*1 et al. v. JOHNSON MILLER et al. 29, 1995* June 1995 Decided Argued April
No. 94-631. *Together 94-797, al., with No. Abrams et al. v. Johnson et No. 94-929, al., United States v. Johnson et on appeal also from the same court. *3 Kennedy, J., Court, opinion Rehnquist, delivered the in which J., O’Connor, Scalia, Thomas, JJ., joined. O’Connor, J., C. and and filed concurring opinion, post, p. Stevens, J., dissenting 928. filed a opinion, p. Ginsburg,
post, J., 929. dissenting opinion, filed a in which Stevens Breyer, JJ., joined, Souter, J., joined except and which as to Part III-B, post, p. 934. Special Attorney Walbert, David F Assistant General of Georgia, argued private appel- the cause for the state and appellants lants. With him on the briefs for Miller et al. Attorney were Michael Bowers, J. General, and Dennis R. Attorney Dunn, Senior Assistant General. Solicitor Gen- Days argued eral the cause for the United States. With him on the briefs were Assistant Attorney Patrick, General Deputy Solicitor General Bender, James A. Feldman, Ste- ven H. Rosenbaum, and Miriam R. Eisenstein. Laughlin McDonald, Neil Bradley, Elaine R. Jones, Theodore M. Shaw, Norman J. Chachkin, Jacqueline A. Berrien, Gerald R. Weber filed briefs for appellants Abrams et al.
A. Lee Parks argued the cause for appellees. With him on the brief was H. Larry Chesin.† Kennedy delivered the opinion
Justice
Court.
constitutionality
Georgia’s congressional redistriet-
ing plan is at issue here.
In Shaw
Reno,
† Briefs of amici curiae urging reversal were filed for the State of Texas et Morales, by al. Dan Attorney Jorge Vega, Texas, General of As First sistant Attorney General, Hicks, and Renea Solicitor, State and Michael F. Easley, Attorney General of Carolina; North for the Congressional Black by Caucus A Higginbotham, Leon Jr.; Democratic National Committee by et al. Wayne Arden Simon; J. Donald for the Georgia Association of Black Elected Officials Moglen Eben and Pamela S. Har- ían; for the Lawyers’ Committee for Rights Civil Under *4 by Law Michael A Cooper, Hansell, Herbert J. Henderson, Thomas J. Wright, Brenda J. Hebert, Gerald Nicholas deB. Katzenbach, Kraus; E. and Alan for the Mexican Legal American Defense and Educational Fund et by al. Charisse Lillie, R. Narasaki, Karen Henderson, Wade Dennis Hayes, Courtland Kim Gandy, Ellis, Deborah Rodney Gregory, G. Elliot Mincberg, and Donna R. Lenhoff; and for the National Voting Rights by Institute Jamin Raskin. Briefs of amici curiae urging affirmance were filed for the Anti- League Defamation by F. Peter Phillips, Jeffrey P. Sinensky, Steven M. Freeman, Debbie Kaminer, N. and Martin E. Karlinsky; for the Washing- Legal ton Foundation et by al. Daniel Popeo J. and Richard Samp; A and for Ruth O. Shaw et by al. Robinson O.Everett and Dougherty. Clifford Owens, Jr., William C. filed a brief for A. J. Pate as amicus curiae. 904 can be sustained it and, so, if whether Shaw,
nounced compelling a narrowly serve tailored nonetheless governmental interest.
I A Amend Fourteenth Clause Protection Equal any person within “deny to shall provides that no State ment laws.” U. S. protection of equal jurisdiction its § neutral is racial mandate central 14, Its 1. Const., Amdt. Loving g., v. decisionmaking. See, e. ity governmental (1967); Florida, 379 McLaughlin v. Virginia, 1, 11 388 U. S. (1964); Educa v. Board Brown see also 184, 191-192 U. S. of (1954). imper of Though application this tion, 347 U. S. straight principle is questions, the basic difficult ative raises any are sort of distinctions and ethnic “Racial forward: exacting judi most suspect thus call for the inherently ethnic racial and perception of . . . This cial examination. de constitutional our Nation’s rooted in distinctions Bakke, 438 v. history.” Regents Cal. Univ. mographic (1978) obtains This rule (opinion Powell, 265, 291 U. S. J.). those burdened regardless of “the equal race force with Richmond particular by classification.” or benefited (1989) opinion) (plurality Co., 488 S. A. U. J. Croson concurring judg (citations omitted); id., at J., (Scalia, ment) (“I conclusion agree... with Justice O’Connor’s governmental classifi applied scrutiny to all must be strict race”); Constructors, Inc. v. Adarand also see cation (opinion of Pow supra, Bakke, at 289-291 ante, 224; Peña, cannot basis of race classifying on citizens ell, Laws J.). achieving narrowly they upheld are tailored unless be ante, 227; g., Adarand, compelling See, e. state interest. Wygant opinion); v. Jackson supra, (plurality Croson, (1986)(plurality n. 267, 274, Ed., Bd. U. S. opinion).
905 equal recognized these supra, we Reno, In v. Shaw drawing congres govern principles a State’s protection approach though, there dis our cautious districts, as sional districting principles application to electoral of these closes, prem analysis began from the delicate task. Our is a most distinguish explicitly “[l]aws individu between ise that [the Equal Pro grounds the core of fall within als on racial prohibition Clause’s] This prohibition.” Id., at 642. tection explicit but also to just classifications, racial extends grounds “‘unexplainable on on their face but laws neutral ” Heights (quoting Arlington Id., at 644 than race.’ other Development Corp., Housing 252, 266 429 Metropolitan U. S. (1977)). analysis equal protection in the Applying this basic “redistricting legislation voting rights held that context, we ‘unexplainable on its face that it is so bizarre on that is same close scru grounds . demands the race,’ than . . other by classify give laws that citizens tiny other state that we Heights, supra, Arlington (quoting S., race.” U. 266). apply principles articu- litigation requires us to This redistricting congressional most recent lated in to the Shaw Georgia. by plan enacted State
B Georgia designated a cov Attorney 1965, In General 4(b) (Act), § Voting Rights Act jurisdiction ered under 1973b(b). § 30 Fed. 438, amended, U. S. C. 79 Stat. City (1965); pt. App.; also Reg. see see 28 CFR (1980). In conse States, 446 U. S. Rome v. United § requires Georgia either ad quence, to obtain the Act 5 of ap Attorney or preclearance General ministrative for the District proval by District States Court United proce practice, any change or “standard, in a Columbia voting” 1, 1964. respect made after November dure with § applies to preclearance mechanism 42 U. 1973c. The S. C. *6 g., redistricting plans, Beer v. United see, e. congressional (1976), pro- requires the that and 130, 133 States, 425 U. S. purpose the change will not have and posed “not have the right abridging account denying to vote on the or of effect § § purpose “[T]he of 5 1973c. 42 U. S. C. or color.” of race changes voting-procedure always no to insure that been has retrogression in the lead to made that would be would respect to effective position their minorities with of racial supra, Beer, at 141. franchise.” of the electoral exercise congressional Georgia’s 10 one of 1990, 1980and Between majority majority-black of district, is, that was a districts Decennial Census The 1990 voters were black. the district’s persons, Georgia’spopulation 27% 6,478,216 indicated con- additional eleventh entitled it to an black, of whom are Georgia’s App. prompting gressional Assem- General seat, 9, congressional bly Both the districts. the State’s to redraw redistricting guidelines adopted and the Senate House things, required single-member among districts other which, contiguous geography, equal population, of mi- nondilution possi- strength, fidelity precinct nority voting lines where §§ compliance Act, 5 of the U. S. C. with ble, require- §§ App. Only after these 1973, 1973c. See 11-12. guidelines permit met did the drafters to con- ments were maintaining integrity politi- ends, sider other such as existing preserving subdivisions, districts, cal the core of avoiding Id., at contests between incumbents. 12. August special opened 1991,
A session and the General Assembly congressional redistricting plan submitted a to the Attorney preclearance General on October 1991. The legislature’s plan majority-minority contained districts, two the Fifth and Eleventh, district, and an additional the Sec- comprised just voting ond, in which blacks over 35% of the age population. Despite plan’s increase in the number majority-black districts from one to two and absence any against minority evidence of an intent to discriminate (SD 1994), Supp. voters, 864 F. 1354, 1363, and n. 7 Ga. Department preclearance of Justice refused January on App. 1992. Department’s 99-107. The objection letter Georgia noted a concern only had created majority- two minority proposed districts, and that plan did not “rec- ognize” minority certain populations by placing them a majority-black Id., district. at 105, 105-106. Assembly
The General drawing returned to the board. A plan new was enacted preclearance. and submitted for This *7 attempt assigned second the population black in Central Georgia’s County Baldwin to the Eleventh District and in- creased populations the black in the Eleventh, Fifth, and Second Districts. Department The Justice preclear- refused again, relying ance on plans alternative proposing three majority-minority Id., districts. at 120-126. One of the alternative by schemes relied on Department the was the so-called plan, “max-black” Supp., 864 F. at 1360, 1362-1363, by drafted the (ACLU) American Civil Liberties Union for the General Assembly’s black key caucus. The to the plan ACLU’s was the “Macon/Savannah trade.” The dense population black region the Macon would be transferred from the Eleventh District to the converting Second, the majority-black Second into a district, and the Eleventh Dis- trict’s population loss in black would be offset extending the Eleventh to include populations the black in Savannah. Id., at Pointing 1365-1366. to the Assembly’s General re- fusal to enact the swap Macon/Savannah into law, the Justice Department Georgia concluded explain had “failed to adequately” its failure to create a third majority-minority App. district. 125. The State declaratory did seek a judgment from the District Court for the District Colum- bia. Supp., 864 F. at 1366,n. 11. spurned,
Twice the Assembly General set out to create three majority-minority gain districts preclearance. Id., Using 1366. the ACLU’s plan “max-black” as its bench- mark, id., at 1366-1367, the General Assembly enacted a plan that Department’s] [the involve- signs of Justice all the
“bore County was population of Meriwether The black ment: to the and attached Third District gouged out bridges; Ef- of land by the narrowest District Second way split to make were Counties and Chatham fingham City split,the which itself extension, the Savannah split counties, 23 plan a whole and the Savannah; Id., at congressional districts.” existing than more 1367. plan also new following p. 928. A, Appendix infra,
See necessary to create a swap the Macon/Savannah enacted District lost The Eleventh majority-black district. third thereby Savannah, up picked Macon,but population black metropolitan Atlanta neighborhoods of connecting the black County, Chatham coastal populace of poor black and the apart in cul- worlds apart in distance miles though 260 makeup of economic political, and social, short, In ture. community. disparity, not tale of District tells Eleventh Exh. Plaintiff’s 1389-1390; 1376-1377, Supp., at F. See *8 Ph.D.). O’Rourke, Timothy G. (report of pp. 10-27 No. attest, opinion to appendices this theAs around are centered the Eleventh of populations “[t]he ab- that have centers widely spaced urban discrete, four the stretch other, and each nothing with solutely do nar- rural counties miles across hundreds district (footnote Supp., at 1389 F. corridors.” swamp row omitted). Eleventh approved the centers population dense
“The periphery the majority-black, all all were District Augusta Atlanta, case the district, and in by core rural populated sparsely to a tied Savannah, all Extending from bridges. land populated less even 6,784.2 covered Eleventh Atlantic, the Atlanta municipali- and five eight counties splitting miles, square omitted). (footnote Id., way.” along the ties The Almanac of American Politics say has this to about the Eleventh “Geographically, District: it is monstrosity, á stretching from Atlanta to Savannah. Its plan- core is the country tation in the center of lightly state, populated, heavily but black. It links narrow corridors the black neighborhoods Augusta, Savannah and southern DeKalb County.” Ujifusa, M. Barone G.& Almanac of American (1994). Politics 356 Georgia’splan majority- included three black though, districts, and received Department Justice preclearance April on 2, 1992. Plaintiff’s 6; Exh. No. see Supp., 864 F. at 1367.
