No. 94-929

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

UNITED STATES OF AMERICA, APPELLANT

V.

DAVIDA JOHNSON, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA

JURISDICTIONAL STATEMENT

DREW S. DAYS, III
Solicitor General

DEVAL L. PATRICK
Assistant Attorney General

PAUL BENDER
Deputy Solicitor General

JAMES A. FELDMAN
Assistant to the Solicitor General

STEVEN H. ROSENBAUM
MIRIAM R. EISENSTEIN
Attorneys

Department of Justice
Washington, D.C. 20530
(202)514-2217

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QUESTIONS PRESENTED

1. Whether a districting plan is always subject to
strict scrutiny if race has been a substantial or moti- 
vating factor in its creation.
2. Whether the boundaries of Georgia's Eleventh
Congressional District are so bizarre on their face
that they can be understood only as an effort to segre-
gate voters into separate districts because of their
race.
 3. Whether the State's creation of District Eleven
is narrowly tailored to further a compelling interest.

(I)
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II

PARTIES TO THE PROCEEDING

In addition to the parties named in the caption, the
plaintiffs below were Pam Burke, Henry Zittrouer,
George L. DeLoach, and George Seaton. The defend-
ants below were Zen Miller, Governor of Georgia,
Pierre Howard, Lieutenant Governor of Georgia,
Thomas Murphy, Speaker of the House of Representa-
tives of Georgia, and Max Cleland, Secretary of the
State of Georgia. Intervenor-defendants were Lucious
Abrams, Jr., Rev. G.L. Avery, William Gary
Chambers, Sr., and  Karen Watson.

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TABLE OF CONTENTS

Opinion  below . . . . 1
Jurisdiction  . . . . 1
Constitution provision involved . . . . 2 
Statement  . . . . 2
The questions presented are substantial  . . . . 12
Conclusion  . . . . 20
Appendix A  . . . . 1a
Appendix B  . . . . 103a
Appendix C  . . . . 105a
Appendix D  . . . . 107a

     TABLE OF AUTHORITIES

Cases:

Beer  v. United States, 425 U.S. 130 (1976)  . . . . 9 
Busbee V. Smith, 549 F. Supp. 494 (D.D.C. 1982),
  aff'd, 459 U.S. 1166 (1983)  . . . . 3
Hays V. Louisiana, 839 F. Supp. 1188 ( W.D. La.
  1993), vacated and remanded on other grounds,
  114 S. Ct. 2731 (1994)  . . . . 7
Shaw V. Reno, 113 S. Ct. 2816 (1993)  . . . .2, 6, 13,  14, 16
Thornburg v. Gingles, 478 U.S. 30 (1986) . . . . 10, 17

Constitution, statutes, regulations and rule:
U.S. Const. Amend. XIV (Equal Protection
  Clause) . . . . 2, 5
Voting Rights Act of 1965,42 U.S.C. 1973 et seq.:
   2,42 U.S.C. 1973 . . . .8, 16, 17, 18
   5,42 U.S.C. 1973c  . . . . passim
28 U.S.C. 1253  . . . . 1
28 C. F. R.:
   Section 51.3 . . . . 4
   Section 51.59 . . . . 9
SUP.  Ct. R. 18.1 . . . . 1

Miscellaneous:

52 Fed. Reg. 490 (1987) . . . . 9
       
 (III)

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In the Supreme Court of the United States

      OCTOBER TERM, 1994

     No.

UNITED STATES OF AMERICA, APPELLANT
   

   DAVIDA JOHNSON, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
  FOR THE SOUTHERN DISTRICT OF GEORGIA

JURISDICTIONAL STATEMENT

OPINION BELOW

The opinion of the three-judge district court (App.,
infra, la-102a) is not yet reported.

JURISDICTION

The judgment of the three-judge district court was
entered on September 12, 1994. The United States
filed a notice of appeal on September 20, 1994 (App.,
infra, 105a-106a), and an amended notice of appeal
on September 22, 1994 (App., infra, 107a-108a).1
The jurisdiction of this Court is invoked under 28
U.S.C. 1253.

___________________(footnotes)

1 The first notice of appeal did not specify the statute under
which the appeal was taken. See Sup. Ct. R. 18.1. The
amended notice of appeal specified that the appeal was being
taken pursuant to 28 U.S.C. 1253.

(1)

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2

CONSTITUTIONAL PROVISION INVOLVED

The Equal Protection Clause of the Fourteenth
Amendment provides that "[n] o State shall * * *
deny to any person within its jurisdiction the equal
protection of the laws."

STATEMENT

This case concerns a constitutional challenge to the
configuration of the Eleventh District in Georgia's
1992 congressional redistricting plan. A three-judge
district court held that the configuration of the Elev-
enth District violates the Equal Protection Clause of
the Fourteenth Amendment, as construed in Shaw v.
Reno, 113 S. Ct. 2816 (1993). The United States,
three of the four state officials sued in their official
capacities, and the private  defendant-intervenors   have
appealed from that judgment.
1. The population of the State of Georgia is ap-
proximately 27% African-American. Georgia has an
extensive history of discrimination in voting. The dis-
trict court took judicial notice of the fact that "Geor-
gia's history on voting rights includes discrimination
against black citizens." App., infra, 103a. The court
explained that "[f ]rom the state's first Constitution-
which barred blacks from voting altogether-through
recent times, the state has employed various means
of destroying or diluting black voting strength." Id.
at 103a-104a. Those means, which the court found
had been enacted as late as 1958, included literacy
tests, property requirements, white-only primaries;
and the county unit system. The court specifically
noted that "[c]ongressional districts have been drawn
in the past to discriminate against black citizens by
minimizing their voting potential." Id. at 104a. That

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    was accomplished by "packing an excessive number
    of black citizens into a single district or splitting large
    and contiguous groups of black citizens between mul-
    tiple districts." Ibid.
     From Reconstruction until the 1980's, black voters
    were not in the majority in any of the State's con-
    gressional districts. Following the 1970 census, the
    Attorney General interposed a Section 5 objection to
    Georgia's congressional redistricting plan, which frag-
    mented African-American population concentrations
    in the Atlanta area. Joint Statement of Undisputed
    Facts 48-49. The State then adopted, and the Attor-
    ney General precleaned, a revised plan that remedied
    the fragmentation, but that did not have an African-
    American majority district. See Busbee v. Smith,
    549 F. Supp. 494, 500 (D.D.C. 1982), aff'd, 459 U.S.
    1166 (1983).
    Following the 1980 census, the State drew a plan
    that included one majority African-American district
    in the Atlanta area, but that nonetheless unnecessarily
    fragmented the African-American community in that
    area. The Attorney General again interposed a Sec-
    tion 5 objection, and the State sought preclearance
    from the United States District Court for the District
    of Columbia. The court denied preclearance on the
    ground that the plan had "a discriminatory purpose
    in violation of Section 5." 549 F. Supp. at 517. The
    court held that the plan "implemented a scheme de-
    signed to minimize black voting strength to the extent
    possible." Id. at 518. The court ultimately precleaned
    a revised plan. Id. at 520.
    2. Following the 1990 census, the State of Georgia
    was entitled to 11 congressional seats, a gain of 1 seat
    since 1980. In a special legislative session in 1991;
    the state legislature passed a redistricting plan that
                                                                       
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included two majority-minority districts: the Elev-
enth, in east-central Georgia, and the Fifth, in the
Atlanta area. In addition, the plan included a third
district-the Second District in the southwest part
of the State-in which African-Americans comprised
approximately 36'1 of the voting age population.
App., infra, 12a-14a.
The plan was submitted to the Justice Department
for preclearance. Acting on behalf of the Attorney
General (see 28 C.F.R. 51.3), the Assistant Attorney
General for Civil Rights interposed an objection under
Section 5. He based the objection on the fact that the
State had failed to carry its burden of demonstrating
that the plan did not "have the purpose or * * * the
effect of denying or abridging the right to vote on
account of race." See App., infra, 15a. He noted a
"concern" that the Georgia legislative leadership had
decided to "limit" black voting potential to two ma-
jority-minority districts, and explained that the plan
did not take into account concentrations of African-
Americans who lived in southwest Georgia. See id.
at 14a.
The state Senate then passed a plan with three ma-
jority African-American districts that would have
moved some areas from the Eleventh District to the
Second District and would have extended the Elev-
enth District to Savannah, thereby including Savan-
nah's concentrations of African-Americans. App.,
infra, 16a. The state House of Representatives, how-
ever, refused to adopt that approach, and instead in-
sisted upon a plan that slightly modified the Eleventh
and Fifth Districts and that increased the percentage
of voting age population that was African-American
in the Second District to 45%. Id. at 16a & n.9. The
Assistant Attorney General again interposed an ob-

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jection under Section 5. He explained that "no legiti-
mate reason has been suggested" to explain why the
House declined to enact the Senate plan, and that the
plan as submitted therefore continued "the exclusion
of the second largest concentration of blacks in the
state from a majority black Congressional District."
Id. at 17a.
The State legislature then enacted a new plan that
was similar to the plan the state Senate had previ-
ously passed. It responded to the Section 5 objection
by increasing the African-American voting age pop-
ulation in the Second District to 52%. App., infra,
21a & n.12. As compared with the plan the State
had previously enacted, this plan moved some areas
from the Eleventh to the Second District and ex-
tended the Eleventh District to Savannah to include
that city's concentrations of African-American citi-
zens. The Assistant Attorney General determined
not to interpose an objection, and the plan took effect.
Id. at 22a-23a.
2. In January, 1994, five white residents of the
Eleventh District filed suit in the United States Dis-
trict Court for the Southern District of Georgia, alleg-
ing that the Eleventh District segregated voters on
the basis of race in violation of the Equal Protection
Clause. A three-judge court was convened. The
United States and a number of citizens of Georgia
intervened in support of the defendants. A trial took
place on July 21-28, 1994. The three-judge court ruled
that the configuration of the Eleventh District violated
the Fourteenth Amendment.
a. The court narrated in some detail the history
of the State's post-1990 redistricting and extensively
characterized the Section 5 review of the various state
plans by the Department of Justice. App., infra, 5a-

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27a. The court explained that, from the beginning of
the process, a plan with three majority African-
American districts had been developed by the Amer-
ican Civil Liberties Union (ACLU ) on behalf of the
Black Caucus of the General Assembly and presented
to the state legislature. Id. at 6a. That plan in-
cluded the extension of the Eleventh District to
Savannah and the inclusion of portions of Macon
in the Second District. Those elements were em-
ployed by the State in the plan that was finally
enacted and precleaned, although the final plan dif-
fered in other important ways from the ACLU's plan.
Id. at 6a-9a, 10la (map). The court also stated that
the ACLU had repeatedly brought its plan to the
attention of the Department of Justice in the course
of the Section 5 preclearance process; that the
ACLU had used that plan to argue to the De-
partment of Justice that the State's first two redis-
tricting plans should not be precleaned; and that the
Department of Justice's "criteria for and opinions of
Georgia's submissions were greatly influenced by
[the ACLU's attorney] and her agenda." Id. at 10a.
The court stated that the State did not seek a Section
5 declaratory judgment because of fear that it would
lose such a case as it had lost Busbee v. Smith ten
years earlier, and because such a suit could have been
expensive and would have taken some time to litigate.
App., infra, 20a-21a n.11.
With respect to the merits of plaintiffs' claim, the
court held that the Eleventh District is subject to
strict scrutiny. In Shaw v. Reno, supra, this Court
held that a district is subject to strict scrutiny if it is
"so extremely irregular on its face that it rationally
can be viewed only as an effort to segregate the races
for purposes of voting." 113 S. Ct. at 2824. In the
district court's view, that language does not suggest

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         7

that "[t] he shape of the district is * * * a `threshold'
inquiry preceding an exploration of the motives of
the legislature." App., infra, 29a. Instead, the shape
is simply " `objective' evidence of the legislature's in-
tent in drafting that district," ibid.; " [t]he purpose
of scrutinizing a district's shape is to glean the in-
tent of the legislature by working backwards," id.
at 41a. Therefore, a plaintiff can make out a Shaw
claim either through proof concerning "a district's
shape as circumstantial evidence of legislative intent,"
id. at 40a, or through "direct testimony of those in-
volved with the [redistricting] process" concerning
"the legislature's intent," ibid.
Examining the precise nature of what in its view
was the forbidden legislative motive, the district court
held that strict scrutiny must be applied if "race was
the substantial or motivating consideration in [its]
creation" -a criterion the court explained as requir-
ing that race be "the overriding, predominant force
determining the lines of the district." App., infra,
35a. In reaching that conclusion, the court rejected
the view of the district court in Hays v. Louisiana,
839 F. Supp. 1188 (W.D. La. 1993), vacated and
remanded on other grounds, 114 S. Ct. 2731 (1994),
that race "need only have been a recognizable factor
-not the sole or dominant one-before a redistricting
plan is constitutionally suspect." App., infra, 33a.
The court explained that adoption of that standard
would lead to jurisdictions covered under Section 5 of
the Voting Rights Act being "buried under Shaw
litigation every time [they] pass[] a redistricting
plan." App., infra, 38a-39a. The court also rejected
the view that "race must have been the sole motiva-
tion behind a particular district shape before strict
scrutiny is appropriate. " Id. at 33a. In the court's
view, "th[at] standard would be nearly impossible to
meet." Id. at 39a.

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Applying its standard, the district court found
that the "indirect" evidence of legislative intent was
sufficient to subject the Eleventh District to strict
scrutiny, because various portions of the district had
irregular boundaries. In particular, the court held
that " [t]he extension [of the district] to Savannah
is not compact by any credible definition of that
term," App., infra, 43a; that the Augusta portion
reflected a selective inclusion of predominantly Afri-
can-American census blocks, id. at 45a; and that the
Eleventh District as a whole split eight of its 22
counties, a result that the court believed to be unnec-
essary, id. at 47a. The court also held that there was
sufficient "direct" evidence that the legislature had a
suspect racial motive when it drew the Eleventh Dis-
trict. Id. at 48a-51a. In particular, the court ad-
verted to the State's admission that its motive in
extending the Eleventh District to Savannah was to
include additional African-American voters in the
District. Id. at 48a-50a. The court also referred
to evidence that other portions of the district were
drawn in an effort to include African-Americans in
the district. Id. at 49a.
The district court then applied strict scrutiny.
The district court held that the only compelling state
interest that could potentially justify the Eleventh
District was the State's interest in complying with
Sections 2 and 5 of the Voting Rights Act. The dis-
trict court stated that it was assuming the exist-
ence of that interest, but the court held that what it
viewed as the "narrow tailoring" inquiry was crucial:
whether "the district [], as precleaned and enacted,
[was] genuinely `reasonably necessary,' that is, nar-
rowly tailored, to comply with the [Voting Rights
Act]." App., infra, 60a (citation omitted).

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The court held that the district failed that "narrow
tailoring" test. In the court's view, the fact that the
Department of Justice had refused preclearance of
the State's earlier attempts at redistricting did not
establish that creating the Eleventh District was neces-
sary to satisfy Section 5 of the Voting Rights Act.
Instead, the court held that the plan "will live or
die" on the basis of the court's independent determi-
nation of "whether Georgia's 1992 congressional re-
districting plan was actually required by the [Voting
Rights Act] and Supreme Court precedent." App.,
infra, 63a.
With respect to Section 5, the majority determined
that although Georgia "did what was minimally
`necessary' to secure preclearance," App., infra, 62a,
the Department of Justice had erred in refusing to
preclear previous plans that did not contain three
majority black districts. 2 Under Section 5, Georgia
had the burden of demonstrating that its redistrict-
ing plan would not have a discriminatory purpose or
effect. 42 U.S.C. 1973c. This Court has interpreted
the "effects" prong to require a showing that the
change was nonretrogressive, see Beer v. United
States, 425 U.S. 130 (1976) ; the court agreed with

___________________(footnotes)

2 The court held that the refusal to preclear the earlier
Georgia plans was inconsistent with regulations "promulgated
by Congress to assist DOJ in properly enforcing the [Voting
Rights] Act." App.,  infra, 64a-65a (citing 28 C.F.R. 51.59).
The court went on to discuss the regulations in terms of what
"Congress intended," App., infra, 65a, what "Congress was
apparent] y worried" about, ibid.; and how "Congress uses"
a particular term in the regulations, id. at 66a. The reg-
ulations to which the court referred, however, were not
enacted by Congress; they were promulgated by the Attorney
General. See 52 Fed. Reg. 490 (1987).   There is no indication
in the court's opinion that it gave any deference to the
torney General's interpretation of her own regulations.

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         10

11 parties in this case that the change was non-
retrogressive. See App., infra, 67a-68a. In the por-
ion of its opinion applying the strict scrutiny stand-
rd, the court did not directly address the "purpose"
prong of Section 5, on the basis of which the Section
objections to Georgia's first two redistricting plans
ad been interposed. Early in its opinion, however,
he court reported that several state officials had not
found any evidence of acts or statements by * * *
legislators indicating an intent to discriminate against
minority voters." App., infra, 13a. The court at
hat point commented that it "finds no evidence
)prompting [it] to doubt that conclusion. " Ibid.
The court also held that the Eleventh District was
lot required by Section 2 of the Voting Rights Act.
App., infra, 80a. The court reached that conclusion
)y applying the preconditions set forth by this Court
n Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986).
The court held that the district was not sufficiently
compact, because its outside perimeter included
`hooks, tails and protrusions" in and near densely
populated urban areas at its periphery. App., infra
79a. The court also found that racial polarization
"exists, but not in alarming quantities"; the court
found that from 22% to 38% of white people in the
are voted for African-American candidates, while
20% to 23% of African-Americans in the area voted
for white candidates. Id. at 82a. The court also
found, based on its independent analysis of the evi-
dence before it, that the Eleventh District included
more African-Americans of voting age (60.36 TO ) than
would have been necessary to satisfy Section 2 in any
event. App., infra, 82a-87a.
b. Circuit Judge Edmondson dissented. In Judge
Edmondson's view, " [h]ighly irregular shape-the
appearance of the district -is the critical element of"

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the cause of action recognized by this Court in Shaw.
App., infra 93a. Accordingly, he rejected the court's
holding that a district's "shape is merely one piece
of circumstantial evidence proving the legislature's
intentional use of race." Id. at 94a. He noted that
Shaw's "highly-irregular-appearance standard * * *
avoids the unreliability of after-the-fact statements
by legislators and also avoids the necessity of federal
judges probing and intruding on state officers'
thoughts * * * to `learn' the state's true intent."
Id. at 94a n.2.
Judge Edmondson found that the Eleventh District
was not "bizarre or highly irregular within the
meaning of Shaw." App., infra, 96a. He noted that
the size of the district, the length of its borders, and
its position within the State were not out of the
ordinary. Id, at 96a-98a. Moreover, he noted that
the Eleventh District's boundaries follow existing
state, county, and city borders to approximately the
same extent (71%) as the average for the State's
other congressional districts; that "Georgia's con-
gressional districts have no tradition of being neat,
geometric shapes"; that portions of other districts
are more irregular than `the particular portions of
the Eleventh District criticized by the majority; and
that other districts in Georgia's current plan, as well
as in past plans, split counties. Id. at 98a-99a. He
concluded that the district "is not so bizarre on its
face to justify, pursuant to the Constitution, a more
searching inquiry," and that the district court ac-
cordingly should not "interfere with the reapportion-
ment plan that resulted from Georgia's political
process." Id. at lOOa.
3. The district court enjoined the completion of
this year's election cycle in the Eleventh District and
 
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stated that it would hold a remedial hearing after
receiving submissions from interested parties. App.,
infra, 89a. The Governor and two of the other state
defendants, the private intervenor-defendants, and
the United States moved for a stay in this Court.
On September 23, 1994, this Court granted the stay
pending the filing and disposition of the appeals in
this case. 115 S. Ct. 36.

THE QUESTIONS PRESENTED ARE SUBSTANTIAL

Because this case presents questions that are quite
similar to those presented in United States V. Hays,
No. 94-558, it would be appropriate for the Court to
hold this appeal pending its disposition of Hays.s
Both cases raise the question whether a districting
plan is always subject to strict scrutiny if race has
been a substantial or motivating factor in its cre-
ation. In addition, the configuration of the district
challenged in this case is similar to the configura-
tion of the district challenged in Hays: isolated
portions of both districts are oddly shaped, but
the districts viewed as a whole do not represent
extraordinary departures from the States' ordinary
districting practices. As a result, this Court's deter-
minations in Hays concerning the circumstances
under which a districting plan should be subject to
strict scrutiny are likely to illuminate the corre-
sponding question in this case. Similarly, if the
Court determines that strict scrutiny must be ap-
plied in Hays, the determination of whether the chal-
lenged district in that case is nonetheless constitu-
tional should shed light on the corresponding question

___________________(footnotes)

3 We are providing all parties with a copy of our jurisdic-
tional statement in Hays.

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in this case.  We have already filed a jurisdictional
 statement in hays asking that this Court note prob-
able jurisdiction and give plenary consideration to 
that case.  For that reason, and because this case is 
likely to be ripe for this Court's consideration later
than Hays, holding this case for the Court's disposi-
tion of Hays would be appropriate.
1. The first question presented in Hays is whether
the intentional creation of a majority-minority dis-
trict is always subject to strict scrutiny. In our
view, it is not. See 94-558 J.S. 10-12. The Court's
resolution of that question is likely to exert substan-
tial influence on the similar question in this case.
It was undisputed in both Hays and in this case
that the State intended to create a majority-minority
district, and that race was an important factor to the
State in determining the configuration of the districts
that were challenged. If this Court agrees with the
district court in Hays that those facts are sufficient
to require strict scrutiny, it would appear that the
same conclusion would follow in this case. If, on
the other hand, the Court determines that those facts
are not alone sufficient to require strict scrutiny,
then the analysis in both cases must proceed to a
further step.
2.   Assuming that strict scrutiny is not necessary
merely because a State has intentionally created a
majority-minority district, Hays presents the further
question of what additional circumstances require
such scrutiny. In Shaw V. Reno, this Court held
,  that a district is subject to strict scrutiny if it is "so
extremely irregular on its face that it rationally can
be viewed only as an effort to segregate the races
I `1  for purposes of voting." 113 S. Ct. at 2824. Hays

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and this case both present the question of how a
district court is to apply that criterion to a district
whose boundaries are substantially more regular
than those at issue in Shaw.
In Hays, the district court concluded that the chal-
lenged district was subject to strict scrutiny under
its interpretation of the Shaw standard. The district
court relied in part on its finding that the configura-
tion of the district on its face is so bizarre that it
can only be understood as an effort to segregate
voters. 94-558 J.S. App. 3a. As we explain in our
Jurisdictional Statement in Hays, that determination
is mistaken on the facts of that case. Because the
Constitution does not require a State to tailor its
districts to any absolute concept of compactness, see
Shaw, 113 S. Ct. at 2827, the manner in which the
State has actually drawn and continues to draw
other districts is a proper benchmark for deter-
mining whether a majority-minority district is `(bi-
zarre," The district challenged in Hays resembles
other districts Louisiana has drawn in the past and
fits comfortably within the State's ordinary district-
ing practices. The presence of oddly shaped bound-
aries in isolated portions of the district does not
require the conclusion that the boundaries of the dis-
trict, taken as a whole, are "so extremely irregular
on [their] face that [the district] rationally can be
viewed only as an effort to segregate the races for
purposes of voting." 113 S. Ct. at 2824. Accord-
ingly, applying the proper standard, the district court
should have concluded that the district in Hays was
not subject to strict scrutiny.
Essentially the same analysis applies to this case.
As in Hays, the district challenged here fits com-

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15

fortably within the State's ordinary districting prac-
tices. As Judge Edmondson noted in dissent, the
length of the Eleventh District's borders is "not dis-
tinctive" when compared to other Georgia districts.
App., infra, 96a. The fact that the district spans a
large part of the State does not distinguish it from
four of the ten other districts in Georgia's current
plan. Ibid. The Eleventh District is also at or above
the Georgia average with respect to the propor-
tion of its boundary that follows existing state,
county, and city borders, the proportion of its area
that comes from whole counties, and the proportion
of counties that it splits. Id. at 96a, 98a. Nor are
the more irregular portions of the district's bound-
aries-which, as in Louisiana, are generally limited
to isolated portions of the district-unprecedented in
current and past Georgia plans. Id. at 97a-98a.
Because of the similarities between this case and
Hays, this Court's decision in Hays concerning the
proper standard to apply in assessing whether a dis-
trict is so bizarre as to trigger strict scrutiny is
likely to have a significant influence on resolution of
the corresponding issue in this case. Moreover, the
district courts in both cases committed similar errors
in making their findings of "bizarreness." As we
explain in Hays, the district court in that case re-
jected the State's argument that strict scrutiny was
inapplicable, relying on admissions by state legis-
lators that race in fact played a large role in drawing
the challenged district. 94-558 J.S. 15. Similarly,
the district court here relied in part on actual legis-
lative intent to reject arguments that the district's
configuration is not so "bizarre" as to trigger strict
scrutiny. App., infra, 48a-51a. In both cases, the

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district court's reliance on actual legislative intent is
difficult to square with this Court's repeated admo-
nition in S'haw that the district must he analyzed
"on its face." See 113 S. Ct. at 2824, 2825, 2826,
2828, 2829, 2832. In any event, this Court's deter-
mination in Hays concerning the proper analyses of
a district's physical configuration and of the role,
if any, of actual legislative intent are likely to guide
the analysis in this case.
3. The analysis of whether the challenged dis-
trict can survive strict scrutiny is aIso likely to be
similar in the two cases, should that issue be reached.
The first question in both cases would be whether
the State's asserted interests in drawing an addi-
tional majority-minority district were sufficiently
compelling to justify the challenged district. In both
cases, the primary interests that could be asserted
were the need to comply with Section 2 and with
the "purpose" prong of Section 5 of the Voting
Rights Act, as well as the State's independent in-
terest in ameliorating the effects of racially polarized
voting.
In Hays, the State argued that it had a reasonable
basis for believing that creation of the additional
majority-minority district was necessary for compli-
ance with Section 5 of the Voting Rights Act. See
94-558 J.S. App. 7a-8a. The State based that con-
clusion on the fact that, one year prior to Louisiana's
congressional redistricting, the Attorney General had
refused to preclear a new districting plan for the
8 member state board of education because it did not
include two majority-minority districts. See 94-558
J.S. 2-3. The State also argued that its creation of
an additional majority-minority district was justified

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         17

by its compelling interest in complying with Section,
2 of the Voting Rights Act. See 94-558 J.S. App.
8a-9a. The State asserted that, if it did not include
such a district in its plan, it reasonably believed that
a plaintiff could make out a prima facie Section 2
case against the State, on the basis of the three pre-
conditions set forth by this Court in Thornburg v.
Gingles, 478 U.S. 30, 50-51 (1986). Finally, the
State argued that it had an interest, independent
of the Voting Rights Act, in ameliorating the effects
of past discrimination that affected voting. See 94-
558 J.S. App. 9a-10a.
The district court in Hays rejected the State's ar-
guments. The court rejected the State's reliance on
Section 5 of the Voting Rights Act on the ground
that, based on the court's own de novo examination
of the record, any Section 5 objection lodged by the
Attorney General would not have been legally valid.
94-558 J.S. App. 7a-8a & n.3.4 The court rejected the
State's reliance on Section 2 of the Voting Rights Act
on the ground that, in its view, the State would not
have been subject to liability under Section 2 if it had
failed to draw the challenged districts. In particular,
the court found that, since the challenged district
was not in the court's view sufficiently compact,  
a plaintiff would not have been able to satisfy the 
Gingles compactness precondition.  See 94-558 J.S.
remedial justification on the ground that there were
no lingering effects of discrimination that would jus-
tify such remedial action.  Id. at 10a.

___________________(footnotes)

4 We argued both in Hays and in this case that the district
court has no authority to engage in independent review of a
Section 5 objection lodged by the Attorney General.  See 
94-558 J. S. 19-20.

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18

With respect to the application of strict scrutiny,
the facts of this case are remarkably similar to those
in Hays, and the analysis applied in Hays is likely
to govern the analysis in this case. As in Hays, the
State here relied on previous Section 5 objections by
the Attorney General as a basis for its conclusion that
it was required by Section 5 of the Voting Rights Act
to draw the challenged district. As in Hays, the state
officials also were aware of facts that led to the
conclusion that the failure to create an additional
majority-rninority district would have permitted a
plaintiff to make out a prima facie Section 2 case
against it.' Finally, as in Hays, the State here was
faced with evidence sufficient to create a strong
interest-independent of the Voting Rights Act-in
ameliorating the effect that racially polarized voting
has had on the opportunity for minority voters to
elect the candidates of their choice. Thus, if this
Court applies strict scrutiny in Hays, the analysis the
Court adopts is likely to be applicable as well in this
case. 
4. In light of the very substantial similarities be-
tween this case and Hags, we believe that it would
be unnecessary for the Court to note probable juris-

___________________(footnotes)

5 The district courts in both Hays and this case held that
the districts created by the State would not have satisfied the
compactness criterion of Thornburg V. Gingles, supra. In
Hays, the district court viewed that holding as negating the
State's claim that it had a compelling interest in creating the
additional majority-minority district in order to comply with
Section 2. See 94-558 J.S. App. 8a n.4. In this case, the dis-
trict court viewed its corresponding holding as negating the
State's claim that the creation of the additional majority
minority district was narrowly tailored. See App., infra, 80a.
The difference between the holdings does not appear to be a
significant one.

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19

diction and entertain full briefing and argument in
both cases. The questions presented in both cases,
however, are important ones and warrant expeditious
resolution by this Court. If districting plans are ulti-
mately overturned in either State, it is important that
the state legislatures have adequate time to formulate
new plans in time for the 1996 electoral cycle. We
have already filed a jurisdictional statement asking
that this Court grant plenary consideration to the
appeal in Hays, and it appears that Hays will be ripe
for the Court's consideration before this case. There-
fore, unless the Court believes that the issues are
framed more squarely or otherwise presented in a
clearer light in this case, it would be appropriate for
the Court to note probable jurisdiction and resolve
Hays after full briefing and argument on the merits,
and to hold this case pending the Court's disposition
of Hays.
In our view, the key questions in both cases concern
the relevance of legislative intent, the determination
of when a district may be said to be so bizarre on its
face that strict scrutiny is required, and the applica-
tion of the strict scrutiny standard.  Those questions
are squarely presented in both cases.  Although the 
district courts in each case adopted somewhat differ-
ent rationales, those rationales-along with the ra-
tionales of the other courts that have addressed the 
application of Shaw-can be tested equally well
against the facts of either case.

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         20

       CONCLUSION

The Court should hold this appeal pending its deci-
sion in United States v. Hays, No. 94-558, and should
subsequently dispose of this appeal as appropriate in
light of its decision in that case.
Respectfully submitted.

DREW S. DAYS, III
Solicitor General

DEVAL L. PATRICK
Assistant Attorney General

PAUL BENDER
Deputy Solicitor General

JAMES A. FELDMAN
Assistant to the Solicitor General

STEVEN H. ROSENBAUM
MIRIAM R. EISENSTEIN
Attorneys

NOVEMBER 1994

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    APPENDIX A

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
  SAVANNAH DIVISION

    Civil Action No. 194-008

DAVIDA JOHNSON; PAM BURKE; HENRY ZITTROUER;
GEORGE DELOACH; and GEORGE SEATON, PLAINTIFFS

         v.

ZELL MILLER, ET AL., DEFENDANTS

      and

LUCIOUS ABRAMS, JR., ET AL.,
INTERVENOR-DEFENDANTS

     and

UNITED STATES OF AMERICA,
INTERVENOR-DEFENDANTS

MEMORANDUM OPINION
  AND ORDER

Before Edmondson, Circuit Judge; Edenfield,
District Judge; Bowen, District Judge.

PER CURIAM:

Plaintiffs challenge the constitutionality of Geor-
gia's Eleventh Congressional District and seek
junction against its further use in congressional elec-

(la)

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2a

tions. Because we find that the district violates the
Equal Protection Clause of the Fourteenth Amend-
ment to the United States Constitution, we grant
Plaintiffs' request for injunctive relief and will im-
pose a revised plan in keeping with this Memoran-
dum and Order. 

INTRODUCTION

In 1993, the Supreme Court recognized a citizen's
right under the Equal Protection Clause to challenge
a strangely shaped voting district as an impermissible
racial gerrymander. See Shaw v. Reno, 113 S. Ct.
2826 (1993 ). The way was thus cleared for constitu-
tional claims against congressional voting districts in
North Carolina, Louisiana, Texas, Florida, and now
Georgia.
Southern states have proved fertile grounds for
Shaw claims, as many of their legislatures labor
under the long shadow of the Voting Rights Act of
1965: By that law, certain states or political sub-
divisions are prohibited from enforcing "any voting
qualification or prerequisite to voting, or standard,
practice, or procedure with respect to voting" unless
they (1) obtain a declaratory judgment from the
District Court for the District of Columbia that such
change "does not have the purpose and will not have
the effect of denying or abridging the right to vote
on account of race or color," or (2) have submitted
the proposed change to the Attorney General and
the Attorney General has precleaned it. 42 U.S.C.
1973. (1993). This procedure applies to redis-
tricting plans, 28 C.F.R. 51.13 (1993), and it is
intended to police those regions of the United States
that had, as of certain dates, maintained voting "tests
or devices" serving to disenfranchise minority voters.

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         3a

42 U.S.C. 1973b. Many Southern states were so
designated. See 28 C.F.R. 51 (at Appendix) (list-
ing, among other areas, Alabama, Georgia, Louisiana,
Mississippi, South Carolina, Texas, Virginia, and sec-
tions of North Carolina and Florida).
Consequently, many southern states seek preclear-
ance from the Department of Justice (hereinafter
sometimes referred to as "DOJ" ) before enacting
their proposed redistricting plans. Department regu-
lations require DOJ to decide "[w]hether the sub-
mitted change has the purpose or will have the effect
of denying or abridging the right to vote on account
of race, color, or membership in a language minority
group"; if the change may be so described, DOJ will
not preclear it. 28 C.F.R. 51.52. In making its
determination, DOJ is required to consider the follow-
ing "important background information":

(1) The extent to which minorities have been
denied an equal opportunity to participate mean-
ingfully in the political process in the jurisdic-
tion.
 (2) The extent to which minorities have been
denied an equal opportunity to influence elections
and the decisionmaking of elected officials in the
jurisdiction.
(3) The extent to which voting in the juris-
diction is racially polarized and political activities
are racially segregated.
(4) The extent to which the voter registration
and election participation of minority voters
have been adversely affected by present or past
discrimination.
Id. 51.58. It must also consider the following fac-
tors specific to the redistricting process:

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4a

(a) The extent to which malapportioned dis-
tricts deny or abridge the right to vote of minor-
ity citizens.
(b) The extent to which minority voting
strength is reduced by the proposed redistricting.
(c) The extent to which minority concentra-
tions are fragmented among different districts.
(d) The extent to which minorities are over-
concentrated in one or more districts.
(e) The extent to which available alternative
plans satisfying the jurisdiction's legitimate gov-
ernmental interests were considered.
(f) The extent to which the plan departs from
objective redistricting criteria set by the submit-
ting jurisdiction, ignores other relevant factors
such as compactness and contiguity, or displays
a configuration that inexplicably disregards
available natural or artificial boundaries.
(g) The extent to which the plan is incon-
sistent with the jurisdiction's stated redistricting
standards.

Id. 51.59.

This litany makes it fairly clear that, by instruc-
tion of the United States Congress, racial concerns
are DOJ'S overriding criterion for approving a re-
districting plan.
Shaw v. Reno holds that if a plaintiff shows that
racial concerns were the overriding criterion for
drafting a redistricting plan, leading to the creation
of dramatically irregular district boundaries, that
plan is unconstitutional, unless it survives constitu-
tionally strict scrutiny. See Shaw, 113 S. Ct. at 2826-
27.
 And therein lies the problem.

