GEORGIA v. ASHCROFT, ATTORNEY GENERAL, ET AL.
No. 02-182
Supreme Court of the United States
Argued April 29, 2003-Decided June 26, 2003
539 U.S. 461
David F. Walbert argued the cause for appellant. With him on the briefs were Thurbert E. Baker, Attorney General of Georgia, Dennis R. Dunn, Deputy Attorney General, and Mark H. Cohen.
Malcolm L. Stewart argued the cause for the federal appellees. With him on the brief were Solicitor General Olson, Assistant Attorney General Boyd, Deputy Solicitor General Clement, and Mark L. Gross.
E. Marshall Braden argued the cause for appellee intervenors. With him on the brief were Amy M. Henson, Frank B. Strickland, and Anne W. Lewis.*
JUSTICE O‘CONNOR delivered the opinion of the Court.
In this case, we decide whether Georgia‘s State Senate redistricting plan should have been precleared under
I
A
Over the past decade, the propriety of Georgia‘s state and congressional districts has been the subject of repeated litigation. In 1991, the Georgia General Assembly began the process of redistricting after the 1990 census. Because Georgia is a covered jurisdiction under
Georgia‘s 1992 Senate plan was not challenged in court. See id., at 1533-1534. Its congressional districting plan, however, was challenged as unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. See Shaw v. Reno, 509 U. S. 630 (1993). In 1995, we held in Miller v. Johnson that Georgia‘s congressional districting plan was unconstitutional because it engaged in “the very racial stereotyping the Fourteenth Amendment forbids” by making race the “predominant, overriding factor explaining” Georgia‘s congressional districting decisions. 515 U. S., at 928, 920. And even though it was “safe to say that the congressional plan enacted in the end was required in order to obtain preclearance,” this justification did not permit Georgia to engage in racial gerrymandering. See id., at 921. Georgia‘s State Senate districts served as “building blocks” to create the congressional districting plan found unconstitutional in Miller v. Johnson. Johnson v. Miller, 929 F. Supp., at 1533, n. 8 (internal quotation marks omitted); see also id., at 1536.
Georgia recognized that after Miller v. Johnson, its legislative districts were unconstitutional under the Equal Protection Clause. See 929 F. Supp., at 1533, 1540. Accordingly, Georgia attempted to cure the perceived constitutional problems with the 1992 State Senate districting plan by passing another plan in 1995. The Department of Justice refused to preclear the 1995 plan, maintaining that it retrogressed from the 1992 plan and that Miller v. Johnson concerned only Georgia‘s congressional districts, not Georgia‘s State Senate districts. See 929 F. Supp., at 1540-1541.
Private litigants subsequently brought an action challenging the constitutionality of the 1995 Senate plan. See id., at 1533. The three-judge panel of the District Court reviewing the 1995 Senate plan found that “[i]t is clear that a black maximization policy had become an integral part of the sec-
The District Court stated that the maximization of majority-minority districts in Georgia “artificially push[ed] the percentage of black voters within some majority black districts as high as possible.” 929 F. Supp., at 1536. The plan that eventually received the Department of Justice‘s preclearance in 1992 “represented the General Assembly‘s surrender to the black maximization policy of the DOJ.” Id., at 1540. The court then found that the 1995 plan was an unconstitutional racial gerrymander. See id., at 1543.
Under court direction, Georgia and the Department of Justice reached a mediated agreement on the constitutionality of the 1995 Senate plan. Georgia passed a new plan in 1997, and the Department of Justice quickly precleared it. The redrawn map resembled to a large degree the 1992 plan that eventually received preclearance from the Department of Justice, with some changes to accommodate the decision of this Court in Miller v. Johnson, and of the District Court in Johnson v. Miller.
After the 2000 census, the Georgia General Assembly began the process of redistricting the Senate once again. No party contests that a substantial majority of black voters in Georgia vote Democratic, or that all elected black representatives in the General Assembly are Democrats. The goal of the Democratic leadership-black and white-was to maintain the number of majority-minority districts and also increase the number of Democratic Senate seats. See id., at 41-42. For example, the Director of Georgia‘s Legislative Redistricting Office, Linda Meggers, testified that the Senate Black Caucus “wanted to maintain” the existing majority-minority districts and at the same time “not waste” votes. Id., at 41.