Elections were congressional held under the new redis tricting plan on November 4, 1992,and black candidates were Congress elected to majority-black from all three districts. Id., at January 1369. On appellees, 13, 1994, five white vot ers from the Eleventh District, filed against this action vari (Miller ous state Appellants) officials in the United States District Court for the Southern Georgia. District of Id., at 1369, 1370. As challenged residents of the Eleventh Dis appellees trict, all standing. had Hays, See United States v. ante, at alleged 744-745. Their suit Georgia’s Eleventh District gerrymander was a racial and so a violation of the Equal interpreted Protection Clause in Shaw v. A Reno. three-judge pursuant court was convened to 28 U. S. C. §2284, and the United States and Georgia a number of resi dents intervened support of the defendant-state officials. majority
A panel the District agreed Court Eleventh District was invalid judge Shaw, under with one dissenting. (1994). Supp. 864 F. sharp After criti- cism of Department Justice partisan its use of advo- dealings cates its with state officials and for its close co- *9 operation vigorous with the advocacy ACLU’s minority of district maximization, the majority turned to a careful inter- pretation opinion of our in Shaw. It read require Shaw strict scrutiny whenever race is “overriding, predomi- the nant force” in redistrieting process. the Supp., 864 F. at deleted). legis- Citing of the much evidence (emphasis creating plan, as the final well purpose and intent lature’s (in particular several shape district irregular as the putting purpose black of obvious for the appendages drawn district), that race was court found populations the the into districting de- in the predominant force overriding and the apply proceeded to court Id., at 1378. termination. representa- rejecting proportional Though scrutiny. strict willing that to assume compelling interest, was it as a tion compelling interest. be a compliance the Act would with court found latter, however, the the As to Id., at 1381-1382. majority-black districts, require three the Act did that narrowly was not Georgia’s plan reason for that Id., at complying the Act. goal with of to the tailored 1392-1393. stay requested a appeal and
Appellants notices filed granted pending the judgment, we which the District Court’s Miller litigation, appeals in this disposition filing (1994). probable later noted We Johnson, 512 U. S. § 1253. (1995); II see 28 U. S. C. jurisdiction. U. S. 1071 A Assembly’s of the General Finding “evidence District Eleventh racially gerrymander the intent parties stipulated practically overwhelming, and was the held that race District Court involved,” the drawing Dis overriding Eleventh factor predominant, Appel 1374-1378. Supp., id., see 1374; 864 F. trict. finding this factual court’s with the issue lants do not take aof they that evidence contend Rather, racial motivation. basis of on the of voters classification legislature’s deliberate They claim under Shaw. to state alone suffice race cannot plain legislature’s purposes, a regardless of argue that, shape bizarre that is so that district’s demonstrate tiff must race, and that on the basis unexplainable other than it is
911 appellees showing Appellants’ failed to make here. conception misapprehends of the constitutional violation our holding equal protection precedent upon Shaw and which Shaw relied. recognized “analytically
Shaw a claim distinct” from a S., vote dilution id., claim. 509 U. see at 649-650. 652; alleges Whereas a vote dilution claim that the has State particular voting purposeful enacted a scheme as a device voting potential “to minimize or cancel out the of racial or minorities,” ethnic Bolden, Mobile v. U. S. (1980) 55, 446 66 cases), (citing disadvantaging particular an action voters of a equal protection recognized race, the essence of the claim separating Shaw is that the State has used race as a basis for may voters into not, districts. Just as the absent State extraordinary justification, segregate citizens on the basis of public parks, City Improve race in its New Park Orleans curiam), Detiege, (per ment Assn. v. 358 U. S. 54 (1958) Gayle curiam), (per buses, Browder, 352 v. U. S. 903 (1956) golf (per courses, Atlanta, Holmes v. U. S. 879 (1955) 350 curiam), Mayor beaches, Dawson, Baltimore v. 350 U. S. curiam), (per schools, Brown v. Board Ed (1955) 877 recognize ucation, 347 U. S. 483 so did we in Shaw (1954), may separate voting that it its citizens into different dis simple tricts on the basis of The idea race. is a “At one: guarantee equal protection heart of the Constitution’s lies simple command that the Government must treat citizens simply components ‘as individuals, not “as of a racial, reli ’” gious, Broadcasting, sexual or national class.” Metro Inc. FCC, v. dissenting) U. S. J., (1990) (O’Connor, (quoting Governing Arizona Comm. Tax Annu Deferred ity Compensation Plans Norris, v. 463 U. S. Deferred Chapter, 1073, 1083 (1983)); cf. Northeastern Fla. Associated Gen. Contractors America Jacksonville, U. S. ” (“ ‘injury equal in fact’ was “denial of (1993) treatment benefit”). inability ..., not the ultimate to obtain the When assigns the State engages voters on the basis of race, it assumption par demeaning voters of a the offensive and race, alike, their “think share the race, ticular because of *11 prefer political the same candidates interests, and will same Broadcasting, supra, Metro polls.” Shaw, 647; at see dissenting). assign supra, Race-based J., at 636 (Kennedy, “embody stereotypes that treat individuals as the ments evaluating thoughts product their and efforts— race, of their according very to a criterion barred their worth as citizens— by history and the Constitution.” Metro to the Government (cita dissenting) Broadcasting, supra, J., (O’Connor, (1991) omitted); Ohio, 400, see Powers v. 499 U. S. tion (“Race determining juror proxy bias or cannot be a (1984) competence”); Sidoti, Palmore v. U. S. likely (“Classifying persons according to their race is more prejudice legitimate public concerns; racial than reflect They person, category”). not the dictates the race, society we also cause serious harm. As concluded Shaw: respect voting carry par- “Racial classifications with dangers. gerrymandering, ticular Racial even for re- may competing purposes, medial balkanize us into racial carry goal factions; it threatens to us further from the political system longer race no a which matters— goal a that the Fourteenth and Fifteenth Amendments embody, aspire. and to which the Nation continues to districting by It is for these reasons that race-based legislatures judicial scrutiny.” our state demands close supra, Shaw, at 667. consequences
Our observation in
of racial ster-
Shaw
eotyping
suggest
was
meant to
district must be
bizarre on its face before there is a constitutional violation.
Nor was our conclusion in Shaw that in certain instances a
(or,
appearance
precise,
appearance
district’s
to be more
its
evidence)
demographic
give
in combination with certain
can
equal protection
rise
holding
claim,
to an
509 S.,
U.
showing,
appellants
that bizarreness was a threshold
as
be-
it to
circumspect
lieve
be.
approach
Our
holding
and narrow
in Shaw did not erect an artificial
barring
rule
accepted
equal protection analysis in
redistricting
other
cases.
Shape is relevant not because
necessary
bizarreness is a
ele-.
ment of the
wrong
constitutional
or
requirement
a threshold
proof,
may
persuasive
but because it
be
circumstantial evi-
dence that race for its own sake, and
districting
not other
principles,
legislature’s
was the
dominant
controlling
ra-
drawing
tionale
its
logical
district
implication,
lines. The
applying
courts
recognized,
have
Shaw
parties may
is that
rely on evidence other than bizarreness to establish race-
districting.
based
See Shaw v.
