procedure change would lead to a "retrogression in the position of racial minorities with respect to their effective ex ercise of the electoral franchise," and the benchmark (plan) against which to measure whether retrogression has occurred under the court-drawn plan. After much discussion, the Court concluded that the appropriate benchmark is the 1982 plan with its one majority-minority district and thus the trial court's plan did not represent retrogression.
Finally, as to the one-man, one-vote challenge, the Court found the court-drawn plan's deviations lower than the deviations of any of the other plans submitted to the Court except the so-called DOJ illustrative plan (a plan submitted by DOJ during the second round of litigation that included a second compact majority-minority district in the east-central part of the state). The Court accepted the district court's reasons for the slight deviations including the state's preference not to split counties. And, the Court reasoned, the solution should it agree with the plaintiffs would not be to adopt one of the plans submitted by the plaintiffs but simply to do some tinkering with the district court's plan. The Court elected not to take this step, noting that six years after the census the counts for specific localities were probably seriously outdated.
The Dissenting Opinion
Justice Breyer wrote a dissenting opinion in which Justices Stevens, Souter and Ginsburg joined. Citing to Upham v. Seaman, Justice Breyer argued:
"It is therefore common ground among us that the District Court should have drawn boundaries so as to leave two majority-minority districts rather than one -- unless there was no such state policy or preference; unless the creation o f two such districts would have violated the Constitution or the Voting Rights Act of 1965; or unless doing so simply would have proved impractical in light of other important districting objectives....Unlike the majority, I cannot find present her e any of these three countervailing justifications."
The dissent objected to the majority's focus on the DOJ's involvement in the redistricting process, and questioning whether the Georgia legislature's "true preference" was reflected in the redistricting plans it submitted to the DOJ for precl earance.
"...[T]his Court has said that a court should determine a State's redistricting preferences by looking to the 'plans proposed by the state legislature,'...not by evaluating the various political pressures that might have led individual legislators to vote one way rather than another (or, for that matter, by reviewing after-the-fact testimony regarding legislative intent)....'Districting plans,' like other legislative acts, 'are integrated bundles of compromises, deals, and principles.'....District plans, like other legislative Acts, may reflect not only reasoned argument but also political pressures, brought to bear by many different individuals and groups using subtle or unsubtle suggestions, promises or threats, of votes, support, publicity, and even lawsuits.
"How can a court say that a legislative Act is legitimate -- that it reflects legislative preferences or policies -- when those who reason or cajole (or threaten suit) are farmers, businessmen, or consumer groups, but that the same legislative Act becomes illegitimate -- that it does not reflect "true" legislative policy or preference -- simply because those who seek to persuade (or threaten suit) represent the Justice Department."
The dissenting opinion discusses in some detail Georgia's history of discrimination in voting and concludes that such circumstances "help to explain why the 1991 Georgia Legislature might have thought that the creation of two majority-minority dis tricts would help overcome race-related barriers -- barriers erected by history and prejudice, reinforced by inertia and nonparticipation.... And I can find no reason in the record not to take at face value what all the legislature's plans thereby suggest, namely that two majority-minority districts represents a significant legislative 'policy and preference.'
Justice Breyer went on to argue that there was "a strong basis in the evidence" for the Georgia legislature to believe that sections 2 and 5 of the Voting Rights Act required the creation of a second majority-minority district after the 1990 census and reapportionment. The dissenting opinion concluded that this provided legal justification for a second majority-minority district "that otherwise would violate the basic predominant factor test of Miller."
Florida State Senate Redistricting
On June 25, 1997, in Lawyer v. Department of Justice, No. 95-2024, the Supreme Court in a 5-4 decision upheld the constitutionality of a redistricting plan for Florida's State House and Senate districts that includes a majority-minority district . The opinion, written by Justice Souter, states "that race did not predominate over Florida's redistricting principles" and thus consideration of race was not unconstitutional. The unusual grouping in the majority included Chief Justice Rehnq uist, as well as Justices Stevens, Ginsburg and Breyer.
After the Department of Justice raised concerns about the state legislature's redistricting plan for Florida's House and Senate districts because it split cohesive minority populations in the Hillsborough County area, the Governor, President of the Senate and Speaker of the House refused to call a special session to reconsider the plan. A state court then drew an amended plan with an irregularly shaped senate district (21) crossing four counties with a black voting-age population of 45.8 percent a nd 9.4 percent Hispanic voting age population.
This district was challenged in Federal Court by six residents of Hillsborough County naming the State, its attorney general, and the U.S. Department of Justice as defendants. The State Senate and House and black and Hispanic voters residing in the di strict were granted permission to intervene.
Ultimately, after mediation failed, all of the parties, with the exception of one of the original plaintiffs, agreed to a settlement that created a district whose boundary length was reduced by 58 percent, which covered portions of 3 counties rather th an 4, and which reduced the black voting age population from 45 percent to 36.20 percent. The plaintiff who refused to settle alleged that the district remained unconstitutional "because only race could explain its contours." The district cour t approved the settlement plan stating:
"In its shape and composition, proposed District 21 is...demonstrably benign and satisfactorily tidy, especially given the prevailing geography....[T]he new district's percentage of minority residents would approximate the racial features of the r egion surrounding Tampa Bay...the district's boundaries would be 'less strained and irregular'...and...all candidates, regardless of race, would have an opportunity to seek office, with "both a fair chance to win and the usual risk of defeat."
The Supreme Court noted probable jurisdiction and concluded: "the evidence amply supports the trial court's views that race did not predominate over Florida's traditional districting principles in drawing Plan 386. Appellant has provided nothing that calls that conclusion into question, much less that points to any clear error. We accordingly affirm the decision of the district court."
Virginia Congressional Redistricting
On June 27, 1997, the Supreme Court affirmed, without opinion, a lower court decision in Moon v. Meadows, No. 96-1779, striking down the Commonwealth of Virginia's only majority-minority U. S. Congressional district as a racial gerrymander and t hus unconstitutional.
The 1990 reapportionment granted Virginia an additional district (from 10 to 11), and the state legislature drew a redistricting plan that included a majority-minority district (3rd) from which Bobby Scott was elected the first African-American U.S. re presentative from the commonwealth of Virginia in this century. The district is located in the tidewater area and includes portions of Norfolk, Suffolk, Portsmouth, Hampton and Newport News. In 1990, Virginia's black population was 18.9 percent African- American. The 3rd district has a black population of approximately 64 percent and a voting age population of approximately 61 percent.
The district court found:
"The Third Congressional District is racially gerrymandered in violation of the Equal Protection Clause of the Fourteenth Amendment because it relies upon the classification of large numbers of Virginians by race so as to include or exclude them f rom that district....Virginia subordinated traditional districting principles, such as compactness, communities of interest, and respect for cities and counties, to accomplish its goal of a safe black district. Because race predominated in the drawing of the district, the Court applied strict scrutiny to see if the use of race was necessary to accomplish a compelling state interest. The Commonwealth has failed to prove that District 3 satisfies a compelling state interest or that it is narrowly tailore d. Accordingly, this Court will strike down this district as violative of the Fourteenth Amendment to the Constitution of the United States."
The Commonwealth was ordered to redraw the district prior to the 1998 congressional elections.