*

Honorable Joseph F. Weis, Jr., Senior U.S. Circuit Judge

for the Third Circuit, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-7089.

John DILLARD, Damascus Crittenden, Jr., Earwen Ferrell, Clarence

J. Jarrells, Ullysses McBride, Louis Hall, Jr., PlaintiffsAppellees,

Bobby Singleton, Teresa Burroughs, J.S. Thomas, Mamie Kennedy,

Intervenors-Plaintiffs-Appellees,

v.

CITY OF GREENSBORO, Defendant-Appellant.

Jan. 3, 1996.

Appeal from the United States District Court for the Middle

District of Alabama. (No. CV 87-T-1223-N), Myron H. Thompson, Chief

Judge.

Before BIRCH, Circuit Judge, and CLARK and WEIS*

, Senior Circuit

Judges.

BIRCH, Circuit Judge:

This case presents our circuit's first opportunity to

reexamine the drawing of voting districts following the Supreme

Court's decision in Miller v. Johnson, --- U.S. ----, 115 S.Ct.

2475, 132 L.Ed.2d 762 (1995). Because the district court did not

have the benefit of Miller when it adopted the challenged

redistricting plan, we remand the case to allow the district court

to reevaluate the plan under Miller.

I. BACKGROUND

Over a decade ago, this case originated as a class-action

brought by black citizens of Alabama ("Dillard") to challenge the
 1

At-large voting systems use multimember voting districts

where constituents vote for more than one candidate, and all

elected candidates represent the same district rather than their

individual districts. This system often makes it difficult for

minority groups to elect candidates of their choice because they

do not make up a majority of the population. Such a procedure

also is known to result in a dilution of voting power. See

Rogers v. Lodge, 458 U.S. 613, 616-17, 102 S.Ct. 3272, 3275, 73

L.Ed.2d 1012 (1982). 

 2

For a synopsis of the procedural history of this action,

see Dillard v. Baldwin County Board of Education, 686 F.Supp.

1459 (M.D.Ala.1988). 

 3Greensboro is located in Hale County in western Alabama. 

According to the 1990 census, Greensboro has a total population

of 3,047. Blacks comprise 62% of the population and 56% of the

voting age population. 

at-large voting systems1 used to elect county commissioners in nine

Alabama counties.2 In 1987, Dillard amended the complaint by

adding the City of Greensboro, Alabama ("Greensboro"),3

 among other

cities, counties and county school boards, as a defendant and

alleging that the at-large system used to elect the Greensboro city

council violated section 2 of the Voting Rights Act of 1965, as

amended, 42 U.S.C. § 1973 (1994). Section 2 provides that no state

or political subdivision may impose or apply a voting qualification

or prerequisite to voting or any standard, practice, or procedure

that "results in a denial or abridgement of the right of any

citizen of the United States to vote on account of race or color."

42 U.S.C. § 1973(a). Dillard claims that, under the at-large

system, "the political processes ... are not equally open to

participation by [blacks] ... in that [blacks] have less

opportunity than other members of the electorate to participate in

the political process and to elect representatives of their

choice." 42 U.S.C. § 1973(b).
 4

The parties in the amended class action agreed for the

district court to treat 165 out of the 183 jurisdictions

challenged as individual lawsuits, with separate files and civil

action numbers. Greensboro is one of those 165 jurisdictions. 

Dillard v. Baldwin County Bd. of Edu., 686 F.Supp. at 1461. 

 5Section 5 of the Voting Rights Act requires that the United

States Attorney General preclear any plan proposed by a State or

political subdivision that is subject to 42 U.S.C. § 1973b. 42

U.S.C. § 1973c. The Code of Federal Regulations, however,

provides that a federal court may authorize the emergency interim

use of a redistricting plan without first getting approval of the

Attorney General. 28 C.F.R. § 51.18(c) (1995). 

Pursuant to a 1987 consent decree, Greensboro conceded that

its at-large system violated section 2 of the Voting Rights Act. 4

To remedy this violation, Greensboro and Dillard submitted

competing redistricting plans. R1-1-1; Supp. R1-492. The

district court referred the case to a United States magistrate

judge to serve as a special master in the case. Two evidentiary

hearings were conducted by the magistrate judge in 1988, but no

redistricting plan was adopted. In May 1992, the parties agreed

that the plans that had been submitted to the court in 1988 could

no longer be used because of demographic changes identified in the

1990 census. Consequently, new plans were submitted by Dillard and

Greensboro. The court adopted Greensboro's single-member

districting plan on an interim basis.5

Greensboro conducted municipal elections in 1992 pursuant to

this interim plan.

The 1992 plan had five districts; in three of them, AfricanAmericans were a majority of the voting age population.

District 1 contained a black voting age population of 83%;

District 2 contained a black voting age population of 58%;

and District 3 contained a black voting age population of 75%.

Districts 1 and 3 elected black councilmembers in 1992, and

District 2 elected a white candidate over a black candidate.