Supp.
Hunt, 861 F.
408, 431
(EDNC 1994);Hays v.
Supp.
Louisiana, 839 F.
1188, 1195
(WD 1993),
La.
(1994);
vacated,
915 addressed a claim that New York (1977), 144 where the Court a Hasidic Jewish com- violated the Constitution by splitting to include additional dis- order majority-minority munity Shaw, of the Justices tricts. As we explained majority in UJO construed the as a vote dilution stating complaint to a claim that so their does not claim, analysis apply on the basis of 509 S., State has voters race. U. separated of in that at 652. To the extent any opinions “highly decision,” id., 651, fractured can be interpreted sug- on the that a State’s voters basis gesting assignment race would be but our strictest scrutiny, subject anything those views not be deemed controlling. ought
In we make clear that that a sum, State parties alleging has voters on the basis of race are neither confined assigned in their to evidence the district’s proof regarding geometry nor to make a threshold showing makeup required us further to con- bizarreness. Today’s litigation requires to sustain this sider the of the necessary requirements proof equal challenge. protection
B Federal-court review of districting legislation represents intrusion on the most vital of local functions. It serious is is well settled duty “reapportionment primarily Chapman Meier, v. State.” responsibility g., Quilter, e. Voinovich v. (1975); see, 507 U. S. U. S. Emison, (1993). Growe S. 146, 156-157 (1993); U. Electoral is a most difficult districting subject legisla so the must have discretion to exercise the tures, and States to balance interests. necessary competing political judgment race-based decisionmaking inherently suspect, Although g., Bakke, Adarand, ante, e. at 291 S., U. (citing a claimant makes a suf Powell, J.)), until (opinion showing ficient to faith of a state support allegation good id., must be see at 318-319 legislature presumed, (opinion J.). Powell, courts, of a assessing sufficiency to a must be sensitive to the com- challenge districting plan, *14 redistricting legislature’s plex interplay enter of forces that a example, Redistricting legislatures al- will, for calculus. always demographics; but it does not of racial most be aware redistricting process. predominates in that race follow supra, Mass. Shaw, 646; see Personnel Administrator of (1979)(“‘[Discriminatory’ pur- Feeney, 442 U. S. implies or intent as pose’ more than intent as volition . . . consequences. implies decision- It that the awareness of particular of action a course selected or reaffirmed maker ... merely spite part of,’ ‘in its ad- of,’ not at least in ‘because omitted). effects”) (footnotes The distinc- citation and verse being being of racial considerations tion between aware This eviden- by may be to make. them difficult motivated of re- tiary difficulty, together the sensitive nature with presumption good that must be districting faith and the legislative requires to exercise enactments, courts accorded extraordinary adjudicating that a has claims State caution plaintiff’s bur- the basis of race. The drawn district lines on through of a circumstantial evidence show, den is to either shape demographics or more direct evidence district’s predominant going legislative purpose, that race was place signifi- motivating legislature’s a decision to factor particular within or without a district. cant number of voters legisla- showing, prove plaintiff that the To make this must districting princi- race-neutral ture subordinated traditional compactness, contiguity, ples, including but not limited to respect political or communities defined subdivisions Where interests, actual shared to racial considerations. are the basis for these or other race-neutral considerations redistricting legislation, race, and are not subordinated to gerryman- can a claim that a district has been State “defeat supra, prin- Shaw, These dered on racial lines.” 647. proof ciples plaintiff’s inform the burden of at trial. Of recognize principles, and courts must also these course, legislative potential judicial intrusive intervention into assessing realm, when under the Federal Rules Civil *15 adequacy plaintiff’s showing Procedure the of a at the vari- stages litigation ous determining of permit and whether to discovery proceed. g., or trial to See, e. Fed. Rules Civ. 12(b) (e), 26(b)(2), Proc. Corp. 56; also see Celotex (1986). Catrett, 477 U. S.
In our applied view, the District analy- Court the correct finding sis, and predominant its that race was the factor mo- tivating drawing the clearly Eleventh District not was erroneous. The court “exceedingly it found was obvious” shape from the together the Eleventh District, with the demographics, relevant drawing racial that the of narrow bridges incorporate land to outlying within ap- the district pendages containing nearly 80% of the district’s total black population attempt a bring was deliberate popula- black tions into Supp., the district. F. at 1375; id., see at 1374- Although by comparison 1376. geo- with other districts the shape metric the may Eleventh District not seem bizarre on shape its face, its conjunction when is considered in with its population racial and story the gerry- densities, of racial mandering by seen the District Court becomes much clearer. Appendix See following p. B, infra, App. 928; see also 133. Although quite this compelling, evidence is we need not de- termine standing was, whether it alone, sufficient to estab- lish a Shaw claim the Eleventh unexplainable District is by other than race. The District Court had before it consid- erable showing additional evidence that the General Assem- bly by predominant, was motivated overriding desire to assign populations black to the Eleventh District thereby permit majority-black creation of a third district in the Supp., Second. 864 F. at 1372, 1378.
The court found that “it became obvious,” both from Department’s Justice objection pre- letters and the three general, clearance rounds [the “that Department] Justice accept nothing would abject less than surrender to its max- agenda.” imization Id., at 1366,n. 11; id., see at 1360-1367; Arlington see also Heights, (“historical S.,U. source”). evidentiary It is one background the decision acquiesced Assembly and as General that the found further comply overriding desire its consequence driven was The court Department’s demands. maximization with the testimony just of Linda with the supported its conclusion reapportion- Georgia’s operator “Herschel,” Meggers, knowledgeable per- “probably most computer, ment redistricting,” Georgian subject on available son with the State’s but Supp., 6, 1366, also 1361, 1363, n. F. *16 “‘would not that it admitted The State concessions. own Effingham Coun- portions and Chatham those added have the] [far extension southeastern in the are now that ties Congressional the need to but for District present Eleventh population to offset in that district additional black include predomi- by population shift the caused of black the loss Congres- County nantly portions in the Second of Bibb black Department response to the in occurred District which sional ” objection Id., at 1377. 20th, 1992, letter.’ March of Justice’s precincts “[t]o that in extent that the further It conceded split, Congressional a substantial District are Eleventh increasing objective being split was the for their reason And in population Ibid. its of that district.” the black undisputed “[i]t is concedes Court, the State that to this brief product Georgia’s a desire the Gen- eleventh is that Assembly majority district.” Brief a to create black eral Appellants court had little Hence the 30. trial for Miller “spent Department difficulty concluding the Justice Georgia’s demanding purely to race-based revisions months attempt- Georgia spent redistricting plans, months and that ing Supp., comply.” record, this we at 1377. On to 864 F. any have reached to see how the Court could fail District predominant that race was factor other than conclusion any drawing Georgia’s we District; and in event Eleventh in finding clearly erroneous. Cf. the court’s conclude (evidence (1964) Wright 56-57 U. S. Rockefeller, presented “conflicting “failed inferences” and therefore prove Legislature that the New York was either motivated by racial considerations or fact drew the districts on ra- lines”). cial light well-supported
In finding, of its the District Court justified rejecting was explana- various alternative Although tions offered for legislature’s the district. com- pliance districting principles with “traditional such as. com- pactness, contiguity, respect political for subdivisions” may well suffice to refute a claim gerrymandering, of racial appellants Shaw, S., at 647, U. cannot make such refuta- tion where, here, those factors were subordinated to racial objectives. Georgia’sAttorney objected General Jus- Department’s tice majority-black demand three districts ground on the that to do so the State would have to “violate compactness contiguity.” all reasonable standards of App. powerful 118. This statement from a state official is legislature evidence that the subordinated traditional dis- tricting principles ultimately plan when it to race enacted a creating majority-black justified three districts, and the Dis- finding “every [objective districting] trict Court’s factor realistically tinkering that could be subordinated to racial *17 Supp., id., fact suffered that 864 F. 1384; fate.” at see at (“While 1364, 8; id., n. boundaries Eleventh many precinct do indeed follow lines, this is because Ms. Meggers designed along the Eleventh lines, District racial precinct and race data was most accessible to her at the level”). districting legislation
Nor can the State’s be rescued purported mere recitation communities of interest. compelling tangible evidence was “that there are no ‘commu- spanning nities of interest’ the hundreds of miles of the Elev- enth comprehensive District.” at A report Id., 1389-1390. political, demonstrated the fractured social, economic interests within population. the Eleventh District’s black pp. See (report Timothy Plaintiff’s Exh. 85, No. 10-27 G. Ph.D.). apparent O’Rourke, It is alleged that it was not 920 object maximizing the
shared interests but rather the Department population obtaining district’s black Justice Assembly’s approval explained ac- that in fact the General Supp., A is free to 1366, 1378, tions. F. at 1380. State recognize particular makeup, communities that have a racial provided its action some common thread is directed toward group “[WJhen relevant of a racial interests. members together community, reapportionment plan live in one group concentrates members of the in one district and ex- may wholly legitimate pur- cludes them from others reflect poses.” Shaw, S., 509 U. at 646. But where State as- they group sumes from a alike, of voters’ race that “think political prefer share the same interests, and will the same polls,” engages stereotyping candidates at the it in racial at equal protection odds with at Id., 647; mandates. cf. Powers (1991) (“We may accept Ohio, U. S. very stereotype a defense to racial discrimination the condemns”). law predominant, was,
Race as the found, District Court overriding explaining Assembly’s factor the General decision appendages to attach to the Eleventh District various con- taining majority-black populations. Supp., dense 864 F. at Georgia’s congressional 1372, 1378. As a result, redistrict- ing plan upheld scrutiny, cannot be unless it satisfies strict rigorous exacting our most standard of constitutional review.