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         5a

       I. FACTS

Pursuant to the results of the 1980 Decennial
Census, the State of Georgia was entitled to ten seats
in the United States House of Representatives. Due
to population increases revealed by the 1990 Census,
that number increased to eleven. This change re-
quired the reformatting of Georgia's congressional
districts, a task begun by House and Senate reappor-
tionment 1 committees during the 1991 session of the
Georgia General Assembly. The task would prove far
more onerous than anticipated.
In order to clarify the drafting process, on Febru-
ary 28, 1991 both the House and Senate adopted re-
districting guidelines. See Joint Exh. 9, 10. Both
versions required public hearings, allowed for sub-
missions by "third parties" outside the Assembly, and
provided a list of drafting criteria: single-member
districts only, equality of population among districts,
contiguous geography, avoiding dilution of minority
voting strength, following precinct lines where pos-
sible, and compliance with sections 2 and 5 of the
Voting Rights Act (hereinafter sometimes referred
to as "VRA" ) 42 U.S.C. 1973, et seq. Once these
requirements were met, drafters could consider main-
taining the integrity of political subdivisions, preserv-
ing the core of existing districts, and avoiding con-
tests between incumbents.
While the House and Senate surely considered these
criteria a realistic tool for drafting reasonable voting

___________________(footnotes)

1 Technically, "reapportionment" refers to the allocation of
representatives among previously established voting areas,
while "redistricting" refers to the reformulation of boundaries
for those voting areas. We use the words interchangeably,
however, since the legislature, case law, and parties' attorneys
do SO.

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6a

districts, and while many of their members were
veterans of past redistricting wars, the legislators
could not have known what the DOJ would require
by way of compliance with sections 2 and 5 of the
VRA.

A. The Preclearance Process

1. The Max-Black Plan

One of the "third party" redistricting proposals
submitted to the legislature in 1991 would later earn
the ominous moniker, "the max-black plan." That
plan, created by Ms. Kathleen Wilde, then an attor-
ney with the American Civil Liberties Union
( "ACLU") and in her capacity as advocate for the
Black Caucus of the Georgia General Assembly, pro-
vided for three "majority-minority" congressional
districts % in Georgia: the Second, Fifth and Elev-
enth. Tr. IV, at 70-72, 93; Joint Exh. 4 (version of
max-black plan proposed by Reps. Cynthia McKinney
and Tyrone Brooks). In contrast, the then existing
congressional plan had only one majority-minority
district: the Fifth. Joint Exh. 15.
Ms. Wilde's drive to create three majority-minority
districts came, predictably enough, from her clients,
including Rep. Tyrone Brooks. Brooks made several
illuminating statements during the redistricting de-
bate on the floor of the Georgia House:

This plan [the first redistricting proposal to be
submitted to DOJ by the General Assembly] does
not come close to the criteria outlined by the
Attorney General last summer, when he specifi-

___________________(footnotes)

2 That is, a district in which a majority of the population
is black.

--------------------------------------- Page Break ----------------------------------------
        
 7a

cally told the states covered by the Act that
wherever possible, you must draw majority black
districts, wherever possible.
  . . . Obviously, it's possible to draw three;
those of us who have been working on the max
plan for over a year have really not been con-
cerned about anything other than maximizing
our voting strength.
  We've not been really concerned about terri-
tory; we've not been concerned about voter regis-
tration numbers, we've been concerned about
population, and black voting age population.
When you start playing games with lines and
numbers on voter registration and-all of these
other things that really don't matter, you are
just simply wasting time.

Pltf. Exh. 132, at 40. Ms. Wilde claimed that her
purpose "was to draw as many districts as possible
consistent with equal opportunity for black citizens
in Georgia." Tr. IV, at 71. That is, her plan at-
tempted to secure proportional representation for the
black population. Id. at 72. However, despite Ms.
Wilde's vague answers to this query at trial, id. at
73-74, it is clear that the max-black plan accounted
for virtually all major concentrations of black popu-
lation in Georgia. Compare DOJ Exh. 1-3 with Joint
Exh. 4. Ms. Linda Meggers, Director of Reapportion-
ment Services for the Georgia General Assembly and
probably the single most knowledgeable person avail-
able on the subject of Georgian redistricting, testi-
fied that, without including the heavy black popula-
tions present in metropolitan areas, achieving the
percentages needed for a majority-minority district
was impossible. Tr. I, at 97-98. Ms. Wilde accounted

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8a

for all such metropolitan populations, including At-
lanta, Augusta, Macon and Savannah. Her proffered
restraint in not seeking "over-proportional" black
representation was disingenuous; a fourth majority-
minority district, of equal population to the other
ten congressional districts, was probably impossible
to create.

The max-black plan further maximized black vot-
ing strength by pushing the percentage of black
voters within its majority-black districts "as high as
possible." Tr. IV, at 72-73 (testimony of Ms. Wilde).
Indeed, race was "certainly an overriding factor,"
id. at 81, 97, in designing Ms. Wilde's district bound-
aries, as she believed was required by the Voting
Rights Act and Thornburg v. Gingles, 478 U.S. 20
(1986), Significantly, she also thought that the
proper measure of "compactness," a venerable dis-
tricting consideration directly relevant to the result-
ing shape of voting districts, was a "functional"
measure, not one grounded in geographical assess-
ments. Tr. IV, at 79. That is, while geography was
a "component" of compactness, the more important
element was whether people were "able to know what
district they're in, know who their representative is
and be able to have that person represent them."
Id. Ms. Wilde agreed "[t] o some degree" with Rep.
Brooks, who told the Georgia House:

So those of us who are promoting the max plan
are drawing the lines sometimes in funny ways
to cut us in, because we've never really been
fully in.
So simply as I say to you today to adopt the
max-black congressional plan, I say to you it's

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9a

not really the appearance of the district; it's the
content of the district.

Id. at 95; Pltf. Exh. 132, at 43.

Ms. Wilde testified that she submitted her max-
black plan to DOJ several times during the redistrict-
ing process. We now turn to the connection between
that plan and the one ultimately approved by the
Department of Justice.

2. ACLU Advocacy and DOJ Preclearance
Requirements

The Court realizes that the motivations of the
State of Georgia are the legally relevant motivations
in this case, and not those of the ACLU or the DOJ.
We consider the behavior of the latter parties, how-
ever, because it is inextricably linked to the redis-
tricting decisions of the General Assembly. The ac-
tions of the legislature have much less significance
when removed from their context.

a. ACLU-DOJ Cooperation

During the redistricting process, Ms. Wilde was in
constant contact with both Keith Borders and Thomas
Armstrong, the DOJ line attorneys overseeing pre-
clearance of Georgia's redistricting efforts. See Tr.
IV, at 39, 231. There were countless communica-
tions, including notes, maps, and charts, by phone,
mail and facsimile, between Wilde and the DOJ
team; those transactions signified close cooperation
between Wilde and DOJ during the preclearance
process. The Court was presented with a sampling
of these communiques, and we find them disturbing.

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10a

It is obvious from a review of the materials that
Ms. Wilde's relationship with the DOJ Voting Sec-
tion was informal and familiar; the dynamics were
that of peers working together, not of an advocate
submitting proposals to higher authorities. See, e.g.,
Pltf. Exh. 57H, 571. DOJ was more accessible-and
amenable-to the opinions of the ACLU than to those
of the Attorney General of the State of Georgia.
See Pltf. Exh. 52, 54, 57, 57A-M, 165; Tr. V, at
3-4. It is clear from our proceedings that Ms. Wilde
discussed with DOJ lawyers the smallest details of
her plan, constantly sending revisions, updates, and
data throughout the period from October, 1991 to
April, 1992-; she occasionally sent documents to DOJ
lawyers "per your request." Ms. Wilde worked with
DOJ in other ways: During the reapportionment
process for Georgia's House districts, DOJ attorney
Nancy Sardison told Mark Cohen, the Senior Assist-
ant Attorney General for Georgia, to meet with Ms.    I
Wilde to revise a majority-black House district. Mr.
Cohen had presumptuously thought the district satis-
factory, but was dutifully informed by Ms. Sardison
that Ms. Wilde was "still having some problems with
it." Tr. V, at 3.
Contrary to Mr. Armstrong's claims at trial, the
max-black proposal was not merely "one of the alter-
natives [DOJ] considered," and Ms. Wilde was not
simply one of various advocates. Her work was of
particular importance to DOJ lawyers, whose cri-
teria for and opinions of Georgia's submissions were
greatly influenced by Ms. Wilde and her agenda.
Alas, it is true that none of the DOJ attorneys,
testifying at trial admitted to the influence of Ms.
Wilde and her max-black plan on their preclearance
deliberations. This Court finds it distressing that

---------------------------------------- Page Break ----------------------------------------

11a

Messrs. Borders  and Armstrong lacked any signifi-
cant memory of important elements of the 1991-92
preclearance saga.  Both of them-especially Mr.
Borders -intimately involved with the redistricting
for months, just "don't recall" basic details of either
important meetings or the preclearance process. See,
e.g., Tr. IV, at 8-51; 145-150. Those in far more
peripheral roles had no great difficulty remembering
the events central to our inquiry.' Frankly, based
on the factual record and trial testimony, the Court
finds Borders' and Armstrong's professed amnesia
less than credible. Luckily, the surrounding evidence
speaks quite clearly.
Beyond the working relationship noted above, evi-
dence of the link between Ms. Wilde and DOJ'S pre-
clearance requirements is provided by simply com-
paring the max-black plan with DOJ'S demands of
the General Assembly. While DOJ'S policy of minor-
ity vote maximization had been in force before the
1991-92 preclearance process,' the effect of Ms.

___________________(footnotes)

3 The Court finds it particularly difficult to believe that
Borders simply "doesn't remember" why the Voting Section
would have told the General Assembly to extend the Eleventh
District all the way down to Chatham County.
4 Tr. 111, at 24-26 (testimony of Assistant Attorney General
for Civil Rights John Dunne). Mr. Armstrong himself testi-
fied that:
what we did and what I did specifically was to take a
Clorapleth [sic] map of the State of Georgia shaded for
race, shaded by minority concentration, and overlay the
districts that were drawn by the State of Georgia and
see how well those lines adequately reflected black voting
strength.
Tr. IV, at 135. This is, essentially, a search for maximization
by the crudest means.

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12a

Wilde's efforts on Georgia's redistricting fortunes
is evident on the face of the precleaned plan. Before
comparing that plan to the max-black proposal, we
first review the stages of Georgia's quest for DOJ
approval.

b. Round One

After a special session beginning in late August,
1991, the General Assembly submitted a congres-
sional redistricting plan for preclearance on October
1 of that year. The plan, Joint Exhibit 3, contained
two majority-minority districts, the Fifth and Elev-
enth, and a third district, the Second, where blacks
comprised an influential but submajority percentage
of the voting age public.5 See Pltf. Exh. 1, at 8-10.
This plan, like most redistricting efforts, was the
culmination of committee meetings, public hearings,
examination of various districting proposals, and
many hours spent with an extremely sophisticated
computer.' Rep. Robert Hanner, Chairman of the

(TABLE/CHART OMITTED)

6 Ms. Meggers provided the Court with an enlightening
demonstration of state-of-the-art redistricting on her com-
puter, "Herschel." Only Georgians truly understand the depth
of respect that is accorded to this equipment by such an
appellation. When fed geographic and demographic data
(including black voting age population data), it allows the
user to map voting districts at the census bloc level with the
greatest of ease.

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13a

Georgia House reapportionment committee, and Sen-
ator Eugene Walker, Chairman of the Georgia Sen-
ate reapportionment committee, worked closely with
Linda Meggers to hammer out Georgia's first sub-
mission. Neither Ms. Meggers, a central figure in
construction of all Georgia districting plans sub-
mitted to DOJ, nor Senator Wayne Garner, the Ma-
jority Leader of the State Senate during the reappor-
tionment process, found any evidence of acts or state-
ments by Rep. Hanner, Senator Walker, or other
legislators indicating an intent to discriminate
against minority voters. The Court finds no evidence
prompting us to doubt that conclusion.'

___________________(footnotes)

7 The Court has reviewed correspondence from Rep. Cynthia
McKinney to John Dunne accusing the Georgia House reap-
portionment committee of ignoring the Brooks-McKinney
max-black House redistricting proposal and only reluctantly
allotting computer time to Rep. McKinney's redistricting ef-
forts. Pltf. Exh. 51. Comment letters from the ACLU echo
these accusations. Pltf. Exh. 52. Neither the State Defend-
ants nor the Interveners, however, have presented any further
evidence or testimony corroborating Rep. McKinney's claims.
Rep. Brooks made no mention of them during his testimony.
We also note that he had no difficulty touting the max-black
proposal on the floor of the House from the very beginning
of the process. See, e.g., Pltf. Exh. 130, 132. The Georgia
Senate was equally amenable to Senator Sanford Bishop's
advocacy for three majority-black districts. Pltf. Exh. 131.
See also Pltf. Exh. 140 (comments of then-Senator Bishop,
now a member of the United States House of Representatives,
at Georgia House Congressional Committee meeting).
The statements of the Speaker of the House, the Chairper-
sons of the House and Senate committees, and Linda Meggers
all reveal a legislature driven to satisfy the demands of DOJ,
and contain no indication of efforts to suppress the black
vote. Thomas Armstrong could not recall seeing any evidence
of discriminatory motives on the part of the Georgia legisla-
ture. Tr. IV, at 145-50.

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14a

The first submitted plan did not garner universal
support within the General Assembly; a version of
the max-black plan had been proposed in the Georgia
House, but could not attract enough votes for stretch-
ing the new Eleventh District to Savannah. Tr. III,
at 248-50; Pltf. Exh. 6A-B. More importantly, the
plan garnered no support from DOJ, which rejected
it by letter dated January 21, 1992, Pltf. Exh. 2.
In that letter, John Dunne, then Assistant Attor-
ney General for Civil Rights, noted a `(concern" that
the Georgia legislative leadership had decided to "lim-
it" black voting potential to two majority-minority
districts. Throughout the preclearance process, from
this first objection letter to the final submission, DOJ
relied on versions of the max-black plan to argue
that three majority-minority districts could indeed
be squeezed out of the Georgia countryside. Tr. IV,
at 115 (testimony of T. Armstrong). Ms. Wilde's
triumph of demographic manipulation became DOJ'S
guiding light. Though DOJ denied that the max-
black plan was the "benchmark" against which 
Georgia's efforts were compared, its role as such
soon became obvious to the General Assembly, and is
now obvious to this Court.
Mr. Dunne also observed that, while the submitted
plan properly utilized black voting potential in At-
lanta and east-central Georgia, it did not "recognize"
concentrations of minorities in the south-west region
of the state. He then assured Mark Cohen that
."[s] ection 5 considerations certainly do not dictate
that the state adopt any particular configuration,"
but went on to "note" the "exclusion" from the Elev-
enth District of black populations in adjacent Bald-
win County. Pltf. Exh. 2.

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        15a

Mr. Dunne ultimately found himself unable to con-
clude that the Eleventh District, 60.63% black, with
a black voting age population of 56.61%, and using
nearly unpopulated land bridges to rope in black
concentrations in Dekalb and Richmond Counties,
satisfied the requirements of the Voting Rights Act.
Apparently finding that this district-and the plan
generally- "ha[d] the purpose or will have the effect
of denying or abridging the right to vote on account
of race," Mr. Dunne refused to preclear the sub-
mitted plan. Id.
  
c. Round Two

No one in the General Assembly doubted that any
revised submission must include the changes "sug-
gested by DOJ.  Though counsel for the United 
States objected to Plaintiffs' "characterization that
the Justice Department "suggested" things, " Tr. IV,
at 120, it is disingenuous to submit that DOJ'S ob-
jections were anything less than implicit commands.
No one in the General Assembly-including the
Black Caucus-thought so, and DOJ lawyers did
nothing to dissuade legislators of that notion. 8
A few prescient souls were already convinced that
any successful Georgia submission would have to
"have the highest percentage of black population that
we could get, irregardless [sic] of where we have to

___________________(footnotes)

8  In order to further improve the chances of preclearance,
Georgia legislators and staff met with DOJ officials in Wash-
ington on at least one occasion. At one such meeting, after
the first DOJ rejection and while the second submission was
pending, the legislators were informed that their economic and
political rationales for the proposed districts were "pre-
textual," and told to subordinate their economic and political
concerns to the quest for racial percentages.

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16a

go." Tr. III, at 210. Senator Garner was convinced
that, though "distasteful," "to get a plan passed [sic]
the Justice Department and get us out of here and
on to these elections, that district is going to have to
go to Savannah." Id. Having convinced the State
Senate of this political reality, that body passed a
plan extending the Eleventh District to Chatham
County. Id. at 211-12; DOJ Exh. 76. The House,
however, refusing to tack Savannah to the Eleventh
until DOJ forced them to do it, did not pass the
Senate bill. Tr. III, at 213, 250. The final version,
submitted on March 3, 1992, did not contain the
Savannah extension. DOJ Exh. 76.
It did, however, contain a Second District in which
black voting strength had been increased to 45.01%,
and a Fifth and Eleventh District where blacks com-
prised close to 60% of the voting age population?
Pltf. Exh. 3A. In the Eleventh, faithful to DOJ'S
first objection letter, the General Assembly split
Baldwin County to "recognize" the black populations
that had previously been "excluded" from that dis-
trict. Many black representatives voted for the plan,
more in the Senate than in the House. Pltf. Exh.
6A-B.
Predictably, DOJ rejected the plan, since, after all,
someone-here the Senate relying on versions of the
max-black proposal-had come up with a scheme for

(TABLE/CHART OMITTED)

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17a

packing even more minority voting strength into the
Second, Fifth and Eleventh Districts. And so, despite
the fact that the second submission addressed the
criticisms levelled at the first, DOJ sent the plan back
to the General Assembly yet again, and this time
with new demands.
Since it was geographically possible to extend the
Eleventh District to Savannah, Mr. Dunne, by letter
dated March 20, 1992, made it a requirement for
preclearance:

[T]he submitted plan minimizes the electoral
potential of large concentrations of black popu-
lation in several areas of the state. Specifically,
we note that alternatives, including one adopted
by the Senate, included a large number of black
voters from Screven, Effingham and Chatham
Counties in the llth Congressional District.
However, due to unyielding efforts on behalf of
House members, this configuration was aban-
doned and no legitimate reason has been sug-
gested to explain the exclusion of the second
largest concentration of blacks in the state from
a majority black Congressional District.

Pltf. Exh. 4, at 3. The first rejection letter never
mentioned this extension to Screven, Effingham and
Chatham  Counties.10
Mr. Dunne then noted that "[a]lthough the sub-
mitted plan has increased the black percentage in
the 2d Congressional District, it continues the exclu-

___________________(footnotes)

10 DOJ attorneys had suggested an extension to Chatham
County during a meeting in Washington after receipt of the
first objection letter and submission of Georgia's second plan.
Tr. V, at 10-14 (testimony of Mark Cohen).  See also Tr. IV,
 at 192 (testimony of Lt. Gov. Pierre Howard).

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18a

sion of large black population concentrations in areas
such as Meriwether, Houston, and Bibb Counties
from this district." Id. Of course, DOJ was aware
that the only way to transfer the dense black popula-
tion of Bibb County from the Eleventh District to the
Second District and still maintain the Eleventh as a
majority-minority district was to extend the Eleventh
to Savannah, where dense black populations in that
city would make up for the loss of black voters in
Bibb County. Georgia Attorney General Michael
Bowers made the observation himself in the second
plan submitted to DOJ. Attorney General Bowers
also explained why the state had declined to follow
that course:

The reason the General Assembly chose not to
adopt a configuration for the 2nd District which
would have altered the llth District in this fash-
ion is two-fold. First, if the 1lth District ex-
tends from the Atlanta area in DeKalb County
into the metropolitan areas of Richmond, Bibb,
and Chatham Counties, a candidate to be success-
ful will have to run in four major media mar-
kets in Georgia. This would likely present a sig-
nificant problem for any minority candidate in
the llth District, as recognized even by the pro-
ponents of the "Brooks-McKinney" [max-black]
plan . . . . 

Second, it is clear that even if the population
percentage is increased several more points in
the 2nd District . . . the 2nd District will still
be no more than an influence district for minor-
ity voters. Black voter registration in this area
has been historically low. . . . In addition, the
extension of the 2nd District into Bibb County

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19a

and the corresponding extension of the llth Dis-
trict into Chatham County, with all of the nec-
essary attendant changes, violate all reasonable
standards of compactness and contiguity.

Pltf. Exh. 3A, at 8.

The Macon/Savannah "trade" was the linchpin
of Ms. Wilde's max-black plan and all the versions
of it submitted to the Assembly; Ms. Wilde had been
marketing it since at least October 15, 1991, describ-
ing the switch to DOJ as the "key to drawing a third
black district." Pltf. Exh. 57 (facsimile from Ms.
Wilde to Sheila Delaney, DOJ Voting Section). It
was the centerpiece of her advocacy for the General
Assembly Black Caucus:

MR. PARKS: The advocacy that you met [sic]
with the Department of Justice was to move
Bibb County-the black population of Bibb
County to the Second?
MS. WILDE: That's right.
MR. PARKS: And replace them by dropping
the Eleventh all the way down to Savannah?
MS. WILDE: That's correct.
MR. PARKS: And excise out of Savannah
black population?
MS. WILDE: I took majority black precincts
in Savannah and put them in my district, which
is how you draw a majority black district.
MR. PARKS: And intentionally excluded white
population?
MS. `WILDE: Again, I did that because that is
how you draw a majority black district.

Tr. IV, at 83. See also id. at 82.

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         20a

It is from Ms. Wilde's plan and its progeny that
DOJ lifted the concept for its own objection letters.
It "was the evidence relied upon for the three minor-
ity district proposition. " Tr. IV, at 115 (testimony
of T. Armstrong). Armstrong refused to admit that
Mr. Dunne's second objection letter was beholden to
the max-black plan, observing that Ms. Wilde's plan
was but one of many alternatives presented to DOJ.
Id. at 116. The Court notes, however, that the neces-
sary kernel of a viable three-district plan-the Macon/
Savannah trade originated with Ms. Wilde. Her
plan was permised upon it, and was the foundation
of the first three-district plan proposed in the Gen-
eral Assembly. Other plans presenting three major-
ity-black districts were in turn based on that ore.
Any such proposal reviewed by DOJ switched Macon
from the Eleventh to the Second District and drew
Savannah into the Eleventh, and it owed that crucial
element to Ms. Wilde's original version.
  
d. Round Three

It was now clear to the General Assembly that
preclearance would not be forthcoming without adopt-
ing this raison d'etre of the max-black proposals.11

___________________(footnotes)

11 We note that the State of Georgia did not choose to seek
a declaratory judgment from the D.C. District Court when it
became obvious that DOJ would accept nothing less than
abject surrender to its maximization agenda. Mark Cohen
testified that since the circumstances of the 1991-92 redis-
tricting were similar to those of 1981-82, such an effort would
have been unsuccessful. In the 1981-82 process, Georgia
sought a declaratory judgment that the state had gone far
enough in strengthening black voting power, and was not
required to ratchet up the black voting age population of the
5th Congressional District to 65%. As here, the Georgia
Senate had passed a plan acquiescing to DOJ'S demands, and

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21a

This goal dominated the creation of the third Georgia
submission. Linda Meggers admitted that, when
drafting the proposal, the max-black plan was her
"benchmark," Tr. I, at 65, and that she "fine tuned"
the plan to "get to those numbers." Id. at 102.
The result of these efforts was a congressional dis-
tricting plan with three majority-minority districts:
the Second, with 52.33%  black voting age population,
the Fifth, with 57.47%, and the Eleventh, with
60.36%.12 The plan passed by one vote-Speaker
Thomas Murphy "held [his] nose and shut [his]
eyes and put one elbow in one ear and voted for it
and passed it to get something to keep the courts
from doing it." Dep. of Spkr. Murphy, at 31. Ms.
Meggers came as close as she could to copying the
max-black percentages. She was prevented from ex-
act duplication by the need to construct eight other

___________________(footnotes)

the House had refused to endorse it. The D.C. court held
that Georgia had failed to satisfy the requirements of section
5. See Busbee v. Smith, 549 F. Supp. 494 (D.D.C. 1982),
aff'd, 459 U.S. 1166 (1983).
Mr. Cohen's conclusion was buttressed by Sandra Coleman,
Deputy Chief of the DOJ Voting Section, who noted these
similarities during the second meeting between Georgia and
DOJ officials in Washington, D.C. Add to this the cost of
litigating in D.C. and the time pressures on the Assembly,
and it becomes clear that a declaratory judgment action was
not likely.

12 The relevant data for districts 2, 5, and 11 of the third
proposed plan follows:

(TABLE/CHART OMITTED)

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22a

districts around the majority-minority districts, and
her efforts to "clean up" the max-black plan to mini-
mize the number of split counties. Compare Joint
Exh. 1 with Joint Exh. 4. Ms. Wilde herself thought
that Georgia's third plan was a fairly successful rec-
reation of her proposal:
MR. PARKS: [T]he result was the creation of
three minority districts that achieved the per-
centage benchmarks that the Max Black plan
advocated ?
MS. WILDE: Yes, that's what the State of
Georgia decided to draw.

Tr. IV, at 100. Rep. Brooks agreed. See Tr. IV, at
229.
The latest redistricting plan bore all the signs of
DOJ'S involvement: The black population of Meri-
wether County was gouged out of the Third District
and attached to the Second District by the narrowest
of land bridges; Effingham and Chatham Counties
were split to make way for the Savannah extension,
which itself split the City of Savannah; and the plan
as a whole split 26 counties, 23 more than the existing
congressional districts. Joint Exh. 1. The dense pop-
ulation centers of the approved Eleventh District
were all majority-black, all at the periphery of the
district, and in the case of Atlanta, Augusta and
Savannah, all tied to a sparsely populated rural
core by even less populated land bridges. 13   Extending
from Atlanta to the Atlantic, the Eleventh covered
6,784.2 square miles, splitting eight counties and five
municipalities along the way.

---------------------------------------- Page Break ----------------------------------------

13 We further explore the characteristics of the Eleventh
District in our discussion of strict scrutiny, infra.

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23a

DOJ precleaned the plan, which was hand delivered
to DOJ by Mark Cohen. During his visit, Keith
Borders opined that even this plan did not go far
enough, voicing objections that Ms. Wilde and Rep.
Brooks were even then faxing to the Voting Section.
On April 2, 1992, however, Mr. Cohen was finally
able to leave Washington with a letter of preclearance
from Mr. Dunne. Pltf. Exh. 6.

B. The Ramifications of DOJ Involvement

1. DOJ Methods
    
a. The Use of Informants

During our hearings it became clear that the De-
partment of Justice had cultivated a number of parti-
san "informants" within the ranks of the Georgia
legislature, including at least one State Senator-a
congressional candidate no less-and an aide to Lieu-
tenant Governor Howard. See Response Of United
States To Plaintiffs' Statement Concerning Confiden-
tial Informants, July 7, 1994. DOJ regularly received
from them information on the General Assembly's
redistricting sessions. DOJ apparently read federal

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24a

Here, "whistleblowers" became "secret agents." They
reported to DOJ throughout the section 5 review proc-
ess. DOJ used that information even to question the
integrity of State legislators who could not know
their accusers.
Keith Borders testified that "allegations are brought
to our attention and then we go back and ask individ-
uals about those allegations." Tr. IV, at 9. One of
DOJ'S informants informed Mr. Borders that State
Senator Eugene Walker was a "quintessential Uncle
Tom," and "the worst friend of blacks in Georgia."
Tr. IV, at 27. During the first meeting between a
Georgia delegation and Voting Section lawyers, there
was a confrontation involving Borders and Walker,
although Borders "doesn't recall" whether he chal-
lenged Senator Walker with those unattributable
comments. However, either these anonymous "allega-
tions" or some other suggestion so offended Senator
Walker that he refused to attend further meetings
with DOJ staff.
DOJ'S agents provided an irrebuttable source of
intelligence of which the General Assembly was com-
pletely unaware. We find this practice disturbing.

   b. The Use of Alternative Plans

Thomas Armstrong testified that DOJ used alterna-
tive plans submitted by special interests as means
with which to question the configuration of Georgia's
submitted plans, i.e., if an alternative proposal had
found some clever means of further boosting African-
American voting strength in Georgia, why hadn't the
Assembly adopted it? See, e.g., Tr. IV, at 140-41.
For DOJ, if these alternative plans had discovered
heretofore untapped wells of racial voting power ab-
sent from the submitted plan, the inescapable conclu-

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25a

sion was that the State's proffered reasons for the
submitted configurations were "pretextual" ones.
There is a problem with this position: It appar-
ently did not occur to DOJ that increased "recogni-
tion" of minority voting strength, while perhaps ad-
mirable, is properly tempered with other districting
considerations. The ACLU and Reps. Brooks and
McKinney were concerned only with racial percent-
ages. They could afford such a narrow focus. The
General Assembly leadership was concerned with
passing redistricting legislation affecting all Geor-
gians, and contended with numerous factors racial,
political, economic, and personal. As the lawmaking
body for the entire state, the General Assembly could
not afford such a narrow focus. Consequently, its sub-
missions reflected many influences, and the ACLU's
reflected only race. Of course DOJ could then com-
pare Georgia's plans to the max-black plan and find
the latter a more effective means of magnifying the
minority vote. The max-black plan reflected nothing
but its drafters' concerns: race and technical con-
tiguity. DOJ'S mistake was in assuming that Geor-
gia's plan must be so conceived. As one legislator
quipped:

[1] t's very difficult, it seems, to get them to
realize that maybe there's a little bit more to re-
apportionment than black and white or minority
areas; that there should be some alignment be-
tween the areas so they can work together for
the next ten years.

Pltf. Exh. 143. Difficult indeed.

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26a

2. ACLU Involvement

It is unclear whether DOJ'S maximization policy
was driven more by Ms. Wilde's advocacy or DOJ'S
own misguided reading of the Voting Rights Act.
This much, however, is clear: the close working rela-
tionship between Ms. Wilde and the Voting Section,
the repetition of Ms. Wilde's ideas in Mr. Dunne's
objection letters, and the slow convergence of size
and shape between the max-black plan and the plan
DOJ finally precleaned, bespeak a direct link between
the max-black plan formulated by the ACLU and the
preclearance requirements imposed by DOJ.
Succinctly put, the considerable influence of ACLU
advocacy on the voting rights decisions of the United
States Attorney General is an embarrassment. A
poignant example: in a notable faux pas, DOJ'S
second objection letter arrived at the Office of the
Attorney General of Georgia only after members of
the Georgia Black Caucus were already discussing it
with the press. DOJ had notified the ACLU of its
impending objection; the ACLU then notified the
Black Caucus. This unfortunate spate of gossip cre-
ated the impression that the ACLU and the Black
Caucus wielded significant influence with DOJ'S
Civil Rights Division and significant control over
Georgia's redistricting efforts. The State's leaders
were understandably nonplussed. The ACLU was
exuberant. Georgia officials and citizens were mysti-
fied.
 We are simply troubled by the result. It is sur-
prising that the Department of Justice was so blind
to this impropriety, especially in a role as sensitive
as that of preserving the fundamental right to vote.
That right is vital to citizens of a democracy, and

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27a

of poignant importance to African-Americans. For
many blacks Jim Crow is living memory,14 and the
presence of black luminaries and ordinary citizens at
our hearings is a testament to their concern. This
Court does not underestimate the emotional invest-
ment in our decision of blacks still resisting the
vestiges of racial discrimination, 15 and we have been
placed in the unenviable position of depriving black
citizens of a privilege the Justice Department never
had the right to grant: maximization of the black
vote, whatever the cost.

*    *    *

Elections were held under the new congressional
redistricting plan on November 4, 1992. Black can-
didates were elected to the United States Congress
from all three majority-minority districts. Cynthia
McKinney, running in the Eleventh, became Geor-
gia's first black congresswoman. On January 13,
1994, Plaintiffs filed this action.

___________________(footnotes)

14 See South Carolina v. Katzenbach, 383 U.S. 301, 310-15
(1965) for a review of modern state government efforts to
deny blacks the ability to vote.

15 We acknowledge in this regard the amicus contribution
of Judge A. Leon Higginbotham, Jr., Special Counsel to
the Congressional Black Caucus. Various of Judge Higgin-
botham's comments echoed those of ex-Labor Commissioner
Albert Scott, who testified to the remains of racial bigotry in
rural Georgia. Compare Amicus Brief at 16 (asserting that
Georgia Supreme Court Justice Robert Bentam won elections
in 1984 and 1990 "with a strategy of obscuring the fact that
he is black") with Tr. VI, at 79 (testifying that some white
political candidates use the tactic of specifically advertising
to rural voters that their opponents are black).

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28a

       II. LAW

A. Shaw v. Reno

Though initially daunting, the Supreme Court's
opinion in Shaw v. Reno, 113 S. Ct. 2816 (1993), is a
bit less than a riddle wrapped in an enigma. We
begin with some general observations, and then con-
tinue with an analysis of the Eleventh District.
The majority opinion in Shaw is premised on the
uncontroversial proposition that race-based redistrict-
ing should be treated like any other race-based legis-
lation. From there, the argument is straightforward:
(1) racial classifications, per the Fourteenth Amend-
ment, are "presumptively invalid, and can be upheld
only upon an extraordinary justification." Brown
v. Board of Education, 347 U.S. 483 (1954) ; (2)
in light of the Voting Rights Act, race is obviously
a valid consideration in redistricting, but a voting
district that is so beholden to racial concerns that
it is inexplicable on other grounds becomes, ipso
facto, a "racial classification;" (3) if a district may
be so described, it must have an "extraordinary jus-
tification," that is, it must survive constitutionally
strict scrutiny, in order to be upheld.
The above analysis begs the question: How to de-
termine if a district is so founded upon race that
it warrants constitutional notice? By examining the
shape of the district itself: if its contours are so
contorted as to permit no other conclusion than that
it was drawn along racial lines, the Supreme Court
says those lines are clear-if circumstantial-evi-
dence that the legislature "purposefully distin-
guish [cd] between voters on the basis of race."
Shaw, 113 S. Ct. at 2826. This analysis is made a bit
easier by the existence of defined and recognized

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29a

"traditional districting principles" that influence
nearly all redistricting efforts. The nonexclusive list
includes contiguity, compactness, protecting the in-
tegrity of political subdivisions, cognizance of "com-
munities of interest," negotiating geographic bar-
riers, and protecting incumbents. If the shape of the
district advertises "disregard" for these considera-
tions in favor of race-based line drawing, the dis-
trict is a racial classification and subject to strict
scrutiny. 16
There is an important, if subtle, distinction to
make here. Under Shaw, the shape of the district is
"objective" evidence of the legislature's intent in
drafting that district. Id. Discovering discriminatory
intent is necessary to a successful Equal Protection
claim. Washington v. Davis, 426 U.S. 229 (1976) ;
Mobile v. Bolden, 446 U.S. 55 (1980) (extending
requirement of "discriminatory purpose" to voting
rights cases ). The shape of the district is not a
"threshold" inquiry preceding an exploration of the
motives of the legislature. That is, the court does
not assess, on first principles, whether the district
looks "bizarre," and then, if it does, proceed to an
Equal Protection analysis. A determination that the

___________________(footnotes)

16 The Supreme Court takes a reverse tack in describing the
significance of traditional districting principles to a Shaw
claim:
We emphasize that these criteria are important not be-
cause they are constitutionally required-they are not, cf.
Gaffney v. Cummings, [412 U.S. 735, 752 n.18 (1973)]-
but because they are objective factors that may serve to
defeat a claim that a district has been gerrymandered on
racial lines.
Id. at 2827 (citation omitted).

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30a

district looks dramatically irregular is the beginning
of an Equal Protection analysis; the strange district
is the "smoking gun," revealing the racial intent
needed for an Equal Protection claim.
We take pains to clarify this point because some
have misinterpreted Justice O'Connor's observation
that "reapportionment is one area in which appear-
ances do matter." Shaw, 113 S. Ct. at 2827. Yes,
appearances do matter, but in two extremely par-
ticular ways: (1) as a proxy for direct evidence of
the legislature's intentions, and (2) as a harm ade-
quate to meet the constitutional criteria for standing
to sue. The former idea is not a wholly new one.
As the High Court notes, there are intellectual pre-
cursors to the Shaw opinion making it a logical
extension of past practice. See Shaw, 113 S. Ct. at
2825-26 (reviewing cases). See also Rogers v. Lodge,
458 U.S. 613 (1982) (deferring to district court
finding that sum of evidence supports inference that
voting scheme was maintained for discriminatory
purposes). The latter concept, however, is a bit of
an innovation.

