ABRAMS ET AL. v. JOHNSON ET AL.
No. 95-1425
Supreme Court of the United States
Argued December 9, 1996—Decided June 19, 1997
521 U.S. 74
*Tоgether with No. 95-1460, United States v. Johnson et al., also on appeal from the same court.
Deputy Solicitor General Waxman argued the cause for the United States. With him on the briefs were Acting Solicitor General Dellinger, Assistant Attorney General Patrick, Deputy Solicitor General Bender, James A. Feldman, Steven H. Rosenbaum, and Miriam R. Eisenstein. Laughlin McDonald argued the cause for appellants Abrams et al. With him on the briefs were Neil Bradley, Mary Wyckoff, Elaine R. Jones, Norman J. Chachkin, Jacqueline Berrien, and Gerald R. Weber.
Michael J. Bowers, Attorney General of Georgia, argued the cause for appellees Miller et al. With him on the brief were Dennis R. Dunn, Senior Assistant Attorney General, and David F. Walbert, Special Assistant Attorney General. A. Lee Parks argued the cause and filed a brief for appellees Johnson et al.†
JUSTICE KENNEDY delivered the opinion of the Court.
The electoral district lines for Georgia‘s congressional delegation are before us a second time, appeal now being taken from the trial court‘s rulings and determinations after our remand in Miller v. Johnson, 515 U. S. 900 (1995). The three-judge panel of the United States District Court for the Southern District of Georgia was affirmed in Miller after it found the Eleventh Congressional District unconstitutional as then drawn. Race, we held, must not be a predominant factor in drawing the district lines. Id., at 915-917.
Given the contorted shape of the district and the undue predominance of race in drawing its lines, it was unlikely the district could be redrawn without changing most or all of Georgia‘s congressional districts, 11 in total number. The
For the task of drawing a new plan, the court deferred to Georgia‘s Legislature, but the legislature could not reach agreement. The court then drew its own plan, Johnson v. Miller, 922 F. Supp. 1556 (1995); we declined to stay the order; and the 1996 general elections were held under it. The court‘s plan contained but one majority-black district. The absence of a second, if not a third, majority-black district has become the principal point of contention. Though the elections have been completed, the plan remains in effect until changed by a valid legislative Act, and the appellants ask us to set it aside.
The private appellants are various voters, defendant-intervenors below, who contend that the interests of Georgia‘s black population were not adequately taken into account. The United States, also a defendant-intervenor, joins in the appeal. The state officials, defendants below, do not object to the plan and appeared before us as appellees to defend it. The other set of appellees are the private plaintiffs below, who argued that racial gerrymandering under thе previous plan violated their right to equal protection.
The private appellants attack the court‘s plan on five grounds. First, citing Upham v. Seamon, 456 U. S. 37 (1982) (per curiam), they say the District Court erred in disregarding the State‘s legislative policy choices and in making more changes than necessary to cure constitutional defects in the previous plan. Second and third, they allege the plan violates
I
We first address appellants’ argument that the court exceeded the remedial power authorized by our decisions, particularly Upham v. Seamon, supra, by failing to follow policies of the state legislature. When faced with the necessity of drawing district lines by judicial order, a court, as a general rule, should be guided by the legislative policies underlying the existing plan, to the extent those policies do not lead to violations of the Constitution or the Voting Rights Act. 456 U. S., at 43. Much of the argument from the parties centers around what legislative redistricting principles the District Court should have acknowledged in drawing its plаn. The appellants say the relevant redistricting guideline should be the three majority-black districts of the precleared plan at issue in Miller v. Johnson; and, if not, the two majority-black districts in an earlier legislative effort. These contentions require us to recite some of the background against which the Georgia Legislature—and later the trial court—attempted to draw the districts.
A
Much of the history is recounted in Miller v. Johnson, and we repeat only some of it here. The need for redistricting arose in 1990 when Georgia, because of its population increase, went from 10 authorized congressional seats to 11. To move ahead with redistricting, a special session of the legislature opened in August 1991. Because Georgia is a covered jurisdiction under
The Department of Justice refused preclearance of this plan in January 1992. It then refused рreclearance of a second plan submitted by the legislature, also with two majority-black districts. In its second refusal, the Department of Justice cited several alternative plans proposing three majority-black districts, including one called the “max-black” plan, drafted by the American Civil Liberties Union (ACLU) for the General Assembly‘s black caucus. At that point, the General Assembly set out to create three majority-black districts to gain preclearance. See Appendix, fig. 2. The plan as adopted used the ACLU‘s max-black plan as a model. One of the three majority-black districts, the Eleventh, was a geographic “monstrosity, stretching from Atlanta to Savannah. Its core is the plantation country in the center of the state, lightly populated, but heavily black. It links by narrow corridors the black neighborhoods in Augusta, Savannah and southern DeKalb County.” 515 U. S., at 909 (quoting M. Barone & G. Ujifusa, Almanac of American Politics 356 (1994)). The district as so drawn served its purpose, however, which was to secure preclearance from the Department of Justice.