Ill satisfy scrutiny, To strict the State must demonstrate that districting legislation narrowly its tailored to achieve a compelling supra, Shaw, interest. at 653-657; see also Cro son, (plurality opinion); S., U. at Wygant, S., 476 U. (plurality opinion); 280, and n. 6 Adarand, cf. ante, “significant 227. There is a eradicating state interest in *18 past effects of supra, racial Shaw, discrimination.” at 656. argue, The State does not however, that it created the Elev remedy past enth District to good discrimination, and with that the true interest There is little doubt State’s reason: creating designing District was a third the Eleventh satisfy Department’s majority-black district to Justice (“[T]he only Supp., preclearance 864 F. at 1378 demands. drafting Assembly had in mind when interest the General [the congressional plan satisfying Justice De- the current was requirements”); partment’s] preclearance id., 1366; com- (under (plurality opinion) pare Wygant, supra, strict convincing scrutiny, evidence that remedial must have State action), necessary implementing affirmative action is before (under (1993) rational- Doe, 312, 320 with Heller v. 509 U. S. “‘actually articulate at legislature need not review, basis supporting its classifica- any purpose or rationale time the (1992)). ”) Nordlinger (quoting Hahn, 505 U. S. tion’ compliance Act, with the in some cases Whether or not independ- compelling standing provide a interest alone, can past any remedying it can- discrimination, ent of interest in compliance suggested Shaw, with so we not do here. As justify race-based dis- laws cannot federal antidiscrimination reasonably challenged tricting was not district where reading application necessary under a constitutional congressional S., at 653-655. 509 U. those laws. See required by Act under a challenged plan was not here reading correct of the statute. preclear both of Department refused to
The Justice redistricting plans. The Dis- Georgia’s first two submitted Department adopted had trict found that the Justice Court and that it was policy §5, under a “black-maximization” Department objection that the would letters clear from its made the “Macon/ grant preclearance until State majority-black a third district. and created trade” Savannah say Supp., is, therefore, It safe to 1380. 864 F required in congressional plan in the end was enacted however, preclearance. follow, It does not order to obtain provisions required plan the substantive that the was the Act.
922 accept has a com the contention that the State
We do preclearance complying pelling with whatever interest Department When a state issues. mandates Justice justify entity remedies to governmental seeks to race-based accept past discrimination, we do not cure the effects government’s mere assertion that the remedial action is strong required. on a basis in evidence of Rather, we insist e, being g., supra, Shaw, at See, 656; the harm remedied. Wygant, supra, (plu supra, at 276-277 Croson, 500-501; at history rality opinion). in this “The of racial classifications judicial legislative country suggests to that blind deference necessity place pronouncements no executive has or analysis.” supra, equal protection Croson, at 501. Our presumptive skepticism Ada- classifications, of all racial see accepting prohibits rand, ante, 223-224, us as well from Department’s that racial on its face the Justice conclusion districting necessary is under the Act. Where a State re Department’s on the determination that race-based lies judici districting necessary comply Act, is with the ary adjudicating independent obligation in conse retains an quent equal protection challenges to ensure that the State’s narrowly compelling in actions are tailored to achieve supra, accept Shaw, terest. Were we to See 654. Department’s objection compelling itself as a inter Justice adequate districting est to insulate racial from constitutional surrendering review, we would be to the Executive Branch enforcing our role the constitutional limits on race-based may g., official See, action. We not do so. e. United States (1974) (judicial power Nixon, v. 418 704 683, U. S. cannot Branch); Marbury be shared with Executive v. Madi (1803)(“It emphatically prov son, 1 137, Cranch 177 is duty judicial department say ince and of the what the law is”); (1962) (Supreme Carr, cf. Baker v. U. S. Constitution”); interpreter Court is “ultimate Cooper of the (1958)(“permanent Aaron, indispensa U. S. system” ble feature of our constitutional is that “the federal in the judiciary supreme exposition law of the Constitution”). inappropriate
For the same reasons, we think it for a court engaged scrutiny in constitutional to accord deference to the *20 Department’s interpretation Although Justice of the Act. Department’s interpretation we have deferred to the statutory g., Presley cases, certain e. County see, v. Etowah (1992), Comm’n, 502 491, U. S. 508-509 and cases cited rejected agency therein, interpretations we have to which they we would otherwise defer where raise serious consti- questions. Corp. tutional Edward J. DeBartolo v. Florida Building Coast & Constr. Trades Council, 485 U. S. Gulf (1988). Department’s 574-575 When the Justice inter- pretation compels districting, of the Act race-based it question, definition raises a g., serious constitutional see, e. J.) (“Racial (opinion Bakke, 438 S.,U. of Powell, any inherently ethnic supect” distinctions of sort are under Equal Clause), Protection should receive deference.
Georgia’s drawing of the Eleventh District was not re- quired under the Act because there was no reasonable basis Georgia’s to §5. believe plans that earlier enacted violated plan Wherever a is “ameliorative,” a we term have used plans increasing describe the number majority-minority § it districts, “cannot apportionment violate 5 unless the new itself so on discriminates the basis of or race color as to vio- late the Georgia’s Beer, Constitution.” 425 U. at S., 141. plans first and proposed second increased the number majority-black (10%) districts from 1 out of 2to out of 11 (18.18%). plans These were “ameliorative” and could not §5’s have nonretrogression violated principle. Ibid. Ac- knowledging as much, see Brief for United States 29; 864 Supp., F. at 1384-1385,the United States now relies on the Department that fact may object Justice pro- to a state posal ground either on the prohibited that it purpose has a prohibited or a g., effect, see, e. Pleasant Grove v. United (1987). justifies States, 479 U. S. The Government preclearance objections ground its on the submitted § plans purpose key violated 5’s element. The to the Gov- position, plain objection ernment’s which is from its letters compare App. if not from its briefs this Court, 105-106, always 124-125 with 31-33, Brief United States is and Georgia proffer has been nondiscriminatory failed to purpose for its in the refusal first two submissions to take steps necessary majority-minority to create a third district. “[Ajmeliora- position insupportable.
The Government’s changes, they might tive even if fall short of what be accom- plished increasing minority representation, in terms of can- they not be found to violate section 5 unless so discriminate on the basis of or race color as to violate Constitution.” Days, Department, Section 5 and the Role the Justice *21 B. Minority Grofman Voting Davidson, & C. Controversies in (1992). Although it is true we have held that the State has prove the burden nondiscriminatory purpose to under § g., supra, 5, e. Georgia’s Grove, Pleasant Attorney at 469, provided explanation General a detailed for the State’s initial decision not plan, to enact App. the max-black see 117-119. accepted The District explanation, Court Supp., this 864 F. at any and found an discriminatory absence of intent, id., at policy 1363, 7. The adhering n. State’s of to other districting principles many creating instead of majority- as minority possible districts support does not an inference plan that the “so discriminates on the basis of race or color as to violate the supra, Constitution,” Beer, at 141; see (1980) Mobile Bolden, (plurality U. S. 55 opinion), provide any § thus cannot basis under 5 for the Justice Department’s objection. grounding
Instead of objections its on evidence of a dis criminatory purpose, appear it would the Government was by policy driven its maximizing majority-black districts. Although the Government having now disavows had that see Brief for United States and seems policy, to concede its see Tr. of Oral impropriety, 32-33, the District Arg. Court’s well-documented factual was that the finding Depart ment did a maximization and followed it in adopt policy ob first two jecting Georgia’s plans.* One the two Depart ment of Justice line attorneys overseeing Georgia himself preclearance process disclosed that “‘what we did I what did was to take a specifically ... map State shaded race, shaded Georgia by concentra minority tion, and the districts that overlay were drawn the State by and see how Georgia well those lines adequately reflected black voting strength.’” F. at 1362, n. 4. In Supp., §5 to utilizing States require to create majority-minority districts wherever possible, Department Justice its expanded under authority the statute beyond what Congress intended and we have upheld.