1. Standing to Bring a Shaw Claim

In both Shaw and the instant case, the plaintiffs
suffered no individual harm; the 1992 congressional
redistricting plans had no adverse consequences for
these white voters. Under the Supreme Court's most
recent pronouncements, this lack of concrete, individ-
ual harm would deny them standing to sue. See, e.g.,
Lujan v. Defenders of Wildlife, 112 S. Ct. 2130,
2136 (1992 ). Shaw, however, implicitly recognizes a
different kind of harm, distinct from vote dilution
and sufficient to state a "cognizable" Equal Protec-
tion claim: "Classifying citizens by race, as we have

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31a

said, threatens special harms that are not present
in our vote dilution eases. It therefore warrants
different analysis." Shaw, 113 S. Ct. at 2828. Those
harms are systemic ones, rooted in social perception
of state-sanctioned racial classifications:

Justice Souter [in dissent] apparently believes
that racial gerrymandering is harmless unless it
dilutes a racial group's voting strength. . . . As
we have explained, however, reapportionment
legislation that cannot be understood as anything
other than an effort to classify and separate
voters by race injures voters in other ways. It
reinforces racial stereotypes and threatens to
undermine our system of representative democ-
racy by signaling to elected officials that they
represent a particular racial group rather than
their constituency as a whole. . . . Justice Souter
does not adequately explain why these harms
are not cognizable under the Fourteenth Amend-
ment.

Id. It is this distinct kind of damage that enables
the Court to distinguish Shaw from a group of white
plaintiffs' failed vote dilution claim in United Jewish
Organizations, et al. v. Carey, 430 U.S. 144 (1977)
(hereinafter "UJO" ); in that case, the districts
were regularly shaped. See id. at 167-68 (opinion
of White, J.). Slaw explicitly reserves any thoughts
on whether the deliberate creation of a majority-
minority district, "without more,''-meaning without
a dramatically irregular shape-gives rise to an
Equal Protection claim. Shaw, 113 S. Ct. at 2828. 17

___________________(footnotes)

17   The court in Shaw v. Hunt, No. 92-202-CIV-5-BR, at 43
(E.D.N.C. Aug,, 1, 1994), dealing with the Supreme Court's

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32a

Shaw v. Reno's expanded notion of harm liberalizes
the standing requirement. The Eastern District of
North Carolina, analogizing principally from Regents
of the Univ. of Calif. v. Bakke, 438 U.S. 265, 281
(1978), articulates the standing requirement for a
Shaw claim as a showing that a redistricting plan
has assigned a potential plaintiff to a district at least
in part because of her race. Shaw v. Hunt, No. 92-
202-CIV-5-BR, at 27 (E.D.N.C. Aug. 1, 1994). The
North Carolina court pursues an exhaustive discus-
sion of Shaw v. Reno's implications for the standing
requirement, and we do not repeat it here. We feel
that even that court's interpretation may not be as
expansive as Shaw v. Reno intended, but are content
to note that standing in this case is not in doubt:
Plaintiffs occupy a position virtually identical to those
___________________(footnotes)

remand, wonders about this reluctance, positing that perhaps
the Supreme Court sought to avoid overturning its decision in
UJO by stopping short of answering that question.
The distinction is more principled, however. The special
harm that is the crux of Shaw v. Reno, the offense to "princi-
ples of racial equality" generated by blatantly manipulated
voting districts, simply was not present in UJO, a case in-
volving vote dilution, not district appearance. The issue of
Equal Protection claims against normally shaped districts
was beyond the scope of the Shaw opinion. For our part, we
note that a compact majority-black voting district could not
be challenged as a racial "gerrymander"; if the district is suffi-
ciently compact, then presumably its drafters were able to
accumulate enough black voters without carefully picking
their way around white populations in search of black ones.
Without that kind of manipulation, there is no "gerrymander-
ing" to speak of-the state simply made a discrete voting
district out of a discrete community. The Shaw v. Reno
majority makes a similar point. See id. at 2826, 2828. See
also Wright v. Rockefeller, 376 U.S. 52, 53-58 (1964).

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33a

challenging North Carolina's congressional redistrict-
ing plan in Shaw v. Reno, and in that case standing
was not in doubt.

2. The Required Level of Racial Motivation in
Redistricting

There has been some debate over the necessary
prominence of race in legislative deliberations before
it can be found that the redistricting plan is "un-
explainable on grounds other than race," and thus
subject to strict scrutiny. There are three possible
solutions. Defendants in the instant case, along with
some district courts, argue that race must have been
the sole motivation behind a particular district shape
before strict scrutiny is appropriate. Defendants cite
language from Shaw in support: "[strict scrutiny is
applied if the plan] is so irrational on its face that
it can be understood only as an effort to segregate
voters . . . because of their race[.]" Shaw, 113 S. Ct.
at 2832. See also Bridgeport Coalition v. City of
Bridgeport, 1994 WL 247075 (2d Cir.) (finding that
a lower court order "did not transgress Shaw be-
cause it did not instruct the City Council to redistrict
solely cm racial grounds) (emphasis added) ;Dewitt
v. Wilson, 1994 WL 325415 (E.D.Cal. ) (stating, for
example, "Shaw held when districts are drawn in
such an extremely irregular fashion as to be unex-
plainable, other than being based solely on race, a
claim under the Equal Protection Clause for racial
gerrymandering can be stated.") (emphasis added).
A second school teaches that race need only have
been a recognizable factor-not the sole or dominant
one-before a redistricting plan is constitutionally
suspect. See Hays v. Louisiana, 839 F. Supp. 1188,
      
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34a

1202, 1214 (W.D. La. 1993) (majority opinion and
concurring opinion ) (hereinafter "Hays  I" ).
Shaw v. Hunt similarly holds that, in keeping with
prior Equal Protection precedents, districts should
be subject to strict scrutiny merely upon a showing
that the state's use of race was deliberate?' Shaw v.
Hunt, supra, at 35,40. This test

is necessarily met by proof that the plan's lines
were deliberately drawn so as to create one or
more districts in which a particular racial group
is a majority, even if factors other than race
are shown to have placed a significant role in the
precise location and shape of those districts.

Id. at 41. Specific intent is needed; the test is not
met by demonstrating merely that the legislature was
aware of a districting plan's racially discriminatory
impact. In order to avoid condemning to "constitu-
tional invalidity" all majority-minority voting dis-
tricts drawn pursuant to Voting Rights Act require-
ments, the court states that while this test will sub-
ject practically all majority-black districts to strict
scrutiny, the strict scrutiny standard should be ap-
plied "in a way that is sensitive not only to the state
legislatures' statutory obligation [to give effect to
minority voting potential under the VRA], but also
to the special compromises that they must make in
order to pass plans that draw such districts." Id. at
47.
There is an analytical problem with applying strict
scrutiny while remaining "sensitive" to the plight of

___________________(footnotes)

18  It is not completely clear exactly what test Shaw v. Hunt
espouses. The language of the opinion seems occasionally
contradictory. See Majority Opinion, supra, at 41.

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35a

  legislatures. Essentially, strict scrutiny tempered to
  accommodate legislative realities is not "strict scru-
  tiny;" it is some lower standard designed to accom-
  modate legislative realities. We feel that a better
  approach is to remove completely from constitutional
  suspicion those VRA-mandated redistricting plans
  that, as Plaintiffs say, "do it right." The proper
  interpretation of Shaw v. Reno's "race-based" re-
  quirement is that, in order to invoke strict scrutiny,
  it must be shown that race was the substantial or
  motivating 19 consideration in creation of the district
  in question. That term requires that the legislature
  (a) was consciously influenced by race, and (b) while
  other redistricting considerations may also have con-
  sciously influenced the district shape, race was the
  overriding, predominant force determining the lines
  of the district. If race, however deliberately used,
  was one factor among many of equal or greater
  significance to the drafters, the plan is not a racial
  gerrymander/racial classification subject to strict
  scrutiny.
   We arrive on this middle ground after considering
  fundamental aspects of Equal Protection jurispru-
  dence. After Washington v. Davis, intent is an in-
  dispensable element of successful discrimination claims
  under the Fourteenth Amendment. The plaintiff must
  show some discriminatory purpose impelling the legis-
  lature before strict scrutiny will be applied to the
  law in question. See 426 U.S. at 240. The Supreme
  Court has expounded on this intent requirement, hold-

___________________(footnotes)

   19  We intend "motivating" in the sense that race was the
   most prominent element driving the legislatures' planning,
   not in the sense of one motivation among others of equal
  strength propelling the process.

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36a

ing that the Fourteenth Amendment is violated when
race is a "substantial" or "motivating" factor in
legislative decisionmaking. See Arlington Heights v.
Metropolitan Housing, 429 U.S. 252, 265-66 (1977)
(clarifying Washington v. Davis); City Schl. Dist.
Bd. Of Educ. v. Doyle, 429 U.S. 274, 287 (1977)
(adding word "substantial"). Decisions such as
Arlington Heights are vital to properly reading Shaw
v. Reno:

Davis does not require a plaintiff to prove that
the challenged action rested solely on racially dis-
criminatory purposes. Rarely can it be said that
a legislature or administrative body operating
under a broad mandate made a decision moti-
vated solely by a single concern, or even that a
particular purpose was the "dominant" or "pri-
mary" one. . . . When there is a proof that a
discriminatory purpose has been a motivating
factor in the decision, . . . judicial deference is
no longer justified.

Arlington Heights, 429 U.S. at 265-66.

In the context of Equal Protection claims based on
voting districts, the VRA is the kind of "broad man-
date" intended by the Court under the Arlington
Heights standard. Further, the phrase "unexplain-
able on grounds other than race," which the Shaw v.
Reno majority frequently mentioned, is from the
Arlington Heights opinion: "Sometimes a clear pat-
tern, unexplainable on grounds other than race,
emerges from the effect of the state action even when
the governing legislation appears neutral on its face."
Arlington Heights, 429 U.S. at 266. See Shaw v.
Reno, 113 S. Ct. at 2825.

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37a

The intent requirement extends to voting cases,
e.g., Rogers v. Lodge, 458 U.S. 613 (1982), and
Shaw discusses certain voting precedents at length.
Shaw v. Reno, 113 S. Ct. at 2825-27 (reviewing Guinn
v. United States, 238 U.S. 347 (1915), Gomillion
v. Lightfoot, 364 U.S. 339 (1960), and Wright v.
Rockefeller, 376 U.S. 52 (1964)). These cases clarify
Shaw. For example, in Wright, minority plaintiffs
brought suit under the Fourteenth and Fifteenth
Amendments, claiming that several congressional dis-
tricts in New York City were "irrationally" shaped
and contrived to segregate voters on the basis of
race. Wright, 376 U.S. at 53. A three-judge panel,
presented with maps, statistics and other indirect evi-
dence, dismissed the complaint, finding that the plain-
tiffs had "failed to prove that the New York Legis-
lature was either motivated by racial considerations
or in fact drew the district on racial lines." Id.
at 56. The Supreme Court affirmed the dismissal,
observing that while "[i] t may be true . . . that
there was evidence which could have supported in-
ferences that racial considerations might have moved
the state legislature, . . . we agree [with the lower
court] that there also was evidence to support [a]
finding that the contrary inference was `equally, or
more, persuasive.' " Id. at 56-57. That is, the cir-
cumstantial evidence did not show that the New York
congressional lines were influenced predominantly
by race -other, equally plausible "inferences" could
be drawn from the maps and charts.
So it is in Shaw v. Reno, but the standard is a
bit tougher. In Wright, the congressional districts
were upheld, but without the patina of legitimacy
cast by the VRA, and despite "[defendant] New

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         38a

York's frank concession that it is not possible to
say `that race is irrelevant to redistricting.' " Id. at
61 (Douglas, J., dissenting). Shaw concedes that
latter point, 113 S. Ct. at 2826, thus elevating the
finding needed for a successful Equal Protection chal-
lenge. When we read Arlington Heights and progeny
in conjunction with Wright, we surmise the follow-
ing: Where it cannot be shown that race was the
"substantial" or "motivating" factor behind a voting
district by demonstrating that racial concerns are
the only ones plausibly to be inferred 20 from the dis-
trict's lines, there is no valid Equal Protection claim.
In contrast to Hays I and Shaw v. Hunt, race can
be a factor for the legislature, meaning one factor
given no more prominence than various others, with-
out triggering strict scrutiny. The legislature may
intentionally consider race in redistricting-and even
alter the occasional line in keeping with that consid-
eration-without incurring constitutional review. It
is the abuse of that privilege, exposed to the world
via perverse district shapes "unexplainable on
grounds other than race," that sparks further exam-
 ination. 21 We think the race-saturated requirements
of the Voting Rights Act require this result, Without
such an allowance, and considering the present atti-
tude of the Department of Justice, every state and
local government in the United States subject to
section 5 of the Voting Rights Act will be buried
under Shaw litigation every time it passes a redis-

___________________(footnotes)

20 we consider the role of direct evidence in section II.B,
supra.

21 The analytical distinction here is similar to that made by
Justice Powell in the affirmative action context. See Regents
v. Bakke, 438 U.S. 265, 317-18 (1977).

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         39a

tricting plan.'" Since each plan must survive strict
scrutiny-a factual inquiry-many lawsuits will re-
sult in full trials, We are reluctant to conclude that
the Supreme Court intended voting rights litigation
to sweep the country at ten-year intervals.
Race also need not be the sole motivation behind
a redistricting plan before it is subject to further
review. This is clear from a reading of Arlington
Heights. 439 U.S. at 266. A Shaw claim is an Equal
Protection claim; if the Supreme Court were dras-
tically narrowing the Fourteenth Amendment intent
requirement articulated in Washington v. Davis and
subsequent  decisions- specifically for a subset of vot-
ing rights cases-it would have said so. More im-
portantly, the standard would be nearly impossible
to meet: if race is admittedly one of many valid dis-
tricting concerns, Shaw, 113 S. Ct. at 2826, then plain-
tiffs could never show that it was the "sole" concern
behind a districting plan. A state legislature could
always trot out some other traditional districting
principle minimally served by the shape in question.
Cf. Hays 1, 839 F. Supp. at 1202.
The path most useful for negotiating the intrica-
cies surrounding Shaw v. Reno and the Voting Rights
Act is the middle one. Both the Supreme Court and
Congress have already admitted that the Constitu-
tion is not genuinely "color-blind," but it does se-
verely limit the race-based lengths to which a state

___________________(footnotes)

22 Cases such as the instant one show that this process has
already begun. See also Holder v. Hall, 114 S. Ct. 2581, 2598
(1994) (arguing that the states' racial gerrymandering in
response to judicial decisions and DOJ involvement "now
promises to embroil the courts in a lengthy process of at-
tempting to undo, or at least minimize, the damage wrought
by the system we've created").

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     40a

may go.  The document does not suffer racial classi-
gladly.

B. Determining if Race was the Overriding Consid-
eration in Creation of the Eleventh District

1. Methods of Proof: Indirect and Direct
   Evidence

The Supreme Court's use of a district's shape as
circumstantial evidence of legislative intent implies
that proof might be made by other means. The Shaw
v. Hunt court arrived at the same conclusion, finding
that proof can be made "by any means, including
state concession, bizarre shape, or some combination
of the various factors typically used to prove the
"intent" element of an Equal Protection claim under
Arlington Heights [.]" Shaw v. Hunt, supra, at 40-
41. The Western District of Louisiana concurs: "If
everyone- or nearly everyone-involved in the design
and passage of a redistricting plan asserts or con-
cedes that design of the plan was driven by race, then
racial gerrymandering may be found without resort-
ing to the inferential approach approved by the Court
in Shaw." Hays 1, 839 F. Supp. at 1195 (footnote
omitted ). See also Arlington Heights, 429 U.S. at
266 ("Determining whether invidious discriminatory
purpose was a motivating factor demands a sensi-
tive inquiry into such circumstantial and direct evi-
dence of intent as may be available.").
This is clearly the correct approach. Defendants
argued early in these proceedings that evidence of
the legislature's intent to gerrymander must be in-
ferred from the shape of the Eleventh District itself,
and not  from direct testimony of those involved with
process. This view finds little support in Shaw

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41a

v. Reno. The purpose of scrutinizing a district's
shape is to glean the intent of the legislature by
working backwards: if the district appears unin-
fluenced by accepted districting principles, as evi-
denced by its shape, then it must have been influenced
by unaccepted ones. The Supreme Court explicitly
approved this inferential approach because legislative
intent is notoriously difficult-if not logically impos-
sible 23- to ascertain, and in redistricting cases, the
district itself may provide the only firm evidence,
albeit circumstantial, of that intent. What the Su-
preme Court did not do is imbue geography with con-
stitutional significance; the requirement for a suc-
cessful Equal Protection claim is still intent, however
proved. Foreclosing production of direct evidence of
intent until Plaintiffs convince the Court that a dis-
trict looks so weird that race must have dominated
its creation is not what Shaw intended. That ap-
proach would make district shape a (previously un-
heard of) threshold to constitutional claims. 24

2. The Eleventh Congressional District

This stage of our analysis is the easiest to resolve.
The amount of evidence of the General Assembly's
intent to racially gerrymander the Eleventh District

___________________(footnotes)

23 See Rogers v. Lodge, 458 U.S. 613, 631-53 (1981)
(Stevens, J., dissenting). Justice Stevens has succinctly stated
the problem: "A law conscripting clerics should not be in-
validated because an atheist voted for it." Washington v.
Davis, 426 U.S. at 253 (concurring opinion).

24 Note that a bizarre district shape is indeed a "threshold"
for purposes of standing. Without the "harm" caused by an
obvious gerrymander, citizens have no basis for suit. See
supra, section II.A.1.

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42a

is overwhelming, and practically stipulated by the
parties involved.

   a. Indirect Evidence

The current configuration of the Eleventh District
appears in Joint Exhibit 1. For our purposes, the
most significant elements of the Eleventh are the
"land bridges" to Dekalb, Richmond and Chatham
Counties. On a purely visual level, it is exceedingly
obvious to us, and more importantly, to the public,
that extraordinary efforts were made to reach those
areas for a specific purpose; narrow appendages reach
out from the core of the Eleventh to grasp certain
goals-the cities of Atlanta, Augusta, and especially
Savannah.
Land bridges are not the only bridges which sup-
port the Eleventh District's march. The Eleventh
soars 18 stories over the water upon the spine of the
suspension bridge at Savannah to spill itself over un-   
inhabited Hutchinson Island (which many travelers 
think is in South Carolina). From Hutchinson the
district goes northwest across the marshes, a wildlife
refuge, and the river again (this time without a
bridge) to a mere point of contiguity with Effingham
County. By this means most of the Port facilities
are left within the First (historically coastal) Dis-
trict. The surrounding evidence implies that this specific
purpose, sometimes the only purpose, was race. Con-
sider the extension into Effingham and Chatham
Counties: From intact Screven County, the Eleventh
suddenly narrows to a bridge at points barely con-
tiguous and averaging less than two miles in width,
until it reaches the City of Savannah, where it
branches out to encompass particular sections of that

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43a

community. See Joint Exh. 1;  DOJ Exh. 10, 16-17.
Effingham County is actually a growing area, but the
part of it within the Eleventh District is largely
swamp. 25 In most of that strip, the population is
literally "zero." Tr. I, at 107 (testimony of Linda
Meggers). In Savannah itself, the sections within
the Eleventh are heavily populated-with blacks.
DOJ Exh. 17. Chatham County is 38% black; that
part of it within the Eleventh is 84% black. Major-
ity white areas of Savannah are circumvented by the
district boundaries." Id.; Tr. I, at 115-16.
The Court has not been presented with an ade-
quate non-racial rationale for this spectacle. The
extension to Savannah is not compact by any credible
definition of that term," it was not necessitated by
natural geographic boundaries, there was no incum-
bent served by it, there was no economic or political
interest thereby enhanced, it split two counties, and
it was not necessary to comply with the constitutional
one person/one vote requirement. It was urged that
many of the district lines follow precinct lines, thus

___________________(footnotes)

25 The Brooks/McKinley max-black plan employed a wider
bridge through Effingham County. During the legislative
process, the representative from that area succeeded in nar-
rowing the bridge, to minimize the damage caused in split-
ting Effingham County by keeping as much of the resident
population within the adjacent First Congressional District
as possible.
26 In eliminating some of the county splits present in the
max-black plan, Ms. Meggers was forced to create even
more irregular boundary lines in urban areas, in an effort
to include black populations to offset increased white popula-
tions in the repaired counties. Tr. 1, at 97.
27 We further explore the concept of "compactness" in our
discussion of narrow tailoring, section 11.C.3, infra.

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         44a

providing a "political," non-racial, explanation
their configuration. While the boundaries of
Eleventh do indeed follow many precinct lines,
is because Ms. Meggers designed the Eleventh District
along racial lines, and race data was most accessible
to her at the precinct level. Tr. II, at 271-72.
The Court was also plied with testimony about
"communities of interest" involving the black popula-
tions of Savannah and other majority-black areas,
e.g., Tr. VI, at 26 et seq. (testimony of Rev. Mitchell),
137 et seq. (testimony of Dr. Marsha Darling), that
allegedly provide a non-racial justification for the
district's current configuration. Here the Defendants
and Interveners faced a Sisyphean task. Initially,
the desire to bolster amorphous "communities of in-
terest" could not be sufficient justification for the
drafting gymnastics involved in bringing the Elev-
enth District to Savannah. Second, we remain uncon-
vinced that the poor black populations of coastal
Chatham County feel a significant bond to the black
neighborhoods of metro Atlanta. Third, even if bonds
between these groups exist at certain levels, those
links were certainly not the overriding motivation
behind construction of a land bridge to Chatham
County.
Finally, and most importantly, the Defendants and
Interveners spent much time outlining the racial com-
munity of interest shared by black citizens in Geor-
gia. The problem with this tack is that, while par-
tially convincing, such a community of interest is
barred from constitutional recognition. To urge this
racial identification as a justification for the shape
of the Eleventh District is tantamount to simply ad-
mitting that race was the overriding consideration in    
its creation. We have no doubt that black citizens    ,

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45a

share concerns related  to their condition as blacks,
e.g., the unusually high crime rate in black communi-
ties or combatting racism. Rev. Mitchell presented
evidence of religious networking among black con-
gregations. A voting district, however, that is con-
figured to cater to these "black" concerns is simply
a race-based voting district. It is based on super-
ficial, racially founded generalizations about what
matters to black Georgians. That is, it traffics in
racial stereotypes. We find it ironic and troubling
that the state and federal government should expend
such effort to convince the Court "that members of
the same racial group-regardless of their age, edu-
cation, economic status, or the community in which
they live-think alike, share the same political inter-
ests, and will prefer the same candidates at the polls."
Shaw, 113 S. Ct. at 2827.
Richmond County also shows signs of gerrymander-
ing. From Burke County, the Eleventh District sud-
denly narrows to a corridor, following the Central
Georgia Railroad into the City of Augusta. The cor-
ridor, composed of wetlands and some industrial
areas, is virtually unpopulated. DOJ Exh. 14; Tr.
I, at 100. Upon reaching Augusta, the Eleventh cuts
through the city itself, splitting precincts and roping
in the heaviest concentrations of black citizens. Rich-
mond County is 42% black; that component inside
the Eleventh District is 66% black.
Dekalb County, containing the largest single con-
centration of blacks in Georgia, suffers a similar fate.
From Butts County, the Eleventh gradually narrows
to a point less than one half mile wide, and then
broadens to cover all of Atlanta's black populations
not "needed" for the Fifth District. Tr. I, at 119;
DOJ Exh. 8. Dekalb County is only 42.2% black;

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46a

its constituency within the Eleventh District is 74.6%
black.  
The narrow section of the district, just south of
 County, provides a clear example of a point
we noted earlier. Ms. Meggers, forced to include the
black populations of DeKalb County in order to reach
the correct black voting age population in the Elev-
enth District, narrowed the Eleventh to a half mile
along the way in order to follow precinct lines. She
did this because it was possible, and splitting of
precinct lines is generally avoided where possible. Tr.
I, at 122-23. Yes, precinct lines provide a nonracial
explanation for a district boundary, but, as Ms.
Meggers stated, she was "just lucky"; the overriding
reason for cutting through that area in the first place
was to scoop up black voters. Id. at 82. The fact that
Ms. Meggers minimized the damage does not under-
mine that central motivation. 28
Other observations shed light on the racial manipu-
lations behind the Eleventh, most notably the simple
one that the total black population of Georgia is
26.96%, while within the Eleventh it is 64.07%. We

___________________(footnotes)

28 Defendants also asserted that, since all districts must
comply with the one person/one vote requirement articulated
in Reynolds v. Sims, 377 U.S. 533 (1964), race could not be
the dominant or sole motivation behind a redistricting ef-
fort. Our response to this argument is that the one person/
one vote requirement is a "threshold" requirement, a first-
order requirement that must be addressed before considering
second-order factors such as race or any traditional redistrict-
ing principles. The one person/one vote criterion is inflexi-
ble; it simply must be met by every redistricting plan. In
contrast, the prominence of secondary factors will vary with
the legislative tides. It is among those factors that we debate
the relative importance of race as a motivation. One person/
one vote compliance is assumed.

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47a

  also note that the vast majority-nearly 80%-of the
  district's minority population comes from carefully
  divided counties on its distant fringes. In addition,
  the Eleventh District avoids the heavy black popula-
  tions of Macon, just 80 miles from DeKalb, while
  going to great lengths to include those of Savannah,
  260 miles away; the black voters of Macon are neces-
  sary to make the Second Congressional District ma-
  jority-black.
   Finally, if not for reasons of race, why split the
  counties of DeKalb, Wilkes, Richmond, Effingham,
  Chatham, Twiggs, Baldwin, and Henry? Why split
  26 counties at all? With the exception of Texes,
  Georgia has more counties than any other state in
  the Union; one would think that such a proliferation
  would provide ample building blocks for acceptable
  voting districts without chopping any of those blocks
  in half. Avoiding such rough surgery did not seem
  such a herculean feat in any redistricting round be-
  fore 1992. And why excise Savannah-and just por-
  tions of Savannah-from its traditional economic
  place in the "coastal" region of Georgia? The Elev-
  enth District could have been easily revised to in-
   elude one or more whole counties while still meeting
   the one person/one vote requirement, and other tra-
  ditional districting concerns would have been better
  served.
   We find the above survey indicative of an over-
   riding objective to include minority populations in
  the Eleventh. In fact, with regard to the extensions
  to Savannah and Augusta, we find that race was
  clearly the sole objective behind its creation. At a
  glance, the appendages of the Eleventh are obviously
  designed to do something; after cursory exploration,
  it rapidly becomes clear that the "something" is
   
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48a

maximization of black voting strength. As Mr. Arm-
strong himself admitted, all one must do is

take a... map of the State of Georgia shaded
for race, shaded by minority concentration, and
overlay the districts that were drawn by the
State of Georgia and see how well those lines
adequately reflect [] black voting strength.

Tr. IV, at 135. We could not have phrased it better.

   b. Direct Evidence

Any attempt to explain the Eleventh District as
anything but a far-flung search for black voters
utterly collapses under the weight of direct evidence.
One need only review DOJ'S objection letters and our
findings of fact to see that DOJ spent months de-
manding purely race-based revisions to Georgia's
redistricting plans, and that Georgia spent months
attempting to comply. The testimony at trial reflects
this sorry process, and it is compelling. We need
review but a few examples from the record.
The State of Georgia simply confessed to its racial
motivations. In response to Plaintiffs' Request, State
made the following admissions of fact:

The State would not have added those portions
of Effingham and Chatham Counties that are
now in the present Eleventh Congressional Dis-
trict but for the need to include additional black
population in that district to offset the loss of
black population caused by the shift of pre-
dominantly black portions of Bibb County in the
Second Congressional District which occurred in
response to the Department of Justice's March
20th, 1992, objection letter.

Tr. I, at 11-12. And

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         49a

To the extent that precincts in the Eleventh
congressional District are split, a substantial
reason for their being split was the objective of
increasing the black population of that district.

Id. at 12.

Speaker Thomas Murphy also admitted that the
Assembly built its third districting plan along racial
lines.

What we did is we went into counties and
precincts and picked up pockets of African-
Americans to make a strong district with voting
age black population so that it would guarantee
a black would be elected from there.

Tr. II, at 62. Speaker Murphy stated that the
boundaries of Chatham, Richmond, DeKalb, Baldwin,
Twiggs, and Wilkes Counties were "all drawn based
upon race." Id. at 72. He was not alone in his
frankness. Every legislator testifying in these pro-
ceedings admitted that the objectives behind the dis-
tricting plan were racial ones. Max-black supporters
presumably agreed, including Rep. Cynthia McKin-
ney and various members of the Georgia Black
Caucus. Linda Meggers, not an elected official but
the architect behind the districts in question, readily
stated on numerous occasions that she designed the
Eleventh District to root out black populations and
avoid white ones. See Tr. I, at 106-07 (Chatham
County), 101-02 (Richmond County), 124-25 (Bald-
win County), 270-71 ( DeKalb County), 272-73 (on
sole purpose of land bridges as connections to black
populations ). See also id. at 74 (Second Congres-
sional District ), 82 (same). Ms. Meggers routinely
found the "blackest" precincts first, and then worked
backwards by racial percentage. Id.

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50a

Rep. Sonny Dixon, who "oversaw the extension of
the Eleventh District into Chatham County," Tr. IV,
at 159, gave powerful and credible testimony on that
subject, and was quite clear as to how the current
Eleventh District came to be:

MR. CHESIN [for Plaintiffs] : What was the
reason for this extension  [into Chatham
County] ?

REP. DIXON: Purely to, as the Justice Depart-
ment objection letter stated, to connect the sec-
ond largest concentration of blacks with the rest
of the Eleventh District.

MR. CHESIN: Was there anything else be-
sides race?

REP. DIXON: None whatsoever.

Id. at 159-60. He detailed the extreme efforts made
to stretch the Eleventh to Savannah without absorb-
ing any white voters along the way, id. at 161-64,
and the literally block by block search for black vot-
ers to add to the Eleventh District.
Rep. Dixon's testimony presents a picture which,
under virtually any other set of circumstances, would
be clearly impermissible, almost unthinkable. The
concept of government allocations on the basis of
race, coupled with drawing lines tracing concentra-
tions of black citizens, smacks of government-
enforced ghettoization. The contours of the Eleventh
District reviewed above are so dramatically irregular
as to permit no other conclusion than that they were
manipulated along racial lines. This conclusion is
cemented with the copious amounts of direct evidence
discussed here. Consequently, we must now deter-
mine whether this kind of racial classification is nar-

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         51a

rowly tailored to comply with some compelling state
interest.

C. Constitutional Analysis

Race-based laws are subject to strict scrutiny even
if "remedial" in nature. Richmond v. J.A. Croson
Co., 488 U.S. 469 (1989) (plurality opinion); Wy-
gant v. Jackson Board of Education, 476 U.S. 267,
273 (1985) (plurality opinion) ; United Jewish Or-
ganizations, 430 U.S. at 172 (Brennan, J., concurring
in part). As stated in Croson, "[a]bsent searching
judicial inquiry . . . , there is simply no way of de-
termining what classifications are `benign' or `reme-
dial' and what classifications are in fact motivated
by illegitimate notions of racial inferiority or simple
racial politics." Id. at 493-94. Once revealed as a
racial classification, a law can survive constitutional
review only upon "extraordinary justification," that
is, a showing that the law is both necessary and nar-
rowly tailored to further a compelling state interest.
See Shaw v. Reno, 113 S. Ct. at 2832; Palmore. v.
   Sidoti, 466 U.S. 429, 432 (1984); Fullilove v. Klutz-
   nick, 448 U.S. 448, 491 (1980 ).
   The State Defendants seem to propose only the goal
  of proportional representation as their compelling
  justification for the current Eleventh Congressional
  District. Def. Prop. Findings, "par", 122. The Interve-
  ners, however, suggest VRA compliance and eradicat-
  ing the effects of past or present racial discrimina-
  tion as interests sufficiently compelling to justify
  Georgia's actions in this case. It is clear to us that
  the only interest the General Assembly had in mind
  when drafting the current congressional plan was
  satisfying DOJ'S preclearance requirements. The ar-
                   
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52a

ticulated "compelling" justifications appear to be post
hoc rationalizations. Nevertheless, we will address all
possibilities.

1. A Preliminary Issue: Burden of Proof

The burden of proof as to whether race was the
overriding consideration behind the current district-
ing plan rested squarely with the Plaintiffs. At the
strict scrutiny stage, we agree with the court in Shaw
Hunt that, while burdens of production shift to the
Defendants, the ultimate burden of persuasion re-
tains with Plaintiffs:

In . . . a reverse-discrimination case, as in any
other Equal Protection case, "[t] he ultimate bur-
den remains with the [plaintiff] to demonstrate
the unconstitutionality of [the] affirmative ac-
tion program." Wyqant, 476 U.S. at 277-78  . . . . 
Proof that the challenged law or policy is race-
based gives rise to a presumption that it is un-
constitutional and shifts to the state the burden
of "demonstrating" that its use of race was
justified by a compelling governmental interest.
Croson, 488 U.S. at 505 (majority). But the
burden thus shifted is one of production only,
not persuasion [.]

Shaw v. Hunt, supra, at 52-53. Plaintiffs still bear
he burden of persuading the court that the State's
evidence did not support a finding that the redistrict-
ing plan was narrowly tailored to a compelling state
interest.


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53a

2. Potential Compelling State Interests

  a. Proportional Representation

We only briefly address this argument, since (1)
we encounter it later in our discussion of narrow
tailoring, and (2) it clearly does not provide a state
interest sufficient to pass constitutional muster.
Proportional representation simply is not a con-
stitutional requirement. See, e.g., Mobile v. Bolden,
446 U.S. at 76 ("The Equal Protection Clause of the
Fourteenth Amendment does not require proportional
representation as an imperative of political organiza-
tion." ); Whitcomb v. Chavis, 403 U.S. 124, 149
(1971) ; Turner v. Arkansas, 784 F. Supp. 553, 577
(E.D. Ark. 1991) (listing cases). Nor is it a statu-
tory requirement. See 42 U.S.C.  1973b (prohibiting
vote dilution, and stating "nothing in this section es-
tablishes a right to have members of a protected class
elected in numbers equal to their proportion in the
population" ). To erect the goal of proportional rep-
resentation is to erect an implicit quota for black
voters. Far from a compelling state interest, such
an effort is unconstitutional. See, e.g., Regents v.
Bakke, 438 U.S. at 307.
The State believes in a compelling state interest in
achieving proportionality apart from any requirement
of the Voting Rights Act. State Def. Findings, "par", 122.
In response to an inquiry as to what compelled the
creation of racially proportional voting districts, the
State's tautological answer is to proffer a desire to
draft racially proportional voting districts, and in-
sist that "the Constitution does not prohibit a state
from enacting such a plan." True, but neither does
the Constitution-nor the VRA-require it. This dis-
tinction is stressed in Shaw v. Reno, 113 S. Ct. at

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54a

2830, and is partially the lesson of Johnson v. De
Grandy, 1994 WL 285792 (U.S. 1994), on which both
the State and DOJ rely. De Grandy acknowledges
proportionality as a prima facie indication of non-
dilution under section 2, and as something to con-
sider within the "totality of the circumstances" sur-
rounding a vote dilution claim. Lack of proportion-
ality may imply dilution, but that inference is far
from an independent and compelling state interest
in racially gerrymandering voting districts.

   b. Eradicating the Effects of Past Discrim-
    ination

With the rise of race-based programs intended to
remedy the effects of past discrimination, it became
necessary for the Supreme Court to decide when a
history of "societal discrimination" provided a suf-
ficiently compelling state interest for the law in ques-
tion. A generalized claim of societal discrimination
cannot justify a racial classification. Wygant, 476
U.S. at 276. There must be some "particularized
findings" of past discrimination, providing a "strong
basis in evidence" for the state's conclusion that re-
medial action is necessary. Id.; Croson, 488 U.S. at
500, 504 (majority opinion).
Such a finding might be possible in our case; we
have given formal judicial notice of the State's past
discrimination in voting, and have acknowledged it
in the recent cases. See Brooks v. State Bd. of Elec-
tions, 848 F. Supp. 1548, 1560-61, 1571 (S.D. Ga.
1994). See also Rogers v. Lodge, 458 U.S. 613
(1981). The problem is that (1) the General As-
sembly never articulated such lofty goals during the
1990-92 redistricting, having made clear that it would
not have enacted the current plan but for DOJ de-

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55a

mands, and (2) we conclude that a compelling state
interest in remedying prior discriminatory voting
practices does not exist independent of the Voting
Rights Act.
The Supreme Court declined to fully explore this
latter issue in Shaw v. Reno, but did take time to
"note" that

only three Justices in UJO were prepared to
say that States have a significant interest in
minimizing the consequences of racial block vot-
ing apart from the requirements of the Voting
Rights Act. And those three Justices specifically
concluded that race-based districting, as a re-
sponse to racially polarized voting, is constitu-
tionally permissible only when the State "em-
ploy [s] sound districting principles," and only
when the affected racial group's "residential pat-
terns afford the opportunity of creating districts
in which they will be in the majority. "

Shaw, 113 S. Ct. at 2832 (quoting UJO, 430 U.S. at
167-68) (opinion of White, J., joined by Stevens and
Rehnquist, JJ. ). Justice Brennan concurred in UJO:

[I]f and when a decisionmaker embarks on a
policy of benign racial sorting, he must weigh
the concerns that I have discussed against the
need for effective social policies promoting racial
justice in a society beset by deep-rooted racial
inequities. But I believe that Congress here ade-
quately struck that balance in enacting the care-
fully conceived remedial scheme embodied in the
Voting Rights Act.