On November 4, 1992, elections were held under the new plan, and all three majority-black districts elected black can-
We affirmed. Miller v. Johnson, 515 U. S. 900 (1995). We rejected appellants’ argument that “regardless of the legislature‘s purposes, a plaintiff must demonstrate that a district‘s shape is so bizarre that it is unexplainable other than on the basis of race.” Id., at 910. We said “the essence of the equal protection claim recognized in Shaw is that the State has used race as a basis for separating voters into districts.” Id., at 911. And we explained that “[t]he plaintiff‘s burden is to show, either through circumstantial evidence of a district‘s shape and demographics or more direct evidence going to legislative purpose, that race was the predominant factor motivating the legislature‘s decision to place a significant number of voters within or without a particular district.” Id., at 916.
We upheld two principal findings of the District Court indicating race was the predominant factor in constructing the Eleventh District. First, it was “‘exceedingly obvious‘” from the district‘s contorted shape, together with the relevant racial demographics, that it was designed to bring in black populations. Id., at 917 (quoting 864 F. Supp., at 1375). Second, considerable evidence—including the State‘s own concessions—showed that the General Assembly was driven by “a predominant, overriding desire” to create three majority-black districts to satisfy the Department of Justice. 515 U. S., at 917. The Justice Department, indeed, “‘would accept nothing less than abject surrender to its maximization agenda.‘” Ibid. (quoting 864 F. Supp., at 1366, n. 11).
We then considered whether the race-based districting satisfied strict scrutiny because it was narrowly tailored to achieve a compelling governmental interest. As we noted, “[o]ur presumptive skepticism of all racial classifications” prohibited us “from accepting on its face the Justice Department‘s conclusion that racial districting is necessary under the Voting Rights Act.” 515 U. S., at 922. After reviewing the evidence, we concluded that “[i]nstead of grounding its objections on evidence of a discriminatory purpose, it would appear the Government was driven by its policy of maximizing majority-black districts.” Id., at 924.
On remand, the District Court deferred to the Georgia Legislature, giving it time to draw a new congressional map. The Governor called a special session of the General Assembly, which met from August 14 to September 12, 1995. The legislature, however, deadlocked on the congressional reapportionment plan. The Georgia House of Representatives adopted a plan with two majority-black districts, Status Report of Defendants Miller, Howard, and Cleland, Aug. 31, 1995, Record, Pleadings Vol. 11, Doc. No. 295, while the Senate adopted a plan with one, Status Report of Defendants Miller, Howard, and Cleland, Sept. 5, 1995, id., Doc. No. 300. On September 13, 1995, defendants notified the District Court that the legislature was unable to resolve its differences and had adjourned, leaving the District Court to develop a remedy.
Plaintiffs had moved to amend their complaint to challenge the Second District as unconstitutional on the same grounds as the Eleventh District, and the court received additional evidence for the purpose. None of the private defendant-intervenors lived in the Second District and, assuming their lack of standing to defend it, they asked for the addition of other parties. The court disallowed the request, ruling the State could defend this aspect of the plan under review.
The court found that race was the “overriding and predominant factor” in drawing the Second District‘s borders. 922
During the remedy phase, the defendants proposed a variety of plans. One was the 1991 unprecleared plan passed by the Georgia Legislature, with two majority-black districts. The Eleventh District in the 1991 plan closely resembled the Eleventh District in the precleared plan, which has been found improper. The ACLU submitted four plans. One of these, ACLU 1A, with two majority-black districts, was known as the “least change” plan because it was designed to make the minimal changes perceived to be necessary to correct constitutional defects in the existing plan. Another of the ACLU plans, Abrams A, had three majority-black districts. Abrams A split nine counties in the Second District and three in the Eleventh, and for racial reasons. Yet another plan, Abrams C, had two majority-black districts. And a plan jointly sponsored by John Lewis, a black Democratic Member of the United States House of Representatives from Georgia, and Newt Gingrich, a white Republican
The District Court considered the plans submitted by the various parties and then adopted its own. See Appendix, fig. 3. Noting the Justice Department‘s thorough “subversion of the redistricting process” since the 1990 census, it based its plan on the State‘s 1972 and 1982 plans. 922 F. Supp., at 1563. The court first had to decide where to locate the new Eleventh District, and did so in an area of significant population growth near Atlanta, so as to displace the fewest counties. It then considered Georgia‘s traditional redistricting principles based on maintaining: district cores, four traditional “corner districts” in the corners of the State, political subdivisions such as counties and cities, and an urban majority-black district in the Atlanta area. Protecting incumbents from contests with each other was another factor, which the court subordinated to the others because it was “inherently more political.” Id., at 1565. The District Court stated that, in fashioning a remedy, it considered the possibility of creating a second majority-black district but decided doing so would require it to “subordinate Georgia‘s traditional districting policies and consider race predominantly, to the exclusion of both constitutional norms and common sense.” Id., at 1566. Georgia did not have a black population of sufficient concentration to allow creation
B
Given this background, appellants say, the District Court‘s plan violates our direction in Upham v. Seamon to take account of legislative preferences. In Upham, the District Court considered a reapportionment plan passed by the Texas Legislature. The Attorney General had objected under
The instant action presents a quite different situation from Upham, and for several reasons. In the first place, the precleared plan is not owed Upham deference to the extent the plan subordinated traditional districting principles to racial considerations. Upham called on courts to correct—not follow—constitutional defects in districting plans. 456 U. S., at 43. In Miller, we found that when the Georgia Legislature yielded to the Justice Department‘s threats, it also adopted the Justice Department‘s entirely race-focused ap-
Second, the constitutional violation here affects a large geographic area of thе State; any remedy of necessity must affect almost every district. In Upham, only 2 contiguous districts out of 27 were in violation. Here, as the District Court pointed out, 2 of 11 districts were found unconstitutional, on opposite sides of the State, districts containing between them all or parts of nearly a third of Georgia‘s counties. 922 F. Supp., at 1561. Almost every major population center in Georgia was split along racial lines. Under the circumstances, the District Court was justified in making substantial changes to the existing plan consistent with Georgia‘s traditional districting principles, and considering race as a factor but not allowing it to predominate. This approach conforms to the rule explained in Upham.