Section 5 was directed at preventing set of particular invidious practices that had the effect of or de- “undo[ing] feating] rights won recently non white by voters.” (SD Supp. 1354, 1361 1994) * See864 F. Ga. (quoting Rep. Tyrone Brooks, “ who recalled on Assembly Floor that Attorney 'the spe General... cifically told the states covered the Act that possible, you wherever must draw majority districts, black ”); id., possible’ wherever 1362-1363, (citing and n. 4 3 Tr. 23-24: Assistant Attorney answering General “Yes” question whether Department “the Justice did position take the in a cases, number of these if plans alternative demonstrated that more minority districts could drawn be than the state was proposing to draw *22 did, . . fact, . that violate Section 2 of Voting Rights Act?”); 864 F. Supp., 1365-1366; id., (“It at at n. 11 became obvious that [the Justice Department] would accept nothing less abject than surrender to its max (“It agenda”); id., imization apparently at 1368 did not occur to [the Justice Department] that ‘recognition’ increased minority of voting strength, while perhaps admirable, is properly tempered with other districting con siderations”); id., at (expressing 1382-1383 doubts as to the constitutional ity of Department’s] [the Justice policy”); id., “‘maximization’ 35 (citing n. other courts that have “criticize[d] [the Justice Department’s] propensities”). maximization (1969). p. explained Rep. in Beer 91-397,
H. No. As we R. States, v. United response practice 5 was a to a common
‘“Section jurisdictions staying step of the fed- some one ahead by passing discriminatory voting eral courts new laws as soon as the old ones had been struck down. That practice possible had been because each new law re- Department private mained in effect until the Justice or plaintiffs proving were able sustain the burden of that discriminatory.... Congress too, the new was law, there- Supreme decided, could, fore as the held it “to Court advantage perpe- shift the of time and inertia from the by “freezing trators the evil victim,” to its election procedures changes in the covered areas can unless ’” nondiscriminatory.” be shown to be S., 425 U. (1975) (foot- (quoting Rep. pp. 94-196, H. R. No. 57-58 omitted)). *23 they justified mean be can in the litiga circumstances of this Department’s tion. And Justice implicit command that engage presumptively States unconstitutional race-based districting brings upheld proper Act, once as a exercise §2 Congress’ authority under of the Fifteenth Amend supra, ment, Katzenbach, 337, into tension with the Fourteenth As we Amendment. recalled in Katzenbach it Congress’ self, exercise of its Fifteenth Amendment author “ ity even proper when otherwise still must ‘consist with the ” spirit letter and of the constitution.’ S.,U. (quoting (1819)). Maryland, McCulloch v. Wheat. We need not, troubling however, resolve these and difficult questions today. constitutional There is no indication Con gress § far-reaching application intended such a of 5, so we reject Department’s interpretation Justice of the statute and avoid problems the constitutional interpretation g., raises. Corp. See, e. DeBartolo v. Florida Coast Gulf Council, Trades S., 485 U. at 575.
>
grant
The
authority
Act, and its
to the federal courts to
abridge
uncover
right
official efforts to
minorities’
vote,
importance
has been of
eradicating
vital
invidious dis-
process
crimination from the
enhancing
electoral
legitimacy
political
Only
of our
polit-
institutions.
if our
system
society
ical
our
cleanse themselves of that
polity
discrimination will all
equal
members
an
share
opportunity
gain public
regardless
office
As
race.
obligation
Nation we
aspiration
share both the
and the
working toward this end.
end
is neither assured nor
well
carving
served, however,
electorates
racial
into
blocs.
“If
society
our
progress
is to continue to
as a multiracial
democracy,
recognize
it must
automatic invocation
stereotypes
race
progress
retards that
and causes contin-
injury.”
ued hurt and
Edmondson Leesville
Co.,
Concrete
(1991).
[*] [*] [*] judgment affirmed, and the the District Court is proceedings consistent with cases are remanded for further this decision.
It is so ordered. Georgia [Appendices containing map B, A and con- gressional population density map and a of the 11th districts Congressional Georgia, page.] District of follow this O’Connor,
Justice concurring. adopts— I understand the threshold standard the Court legislature that “the subordinated traditional race-neutral districting principles considerations,” ante, to racial ... demanding scrutiny, 916—to be a To strict one. invoke plaintiff must show that the State has relied on race in sub- disregard customary districting stantial and traditional practices. practices provide Those a crucial frame of refer- significant governing princi- ence and therefore constitute a ple in cases of this kind. The standard would be no different legislature if a had drawn the boundaries to favor some other group; certainly ethnic the standard does not treat efforts to majority-minority favorably create districts less than similar groups. efforts on driving behalf of other Indeed, force adoption behind the of the Fourteenth Amendment was the legal against desire to end discrimination blacks. Application of the Court’s standard does not throw into majority doubt the congressional vast of the Nation’s 435 presumably districts, where the States have drawn the customary boundaries in districting accordance with their principles. though may That is so even race well have been *28 process. redistricting in the See Reno, considered Shaw v. (1993); application ante, at But 630, 646 916. 509 U. S. helps objective achieve standard Shaw’s basic the Court’s gerrymandering subject making extreme instances judicial join meaningful I therefore review. Court’s opinion. Stevens,
Justice dissenting. why explained the District Ginsburg has Court’s Justice why opinion erroneous and this Court’s on the merits was unproductive litigation. law-changing I decision will breed I join opinion reservation. add these her excellent without appellees like *29 cases, the in these I believe comments because Hays, p. ante, 737,have not v. appellees in United States injury. any legally cognizable suffered (1993), crafted a the Court Reno, 509 S. 630 In U. Shaw troubling features. novel, two of action with new cause pre- “gerrymander,” misapplied the term the Court First, line-drawing by a domi- grotesque viously to describe used power at political its group or enhance to maintain nant major- a the efforts of expense, minority’s to condemn a (African- (whites) minority power with a ity to share its Americans). previous its dispensed with Second, Court injury showing to an of on a cases in vote dilution insistence explain ade- it failed to group but voters, of identifiable establish plaintiff make to showing must quately what Neither newly claim. minted Shaw litigate standing to today the Court has decided in the cases nor itself Shaw de- action is injury cause of this coherently what articulated alleged le- no appellees have Because signed redress. cases standing, these they injury, lack gally cognizable Hays, ante, at 750-751 be dismissed. See should (Stevens, concurring judgment). J., how validity I cannot see Shaw, assuming
Even injury the Court assert the could appellees in these cases plaintiffs are white below, Appellees, to them. attributes Congressional District. The Georgia’s Eleventh voters standing they to maintain a have that conclusion Court’s placement theory their appears to rest on Shaw claim “‘representational them District caused Eleventh in the The Shaw ante, 909. Hays, 744, cited ante, at harms.’” “representational harms” concept of explained the Court solely effec- obviously is created a district “When follows: group, racial of one interests perceived common tuate the primary likely that their to believe more officialsare elected group, only the members represent obligation is to S., Shaw, U. constituency as a whole.” than their rather representa- attributed Although Court the Shaw at 648. legislature’s message solely sent ato harms tional message is only if the come about can those harms action, support voters black or most if all is, first, received—that candidate second, if the successful and, candidate, the same Appellees’ white constituents. her ignores the interests very ultimately depends on the words, standing, in other par- aof voters abhor: that purports to premise the Court “ interests, political the same share alike, ‘think ticular race ” Ante, at polls.’ at the candidates prefer the same will 647). generalization, This atS., (quoting Shaw, 509 U. demeaning.” “offensive recognizes, is as the Court Ante, 912. race one course, members instances, particular
In *30 candidate, and margin overwhelming for one by may an vote “Ra- race. of the same be will that candidate cases in some plaintiffs the circumstances voting” one of is cially polarized Thornburg v. dilution claim. vote prove to advance must (1986). vot- claim allows Such a Gingles, 30, 56-58 478 U. S. impaired have lines district allege gerrymandered that ers to The own race. of their ability a candidate to elect their claim Shaw a so-called however, that emphasizes, Court “ ante, at claim,” vote dilution ‘analytically from distinct’ 652). nor Shaw, in Neither S., 509 U. at (quoting Shaw, the answered the Court has cases Hays, nor in the instant question analytic injury its If the distinction raises: Shaw probability does not flowfrom an increased that candi- white probability lose, dates will then how can the increased appel- black candidates voters, will win cause white such as cognizable lees, harm?1 attempts explanation by an Court these cases
equating
injury
imagines appellees
it
have suffered with
injuries
segregation.
African-Americans suffered under
appellees’
claim,
The heart of
account,
Court’s
is that
assignment
“a State’s
race,” ante,
voters on the basis of
Equal
at
violates the
Protection
for the same
Clause
may
“segregate
reason a State
citizens on the basis of
public parks,
City
race in
Improve
its
New Orleans
Park
(1958)
curiam),
Detiege,
ment
(per
Assn. v.