Id. at 175. We take our cue from both the Shaw v.
Reno majority's caveat and Justice Brennan's faith

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56a

in the Voting Rights Act as a justification for race-
based legislative preferences. The VRA is an expan-
sive remedial scheme imposing federal authority over
much of the country's state and local voting systems.
In effect, it formalizes, codifies, and universally im-
poses a "compelling state interest" to redress histori-
cally persistent discriminatory voting practices. See,
e.g., South Carolina v. Katzenbach, 383 U.S. 301,
310-15 (1965 ) ("The Voting Rights Act of 1965
reflects Congress' firm intention to rid the country
of racial discrimination in voting."). Under the
guise of section 5, it even directs that "state interest"
to those regions where it is most "compelling."
Any independent state interest in the remedial
revision of voting laws is subsumed within that broad
federal legislation. If a state's remedial program
meets the requirements of the VRA, an independent
compelling justification is redundant; if the program
exceeds the requirements of the VRA, the separate
interest in further increasing minority voting
strength is no longer compelling. The VRA places a
necessary leash on race-based remedial practices in
the voting sphere; the Supreme Court has acknowl-
edged that remedial legislation can cause more harm
than good, and requires such laws to be narrowly    
tailored and clearly linked to specific instances of                
past discrimination. See Wygant, 476 U.S. at 274-76 "
(requiring a "strong basis in evidence" for any prof-
fered state interest in rectifying prior discrimina- 
tion); Bakke, 438 U.S. at 298 (observing that "pref- 
erential programs may only reinforce common   
stereotypes holding that certain groups are unable 
to achieve success without special protection based 
on a factor bearing no relationship to individual 
worth." ). Considering the unparalleled significance 

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 57a

of the right to vote, this implicit regulation is bene-
ficial to the nation. The VRA ensures that states
honor the right to vote; our recognition of no other
compelling justification for race-based voting reme-
dies ensures that states do not go too farm

___________________(footnotes)

29  In contrast to our view, the majority in Shaw v. Hunt
found recognition of a compelling state interest beyond the
VRA necessary because the VRA might not reach all in-
stances in which race-based redress is needed. They presented
the example of a state that
has a history of official racial discrimination in its elec-
toral system, which hats resulted in the virtual exclusion
of members of a particular racial minority from partici-
pation in its political processes, but it knows that the
creation of majority-minority districts is not required
by the [nonretrogression element] of section 5, because
it has never had such districts before, and that the rele-
vant minority group cannot show that section 2 requires
the creation of any majority-minority districts, because
it is too widely dispersed to constitute a majority in a
single-member district that is "geographically compact"
under Gingles.
Shaw v. Hunt, supra, at 71-72. Our response is that this
hypothetical state rightly has no compelling interest in gath-
ering together its widely dispersed minority population. To
do so, it would have to traffick  in a superficial stereotype
impugned by Shaw v. Reno-that widely dispersed black
populations will vote alike simply because they are black.
The vote dilution provisions of the VRA implicitly recognize
this point by not requiring a different result. Minority popu-
lations must, be "geographically compact" before a successful
section 2 claim can be made, Thorn burg v. Gingles, 478 U.S.
30, 50-51 (1986), and this requirement is designed precisely
to bar such claims where the minority population is "sub-
stantially integrated" or "spread evenly" throughout the
challenged district. See id. at 50 and n.17. Finally, we are
here presented with a textbook example of "hard cases" mak-
ing "bad law," Northern Securities Co. v. United States, 193
  
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         58a

  c. VRA Compliance

The Shaw v. Reno majority stops short of declar-
ing that compliance with the Voting Rights Act is, a
fortiori, a compelling state interest. The Court allows
that "[t] he States certainly have a very strong inter-
est in complying with federal antidiscrimination
laws that are constitutionally valid as interpreted
and applied." Shaw, 113 S. Ct. at 2830. Fully steeped
in the argot of constitutional law, we do not doubt
that the Court intentionally avoided the word "com-
pelling," instead opting for the more cautious "very
strong." This suggests to us that VRA compliance
might be a compelling state interest under some cir-
cumstances, but that there are certain necessary
predicates; the Court warns that a redistricting plan
satisfying section 5 may still be found unconstitu-
tional, and that legislatures are not thereby granted
"carte blanche to engage in racial gerrymandering
[.]" Id. at 2831 (citing the VRA itself and Supreme
Court precedents ). Beyond these cautionary obser-
vations, no explicit guidance is given as to when
VRA compliance constitutes a compelling state
interest.
A most useful hint, however, comes from Justice
O'Connor's injunction that courts "bear in mind the
difference between what the law permits, and what
it requires." Id. at 2830. Essentially, the point here
is that the VRA cannot justify all actions taken in
its name. It will present a compelling justification
for certain race-based remedial measures, but not
for all that its provisions might potentially "permit."

___________________(footnotes)

U.S. 197. 363 (1904) (Holmes, J., dissenting); the im-
probability of the above scenario indicates its dubious value
as scaffolding for constitutional arguments.

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        59a

The court in Shaw v. Hunt translates
Shaw v. Reno into a useful standard:

We think it clear that a state has a "compelling"
interest in engaging in race-based redistricting
to give effect to minority voting strength when-
ever it has a "strong basis in evidence" for con-
cluding that such action is "necessary" to pre-
vent its electoral districting scheme from violat
ing the Voting Rights Act.

Shaw v. Hunt, supra, at 56. See Hays I, at 1217
(concurring opinion). That court arrives at this
interpretation by marrying the standard for deter-
mining if past discrimination provides a compelling
state interest with recent Supreme Court pronounce-
ments on remedial race-based measures. See Wygant
v. Jackson Board of Education, 476 U.S. 267, 276
(1986) (requiring "particularized findings" of so-
cietal discrimination before concluding that a com-
pelling state interest exists for remedying it) ; Cro-
son, 488 U.S. at 491 (considering remedial actions in
contracting) ; Bakke, 438 U.S. at 307 (considering
educational affirmative action programs ). This stand-
ard makes sense, but is indicative of a puzzling com-
ponent of Shaw v. Reno explored below.

    i. The Effect of Shaw v. Reno on the
     Strict Scrutiny Standard in the Con-
     text of VRA Compliance

If we assume that the VRA is constitutional,'" and
that it does, as Shaw strongly implies, provide suffi-

___________________(footnotes)

30 No risky assumption. See, e.g., Chisom v. Roemer, 501
U.S. 380 (1991 ) (upholding constitutionality of "purpose"
requirements of VRA sections 2 and 5); South Carolina v.
Katzenbach, 383 U.S. 301, 334-35 (1996) (holding that Con-

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60a

ciently compelling justification for race-based re-
districting in some contexts, then the narrow tailor-
ing stage of the constitutional analysis logically over-
shadows the compelling interest stage as the vital
point of contention. The Shaw v. Hunt standard re-
flects this shift: it is unlikely, especially considering
DOJ'S current standards for preclearanee under sec-
tion 5, that a state could not provide solid evidentiary
support for concluding that its redistricting efforts
were "necessary." As the North Carolina court ar-
gues, rejection of a redistricting proposal by DOJ
or the D.C. District Court would constitute "a strong
basis in evidence" justifying increasingly race-based
redistricting. Indeed, such measures would then ap-
pear "necessary" for VRA compliance, since pre-
clearance would not otherwise be forthcoming,
A "prima facie" compelling state interest would
thereby be created, "prima facie" because the race-
based measures have not been verified as necessary;
it is only the State defendant-and DOJ-that assert
as much. To determine if such was indeed the case,
a court would have to pursue a narrow tailoring
inquiry, and decide whether the districts, as pre-
cleaned and enacted, were genuinely "reasonably
necessary," Shaw, 113 S. Ct. at 2831, that is, nar-
rowly tailored, to comply with the VRA. If they
were not found actually necessary, then the State-
and DOJ-were wrong in deciding that they were,
and suddenly no compelling interest existed; if the
measures were found necessary, then both DOJ'S
interpretation of the VRA and the State's adherence

___________________(footnotes)

gress did not abuse its power in creating preclearance require-
ment under VRA section 5, since it was a "legitimate meas-
ure" taken under "compulsion of . . . unique circumstances"),

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61a

to it had [sic] been correct, and so a compelling in-
terest had [sic] existed: 31

___________________(footnotes)

31 We disagree with Chief Judge Voorhees that this ap-
proach results in a "[b] lind deference to the administrative
findings of the United States Attorney General" that confers
immunity from "constitutional scrutiny[.]" Shaw v. Hunt,
supra, dissenting opinion at 25. First, DOJ was expressly
empowered by Congress to render section 5 decisions on par
with those of the D.C. district court. 28 C.F.R. 51..52.
Labeling them as "administrative findings," Bakke, 438 U.S.
at 305 (opinion of Powell, J.), does not diminish their po-
tency, and the Supreme Court does not seem to underestimate
their importance. See, e.g., UJO, 430 U.S. at 175 (Brennan, J.,
concurring in part). Second, it is obvious that, since DOJ
enforces the VRA via its preclearance duties, its demands will
dictate what it is "necessary" for the State to do under the
Act. Again, Congress realized this when the VRA was en-
acted. Third, our analysis in the text above demonstrates that
no constitutional "immunity" inheres from the standard ar-
ticulated by the majority in Shaw v. Hunt. It does somewhat
alter the balance of factors in the strict scrutiny analysis,
but the State is granted no added protection thereby. Close
examination of potentially compelling interests is simply held
in abeyance pending a determination of narrow tailoring.
Finally, the Attorney General is not hereby granted "de facto
ability to determine the constitutional scope of federal legis-
lation" anymore than she is granted that ability under any
other federal law that DOJ is entrusted to enforce.
Shaw v. Reno allows that the VRA is potentially a com-
pelling interest, but only if race-based changes made in its
name are "reasonably necessary" to comply with it. Yes,
the State can-and should independently assess whether its
plans reasonably satisfy the Act. The State did so in the
instant case, and the result was predictable: DOJ'S assess-
ment trumped that of the General Assembly, since without
DOJ'S acquiescence, there are no congressional elections in
Georgia. There was no "blind deference" here. Georgia was a
reluctant participant.

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62a

The end result here is that in scenarios involving
jurisdictions subject to section 5, a compelling inter-
est is initially assumed, since the plans in question
could not have been enacted without VRA "compli-
ance" as interpreted by the Justice Department. We
realize that the Shaw v. Reno majority was careful
to say that "States . . . have very strong interest in
complying with federal antidiscrimination laws that
are constitutionally valid as interpreted and applied,"
Shaw, 113 S. Ct. at 2830 (emphasis added), and that
DOJ'S "maximization" interpretation in this case was
potentially unconstitutional. 32  The interpretation was
improper, however, because it compelled legislative
efforts not reasonably necessary/ narrowly tailored
to the written dictates of the VRA and attendant
regulations, not because it required race-conscious re-
districting. We are constantly returned to that cru-
cial tailoring aspect of the strict scrutiny rubric, and
our temporary compelling interest assumption is
merely a stepping stone to get us there. Cf. Hays I,
839 F. Supp. at 1206 (assuming presence of a com-
pelling state interest in order to reach the narrow
tailoring stage).
It is not seriously debated that the General As-
sembly designed the current congressional districts   
specifically to comply with DOJ's preclearance re-
quirements. Reviewing our factual findings, it is 
evident that Georgia, wrangling with the DOJ Voting
Section for over a year, did what was minimally   
"necessary" to secure preclearance, and putatively,
to comply with the VRA. Consequently, there was a

___________________(footnotes)

32 We realize that decisions of the Attorney General are
not reviewable by this Court. See Morris v. Gressette, 432
Us. 491 (1977) .                  

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63a

putatively compelling interest behind the drafting of
the current Eleventh Congressional District, pending
a final determination of whether DOJ'S demands
comported with the VRA. 33 We now leave this stage
and turn to whether Georgia's 1992 congressional re-
districting plan was actually required by the VRA
and Supreme Court precedent; the Plan will live or
die on the results of our narrow tailoring inquiry.

3. Narrow Tailoring

A variety of factors are generally relevant to
whether a state action is narrowly tailored to fur-
ther a compelling state interest,34 but in the voting
context, the factors are somewhat altered by the pres-
ence of the VRA. Our inquiry here will focus on two
issues: (1) whether the current plan contains more
majority black districts than reasonably necessary to
comply with the VRA, and (2) whether the existing
majority black districts contain larger concentrations
of minority voters than reasonably necessary to give
those voters a realistic opportunity to elect candidates
of their choice. See Shaw v. Hunt, supra, at 75-76;
Hays I, 839 F. Supp. at 1206-08.

___________________(footnotes)

33  "Reliance on possibly invalid applications of the Voting
Rights Act by the Department of Justice cannot create a
[genuinely] compelling state interest. If so, the Department
of Justice and various States could sidestep the holdings of
Croson,Gingles, and Shaw with ease." Hays I, 839 F. Supp.
at 1217.

34 These factors include ( 1 ) the necessity of the measure,
(2) the efficacy of alternative, race-neutral measures, (3)
the availability of more narrowly tailored options, (4) the
flexibility and duration of the measure, and (5) the impact of
the measure on the rights of third parties. Hays, 839 F.
Supp. at 1208, 1215. See Croson, 488 U.S. at ,510-11; United
States v. Paradise, 480 U.S. 149, 171 (1987).

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64a

   a. The Significance of Maximization

A congressional districting plan is not narrowly
tailored if it affects the rights and interests of citi-
zens more than "reasonably necessary" to further the
compelling state interest advanced by the state. See
Shaw, 113 S. Ct. at 2831 (setting out "reasonably
necessary" language ); Hays 1, 839 F. Supp. at 1208
(describing this element as the "essence of narrow
tailoring in the redistricting context"). Shaw draws
a comparison with UJO, where four justices decided
that New York's creation of additional majority-
minority districts was constitutional, because the
plaintiffs had failed to show that the state "did more
than the Attorney General was authorized to require
it to do[.]" 430 U.S. at 162-63. In other words,
plaintiffs failed to show that the State's plan did
more than was necessary to satisfy the compelling
interest in complying with the VRA. That showing
is much easier here, where DOJ stretched the VRA
farther than intended by Congress or allowed by the
Constitution, and had the General Assembly firmly in
tow.
On first appraisal, our factual finding that the
Georgia plan reflects a DOJ maximization agenda 35
bodes ill for any arguments that the Eleventh District
is narrowly tailored to comply with VRA require-
ments. Consider the regulations promulgated by Con-
gress to assist DOJ in properly enforcing the Act.

___________________(footnotes)

35 we are by no means the first Court to criticize DOJ'S
maximization propensities. See Shaw v. Hunt, supra, Dis-
senting Opinion; Hays I, 839 F. Supp. at 1196-97 n.21;
Turner v. Arkansas, 784 F. Supp. at 561 (quoting Abigail
Thernstrom, Washington Post, Sept. 23, 1991, at All).

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65a

Among the numerous racial factors specific to redis-
tricting, DOJ must also consider

(e) The extent to which available alternative
plans satisfying the jurisdiction's legitimate gov-
ernmental interests were considered.

(f) The extent to which the plan departs from
objective redistricting criteria set by the submit-
ting jurisdiction, ignores other relevant factors
such as compactness and contiguity, or displays
a configuration that inexplicably disregards avail-
able natural or artificial boundaries.

28 C.F.R. 51.59. Congress intended these two cri-
teria as indicators of whether a legislature was at-
tempting to gerrymander in favor of white voters,
but they are equally useful tools in our context. We
will not rehash our factual recitation here, but ob-
serve that DOJ clearly disregarded these intended
restraints on gerrymandering. DOJ'S requirements,
based on the max-black proposal, had nothing at all
to do with any criterion but race. See Pltf. Exh. 2,
4, 6 ( DOJ objection letters). Some fundamental "ob-
jective redistricting criteria," like the one person/
one vote, single-member, and contiguity requirements,
were satisfied along the way, but every factor that
could realistically be subordinated to racial tinkering
in fact suffered that fate. The district is not com-
pact, it disregards economic boundaries, and it ig-
nores county and precinct lines at will when needed
to reach black neighborhoods.

We find it ironic that Congress was apparently
worried that the legislature might ignore alternative
plans that were able to boost black voting strength
while satisfying legitimate nonracial interests. Here,

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66a

it was DOJ that demanded an alternative plan that
boosted black voting strength and completely ignored
legitimate nonracial interests. In a similar vein,
Congress uses the word "inexplicably," in subsection
(f), apparently envisioning a district with lines un-
explainable as anything other than an effort to ex-
clude black voters; here we are confronted with a
district unexplainable as anything other than an ef-
fort to exclude white voters.
These observations alone lead us to conclude that
the current congressional plan is not narrowly tail-
ored to what the VRA actually, reasonably, requires.
We continue, however, with a more specific look at
the gulf between the VRA and the enacted plan.

   b. Section 5 of the Voting Rights Act

Section 5 of the VRA prohibits a State or political
subdivision subject to section 4 of the Act from en-
forcing any change in voting practices unless it has
obtained a declaratory judgment from the D.C. Dis-
trict Court that such a change "does not have the
purpose and will not have the effect of denying or
abridging the right to vote on account of race or
color," or has secured preclearance from the Attorney
General under the same standard. While the "pur-
pose" prong, essentially eclipsed by section 2 of the
Act, 33 requires a showing that the proposed plan was
not designed to dilute minority voting strength, the
"effect" prong is aimed at barring any redistricting
plan that would lead to "a retrogression in the posi-

___________________(footnotes)

36 The only difference is that under the section 5 analysis
the burden of proof is not on affected minority groups, but
on the jurisdiction seeking preclearance. See 28 C.F.R.
51.,52 (placing section 5 burden of proof on "submitting
authority" ).

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67a

tion of racial minorities with respect to their effective
exercise of the electoral franchise." 28 C.F.R. 51.54
(a) (making retrogression the standard for finding
discriminatory effect under section 5, and citing Beer
v. United States, 425 U.S. 130, 141 (1976)). See
also McCain v. Lybrand, 460 U.S. 236, 247 (1984)
(making purpose/effect distinction) ; Port Arthur v.
United States, 459 U.S. 159, 162 (1982) (discussing
purpose prong).
It is abundantly clear to this Court that Georgia's
current redistricting plan exceeds what is reasonably
necessary to avoid retrogression under section 5. DOJ
readily admitted that neither the first nor the second
  redistricting plan passed by the Assembly had a
  retrogressive effect on minority voting strength. Tr.
  V, at 36-38; Pltf Exh. 99 (Requests for Admissions
  from DOJ). Those first two plans provided for two
  majority black districts, but the third, current plan-
  in keeping with the max-black proposals-provides
  three such districts, prompting us to conclude that
  three majority black districts are not reasonably nec-
  essary to comply with the VRA. The Shaw v. Reno
  majority stated: "A reapportionment plan would not
  be narrowly tailored to the goal of avoiding retrogres-
  sion if the State went beyond what was reasonably
  necessary to avoid retrogression. " Shaw v. Reno, 113
  S. Ct. at 2831. Having created more majority black
  voting districts than necessary to avoid retrogression,
  the State of Georgia enacted a congressional district-
  ing plan that was not narrowly tailored to the com-
  pelling state interest of complying with the VRA.
  Cf. Beer, 425 U.S. at 141 ("It is thus apparent that
   a legislative reapportionment that enhances the posi-
   tion of racial minorities with respect to their effective
  exercise of the electoral franchise can hardly have

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         68a

the `effect' of diluting or abridging the right to vote
on account of race within the meaning of section 5.").
Further, DOJ'S admission is not necessary to make
clear the lack of retrogressive effect. Under the pre-
vious congressional districting scheme, there was one
majority-black district among the ten districts in
Georgia, or 10% majority-black districts. In a plan
with eleven districts, two majority-black districts
would constitute 18. 18% of the total-quite an im-
provement." Federal regulations state that "[i] n de-
termining whether a submitted change is retrogres-
sive the Attorney General will normally compare the
submitted change to the voting practice or procedure
in effect at the time of the submission." 28 C.F.R.
5L54(b). Apparently, neither DOJ nor the General
Assembly used this simple guide to Section 5 com-
pliance.
The current districting plan overstepped the re-
quirements for section 5 compliance because it was
designed to secure proportional representation for
black voters in Georgia, not adhere to the VRA.
Three majority-black districts constitute 27.27% of
the total eleven, and blacks constitute 26.9670 of the
total Georgia population. DOJ used its section 5 pre-
clearance prerogative as a tool for forcing that stand-
ard upon the General Assembly, thereby setting an
extremely dangerous precedent on at least two
counts.
First, as noted earlier, proportional representation
is in no way a constitutional or statutory require-
ment. See De Grandy, 1994 WL 285792; Mobile, 446

_____________(footnotes)

37 Under the first and second proposals, the Second Con-
gressional District was a black "influence" district augment-
ing the black voting strength already harnessed in the Fifth
and E1eventh.

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69a

U.S. at 55; Beer, 425 U.S. at 136. See also 42 U.S.C.
1973b. The Supreme Court has in fact rejected any
proposed requirement of proportional representation
or vote maximization throughout the history of the
VRA. See, e.g., White v. Regester, 412 U.S. 755,
765-66 ( 1973); Whitcomb v. Chavis, 403 U.S. 124,
148-56 (1971 ). And most recently:

Operating under the constraints of a statutory
regime in which proportionality has some rele-
vance, States might consider it lawful and proper
to act with the explicit goal of creating a propor-
tional number of majority-minority districts in
an effort to avoid section 2 litigation. . . . The
Department of Justice might require (in effect)
the same as a condition of granting preclearance,
under section 5 of the Act, 42 U.S.C. 1973c, to
a State's proposed legislative redistricting. Those
governmental actions, in my view, tend to en-
trench the very practices and stereotypes the
Equal Protection Clause is set against.

De Grandy, 1994 WL 285792, *17 (Kennedy, J., con-
curring) (emphasis added). The potential harm of a
proportional representation benchmark is not easily
overestimated. Such a standard dictates racial quotas
for our democratic institutions based on the percent-
age of each race in the population at large. No, there
is no guarantee that majority-minority districts will
yield minority representatives, but their conscious
construction as entitlements for each racial group
causes the societal damage against which we warn
today. If efforts to require proportional representa-
tion of minorities in democratic institutions are not
stopped with clarity and force, they will divide this
country into a patchwork of racial provinces, and en-

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70a

sure that represent  races before they 
represent citizens.  See Holder, 114 S. Ct. at 2598-99.
The VRA neither intends nor requires the devolution
of voting rights into racial bargaining chips to be
bickered over by special interests, and we will not
support that cause.
  
Second, while the Shaw v. Hunt majority is con-
fident that race-based redistricting plans "are inher-
ently temporary in nature," Majority Opinion at 78,
we are equally sure that any redistricting plan de-
signed for proportionality, that is upheld by the Court
today, will not be easily uprooted in the foreseeable
future. We are aware that the decennial census
prompts revisions to many districting plans, but the
VRA prevents any voting changes that have a dilu-
tive or retrogressive effect upon minority voting
strength. Consequently, any plan approved today will
become the absolute baseline for subsequent changes
through 2007, 42 U.S.C.  1973b(a) (7) ; in 2000, if
the Georgia population increases and the Georgia As-
sembly does not add a fourth majority-black district,
surely it will be subject to litigation under section 2
and rejection under section 5. Nor do we find it
likely that Congress will commit the wildly unpopu-
lar act of substantially revising VRA nondilution and
nonretrogression provisions in 1997. See id.  1973
(a) (8). The "bailout" mechanism available to juris-
dictions covered by section 5 does impose some even-
tual limit on what is required, id.  1973b(a) ( 1),
but even if released from section 5 coverage, Georgia
would not then be free to dismantle its proportionally
representative districting scheme. Upholding the plan
today would create a fairly permanent race-based
electoral system.

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     71a

c. Section 2 of the Voting Rights Act

Having thoroughly denounced the cause of propor-
tional representation, we do realize that it plays an
important role in vote dilution claims under section
2 of the VRA. Without it, there is no statistical norm
against which to compare the current state of minor-
ity voting prowess. De Grandy, supra, at *16 (Ken-
nedy, J., concurring) (citing Supreme Court cases ).
See also Holder, 114 S. Ct. at 2597 (" [T]he mathe-
matical principle driving the results in our cases, is
undoubtedly direct proportionality." ) ; Mary A. In-
man, Change Through Proportional Representation:
Resuscitating a Federal Electoral System, 141 U. Pa.
L. Rev. 1991, 2050-51 (1993) (arguing that despite
the VRA, "the core value underlying Gingles' three
preconditions is a right to proportional representa-
tion-but only for compact, cohesive, and sizable
minority groups." (footnotes omitted) ). The De
Grandy majority discusses proportional representa-
tion at length, finding that while proportionality is
probative evidence that minority voters have an
"equal opportunity" to participate in political proc-
esses and elect their preferred candidates, its sig-
nificance "may vary with other facts." 1994 WL
285792 at *11. While sometimes sufficient to show
nondilution, it is not required to achieve it, Id. at
*11-12.
Congress enacted section 2 of the VRA to provide
teeth to the Fifteenth Amendment, a constitutional
injunction historically spurned by state and local
governments. See Katzenbach, 383 U.S. at 308 et seq.
(reviewing history). Section 2(a) prohibits the im-
position of any electoral practice or procedure that
"results in a denial or abridgement of the right of
any citizen . . . to vote on account of race or
       
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72a

color[.]" 42 U.S.C. 1973b. Section 2(b) specifies
that section 2(a) is violated if:

[B]ased on the totality of circumstances, it is
shown that the political processes leading to
nomination or election in the State or political
subdivision are not equally open to participation
by members of a class of citizens protected by
subsection (a) of this section in that its mem-
bers have less opportunity than other members
of the electorate to participate in the political
process and to elect representatives of their
choice.

Id. Section 2 (a) adopts a "results" test, "providing
that proof of discriminatory intent is [unnecessary]
to establish any violation of the section. Section 2 (b)
provides guidance about how the results test is to be
applied." Chisom v. Roemer, 501 U.S. 380, 395
(1991) ; Thornburg v. Gingles, 478 U.S. 30, 35
(1986). In the context of single-member voting dis-
tricts, "the usual device for diluting minority voting
power is the manipulation of district lines." Voino-
vich v. Quilter, 122 L. Ed.2d 500, 511 (1993). Minor-
ity voting strength might be "cracked," fragmented
and dispersed among two or more districts where it
constitutes an ineffective minority of the electorate,
or "packed," concentrated in one or a few districts
where it constitutes an excessive majority, thus
"bleaching" the surrounding districts of minority
voters. See id.; Gingles, 478 U.S. at 46 n.11.
Gingles provides the essential framework for
establishing a vote dilution claim against at-large,
multimember districts; it has since been extended to

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         73a

single-member districts. 38 Growe v. Emison, 113
S. Ct. 1075, 1084-85 (1993). There are three "thres-
hold conditions": (1) that "[the minority group] is
sufficiently large and geographically compact to con-
stitute a majority in a single-member district"; (2)
"that [the minority group] is politically cohesive";
and (3) "that the white majority votes sufficiently as
a bloc to enable it . . . usually to defeat the minority's
preferred candidate." Gingles, 478 U.S. at 50-51. If
the plaintiffs in a vote dilution suit establish these
conditions, the court then considers other factors
relevant to determining whether, "under the totality
of the circumstances," minorities have been denied
an "equal opportunity" to "participate in the political
process and to elect representatives of their choice."
42 U.S.C. 1973b. See id., 478 U.S. at 80. These
secondary factors can include a history of discrim-
inatory voting practices, racially polarized voting,
the relative presence of minorities in elected posts,
and evidence of discrimination against minorities in
other aspects of society that might hinder their abil-
ity to participate in the electoral process. Id. at 36-
37. None of these factors are essential to a finding
of vote dilution, id. at 45, but the Supreme Court
has explicitly warned that a judgment must encom-
pass not just the three preconditions, but "a compre-
hensive, not limited, canvassing of relevant facts."
De Grandy, supra, at *8. The assessment must be a
holistic one.
Shaw v. Reno provides little guidance for deciding
whether an existing districting plan is narrowly

_____________(footnotes)

38 Justice Thomas has highlighted some profound difficulties
with the Gingles analysis, Holder, 114 S. Ct. at 2615-18, but
this Court is bound to apply it. See, e.g., Patterson v. McLean
Credit Union, 491 U.S. 164, 172 (1989).

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         74a

tailored to the goal of section 2 compliance. See
Shaw, 113 S. Ct. at 2831-32. The logical approach is
to begin by determining whether historical, societal,
and demographic conditions in Georgia at the time of
redistricting sufficed under the Gingles preconditions
to reasonably necessitate creating the Eleventh Con-
gressional District. If so, the General Assembly had
a compelling interest in designing the plan as it did.

    i. Is the Eleventh Congressional District
     Required by Section Two?

Any determination of whether three districts were
necessary to avoid vote dilution sports prodigious
amounts of statistical baggage. The court heard
from seven experts on the virtues and vices of the
district," on topics including compactness, communi-
ties of interest, racial polarization in voting, the
minimum demographic requirements of a reasonable
majority-black district, and Georgia's racist past.40

___________________(footnotes)

39  We include Ms. Meggers in our count; being a veteran
practitioner of redistricting, she is more intimate with the
subject than any academic commentator.
40 Traditional districting principles such as compactness,
contiguity, communities of interest and respect for political
subdivisions are not constitutional requirements, Shaw v.
Reno, 113 S. Ct. at 2827, but are relevant to our consideration
of narrow tailoring. We agree with the North Carolina court
that the Supreme Court will probably not
adopt a definition of `narrow tailoring' in the redistrict-
ing context that requires consideration of whether the
challenged plan deviates from `traditional' notions of
compactness, contiguity, and respect for political sub-
divisions to a greater degree than is necessary to ac-
complish the state's compelling purpose.

Shaw v. Hunt, supra, at 87.  Such a standard would elevate
to constitutional status that which was intended only as a

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75a

The more arcane machinations of the parties' sta-
tistical experts present us with an initial obstacle.
Statistical evidence is potentially of great importance
in voting rights cases, e.g., Gingles, 478 U.S. at 52-
61, but the Court has been presented with no particu-
larly dispositive analyses in this case. Drs. Lichtman
and Weber-veterans of the Shaw litigation circuit,
see Vera v. Richards, No. H-94-0277 (S.D. Texas,
Aug. 17, 1994), Hays I, 839 F. Supp. at 1208-
launched conflicting assumptions, databases, and
bases of measurement, only to be trounced by Dr.
Katz, who impugned the testimony of both. The
Court, no experts in statistical methodologies and re-
luctant to base constitutional holdings on numerical
niceties, 41 is left with little of use. We deal with each
relevant topic as needed, supplementing the expert
testimony with case law where the former provides
inadequate guidance.

___________________(footnotes)

   barometer for determining whether a district adequately
   serves its constituents. Observance of those traditional prin-
   ciples is also difficult to judge at the exacting level required
   for a narrow tailoring determination, and such judging would
   force the judiciary to meddle with legislative prerogatives
   to an undesirable degree. See id. at 88-94.
   Nothing, however, precludes the Court from considering
   traditional districting principles as guideposts in a narrow
   tailoring analysis; while not required, they are potentially
   useful indicators of where the legislature could have done
   less violence to the electoral landscape. Compactness, for
1   example, is a principle directly relevant to section 2 com-
    pliance, which in turn is a central component of our narrow
    tailoring inquiry.

   41 Dr. Katz's report reveals some of the potential difficul-
   ties in relying on statistical data. See Rpt. at 10.
 
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76a

ii. On Compactness

Our first consideration is geographical compactness
-one of the preconditions to a section 2 claim. Un-
fortunately, there is no litmus test for compactness;
it has been described as "such a hazy and ill-defined
concept that it seems impossible to apply it in any
rigorous sense in matters of law. " Tr. IV, at 282.
See also Karcher v. Daggett, 462 U.S. 725, 756
(1983) (stating that compactness requirements have
been of limited use because of vague definitions and
imprecise application) ; B. Grofman, Critetia for
Districting: A Social Science Perspective, 33 UCLA
L. Rev. 85 (1985) (reviewing measures of compact-
ness and stating that none are accepted as definiti-
tive). Various mathematically based measures have
been created, none of which yielded clear answers in
this litigation. See Tr. IV, at 275-288 (testimony of
Dr. R. Weber). A few include measuring the ratio
of the district's area to the square of the district's
perimeter; measuring the ratio of the district's popu-
lation to the population of the area that would fall
inside a rubber band stretched around the district;
and measuring the ratio of the district's area to the
area of the minimum circle that could circumscribe
the district."

___________________(footnotes)

42 Most of these tests are culled from legal and political
science scholarship. See, e.g., R. PiIdes & R. Neimi, Ex-
pressive Harms, "Bizarre Districts," and Voting Rights:
Evaluating Election District Appearances After Shaw v.
Reno, 92 Mich. L. Rev. 483 (1993); E. Roeck, Jr., Measuring
Compactness as a Requirement of Legislative Apportionment,
5 Midwest J. Pol. Sci. 70 (1961). See also Karcher, 462 U.S.
at 756-58, 756 n.19 (Stevens, J., concurring); T. Goldstein,
Unpacking and Applying Shaw v. Reno, 43 Am. U. L. Rev.
1135 (1994) .

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77a

At trial, Dr. Lisa Handley, an expert for the
State, presented the innovative if abominably named
"meanderingness test" for compactness. This test,
formulated by Dr. Handley in conjunction with
State's counsel specifically for this litigation, consti-
tuted the State's only notable submission on the sub-
ject of compactness. The "meanderingness" score
measures the irregularity of a district's shape by
determining how much of the district can be reached
by straight lines emanating from that one point in
the district yielding "the highest percentage of di-
rect, straight line accessibility." Rpt. of Dr. Hand-
ley, at 8-9. We do not find this test any more useful
than the others we have encountered; it measures
only a narrow facet of the elusive notion that is
"compactness," and it allows for some absurd re-
sults. As Plaintiffs noted at trial, this measure would
find a pencil-thin district hundreds of miles long
100% compact, since there are no twists or turns
to break the straight line measurements. We would
add that the "meanderingness test" is especially use-
less in analyzing the Eleventh District: while the
vast-and sparsely populated-core of the Eleventh
accounts for the district's favorable score on Dr.
Handley's test, the narrow-and densely populated-
appendages escape notice. In fact, this test is an
excellent means of highlighting the egregiously ma-
nipulated portions of any voting district, since those
portions will always lie beyond the reach of straight
line measurements.
Our criticism of the "meanderingness test" leads
us to another genre of compactness considerations:
those dealing with population. These measures are
far less abstract than those above, and better reveal
the deficiencies of the Eleventh Congressional Dis-

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78a

trict. They require an assessment of population den-
sities, shared histories, and common interests; essen-
tially whether the populations roped into a particular
district are close enough geographically, economi-
cally, and culturally to justify them being held in a
single district.43
A review of the Eleventh District from a popula-
tion-based perspective confirms that the district is not

___________________(footnotes)

43 This approach is similar to that of "functional" tests
for compactness, like that used by Kathleen Wilde in design-
ing the max-black plan. Dillard v. Baldwin County, 686 F.
Supp. 1459, 1465 (M.D. Ala. 1988) gives a good example of
the functional view:

By compactness, Thornburg does not mean that a pro-
posed district must meet, or attempt to achieve, some
aesthetic absolute, such as symmetry or attractiveness . . . . 
[G]eographical symmetry or attractiveness is . . . a de-
sirable consideration for districting, but only to the ex-
tent it facilitates the political process  . . . . 
[A] district is sufficiently compact if it allows for
effective representation. . . . [A] district would not be
sufficiently compact if it was . . . so convoluted that there
was no sense of community, that is, if its members and
its representative could not easily tell who actually lived
in the district.