Appellants’ most specific objection under Upham is that the court‘s plan does not contain two majority-black districts. In particular, they point to the State‘s original 1991 redistricting plan, denied preclearance, which contained two majority-black districts. As we have suggested above, however, the State was subjected to steady Justice Department pressure to create the maximum number of majority-black districts, and there is considerable evidence the State was predominantly driven by this consideration even in developing its 1991 plan. In support of their position, appellants rely on broad assertions in the State‘s brief in this Court in Johnson v. Miller that the original plan “was not perceived as a ‘racial gerrymander.‘” Brief for Miller Appellants in Miller v. Johnson, O. T. 1994, No. 94-631, p. 49. Against these assertions, appellees point to the testimony of Ms. Meggers, Director of Reapportionment Servicеs for the Georgia General Assembly, that the second majority-black district was originally designed as a concession to the Justice
There is strong support, then, for finding the second majority-black district in Georgia‘s 1991 unprecleared plan resulted in substantial part from the Justice Department‘s policy of creating the maximum number of majority-black districts. It is not Justice Department interference per se that is the concern, but rather the fact that Justice Department pressure led the State to act based on an overriding
The court found the 1991 unprecleared plan shared many of the constitutional defects of the precleared plan. Among other things, it connected the south DeKalb County urban black population with the mainly rural east Georgian minority population. 922 F. Supp., at 1563, n. 9. Indeed, the Eleventh District in the 1991 plan in many respects was almost the geographical monstrosity it became in the pre-
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 of 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.
II
The court-ordered plan is not violative of
Our decision in Thornburg v. Gingles, 478 U. S. 30 (1986), set out the basic framework for establishing a vote dilution claim against at-large, multimember districts; we have since extended the framework to single-member districts. Growe v. Emison, 507 U. S. 25, 40-41 (1993). Plaintiffs must show three threshold conditions: first, the minority group “is sufficiently large and geographically compact to constitute a majority in a single-member district“; second, the minority group is “politically cohesive“; and third, the majority “votes sufficiently as a bloc to enable it . . . to defeat the minority‘s preferred candidate.” 478 U. S., at 50-51. Once plaintiffs establish these conditions, the court considers whether, “on the totality of circumstances,” minorities have been denied an “equal opportunity” to “participate in the political process and to elect representatives of their choice.”
The trial court found that to create a second majority-black district in Georgia would require subordinating Georgia‘s traditional districting policies and allowing race to predominate. 922 F. Supp., at 1566. We considered the determination in our discussion above and concluded it was well founded. If race is the predominant motive in creating districts, strict scrutiny aрplies, Bush v. Vera, 517 U. S. 952, 962 (1996), and the districting plan must be narrowly tailored to serve a compelling governmental interest in order to survive. We have assumed, without deciding, that compliance with § 2 can be a compelling state interest. See, e. g., id., at 977; Miller v. Johnson, 515 U. S., at 921. Here, there was no “strong basis in evidence,” Shaw v. Reno, 509 U. S., at 656 (internal quotation marks omitted), to conclude that vote dilution, in violation of § 2, would occur in consequence of the court‘s plan. In fact, none of the three Gingles factors, the threshold findings for a vote dilution claim, were established here. See Bush, supra, at 976-979.
Here the District Court found, without clear error, that the black population was not sufficiently compact for a second majority-black district. 922 F. Supp., at 1567. So the first of the Gingles factors is not satisfied. As we have noted before, § 2 does not require a State to create, on predominantly racial lines, a district that is not “reasonably
The trial court also found the second and third Gingles factors—the extent of racially polarized voting—wanting. In the Eleventh District inquiry, the District Court found that § 2 did not justify drawing racial lines, and it discussed evidence of racial polarization at great length. The court found the statistical evidence was for the most part inconclusive and conflicting, but that the State‘s expert, Dr. Joseph Katz, was convincing in his refutation of Dr. Allan Lichtman, the United States’ expert. 864 F. Supp., at 1388. The court found “a significant degree of crossover voting in Georgia and the Eleventh District,” id., at 1390, and that the record “fail[ed] to demonstrate . . . chronic bloc voting,” id., at 1392. The сourt found that the average percentage of whites voting for black candidates across Georgia ranged from 22% to 38%, and the average percentage of blacks voting for white candidates ranged from 20% to 23%. id., at 1390. As the court noted, “[b]lack and black-preferred candidates in Georgia have achieved many electoral victories in local and statewide elections and have received significant—occasionally overwhelming—support from both black and white voters within the Eleventh Congressional District.” Id., at 1390-1391. The results of the 1992 Democratic primary in the Eleventh District suggested to the court “a general willingness of white voters to vote for black candidates“: black candidates in that primary received about 55% of the white vote, and Cynthia McKinney, a black, won the runoff against a white with 23% of the white vote. Id., at 1391.