The Vice Chairman of the Senate Reapportionment Committee, Senator Robert Brown, also testified about the goals of the redistricting effort. Senator Brown, who is black, chaired the subcommittee that developed the Senate plan at issue here. See id., at 42. Senator Brown believed when he designed the Senate plan that as the black voting age population in a district increased beyond what was necessary, it would “pus[h] the whole thing more towards [the] Republican[s].” Pl. Exh. 20, at 24. And “correspondingly,” Senator Brown stated, “the more you diminish the power of African-Americans overall.” Ibid. Senator Charles Walker was the majority leader of the Senate. Senator Walker
The plan as designed by Senator Brown‘s committee kept true to the dual goals of maintaining at least as many majority-minority districts while also attempting to increase Democratic strength in the Senate. Part of the Democrats’ strategy was not only to maintain the number of majority-minority districts, but to increase the number of so-called “influence” districts, where black voters would be able to exert a significant-if not decisive-force in the election process. As the majority leader testified, “in the past, you know, what we would end up doing was packing. You put all blacks in one district and all whites in one district, so what you end up with is [a] black Democratic district and [a] white Republican district. That‘s not a good strategy. That does not bring the people together, it divides the population. But if you put people together on voting precincts it brings people together.” Pl. Exh. 24, at 19.
The plan as designed by the Senate “unpacked” the most heavily concentrated majority-minority districts in the benchmark plan, and created a number of new influence districts. The new plan drew 13 districts with a majority-black voting age population, 13 additional districts with a black voting age population of between 30% and 50%, and 4 other districts with a black voting age population of between 25% and 30%. See Pl. Exh. 2C. According to the 2000 census, as compared to the benchmark plan, the new plan reduced by five the number of districts with a black voting age population in excess of 60%. Compare Pl. Exh. 1D with Pl. Exh. 2C. Yet it increased the number of majority-black voting age population districts by one, and it increased the number
The Senate adopted its new districting plan on August 10, 2001, by a vote of 29 to 26. Ten of the eleven black Senators voted for the plan. 195 F. Supp. 2d, at 55. The Georgia House of Representatives passed the Senate plan by a vote of 101 to 71. Thirty-three of the thirty-four black Representatives voted for the plan. Ibid. No Republican in either the House or the Senate voted for the plan, making the votes of the black legislators necessary for passage. See id., at 41. The Governor signed the Senate plan into law on August 24, 2001, and Georgia subsequently sought to obtain preclearance.
B
Pursuant to
Georgia, which bears the burden of proof in this action, see Pleasant Grove v. United States, 479 U. S. 462 (1987), attempted to prove that its Senate plan was not retrogres-
Georgia also submitted testimony from numerous people who had participated in enacting the Senate plan into law, and from United States Congressman John Lewis, who represents the Atlanta area. These witnesses testified that the new Senate plan was designed to increase black voting strength throughout the State as well as to help ensure a continued Democratic majority in the Senate. The State also submitted expert testimony that African-American and non-African-American voters have equal chances of electing their preferred candidate when the black voting age population of a district is at 44.3%. Finally, in response to objections raised by the United States, Georgia submitted more detailed statistical evidence with respect to three proposed Senate districts that the United States found objectionable-Districts 2, 12, and 26-and two districts that the intervenors challenged-Districts 15 and 22.
The United States, through the Attorney General, argued in District Court that Georgia‘s 2001 Senate redistricting plan should not be precleared. It argued that the plan‘s changes to the boundaries of Districts 2, 12, and 26 unlawfully reduced the ability of black voters to elect candidates of their choice. See Brief for Federal Appellees 8; 195 F. Supp. 2d, at 72. The United States noted that in District 2, the black voting age population dropped from 60.58% to 50.31%; in District 12, the black voting age population dropped from 55.43% to 50.66%; and in District 26, the black
Pursuant to Federal Rule of Civil Procedure 24, the District Court also permitted four African-American citizens of Georgia to intervene. The intervenors identified two other districts-Districts 15 and 22-where they alleged retrogression had occurred. The intervenors “present[ed] little evidence other than proposed alternative plans and an expert report critiquing the State‘s expert report.” 195 F. Supp. 2d, at 37.
A three-judge panel of the District Court held that Georgia‘s State Senate apportionment violated
Judge Oberdorfer dissented. He would have given “greater credence to the political expertise and motivation of Georgia‘s African-American political leaders and reasonable inferences drawn from their testimony and the voting data and statistics.” Id., at 102. He noted that this Court has not answered “whether a redistricting plan that preserves or increases the number of districts statewide in which minorities have a fair or reasonable opportunity to elect candidates of choice is entitled to preclearance, or whether every district must remain at or improve on the benchmark probability of victory, even if doing so maintains a minority supermajority far in excess of the level needed for effective exercise of [the] electoral franchise.” Id., at 117.
After the District Court refused to preclear the plan, Georgia enacted another plan, largely similar to the one at issue here, except that it added black voters to Districts 2, 12, and 26. The District Court precleared this plan. See 204 F. Supp. 2d 4 (2002). No party has contested the propriety of the District Court‘s preclearance of the Senate plan as amended. Georgia asserts that it will use the plan as originally enacted if it receives preclearance.