Dillard v. City of Greensboro, 865 F.Supp. 773, 774 (M.D.Ala.1994).
In December 1992, the Attorney General concluded that the 1992 plan

improperly "fragmented black population concentrations in order to

lower the black percentage in District 2," and refused to preclear

the plan. R2-66-2 (emphasis added). The Attorney General pointed

to the fact that "a black-supported candidate in District 2 was

defeated" as evidence of racial gerrymandering. Id.

In August 1993, Greensboro submitted a new plan to the

Attorney General for preclearance. The 1993 plan created three

majority-black districts. District 1 contained a black voting age

population of 83%; District 2 contained a black voting age

population of 63%; and District 3 contained a black voting age

population of 73%. Once again, the Attorney General refused to

preclear the plan under section 5. The Attorney General found

that, although the black voting age population of District 2 had

been increased from 58% to 63%, the 1993 plan still improperly

hindered blacks from electing candidates of their choice. The

Attorney General made the following observations:

[T]he opportunity for black voters to elect a representative

of their choice in [District 2] appears to have been

constrained deliberately, taking into account the continued

fragmentation of black population concentrations, the pattern

of racially polarized voting and the reduced electoral

participation by black persons, which is traceable to a

history of discrimination.

The city has provided no satisfactory explanation for

limiting black electoral opportunities in this manner.

Indeed, the city was aware of several alternative plans that

created three districts in which black voters constituted a

greater majority of the voting age population in a third

district than in proposed District 2. While the city was not

required under the Voting Rights Act to adopt any specific

alternative plan, it is not free to adopt a districting plan

which, as would appear here, is calculated to limit black

voting strength.

R2-90-Attach. at 2.
 6

A plan prepared and adopted by a federal court to remedy a

section 2 violation is not subject to the preclearance

requirements of section 5. McDaniel v. Sanchez, 452 U.S. 130,

138, 101 S.Ct. 2224, 2230, 68 L.Ed.2d 724 (1981).

Greensboro moved for a stay of the district court's

order pending the outcome of this appeal. That stay was

denied by the district court. Dillard v. City of

Greensboro, 870 F.Supp. 1031 (M.D.Ala.1994). 

 7

Dillard cites United States v. Hays, --- U.S. ----, 115

S.Ct. 2431, 132 L.Ed.2d 635 (1995), in support of his contention

that Greensboro has no standing to challenge the district court's

decision. In Hayes, the Court held that plaintiffs, who were not

residents of the district that was the focus of their racial

gerrymandering claim and could not demonstrate that they had been

subjected to racial classification, did not have standing to

challenge Louisiana's congressional redistricting plan. Id. at -

---, 115 S.Ct. at 2437. Here, Greensboro is a defendant in the

action and properly appeals the final decision of the district

court pursuant to 28 U.S.C. § 1291. 

In January 1994, Dillard filed a renewed motion for further

relief and requested that the magistrate judge recommend adopting

Dillard's plan, submitted twice previously, in 1991 and 1993. On

October 11, 1994, the district court approved the magistrate

judge's recommendation, adopted the single-member redistricting

plan proposed by Dillard, and ordered immediate new elections.6

The plan adopted by the district court in 1994 and currently at

issue in this appeal has three majority-black districts containing

black voting age populations in the respective districts of 85%,

80% and 76%. Greensboro claims that the district court erred in

adopting Dillard's plan because it allegedly is a race-conscious

effort to guarantee direct proportionality of representation by

manipulating district lines.7

II. ANALYSIS

The issue before this court is whether the redistricting plan

proposed by Dillard and approved by the district court in 1994
constitutes a violation of section 2 of the Voting Rights Act or

fails to correct Greensboro's violation of section 2. We examine

the findings of the district court under the "clearly erroneous"

standard. Rogers v. Lodge, 458 U.S. at 627, 102 S.Ct. at 3281;

Dillard v. Crenshaw County, 831 F.2d 246, 248 (11th Cir.1987).

When evaluating whether Dillard's proposed plan provides an

adequate remedy for the section 2 violation, the district court

must determine that the remedy itself satisfies section 2. Dillard

v. Crenshaw County, 831 F.2d at 249 (citing Edge v. Sumter County

Sch. Dist., 775 F.2d 1509, 1510 (11th Cir.1985) (stating that a

"district court could not validly adopt a reapportionment plan

without determining whether the plan complied with Section 2 of the

Voting Rights Act, as amended, 42 U.S.C. § 1973")).

A. Application of Miller

The Supreme Court's decision in Miller governs our analysis of

this case. At the heart of Miller is the Court's determination

that, when those drawing voting district lines use race as the

"predominant" factor or place more value on race than on other

traditional considerations, such as compactness and contiguity, the

voting districts must satisfy strict scrutiny, "our most rigorous

and exacting standard of constitutional review." Id. at ----, 115

S.Ct. at 2490. At issue in Miller was Georgia's congressional

redistricting plan; specifically, "whether Georgia's new Eleventh

District gives rise to a valid equal protection claim ... and, if

so, whether it can be sustained nonetheless as narrowly tailored to

serve a compelling governmental interest." Id. at ----, 115 S.Ct.

at 2482. In 1991, the Georgia General Assembly submitted a
congressional redistricting plan to the Attorney General for

preclearance as required by section 5 of the Voting Rights Act.