For the inquiry concerning the Second District and the remedy, appellants relied exclusively on the Eleventh District trial record. After the remedy hearing, the District Court reaffirmed its earlier findings and cited additional evi-
Appellants take issue with the District Court‘s assessment of the level of white crossover voting, but argue that, in any event, the level of polarization the District Court found is sufficient to satisfy the Gingles threshold. Under the circumstancеs, we cannot say the District Court clearly erred in finding insufficient racial polarization in voting to meet the Gingles requirements. The results of the 1996 general elections tend to support the District Court‘s earlier finding of “a general willingness of white voters to vote for black candidates.” 864 F. Supp., at 1391. All three black incumbents won elections under the court plan, two in majority-white districts running against white candidates. (In Gingles, the Court indicated that incumbency is a “special circumstanc[e]” to be taken into account in evaluating racial bloc voting. 478 U. S., at 57. And in this action, the black candidates’ success in two majority-white districts, quite different from their previous districts, is testimony to the “general willingness” of whites to vote for blacks.) These results also underscore the weakness of the Justice Department‘s methodology of calculating the likelihood of a black-preferred candidate winning based on strict racial percentages. Brief for United States 27, and n. 18. The Justice Department predicted that a black-preferred candidate “would likely be foreclosed from winning” in the court plan‘s Tenth District, and that “[t]he same result would follow even more clearly” in the court‘s Fourth District, which had a black voting age population of 33%. Id., at 27. In fact, Representative McKinney won in the Fourth District.
Appellants argue the District Court‘s findings on § 2 are inconsistent and not owed deference, since the court held § 2
We do not agree that the District Court‘s maintenance of the Fifth District as a majority-black district under
Private appellants also argue no deference is due the District Court‘s
III
The private appellants contend the District Court‘s plan also violates
As we noted above,
The question arises whether a court decree is subject to
Appellants, however, have some difficulty fixing on a benchmark against which to measure any retrogression. Private appellants say the benchmark should be either the State‘s initial 1991 plan, containing two majority-black districts, or the State‘s “policy and goal of creating two majority black districts.” Brief for Appellants 48. The Justice Department, for its part, contends the proper benchmark is the 1992 precleared plan, altered to cure its constitutional defects.
Here, as we have noted above in our discussions of both Upham and
“In determining whether a submitted change is retrogressive the Attorney General will normally compare the submitted change to the voting practice or procedure in effect at the time of the submission. If the existing practice or procedure upon submission was not in effect on the jurisdiction‘s applicable date for coverage ... and is not otherwise legally enforceable under section 5, it cannot serve as a benchmark, and ... the
comparison shall be with the last legally enforceable practice or procedure used by the jurisdiction.” 28 CFR § 51.54(b)(1) (1996) .
See also Holder v. Hall, 512 U. S. 874, 883-884 (1994) (“Under
The appropriate benchmark is, in fact, what the District Court concluded it would be: the 1982 plan, in effect for a decade. 922 F. Supp., at 1569, n. 20. Appellants have not shown that black voters in any particular district suffered a retrogression in their voting strength under the court plan measured against the 1982 plan. Absent such proof, there is no violation of
IV
Finally, appellаnts contend the District Court‘s plan violates the constitutional guarantee of one person, one vote under
To help in interpreting what follows, we explain a few terms. Overall population deviation is the difference in population between the two districts with the greatest disparity. Average population deviation is the average of all districts’ deviation from perfect one-person, one-vote allocation. If population allocation in Georgia were perfect, each district would have 588,928 people, according to 1990 census data.
The District Court recited in detail those state policies and conditions which support the plan‘s slight deviations. The court explained Georgia‘s “strong historical preference” for not splitting counties outside the Atlanta area, 922 F. Supp., at 1561, and for not splitting precincts, id., at 1562. (The court observed that some splitting of precincts was unavoidable in Cobb County because of noncontiguous annexation patterns, and that it had split some precincts in Clayton County to achieve lower population deviations. Id., at 1562, n. 6.) The court acknowledged that maintaining political subdivisions alone was nоt enough to justify less than perfect deviation in a court plan. See, e. g., Kirkpatrick v. Preisler, 394 U. S. 526, 533-534 (1969) (“[W]e do not find legally acceptable the argument that variances are justified if they necessarily result from a State‘s attempt to avoid fragmenting political subdivisions by drawing congressional district lines along existing county, municipal, or other political subdivision boundaries“). The District Court, in conformance with this standard, considered splitting counties outside the Atlanta area, but found other factors “unique to Georgia” weighed against it. See Chapman, supra, at 26. These in-
In any case, even if we had found the court plan‘s population deviation unacceptable, the solution would not be adoption of the constitutionally infirm, because race-based, plans of appellants. Indeed, before this Court at oral argument private appellants acknowledged the remedy for any one-person, one-vote violation would not be creation of a second majority-black district. Tr. of Oral Arg. 28-29. Rather, we would require some very minor changes in the court‘s plan—a few shiftings оf precincts—to even out districts with the greatest deviations.