This view of compactness will occasionally conflict with
Shaw v. Reno, which places renewed emphasis  on actual dis-
trict shape; post-Shaw, the functional approach may im-
properly devalue geographical measurements.
Regardless, functionally speaking, there is considerable
potential for voter confusion in the current Eleventh Dis-
trict, particularly near the borders in urban areas of the
Eleventh. Beyond the general assumption in cities that "if
you are black You are in the Eleventh, and if you are white
you are not," the erratic lines and split counties and precincts
do not afford voters ready indications of the district in which
they reside.

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    79a

compact for purposes of section 2 of the VRA. The
populations of the Eleventh are centered around four
discrete, widely spaced urban centers 44 that have
absolutely nothing to do with each other, and stretch
the district hundreds of miles across rural counties
and narrow swamp corridors. Two thirds of the
population of the district is concentrated in urban
DeKalb, Richmond and Chatham counties. These
communities are so far apart that DOJ'S insistence
that they are "compact" renders the term meaning-
less. The hooks, tails and protrusions of those coun-
ties reveal the true "shape" of the district: if it
were graphically depicted and sized according to the
density of population, the miniature polyp of South
DeKalb County would become a large bulbous affair
accounting for about 3570 of the district's size; the
narrow hook into Richmond County would be a rather
uncouth polygon sporting about 1670 of the district's
girth; and the tuft attached to the tail extending to
Chatham County would represent 12.4% of the dis-
trict. Finally, the proboscis extending into Baldwin
County would be another distant repository of Elev-
enth District population.
As for finding any connection between these dis-
crete clumps of people, Dr. O'Rourke, an expert for
the Plaintiffs, presented the Court with compelling
evidence of economic conditions, educational back-
grounds, media concentrations, commuting habits,
and other aspects of life in central and southeast
Georgia making it exceedingly clear that there are
no tangible "communities of interest" spanning the
hundreds of miles of the Eleventh District. Rpt. of

___________________(footnotes)

44 Atlanta, Augusta, Savannah, and Columbus.
           
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80a

Dr. O'Rourke; Tr. III, at 99. Nor would your aver-
age citizen think there would be. Assertions to the
contrary are the result of shallow and offensive think-
ing: blacks live in Savannah, blacks live in Atlanta,
and so there must be some deep cultural bond be-
tween them since, after all, aren't they black?

Far more pernicious has been the Court's willing-
ness to accept the one underlying premise that
must inform every minority vote dilution claim:
the assumption that the group asserting dilution
is not merely a racial or ethnic group, but a
group having distinct political interests as well.

Holder, 114 S. Ct. at 2597. As far as Gingles' first
precondition serves to minimize the effect of this as-
sumption by requiring groups to reside in a compact
area, it has done its work today. Blacks in Georgia
did indeed rise from a common heritage of slavery
and oppression, but with the shedding of those bur-
dens they have begun to follow myriad, distinctive
paths. They take their voting preferences with them.
The Eleventh Congressional District, as con-
structed, does not satisfy the first Gingles precon-
dition, and was not reasonably required by section
2 of the VRA. There simply is no sufficiently large,
compact minority population in south-central Georgia
warranting creation in that area of a single-member,
majority-black district as a vote dilution remedy. Ct.
Shaw v. Reno, 113 S. Ct. at 2827. For the sake of
thoroughness, we now turn to other factors relating
to the second and third Gingles preconditions.

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81a

iii. On Racial Polarization and Overly
Safe Districts

We now move from reviewing the need for an Elev-
enth District to examining the need for the current
racial configuration of its constituency. The Court
was here subjected to especially mind-numbing and
contradictory statistical data. A team of court-
appointed statisticians and political scientists would
be hard pressed to divine from the evidence a single
concrete finding regarding racially polarized voting,
crossover voting patterns, or the minimum black vot-
ing age population reasonably required under the
VRA to ensure "equal opportunity" for black voters
in Georgia. Moreover, we are dubious of arguments
based on elusive "benchmarks" for the "appropri-
ate" amount of minority voting influence, and of the
judiciary's competence to resolve such disputes. The
benchmark concept is rife with difficulties, and tolls
a dangerous evolution in voting rights jurisprudence.
See, e.g., Holder, 114 S, Ct. at 2594 (" [I]n setting
the benchmark of what `undiluted' or fully `effective'
voting strength should be, a court must necessarily
make some judgments based purely on an assessment
of principles of political theory."). We feel, however,
constrained to the task.
The "bivariate ecological regression methodologies,"
"extreme case analyses, " "r-squared coefficients," and
"frequency distributions" cough up basically two
types of statistical information. First, we have anal-
yses of the degree of racial polarization in Georgia
voting. Regression and extreme case analyses are
the primary research methods here, and Dr. Licht-
man, for the United States, uses them to prove the
existence of polarization in Georgia. Drs. Weber and

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82a

Katz also implicitly or explicitly acknowledge the
presence of racially polarized voting, but dispute the
extent and significance of its existence. All that is
clear from the evidence is that some degree of vote
polarization exists, but not in alarming quantities.
Exact levels are unknowable. Unfortunately, such a
finding is not particularly useful, and tells us noth-
ing about the racial percentages needed within a
single-member district to "rectify" the problem.
In addition, we also find a significant degree of
crossover voting in Georgia and the Eleventh District,
with white voters slightly more willing to vote for
black candidates than black voters for white candi-
dates. Rpt. of Dr. Katz, Table 2. The average per-
centage of whites voting for black candidates ranged
from 22% to 38%; the average percentage of blacks
voting for white candidates ranged from 20%-23%.
Black and black-preferred candidates in Georgia have
achieved many electoral victories in local and state-
wide elections and have received significant-occa-
sionally overwhelming-support from both black and
white voters within the Eleventh Congressional Dis-
trict. As with our vote polarization findings above,
our observations here are not overly useful on their
own. However, the very lack of solid evidence of
black vote cohesion or rampant bloc voting, i.e., vote
polarization, contributes to our conclusion that the
current Eleventh District was not an appropriate
section 2 remedy.
The second type of information we cull from the
available evidence is geared towards determining the
actual percentages needed to give black voters in a
certain district an equal opportunity to elect their
candidate of choice. At first glance it appears that

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83a

the 60.36 % black voting age population of the Elev-
enth is excessive; the Second and Fifth Districts have
52.33 % and 57.4770 black voting age population, re-
spectively. Both the Second and Fifth were suffi-
ciently majority-black districts to satisfy DOJ, and
so presumably the VRA.
Statistically speaking, reconstituted election results
from precincts within a certain district, actual prior
election results from a certain district, and frequency
distributions are the primary methods used to esti-
mate the percentages needed to give black voters an
equal opportunity to elect a candidate of their choice.
Exact numbers are not available in this context, and
the State did not make any inquiries during its re-
districting efforts that might have informed its choice
of what black voting population percentage was
needed. As Ms. Meggers testified, the "traditional"
65% rule governed: as a rule of thumb, it was
thought, 65% black total population was needed in a
majority-black district, because approximately 5% +
of blacks were not of voting age population, 570+
were unregistered even if of voting age, and some
blacks could be expected to not vote, regardless of
status. Thus, the black voting strength was "really"
slightly over 50%. We will not base a determination
of narrow tailoring-a finding of constitutional mag-
nitude-on such a broad generalization.
That said, the expert testimony is extremely sparse
on the numbers needed in the Eleventh to ensure
equal opportunities for minorities. First the experts
examine actual results from the 1992 election in the
Eleventh Congressional District. Black candidates
were supported in several stages of the election to
varying degrees, but the results of a single election

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84a

provide little basis for sound generalizations. We
note that in the 1992 Democratic primary, black can-
didates in the Eleventh District received approxi-
mately 55% of the white vote, signifying to us a
general willingness of white voters to vote for black
candidates. Cynthia McKinney (who is black), re-
ceiving 56% of the vote, won in the runoff election
against George DeLoach (who is white). Rep. Mc-
Kinney received 23% of the white vote in the run-
off.
 Dr. Lichtman presented reconstituted election analy-
ses involving two elections: the 1988 Democratic
presidential primary, and the 1990 Democratic gub-
ernatorial runoff. See Rpt. of Dr. Lichtman at 36.
When the results in these two elections are "recom-
piled" for the present Eleventh Congressional Dis-
trict, black candidate Andrew Young would have pre-
vailed in the gubernatorial runoff by a margin of
5870 to 42%, and black candidate Jesse Jackson
would have prevailed in the presidential primary by
a margin of 68.1% to 31.9%. See id. at 37; Rpt.   
of Dr. Weber & Supp., Attach. F. Dr. Weber's ex-
tended reconstituted election analyses indicate that
the black candidate (s) of choice have received a total
of 65.7% of the vote in ten elections held entirely
within the precincts of the current Eleventh Con- 
gressional District.                
Dr. Joseph Katz presented the final evidence on
the percentages necessary to grant black voters equal
electoral opportunities. This evidence is actually the
most useful to us; the State seems to have retained
Dr. Katz for the unusual purpose of undermining the
testimony of both Intervener United States' expert
Dr. Lichtman and Plaintiffs' expert, Dr. Weber. He
was largely successful. Dr. Katz questioned the as-

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85a

sumptions made by Drs. Weber and Litchman, and his
efforts were intended to show that while the current
plan did give minorities a "reasonable" opportunity
to elect their candidates of choice, the plan was not
compelled by the VRA. See Tr. V, at 73; State Def.
Prop, Concl. at "par", 108-13. Dr. Katz offered several
frequency distributions plotting prior election results
to determine the probability of a black candidate win-
ning a future election given a certain percentage of
registered black voters. Though the analysis is sound
and relatively straightforward, its value is diminished
by the use of databases from state-wide elections
rather than from specific areas within the state; it
cannot account for varying voting patterns in the spe-
cific regions pertinent to this case. The analysis also
measures only the probability of a black candidate
winning, not of a black-preferred candidate winning.
Since only black candidates' success is plotted, using
the distribution as a predictor requires the unsub-
stantiated assumption that a black candidate will al-
ways be the candidate of choice of black voters in
future elections, and ignores the historical preferences
of black voters in all-white elections.
Finally, the value of the analysis is lessened by the
use of registered black population rather than voting
age black population as its independent variable.
Voting age population- those persons eligible to vote
-is the proper measure of whether black voters have
an equal opportunity to elect candidates of their
choice, not registered population, which is only that
segment of the population that actually decides to
participate. See Growe v. Emison, 113 S. Ct. 1075,
1083 n.4; Marylanders for Fair Representation v.
Schaefer, 849 F. Supp. 1022, 1051 (D. Md. 1994)
(citing cases). The VRA guarantees "the right to

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         86a

have free and equal access to the ballot box and to
have the vote that is cast count the same as any other
person's," but the Act "does not endow the voter with
the right to have his or her vote cast for the winner."
Smith v. Brunswick County, 984 F.2d 1393, 1398
(4th Cir. 1993). Accounting for lower voter registra-
tion and turnout rates among black citizens when
determining what constitutes an "equal opportunity
to participate in the electoral process," Gingles, 478
U.S. at 44, and creating "safe black districts" to
compensate for those rates amounts to an incentive
for and institutionalization of black voter apathy.
That we will not condone. As the Supreme Court has
recently said, "minority voters are not immune from
the obligation to pull, haul, and trade," De Grandy,
114 S. Ct. at 2661, and, this Court adds, "the obliga-
tion to register and vote." We are troubled, there-
fore, by analyses founded on black voter registration
rather than black voting age population.
Even considering these shortcomings, Dr. Katz's
frequency distributions are the most useful and credi-
ble guide to estimating the black population percent-
ages needed in the Eleventh Congressional District.
Defendants and Intervenors seem to agree that the
frequency distributions are the only real basis in
evidence for estimating the percentages required,
and their proposed conclusions of law on the narrow
tailoring issue implicitly or explicitly refer to this
data. The data indicates that a black candidate in
Georgia would have an "equal" chance of being
elected in a district containing 45-5070 black regis-
tered voters. See Rpt. of Dr. Katz, at Tab 5 (all
charts). Georgia's Eleventh Congressional District
has a black registered voter percentage of 5770, Def.
Joint Exh. 21, providing a black candidate a roughly
73% probability of winning an election in that dis-

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         87a

trict. See id. An assessment of black voting age pop-
ulation would presumably yield an even higher prob-
ability. Defendants' tacitly acknowledge that this is
more than an "equal" chance of election, but they
propose that it nonetheless presents a "reasonable"
opportunity for blacks to elect a candidate of their
choice. We are only concerned with the former as-
sessment: the probability afforded by the current
Eleventh District represents more than an "equal"
opportunity, and is in excess of that required by sec-
tion 2 of the VRA.
The record fails to demonstrate compactness,
chronic bloc voting, or reasonably necessary black
voter percentages in the Eleventh Congressional Dis-
trict. Since the district does not satisfy the Gingles
preconditions, we do not review the "totality of the
circumstances. " The Eleventh District is not nar-
rowly tailored to comply with the putatively compel-
ling interest of section 2 compliance.
In sum, the current districting plan is not reason-
ably necessary to comply with sections 2 or 5 of the
VRA. Since no compelling state interest other than
VRA compliance is evident, the plan fails strict scru-
tiny under the Fourteenth Amendment. We finally
conclude and declare that Georgia's Eleventh Con-
gressional District is unconstitutional in its current
composition. The State of Georgia is hereby barred
from using it in future congressional elections.

III. RELIEF

Elected governments are obviously entrusted with
enormous responsibilities, and when confronted with
fundamental issues of race and democracy, they are
obliged to govern with insight and care. Our pro-
longed mediations on compactness scores and fre-

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88a

quency distributions threaten to obscure the impor-
tant point that "narrow tailoring to accommodate
a compelling state interest" does not mean a wooden,
mechanical application of one remedy while ignoring
all alternatives. Single-member majority-black dis-
tricts are not a constitutional or statutory require-
ment. The assumption that the sole means of enhanc-
ing blacks' political influence is to pack them into
such districts is unimaginative.
The time has come to contemplate more innovative
means of ensuring minority representation in demo-
cratic institutions. Otherwise, the United States
face [s] a steady transmogrification into racially balk-
anized voting units. The Court, however, will not lead
the pursuit for answers, for we are in agreement
with Justice Thomas that

under our constitutional system, this Court is
not a centralized politburo appointed for life to
dictate to the provinces the "correct" theories
of democratic representation, the "best" elec-
toral systems for securing truly "representative"
government, the "fairest" proportions of minor-
it y political influence, or . . . the "proper" sizes
for local governing bodies.

Holder, 114 S. Ct. at 2602. Voting reform is the prov-
ince of legislatures; Georgia's owes its citizens new
solutions.
No congressional elections will be held in the Elev-
enth Congressional District until it is revised in keep-
ing with our decision today. This is a permanent in-
junction. The Court will initially reconfigure the dis-
trict with the aid and assistance of the personnel and
equipment of the State Reapportionment Services of-

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        89a

fice. Such revision will surely affect the First and
Tenth Congressional Districts, but there is little
chance that the Court's order will affect other dis-
tricts in Georgia. The original parties and the
Abrams Interveners are invited to submit written,
statistical, and graphic suggestions (not to exceed
a total of 25 pages per party) to this Court, no later
than September 26, 1994. The parties' submissions
should be as narrowly conceived as possible to satisfy
constitutional requirements, and cause minimal dis-
ruption to the political process of the State of Geor-
gia. A hearing on redistricting remedies will be held
in Savannah at 9:00 a.m. on October 3, 1994. After
this Court's order for relief as to the 1994 congres-
sional elections, Georgia officials may wish to revisit
the issue of reapportionment in the affected districts,
or statewide. That decision rests with the State.
  
     CONCLUSION

Accordingly, it is HEREBY ORDERED that con-
gressional elections in Georgia's Eleventh Congres-
sional District are ENJOINED until further order of
this Court. It is further ORDERED that this Court
reserves decision and jurisdiction to reconfigure the
Eleventh Congressional District in a manner con-
sistent with this opinion and after reviewing the par-
ties' suggestions; this Court also reserves decision and
jurisdiction to order the concomitant required modi-
fications to the First and Tenth Districts as the need
arises.
As an accommodation to the parties and their at-
torneys, a copy of this opinion shall be lodged with
the Clerk of the Eleventh Circuit Court of Appeals
simultaneously with its filing in the District.

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90a

Entered at Augusta, this 12th day of September,
1994.

/s/ Dudley H. Bowen, Jr.
DUDLEY H. BOWEN, JR.
United States District Judge

for himself and for
B. AVANT EDENFIELD
Chief Judge

United States District Court
Southern District of Georgia
         
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91a

Edmondson, Circuit Judge, disserting:

At the outset, I cheerfully admit that my col-
leagues may well be right about what is the correct
result in this case. In such circumstances, I (despite
my disagreement) usually write nothing in dissent.
But, given the exceptional importance of this case
to the people of Georgia and to the law of the United
States, I feel obliged to explain briefly and generally
my view.
Reapportionment of a state's congressional districts
is fundamentally the domain of the states rather than
the federal courts. Growe v. Emison, 113 S. Ct. 1075,
1080 (1993) ; Connor v. Finch, 97 S. Ct. 1828, 1833
(1977) ; Reynolds v. Sims, 84 S. Ct. 1367, 1394
(1964). The Constitution leaves the responsibility
for apportioning congressional districts with the
states. Id: Voinovich v. Quiltner, 113 S. Ct. 1149,
1157 (1993 ). And, state political considerations per-
vade the apportionment process making it a "highly
complex and multifaceted . . . political thicket." Rey-
nolds, 84 S. Ct. at 1385. For example, considerations
of incumbency, local politics, and the balance of
power between Democrats and Republicans in the
state legislature, as well as innumerable other con-
siderations (such as, the simple exchange of votes
by legislators to advance each other's goals), control
the placement of a state's congressional districts. All
legislative action is a product of debate, compromise,
and political decisions. The evidence-such as the
Lieutenant Governor's testimony-in this case shows
that apportionment legislation takes this process to
an especially intense level.
Largely because of the uniquely political, sensitive,
and complex nature of apportionment, a federal courts

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         92a

hearing a challenge to a state's apportionment plan
must give federalism concerns especially significant
consideration. The Supreme Court has repeatedly
stressed that "[f]ederal courts are barred from in-
tervening in state apportionment in the absence of
a violation of federal law precisely because it is the
domain of the states, and not the federal courts, to
conduct apportionment in the first place." Voinovich,
113 S.Ct. at 1157. Federal courts are bound to re-
spect a state's apportionment decisions unless the
choices have clearly violated constitutional or federal
law requirements. Id.1

___________________(footnotes)

1 Plaintiffs in this case attempt to minimize federalism con-
cerns by suggesting that the federal government, acting
through the Department of Justice, forced the State of Georgia,
that is, the State's elected leaders, to enact the present con-
gressional districting plan. Because Georgia is subject to the
preclearance requirements of section 5 of the Voting Rights
Act, the Department of  Justice does play a role in the enact-
ment of any State plan. The State, however, always has the
option of seeking relief in federal court from the Depart-
ment's objections. State leaders bear the responsibility for
weighing the advantages and disadvantages of litigation as
part of their responsibility for reapportionment generally.
But, that the courts are open to Georgia undercuts substan-
tially the idea that the Department of Justice can, in fact,
dictate to Georgia. (I note, by the way, that Georgia's Senate
had included parts of Savannah-the most controversial ele-
ment of the Eleventh District-in the Eleventh District be-
fore the Department of Justice mentioned such a thing. )
In addition, no plan may be enacted unless it is first adopted
by Georgia's legislature. The Department's objection to the
State's first two plans affected Georgia's ultimate plan. But
in the end, the plan before us represents the judgment of
Georgia's elected leaders (the main guardians of the public
interest for Georgia) on congressional apportionment. And,
as the Supreme Court has stated, the State's judgment de-
mands the respect of the federal courts.

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         93a

With these federalism concerns in mind, I look
at Shaw v. Reno, 113 S. Ct. 2816 (1993), the prece-
dent that allows, but also limits in important ways,
federal judicial action in apportionment cases. Be-
cause Congressional apportionment has always been
seen as a state matter, only two circumstances his-
torically would allow a federal court to use the Equal
Protection Clause as a basis to intervene in the ap-
portionment process: (1) the state's apportionment
plan violated one-person, one-vote principles by cre-
ating districts with substantially unequal popula-
tions, Reynolds v. Sims, 84 S, Ct. 1367 (1964); (2)
the state's apportionment plan had the purpose and
effect of diluting the voting strength of a minority
or other identified group of voters, Wright v. Rocke-
feller, 84 S. Ct. 603 (1964). Neither of these circum-
stances is present in this case.
Therefore, if we are to interfere with Georgia's
Congressional plan, from where does our authority
come? Shaw points to the possible source. Shaw held
that a congressional district that is "so highly ir-
regular on its face that it can be viewed only as an
effort to segregate the races for purposes of voting"
may be examined by federal courts and, then, be
struck down unless the district can survive "strict
scrutiny" under the Equal Protection Clause. Shaw,
113 S. Ct. at 2828. Highly irregular shape-the ap-
pearance of the district-is the critical element of
this new cause of action under the Equal Protection
Clause. This element strongly limits the power of
federal courts to become entangled in state apportion-
ment matters.
Plaintiffs in this case want us not just to follow
Shaw, but to extend Shaw to make federal court
intrusion in apportionment cases easier and more
 
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94a

likely. But, there are important differences between
following a precedent and extending it. Because
extension of Shaw as plaintiffs advocate would di-
minish in important ways the traditional freedom of
states to apportion themselves for Congressional pur-
poses without federal judicial supervision, I decline
to take that step without plain instruction from the
nation's highest court.
Plaintiffs argue that the fundamental inquiry is
whether the district has been set up on racial
grounds. The burden, they admit, is on them to show
that legislators intentionally drew lines to segregate
voters according to race. Plaintiffs claim, however,
that any evidence probative of the state's decision-
making process may be used to prove legislative in-
tent. Under this more active approach, the district's
appearance is of little importance; shape is merely
one piece of circumstantial evidence proving the leg-
islature's intentional use of race. Other evidence,
especially direct testimony from legislators about
their motivations, could be used by plaintiffs to prove
intent. 2 According to plaintiffs, once they, by any

___________________(footnotes)

2 During the trial, several State legislators testified about
why the Eleventh looks like it does. I accept that each of
these men spoke the truth as they know it. But, the main
truth (with which I think all agreed) is that, in a democracy,
apportionment is a highly political process. Many different
agendas may be at work. So, no one person can truly say
why other legislators decided to vote this way or that way.
I cannot give much weight to post-enactment statements of
individual legislators about the subjective motives of the
State house, State senate and governor when the apportion-
ment plan was enacted. See generally Edwards v. Aguillard,
107 S. Ct. 2573, 2584 n.19 (1987) (finding post-enactment
statements "to be of little relevance in determining the in-
tent of the legislature"); Blanchette v. Connecticut General
Insurance Corps., 95 S.Ct. 335, 353 (1974) (holding that

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         95a

means, have shown that race was a substantial factor
in the legislature's decisionmaking process, the bur-
den is on the state to show that the district satisfies
strict scrutiny.  I cannot agree with this more sweep-
ing approach to federal judicial review.  The words 
"on its face" in Shaw were not used lightly, I be-
lieve.' The district's shape is no mere piece of evi-
dence; it is a critical part of the cause of action.

___________________(footnotes)

statements by individual legislators "represent only the per-
sonal views of those legislators" and not the intent of the
legislature); National Woodworkers' Mfrs. Ass'n. v. N.L.R.B.,
87 S. Ct. 1250, 1265 n.34 (1967) (holding that statements
made by legislators after a bill was passed "could represent
only the personal views of those legislators").
Shaw's highly-irregular-appearance standard is an objec-
tive standard, and it, among other things, avoids the unre-
liability of after-the-fact statements by legislators and also
avoids the necessity of federal judges probing and intruding
on state officers' thoughts (perhaps expressly crediting some
state officers and not crediting others-a divisive event) to
"learn" the state's true intent.
3 No fewer than six times the Shaw Court repeats that a
district may be challenged on the grounds that it is "bizarre,"
"highly irregular" or "irrational on its face." Id. at 2824,
25, 26, 29, 32. That the Court presented the issue in this
manner cannot be ignored. To hold that the proper inquiry
is simply whether race was a "substantial factor" ignores
the plain language of the opinion. Instead, to follow Shaw,
a court must ask whether the district is so bizarre on its face
that only racial considerations could account for its shape.
And, I consider the Court's discussion of United Jewish
Organizations of Williamsburg, Inc. v. Carey, 97 S. Ct. 996
(1977) (UJO), enlightening. In UJO, the Court upheld a
state's districting scheme despite evidence that the lines were
drawn on the basis of race. According to Shaw, the plain-
tiffs in UJO failed to state a valid claim because they "did
not allege that the plan, on its face, was so highly irregular
that it could be understood only as an effort to segregate

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         96a

In turning to the facts of this case, we must ask
first whether the plaintiffs have carried their burden
of showing that the Eleventh District is so "bizarre"
or "highly irregular" in shape that it can only be
explained by race. In determining whether a district
is bizarre, the court may consider many factors, in-
cluding the district's size, outline, allegiance to tra-
ditional districting principles such as compactness
and respect for political subdivisions, and how it
appears in comparison to other districts in the State's
plan, earlier plans, or even districts from other
states. Based on objective criteria, I cannot find and
cannot conclude that plaintiffs have proved the Elev-
enth District is bizarre or highly irregular within
the meaning of Shaw.
1. The size of the district is not particularly note-
worthy. Georgia's Districts One, Two, and Eight
each have a total area of over 10,100 square miles.
In contrast, the Eleventh District has an area of
6,780 square miles.
2. The district's 1,184 miles of borders is not dis-
tinctive when compared to the Second (1243 miles)
or the Eighth (1155 miles) Districts.
3. Plaintiffs claim that the district is bizarre be-
cause it comes within 58 miles of crossing the entire
State. But, the Ninth District spans the entire
northern border of the State and the First, Second,
and Eighth Districts begin at the Florida border
and stretch north to almost the middle of the State.
4. The Eleventh District shows considerable re-
spect for existing political boundaries. That seventy-
one percent of the district's boundaries follow exist-
ing state, county, and city borders is significant. This

___________________(footnotes)

voters by race." Shaw, 113 S. Ct. at 2829. Again, appearances
count a lot: Is the district highly irregular in its shape?

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         97a

places the Eleventh at the average for the State's ten
other congressional districts.
5. In addition, eighty-three percent of the Elev-
enth's area comes from whole counties. In compari-
son, the average among the State's other districts is
sixty-two and one-half percent.
6. Georgia's congressional districts have no tradi-
tion of being neat, geometric shapes. And, areas of
the Second and Eighth Districts in Bibb and Houston
Counties look-as irregular or-much more irregu-
lar. The same may be said of the Third District in
Crawford County. To be sure, the Eleventh makes
curious turns in some areas, particularly the areas
around Atlanta, Savannah, and Augusta. But, in
these areas most of the lines follow existing city
boundaries or major highways and roads. The Elev-
enth District makes use of what some have called
"landbridges" to connect populations to the district,
but it is not unique in that respect: for example, see
the current Seventh District's inclusion of Marietta
and the 1970's Seventh District's inclusion of an area
in or around Dalton.4 A comparison of-including,
just looking at- Georgia's Eleventh District to the
district in Shaw or to districts being successfully

___________________(footnotes)

4 About population, I do not say that population distribution
within a district counts for nothing when courts look at the
district's appearance for Shaw purposes, but I am unsure
that the "on its face" rule includes population within the
district. In any event, population density normally varies
considerably across most districts, except completely urban
districts. I expect that many districts (including, for ex-
ample, Georgia's Ninth District which is, by the way, mostly
white) would look funny if geography were somehow dis-
torted-parts blown-up or shrunk-to reflect population
density.

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98a

challenged in other states supports the conclusion that
the Eleventh District is not highly irregular or, put
differently, bizarre. 5
7. That the Eleventh District splits eight counties
is unremarkable. The Sixth District has no whole
counties but parts of five counties. And, the Fourth
District has one whole county and parts of two others.
Splitting counties in Georgia's congressional districts
for reasons wholly unrelated to race is part of Geor-
gia's history: for example, Whitfield in 1970 and
Gwinnett in 1980.
8. Qualitative measurements for compactness, such
as perimeter and dispersion measurements, show the
Eleventh District is not bizarre or highly irregular.

___________________(footnotes)

5 In thinking about the degree of irregularity in the shape
of the current Eleventh District I have also looked at some
proposals for apportionment that were never adopted. Many
groups submitted proposals for reapportionment on the basis
of one person, one vote. One plan was (and is) known as the
"Max-Black" plan or the "Max Plan". The proposal was
drawn with one idea in mind: to maximize black representa-
tion in Congress and as a corollary to boost black voting
power in certain districts in Georgia. The plan shows what
the Eleventh District would look like if it was wholly based
on race. The Max-Black plan did influence to some degree
the shape of the ultimate Eleventh District, a majority black
district. But, it seems important to me that the actual Elev-
enth is not identical to the Max-Black plan. The Eleventh,
to my eye, is significantly different in shape in many ways.
These differences show, as I understand it, consideration of
other matters beyond race, including traditional districting
factors (such as keeping political subdivisions intact) and
the usual political process of compromise and trades for a
variety of nonracial reasons. In the light of Shaw, the Max-
Black proposal for what became the Eleventh District would
likely have been bizarre in shape, but the actual Eleventh
District is much more regular. See Appendix A.

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99a

One measurement, called dispersion scoring, com-
pares the area of the district  to  the area of the small-
est circle that would enclose the district. And, perim-
eter scoring compares the area of the district to the
area of a circle with the same perimeter. While I
express no view as to the reliability of these measure-
ments, political scientists, according to plaintiffs' ex-
perts, use the measurements to evaluate a district's
compactness.
According to perimeter scoring, the Eleventh is
more compact than approximately forty-six other
congressional district in the county. Under disper-
sion measurements, the Eleventh is more compact
than about twenty-nine other districts. And, under
these measurements, the Eleventh is more compact
than the North Carolina District challenged in Shaw,
the Texas and Louisiana Districts recently held un-
constitutional in the Fifth Circuit, and the Florida
District under challenge in the Eleventh Circuit.
Again, these measurements, by themselves, are not
outcome determinative; nonetheless, they confirm the
view that Georgia's Eleventh District is not highly
irregular.']
In concluding, I will not be coy: no party in this
case disputes that race was an important considera-
tion in the drawing of the Eleventh District. But,
as I understand the law as explained by the Supreme
Court, the Constitution does not condemn all race-
conscious districting. For Shaw, appearance is the
first and the main issue. Highly irregular appear-

___________________(footnotes)

6 One of plaintiffs' expert witnesses testified that under
these measurements, as well as population compactness meas-
urements, the Eleventh District scored above traditional cut-
offs for compactness.

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100a

ante must be shown, or federal judges have no right
to look further or to inquire more.
Federal courts must be on guard against tempta-
tion to venture into the realm of political science.
And not every district that some expert or some fed-
eral judge could draw "better," that is, more regu-
larly or more compactly, is "highly irregular" within
the meaning of Shaw. whatever I may personally
think about the wisdom of the Eleventh's boundaries
or of the policy choices that led to them, the Eleventh
District is not so bizarre on its face to justify, pur-
suant to the Constitution, a more searching inquiry.
Thus, plaintiffs have failed to prove a valid Shaw
claim. In the absence of such a showing, this court
-as I understand the law-cannot rightly interfere
with the reapportionment plan that resulted from
Georgia's political process.
I would render a judgment for defendants.

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101a

"Max Plan"

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        102a

Current 11th District

---------------------------------------- Page Break ----------------------------------------

         l03a

       APPENDIX B

           [Filed July 26, 1994]

  STATEMENT OF JUDICIAL NOTICE

Evidence of former discriminatory practices against
black people in the State of Georgia need not be pre-
sented for purposes of this case, Racial discrimination
has been an unfortunate reality in the state's history.
No one can deny that state and local governments of
Georgia in the past utilized widespread, pervasive
practices to segregate the races which had the effect
of repressing black citizens, individually and as a
group.
In the past in Georgia, like in so many other states
of the Union, racial segregation was government pol-
icy and a way of life. By law, public schools and pub-
lic housing were segregated according to race. Public
recreational facilities were segregated. Miscegenation
was prohibited. Ordinances required segregation in
public transportation, restaurants, hotels, restrooms,
theaters, and other such facilities, even drinking
fountains.
More indirectly, the government often treated black
citizens differently from white citizens. Public serv-
ices were allocated along racial lines. To find roads in
white neighborhoods paved but roads in black neigh-
borhoods unpaved was common. In public employ-
ment, black workers were often paid less than white
workers for the same job. In addition, methods of
jury selection were developed to exclude black people
from jury service.
Georgia's history on voting rights includes discrimi-
nation against black citizens.  From the state's first
 Constitution-which barred blacks from voting alto-

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104a

gether-through recent times, the state has employed
various means of destroying or diluting black voting
strength. For example, literacy tests (enacted as late
as 1958) and property requirements were early means
of excluding large numbers of blacks from the voting
process. Also, white primaries unconstitutionally pre-
vented blacks from voting in primary elections at the
state and county level.
Even after black citizens were provided access to
voting, the state used various means to minimize their
voting power. For example, until 1962 the county unit
system was used to undermine the voting strength of
counties with large black populations. Congressional
districts have been drawn in the past to discriminate
against black citizens by minimizing their voting
potential. State plans discriminated by packing an
excessive number of black citizens into a single dis-
trict or splitting large and contiguous groups of black
citizens between multiple districts.
Never do we imply that a history of invidious racial
discrimination is unique to Georgia. Our judicial
notice is confined to Georgia because this ease is about
Georgia, and Georgia is a covered jurisdiction under
the Voting Rights Act. Our notice is intended to set
out the historical facts, not to insult a state or people
who have made great and difficult strides towards
equality during the last thirty years and who could be
mentioned for many good, kind, and brave things
unrelated to this case.

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        105a

        APPENDIX C

             [Filed Sep. 20, 1994]
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
      AUGUSTA DIVISION

      No. CV 194-008

  DAVIDA JOHNSON, ET AL., PLAINTIFFS

         v.

   ZELL MILLER, ET AL., DEFENDANTS

        and

UNITED STATES OF AMERICA, DEFENDANT-INTERVENOR
        and

    LUCIOUS ABRAMS, JR., ET AL.,
     DEFENDANT-lNTERVENORS

UNITED STATES' NOTICE OF APPEAL

The United States hereby gives notice that it will
appeal to the United States Supreme Court this
Court's September 12, 1994, order granting injunctive
relief.

---------------------------------------- Page Break ----------------------------------------

106a

				  Respectfully submitted,

HARRY D. DIXON, JR. 		  DEVAL L. PATRICK
United States Attorney 		  Assistant Attorney
           				  General

/s/ Daniel H. Claman
JOHN K. TANNER
DONNA M. MURPHY
JUDYBETH GREENE
DANIEL H. CLAMAN
Attorneys,
  Voting Section
Civil Rights Division

Department of Justice
P. O. Box 66128
Washington, D.C. 20035
202/514-6340

---------------------------------------- Page Break ----------------------------------------

107a

APPENDIX D

[Filed Sep. 22, 1994]

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
     AUGUSTA DIVISION

No. CV 194-008

DAVIDA JOHNSON, ET AL., PLAINTIFFS

v.

   ZELL MILLER, ET AL., DEFENDANTS

        and

UNITED STATES OF AMERICA, DEFENDANT-INTERVENOR

        and

    LUCIOUS ABRAMS, JR., ET AL.,
    DEFENDANT-INTERVENERS

   UNITED STATES'
AMENDED NOTICE OF APPEAL

Pursuant to 28 U.S.C. 1253, the United States
hereby appeals to the Supreme Court of the United
States this Court's September 12, 1994, order grant-
ing declaratory and injunctive relief.

---------------------------------------- Page Break ----------------------------------------

108a

respectfully submitted,

HARRY D. DIXON, JR.   	 DEVAL L. PATRICK
United States Attorney  	 Assistant Attorney
          General

/s/ Daniel H. Claman
JOHN K. TANNER
DONNA M. MURPHY
JUDYBETH GREENE
DANIEL H. CLAMAN
Attorneys,
  Voting Section
Civil Rights Division
Department of Justice
P. O. BOX 66128
Washington, D.C. 20035
202/514-6340

* U. S. GOVERNMENT PRINTING OFFICE 1994    387147  20006

---------------------------------------- Page Break ----------------------------------------
 
  
No. 94-929

In the Supreme Court of the United States

OCTOBER TERM, 1994

UNITED STATES OF AMERICA, APPELLANT

V.