We noted probable jurisdiction to consider whether the District Court should have precleared the plan as originally enacted by Georgia in 2001, 537 U. S. 1151 (2003), and now vacate the judgment below.
Before addressing the merits of Georgia‘s preclearance claim, we address the State‘s argument that the District Court was incorrect in allowing the private litigants to intervene in this lawsuit. Georgia maintains that private parties should not be allowed to intervene in
We do not think Georgia‘s argument is moot. The intervenors did not have to appeal because they were prevailing parties below. Moreover, the District Court addressed the evidence that the intervenors submitted, which is now in front of this Court. The issue whether intervenors are proper parties still has relevance in this Court because they argue here that the District Court correctly found that the Senate plan was retrogressive.
The District Court properly found that Federal Rule of Civil Procedure 24 governs intervention in this case. Section 5 permits a State to bring “an action in the United States District Court for the District of Columbia for a declaratory judgment.”
To support its argument, Georgia relies on Morris v. Gressette, 432 U. S. 491 (1977). In Morris, we held that in an administrative preclearance action, the decision to object belongs only to the Attorney General and is not judicially
Here, the District Court granted the motion to intervene because it found that the intervenors’ “analysis of the Senate redistricting pla[n] identifies interests that are not adequately represented by the existing parties.” App. to Juris. Statement 218a. Private parties may intervene in
III
A
Section 5 of the Voting Rights Act “has a limited substantive goal: ‘to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.‘” Miller, 515 U. S., at 926 (quoting Beer v. United States, 425 U. S., [at 141]).” Bush v. Vera, 517 U. S. 952, 982-983 (1996). Thus, a plan that merely preserves “current minority voting strength” is entitled to
Georgia argues that a plan should be precleared under
In Bossier Parish I, we specifically held that a violation of
Georgia here makes the flip side of the argument that failed in Bossier Parish I-compliance with
B
Georgia argues that even if compliance with
While we have never determined the meaning of “effective exercise of the electoral franchise,” this case requires us to do so in some detail. First, the United States and the District Court correctly acknowledge that in examining whether the new plan is retrogressive, the inquiry must encompass the entire statewide plan as a whole. See 195 F. Supp. 2d, at 73; Tr. of Oral Arg. 28-29. Thus, while the diminution of a minority group‘s effective exercise of the electoral franchise in one or two districts may be sufficient to show a violation of
Second, any assessment of the retrogression of a minority group‘s effective exercise of the electoral franchise depends on an examination of all the relevant circumstances, such as the ability of minority voters to elect their candidate of choice, the extent of the minority group‘s opportunity to participate in the political process, and the feasibility of creating a nonretrogressive plan. See, e. g., Johnson v. De Grandy, 512 U. S. 997, 1011-1012, 1020-1021 (1994); Richmond v. United States, 422 U. S. 358, 371-372 (1975); Thornburg
In assessing the totality of the circumstances, a court should not focus solely on the comparative ability of a minority group to elect a candidate of its choice. While this factor is an important one in the
The ability of minority voters to elect a candidate of their choice is important but often complex in practice to determine. In order to maximize the electoral success of a minority group, a State may choose to create a certain number of “safe” districts, in which it is highly likely that minority voters will be able to elect the candidate of their choice. See Thornburg v. Gingles, 478 U. S., at 48-49; id., at 87-89 (O‘CONNOR, J., concurring in judgment). Alternatively, a State may choose to create a greater number of districts in which it is likely-although perhaps not quite as likely as under the benchmark plan-that minority voters will be able to elect candidates of their choice. See id., at 88-89 (O‘CONNOR, J., concurring in judgment); cf. Pildes, Is Voting-Rights Law Now at War With Itself? Social Science and Voting Rights in the 2000s, 80 N. C. L. Rev. 1517 (2002).
Section 5 does not dictate that a State must pick one of these methods of redistricting over another. Either option “will present the minority group with its own array of electoral risks and benefits,” and presents “hard choices about what would truly ‘maximize’ minority electoral success.” Thornburg v. Gingles, supra, at 89 (O‘CONNOR, J., concurring in judgment). On one hand, a smaller number of safe
On the other hand, spreading out minority voters over a greater number of districts creates more districts in which minority voters may have the opportunity to elect a candidate of their choice. Such a strategy has the potential to increase “substantive representation” in more districts, by creating coalitions of voters who together will help to achieve the electoral aspirations of the minority group. See id., at 114. It also, however, creates the risk that the minority group‘s preferred candidate may lose. Yet as we stated in Johnson v. De Grandy, supra, at 1020:
“[T]here are communities in which minority citizens are able to form coalitions with voters from other racial and ethnic groups, having no need to be a majority within a single district in order to elect candidates of their choice. Those candidates may not represent perfection to every minority voter, but minority voters are not immune from the obligation to pull, haul, and trade to find common political ground, the virtue of which is not to be slighted in applying a statute meant to hasten the waning of racism in American politics.”