That exercise, however, and appellant‘s objections to the court plan‘s slight population deviations, are increasingly futile. We are now more than six years from the last census, on which appellants’ data is based. The difference between the court plan‘s average deviation (0.11%) and the Illustrative Plan‘s (0.07%) is 0.04%, which represents 328 people out of a perfect district population of 588,928. The population of Georgia has not stood still. Georgia is one of the fastest-growing States, and continues to undergo population shifts and changes. U. S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States 29 (1996) (Table 28) (showing Georgia tied for seventh place among the States in percentage of population growth from 1990 to 1995, with 11.2% growth). In light of these changes, the tinkerings appellants propose would not reflect Georgia‘s true population distribution in any event. The Karcher Court, in explaining the absolute equality standard, acknowledged that “census
V
The task of redistricting is best left to state legislatures, elected by the people and as capable as the courts, if not more so, in balancing the myriad factors and traditions in legitimate districting policies. Here, the legislative process was first distorted and then unable to reach a solution. The District Court was left to embark on a delicate task with limited legislative guidance. The court was careful to take into account traditional state districting factors, and it remained sensitive to the constitutional requirement of equal protection of the laws.
*
*
*
The judgment of the District Court is affirmed.
It is so ordered.
[Appendix to opinion of the Court follows this page.]
Georgia elects 11 Members of the United States House of Representatives. Georgia‘s African-American voting age population is just over 1.7 million, or about 27 percent of a total voting age population of about 6.5 million. See Miller v. Johnson, 515 U. S. 900, 906 (1995). In 1992 Georgia‘s Legislature redrew congressional district boundaries so as to create an African-American voting age majority in 3 of 11 districts. This Court held that three-district plan unconstitutional. Id., at 928. On remand, the District Court, inter alia, drew up a new redistricting plan with one majority-minority district. Johnson v. Miller, 922 F. Supp. 1556, 1560-1561 (SD Ga. 1995). The basic legal issue before us now is whether the District Court should have retained (not one but) two majority-minority districts.
The majority holds that the District Court could lawfully create a new districting plan that retained only one such district. But in my view that decision departs dramatically from the Georgia Legislature‘s preference for two such districts—a preference embodied in the legislature‘s earlier congrеssional district plans. A two-district plan is not unconstitutional. And the District Court here, like the District Court in Upham v. Seamon, 456 U. S. 37, 43 (1982) (per curiam), “was not free ... to disregard the political program of the ... Legislature.” For that reason, and others, I dissent.
I
The majority fully understands the relevance, and the importance, here of this Court‘s Upham decision. In Upham the Court said:
“Just as a federal district court ... should follow the policies and preferences of the State, as expressed ... in the reapportionment plans proposed by the state legislature, whenever adherence to state policy does not detract from the requirements of the Federal Constitution,
... a district court should similarly honor state policies in the context of congressional reapportionment.” Id., at 41 (quoting White v. Weiser, 412 U. S. 783, 794-795 (1973)).
The majority here, referring to this language, agrees:
“[A] court, as a general rule, should be guided by the legislative policies underlying the existing plan, to the extent those policies do not lead to violations of the Constitution or the Voting Rights Act.” Ante, at 79 (citing Upham, supra, at 43).
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 of 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. See Upham, supra, at 41-42 (quoting White, supra, at 794-795). Unlike the majority, I cannot find present here any of these three countervailing justifications.
A
No one denies that, if one looks at the redistricting plans proposed by the Georgia Legislature, one will find in them expressions of state “policies and preferences” for two majority-minority districts. 456 U. S., at 41; see also Appendix to this opinion (Appendix), 1991 Plan, infra. After the 1990 Census, which increased the size of Georgia‘s congressional delegation from 10 to 11, App. in Miller v. Johnson, O. T. 1994, No. 94-631, p. 9, the state legislature began a lengthy political process of redistricting and considered the majority-minority district issue, among others. Id., at 10-14; see also Deposition of Linda Meggers, Record 11-17, 20-22, 32-33, 85 (May 6, 1994). The legislature proposed one plan in 1991 with two such districts. See Appendix,
What the District Court and the majority deny is that the “preferences” expressed in these three redistricting plans reflect the Georgia Legislature‘s true preference. The District Court said that “Georgia‘s current plan was not the product of Georgia‘s legislative will,” but rather “was tainted by unconstitutional DOJ interference” into the “process” that produced the plan. 922 F. Supp., at 1560. The majority repeats the District Court‘s comment about DOJ‘s “thorough ‘subversion of the redistricting process’ since the 1990 census,” ante, at 84, adds that the “State was predominantly driven” by “steady Justice Department pressure,” ante, at 86, and concludes:
“Interference by the Justice Department ... disturbed any sound basis to defer to the 1991 unprecleared plan....” Ante, at 90.
I believe, however, that the majority‘s conclusion—its reason for refusing to recognize the Georgia Legislature‘s two-district preference—is wrong both as a matter of fact and as a matter of law.