DAVIDA JOHNSON, ET AL.

ZELL MILLER, ET AL., APPELLANTS

V.

DAVIDA JOHNSON, ET AL.

LUCIOUS ABRAMS, JR., ET AL., APPELLANTS

V.

DAVIDA JOHNSON, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA

BRIEF FOR THE UNITED STATES

DREW S. DAYS, III
Solicitor General

DEVAL L. PATRICK
Assistant Attorney General

PAUL BENDER
Deputy Solicitor General

JAMES A. FELDMAN
Assistant to the Solicitor General

STEVEN H. ROSENBAUM
MIRIAM R. EISENSTEIN
Attorneys

Department of Justice
Washington, D.C. 20530
(202)514-2217 

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QUESTIONS PRESENTED 

1. Whether a districting plan is always subject to strict
scrutiny if race has been  a substantial or motivating factor
in its creation.
2. Whether the boundaries of Georgia's Eleventh Con-
gressional `District' are so bizarre on their face that they
can be understood only as an effort to segregate voters
into separate districts because of their race.
3. Whether the State's creation of District Eleven is
narrowly tailored to further a compelling interest.

(I)

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II

PARTIES TO THE PROCEEDING

In addition to the. parties named in the caption, the
plaintiffs below were Pam Burke, Henry Zittrouer, George
L. DeLoach, and George Seaton. The defendants below
were Zell Miller, Governor of Georgia, Pierre Howard,
Lieutenant Governor of Georgia, Thomas Murphy, Speaker
of the House of Representatives d Georgia, and Max
Cleland, Secretary of the State of Georgia. Intervenor-
defendants were Lucious Abrarns, Jr., Rev. G.L. Avery,
William Gary Chambers, Sr., and Karen Watson.

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TABLE OF CONTENTS
			Page

Opinion below  . . . . 1 
Jurisdiction  . . . .2 
Constitutional and statutory provisions involved  . . . . 2
Statement  . . . .2 
Summary of argument  . . . . . 13

Argument:

I. Georgia's redistricting plan is not subject to
  strict scrutiny  . . . . 16
A.   An inquiry into legislative intent alone can
not determine whether a redistricting plan is
subject to strict scrutiny . . . . 16 
B.  Georgia's Eleventh District is not so highly
   irregular on its face that it can be under-
   stood only as an effort to segregate the races
   for purposes of voting  . . . . 23 
II. The Eleventh district satisfies strict scrutiny  . . . . 28 
  A. The State had a compelling interest in draw-
   ing the Eleventh District as a majority-
   district  . . . . 28
  B. The State's plan is narrowly tailored to fur-
   ther its compelling interests . . . . 40 
Conclusion  . . . . 43
Appendix  . . . . 1a
     
TABLE OF AUTHORITIES

Cases:

Beer v. United States, 425 U.S. 130 (1976)  . . . . 29
Bread Political Action Comm. v. Federal Election
  Comm'n, 455 U.S. 57 (1982)  . . . . 22
Brooks v. State Bd. of Elections, 848 F. Supp. 1548
  (S.D. Ga. 1994)  . . . . 39
Busbee v. Smith, 549 F. Supp. 494 (D.D.C. 1982),
aff'd, 459 U.S. 1166 (1983) . . . . 3, 4, 29, 31

(III)

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           Iv

Cases-Continued:              Page

Chrysler Corp. v. Brown, 441 U.S. 281 (1979 ).... 22
City of Pleasant Grove V. United States, 479 U.S.
  462 (1987)  . . . . 29
City of Port Arthur v. United States, 459 U.S. 159
  (1982)  . . . . 29
City of Richmond v. J.A. Croson Co., 488 U.S. 469
  (1989) . . . .  29, 39
City of Richmond v. United States, 422 U.S. 358
  (1975)  . . . . 29
Collins V. City of Norfolk, 883 F.2d 1232 (4th Cir.
  1989), cert. denied, 498 U.S. 938 (1990) . . . .  37
Consumer Prod. Safety Comm'n v. GTE Sylvania,
  447 U.S. 102 (1980) . . . .  22
Hays V. Louisiana, 839 F. Supp. 1188 ( W.D. La.
  1998), vacated and remanded, 114 S. Ct. 2731
  (1994) . . . .  9, 41
Jeffers V. Clinton, 756 F. Supp. 1195 (E.D. Ark.
  1990), aff'd mem., 498 U.S. 1019 (1991) . . . .  42
Johnson V. DeGrandy, 114 S. Ct. 2647 (1994)  . . . . .36-37, 40
Johnson v. Transportation Agency, 480 U.S. 616
  (1987) . . . .  29
Ketchum V. Byrne, 740 F.2d 1398 (7th Cir. 1984),
  cert. denied, 471 U.S. 1135 (1985) . . . .  42
McGinnis v. Royster, 410 U.S. 263 (1973) . . . .  21
Palmer v. Thompson, 403 U.S. 217 (1971)  . . . . 21
Pension Benefit Guaranty Corp. v. LTV Corp.,
  496 U.S. 633 (1990)  . . . .  22
Presley v. Etowah County Comm'n, 112 S. Ct. 820
  (1992) . . . .  30
Public Employees Retirement System of Ohio v.
  Betts, 492 U.S. 158 (1989)  . . . . 22
Regents of the Univ. of Calif. v. Bakke, 438 U.S.
  265 (1978) . . . .  30
Rogers V. Lodge, 458 U.S. 613 (1982) . . . .  83
Slaw V. Hunt, 861 F. Supp. 408 (E.D.N.C. 1994)   30,37
Shaw V. Reno, 113 S. Ct. 2816 (1993)  . . . . 2, 8, 13, 15, 19,
                  				23,24,27
Thornburg v. Gingles, 478 U.S. 30 (1986) .. . . 11, 36, 37, 41
United Jewish Organizations of Williamsburg,
  Inc. v. Carey, 430 U.S. 144 (1977) . . . . 17, 39

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          v

Cases-Continued:              Page

United States v. Dallas County Commission, 739
F.2d 1529 (llth Cir. 1984) . . . . 42
United States v. Marengo County Commission, 731
F.2d 1546 (llth Cir.), appeal dism. and cert.
denied, 469 U.S. 976 (1984) . . . .  42
United States v. Paradise, 480 U.S. 149 (1987 ) .. 40
Village of Arlington Heights v. Metropolitan
Housing Development Corp., 429 U.S. 262
(1977 )  . . . . 2l, 32, 33
Wygant v. Jackson Bd. of Educ., 476 U.S. 267
(1986 ) . . . . 29, 42

Constitution, statutes, regulations and rule:

U.S. Const.:

   Amend. XIV (Equal Protection Clause)  . . . . 2, 16, 17.
                  				19,20,30
   Amend. XV . . . .  20
Voting Rights Act, 42 U.S.C. 1973 et seq.:
   2,42 U.S.C. 1973  . . . . 2, 10, 11, 12, 14, 15,
                 	                   21, 28, 36, 38
    5,42 U.S.C. 1973c  . . . .passim

28 C.F.R. :

   Section 51.5  . . . . 4
   Section 51.29 . . . . 34
   Section 51.29 (c) . . . . 34
   Section 51.29 (d) . . . . 35
   Section 51.30 (a) . . . .  34
   Sections 51.57 et seq. . . . 35
   Section 51.59 . . . . 11
Sup. Ct. R. 18.1 . . . . 2

Miscellaneous:

Dunne, Redistricting in the 1990s: The New
  York Example, 14 Cardozo L. Rev. 1127 (1993 ).. 35-36
52 Fed. Reg. 490 (1987) . . . . 11
Grofman, Would Vince Lombardi Have Been
  Right If He Had Said: "When It Comes To
  Redistricting, Race Isn't Everything, It's The
  Only Thing"?, 14 Cardozo L. Rev. 1237 (1993). . . . 36
S. Rep. No. 417, 97th Cong., 2d Sess. (1982) . . . . 41

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VI

Miscellaneous-Continued:			Page

James P. Turner, "Case-Specific Implementation
of the Voting Rights Act," in Bernard Grofman
& Chandler Davidson eds., Controversies in
Minority Voting (The Brookings Institution,
Washington, D.C. 1992) . . . . 35

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In the Supreme Court of the United States

      OCTOBER TERM, 1994

     No. 94-929

UNITED STATES OF AMERICA, APPELLANT
   
   v.

  DAVIDA JOHNSON, ET AL.

No. 94-631

ZELL MILLER, ET AL., APPELLANTS

    v.

DAVIDA JOHNSON, ET AL.

No. 94-797

LUCIOUS ABRAMS, JR., ET AL., APPELLANTS

v.

DAVIDA JOHNSON, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
  FOR THE SOUTHERN DISTRICT OF GEORGIA

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the three-judge district court (J.S. App.
la-102a) 1 is reported at 864 F, Supp. 1354.

___________________(footnotes)

1 "J.S. App." refers to the appendix to the United States' Juris-
dictional Statement.  

   (1)

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2

JURISDICTION

The judgment of the three-judge court was entered on
September 12, 1994. The United States filed a notice of
appeal on September 20, 1994 (J.S. App. 105a-106a),
and an amended notice of appeal on September 22, 1994
(J.S. App. 107a- 108a). 2 The jurisdiction of this Court
rests on 28 U.S.C. 1253.

  CONSTITUTIONAL AND STATUTORY
     PROVISIONS INVOLVED

The Equal Protection Clause of the Fourteenth Amend-
ment provides that "[N]o State shall * * * deny to any
person within its jurisdiction the equal protection of the
laws." Sections 2 and 5 of the Voting Rights Act, 42
U.S.C. 1973, 1973c, are reproduced at App., infra, la-
3a. 

       STATEMENT

This case concerns a constitutional challenge to the
configuration of the Eleventh District in Georgia's 1992
congressional redistricting plan. A three-judge district
court held that the Eleventh District violates the Four-
teenth Amendment under standards set forth in Shaw v.
Reno, 113 S. Ct. 2816 ( 1993). The United States, three
of the four defendant state officials, and the private
defendant-intervenors ( Abrams defendants ) have appealed
from that judgment.
1. The population of the State of Georgia is approxi-
mately 27% African-American. J.S. App. 68a. Georgia
has an extensive history of discrimination in voting. The
district court took judicial notice of the fact that, "[f]rom
the state's first Constitution-which barred blacks from
voting altogether-through recent times, the state has         I

___________________(footnotes)

2 The first notice of appeal did not specify the statute under which
the appeal was taken. See SUP. Ct. R. 18.1. The amended notice
of appeal specified that the appeal was being taken pursuant to  i
28 U.S.C. 1253.

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3

employed various means of destroying or diluting black
voting strength ." Id. at 103a-104a. Those means, which
the court found had been enacted into law as late
as 1958, included literacy tests, property requirements,
white-only primaries, and the county unit system. The
court specifically y noted that "[congressional districts have
been drawn in the past to discriminate against black citi-
zens by minimizing their voting potential." Id. at 104a.
That was accomplished by "packing an excessive number
of black citizens into a single district or splitting large and
contiguous groups of black citizens between multiple dis-
tricts." ibid.
From Reconstruction until the 1980's, black voters were
not in the majority in any of the State's congressional dis-
tricts. Following the 1970 census, the Attorney General
interposed a Section 5 objection to Georgia's congressional
redistricting plan, which fragmented African-American
population concentrations in the Atlanta area. Joint State-
ment of Stipulated Facts 44-49. The State then adopted,
and the Attorney General precleaned, a revised plan that
remedied the fragmentation, but that did not have an
African-American majority district. See Busbee v. Smith,
549 F. Supp. 494, 500 (D.D.C. 1982), affd, 459 U.S.
1166 (1983).
Following the 1980 census, the State drew a redistricting
plan that included me majority African-American district
(the Fifth District ) in the Atlanta area (cut of a total
of ten Georgia congressional districts), but that nonethe-
less fragmented the African-American community in that
area. The Attorney General again interposed a Section 5
objection, and the State sought preclearance from the
United States District Court for the District of Columbia.
The court denied preclearance on the ground that the
plan had "a discriminatory purpose in violation of Sec-
tion 5." 549 F. Supp. at 517. The court held that the
plan "implemented a scheme designed to minimize black
voting strength to the extent possible." Id. at 518. In

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4

particular, the court noted that the State had applied its
supposed districting principles selectively:

The purported goals of maintaining `historical bord-
ers,' preserving county and city lines and avoid-
ing a Republican Fourth District were only pretexts
for discrimination. Those goals were ignored when
drawing the First, Third, Sixth, Seventh, Eighth,
Ninth and Tenth Districts. * * * The goal of uniting
a cohesive voting bloc was followed in the white
mountain district; it was abandoned in the black
south Fulton and DeKalb area.

Busbee, 549 F. Supp. at 515. The court also noted that
the legislature had turned down a plan passed by the
State Senate that provided for a district that did not split
the black community of Atlanta, Id. at 504-512. Although
the Fifth District had a bare African-American population
majority, the court concluded that it nevertheless "was
drawn to suppress black voting strength in Georgia." Id.
at 515. The court ultimately precleaned a revised plan
that remedied the fragmentation. Id. at 520.
2. Following the 1990 census, Georgia became entitled
to 11 congressional seats, a gain of one seat since 1980.
In a special session in 1991, the state legislature passed
a redistricting plan that included two majority-minority
districts: the Eleventh, in east-central Georgia, and the
Fifth, in the Atlanta area. In addition, the plan included
a district-the Second District, in the southwest part of
the State-in which African-Americans comprised approx-
imately 3570 of the voting age population. J.S. App.
12a-14a. See J.A. 98 (map).
The State submitted the plan for preclearance under
Section 5 of the Voting Rights Act. Acting on behalf
of the Attorney General (see 28 C.F.R. 51.5), the Assis-
tant Attorney General for Civil Rights interposed an
objection. The Attorney General's objection letter stated
that there was "[a] concern * * * that the Georgia legis-
lative leadership was predisposed to limit black voting

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5

potential to two black majority districts." J.A. 105. The
letter went on to note that the plan failed to "recognize
the black voting potential of the large concentration of
minorities in southwest Georgia" and that the legislature
was aware of alternatives that would have recognized that
potential. J.A. 105. The letter added that:

Notwithstanding these alternatives, the state redis-
tricting leadership did not make a good faith attempt
to recognize the concentrations of black voters in the
south west and has not yet been able to adequately
explain the departure from its own stated criteria and
what appears to be resulting minimization.

J.A. 105-106. The letter also noted some other concerns
with the plan, and concluded that the Attorney General
could not "conclude * * * that the state's burden has been
sustained in this instance with respect to the * * * plan[]
under review." J.A. 106.
The state Senate then passed a plan that contained
three majority-minority districts, the Second, the Fifth,
and the Eleventh. See J.A. 98 (map). The Senate plan
made the Second District a majority-minority district by
extending it into Macon, in the central part of the State.
The plan made up for the resulting loss of minority pop-
ulation in the Eleventh District by extending that district
to Savannah. J.S. App. 16a. However, the House refused
to pass that plan. The plan that the legislature then
enacted contained two majority-minority districts (the
Fifth and the Eleventh ), increased the black voting age
population in the Second District to 45%, and made a few
other modifications to the previous plan. Id. at 16a & n.9.
The Attorney General again objected. The letter inter-
posing the Section 5 objection stated that the concern
"that the Georgia legislative leadership had been pre-
disposed to limit black voting potential to two black ma-
iority voting age population districts * * * continues."
J. A. 124. The letter noted that the plan enacted by the
state Senate was abandoned "due to unyielding efforts
on behalf of House members," and "no legitimate reason

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6

has been suggested to explain the exclusion of the second
largest concentration of blacks in the state [in Savannah]
from a majority black Congressional district." J.A. 124.
The letter also noted that the Second District did not
include "large black population concentrations" in three
counties, and that "the expressed reluctance to split coun-
ties * * * appears pretextual," in light of "[t]he state's
willingness to split counties and cities in other areas of
the state." J.A. 124-125. Because the State had "failed
to explain adequately the choices made during this round
of Congressional redistricting," J.A. 125, the letter con-
cluded that an objection had to be interposed because
the State had once again failed to sustain its burden under
Section 5. J.A. 125.
After this objection, the State (at the advice of a
Senior Assistant Attorney General of the State, Mark
Cohen ) decided not to seek preclearance for the revised
plan in the District Court for the District of Columbia.
Cohen subsequently testified that he believed at the time
that such a suit would have been unsuccessful. That con-
clusion, he said, was based on similarities between the cir-
cumstances presented in 1992 and those underlying the
unsuccessful Busbee suit a decade before. J.S. App. 20a
n.11.
 The state legislature then enacted a new plan that had
three majority-minority districts and was similar to the
plan the state Senate had previously passed. See J.S.
App. 21a & n.12. See also J.A. 98 (map). In enacting
this plan, the State clearly intended to create three majority-
minority districts. The undisputed evidence at trial, how-
ever, showed that many other considerations also went
into determining the boundaries of the Eleventh District.
For example, in order to avoid dividing rural counties,
while maintaining a majority of minority voters, it was
necessary to create more irregular boundaries in urban
areas. J.S. App. 43a n.26. The DeKalb County portion
of the district was drawn to include a particular (largely
white) precinct in the district to accommodate the desire
of an incumbent state Senator regarding the placement

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         7

of the precinct in which his son lived. 2 Tr, 187, 202
(testimony of Linda Meggers). The boundaries of the
extension of the district to Savannah through Effingham
and Chatham Counties were determined by a number
of factors. The corridor through Effingham County
was substantially narrowed to respect the wishes of
a state representative who wanted as much as possible
of the County to remain in the First Congressional
District.  That narrowing required omission of black
as well as white voters. 1 Tr. 106-108; 2 Tr. 189-190,
212-215 (testimony of Linda Meggers). In Chatham
County, the district was narrowed to exclude a heavily
African-American community in Garden City, a commun-
ity just north of Savannah, because a state Representa-
tive wanted the entire city kept intact. 2 Tr. 218-220
(testimony of Linda Meggers). The Savannah extension
was also configured by "the narrowest means possible"
because an incumbent state Representative wanted certain
areas excluded.  4 Tr. 174 (testimony of Johnnie
Dixon ). That configuration was adopted despite the fact
that a much wider extension would have had little or no
effect on the racial composition of the district. 4 Tr. 172-
173, 175-178, 181-183 (testimony of Johnnie Dixon).
   The plan was submitted to the Department of Justice
for Section 5 preclearance. The Attorney General pre-
cleaned the plan, and it took effect. J.S. App. 22a-23a.
   3. In January, 1994, five white residents of the Elev-
enth Congressional District filed suit in the United States
District Court for the Southern District of Georgia, alleg-
ing that the Eleventh District segregated voters on the
basis of race in violation of the Equal Protection Clause.
A three-judge court was convened. The United States and
a number of citizens of Georgia intervened in support of
the defendants. A trial took place on July 21-28, 1994.
By a 2-1 vote, the three-judge court ruled that the con-
figuration of the Eleventh District violated the Fourteenth
Amendment. J.S. App. la-102a.
a. The district court narrated the history of the State's
post-1 990 redistricting in some detail and extensively dis-

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8

cussed the Section 5 review of the various state plans
undertaken by the Department of Justice. J.S. ApP.
5a-27a. From the beginning of the process, a plan with
three majority African-American districts had been devel-
oped by the American Civil Liberties Union (ACLU) on
behalf of the Black Caucus of the General Assembly and
presented to the state legislature. Id. at 6a-7a. That
plan included an extension of the Eleventh District to
Savannah and the inclusion of portions of Macon in the
Second District. Those elements, the court noted, were
employed by the State in the plan that was finally enacted
and precleared, although the final plan differed in other
important ways from the ACLU's plan. Id. at 6a-9a, 101a
map). The court also stated that the ACLU had re-
peatedly brought its plan to the attention of the Depart-
ment of Justice in the course of the Section 5 preclearance
process; that the ACLU had used that plan to argue to
the Department of Justice that the State's first two
enacted redistricting plans should not be precleaned; and
that the Department of Justice's "criteria for and opinions
of Georgia's submissions were greatly influenced by [the
ACLU's attorney] and her agenda." Id. at 10a. The
court stated that the State did not seek a Section 5 de-
aratory judgment, not only because of fear that such a
suit would be unsuccessful, as the Busbee suit had been
ten years earlier, but also because litigation would have
been expensive and time consuming. Id. at 20a-21a &
n.11.
With respect to the merits of plaintiffs' claim, the court
held that the Eleventh District is subject to strict scrutiny.
In Shaw v. Reno, supra, this Court held that a district is
subject to strict scrutiny if it is "so extremely irregular on
its face that it rationally can be viewed only as an effort
to segregate the races for purposes of voting." 113 S. Ct.
at 2824. In the district court's view, that language does
not suggest that "[t]he shape of the district is * * * a
"threshold" inquiry preceding an exploration of the motives
the legislature." J.S. App. 29a. Instead, the shape is
Simply " 'objective' evidence of the legislature's intent in

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         9

drafting that district," ibid.; "[t]he purpose of scrutinizing
a district's shape is to glean the intent of the legislature
by working backwards," id. at 41a. Therefore, the court
concluded, a plaintiff can make out a Shaw claim either
through proof concerning "a district's shape as circum-
stantial evidence of legislative intent," id. at 40a, or
through "direct testimony of those involved with the [re-
districting] process" concerning "the legislature's intent,"
ibid.
The district court held that strict scrutiny must be
applied if "race was the substantial or motivating con-
sideration in creation of the district in question"-a
criterion the court explained as being satisfied if race is
"the overriding predominant force determining the lines
of the district. " J.S. App. 35a (footnote omitted). In
reaching that conclusion, the court rejected the view
of the district court in Hays v. Louisiana, 839 F. Supp.
1188 (W.D. La. 1993), vacated and remanded on other
grounds, 114 S. Ct. 2731 ( 1994), that race "need only
have been a recognizable factor-not the sole or dominant
one-before a redistricting plan is constitutionally sus-
pect ." J.S. App. 33a. The court explained that adoption
of the Hays standard would lead to jurisdictions covered
under Section 5 of the Voting Rights Act being "buried
under Shaw litigation" every time they passed a redistrict-
ing plan. J.S. App. 38a-39a. The court also rejected the
view that "race must have been the sole motivation behind
a particular district shape before strict scrutiny is appro-
priate." Id. at 33a. In the court's view, "th[at] standard
would be nearly impossible to meet." Id. at 39a.
   The district court found that the "indirect" evidence of
legislative intent was sufficient in this case to subject the
Eleventh District to strict scrutiny, because various por-
tions of the district had irregular boundaries. In particu-
lar, the court held that "[t]he extension [of the district]
to Savannah is not compact by any credible definition of
that term," J.S. App. 43a; that the Augusta portion re-
flected a selective inclusion of predominantly African-

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10

American census blocks, id. at 45a; and that the Eleventh
District as a whole split eight of its 22 counties, a result
that the court believed to be unnecessary, id. at 47a. The
court also held that there was sufficient "direct" evidence
that the legislature had a "predominant" racial motive for
drawing the Eleventh District. Id. at 48a-51a. In par-
ticular, the court adverted to the testimony of state legis-
lators that their purpose in extending the Eleventh Dis-
trict to Savannah was to include African-American voters
in the district, in part to compensate for the African-
American voters who were removed from the Eleventh
District as previously configured and added to the Second
District to make that a majority-minority district. ld. at
48a-50a. The court also referred to evidence that other
portions of the district were drawn in order to include
African-Americans in the district. Id. at 49a.
The district court then applied strict scrutiny. The
court held that the only compelling state interest that could
potentially justify the Eleventh District was the State's
interest in complying with Sections 2 and 5 of the Voting
Rights Act. J.S. App. 56a-57a. The district court as-
sumed the existence of that interest and held that what
it viewed as the "narrow tailoring" inquiry was crucial
to the disposition of the case: whether "the district[], as
precleaned and enacted, [was] genuinely `reasonably nec-
essary' * * * to comply with the [Voting Rights Act] ."
Id. at 60a (citation omitted).
The court held that the Eleventh District failed that
"narrow tailoring" test. In the court's view, the fact that
the Department of Justice had refused preclearance of
the State's earlier attempts at redistricting after the 1990
census did not establish that creating the Eleventh Dis-
trict was reasonably necessary to satisfy Section 5 of the
Voting Rights Act. Instead, the court held that the plan
would "live or die" on the basis of the court's independent
determination of "whether Georgia's 1992 congressional
redistricting plan was actually required by the [Voting
Rights Act] and Supreme Court precedent." J.S. App.
63a.

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11

With respect to Section 5, the court determined that
the Department of Justice had erred in objecting to either
of the first two plans submitted, 3 The court did not di-
rectly address the "purpose" prong of Section 5 in this
portion of its opinion, although this was the basis articu-
lated by the Department of Justice for its objections to
those plans. Earlier in the opinion, however, the court
reported that two state officials had found no "evidence
of acts or statements by * * * legislators indicating an
intent to discriminate against minority voters." Id. at
13a. The court commented, in that context, that it "finds
no evidence prompting [it] to doubt" the conclusion that
the original two plans were untainted by racially discrim-
inatory purpose. Id. at 13a.
The court also held that the Eleventh District was
not required by Section 2 of the Voting Rights Act. J.S.
App. 80a. The court reached that conclusion by apply-
ing the preconditions set forth by the Court in Thornburg
v. Gingles, 478 U.S. 30, 50-51 ( 1986). The court found
that the district was not "compact" because the "popula-
tions of the Eleventh are centered around four discrete,
widely spaced urban centers that have absolutely nothing
to do with each other[.]" J.S. App. 79a. The outside
perimeter of the district, the court found, included "hooks,
tails and protrusions" in and near densely populated urban

___________________(footnotes)

3 The court held that the objections to the earlier Georgia plans
were inconsistent with regulations "promulgated by Congress to
assist DOJ in properly enforcing the [Voting Rights] Act." J.S.
App. 64a-65a (citing 28 C.F.R. 51.59). The court went on to
discuss the regulations in terms of what "Congress intended," J.S.
App. 65a; what "Congress was apparently worried" about, ibid.;
and how "Congres uses" a particular term in the regulations, id.
at 66a. The regulations to which the court referred, however, were
not enacted by Congress; they were promulgated by the Attorney
General. See 52 Fed. Reg. 490 (1987). There is no indication in
the court's opinion that it gave any deference to the Attorney
General's interpretation of her own regulations.

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12

areas at its periphery. id. at 79a. The court also found
that racial polarization "exists, but not in alarming quan-
tities"; the court found that from 22$% to 38910 of white
people in the area would vote for African-American can-
didates, while 20% to 23% of African-Americans in the
area would vote for white candidates. Id. at 82a. The
court concluded that the State would not have violated
Section 2 if it had failed to draw the Eleventh District
as a majority-minority district.
Finally, the court concluded that, even assuming that
the preconditions for a Section 2 Voting Rights Act viola-
tion existed in the area covered by the Eleventh Congres-
sional District, the district "overstepped the requirements"
for compliance and therefore was not narrowly tailored.
J.S. App. 68a. The court based this conclusion on the
testimony of the State's expert witness, which indicated
to the court that the Eleventh District was more "safe"
than necessary for black voters. Id. at 83a-86a.
b. Judge Edmondson dissented. In Judge Edmond-
son's view, "[h]ighly irregular shape-the appearance of
the district-is the critical element of" the cause of action
recognized by this Court in Shaw. J.S. App. 93a. Accord-
ingly, he rejected the court's holding that a district's
"shape is merely one piece of circumstantial evidence
proving the legislature's intentional use of race." Id. at
94a. He noted that Shaw's "highly-irregular-appearance
standard * * * avoids the unreliability of after-the-fact
statements by legislators and also avoids the necessity of
federal judges probing and intruding on state officers'
thoughts (perhaps expressly crediting some state officers
and not crediting others-a divisive event ) to `learn' the
state's true intent." Id. at 94a n.2.
Judge Edmondson found that the Eleventh District was
not "bizarre or highly irregular within the meaning of
Shaw." J.S. App. 96a. He noted that the size of the

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13

district, the length of its borders, and its location within
the State were not out of the ordinary. Id. at 97a-98a.
Moreover, he noted that the Eleventh District's boundaries
follow existing state, county and city borders to approxi-
mately the same extent (71% ) as the average for the
State's other congressional districts; that "Georgia's con-
gressional districts have no tradition of being neat, geo-
metric shapes"; that portions of other districts are more
irregular than the particular portions of the Eleventh Dis-
trict criticized by the majority; and that other districts in
Georgia's current plan, as well as past plans, split counties.
Id. at 98a-100a. He concluded that the district "is not so
bizarre on its face to justify, pursuant to the Constitution,
a more searching inquiry," and that the district court
accordingly should not "interfere with the reapportion-
ment plan that resulted from Georgia's political process."
Id. at lOOa.
4. The district court enjoined the completion of the
1994 election cycle in the Eleventh District and stated
that it would hold a remedial hearing after receiving sub-
missions from interested parties, J.S. App. 89a, The
Governor and two of the other state defendants, the pri-
vate intervenor-defendants, and the United States moved
for a stay in this Court. On September 23, 1994, this
Court granted the stay pending the filing and disposition
of the appeals in this case. 115 S. Ct. 36.

SUMMARY OF ARGUMENT

1. A. The district court held that, under this Court's
decision in Shaw v. Reno, a majority-minority district is
always subject to strict scrutiny if the State's "predomi-
nant" motive in creating the district was to create a
majority-minority district. That conclusion is incorrect.
Nothing in this Court's opinion in Shaw V. Reno suggests
that a "predominant motive" to create a majority-
minority district alone requires strict scrutiny. To the

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14

contrary, the Court repeated numerous times in Shaw
that the constitutional claim it recognized in that case
arose because the shape of a majority-minority district "on
its face" was so extremely irregular that it could only be
understood as an effort to segregate voters racially.
The district court's standard is incorrect because a State
should be free to give the same consideration to the inter-
ests of racial minorities in redistricting that it gives to the
interests of other groups. The fact that a State strongly
desires to create a majority-minority district indicates only
that it is willing to treat minority interests on a par with
those of other groups for whom majority influence districts
are created. Nor is the State's action in creating such a dis-
trict likely to have any discriminatory impact. Subjecting
such a district to strict scrutiny is, moreover, inconsistent
with Congress's determination that States must, in some
circumstances, create minority districts in order to comply
with Sections 2 and 5 of the Voting Rights Act. The dis-
trict court's standard is also unworkable, since there is no
judicially manageable standard for a court to determine
whether a particular purpose, out of many that may have
motivated a districting plan, is "predominant."
B. A redistricting plan that creates a majority-minority
district is suspect under Shaw only if, in drawing the dis-
trict, the State departs dramatically from its traditional
districting practices. The Eleventh District, however, fits
comfortably within Georgia's ordinary districting practices.
It occupies an area similar in shape to the Tenth District,
as that district has been configured for many years. Its
physical area is about at the State's average. It follows
existing boundaries of political subdivisions to a greater
extent than most districts in the State. Although it con-
tains a larger percentage of African-Americans than does
the State as a whole, that suggests only that the State in-
tended to draw a majority-minority district. The fact that
the Eleventh District's borders (like those of other districts
in the State) are irregular in places does not establish that

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15

the shape of the Eleventh District, viewed as a whole, is
"so extremely irregular on its face that it rationally can
be viewed only as an effort to segregate the races for
purposes of voting." Shaw, 113 S. Ct. at 2824.
2. In any event, the Eleventh District satisfies strict
scrutiny because it is narrowly tailored to further the
State's compelling interest in complying with the Voting
Rights Act and ameliorating the present effects of racially
polarized voting.
A. To demonstrate that the State had a compelling in-
terest in complying with Sections 2 and 5 in this case, it
need not be shown that failing to draw a third majority-
minority district would surely have subjected the State to
liability under Sections 2 or 5 of the Voting Rights Act.
It need only be shown that there was a "strong basis in
evidence" for concluding that the State's failure to draw
such a district would have led to a prima facie case
against it under the Voting Rights Act. That showing was
made here,
First, the State's interest in complying with Section 5
supported its action. The Attorney General had inter-
posed Section 5 objections to the State's two previous
plans. The State therefore could reasonably rely upon
the Attorney General's objections as requiring it to draw
a third minority district, so long as those objections were
not clearly insupportable. In this case the objections,
based on the "purpose" prong of Section 5, were supported
by settled modes of analyzing whether state action is
motivated by a racially discriminatory purpose.
   Second, the State's interest in complying with Section 2
of the Voting Rights Act also supported its decision to
draw three majority-minority districts. There was a sound
basis in evidence for believing that all three of the Gingles
preconditions were satisfied. In addition, the State had
a strong basis for believing that African-Americans in
Georgia would be substantially underrepresented in Con-
gress unless a third majority-minority district were drawn.

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16

The State also had a compelling interest in ameliorating
the effect that historical discrimination and racially polar-
ized  votingcontinue to have on the opportunity of minor-
ity voters to elect a candidate of their choice in Georgia.
Faced with the kind of extreme bloc voting present in
Georgia , the State's could properly seek, through districting,
to ensure a fair allocation of political power.
B.  Finally, the State's plan is narrowly tailored. It
creates only the number of majority-minority districts that
the States' interests in complying with the Voting Rights
Act and fairly allocating political power justify. It does
not needlessly pack minority voters into the majority-
minority districts; the percentage of minority voters in the
Eleventh District is well within the range that the State
reasonably could have thought to be necessary to satisfy
the identified compelling interests. And it gives sufficient
weight to other redistricting interests.

ARGUMENT

I.  GEORGIA'S REDISTRICTING PLAN IS NOT SUB-
JECT TO STRICT SCRUTINY

A.  An Inquiry Into Legislative Intent Alone Can Not
Determine Whether A Redistricting Plan Is Subject
To Strict Scrutiny

The district court held that a redistricting plan must be
subject to strict scrutiny under the Equal Protection
Clause if "race was the substantial or motivating consider-
ation in creation of the district in question." J.S. App.
 35a.  The court explained that standard as requiring
strict crutiny if the legislature "(a) was consciously in-
fluenced by race, and (b) while other redistricting con-
siderations may also have consciously influenced the dis-
trict shape, race was the overriding, predominant force
determining the lines of the district." ibid. According to
the court, strict scrutiny is not required "[i]f race, how-

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17

ever deliberately used, was one factor among many of
equal or greater significance to the drafters." Ibid.
In our view, the district court's standard does not follow
from this Court's decision in Shaw and is incorrect. A
legislature's intent to create a majority-minority district
(or to otherwise include some minority voters in, or ex-
clude some minority voters from, a district) is not alone
sufficient to trigger strict scrutiny of the legislature's re-
districting. Under Shaw and this Court's decision in
United Jewish Organizations of Williamsburg, Inc. V.
Carey, 430 U.S. 144 ( 1977), so long as the resulting
district is not "bizarre," an intent to create a majority-
minority district does not trigger strict scrutiny.
1. In our Brief in United States V. Hays, Nos. 94-558
and 94-627, we submit that the district court in that case
erred in holding that the intent to create a majority-
minority district was alone sufficient to trigger strict scru-
tiny. See Hays U.S. Br. 14-20. On the contrary, a State
must be free, under the Equal Protection Clause, to give
the same consideration to the claims of racial minority
groups to influence redistricting as to the claims of other
interest groups in the redistricting process. ld. at 15-
17. Nor does the mere intent of a legislature to create
a majority-minority district have the ill effects that this
Court in Shaw identified as flowing from the creation of
highly irregular districts that can be understood solely in
racial terms. Id. at 17-18. Subjecting a plan to strict
scrutiny merely on the basis of the State's intent to create
a majority-minority district would also conflict directly
with Congress's judgment, in enacting the Voting Rights
Act, that States should be conscious of the racial conse-
quences of their redistricting decisions. Id. at 18-19.
And it would often confront States with a dilemma,
in which they would face litigation with minority voters
if they refuse to create a majority-minority district and
litigation from others if they do. Id. at 19. Finally, a

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          18

broad holding that intent alone is sufficient to subject a
plan to strict scrutiny would inevitably subject a very
large number of redistricting plans at all levels of govern-
ment to strict scrutinty. Id. at 20.4
2. The district court in this case attempted to remedy
the deficiencies in the Hays court's bare intent standard
by holding that a districting plan is subject to strict scru-
tiny only if "race was the substantial or motivating con-
sideration in creation of the district in question." J.S.
App. 35a (footnote omitted). The district court elabo-
rated its point by stating that race must be an "overriding
predominant force determining the lines of the district,"
ibid., or that race must be "the most prominent element
driving the legislatures' planning," id. at 35a n. 19. The
court contrasted that with cases in which race "was one
factor among many of equal or greater significance to the
drafters," id. at 35a, or where it was "one motivation
among others of equal strength propelling the process,"
id. at 35a n. 19. In those cases, the court held, strict
scrutiny would be inappropriate.
Under the district court's standard, a court must inquire
about the extent to which "the legislature was * * * con-
sciously influenced by race" in drawing a challenged
majority-minority district. J.S. App. 35a. That inquiry
will be of particular importance in cases in which the
challenged district comports with the State's ordinary dis-
tricting practices, because the application of strict scrutiny

___________________(footnotes)

4 The district court in this case did not disagree with this last
conclusion. The court observed that the district court in Hays had
held "that race need only have been a recognizable factor-not the
sole or dominant one-before a redistricting plan is constitutionally
suspect." .J.S. App. 33a. But the court noted, if that standard were
adopted, "every state and local government in the United States
subject to section 5 of the Voting Rights Act [would] be buried
under Shaw litigation every time it passes a redistricting plan."
Id. at 38a-39a. The district court properly was "reluctant to
conclude that [this Court] intended voting rights litigation to
sweep the country at ten-year intervals." Id. at 39a.