In addition to the comparative ability of a minority group to elect a candidate of its choice, the other highly relevant factor in a retrogression inquiry is the extent to which a new plan changes the minority group‘s opportunity to participate in the political process. “[T]he power to influence the political process is not limited to winning elections.” Thornburg v. Gingles, supra, at 99 (O‘CONNOR, J., concurring in judgment) (quoting Davis v. Bandemer, 478 U. S. 109, 132 (1986)); see also White v. Regester, 412 U. S. 755, 766-767 (1973); Whitcomb v. Chavis, 403 U. S. 124, 149-160 (1971); Johnson v. De Grandy, 512 U. S., at 1011-1012.
Thus, a court must examine whether a new plan adds or subtracts “influence districts“-where minority voters may not be able to elect a candidate of choice but can play a substantial, if not decisive, role in the electoral process. Cf. Shaw v. Hunt, 517 U. S. 899, 947, n. 21 (1996) (STEVENS, J., dissenting); Hays v. Louisiana, 936 F. Supp. 360, 364, n. 17 (WD La. 1996); Johnson v. De Grandy, supra, at 1011-1012; Thornburg v. Gingles, 478 U. S., at 98-100 (O‘CONNOR, J., concurring in judgment). In assessing the comparative weight of these influence districts, it is important to consider “the likelihood that candidates elected without decisive minority support would be willing to take the minority‘s interests into account.” Id., at 100 (O‘CONNOR, J., concurring in judgment). In fact, various studies have suggested that the most effective way to maximize minority voting strength may be to create more influence or coalitional districts. See, e. g., Lublin, Racial Redistricting and African-American Representation: A Critique of “Do Majority-Minority Districts Maximize Substantive Black Representation in Congress?” 93 Am. Pol. Sci. Rev. 183, 185 (1999) (noting that racial redistricting in the early 1990‘s, which created more majority-minority districts, made Congress “less likely to adopt initiatives supported by blacks“); Cameron, Epstein, &
In addition to influence districts, one other method of assessing the minority group‘s opportunity to participate in the political process is to examine the comparative position of legislative leadership, influence, and power for representatives of the benchmark majority-minority districts. A legislator, no less than a voter, is “not immune from the obligation to pull, haul, and trade to find common political ground.” Ibid. Indeed, in a representative democracy, the very purpose of voting is to delegate to chosen representatives the power to make and pass laws. The ability to exert more control over that process is at the core of exercising political power. A lawmaker with more legislative influence has more potential to set the agenda, to participate in closed-door meetings, to negotiate from a stronger position, and to
And it is also significant, though not dispositive, whether the representatives elected from the very districts created and protected by the Voting Rights Act support the new districting plan. The District Court held that the support of legislators from benchmark majority-minority districts may show retrogressive purpose, but it is not relevant in assessing retrogressive effect. See 195 F. Supp. 2d, at 89; see also post, at 503 (SOUTER, J., dissenting). But we think this evidence is also relevant for retrogressive effect. As the dissent recognizes, the retrogression inquiry asks how “voters will probably act in the circumstances in which they live.” Post, at 509. The representatives of districts created to ensure continued minority participation in the political process have some knowledge about how “voters will probably act” and whether the proposed change will decrease minority voters’ effective exercise of the electoral franchise.
The dissent maintains that standards for determining nonretrogression under
The dissent nevertheless asserts that it “cannot be right” that the
C
The District Court failed to consider all the relevant factors when it examined whether Georgia‘s Senate plan resulted in a retrogression of black voters’ effective exercise of the electoral franchise. First, while the District Court acknowledged the importance of assessing the statewide plan as a whole, the court focused too narrowly on proposed Senate Districts 2, 12, and 26. It did not examine the increases in the black voting age population that occurred in many of the other districts. Second, the District Court did not explore in any meaningful depth any other factor beyond the comparative ability of black voters in the majority-
The District Court correctly recognized that the increase in districts with a substantial minority of black voters is an important factor in the retrogression inquiry. See 195 F. Supp. 2d, at 75-78. Nevertheless, it did not adequately apply this consideration to the facts of this case. The District Court ignored the evidence of numerous other districts showing an increase in black voting age population, as well as the other evidence that Georgia decided that a way to increase black voting strength was to adopt a plan that “unpacked” the high concentration of minority voters in the majority-minority districts. Its statement that Georgia did not “presen[t] evidence regarding potential gains in minority voting strength in Senate Districts other than Districts 2, 12 and 26” is therefore clearly erroneous. Id., at 94. Like the dissent, we accept the District Court‘s findings that the reductions in black voting age population in proposed Districts 2, 12, and 26 to just over 50% make it marginally less likely that minority voters can elect a candidate of their choice in those districts, although we note that Georgia introduced evidence showing that approximately one-third of white voters would support a black candidate in those districts, see id., at 66, and that the United States’ own expert admitted that the results of statewide elections in Georgia show that “there would be a ‘very good chance’ that . . . African American candidates would win election in the reconstituted districts.” Id., at 71; see also id., at 84-85. Nevertheless, regardless of any racially polarized voting or diminished opportunity for black voters to elect a candidate of their choice in proposed Districts 2, 12, and 26, the District Court‘s inquiry was too narrow.