The conclusion is factually inadequate because the testimony cited, ante, at 86-87, to show unusual DOJ pressure in the 1991 redistricting process shows nothing unusual. It shows only that the Justice Department told Georgia that it must comply with the VRA, which statement Georgia legislators might have considered an exhortation to create more than one majority-minority district. Tr. 16 (Apr. 18, 1994); id., at 431-433 (Oct. 30, 1995); Deposition of Linda Meggers,
The majority is legally wrong because this Court has said that a court should determine a State‘s redistricting preferences by looking to the “plans proposed by the state legislature,” Upham, 456 U. S., at 41 (quoting White, 412 U. S., at 794-795), 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). Cf. Upham, supra, at 41; White, supra, at 794-795; see also Karcher v. Daggett, 462 U. S. 725, 740 (1983). “Districting plans,” like other legislative Acts, “‘are integrated bundles
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. One cannot say that the Justice Department‘s power is any less legitimate than that exercised by the many other groups that seek to influence legislative decisions; and its employees’ sworn duty to uphold the law would seem more suitably characterized as a reason for paying greater attention to its views rather than as a reason for heeding them less. Regardless, I am not aware of any legal principle that supports the kind of distinction (among legislative pressures) that the District Court made; and the District Court‘s necessary reliance upon such a distinction, by itself, should warrant vacating the District Court‘s decision.
Moreover, what reason is there to believe that Georgia‘s Legislature did not “really” want the two majority-minority districts that its earlier plans created? There is—as I indicated earlier—evidence that a number of legislators did want two majority-minority districts. See supra, at 106. And the legislature was aware of Georgia‘s long, well-documented history of past discrimination in voting. See Busbee, supra; Rogers v. Lodge, 458 U. S. 613 (1982); Gray v. Sanders, 372 U. S. 368 (1963); see also Morris v. Fortson, 261 F. Supp. 538, 541 (ND Ga. 1966); Lodge v. Buxton, 639 F. 2d 1358, 1378 (CA5 1981) (racial bloc voting in Burke County); Carrollton Branch of NAACP v. Stallings, 829 F. 2d 1547, 1559 (CA11 1987) (racial bloc voting in Carroll County); Cross v. Baxter, 604 F. 2d 875, 880, n. 8 (CA5 1979); Paige v. Gray, 437 F. Supp. 137, 158 (MD Ga. 1977) (Albany, Ga.); Pitts v. Busbee, 395 F. Supp. 35, 40 (ND Ga. 1975) (Fulton County); Bailey v. Vining, 514 F. Supp. 452, 461 (MD Ga. 1981) (Putnam County); Wilkes County v. United States, 450 F. Supp. 1171, 1174 (DC 1978); see generally E. Foner, Reconstruction: America‘s Unfinished Revolution, 1863-1877, pp. 423-424 (1988); McDonald, Binford, & Johnson, Georgia, in Quiet Revolution in the South: The Impact of the Voting Rights Act, 1965-1990, pp. 67-74 (C. Davidson & B. Grofman eds. 1994).
The Georgia Legislature was likely aware of the many unfortunate consequences that have flowed from this history. They include the facts that, when Congress first enacted the VRA, fewer than 30 percent of African-Americans eligible to vote in Georgia had registered to vote, ibid., and that no African-American had represented Georgia in Congress since Reconstruction, App. 140, when Congressman Jefferson Franklin Long briefly represented the State. B. Ragsdale & J. Treese, Black Americans in Congress, 1870-1989, p. 81 (1990).
The Georgia Legislature also might have thought that some degree of (indeed, a less than proportionate amount of) majority-minority districting could help to overcome some of the problems these facts suggest. Forty-two members of Georgia‘s (180 member) House of Representatives themselves were elected from majority-black districts; 30 of those members are black, 12 are white. App. 116. One hundred thirty-eight members of Georgia‘s House were elected from majority-white districts; 1 of those members is black, 137 are white. Ibid. Forty-three members of Georgia‘s (56 mem-
These circumstances help to explain why the 1991 Georgia Legislature might have thought that the creation of two majority-minority districts would help overcome race-related barriers—barriers erected by history and prejudice, reinforced by inertia and nonparticipation. Not only the three-district plan, but also the 1991 plan аnd the first (unprecleared) 1992 plan suggest that that is what the legislature did think. 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 represent a significant legislative “policy and preference.”
B
The majority says that the legislature‘s two-district preference is not owed Upham deference because a plan that embodied that preference is (or would be) “flawed by evidence of predominant racial motive,” ante, at 90, or based upon race to a degree not reasonably necessary to comply with
Miller considered the constitutionality of a three-district plan. Its five-Justice majority included one Member who
As the majority agrees,
The majority discusses only these last (Gingles) requirements at any length. As to the first requirement—compactness—the plans before the District Court raised two possibilities: first, the creation of a majority-minority district in southwest Georgia—in approximately the area labeled Dis-
The first possibility could have involved a compactly shaped district. Regardless, the DOJ‘s Illustrative Plan (which the District Court considered on the merits, 922 F. Supp., at 1561, n. 4) suggests a newly drawn District 11 with an African-American population of 54.60 percent, an African-American voting age population of 51.04 percent, and a population deviation of 0.10. (This deviation percentage—the highest in the Illustrative Plan—was still lower than the deviation in two of the districts contained in the Court Plan.) It suggests that the District Court‘s statement that “the only way Georgia could creatе a majority-minority district out of the minority concentrations in east-central Georgia was to link” rural and urban communities by using “land bridges and appendages” similar to those used in the unconstitutional 1992 plan, 922 F. Supp., at 1566, n. 15, was erroneous. The proposed district is different from its unconstitutional predecessor. It does not try to build a land bridge linking southern Atlanta with Savannah. Cf. Miller, supra, at 908. And its boundaries are far more regular.