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19

to such districts will, under the district court's analysis,
turn on the "predominant motive" inquiry. The court
must also determine whether, among the "other redistrict-
ing considerations [that] may also have consciously in-
fluenced the district shape," race was-in the court's vari-
ous formulations-the "substantial or motivating," "over-
riding, " "predominant," or "most prominent" one. Id. at
35a & n.19. In other words the inquiry focuses on the
relative weight of the different motivations that produced
the district under attack. Strict scrutiny is apparently re-
quired if the court concludes that the racial motivation
was of greater importance to the State than its other
motivations in drawing the district.
3. This Court's decision in Shaw does not support the
district court's conclusion that a legislature's "predomi-
nant" intent to create a majority-minority district triggers
strict scrutiny. This Court held in Shaw that a redistrict-
ing plan is subject to strict scrutiny if it is "so extremely
irregular on its face that it rationally can be viewed only
as an effort to segregate the races for the purposes of
voting." 113 S. Ct. at 2824 (emphasis added). The Court
repeated that standard several times in its opinion in
Shaw; each time the opinion unequivocally stated that the
inquiry was a facial one. See id. at 2824, 2825, 2826,
2828, 2829, 2832. An inquiry into the characteristics of
a statute "on its face" plainly requires more than a deter-
mination of whether the legislature intended-or "pre-
dominantly" intended-to achieve a desired result.
4. Shaw's limiting language correctly reflects the rele-
vant constitutional values. Strict scrutiny is not appro.
priate merely because a legislature's "substantial or "moti-
vating" intent-i.e., the "most prominent element driving
the legislature's planning," J.S. App. 35a n.10-was to
create a majority-minority district. As we noted above,
under the Equal Protection Clause, a State must be free
to give the same consideration to the claims of racial
minority groups that seek to influence redistricting as to

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20

the claims of any other interest group. Indeed, the Con-
stitution itself may require a State to take action to avoid
the consequences of racial discrimination under the Four-
teenth and Fifteenth Amendments. The fact that a State
strongly desires to create a particular district with a
majority-minority population says nothing about whether
the State has taken action that amounts to a special pref-
erence for that group. For the State may have an equally
strong desire to accommodate other ethnic, religious,
political, or other interest groups by drawing lines that
accommodate them in other districts. See Hays U.S. Br.
15-17. It is therefore not the strength of the State's desire
to create a district for a racial minority group that is im-
portant, but whether the State has taken action that gives
a special preference to that group that it is unwilling to
give to others who are similarly situated.
The district court's analysis is also inconsistent with the
principle that state action violates the Equal Protection
Clause only if it has discriminatory consequences. In
Shaw, this Court identified two potential injuries that were
of concern in this area: the conveying of a message that
all members of a particular racial group, regardless of
where they live and what other characteristics they may
have in common, "think alike, share the same political
interests, and will prefer the same candidates at the polls,"
113 S. Ct. at 2827, and the likelihood that elected offi-
cials from the district in question would be "more likely
to believe that their primary obligation is to represent
only the members of that group, rather than their con-
stituency as a whole." Ibid. Because this is "one area in
which appearances do matter," ibid., those injuries may
flow from a district whose extraordinary appearance ad-
vertises that the legislature was according special treat-
ment to members of a minority group that it would not
give to others similarly situated. Those injuries are un-
likely to flow, however, from the fact that the legislature,
in drawing a district that comports with its traditional,
legitimate districting practices, strongly desired to accom-
modate the interests of a racial minority group, in the

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21

same way as it accommodates the interests of other groups
that attempt to influence legislative districting decisions.
See Hays U.S. Br. 17-18.
5. The district court's standard disserves other impor-
tant values as well. In some instances, States are required
by Sections 2 or 5 of the Voting Rights Act to draw
reasonably compact majority-minority districts. In such
situations, a State's desire to draw a majority-minority
district may naturally be an "overriding" or "predominant"
motive. Under the district court's analysis, however, that
would virtually ensure that the State's proper desire to
comply with federal law subjects the resulting redistricting
plan to strict scrutiny. See Hays U.S. Br. 18-19.
The district court's standard is also unworkable. In
other contexts, the Court has rejected judicial inquiry into
whether "a particular purpose," out of many that may
have motivated a "legislature or administrative body oper-
ating under a broad mandate" to make a decision, "was
the `dominant' or `primary' one." Village of Arlington
Heights v. Metropolitan Housing Development Corp., 429
U.S. 252, 265 ( 1977). That is because "[i]t is difficult
or impossible for any court to determine the `sole' or
`dominant' motivation behind the choices of a group of
legislators." Palmer v. Thompson, 403 U.S. 217, 225
(1971). "The search for legislative purpose is often
elusive enough without a requirement that primacy be as-
certained." McGinnis v. Royster, 410 U.S. 263, 276-277
( 1973) (citation omitted).
The inquiry into which of many different legislative
purposes underlying a particular act is "overriding" or
"predominant" is particularly indeterminate in the case
of redistricting plans. Where a legislature is forced to
choose between advancing two different purposes, a court
may fairly infer which was more important from the
choice the legislature made. But where the legislature
may accomplish a number of different compatible goals
by enacting a particular redistricting plan with a reason-,
ably compact majority-minority district, a court has no
guidepost by which to determine the relative weights of

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22

the various goals the legislature was attempting to achieve.
Moreover, looking at a single district in isolation neces-
sarily distorts the inquiry. As Judge Edmondson recog-
nized in his dissenting opinion, because "apportionment
is a highly political process * * * [m]any different agendas
may be at work." J.S. 94a n.2. An accommodation to
some faction's interests in one part of the plan may be
essential to that faction's support of some other part of
the plan. To attempt to determine the "substantial or
motivating, " "overriding, " "predominant," or "most promi-
nent" motive in redistricting will often be a futile and
quixotic task. Id. at 35a & n.19. 5
The technique for determining "predominant" motiva-
tion adopted by the district court here was to rely on the
after-the-fact testimony of some of the legislators who had
been involved in the districting process. J.S. App. 49a-
50a. The testimony of an individual legislator about the
legislature's "dominant" motive in enacting legislation,
however, is not a reliable indicator of legislative intent.
See, e.g., Bread Political Action Comm. V. Federal Elec-
tion Comm'n, 455 U.S. 577, 582 n.3 ( 1982); Consumer
Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S.
102, 118 ( 1980); Chrysler Corp. v. Brown, 441 U.S.
281, 311 ( 1979). As Judge Edmondson pointed out, that
is particularly true where the individual legislators' state-
ments are made after the enactment of the statute in ques-
tion. J.S. App. 94a n.2; see also Pension Benefit Guaranty
Corp. v. LTV Corp., 496 U.S. 633, 650 (1990); Public
Employees Retirement System of Ohio V. Betts, 492 U.S.
158, 168 (1989).

___________________(footnotes)

5 There was substantial and largely undisputed evidence at trial
that the Eleventh District itself, from its inception, was the product
of a host of political and other motivations. See pp. 6-7, supra.
The district court did not make any findings to the contrary.

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B.   Georgia's Eleventh District Is Not So Highly irreg-
     ular On Its Face That It Can Be Understood Only
     As An Effort To Segregate The Races For Purposes
     of Voting

The district court also subjected the State's plan to strict
scrutiny on the ground that it appears "uninfluenced by
accepted districting principles, as evidenced by its shape."
J.S. App. 41a. The court erred in reaching that con-
clusion.
1. In our brief in Hays, we identified four legal prin-
ciples that we believe should guide the inquiry into
whether a district is so highly irregular on its face that
it can be understood only as an effort to segregate the
races for purposes of voting. First, the manner in which
the State has drawn and continues to draw other districts
is the most appropriate benchmark for determining
whether a particular majority-minority district is "bizarre."
Second, a district is suspect under Shaw only if it departs
dramatically from the State's traditional districting prac-
tices. Third, the Shaw "on its face" inquiry mandates an
objective inquiry into the nature of the district, not a
subjective inquiry into the legislature's intent. Fourth,
since the relevant inquiry under Shaw is whether the dis--
trict as a whole is "bizarre," the fact that isolated seg-
ments of a district are irregular does not make the district
itself bizarre. See Hays U.S. Br. 21-22. These same prin-
ciples should guide the inquiry in this case.
2. Application of these legal standards leads to the
conclusion that the Eleventh District is not "so extremely
irregular on its face that it rationally can be viewed only
as an effort to segregate the races for purposes of voting."
Shaw, 113 S. Ct. at 2824.
The appearance of the Eleventh District on a map com-
ports reasonably with Georgia's ordinary districting prac-
tices. The district's shape is largely based on a core area
in the central and eastern portions of Georgia. The dis-
trict generally occupies an area similar in shape to, but

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24

south of, the former Tenth District, which also spanned
the central part of the State from Augusta to the Atlanta
suburbs. The district's land area is about the State's
average. 6
The Eleventh District satisfies Georgia's own districting
guidelines. Those guidelines provided that "efforts may
be made to maintain the integrity of political subdivisions
and the cores of existing districts" and that "consideration
may be given to avoiding contests between existing in-
cumbents. " J.A. 75 (Senate), 68 (House). They also
counseled against unnecessary splitting of precincts. J.A.
75-76 (Senate), 68-69 (House). The State's guidelines
do not mention "compactness" as a criterion.
The Eleventh District shows substantial respect for
political subdivision boundaries. Cf. Shaw, 113 S. Ct. at
2826, 2827 (recognizing importance of this factor); see
also J.S. App. 96a (Edmondson, J., dissenting). Of the
22 counties in the Eleventh District, 14 are intact and
eight are divided. That puts the Eleventh District at about
the state average in divided counties. By contrast, of the
five counties in the Sixth District, none are intact and of
the four counties in the Fourth District, only one is intact.7

___________________(footnotes)

6 The district spans 6,784 square miles. The First, Second, and
Eighth Districts each encompass more than 10,100 square miles.
The Ninth district has an area of 5)800 square miles and the Tenth
District has an area of 5,100 square miles. State Exh. 177, at 4.
In past plans, the State has drawn many districts of similar size.
See J.A. 78, 79, 80, 81 (maps).
7 The First District has 20 intact counties and parts of 2 others.
The Second District has 24 intact counties and parts of 11 others.
The Third District has 8 intact counties and parts of 8 others.
The Fifth District is composed of parts of 4 counties. The Seventh
District has 10 intact counties and a part of 1 county. The Eighth
District has 22 intact counties and parts of 10 others. The Ninth
District has 19 intact counties and a part of one other. The Tenth
District has 16 intact counties and parts of three others. The
figures are derived from Joint Exhibit 17.

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25

Seventy-one percent of the boundaries of the Eleventh
District follow the lines of political subdivisions. Of the
State's 11 districts, five score lower than the Eleventh
District on that measure and five score higher.' Eighty-
three percent of the geographic area of the district lies
within intact counties, above average for the State's con-
gressional districts.9 J.S. App. 96a-97a.
Georgia has frequently drawn districts that cover a
substantial east-west or north-south portion of the State,
as does the Eleventh District. The Ninth District, for
example, covers the State's entire northern border. See
J.A. 51 (map). The First, Second, and Eighth Districts
all begin at the Florida border and extend north past the
center of the State. See ibid. In the 1980's, the Eighth
District extended even farther, from the southeast border
with Florida in a rather irregular pattern almost to the
Atlanta suburbs. See J.A. 80 (map).
3. The district court approached the question of
whether the district was "bizarre" by assuming that the
purpose of the inquiry was to uncover whether the State
had an "overriding objective to include minority popu-
lations in the Eleventh [District]." J.S. App. 47a. As we
argue above, that is not the proper focus of the Shaw
analysis. The district court's improper focus led it to
give inappropriate significance to several factors.
For example, the district court repeatedly emphasized
that African-Americans formed a larger percentage of the
population of the Eleventh District ( 64.07% ) than of

___________________(footnotes)

8  The district with the lowest score on that measure is the Sixth,
only 45% of whose boundaries follow political subdivision lines.
The highest district on that measure is the Ninth, with a more of
91%. State Exh. 177, at 3.
9 Only three districts-the First, Seventh, and Ninth-score
higher than the Eleventh District on that measure. Excluding the
Fifth and Sixth Districts, which contain no intact counties, the
scores on that measure range from about 30$% for the Fourth
District to 97% for the Seventh District. State Exh. 177, at 4.

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26

the State as a whole (26.96%), J.S. App. 46a, and that
the portions of the Eleventh District in Chatham, Rich-
mond, and DeKalb Counties had a larger percentage of
African-American population than did those counties as
a whole. 10   See J.S. App. 43a, 45a-46a. Those facts cer-
tainly tend to prove a fact that was stipulated in this
case: that "race was a significant consideration in the
configuration of the Eleventh Congressional District, in-
cluding being a consideration in the inclusion of certain
portions of DeKalb County, the City of Augusta [Rich-
mond County], and the City of Savannah." J.A. 21-22.
But they are not in the least probative on the issue of
whether the district's shape is a dramatic departure from
:he State's ordinary districting practices.
The district court also discounted the evidence that the
Eleventh District's boundaries largely follow precinct lines,
m the ground that "[the State] designed the Eleventh
District along racial lines, and race data was most acces-
sible to [the State] at the precinct level." J.S. App. 44a.
The State's own guidelines, however, provided that
[l]ocal voting precinct boundary lines should serve as the
basic district building block in order to minimize voter
confusion and cost of election administration." J.A. 68-
69 (House), 75 (Senate). The fact that the State gen-
erally followed that neutral and traditional districting
criterion in drawing the Eleventh District tends to show
that the District's lines do not mark a dramatic departure
from the State's own districting criteria.
4. The district court also believed that the configura-
tion of the Eleventh District in the areas of Savannah
Chatham County), Augusta (Richmond County), and the
Atlanta suburbs (DeKalb County) was sufficiently irregu-

___________________(footnotes)

10 African-Americans are 38~0 of the population of Chatharn
county, 42% of the population of Richmond County, and 42.2%
of the population of DeKalb County. The portion of the Eleventh
District in Chatham County is 84% black, the portion in Richmond
County is 66% black, and the portion in DeKalb County is 74.6%
tack. J.S. App. 43w 45a-46a.

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27

lar to trigger strict scrutiny. J.S. App. 42a-43a, 45a-46a.
In our view, the irregularities of the district's lines in
those areas are insufficient to trigger strict scrutiny. This
Court explained in Shaw that strict scrutiny is reserved
for those "rare" plans, 113 S. Ct. at 2825, that create dis-
tricts that are "extremely irregular" or "bizarre," 113 S.
Ct. at 2824, 2825, The fact that the Eleventh District's
lines are irregular in certain isolated areas is insufficient
to support a finding that the district's shape is, on the
whole, "bizarre."
Moreover, even when viewed in isolation, the boundar-
ies in those urban and suburban areas are not "bizarre."
For example, in DeKalb County, the Eleventh District
essentially comprises the entire southern portion of the
county; on the east, south, and west, the district lines
are largely coterminous with the county lines. 11 Similarly,
in the cities of Augusta and Savannah, the district in-
cludes identifiable portions of the cities and its lines largely
follow precinct lines that themselves follow political
boundaries, such as those of state legislative districts, and
major landmarks, such as main streets and highways. 12
Even if the Court were to conclude that the boundaries in
isolated areas of the district are "bizarre," the boundaries
were determined by numerous political factors and are
therefore explainable on grounds other than race. See
Shaw, 113 S. Ct. at 2825; see pp. 6-7, supra. The district
court disregarded that evidence.

___________________(footnotes)

11 Linda Megger, the State's demographer, testified that the dis-
trict lines in DeKalb County followed 1-285 and the Stone Mountain
Freeway, 2 Tr. 200. The northern boundary is largely governed
by the borders of the cities of Atlanta, Decatur, and Avondale
Estates. 2 Tr. 197, 199-200.

12 See, e.g., 2 Tr. 128 (major roads and landmarks generally
used), 215 (major roads), 224 ("local visible boundaries") ; 4 Tr.
177 (state legislative district).

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28

II. THE ELEVENTH DISTRICT SATISFIES STRICT
SCRUTINY

Even if the district court were correct in subjecting the
Eleventh District to strict scrutiny, the court erred in
concluding that strict scrutiny was not satisfied. The
State's plan, including the Eleventh District, was nar-
rowly tailored to further the State's compelling interests
 in complying with the Voting Rights Act and ameliorat-
ing the effect that historic discrimination and persistent
racial polarization have on the opportunities of minority
voters to elect the candidates of their choice.

A. The State Had A Compelling Interest In Drawing
The Eleventh District As A Majority-Minority
District

1. A State has a compelling interest in complying with
Sections 2 and 5 of the Voting Rights Act. The district
court appeared to accept that principle, see J.S. App. 58a-
59a, but went on to undertake a de novo consideration of
whether Sections 2 and 5 required the creation of the
Eleventh District. J.S. App. 66a-87a. The court con-
cluded that neither Section 2 nor Section 5 provided a
sufficient justification for the creation of three majority-
minority districts in Georgia, and that the State accord-
ingly had no compelling interest in creating the Eleventh
District as a majority-minority district.
As we explained in our brief in Hays, the district
court's approach is mistaken. See Hays U.S. Br. 27-28.
 In order to invoke the Voting Rights Act as a justification,
it need not be shown that the Act required the drawing
 of a third majority-minority district. Rather, it need only
 be shown that there was a "strong basis in evidence" for
The State's actions- a standard that is satisfied if there was
a sound basis for believing that the State's failure to draw
a third majority-minority district would have led to a
prima facie case against it under either Section 2 or 5 of

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29

the Voting Rights Act. City of Richmond v. J.A. Croson
Co., 488 U.S. 469, 500 (1989); Wygant v. Jackson Bd.
of Educ., 476 U.S. 267, 277 ( 1986) (plurality opinion);
id. at 292-293 ( O'Connor, J., concurring); Johnson V.
Transportation Agency, 480 U.S. 616, 652-653 ( 1987)
(O'Connor, J., concurring in the judgment).
a. Section 5. The State had a sound basis for conclud-
ing that the creation of a third majority-minority district
was necessary to comply with Section 5. Section 5 forbids
a jurisdiction from implementing a redistricting plan un-
less it can show that the plan has neither a discriminatory
purpose nor a discriminatory effect. 42 U.S.C. 1973c.
No party in this case argued that Georgia had to create
a third majority-minority district in order to satisfy the
retrogession criterion embodied in Section 5's "effect"
prong. See Beer v. United States, 425 U.S. 130 ( 1976).
Even when a redistricting plan is not retrogressive, how-
ever, a State cannot obtain preclearance unless it makes
the further showing that the plan is free of discriminatory
purpose. City of Pleasant Grove v. United States, 479
U.S. 462, 469, 471 & n. 11 ( 1987); City of Port Arthur v.
United States, 459 U.S. 159, 168 ( 1982); City of Rich-
mond V. United States, 422 U.S. 358, 378-379 ( 1975);
Busbee v. Smith, 549 F. Supp. 494, 500 (D.D.C, 1982),
aff'd, 459 U.S. 1166 (1983). Therefore, the question is
whether the State had a strong basis in evidence for be-
lieving that it would not be able to prove the absence of
a discriminatory purpose if it failed to draw the third
majority-minority district.
(i). Instead of undertaking that inquiry, the district
court inquired into whether the State's failure to draw the
third majority-minority district would, in the court's inde-
pendent judgment, have violated Section 5. That is not the
appropriate legal standard. As we argued in our brief in
Hays, the benefits Congress ought to achieve in providing
for administrative preclearance under Section 5 would be

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30

lost if the States could not generally rely on the Attorney
General's "administrative finding" of discrimination. Re-
gents of the Univ. of Calif. v. Bakke, 438 U.S. 265, 305
( 1978) (opinion of Powell, J.). See Hays U.S. Br. 31-32.
Given the Attorney General's important role in the Sec-
tion 5 statutory scheme, a State should be able to act
on the assumption that the Attorney General has correctly
objected to its plan, unless the objection is clearly in-
supportable. Shaw v. Hunt, 861 F. Supp. 408, 443 &
n.34 (E.D.N.C. 1994); see UJO, 430 U.S. at 175
(Brennan, J., concurring in part) (Attorney General's
judgment that a particular districting scheme complies
with the remedial objectives of the Voting Rights Act is
entitled to "considerable deference" ); cf. Presley V.
Etowah County Comm'n, 112 S. Ct. 820, 831 (1992)
(court must defer to Attorney General's construction of
Section 5, unless unreasonable or contrary to congres-
sional intent) 13 A State should not generally be re-
quired, before it can respond to the Attorney General's
objection, to expend substantial time and resources (and
to delay its redistricting process by what may be a period
of years) litigating the validity of the Attorney General's
objection in a judicial preclearance action in the District
Court for the District of Columbia. See also Morris v.
Gresette, 432 U.S. 491, 504-505 ( 1977) (Attorney
General's Section 5 objection not reviewable).

___________________(footnotes)

13 Jurisdictions often have to act particularly quickly-and thus
to rely on the administrative preclearance process-in the redis-
tricting context. Between 1991 and 1994, the Attorney General
received administrative submissions seeking Section 5 preclearance
for more than 2700 redistricting plans. During that same period,
only eight declaratory judgment actions were filed seeking pre-
clearance for redistricting plans. The Attorney General made
merits determinations regarding 2438 redistricting plans between
1991 and 1994, and precleaned all but 183 (or 7.5% ) of them.
During the comparable period in the last decade, the Attorney
General made determinations concerning 1373 redistricting plans
and objected to 113 (or 8.2%) of them.

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31

(ii). In this case, the Attorney General interposed
Section 5 objections to each of the State's two previous
redistricting plans, on the ground that the State had failed
in each case to carry its burden of showing that it had not
acted with a discriminatory purpose in drafting those
plans. See pp. 4-7, supra. Accordingly, so long as it
could not be said that the Attorney General's objections
were clearly insupportable, the State was justified in re-
lying on the objections in concluding that it must draw a
third majority-minority district.
Here, the Attorney General's objections were in fact
well founded. First, as the district court noted, Mark
Cohen, a Senior Assistant Attorney General of Georgia,
see J.S. App. 10a, testified that "the circumstances of the
1991-92 redistricting were similar to those of 1981 -82,"
id. at 20a n. 11, when the district court, in a decision
subsequently affirmed by this Court, denied the State's
request for a declaratory judgment that its redistricting
plan was not motivated by a discriminatory purpose. See
Busbee v. Smith, 549 F. Supp. 494 (D.D.C. 1982), aff'd,
459 U.S. 1166 ( 1983).14 The district court did not chal-
lenge that conclusion. J.S. App. 20a-21a n. 11.  15 Indeed,
in 1981-1982, as here, the legislature had applied its pur-
ported districting principles selectively. See Busbee, 549
F. Supp. at 514. In addition, in both 1981-1982 and the

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14 Cohen had also represented the State in the Busbee litigation.
He testified at trial in this case that he had thought it likely that
the State would lose a Section 5 suit to preclear either of the plans
to which the Department of Justice had objected. 5 Tr. 5.

15  The district court added that "the cost of litigating in D.C.
and the time pressures on the Assembly" also were factors making
a declaratory judgment action "not likely." J.S. App. 20a-21a n.11.
The cost of litigation is always a disincentive. A State ought not be
required to undergo those costs and litigate what it reasonably
believes might be a futile lawsuit in Washington, rather than
accepting the Attorney General's objection and taking remedial
steps to cure it.

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32

1991-1992 round of redistricting, the state Senate had
passed a plan that would have remedied the identified dis-
crimination, while the state House refused to do so.  Id.
at 504-512.  The fact that the State had been unable to 
prevail in a Section 5 declaratory judgment action when
it had previously faced a similar Section 5 "purpose"
objection from the Attorney General strongly supported
its conclusion that it was unlikely to prevail in this case.
There were also other factors supporting the conclusion
that the State might not be able to establish that it acted
without a discriminatory purpose had it not created a
third majority-minority district. This Court has explained
that the "historical background of the decision," especially
if it reveals a "series of official actions taken for invidious
purposes," Arlington Heights, 429 U.S. at 267, militates
in favor of an inference of intent. The district court judi-
cially noticed the State's history of racial discrimination
in voting, see J.S. App. 103a-104a, which included "vari-
ous means of destroying or diluting black voting strength"
and which spanned the period from the State's first Con-
stitution "through recent times." J.S. App, 104a. For
example, "[congressional districts have been drawn * * *
to discriminate against black citizens," and the State's
plans "discriminated by packing an excessive number of
black citizens into a single district or splitting large and
contiguous groups of black citizens between multiple dis-
tricts." Ibid. That history, which continued into the
1980's, when Busbee was decided, would have supported
an inference of discriminatory purpose here.
Arlington Heights also teaches that departure from a
jurisdiction's normal way of conducting its affairs can
give rise to an inference of discriminatory intent. 429
U.S. at 267. The Section 5 objection letters referred to
the fact that in passing its first two plans after the 1990
census, Georgia had departed from its own commitment
to treat keeping counties and cities intact as a secondary
interest. J.A. 106. 125. In each of the two plans, the

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33

Sixth District, for example, contained no complete coun-
ties and parts of five others. The testimony was unequivo-
cal that the Sixth District's odd configuration reflected
political, not racial, purposes. The plans thus exhibited
the State's willingness to split political subdivisions to
serve partisan political ends, but an unwillingness to do
so to recognize black minority political interests. Such
inconsistent application of substantive criteria was noted
by the Attorney General, J.A. 105-106, 125, and would
have supported a finding that the State's avowed goal to
avoid splitting counties was pretextual.
This Court recognized in Arlington Heights that "[t]he
impact of the official action-whether it `bears more
heavily on one race than another'-may provide an im-
portant starting point" in the inquiry into intent. 429
U.S. at 266 (citation omitted). Similarly, in the voting
rights context, this Court held in Rogers v. Lodge, 458
U.S. 613, 623 ( 1982), that the "overwhelming evidence
of bloc voting along racial lines" and the fact that "no
black had ever been elected to [the legislative body in
question]" were facts that "bear heavily on the issue of
purposeful discrimination." As we discuss below, see p.
37, infra, there was very substantial evidence of racial
bloc voting in this case. There was also evidence that
black candidates had in the past virtually never been suc-
cessful when they ran from majority-white districts and
that blacks would consequently be significantly under-
represented in the State's congressional delegation if only
two majority-minority districts were created. The State
thus knew that its failure to create a third majority-
minority district could be viewed as having an adverse
impact on minority voters, and that that fact would be
of relevance in a purpose inquiry.
A straightforward application of the principles for an-
alyzing discriminatory purpose therefore supported the
Attorney General's conclusion that the State had not met
its burden of showing that its reasons for not drawing

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34

a third majority-minority district were not pretexts for
minimizing black voting strength. The State's compelling
interest in complying with Section 5 therefore justified its
decision to draw a plan with three majority-minority
districts.
(iii). In connection with its inquiry into the Section 5
issues in this case, the district court permitted respondents,
over our objection, to obtain discovery and to introduce
extensive testimony concerning the operation of the Sec-
tion 5 preclearance process in this case. That evidence
included the live testimony of one DOJ attorney who was
involved with the Section 5 process and the testimony by
deposition of another DOJ attorney and former Assistant
Attorney General Dunne.
We continue to believe that that inquiry should not have
been undertaken. The Assistant Attorney General and
his staff received numerous communications from many
individuals interested in the Georgia redistricting process
-including numerous communications from attorneys
representing the state legislative black caucus and its
members. See J.S. App. 9a-1 la, 19a-20a, 26a-27a. The
governing DOJ regulations provide that any information
received from any individual or group "shall be considered
along with the materials submitted [by the jurisdiction]
and materials resulting from any investigation." 28 C.F.R.
51.30 (a) .16 Such consideration was accorded in this case,
and nothing in the district court's opinion suggests other-
wise. 17

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16 The regulations provide that "[a]ny individual or group may
send to the Attorney General information concerning a change
affecting voting." 28 C.F.R. 51,29. Such information may be pro-
vided "at any time." 28 C.F.R. 51.29 (c). It is important that the
Assistant Attorney General be able to consider such information,
since he has only 60 days from the submission of a voting change
to determine whether it should be precleaned. 42 U.S.C. 1973c.
17 The district court adverted to one general practice that it
disagreed with: the Department's practice of respecting the ano-

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35

The district court acknowledged that "the motivations
of the State of Georgia are the legally relevant motivations
in this case, and not those of the ACLU or the DOJ."
J.S. App. 9a. That statement was correct as to the analy-
sis of the State's interest in complying with Section 5, and
the inquiry into DOJ procedures and the thought processes
of individual DOJ attorneys had nothing to do with any
issue properly before the court.
The only respect in which the court's inquiry into the
Section 5 process arguably could affect the court's ruling
on the merits in this case was the court's conclusion that
the Department had adopted a "maximization" policy that
required the State to draw as many majority-minority dis-
tricts as possible. See J.S. App. 64a. The court's char-
acterization of the Attorney General's policy and practice
is, however, inaccurate. The Section 5 process is tailored
to the specifics of each case, and no general requirement
of maximization-or of proportionality-is imposed. 18

___________________(footnotes)

nymity of its sources when requested, pursuant to regulation. See
28 C.F.R. 51.29 (d). We believe that that practice is sound, espe-
cially considered in light of the history of voting rights enforce-
ment in this country, The district court also suggested that a state
Senator was "offended" at a meeting with DOJ officials, either
because of "anonymous allegations," of which he was presumably
informed, "or some other suggestion." J.S. App. 24a. The fact that
an individual felt "offended" for an undetermined reason at a
meeting at which highly controversial issues were discussed hardly
suggests misconduct on the part of any DOJ official.
The court also criticized the Department for what it believed to
be a "leak" of the Department's second objection to the legislative
black caucus before the State itself was informed. J.S. App. 26a.
Any such "leak" would have been in direct contravention of the
Department's policy and should not have occurred. The issue,
however, has nothing to do with the merits of the present case.

18 See James P. Turner, "Case-Specific Implementation of the
Voting Rights Act," in Bernard Grofman and Chandler Davidson,
eds., Controversies  in Minority Voting (The Brookings Institution,
Washington, D.C. 1992) ; Dunne, Redistricting in the 19090's: The
New York Example, 14 Cardozo L. Rev. 1127 (1993); Grofman,

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         36

See 28 C.F.R. 51.57 et seq. (standards by which Section
5 submissions are judged). Providing the opportunity for
minority representation is of course considered as a rele-
vant factor in the Section 5 process; here, three majority-
minority districts out of 11 was almost exactly propor-
tional to the number of minority group members in the
population. See J.S. App. 68a. As this Court explained
in Johnson v. DeGrandy, 114 S, Ct. 2647 ( 1994), "pro-
portionality" in that sense-i.e., the relationship between
the number of majority-minority districts and the minor-
ity's percentage of the population-is "obviously" of rele-
vance to a Section 2 claim, 114 S. Ct. at 2661, 2662 &
n. 17, and as the Court explained in Arlington Heights,
see p. 33, supra, evidence of such discriminatory effects
as underrepresentation is also relevant to a claim of dis-
criminatory purpose.
b. Section 2. In Thornburg v. Gingles, 478 U.S. 30,
50-51 ( 1986), the Court established the three precondi-
tions for a Section 2 vote dilution claim in a districting
case. Plaintiffs must show that ( 1 ) the minority popula-
tion is sufficiently numerous and compact to constitute a
majority in a single-member district, (2) the minority
group is politically cohesive, and (3) whites usually vote
sufficiently as a bloc to defeat the minority's preferred
candidate. As we explained in our brief in Hays, see
Hays U.S. Br. 28-29, in light of Gingles and this Court's
decision in Johnson v. DeGrandy, 114 S. Ct. 2647, 2658-
2662 ( 1994), a State would have a reasonable basis for
creating a majority-minority district to comply with Sec-
tion 2 when each of the three Gingles preconditions couId
be established against it and when, without such a district,
the number of districts in which minorities would have an
opportunity to elect candidates of choice would be dis-
proportionately small compared to the group's proportion
of the population. See also Johnson, 114 S. Ct. at 2664

___________________(footnotes)

Would Vince Lombardi Have Been Right If He Had Said: "When
It comes To Redistricting, Race Isn't Everything, It's The Only
Thing"?, 14 Cardozo L. Rev. 1237, 1265-1266 (1993).

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37

(0'Connor, J., concurring); Shaw V. Hunt, 861 F. Supp.
at 440-441 & n.28.
The State had reason to know that voting in Georgia
could be found to be polarized on the basis of race, and
the district court in this case in fact found that it was. 19
The court found that only 22% to 38% of white people
in the area were willing to vote for African-American
candidates, while only 2070 to 23% of African-Americans
in the area would vote for white candidates. 20 J.S. App.

___________________(footnotes)

19 The parties stipulated that courts had previously found racially
polarized voting in elections in Bleckley, Burke, Carroll, Colquitt,
Dougherty, Fulton, Putnam, Wilkes, and DeKalb Counties. Joint
Statement of Undisputed Facts, at 29-30.

20 The district court found that racially polarized voting "ex-
ists," although the court characterized it as "not in alarming
quantities." J.S. App. 82a. The court's assessment of the sig-
nificance of the fact that the white crossover vote ranged from
22% to 38%-i.e., that about 70% of the white voters would
not vote for candidates of choice of the black community-is doubt-
ful. In any event, the district court substantially overestimated the
white crossover vote, and the State had a strong basis for believing
that the crossover vote was much smaller. Dr. Allan Lichtman, the
United States' expert, using Democratic primary elections including
primary elections for Congress in the Second and Eleventh Dis-
tricts, found that white crow-over voting ranged from 7% to 29%,
except in elections having multiple black candidates. 5 Tr. 202-224;
U.S. Exh. 24, tables 1-4. Dr. Ronald Weber, plaintiffs' expert,
agreed that Democratic primaries were the most "probative" elec-
tions, although he believed that other elections were relevant as
well. 4 Tr. 314, 318, 286-290. Moreover, the figure cited by the
district court includes consideration of judicial elections involving
an appointed black incumbent and elections in which there were
multiple black candidates and a white candidate, both of which are
substantially less probative of racially polarized voting in congres-
sional elections between one black and one white candidate. See 5
Tr. 201 (testimony of Alan Lichtman). See also Thornburg V.
Gingles, 478 U.S. 30, 57 (1986) ; Collins V. City of Norfolk, 883
F.2d 1232, 1243 (4th Cir. 1989), cert. denied, 498 U.S. 938 (1990).
Dr. Weber himself testified that, if the judicial incumbent elections
were removed from his own calculation, the white crossover vote
would drop to 26.6%, and if the elections involving multiple black
candidates were removed, the white crossover calculation would
drop to 17%. 4 Tr. 325.