...
Given the evidence submitted in this case, we find that Georgia likely met its burden of showing nonretrogression. The increase in black voting age population in the other districts likely offsets any marginal decrease in the black voting age population in the three districts that the District Court found retrogressive. Using the overlay of the 2000 census numbers, Georgia‘s strategy of “unpacking” minority voters in some districts to create more influence and coalitional districts is apparent. Under the 2000 census numbers, the number of majority black voting age population districts in the new plan increases by one, the number of districts with a black voting age population of between 30% and 50% increases by two, and the number of districts with a black voting age population of between 25% and 30% increases by another 2. See Pl. Exhs. 1D, 2C; see also supra, at 470-471.
Using the census numbers in effect at the time the benchmark plan was enacted to assess the benchmark plan, the difference is even more striking. Under those figures, the new plan increases from 10 to 13 the number of districts with a majority-black voting age population and increases from 8 to 13 the number of districts with a black voting age population of between 30% and 50%. See Pl. Exhs. 1C, 2C. Thus,
Other evidence supports the implausibility of finding retrogression here. An examination of black voters’ opportunities to participate in the political process shows, if anything, an increase in the effective exercise of the electoral franchise. It certainly does not indicate retrogression. The 34 districts in the proposed plan with a black voting age population of above 20% consist almost entirely of districts that have an overall percentage of Democratic votes of above 50%. See Pl. Exh. 2D. The one exception is proposed District 4, with a black voting age population of 30.51% and an overall Democratic percentage of 48.86%. See ibid. These statistics make it more likely as a matter of fact that black voters will constitute an effective voting bloc, even if they cannot always elect the candidate of their choice. See Thornburg v. Gingles, 478 U. S., at 100 (O‘CONNOR, J., concurring in judgment). These statistics also buttress the testimony of the designers of the plan such as Senator Brown, who stated that the goal of the plan was to maintain or increase black voting strength and relatedly to increase the prospects of Democratic victory. See supra, at 469-470.
The testimony of Congressman John Lewis is not so easily dismissed. Congressman Lewis is not a member of the State Senate and thus has less at stake personally in the outcome of this litigation. Congressman Lewis testified that “giving real power to black voters comes from the kind of redistricting efforts the State of Georgia has made,” and that the Senate plan “will give real meaning to voting for African Americans” because “you have a greater chance of putting in office people that are going to be responsive.” Pl. Exh. 21, at 21-23.
The dissent‘s analysis presumes that we are deciding that Georgia‘s Senate plan is not retrogressive. See post, at 501-508. To the contrary, we hold only that the District Court did not engage in the correct retrogression analysis because it focused too heavily on the ability of the minority group to elect a candidate of its choice in the majority-minority districts. While the District Court engaged in a thorough analysis of the issue, we must remand the case for the District Court to examine the facts using the standard that we announce today. We leave it for the District Court to determine whether Georgia has indeed met its burden of proof. The dissent justifies its conclusion here on the ground that the District Court did not clearly err in its factual determination. But the dissent does not appear to dispute that if the District Court‘s legal standard was incorrect, the decision below should be vacated.
The purpose of the Voting Rights Act is to prevent discrimination in the exercise of the electoral franchise and to foster our transformation to a society that is no longer fixated on race. Cf. Johnson v. De Grandy, 512 U. S., at 1020; Shaw v. Reno, 509 U. S., at 657. As Congressman Lewis stated: “I think that‘s what the [civil rights] struggle was all about, to create what I like to call a truly interracial democracy in the South. In the movement, we would call it creating the beloved community, an all-inclusive community, where we would be able to forget about race and color and see people as people, as human beings, just as citizens.” Pl. Exh. 21, at 14. While courts and the Department of Justice should be vigilant in ensuring that States neither reduce the effective exercise of the electoral franchise nor discriminate against minority voters, the Voting Rights Act, as properly interpreted, should encourage the transition to a society where race no longer matters: a society where integration
IV
The District Court is in a better position to reweigh all the facts in the record in the first instance in light of our explication of retrogression. The judgment of the District Court for the District of Columbia, accordingly, is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE KENNEDY, concurring.