The Court’s claims with our Shaw inappropriate tion decisions is for another In each reason. legal segregation public cases, of those frustrated the inter diversity by barring est in and tolerance African-Americans 1White voters obviously standing complain lack of the other injury the Court has under Shaw: recognized stigma blacks supposedly suffer ante, when assigned 744; to a district of their race. See Hays, because Constructors, Peña, ante, (Stevens, cf. Adarand Inc. 247-248, n. 5 J., dissenting). *31 joining district issue. The in activities at whites from diversity ing plan the interest serves here, contrast, meaningful increasing a likelihood that and tolerance leg representatives voices to will add their black number of post, J., dis at 947-948 islative debates. See (Ginsburg, equivalence senting). constitutional “There is no moral or sys perpetuate designed policy caste to a a that is between racial subordination.” and one that seeks to eradicate tem ante, Constructors, Peña, Inc. Adarand v. (Stevens, dissenting); Adarand, ante, 247-248, n. 5 J., see also dissenting). integration racial sort J., That (Stevens, judi attempted by Georgia appears to now more vulnerable challenge policies alleged perpetuate racial cial than some (1984), Wright, anomalous, bias, cf. Allen v. U. S. say the least. Equally distressing equation is the of traditional Court’s designed gerrymanders, a dominant to maintain or enhance group’s power, group’s with a dominant decision to share its group. my power previously underrepresented a In with districting plans Equal view, violate the Protection Clause they seg- purpose when “serve no other than to favor one religious, politi- economic, ment—whether or racial, ethnic, may occupy position strength particular cal—that a at a point disadvantage politically segment in time, or to weak community.” Daggett, Karcher v. U. S. (1983) concurring). J., In contrast, I do not see (Stevens, districting plan politically group how a that favors a weak equal protection. can violate The Constitution does not any proportional representation, mandate form of but it certainly permits adopt policy promotes a State to representation groups. fair Indeed, different this Court squarely Gaffney Cummings, so held 412 U. S. 735 (1973):
“[N]either we nor the district courts have a constitu- plan, tional warrant to invalidate a state otherwise *32 it limits, because under- within tolerable population not minimize or eliminate the takes, political strength and, but to it of or through party, recognize any group of a sort rough proportional repre- districting, provide Id., halls of the State.” at sentation the legislative 754. an enactment
The refusal to helps Court’s distinguish it harm is from enactments that cause espe- minority group of race unfortunate the intersection voting, cially and. that African-Americans and other disadvantaged given so and so hard for inclusion have struggled long groups our that most central exercise of See democracy. post, I J., 936-938 have believed dissenting). long (Ginsburg, racial from other identifiable differently treating groups is itself an invidi- voters, of as the Court does today, groups ous racial minorities should receive classification. Racial nor than other neither more less against protection groups A racial minorities should not be gerrymanders.2 fortiori, to benefit from less than other groups districting eligible to aid them. majority designs plans I dissent. respectfully
2“In an of the Constitution which afforded my opinion interpretation of to blacks and another kind to members of political protection one kind itself be invidious. for the citi groups Respect other identifiable would of the fact that in the zenry community compels acceptance the black run that these individuals will vote alike long certainty there is no more ethnic, economic, other or social any than will individual members fluctuates as the blend of parallel voting politi group. probability to time changes the outcome of an election from time affecting cal issues few, others, issue, rather than as dominant. The one or a emphasize history, special its own has suffered its own political group facts that has interests, do not special political and has its own injustices, congeries eyes from other in the of the law. The group any make one such different equal dignity equal right members of each to the with and with an go polls v. City to be from invidious discrimination.” Cousins Council protected (CA7 1972) (Stevens, J., 466 F. Chicago, dissenting). 2d Ginsburg, whom Justice Stevens with Justice Breyer joins join, with whom Justice Souter Justice dissenting. except B, Part as to III— highly political districting This Legislative business. . legis- competence respected state generally has Court issue, how- race is the When to attend to task. latures judicial recognized intervention the need we have ever, minority voting strength. prevent Genera- *33 dilution against African-Americans, as rank discrimination tions of for that surveillance. voters, account citizens (1993), ago, this Reno, 509 S. 630 in v. U. Two Terms Shaw “analytically up from a vote dilu- distinct” took a claim Court judicial interven- Id., authorized claim. at 652. Shaw tion “extremely irregular” apportionments, id., 642, in tion districting prac- legislature cast aside traditional which the a case, the Shaw to create tices to consider race alone—in African-Americans would district in North which Carolina compose majority voters. announcing
Today expands judicial role, the Court searching any federal courts are to undertake review of dis- motivat[ed]” “predominantly] trict with contours race: scrutiny” triggered only “[S]trict not when tradi- will be districting practices abandoned, tional are but also when practices given weight those are “subordinated less to”— Applying ante, than —race. See at 916. this new “race- as-predominant-factor” standard, the Court invalidates Georgia’s districting plan though Georgia’s even Eleventh today’s dispute, imprint District, the focus of bears the districting practices. familiar I Because do not endorse the upset Georgia’s plan, Court’s new standard and would not I dissent.
I
may
points
At the outset, it
be useful to note
on which the
agree
Court does not
First,
divide.
we
that federalism and
judicial competence
the slim
weigh
to draw district
lines
heavily
judicial
against
apportionment
intervention
deci-
sions;
rule,
as a
should
task
remain within the domain of
legislatures.
Reynolds
state
ante,
915;
See
Sims,
v.
(1964) (“[Ljegislative reapportionment
U. S.
pri-
marily
legislative
matter
consideration and determina-
.”).
tion . . .
history,
Second, for most of our Nation’s
enjoyed equally by
franchise
has
been
black citizens and
past
white
wrongs
voters. To
any
redress
and to avert
political
recurrence of exclusion of blacks
processes,
from
Equal
federal
respond
courts now
Protection Clause and
Voting Rights
complaints
Act
of state action that dilutes
minority voting strength.
g., Thornburg
See,
Gingles,
e.
v.
(1986);
Regester,
(1973).
Therefore, the fact that the Assembly General took drawing account of race in district lines—a fact not in dispute not plan the render State’s invalid. To offend —does Equal the agree, Protection legislature Clause, all had to do more than consider race. How much is more, the issue today. divides the Court
A many say again occasions: said on what has been once “We duty responsibility of primarily and reapportionment body, legislature rather than through or other its the State Chapman 1, 27 Meier, 420 U. S. court.” of a federal (1975); itself allo ante, also at 915. Constitution see § 2; responsibility Const., I,Art. S. to States. U. cates this (1993). Emison, 25, 34 507 U. S. Growe v. political impact
“Districting inevitably sharp inev- has by charged itably political with made those decisions must be (1973). Weiser, 412 795-796 White v. U. S. the task.” myriad of fac- accommodate District lines are drawn to political geographic, economic, historical, —and tors— compromise legislatures, and electoral state as arenas competing accountability, positioned mediate áre best to equipped adjudicate, are ill courts, with a mandate to claims; for the task.
B political thicket of Federal courts have ventured into apportionment necessary secure to members of when many equal voting rights rights denied in racial minorities — including Georgia, long ago. States, until Amendment, The Fifteenth declares that ratified right by any vote “shall not be denied ... State on generations, declaration, account of race.” That was by century greeted often breach; honored it was a near “unremitting ingenious States, defiance” several in- cluding Georgia. Katzenbach, South Carolina v. U. S. (1966). suffrage 301, 309 After a brief interlude of black en- troops accompanied by rampant forced federal but vio- *35 against Georgia lence blacks, held a constitutional convention purpose, according in 1877. Its to the convention’s leader, people Negro was to “‘fix it so that the shall rule and the shall never be heard McDonald, Binford, from.’” & John- (C. Georgia, son, in Quiet Revolution in the South 68 David- 1994) Toombs). (quoting son & B. Grofman eds. Robert In pursuit objective, Georgia poll of this enacted a cumulative requiring they paid past tax, voters to show had as well as poll current taxes; one historian described this tax as the Negro suffrage “most bar effective to ever devised.” A. Stone, (1908). in Studies the American Race 354-355 Problem Georgia Assembly
In 1890,the General authorized “white primaries”; keeping primary blacks out the Democratic effectively Georgia’s political excluded them from life, victory primary for Democratic was tantamount to supra, election. McDonald, Binford, Johnson, & at 68-69. Early century, Georgia per- this Governor Hoke Smith legislature pass suaded the to the “Disenfranchisement Act of 1908”;true to its prop- title, this measure added various erty, “good literacy requirements character,” and that, as keep voting. served to administered, blacks Id., from 69; (tests see also Katzenbach, 383 S.,U. at 310 of this order “specifically designed prevent were Negroes from vot- ing”). The years result, as one commentator observed 25 “ later, was an Negro ‘almost absolute exclusion of the voice in state federal elections.’” McDonald, Binford, & supra, (quoting Johnson, Negro Suffrage R. Wardlaw, 1932)). Georgia, p. (unpublished 1867-1930, 69 political Faced scarcely with a open situation to self- correction—disenfranchised blacks had no electoral influ- ence, lobby legislature hence no muscle change— the Court primaries, intervened. It invalidated white see Allwright, (1944), Smith v. 321 U. S. and other burdens minority voting. on g., See, e. Schnell v. Davis, 336 U. S. (1949) curiam) (per (discriminatory application voting tests); (1939) Lane (procedural Wilson, 307 U. 268 S. hur- dles); (1915) Guinn v. United (grand- States, 238 U. S. clauses). father against
It was backdrop this that the construing Court, Equal Protection Clause, ap- undertook to ensure that *36 938 voting strength. minority
portionment plans dilute do not (1982);Regester, Lodge, Rogers g., 613, 458 617 See, v. U. S. e. Wright 52, 57 376 U. S. 765; Rockefeller, 412 v. S., U. (1964). Voting Rights By enacting Act of Con- apportion- judicial gress heightened involvement federal Attorney for the General. fashioned a role ment, and also challenge right vote of action to 2 creates a federal Section history requires with a of dis- 5 States dilution. Section any changes voting practices preclear with crimination (a three-judge District court United States either a federal Columbia) Attorney or the General. Court for the District of sig- congressional directions These Court decisions nificantly voting against minorities. reduced discrimination Georgia gained In its first black Member of election, the 1972 Congress apportionment Reconstruction, since and the 1981 majority-minority This created the State’s first district.1 easily. voting gained Georgia was not district, however, only created it after the United States District Court preclear predecessor the District of refused to Columbia apportionment plan that included no such district —an omis- part Wilson, sion due in to the influence of Mack then Joe Georgia Reapportionment Chairman House Commit- “ put only years ago, tee. As it 14 Wilson T don’t want to nigger Supp. draw Smith, districts.’” Busbee 549 v. F. (DC 1982). 501
> (1993), Reno, Before Shaw v. 509 U. S. 630 this in- Court Equal justify voked the Protection Clause to intervention in quintessential^ political legislative districting task of one-person-one-vote two circumstances: to enforce re- quirement, Reynolds (1964); see Sims, 377 U. S. 1Georgia’s population approximately percent black. Supp. 864 F. (SD 1994). 1364, 1386 Ga. voting strength, see minority group’s prevent of a dilution Wright, S., at 57.2 U. Regester, 765; atS.,U. equal recognized for an a third basis Shaw, the Court In *37 plan. apportionment The challenge a State’s protection to judicial cautiously, emphasizing interven- wrote Court scrutiny order, in the judicial is exceptional: Strict tion is extremely irregular its on “so is declared, if a district Court seg- only an effort to rationally viewed be can that it face voting.” at 642. purposes S., 509 U. regate of the races Shaw, the in irregular[ity]” “[E]xtrem[e] was evident description of North setting the explained, this out Court voting examination: under district Carolina long of its and, for much approximately miles 160 “It is in It I-85 corridor. winds length, the no wider than country, through cen financial tobacco fashion snakelike enough gobbles manufacturing it in areas until ters, and neighborhoods. Northbound black of enclaves find themselves I-85 sometimes on drivers southbound only county, dis to ‘trade’ separate in one districts in county. 10 coun they Of the next the when enter tricts passes, into 3 are through cut District which ties At one are divided. towns districts; even different only in contiguous it point because remains the district before single point other districts with two at a tersects legislator has remarked crossing state over them. One ‘ car you with both “[i]f the interstate down drove Lightfoot, U. S. 339 Gomillion category, dilution In the vote bound There, Tuskegee redrew its city (1960), pathmarker. was a apportionment was unconstitutional This black voters. aries exclude race, notably it had a because simply because it was motivated but not id., community. See Tuskegee’s black effect: It disenfranchised dilutive Tuskegee’s (“The redefinition effect this essential inevitable its 400 only four or city all five boundaries to remove from save The single voter or Negro removing white resident. voters while discriminatorily of deprive Negro petitioners Act is to result alia, inter including, right Tuskegee, the benefits of residence elections.”). municipal vote ’ open, you’d people doors most kill in the district.” Washington Apr. p. Post, A4. The district inspired poetry: even has Ask not for whom the line is it drawn; is drawn to avoid Grofman, thee.’ Would Right Vince Lombardi Have Been If He Had Said: It Redistricting, 'When Comes to Everything, Race Isn’t Only Thing’?, It’s the 14 Cardozo L. 1237, 1261, Rev. (1993) (internal omitted).” quotation n. 96 marks Id., (some at 635-636 quotation citations and internal omitted). marks problem plan Shaw was not the architects’ consider-
ation of race as redistricting. relevant in Rather, in the Court’s estimation, it was the virtual exclusion of other factors from the districting practices calculus. Traditional *38 were aside, cast the Court concluded, with race alone steer- ing placement of district lines.