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38

82a. The State also knew that, with one exception, all of
the black state legislators in Georgia were elected in dis-
tricts that were at least majority black and, more often, at
least 60% black. See docket no. 62, at 19. Indeed, of the
181 majority-white state legislative districts, only one was
represented by an African-American, ibid. As for "com-
pactness," nothing in Gingles requires any absolute meas-
ures. That case requires only that the potential majority-
minority district be reasonably compact in light of the
state's redistricting practices. As we have argued above,
the Eleventh District satisfied that criterion. See pp. 23-
25, supra.  Finally, had the State created only two
majority-minority districts out of eleven (or 18%), the
State had reason to believe that the opportunities for
minority voters, who constitute 27% of the State's popula-
tion, to elect candidates of their choice would have been
disproportionally small.
Respondents have argued that, because the State itself
has not advanced an interest in complying with Section 2
as a justification for the Eleventh District, no such interest
could be recognized. That is incorrect. The critical in-
quiry is whether the objective facts considered by the
State at the time of redistricting would have reasonably
supported a conclusion that a prima facie case existed
under Section 2. The failure of the state defendants to
argue that the State was in danger of violating Section 2,
especially where the State was litigating similar issues in
other cases, does not preclude a finding that the State's
need to ensure compliance with Section 2 was a com-
pelling interest sufficient to support its determination to
create a third majority-minority district. The State is not
required to expose itself to liability in other settings in
order voluntarily to comply with the Voting Rights Act
with regard to redistricting. 21

___________________(footnotes)

21 Both at the time of redistricting and when trial was held in
this case, Georgia was defending Section 2 challenges to its major-
ity vote requirement and its at-large system for electing judges.
Brooks V. Miller, Civ. No. 1:9O-CV-1OO1-RCF (N.D. Ga.) (majority-

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39

c. Ameliorating Polarization. A State may also have
a compelling interest, independent of the Voting Rights
Act, in eradicating the effects of past discrimination,
which have resulted in racially polarized voting and a
diminution of the opportunities of minority voters to elect
the candidates of their choice. See Hays U.S. Br. 33-34.
That interest was recognized by three Justices in UJ0.
See 430 U.S. at 167 (White, J., joined by Rehnquist and
Stevens, JJ. ). It also follows from the general principle,
recognized by this Court in Croson, that a State has a
compelling interest in remedying identified discrimination
within its jurisdiction, even when it has no federal statu-
tory duty to do so. 488 U.S. at 491-493, 509.
Applying that analysis leads to the conclusion that
polarized voting in Georgia gives the State a compelling
interest in creating a plan with three majority-minority
districts. As we have noted. racially polarized voting in
Georgia virtually precludes the election of black-supported
black candidates in majority-white districts. Based on the
evidence before it, the State had every reason to believe
that unless it created an additional district in which blacks
constituted a majority, bloc voting by whites would pre-
clude minority voters from having any realistic chance
to elect an additional representative of their choice and
would leave them substantially underrepresented. In those
circumstances, the State had a compelling interest in creat-
ing three majority-minority districts in an effort to achieve
a fair allocation of political power between white and
nonwhite voters.

___________________(footnotes)

vote requirement) ; United States V. Georgia, Civ. No. 1:90-CV-
1749-RCF (N.D. Ga) (same) ; Brooks V. State Bd. of Elections,
848 F. Supp. 1548 (S.D. Ga. 1994) (judicial elections). Following
Section 5 objections by the Attorney General, Georgia also was
seeking judicial preclearance to expand its at-large judicial election
system. Georgia v. Reno, No. 90-2065 (D. D. C.) (three-judge court).
The State was well aware that any concession of racial polarization
for redistricting purposes could adversely affect its position in ongo-
ing voting rights litigation.

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40

The district court rejected this interest on the ground
that proportional representation is neither a statutory nor
a constitutional requirement, and on the ground that "[t]o
erect the goal of proportional representation is to erect
an implicit quota for black voters." J.S. App. 53a. We
agree that proportionality is not a statutory or constitu-
tional requirement. But we disagree that a State's desire
to ameliorate the effects of severely racially polarized
voting would necessarily constitute a "quota." Where the
State attempts to achieve its goal through means that are
narrowly tailored, the result is not a "quota" for minority
voters, but a fair opportunity for them to elect the candi-
dates of their choice. Johnson v. DeGrandy, 114 S. Ct.
2647,2658 n.11 (1994).

B. The State's Plan Is Narrowly Tailored To Further
Its Compelling Interests

The State's plan was also narrowly tailored to further
its compelling state interests. Relying on United States
v. Paradise, 480 U.S. 149, 171-185 (1987) (plurality
opinion ), courts have focused on three narrow tailoring
requirements in the redistricting context. First, a State
may not create more majority-minority districts than ei-
ther the Voting Rights Act or the State's interest in fairly
allocating political power justifies. Shaw v. Hunt, 861 F.
Supp. at 446: J.S. App. 82a. Second, a State may not
needlessly pack substantially more minority voters into
a district than are reasonably necessary to give the minor-
ity group an opportunity to elect the candidate of its
choice. ibid. And third, a State may not create an ex-
tremely irregular district when a far more regular district
would be equally effective in serving the State's compelling
interest and the creation of the more compact district
would not compromise the State's other legitimate redis-
tricting interests. 22 Hays v. Louisiana, 839 F. Supp.

___________________(footnotes)


22 The narrow tailoring principle does not require a state to draw
the most compact district possible. See Jurisdictional Statement,

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41

1188, 1206-1209 (W.D. La. 1993), vacated on other
grounds, 114 S, Ct. 2731 (1994).
The district court did not find that the first and third
of those criteria were not satisfied here, and the record
would not have supported any such finding. The district
court did find, however, that the State's plan was not nar-
rowly tailored because the African-American share of the
Eleventh District's population was too high. J.S. App.
63a-87a. According to the district court, "a black candi-
date in Georgia would have an `equal' chance of being
elected in a district containing 45-50% black registered
voters." J.S. App. 86a. As drawn, the district was 64%
African-American in total population and 60% African-
American in voting age population. J.S. App. 21a n. 12.
Based on official voter registration data, at the time of
the redistricting, the district "was estimated to have been
51. 1% African-American in registered voters. Joint Exh.
17, at 67. 23 The district court's finding that the propor-
tions were excessive was based on two erroneous legal
premises.
First, the district court took the position that the pro-
portionately lower registration and turnout rates of African-
American voters should not be figured into the calcula-
tion. To consider those factors, the court held, would
"amount[] to an incentive for and institutionalization of
black voter apathy." J.S. App. 86a. Both this Court and
other courts addressing the issue, however, have held that
past discrimination and socioeconomic disadvantage may
suppress voter turnout and registration among African-
Americans. Gingles, supra, 478 U.S. at 36, n.4 (quoting
S. Rep. No. 417, 97th Cong., 2d Sess. 28 ( 1982)), 38
(lower court found such disadvantage among North Caro-

___________________(footnotes)

United States v. Vera, No. 94-988, at 11-14. A State may legitimately
give priority to redistricting interests other than compactness,
such as protecting incumbents.

23 There was evidence that, by 1992, 57% of the registered voters
in the district were African-American. See Defendants' Joint Exh.
21, at 139.

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42

 lina blacks), 69 (expressly endorsing the principle). See
also States v. Dallas County Commission, 739
F. 2d 1529, 1537 (11th Cir. 1984); United States v.
Marengo County Commission, 731 F.2d 1546, 1574
(1lth Cir. ), appeal dism. and cert. denied, 469 U.S. 976
( 1984). Dr. Lichtman testified without contradiction in
this case (5 Tr. 206-207) that those factors operate to
depress black turnout in Georgia. See Joint Statement of
Undisputed Facts, at 40-44. To ignore those factors in
creating a majority-minority district would be to give con-
tinuing effect to the past discrimination that the State
seeks to remedy.
Second, the district court apparently believed that a
district cannot be justified as narrowly tailored if a court
determines, after thorough litigation of the issue, that the
district contains more minority population than the court
finds would have been necessary to advance the State's
compelling interest. At the time the State creates the dis-
trict. however, the State must rely on available data, and
the State certainly cannot be expected to predict with
precision the determination that a court might make on
the issue after it has been contested in litigation. The
percentage of minority population necessary to give minori-
ty voters an opportunity to elect the candidates of their
choice in a given district is necessarily a rough calcula-
tion. especially at the time of redistricting. The number
the State used here-60% black voting age population-
was supported by very substantial evidence in this case,
see 5 Tr. 205-220, 279-283 (testimony of Allan
Lichtman); U.S. Exh. 24, at 20-37, and is well within the
range that has been thought appropriate in similar con-
texts. See, e.g., Ketchum v. Byrne, 740 F.2d 1398, 1413-
1417 (7th Cir. 1984), cert. denied, 471 U.S. 1135
(1985): Jeffers v. Clinton, 756 F. Supp. 1195 (E.D.
Ark. 1990). aff'd mem.. 498 U.S. 1019 (1991). Espe-
cially in light of the federal interest in encouraging volun-
tary compliance with the law. see. e.g., Wygant v. Jackson
Bd. of Educ., 476 U.S. 267, 274, 277-278 (1986)
(plurality opinion):  id. at 290-291 (O'Connor, J., con-

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43

curring in part and concurring in the judgment); id. at
305 (Marshall, J., dissenting), the State had a more than
adequate basis for drawing the Eleventh District with the
minority population it contained.

CONCLUSION

The judgment of the district court should be reversed.

Respectfully submitted.

DREW S. DAYS, III
Solicitor General

DEVAL  L. PATRICK
Assistant Attorney General

PAUL BENDER
Deputy Solicitor General

JAMES A. FELDMAN
Assistant to the Solicitor General

STEVEN H. ROSENBAUM
MIRIAM R. EISENSTEIN
Attorneys

February 1995

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        APPENDIX

Section 2 of the Voting Rights Act of 1965, 42 U.S.C.
1973, provides:

   (a) No voting qualification or prerequisite to
voting or standard, practice, or procedure shall be
imposed or applied by any State or political sub-
division in a manner which results in a denial or
  abridgement of the right of any citizen of the United
States to vote on acount of race or color, or in con-
travention of the guarantees set forth in section
  1973b (f) (2) of this title, as provided in subsection
  (b) of this section.
   (b) A violation of subsection (a) of this section
  is established if, based on the totality of circum-
  stances, it is shown that the political processes lead-
  ing to nomination or election in the State or political
  subdivision are not equally open to participation
  by members of a class of citizens protected by
  subsection (a) of this section in that its members
  have less opportunity than other members of the
  electorate to participate in the political process and
  to elect representatives of their choice. The extent to
  which members of a protected class have been elected
  to office in the State or political subdivision is one
  circumstance which may be considered: Provided,
  That nothing in this section establishes a right to
  have members of a protected class elected in numbers
  equal to their proportion in the population.

Section 5 of the Voting Rights Act, 42 U.S.C. 1973c
provides:

   Whenever a State or political subdivision with
  respect to which the prohibitions set forth in section
  1973b ( a) of this title based upon determinations
  made under the first sentence of section 1973b (b)
  of this title are in effect shall enact or seek to admin-

          (1a)

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2a

ister any voting qualification or prerequisite to voting,
or standard, practice, or procedure with respect to
voting different from that in force or effect on No-
vember 1, 1964, or whenever a State or political sub-
division with respect to which the prohibitions set
forth in section 1973b(a) of this title based upon
determinations made under the second sentence of
section 1973b (b) of this title are in effect shall enact
or seek to administer any voting qualification or pre-
requisite to voting, or standard, practice, or proce-
dure with respect to voting different from that in
force or effect on November 1, 1968, or whenever
a State or political subdivision with respect to which
the prohibitions set forth in section 1973b(a) of this
title based upon determinations made under the third
sentence of section 1973b (b ) of this title are in effect
shall enact or seek to administer any voting qualifica-
tion or prerequisite to voting, or standard, practice,
or procedure with respect to voting different from
that in force or effect on November 1, 1972, such
State or subdivision may institute an action in the
United States District Court for the District of Co-
lumbia for a declaratory judgment that such qualifi-
cation, prerequisite, standard, practice, or procedure
does not have the purpose and will not have the effect
of denying or abridging the right to vote on account
of race or color, or in contravention of the guaran-
tees set forth in section 1973b (f ) ( 2 ) of this title, and
unless and until the court enters such judgment no
person shall be denied the right to vote for failure to
comply with such qualification, prerequisite, standard,
practice, or procedure: Provided, That such qualifi-
cation, prerequisite, standard, practice, or procedure
may be enforced without such proceeding if the
qualification, prerequisite, standard, practice, or pro-
cedure has been submitted by the chief legal officer

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3a

or other appropriate official of such State or sub-
division to the Attorney General and the Attorney
General has not interposed an objection within sixty
days after such submission, or upon good cause
shown, to facilitate an expedited approval within
sixty days after such submission, the Attorney Gen-
eral has affirmatively indicated that such objection
will not be made. Neither an affirmative indication
by the Attorney General that no objection will be
made, nor the Attorney General's failure to object,
nor a declaratory judgment entered under this section
shall bar a subsequent action to enjoin enforcement
of such qualification, prerequisite, standard, practice,
or procedure. In the event the Attorney General
affirmatively indicates that no objection will be made
within the sixty-day period following receipt of a
submission, the Attorney General may reserve the
right to reexamine the submission if additional infor-
mation comes to his attention during the remainder
of the sixty-day period which would otherwise require
objection in accordance with this section, Any action
under this section shall be heard and determined by
a court of three judges in accordance with the pro-
visions of section 2284 of title 28 and any appeal
shall lie to the Supreme Court.


U.S. GOVERNMENT PRINTING OFFICE; 1995          387147 20045

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No. 94-929

In the Supreme Court of the United States

OCTOBER TERM, 1994

UNITED STATES OF AMERICA, APPELLANT

V.

DAVIDA JOHNSON, ET AL.

ZELL MILLER, ET AL., APPELLANTS

V.

DAVIDA JOHNSON, ET AL.

LUCIOUS ABRAMS, JR., ET AL., APPELLANTS

V.

DAVIDA JOHNSON, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF GEORGIA

REPLY BRIEF FOR THE UNITED STATES

DREW S. DAYS, III
Solicitor General

Department of Justice
Washington, D.C. 20530
(202)514-2217

---------------------------------------- Page Break ----------------------------------------

TABLE OF AUTHORITIES

Cases:

City of Richmond v. J.A. Croson Co., 488 U.S. 469
(1989)  . . . . 10 
Davis v. Bandemer, 478 U.S. 109 (1986)  . . . . 5 
Gaffney v. Cummings, 412 U.S. 735 (1973)  . . . . 5 
McCain v. Lybrand, 465 U.S. 236 (1984)  . . . . 13
McDaniel v. Sanchez, 452 U.S. 130 (1981)  . . . . 13
Mississippi University for Women v. Hogan,
458 U.S. 718 (1982)  . . . . 10
Morris v. Gressette, 432 U.S. 491 (1977)  . . . .13 
Perkins v. Matthews, 400 U.S 379 (1971)  . . . . 13
Rutan v. Republican Party of Illinois, 497 U.S. 62
(1990)  . . . . 5
Shaw v. Reno, 113 S. Ct. 2816 (1993)  . . . . 6 
Village of Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252 (1977)  . . . .3, 13 
Weinberger v. Wiesenfeld, 420 U.S. 636 (1975)  . . . . 10 

Constitution, statutes and regulation:

U.S. Const. Amend. XIV (Equal Protection Clause)  . . . . 3 
Voting Rights Act of 1965, 42 U.S.C. 1973 et seq.:
2, 42 U.S.C. 1973  . . . . 11, 12
5, 42 U.S.C. 1973c . . . . 5, 10, 11, 12, 13, 14

(I)

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In the Supreme Court of the United States
 
       OCTOBER TERM, 1994

      No. 94-929

UNITED STATES OF AMERICA, APPELLANT

       v.

    DAVIDA JOHNSON, ET AL.

______________________________

No. 94-631

ZELL MILLER, ET AL., APPELLANTS

      v.

  DAVIDA JOHNSON, ET AL.

_______________________

      No. 94-797

LUCIOUS ABRAMS, JR., ET AL., APPELLANTS

        v.

    DAVIDA JOHNSON, ET AL.

ON APPPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF GEORGIA

REPLY BRIEF FOR THE UNITED STATES

1. a. In our opening briefs in this case and in
United States v. Hays, Nos. 94-558 and 94-627, we
argue in some detail that the configuration of an
electoral district is not subject to strict scrutiny
 
         (1)

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2

 merely because the State intended to-and did-
create the district with a majority-minority pop-
ulation.  See U.S. Br. 17-22; Hays - U.S. Br  14-20.
Underlying our argument is the premise that
subjecting a district to strict scrutiny on that basis
would, in effect, require states to place racial
minority groups at a political disadvantage.
One important purpose of drawing district lines
in one place rather than another is to recognize
politically cohesive communities of voters. Minor-
ities in this country and, in particular, African-
Americans-frequently constitute distinctive geo-
graphical and political communities, and the evidence
of political cohesion of African-Americans in this
case, see U.S. Br. 37-38, establishes that African-
Americans living in the area encompassed by the
Eleventh District of Georgia constitute such a
community, with many common political interests. ]

___________________(footnotes)

1 The political cohesion of this minority group is explicable
at least in part as a result of the political interests shared
by African-Americans in the Eleventh District, Extensive
evidence on that subject was presented at trial. See, e.g., 6 Tr.
27-48 (testimony of Rev. Mitchell), 137-194 (testimony of Dr.
Marsha Darling); see also J.S. App. 45a (referring to such
evidence). The district court found such evidence at least
" partially convincing," id. at 44a, although it expressed doubt
that "the poor black populations of coastal Chatham County
feel a significant bond to the black neighborhoods of metro
Atlanta. "  Ibid. Nor did the court doubt that African-
Americans in the Eleventh District were politically cohesive. It
found that "the average percentage of blacks voting for white
candidates ranged from 20%-23%," i.e., 77% to 80% of
African-Americans voted for African-American candidates
when they had the opportunity. Id. at 82a. For the reasons
given in our opening brief, see U.S. Br. 37 n.20, even those
figures are substantially understated. Dr. Lichtman, the

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3

To hold that the intent to create a district in which
they are the majority is, for that reason alone,
suspect under the Equal Protection Clause would be
to place minority racial groups with distinctive
political interests at a severe disadvantage in the
political process. Under such a holding, a State that
intentionally draws a district to recognize the voting
power of a politically cohesive minority group-even
a district that indisputably adheres to the State's
traditional districting practices with regard to
compactness, etc would automatically subject that
district to strict scrutiny if litigation ensued. The
legal uncertainty and litigation costs that would
result would give the States a powerful reason not to
recognize the political interests of such groups,
resulting in a substantial political disadvantage to
the groups whom the Equal Protection Clause was
primarily designed to protect.2
b. Appellees in some places argue that an in-
tentionally created majority-minority district must
nevertheless be subjected to strict scrutiny under
the Equal Protection Clause. For example, they
state that "[u]nder [Village of] Arlington Heights [v.
Metropolitan Housing Development Corp., 429 U.S.
252, 266 (1977),] and Hunter v. Underwood, 471 U.S.

___________________(footnotes)

United States' expert, using statewide and congressional
Democratic primary elections in the Eleventh Districts, found
that 65% to 97% of African-Americans voted for African-
American candidates in races involving white candidates as
well; in seven of the eight races analyzed, that figure was 89%
or higher. See U.S. Exh. 24, tables 1-2.
2 Minority political groups would be at an even greater
political disadvantage under the district court's view that
"such a [racially defined] community of interest is barred from
constitutional recognition." J.S. App. 44a (emphasis added).

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4

222-228 (1985), once a racial classification is shown to
have been a `substantial' or `motivating' factor behind
an enactment, the burden then shifts to the state to
demonstrate that the law would have been enacted
without this factor." Appellees' Br. 35. Precisely
because members of a minority group are in the
minority in a State's overall population, however,
majority-minority districts are ordinarily created by
design, not coincidence. Therefore, under appellees'
approach, all majority-minority districts will
potentially be subject to strict scrutiny.
Appellees claim that, under the standard they
advocate, "it would be very difficult to even conceive
of a congressional district that would be challenged
(let alone subjected to strict scrutiny) without highly
irregular features tied to race." Appellees' Br. 34.
That statement is wrong. Under appellees' standard,
a perfectly compact district comprising a politically
cohesive majority-minority community or commu-
nities would be subject to strict scrutiny so long as
the State had a choice in drawing the district lines
and drew them as it did in order to provide the
minority community with representation. Should
appellees' standard be adopted, few majority-minority
districts would avoid strict scrutiny. Indeed, ap-
pellees appear to recognize that fact when they
acknowledge that, "[f] or practical reasons, the
District Court * * * added the requirement that
race be the `overriding' or `predominant' force
determining the lines of the district." Appellees' Br.
35 (emphasis added). As we argue in our opening
brief, however, the district court's "predominant
motive" standard poses essentially that same
prospect that virtually every majority-minority

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5

district will be subject to strict scrutiny. See U.S.
Br. 18-19.3

___________________(footnotes)

3 The district court's numerous different formulations of
the standard also give a hint of the analytical difficulties that
would attend its application. The district court thus states
variously that the test is whether race "was the substantial
or motivating consideration in creation of the district in
question," J.S. App. 35a (footnote omitted); whether race was
the "overriding, predominant force determining the lines of the
district," ibid.; whether race is not merely "one factor among
many of equal or greater significance to the drafters," ibid.;
whether "race was the most prominent element driving the
legislatures' planning," id. at 35a n.19; and whether race was
"not * * * one motivation among others of equal strength
propelling the process," ibid.
Amici Washington Legal Foundation, et al., assert that our
objections to inquiring into a legislature's "overriding" or
"predominant" motive are "disingenuous coming from the
federal government, which regularly engages in exhaustive
examination of legislative intent in connection with its pre-
clearance authority under 35 of the Voting Rights Act." Br.
13. Our Section 5 inquiry, however, does not require
identification of an "overriding" or "predominant" motive. As
we explain in our opening brief, see U.S. Br. 32-34, our Section
5 inquiry looks into the possible existence of an improper
legislative purpose to discriminate, employing the accepted
"motivating factor" analysis derived from this Court's decision
in Arlington Heights. There is nothing improper, however,
about a legislative purpose to recognize the political interests of
a racial minority group in the same way that other (and often
competing) political interests are recognized in a State. For
similar reasons, this Court has upheld redistricting plans that
plainly were based on the political affiliations of voters, see,
e.g., Davis v. Bandemer, 478 U.S. 109 (1986); Gaffney v.
Cummings, 412 U.S. 735 (1973), while making clear that other
governmental decisions based on political affiliation are subject
to heightened scrutiny, see Rutan v. Republican Party of
Illinois, 497 U.S. 62, 74 (1990). See generally Amicus Curiae
Georgia Ass'n of Black Elected Officials Br. 12-18.

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6

For the reasons given above and in our opening
brief, we submit that the State's intent to create a
majority-minority district-whether analyzed under
a "motivating factor" standard or the "predominant
motive" standard adopted by the district court in this
case-does not alone require the application of strict
scrutiny. Instead, this Court's decision in Shaw v.
Reno, 113 S. Ct. 2816 (1993), provides the appropriate
guidepost. Where the shape of a challenged district is
"So extremely irregular on its face that it rationally
can be viewed only as an effort to segregate the races
for purposes of voting," Shaw, 113 S. Ct. at 2824, it
betrays the State's intent to draw lines for the
minority group that it is unwilling to draw for other
politically cohesive groups. In that "rare" cir-
cumstance, id. at 2825, the Court has held that the
State must justify its action under strict scrutiny.
2. We state in our opening brief that the test for
"extreme irregularity" or "bizarreness" under Shaw
s whether, "in drawing the district, the State
departs dramatically from its traditional districting
practices." U.S. Br. 14. Appellees do not appear to
disagree; they state that "[r]acial gerrymandering
occurs when the State draws a district that artifi-
cially manipulates non-compact dispersed minority
populations into a majority black district without
regard for the State's traditional districting
principles." Appellees' 13r. 24. But they argue that
the district court's determination that the Eleventh
District is "bizarre" under that standard was not
clearly erroneous.
The district court, however, gave no indication that
it employed the correct legal standard in reaching its
conclusion. Instead, as we explain in our opening
brief (IT. S. Br. 25), the court approached the "bizarre-

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7

ness" inquiry by assuming that its purpose was to
uncover whether the State had an "overriding
objective to include minority populations in the
Eleventh [District]." J.S. App. 47a. That improper
focus led the district court to give inappropriate
weight to several facts that were of little or no
relevance, and to disregard factors that should have
guided the inquiry. See U.S. Br. 25-27. For the
reasons given in our opening brief, see U.S. Br. 23-25,
and by Judge Edmondson in his dissenting opinion,
see J.S. App. 96a-100a, we believe that the Eleventh
District satisfies the Shaw standard.
Appellees argue that the Eleventh District is a
dramatic departure from Georgia's traditional
districting principles because it splits eight counties
(while leaving 14 intact) and the Georgia redistrict-
ing plan as a whole splits 31 municipalities.
Appellees' Br. 14-15. As appellees concede, however,
Georgia has split counties in the past. Id. at 15.
Equally important, the current Georgia redistricting
plan splits numerous counties for reasons that in
many places have nothing to do with race. See U.S.
Br. 24 n.7. The Sixth District, for example, is
comprised of parts of five different counties and no
intact counties at all. Although appellees in a
footnote claim that "[t]he [Sixth] district had to split
counties due to one-person one-vote and the need to
maintain the majority-minority Fifth District,"
Appellees' Br. 22 n.21, they cite to nothing in the
record to support that statement. In fact, the
evidence showed that the configuration of the Sixth

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8

District was based on a desire to achieve certain
largely political goals. 4
With respect to split municipalities, appellees also
concede that Georgia's plans in the past have
split municipalities for reasons other than compli-
ance with the one-person, one-vote requirement.
Appellees' Br. 15. Moreover, although they state that
the current Georgia plan as a whole splits 31
municipalities, see i bid., they do not state that only
six of these municipalities are split by the Eleventh
District.5 Elsewhere in the plan, other districts split
more municipalities for reasons that appear to have
nothing to do with race.6

___________________(footnotes)

4 Senator Garner, who was the majority leader of the
Georgia Senate, a member of its reapportionment committee,
and a member of the conference committee on the re-
apportionment bills, and Speaker Murphy of the Georgia
House of Representatives both testified that the Sixth
District's configuration was due in large part to Murphy's
desire that the district not include his residence. See 3 Tr. 229
(Garner); 2 Tr. 75-79 (Murphy); accord 3 Tr. 264-265
(testimony of Rep. Hanner, Chair of House Reapportionment
Committee); 4 Tr. 349 (testimony of Oscar Persons).
Lieutenant Governor Pierre Howard also testified by video-
taped deposition, the transcript of which was admitted in
evidence as Plaintiffs' Exhibit (PX) 216A, see 4 Tr. 184.
Referring to the Sixth District, Howard testified that the
legislature was "trying to make sure that it's as Republican as
possible." PX 216A, at 95.
5 The six municipalities are Augusta, Savannah, Mil-
ledgeville, Port Wentworth, Thunderbolt, and Washington.
6 For example, six of the 31 municipalities on the list are in
Gwinnett County and are split between some combination of
the Fourth, Sixth, and Tenth districts, all of which are
majority white. Those municipalities are Duluth, Lawrence-
ville, Norcross, Snellville, Sugar Hill, and Suwanee. The
majority-white Sixth District alone splits eight municipalities,

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9

3. Appellees argue (Br. 37-39) that, if strict
scrutiny is applied to the Eleventh District, the
district does not survive it, because in their view the
State in this litigation has not itself advanced any
interest that it considers to be compelling and that
motivated it in creating the Eleventh District. In
appellees'  view, the State's litigation position on this
issue is dispositive, even though private individuals
and the United States are now also parties defendant
and offer compelling interests in support of the
State's position.
Appellees' view is mistaken. When applying strict
scrutiny, the question is whether the challenged
state action (in this case, the creation of the Eleventh
District) was narrowly tailored to satisfy a com-
pelling state interest. As a plurality of this Court
stated (in a passage quoted by appellees themselves,
see Appellees' Br. 38-39), "the purpose of strict
scrutiny is to `smoke out' illegitimate uses of race by
assuring that the legislative body is pursuing a goal
important enough to warrant use of a highly suspect
tool." City of Richmond v. J.A. Croson Co., 488 U.S.
469, 493 (1989) (opinion of O'Connor, J.). The crucial
question is thus whether the legislative body-not

___________________(footnotes)

two more than are split by the Eleventh District. They are
Duluth, Lawrenceville, Norcross, Sugar Hill, Suwanee,
Marietta, Smyrna, and Woodstock. This information and that
in the previous footnote are derived by locating the cities on
appellees' list on a map of Georgia; appellees themselves did
not introduce evidence about which districts split each of the
municipalities. It should be noted that appellees' list is in any
event misleading, since it omits the numerous split
municipalities in the present and past plans that overlap more
than one county. See 2 Tr. 138-140 (testimony of Linda
Meggers).

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10

the lawyers representing the State or state officials
in later litigation-was pursuing a compelling state
interest and employed means narrowly tailored to
advance it. As this Court explained in Weinberger v.
Wiesenfeld, 420 US. 636, 648 (1975), "the mere
recitation of a benign. compensatory purpose is not an
automatic shield which protects against any inquiry
into the actual purposes underlying a statutory
scheme. " The appropriate inquiry turns on an
examination of "the statutory scheme itself and
* * * the legislative history ''-not the litigation
positions advanced by attorneys representing one of
the parties. Ibid. Accord Mississippi University for
Women v. Hogan, 458 U.S. 718,728 (1982).
In any event, there is no doubt that, at the time the
State adopted its plan, the State believed that
creating the Eleventh District was necessary to
comply with Section 5 of the Voting Rights Act, and
that such compliance was a compelling state interest
that supported the State's action here. The State
knew that the Attorney General had interposed
Section 5 objections to the two previous redistricting
plans, a fact that in our view is sufficient to support
the State's belief that its creation of the Eleventh
District was necessary to comply with Section 5,
Moreover, Mark Cohen, a Senior Assistant Attorney
General of Georgia, testified at trial that he advised
the leadership of the state legislature that the State
should not file a Section 5 declaratory judgment suit
to obtain preclearance for the State's second plan,
because he thought that the State would lose such a
suit, as it had lost a similar Section 5 suit ten years
earlier. 5 Tr. 5-6. The district court made no finding
that the State did not create the Eleventh District on
the basis of that belief. Thus, whatever may be the

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11

State's position now in litigation, the state
legislature that drew the Eleventh District was
motivated by a desire to comply with Section 5 of the
Voting Rights Act.
The state legislature also acted for the purpose of
complying with Section 2 of the Voting Rights Act.7
The district court did not suggest otherwise, but
instead concluded that, in its view, the failure to draw
a third majority-minority district would not have
subjected the State to Section 2 liability. For the
reasons given in our opening brief in this case and in
Hays, we believe that the district court erred in
undertaking a de novo inquiry into that issue. See
U.S. Br. 28-29; Hays U.S. Br. 27-28. The question
before the district court was not whether a court
would have found Section 2 liability in a hypothetical
lawsuit challenging the State's failure to create
a third majority-minority district. Rather, the
question was whether the objective facts considered
by the State would reasonably support a conclusion
that a prima facie case existed under Section 2. As
we argue in our opening brief, U.S. Br. 37-38, such
facts were before the legislature.
The State has also contended throughout this
litigation that it acted to advance a compelling
interest in affording minority voters a fair
opportunity for representation, and that contention is
supported by the record.  See e.g., 4 Tr. 239

___________________(footnotes)

7 Georgia  was facing a number of statewide Section 2
challenges at the time it enacted its redistricting legislation.
See U.S. Br. 38 n.21. Moreover, as appellees themselves
emphasize, at the time the legislature acted, it was also facing a
pending suit alleging that the State's then-current
redistricting plan was in violation of Section 2. See Appellees'
Br. 22 n.22.

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(testimony of State Rep. Brooks); PX 216A, at 55
(deposition of Lieut. Gov. Howard). Where minority
voters have little opportunity to elect candidates of
their choice because of racially polarized voting, the
State has an interest, independent of the Voting
Rights Act, in drawing majority-minority districts.
See U.S. Br. 39-40. Such a situation exists in
Georgia, as demonstrated both by the direct evidence
of racial polarization and by the fact that, with one
exception, all of the black state legislators in Georgia
were elected from majority-minority districts. See
U.S. Br. 37-38. Although Section 2 of the Voting
Rights Act requires States to create majority-
minority districts in some circumstances, nothing in
Section 2 suggests that it was intended to set a limit
on the extent  to which States could do so.
4. Appellees argue (Appellees' Br, 39-43) that the
Attorney General's Section 5 objections to the
State's two earlier plans did not provide a basis for
the State to believe that creating the State's final
:)Ian, with three majority-minority districts and the
:urrent configuration of the Eleventh District, was
"required by Section 5 of the Voting Rights Act.
They base their argument on their allegation that the
Attorney General's objections were meritless, and
hat the objections could therefore not have provided
he State with a reasonable basis for believing that
its actions were necessary to comply with Section 5.
As we explain in our opening brief, the question
whether the Attorney General was correct in ob-
jecting to Georgia's first two plans was not before the
district court.8 Given the Attorney General's role in

___________________(footnotes)

8  Notwithstanding extensive statements on the issue in its
pinion, the district court on several occasions assured the

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the Section 5 statutory scheme, a State must
ordinarily be able to rely on a Section 5 objection as
an administrative finding of discrimination that can
justify remedial action by the State. See U.S. Br. 30.
Moreover, to permit back-door review of the merits of
a Section 5 objection in the course of a Shaw
challenge to a districting plan is inconsistent with
the statutory scheme. Congress precluded all direct
review of the Attorney General's objections and
channeled all litigation about the merits of those
objections to a special judicial preclearance action in
the District Court for the District of Columbia. See
Morris v. Gressette, 432 U.S. 491, 504-505 (1977); see
also McCain v. Lybrand, 465 U.S. 236, 246-247 (1984);
McDaniel v. Sanchez, 452 U.S. 130, 150-151 (1981);
Perkins v. Matthews, 400 U.S. 379, 385 (1971). If a
Section 5 objection by the Attorney General is not
clearly insupportable, it therefore provides a sound
basis for the State to take action.
We argue in our opening brief that the Attorney
General's objections in this case were amply sup-
ported.  U.S. Br. 31-34 (citing Arlington Heights, 429
U.S.  at 266-267).  Appellees do not take issue with

___________________(footnotes)

parties that it would not review the merits of the Attorney
General's Section 5 objection. See, e.g., Order of March 30,
1994, at 3 n.2 ("Plaintiffs have not petitioned the Court to
directly rule on the correctness or the constitutionality of the
DOJ'S pre-clearance decisions."); Order of June 6, 1994, at 4-5
("The DOJ'S refusals to preclear the State's first two
congressional plans submitted may not be reviewed for their
correctness; those refusals and communications regarding the
preclearance process for the current plan may be probative,
however, insofar as they may have provided the impetus for
the drawing of the plan at issue here.").

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14

that analysis; what they offer instead is un-
persuasive.
Appellees claim that the Attorney General's
objections to the two earlier plans were unsound
because the Attorney General was employing a
mistaken "maximization" or "proportionality"
standard in assessing purpose under Section 5.
Appellees' Br. 40-43. As we have explained, although
it may be the case that some individuals or interest
groups in Georgia desired "maximization" or
"proportionality," and that others brandished those
terms to achieve goals of their own, 9 the Attorney
General has never employed those standards in
analyzing purpose under Section 5 and did not do so
here. See U.S. Br. 35-36. 10
    
___________________(footnotes)

9   Individuals in Georgia who have their own goals in the
redistricting process are not and were not authorized to speak
for the Attorney General of the United States concerning the
standards to be applied in making Section 5 preclearance
decisions or any other matter. Appellees' citation to statements
by those individuals thus have no bearing on the issue. See,
e.g., Appellees' Br. 18 (quoting statement of State Rep. Tyrone
Brooks), 20-21 (quoting statements of State Sen. Garner).

10 Appellees quote the district court's statement that
Thomas Armstrong, an attorney for the Department of
Justice, testified that he "could not recall seeing any evidence
of discriminatory motives on the part of the Georgia
legislature." Appellees' Br, 40. See J.S. App. 13a n.7. The
precise question asked of Mr. Armstrong was whether he could
"recall * * * a single piece of evidence that would suggest
that * * * the failure to go to [Savannah] was originally based
on * * * discriminatory motives, other than the mere fact
that it could be done." 4 Tr. 148-149 (emphasis added). He
responded that he could not recall any such evidence. 4 Tr.
149. It was undisputed, however, that Mr. Armstrong's
responsibilities did not include examining the purpose issue in
this case. See 4 Tr. 149. Therefore, Mr. Armstrong's

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			*     *     *     *     *

For the foregoing reasons and those stated in our
opening brief, the judgment of the district court
should be reversed.
Respectfully submitted.
      		
			   DREW S. DAYS, III
            		                       Solicitor General

APRIL 1995

___________________(footnotes)

statement at trial does not cast doubt on the validity of the
Section 5 objection in this case.