As is evident from the Court‘s accurate description of the facts in this case, race was a predominant factor in drawing the lines of Georgia‘s State Senate redistricting map. If the Court‘s statement of facts had been written as the preface to consideration of a challenge brought under the Equal Protection Clause or under
I agree that our decisions controlling the
JUSTICE THOMAS, concurring.
I continue to adhere to the views expressed in my opinion in Holder v. Hall, 512 U. S. 874, 891 (1994) (opinion concurring in judgment). I join the Court‘s opinion because it is fully consistent with our
JUSTICE SOUTER, with whom JUSTICE STEVENS, JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting.
I
I agree with the Court that reducing the number of majority-minority districts within a State would not necessarily amount to retrogression barring preclearance under
Before a State shifts from majority-minority to coalition districts, however, the State bears the burden of proving that nonminority voters will reliably vote along with the minority. See, e. g., Reno v. Bossier Parish School Bd., 520
The District Court majority perfectly well understood all this and committed no error. Error enters this case here in this Court, whose majority unmoors
II
The Court goes beyond recognizing the possibility of coalition districts as nonretrogressive alternatives to those with majorities of minority voters when it redefines effective voting power in
A
The Court holds that a State can carry its burden to show a nonretrogressive degree of minority “influence” by demonstrating that “‘candidates elected without decisive minority support would be willing to take the minority‘s interests into account.‘” Ante, at 482 (quoting Thornburg v. Gingles, 478 U. S. 30, 100 (1986) (O‘CONNOR, J., concurring in judgment)). But this cannot be right.
The history of
The Court, however, says that influence may be adequate to avoid retrogression from majority-minority districts when it consists not of decisive minority voting power but of sentiment on the part of politicians: influence may be sufficient
The power to elect a candidate of choice has been forgotten; voting power has been forgotten. It is very hard to see anything left of the standard of nonretrogression, and it is no surprise that the Court‘s cited precedential support for this reconception, see ante, at 482, consists of a footnote from a dissenting opinion in Shaw v. Hunt, 517 U. S. 899 (1996), and footnote dictum in a case from the Western District of Louisiana.
Indeed, to see the trouble ahead, one need only ask how on the Court‘s new understanding, state legislators or federal preclearance reviewers under
Identical problems of comparability and administrability count at least as much against the Court‘s further gloss on nonretrogression, in its novel holding that a State may trade off minority voters’ ability to elect a candidate of their choice against their ability to exert some undefined degree of influence over a candidate likely to occupy a position of official legislative power. See ante, at 483-484. The Court implies that one majority-minority district in which minority voters could elect a legislative leader could replace a larger number of majority-minority districts with ordinary candidates, without retrogression of overall minority voting strength. Under this approach to
It is impossible to believe that Congress could ever have imagined
I do not fault the Court for having no answers to these questions, for there are no answers of any use under
One is left to ask who will suffer most from the Court‘s new and unquantifiable standard. If it should turn out that an actual, serious burden of persuasion remains on the States, States that rely on the new theory of influence should be guaranteed losers: nonretrogression cannot be demonstrated by districts with minority influence too amorphous for objective comparison. But that outcome is unlikely, and if in subsequent cases the Court allows the State‘s burden to be satisfied on the pretense that unquantifiable influence can be equated with majority-minority power,
III
The District Court never reached the question the Court addresses, of what kind of influence districts (coalition or not) might demonstrate that a decrease in majority-minority districts was not retrogressive. It did not reach this question because it found that the State had not satisfied its burden of persuasion on an issue that should be crucial on any administrable theory:1 the State had not shown the possibility
of actual coalitions in the affected districts that would allow any retreat from majority-minority districts without a retrogressive effect. This central evidentiary finding is invulnerable under the correct standard of review.
This Court‘s review of the District Court‘s factual findings is for clear error. See, e. g., Miller v. Johnson, 515 U. S. 900, 917 (1995); Pleasant Grove v. United States, 479 U. S. 462, 469 (1987); McCain v. Lybrand, 465 U. S. 236, 258 (1984); City of Lockhart v. United States, 460 U. S. 125, 136 (1983). We have no business disturbing the District Court‘s ruling “simply because we would have decided the case differently,” but only if based “on the entire evidence, [we are] left with the definite and firm conviction that a mistake has been committed.” Easley v. Cromartie, 532 U. S. 234, 242 (2001) (internal quotation marks omitted). It is not, then, up to us to “decide whether Georgia‘s State Senate redistricting plan is retrogressive as compared to its previous, benchmark districting plan.” Ante, at 466. Our sole responsibility is to see whether the District Court committed clear error in refusing to preclear the plan. It did not.