B The record before us does not similarly show that race districting practices overwhelmed traditional Georgia. in Although Georgia the Assembly prominently General con- sidered shaping race in the District, Eleventh race did not crowd all out other factors, as the found it Court in did North Carolina’s delineation of the Shaw district.
In contrast to the snake-like North Carolina district in- spected Georgia’s Shaw, hardly Eleventh District is “extremely “bizarre,” irregular,” or “irrational on its face.” Id., at 642, 644,658. Instead, the design Eleventh District’s significant reflects consideration of districting “traditional (such intact) factors keeping political subdivisions and the political process usual compromise variety and trades for (SD of nonracial Supp. reasons.” 864 F. 1397,n. 5 Ga. 1994)(Edmondson, dissenting); J., ante, cf. (“geometric at 917 shape of the may Eleventh District not seem bizarre on its face”). The district covers a core area in central and east-
941 6,780 area miles is and its land era total square Georgia, 4.3 for the Defendant’s Exh. State. p. about average 1,184 miles, District runs in line The border Eleventh District, 1,243-mile which has a bor- Second with Georgia’s District, with a border der, and State’s running the Eighth (Edmondson, J., at 1396 864 F. 1,155 miles. See Supp., dissenting).4 District the boundaries does the Eleventh
Nor disrespect district, the 22 the Of counties subdivisions. political That Joint Exh. 17. intact and 8 divided. See 14 are are in di- the state at about average the District Eleventh puts five District’s contrast, of Sixth the vided counties. By ibid., and of the Fourth District’s intact, counties, none are intact. Ibid.5 per- Seventy-one one counties, four just track borders boundaries District’s of the Eleventh cent (Edmond- F. at 1396 864 See Supp., subdivisions. political 5 score worse districts, State’s Of the son, J., dissenting). bet- and 5 score criterion, this on District than the Eleventh area have a total each Second, Districts First, Eighth Georgia’s (Edmondson, J., Supp., F. 10,100 square miles. of over dissenting). crossing the miles of comes within District the Eleventh Although spans Ninth District Georgia: State, is not this unusual entire Second, Districts First, Eighth border, northern entire State’s middle of almost north and stretch border Florida begin 1980’s, Geor In the (Edmondson, J., dissenting). ibid. See the State. *39 from farther, pattern an irregular in even District extended Eighth gia’s See Atlanta suburbs. nearly the with Florida border southeast the 80. App. 5 2 The of others. parts and counties intact District has 20 The First Third The of 12 others. parts and counties 23 intact has District Second District is Fifth The of 8 parts others. and intact counties 8 District has coun has 10 intact District Seventh The of 4 counties. parts composed and 22 intact counties has District Eighth county. The of 1 part and ties 1of part intact counties has 19 District The Ninth of 10 others. parts others. 3 parts counties 16 intact District has Tenth other. The 17. See Joint Exh.
942 percent Eighty-three p. 177, 4.6 Exh. Defendant’s
ter. See composed geographic area Eleventh District’s congressional average for State’s counties, above intact (Edmondson, dissenting).7 J., Supp., at 1396 864 F. districts. largely notably, District’s boundaries the Eleventh And precinct lines.8 follow similarly other shows that considerations at trial
Evidence determining Eleventh District’s into than race went “political accommodate reason”—to For a boundaries. place- regarding the request incumbent State Senator of an lived—the DeKalb precinct which his son ment of the was to in- District drawn County portion the Eleventh white) precinct. 2 202. (largely Tr. particular clude a substantially Effingham County through was The corridor (white) Representative. request State at the narrowed County, the district In 189-190, 2 212-214. Chatham Tr. community heavily black Gar- was trimmed to exclude a keep Representative wanted to City den because a State neighboring District. 2 Tr. 218- city First intact inside the configured by “the nar- was extension 219. Savannah city splitting the of Port possible” to avoid means rowest 175-178, 181-183. 172-174, 4 Wentworth. Tr. lowest, of its boundaries just percent with The Sixth District scores highest, District rates lines. The Ninth subdivision
following political 177, p. Exh. 3. percent. with 91 Defendant’s Seventh, First, measure, and Ninth— three districts —the only On this Fifth Sixth Excluding rate the Eleventh District. higher than counties, from about 30 Districts, range the scores which contain no intact the Seventh District. to 97 percent for the Fourth District percent Id,., at 4. by stating: its head of this fact on significance The Court turns the many precinct do indeed follow boundaries of the Eleventh ‘“While the District lines, along the Eleventh designed because Ms. Meggers this is lines, to her at the precinct was most accessible racial and race data ” Ante, 1384). To this curious F. (quoting Supp., level.’ race, comment, Yes, but plan considered only Georgia’s one can demur. e., i. lines, altogether proper way, it did so an by following precinct districting practices. without traditional disregarding *40 Georgia’s District, in is not an outlier dis- sum, Eleventh districting shaped to familiar tech- without reference trict Tellingly, the niques. the district that Court’s decision statistically among today is not those on a calcu- unsettles in the States, 28 most bizarre districts United lated list of the study prepared decision in in the wake our Shaw. See at 565. Niemi, Rev., Pildes 92 Mich. L. & C Georgia’s Legislature, suggests that it was not The Court Department effectively that drew Justice, but the U. S. nothing Department so with officers did lines, the by plan Yet the “Max-Black” advanced but race in mind. passed by Georgia Attorney plan the was not the the General Assembly.9 Supp., 1396-1397, 864 F. at n. See General (Edmondson, (“The dissenting) plan did influ- Max-Black
J., shape degree Eleventh Dis- the of the ultimate ence to some [But] to the Eleventh is not identical trict actual .... eye, my significantly plan. Eleventh, Max-Black ways. shape many differences show These different .”).10 beyond other matters race .. . . . . consideration of preclearance Attorney although refused General And by Georgia’sLegislature, plans approved to the first two thereby Georgia disarmed; could have de- State was Department’s objections institut- relief from the manded for the ing District Court a civil action in the United States review in this with ultimate Court. Columbia, District of adopt pursuing avenue, the chose Instead of State forcefully plan plan controversy defends the State here in —a A, B, pro opinion depict, respectively, and C to this Appendixes current plan, Georgia’s District under the “Max-Black” Eleventh posed districts, in Shaw. controversy and the district congressional ante, feature, Indeed, plan placing of the “Max-Black” “key” — in a figured proposal in the District —first parts of Savannah Eleventh General Attorney suggested Senate even before the adopted by Georgia’s (Edmondson, J., dissenting). n. 1 this 864 F. Supp., course. *41 by taking respect Georgia’s its choice before us. We should genuine. position brief as on
D political shape, Along size, subdivi- attention to with districting recognizes appropriate as an sions, the Court “respect principle, defined actual for . . . communities finds no com- Ante, at 916. The Court shared interests.” report munity record however, because a showed here, political, interests within the social, “fractured economic population.” Ante, black at 919. Eleventh District’s ethnicity people together, as volumes of But itself can tie people literature have documented—even with social science ethnicity divergent reason, economic For this interests. significant political stated in a classic a force life. As ethnicity city immigrants: study of in one “[M]any history, family feeling, interest, elements— organizational operate keep formal much of New life— life York channeled within the bounds of the ethnic group. ... political willing
“... The realm ... is least to consider [ethnicity] purely private affair. . . .