Moreover, it strikes me that the District Court‘s finding that a district in east-central Georgia that encompassed both rural and urban African-American communities could not be “compact” confuses a number of issues. Shaw v. Reno and Miller compactness, which concerns the shape or boundaries of a district, differs from
The District Court considered the remaining two Gingles factors (the minority‘s “political cohesiveness” and the majority‘s “bloc voting“) under a single rubric, which the majority calls “the extent of racially polarized voting.” Ante, at 92. Of course, Georgia‘s history, including the political results that I have mentioned before—the fact that African-American representatives have come almost exclusively from majority-minority districts—strongly support the existence of that “polarization.” Moreover, appellants produced experts who testified that the percentage of District 11 white voters willing to vote for a black candidate varied from 0 to 26 percent, while the number of black voters willing to vote for a white candidate varied from 3 to 11 percent. App. 54-61, 69-70, 72. Other expert testimony suggested less polarization (placing the relevant numbers at 22 to 38 percent white-for-black and 20 percent to 23 percent black-for-white). Johnson v. Miller, 864 F. Supp., at 1390. But that other testimony rested in considerable part on local (and judicial, and primary) election results with multiple candidates or other special features that discouraged racial bloc voting, and for that reason they may have overstated
Regardless, as the majority says, the District Court found the statistical evidence inconclusive and “conflicting.” 922 F. Supp., at 1567. And the District Court conceded the existence of “some degree of vote polarization.” Ibid. (It simply said that the “degree” was not “‘alarming.‘” Ibid.) That African-American incumbents were reelected does not, without more, disprove polarization. Gingles, supra, at 75 (“[T]he election of a few minority candidates does not ‘necessarily foreclose the possibility of dilution of the black vote . . .‘“) (quoting S. Rep. No. 97-417, p. 29, n. 115 (1982), in turn quoting Zimmer v. McKeithen, 485 F. 2d 1297, 1307 (CA5 1973) (en banc), aff‘d sub nom. East Carroll Parish School Bd. v. Marshall, 424 U. S. 636 (1976) (per curiam)); 478 U. S., at 75 (citing S. Rep. No. 97-417, supra, at 29, n. 115) (listing incumbency as a special factor in assessing vote polarization).
The majority says that, despite this evidence, the District Court‘s findings—of no
This legal distinction—between whether a plan really violates
C
To create a second majority-minority district is not impractical nor would doing so significantly interfere with other important districting objectives. The easiest way to understand why this is so is to look at three plans that I have placed in the Appendix, infra. I shall call the Georgia Legislature‘s 1991 two-district reapportionment Plan A. Appendix, 1991 Plan, infra. I shall call the one-district plan adopted by the court Plan B. Appendix, 1995 Court Plan, infra. And I shall call the two-district Illustrative Plan proposed by the Justice Department Plan C. Appendix, Illustrative Plan, infra. Inspection of the three plans suggests that the District Court‘s plan (B) is very similar to the other two (A and C) but for one critical feature, namely, that it has one majority-minority district rather than two.
Now consider the three plans in respect to each of the five districting considerations that the District Court called traditional and important. They are: (a) retaining one district in each corner of the State; (b) creating an urban minor
All three plans are identical in respect to the first two considerations. Each maintains districts in thrеe of the four state corners; each creates at least one urban minority district. Plan B—the District Court‘s plan—is marginally superior in respect to the third criterion (maintaining political subdivisions). Plan B splits six counties within the Atlanta area but none outside the Atlanta area. Id., at 1564. Plan C splits two counties (Bibb and Muscogee) outside the Atlanta area. (Appellants, however, advance nonracial justifications for the latter splits.)
Plan C is superior to Plan B in respect to the remaining two considerations. Plan C displaces no incumbents. Plan B displaces three incumbents (including two African-Americans). Plan C maintains all district cores. Plan B moves many more Georgians into new districts.
Plan C has certain other advantages: It maintains, as provided in the legislature‘s 1991 plan, 138 of Georgia‘s 159 counties. Plan B maintains 123. Plan C has greater population uniformity among its districts. And, of course, Plan C provides for two majority-minority districts—the number the legislature provided in two of its three redistricting plans.