A
The District Court began with the acknowledgment (to which we would all assent) that the simple fact of a decrease in black voting age population (BVAP) in some districts is not alone dispositive about whether a proposed plan is retrogressive:
...
“‘Unpacking’ African American districts may have positive or negative consequences for the statewide electoral strength of African American voters. To the extent that voting patterns suggest that minority voters are in a better position to join forces with other segments of the population to elect minority preferred candidates, a decrease in a district‘s BVAP may have little or no effect on minority voting strength.” 195 F. Supp. 2d 25, 76 (DC 2002).
See id., at 78 (“[T]he Voting Rights Act allows states to adopt plans that move minorities out of districts in which they formerly constituted a majority of the voting population, provided that racial divisions have healed to the point that numerical reductions will not necessarily translate into reductions in electoral power“); id., at 84 (“[T]he mere fact that BVAP decreases in certain districts is not enough to deny preclearance to a plan under
The District Court recognized that the key to understanding the impact of drops in a district‘s BVAP on the minority group‘s “effective exercise of the electoral franchise,” Beer, 425 U. S., at 141, is the level of racial polarization. If racial elements consistently vote in separate blocs, decreasing the proportion of black voters will generally reduce the chance that the minority group‘s favored candidate will be elected; whereas in districts with low racial bloc voting or significant white crossover voting, a decrease in the black proportion may have no effect at all on the minority‘s opportunity to elect their candidate of choice. See, e. g., 195 F. Supp. 2d, at 84 (“[R]acial polarization is critically important because its presence or absence in the Senate Districts challenged by the United States goes a long way to determining whether
This indisputable recognition, that context determines the effect of decreasing minority numbers for purposes of the
Accordingly, the District Court explained that Georgia‘s expert:
“made no attempt to address the central issue before the court: whether the State‘s proposal is retrogressive. He failed even to identify the decreases in BVAP that would occur under the proposed plan, and certainly did not identify corresponding reductions in the electability of African American candidates of choice. The paucity of information in [the expert‘s] report thus leaves us unable to use his analysis to assess the expected change in African American voting strength statewide that will be brought by the proposed Senate plan.” Id., at 81.
B
How is it, then, that the majority of this Court speaks of “Georgia‘s evidence that the Senate plan as a whole is not retrogressive,” against which “the United States did not introduce any evidence [in] rebut[tal],” ante, at 487? The answer is that the Court is not engaging in review for clear error. Instead, it is reweighing evidence de novo, discovering what it thinks the District Court overlooked, and drawing evidentiary conclusions the District Court supposedly did not see. The Court is mistaken on all points.
1
Implicitly recognizing that evidence of voting behavior by majority voters is crucial to any showing of nonretrogression when minority numbers drop under a proposed plan, the Court tries to find evidence to fill the record‘s gap. It says, for example, that “Georgia introduced evidence showing that approximately one-third of white voters would support a black candidate in [the contested] districts.” Ante, at 486. In support of this claim, however, the majority focuses on testimony offered by Georgia‘s expert relating to crossover voting in the pre-existing rather than proposed districts. 195 F. Supp. 2d, at 66. The District Court specifically noted that the expert did not calculate crossover voting under the proposed plan. Id., at 65, n. 31 (“The court also emphasizes
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2
In another effort to revise the record, the Court faults the District Court, alleging that it “focused too narrowly on proposed Senate Districts 2, 12, and 26.” Ante, at 485. In fact, however, it is Georgia that asked the District Court to consider only the contested districts, and the District Court explicitly refused to limit its review in any such fashion: “we reject the State‘s argument that this court‘s review is limited only to those districts challenged by the United States, and should not encompass the redistricting plans in their entirety. . . . [T]he court‘s review necessarily extends to the entire proposed plan.” 195 F. Supp. 2d, at 73. The District Court explained that it “is vested with the final authority to approve or disapprove the proposed change as a whole.” Ibid. “The question before us is whether the proposed Senate plan as a whole, has the ‘purpose or effect of denying or abridging the right to vote on account of race or color.‘” Id., at 103 (Oberdorfer, J., concurring in part and dissenting in part) (quoting
3
In a further try to improve the record, the Court focuses on the testimony of certain lay witnesses, politicians presented by the State to support its claim that the Senate plan is not retrogressive. Georgia, indeed, relied heavily on the near unanimity of minority legislators’ support for the plan. But the District Court did not overlook this evidence; it simply found it inadequate to carry the State‘s burden of showing nonretrogression. The District Court majority explained that the “legislators’ support is, in the end, far more probative of a lack of retrogressive purpose than of an absence of retrogressive effect.” Id., at 89 (emphasis in original). As against the politicians’ testimony, the District Court had contrary “credible,” id., at 88, evidence of retrogressive effect. This evidence was the testimony of the expert witness presented by the United States, which “suggests the existence of highly racially polarized voting in the proposed districts,” ibid., evidence of retrogressive effect to which Georgia offered “no competent” response, ibid. The District Court was clearly within bounds in finding that (1) Georgia‘s proposed plan decreased BVAP in the relevant districts, (2) the United States offered evidence of significant racial polarization in those districts, and (3) Georgia offered no adequate response to this evidence.