“[Political emphasizes life itself the ethnic character city, special of the with its balanced tickets and its appeals Moynihan, Beyond . . . .” N. Glazer & D. (1963). Melting Pot 19-20 e.g., Beyond also, Litt,
See E. Pluralism: Ethnic Politics (1970) (“[E]thnic play surprisingly America 2 forces persistent politics.”); Group role in our Ethnic Politics, Pref- (H. 1969) (“[EJthnic Bailey ace ix Katz & E. eds. identifica- really tions do exist and . . . one cannot understand political process giving special American without attention minorities.”). religious to racial, and national reality legislatures To accommodate the of ethnic bonds, long voting along have drawn districts ethnic lines. Our by their ethnic districts identified cities are full of Nation’s Russian, Italian, Jewish, Polish, Chinese, Irish, character — e.g., example. End: Irish- Erie, Rainbow’s See, S. Politics, Machine the Dilemmas Urban Americans and (1988)(describing Jersey City’s p. “Horseshoe 1840-1985, together”); city’s “lumping Irish Cov- most district” Redistricting Task, Los Add a Twist eted Landmarks (“In Sept. pp. Angeles Fran- 10, 1991, Al, A24 San Times, Assembly member] [State an Irish Catholic 1961,... cisco in *42 following parish [Catholic] lines his district drawn 'wanted baptisms, weddings parishes where he went to so all the .”); in his Stone, funerals would be district’ . . . Goode: and Monthly, July-Aug. Washington Indifferent, Bad and Loyalty— (discussing pp. Law of Ethnic ... a “The identifying “predominantly politics,” of and universal law Philadelphia,” Angeles a “Jewish Los Italian wards of South Chicago”). district in The creation district,” and a “Polish ordinarily reflecting identity felt is not of ethnic districts demeaning in the viewed as offensive or to those included delineation.
Ill separate permissible impermissible in To and use of race scrutiny legislative apportionment, orders strict Court districting plans “predominantly motivated” No race. longer judicial oversight by giving can a State avoid —as genuine this consideration to measurable tradi- case— districting practices. Instead, tional a federal case can be plaintiffs plausibly allege mounted whenever that other fac- weight litigate tors carried less than race. This invitation to against necessary proper. the State seems to me neither nor
A opinions The Court derives its test from diverse on the distinctly apportionment. relevance of race in contexts unlike idea, the Court ante, says, at 911-912.11 controlling See “ heart of the Constitution’s ‘the command [at simple must the Government protection] equal guarantee of a not as individuals, components treat citizens simply ” ante, at 911 See sexual or national class.’ racial, religious, 547, 602 FCC, 497 U. S. Metro Inc. v. Broadcasting, (quoting (some (1990) internal J., quotation dissenting)) (O’Connor, omitted). 100 U. S. But cf. Strauder v. West Virginia, marks (1880) War Amend- 303, 307 purpose post-Civil (pervading race). once-enslaved ments was to bar discrimination against Organi on In United Jewish precedent directly point. 11 Iwould follow (1977) (UJO), even Inc. v. 430 U. S. Williamsburgh, Carey, zations of manner” to create “deliberately purposeful the State used race though White, J., districts, id., joined by (opinion majority-minority Rehnquist Stevens, JJ.), voted eight participating seven of Justices scrutiny. Five without it to strict uphold plan subjecting State’s majority- agreed Justices the intentional creation specifically claim, absent minority give equal protection districts does not rise to an See ibid. strength. that the diluted the proof districting majority’s voting Rehnquist JJ.); id., White, J., Stevens, at 179- (opinion joined by J.). (Stewart, J., Powell, concurring judgment, joined by *43 Petitioners’ claim Nor is UJO best understood as vote dilution case. in UJO was that the State had “violated the Fourteenth and Fifteenth ra- by deliberately revising reapportionment plan along Amendments its ” Id., Brennan, Blackmun, White, J., joined by cial lines. at 155 (opinion JJ.) added). Stevens, Petitioners themselves stated: (emphasis ‘“Our is . . . that the of the area demonstrates that argument history to divide the there could be—and in fact was—no reason other than race ” Id., 154, Petitioners, 14 for community (quoting at this time.’ at n. Brief Petitioners). 6) 1976, 75-104, 6, in O. T. No. n. Brief p. (emphasis Shaw, much like the claim in the UJO claim failed because Though S., UJO See 430 U. districting practices. district adhered to traditional JJ.) White, Rehnquist J., Stevens, (opinion joined by (“[W]e State, districting think it. . . for a sound permissible employing principles equality,... [to] creat[e] such as compactness population districts that will afford fair to the members of those racial representation who are numerous residential groups sufficiently patterns and whose af- in will in opportunity creating they districts which be ford added). majority.”) (emphasis
947 adopting districting plans, however, In States do not treat by people Apportionment schemes, as individuals. their very groups. people nature, assemble States do not as- sign achievement, to districts based on merit or voters hiring employees might engaging standards use in or States classify legislators groups— voters in Rather, contractors. by geographical, political, economic, or social characteris- competing [these] tics—and then “reconcile the claims of (1986) groups.” Bandemer, Davis v. 478 U. S. concurring judgment). J., (O’Connor, ethnicity groups politi- That defines of these some is a reality. infirmity cal no now, Until constitutional has been districting together, seen Irish or Italian voters for ex- long ample, so as the delineation does not abandon fa- practices. apportionment supra, miliar If See 944-945. may Chinese-Americans and Russian-Americans seek and group recognition voting secure in the delineation of dis- dissimilarly tricts, then African-Americans should not be equal protection, Otherwise, treated. in the name of we very minority group history would shut out “the whose gave Equal in the United States birth to the Protec- Shaw, tion S., J., Clause.” See U. (Stevens, dissenting).12
B approach, judicial Under Court’s review of the same intensity, scrutiny, e., i. strict inis order once it is deter- apportionment predominantly mined that an motivated regime, race. It all, matters not at in this new whether the apportionment minority voting strength. dilutes or enhances very recently “[t]here As observed, however, is no moral or practices may course, Race-conscious pursue, State elect to are See Voinovich may not as limited as those required pursue. it be Quitter, (1993) (“[F]ederal 507 U. S. may courts order *44 majority-minority creation of necessary remedy districts unless to a viola tion of federal law. But that does not mean that the powers State’s are ....”) (citation similarly Quite omitted). opposite limited. is true designed policy equivalence that is between constitutional system perpetuate seeks to eradicate and one that a caste to Constructors, Peña, Inc. v. Adarand racial subordination.” dissenting). J., ante, at 243 (Stevens, judicial inspection justify vigilant to Special circumstances apply minority to protect that do not voters—circumstances politics history majority from state A of exclusion voters. provisions for extract minorities without clout to left racial supra, lawmaking representation in the forum. See fair minority protection rights equal voters thus The 936-938. Judiciary’s close could have remained unrealized absent Co., Products States v. Carolene surveillance. Cf. United (1938)(referring to the “more search 144, 153, n. U. S. may ing judicial inquiry” properly classifications attend minorities”). adversely affecting “discrete and insular blockage. majority, by definition, White encounters no such Georgia strong pressure voters in do not lack means to exert legislators. The force of their numbers on their state powerful legislature what the will itself a determiner of majority perceived interests. do that does not coincide with legislatures Georgia’s today operate under fed- State like imposed by Voting Rights eral constraints Act—con- justified by history designed by Congress straints people equal make once-subordinated free But citizens. majority these federal constraints do not leave voters in need extraordinary judicial Attorney General, solicitude. The Voting Rights preclearance who administers the Act’s re- quirements, political duty is herself a has a actor. She Congress passed, enforce the law is no she doubt aware political venturing cost of too far to the detriment of majority Majority press voters. voters, furthermore, can judicial Attorney the State to seek if review the General preclear plan Finally, refuses to that the voters favor. political subject the Act is itself a measure, to modification political process. in the
C redistricting perilous disposition work renders The Court’s political Statutory legislatures. re- mandates for state drawing may require when to consider race States alities today’s supra, a decision is at 935. But See district lines. litigation way opens if “tradi- for federal it counterforce; arguably districting principles” less were accorded tional ... weight attention ante, at 916. Genuine than race. See districting practices con- and avoidance of bizarre traditional provide figurations harbor. Shaw, to a safe seemed, under (“[Traditional districting principles S., See 509 U. respect political compactness, contiguity, sub- such as objective may serve to defeat are factors divisions . . . gerrymandered on racial a district has been claim that lines.”). longer today’s no decision, that is In view of case. Voting Rights
Only litigation Act, after either —under or both—will States now standard, new Miller Court’s plans Federal conscious of race are safe. be assured may fray. judges large This numbers be drawn into the reap- enlargement judicial role is unwarranted. plan Georgia’spolitical proc- portionment that resulted from approbation, ess merited this not its condemnation. Court’s Accordingly, I dissent. containing maps Georgia’s
[Appendixes
B,
A and
proposed
Appendix C,
Districts,
and current Eleventh
containing map
this
District,
of the Shaw v. Reno
follow
page.]
notes
understanding,
recognized
Based on this historical
we
§
purpose
always
Beer that “the
of 5 has
been to insure that
voting-procedure changes
no
would be made that would lead
retrogression
position
to a
in the
of racial minorities with
respect to their effective exercise of the electoral franchise.”
Department’s
S.,
425 U.
at 141. The Justice
maximization
policy
quite
purpose.
seems
far removed from this
We are
especially
§ justifies
policy
reluctant to conclude that 5
given the serious constitutional concerns it
In
raises.
South
(1966),
§5
Carolina Katzenbach,