I add one point. This is not a suit in which there are claims of interference with the right to cast a ballot or “dilution” of the majority‘s vote. Cf. White v. Regester, 412 U. S. 755 (1973); Reynolds v. Sims, 377 U. S. 533 (1964); and Gomillion v. Lightfoot, 364 U. S. 339 (1960); see also Karlan & Levinson, 84 Calif. L. Rev., at 1212-1216. Rather, the legislature‘s plans, insofar as they were race conscious, sought only to prevent what the legislature could reasonably have believed to be unlawful vote dilution—i. e., to prevent a violation of
II
In other cases dissenting judges have expressed concerns that the Court‘s holdings and partiсularly its test—“predominant racial motive“—would prove unworkable, that they would improperly shift redistricting authority from legislatures to courts, and that they would prevent the legitimate use (among others the remedial use) of race as a political factor in redistricting, sometimes making unfair distinctions between racial minorities and others. See, e. g., Shaw v. Reno, 509 U. S., at 676-679 (STEVENS, J., dissenting); id., at 679-687 (SOUTER, J., dissenting); Miller, 515 U. S., at 929 (STEVENS, J., dissenting); id., at 934 (GINSBURG, J., dissenting); Bush, 517 U. S., at 1003 (STEVENS, J., dissenting); id., at 1045 (SOUTER, J., dissenting); Shaw v. Hunt, 517 U. S. 899, 918 (1996) (STEVENS, J., dissenting). This suit exacerbates those concerns.
Legislators, for example, may ask just what the words “predominant racial motive” mean. The question has no obvious answer because racial motives (here efforts to include some additional African-American voters in a particular district) never explain a predominant portion of a district‘s entire boundary (most of which inevitably reflects county lines, other geographical features, and sometimes even a discriminatory history, see App. 120-121); yet those motives always predominate in respect to those voters (whether few or many) whom the legislature, with consciousness of race, places for that reason in one district rather than another. More importantly, here, unlike other cases that use somewhat similar words, the Court has not turned to other considerations, such as discriminatory intent, or vote dilution, or even a district‘s bizarre geographical shape, to help explain, or to limit the scope of, the words themselves. Cf. Shaw v. Hunt, supra; Regester, supra; Reynolds, supra; and Gomillion, supra. Thus, given today‘s suit, a legislator might reasonably wonder whether he can ever knowingly place racial minorities in a district because, for example, he considers them part of a “community” already there; because he thinks doing so will favor the Democrats (or the Republicans); because he wants to help an African-American incumbent; because he believes doing so will encourage participation in the political process by racial minorities in whom historical discrimination has induced apathy; because he believes that doing so will help those same voters secure representatives that better reflect their needs and desires; or simply because he wants to see more racial minorities elected to office in a Nation that has become increasingly diverse.
The Court has not said that the Constitution forbids the use of race in all these instances. See Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 237 (1995); see also Shaw v. Reno, supra, at 646-647; Miller, supra, at 920; Bush, supra, at 1004 (STEVENS, J., dissenting); Wygant v. Jackson Bd. of Ed., 476 U. S., at 280; Richmond v. J. A. Croson Co., 488 U. S. 469, 493-494 (1989). If the use of race as a criterion is wrong in some, but not all, of these instances, the legislator will need to know when, and why. And the legislator will need a legal principle that tells him whether, or when, the answers to such questions vary depending upon whether the group is racial or reflects, say, economics, education, or national origin. Miller, supra, at 944-945 (GINSBURG, J., dissenting). It seems particularly difficult—without the use of some guiding or limiting principle, such as intent, vote dilution, or even bizarre district shape—to find principled legal answers to what, in the redistricting context, are traditionally political questions.
The decision also increases the risk of significant judicial entanglement in the inherently political redistricting process. See, e. g., Bush, supra, at 1035-1040 (STEVENS, J., dissenting); Miller, supra, at 934-935 (GINSBURG, J., dissenting); see also Growe v. Emison, 507 U. S. 25, 33-34 (1993);
Nor can I find any legal principle that might constitute a simple, administrable stopping place—a principle that could serve the same function in this context as does the one-person, one-vote rule in the context of reapportionment. See Miller, supra, at 938-939 (GINSBURG, J., dissenting). A simple “color blind” test—a test that rules out race consciousness across the board—will not work. Bush, supra, at 1060-1062 (SOUTER, J., dissenting). Legislators can and should use race consciously to prevent creating districting plans that discriminate against racial minorities, say, by “diluting” their votes. Cf. Adarand Constructors, Inc., 515 U. S., at 237. Moreover, this Court, recognizing the harm caused by slavery and 80 subsequent years of legal segregation, has held that legislators, within limits, can make conscious use of race in an effort to overcome the present effects of past discrimination. Ibid.; see also Shaw v. Reno, supra, at 646-647; Miller, 515 U. S., at 920. There may be other instances as well. Further, any test that applied only to race, ignoring, say, religion or national origin, would place at a disadvantage the very group, African-Americans, whom the Civil War Amendments sought to help, see id., at 936-
In focusing on these practical considerations, I repeat what previous dissents have argued. I do so because the holding here underscores the problems mentioned in those earlier dissents; and those problems, in turn, cast further doubt upon the soundness of today‘s decision.
III
I do not necessarily agree or disagree with those other aspects of the majority‘s opinion that I have not mentioned. But I shall stop with the main point. The Court, perhaps by focusing upon what it considered to be unreasonably pervasive positive use of race as a redistricting factor, has created a legal doctrine that will unreasonably restrict legislators’ use of race, even for the most benign, or antidiscriminatory, purposes. And that doctrine will draw the Court too deeply into an area of legislative responsibility. For the reasons set forth here, and in previous dissenting opinions, I do not believe that the Constitution embodies the doctrine that the majority enunciates. And I believe that Upham requires us to vacate the District Court‘s judgment and remand the suit.
[Appendix to opinion of BREYER, J., follows this page.]