The reasonableness of the District Court‘s treatment of the evidence is underscored in its concluding reflection that it was possible Georgia could have shown the plan to be non-retrogressive, but the evidence the State had actually offered simply failed to do that. “There are, without doubt,
As must be plain, in overturning the District Court‘s thoughtful consideration of the evidence before it, the majority of this Court is simply rejecting the District Court‘s evidentiary finding in favor of its own. It is reweighing testimony and making judgments about the competence, interest, and character of witnesses. The Court is not conducting clear error review.
4
Next, the Court attempts to fill the holes in the State‘s evidence on retrogression by drawing inferences favorable to the State from undisputed statistics. See ante, at 487-489. This exercise comes no closer to demonstrating clear error than the others considered so far.
In the first place, the District Court has already explained the futility of the Court‘s effort. Knowing whether the number of majority BVAP districts increases, decreases, or stays the same under a proposed plan does not alone allow any firm conclusion that minorities will have a better, or worse, or unvarying opportunity to elect their candidates of choice. Any such inference must depend not only on trends in BVAP levels, but on evidence of likely voter turnout among minority and majority groups, patterns of racial bloc voting, likelihood of white crossover voting, and so on.4 In-
Lack of contextual evidence is not, however, the only flaw in the Court‘s numerical arguments. Thus, in its first example, ante, at 487, the Court points out that under the proposed plan the number of districts with majority BVAP increases by one over the existing plan,5 but the Court does not mention that the number of districts with BVAP levels over 55% decreases by four. See Record, Doc. No. 148, Pl. Exhs. 1D, 2C. Similarly, the Court points to an increase of two in districts with BVAP in the 30% to 50% range, along with a further increase of two in the 25% to 30% range. Ante, at 487. It fails to mention, however, that Georgia‘s own expert argued that 44.3% was the critical threshold for BVAP levels, 195 F. Supp. 2d, at 107, and the data on which the Court relies shows the number of districts with BVAP over 40% actually decreasing by one, see Record, Doc. No. 148, Pl. Exhs. 1D, 2C. My point is not that these figures conclusively demonstrate retrogression; I mean to say only that percentages tell us nothing in isolation, and that without contextual evidence the raw facts about population levels fail to get close to indicating that the State carried its burden to show no retrogression. They do not come close to showing clear error.
Nor could error, clear or otherwise, be shown by the Court‘s comparison of the proposed plan with the description of the State and its districts provided by the 1990 census. Ante, at 487-489. The 1990 census is irrelevant. We have the 2000 census, and precedent confirms in no uncertain terms that the issue for
The Court‘s final effort to demonstrate that Georgia‘s plan is nonretrogressive focuses on statistics about Georgia Democrats. Ante, at 489. The Court explains that almost all the districts in the proposed plan with a BVAP above 20% have a likely overall Democratic performance above 50%, and from this the Court concludes that “[t]hese statistics make it more likely as a matter of fact that black voters will constitute an effective voting bloc.” Ibid. But this is not so. The degree to which the statistics could support any judgment about the effect of black voting in State Senate elections is doubtful, and even on the Court‘s assumptions the statistics show no clear error by the District Court.
As for doubt about what the numbers have to do with State Senate elections, it is enough to know that the majority‘s figures are taken from a table describing Democratic voting in statewide, not local, elections. The Court offers no basis for assuming that voting for Democratic candidates in statewide elections correlates with voting behavior in local elections,7 and in fact, the record points to different, not identical, voting patterns. The District Court specifically noted that the United States‘s expert testified that “African American candidates consistently received less crossover voting in local election[s] than in statewide elections,” 195 F. Supp. 2d, at 71, and the court concluded that there is “compelling evidence that racial voting patterns in State Senate races can be expected to differ from racial voting patterns in statewide races,” id., at 85-86.
All of this reasoning, of course, carries a whiff of the lamp. I do not know how Georgia‘s voters will actually behave if the percentage of something is x, or maybe y, any more than the Court does. We are arguing about numerical abstractions, and my sole point is that the Court‘s abstract arguments do not hold up. Much less do they prove the District Court wrong.