Id. at ----, 115 S.Ct. at 2483. The plan called for an increase in

the number of majority-black districts from one to two. Id. The

Attorney General refused preclearance, however, and "noted a

concern that Georgia had created only two majority-minority

districts, and that the proposed plan did not "recognize' certain

minority populations by placing them in a majority-black district."

Id. at ----, 115 S.Ct. at 2483-84 (citation omitted). The General

Assembly then submitted a second plan to the Attorney General for

preclearance, but the Justice Department, concluding "that Georgia

had "failed to explain adequately' its failure to create a third

majority-minority district," again refused preclearance. Id. at --

--, 115 S.Ct. at 2484 (citation omitted). For the third time, the

General Assembly attempted to create a plan that would be

acceptable to the Attorney General. It created three

majority-minority districts using as a model the "max-black" plan

proffered by the American Civil Liberties Union. Id. This final

plan formed an Eleventh District that was drawn predominantly based

on race. Id. at ----, 115 S.Ct. at 2485.

The Court began its analysis of the Georgia plan by

summarizing its holding in a previous redistricting case, Shaw v.

Reno, --- U.S. ----, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993). In

Shaw, the Court applied the Equal Protection Clause of the

Fourteenth Amendment in the voting rights context and held that

"redistricting legislation that is so bizarre on its face that it

is "unexplainable on grounds other than race' ... demands the same
close scrutiny that we give other state laws that classify citizens

by race." Id. at ----, 115 S.Ct. at 2825 (quoting Arlington

Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 266, 97

S.Ct. 555, 564, 50 L.Ed.2d 450 (1977)). In Miller, the Court

clarified Shaw: "Just as the State may not, absent extraordinary

justification, segregate citizens on the basis of race in its

public parks ... so did we recognize in Shaw that it may not

separate its citizens into different voting districts on the basis

of race." Miller, --- U.S. at ----, 115 S.Ct. at 2486 (citations

omitted). In Miller, the Court warned federal courts that

reviewing redistricting legislation "represents a serious intrusion

on the most vital of local functions." Id. at ----, 115 S.Ct. at

2488. The Court also noted that it is often difficult for a court

to distinguish "between being aware of racial considerations and

being motivated by them." Id.

B. District Court's Analysis of the Plan

Dillard attempts to distinguish this case from Miller by

arguing in his supplemental brief that, unlike Miller, the

Greensboro plan was adopted by a federal district court, not a

legislature. We do not find any merit in this distinction.

Whether a redistricting plan is adopted by a court or a legislature

does not affect a party's right to challenge the plan. Admittedly,

we are faced with an unusual factual situation here. In most

voting rights cases, the redistricting plan that is challenged is

one developed by a legislature. Here, the plan was developed by

Dillard, adopted by the district court, and is now challenged by

Greensboro. Despite the unusual posture of the case, however, we
find that Greensboro has equal standing with Dillard to challenge

the district court's plan.

If the district court determines on remand that racial

gerrymandering exists, then the redistricting plan will be the

subject of strict scrutiny. Under the strict scrutiny test, the

plan must be shown to be narrowly tailored to achieve a compelling

state interest. This test will be satisfied if evidence of past

discrimination is shown and there is a sufficient evidentiary basis

to establish that the plan is narrowly tailored to remedy that

discrimination. Id. at ----, 115 S.Ct. at 2491.

The Supreme Court requires that district courts evaluate

redistricting plans in terms of "traditional race-neutral

districting principles, including but not limited to compactness,

contiguity, respect for political subdivisions or communities

defined by actual shared interests." Id. at ----, 115 S.Ct. at

2488. Our review of the record, particularly the hearings

conducted by the magistrate judge in 1988, 1992 and 1993, show an

overwhelming emphasis on race with little or no examination of

race-neutral districting principles. Particularly disturbing is

the testimony regarding the propensity of black voters allegedly to

vote only for black candidates:

Q: Mr. Gray, you are taking it as a given that in a black

majority district, the voters, if you endorse a black

candidate because of his race, that the voters should likewise

favor the black candidate simply because he is black?

A: That's probably a fair assessment.

 ....

Q: [The COURT]: Under your plan [the plan ultimately adopted

by the district court], you're guaranteed three black council

persons.
A: [Jerome GRAY]: Yes.

R6-60; R6-72.

Q: [Def. Counsel]: Well, do you agree or disagree that your

plan you favor is certainly a form of gerrymandering, with the

view of achieving very high majorities of black voters?

A: [Singleton, resident of Greensboro]: I would disagree with

you.

Q: Well, isn't that its purpose, to achieve and to obtain very

high majorities of black voters, in excess of 80 percent, in

at least three of the council districts?

A: Sure, it is.

Q: And to do that, you've drawn very specific lines to achieve

that purpose?

A: Yes.

R7-36.

Q [The Court]: What is it about this plan that the City has

proposed that leads you to believe that in District 2,

African-Americans would not have an opportunity to elect a

candidate of their choice?

A [Singleton]: Well, I think that in District 2, that the

City has not really looked at the majority voting age in that

community, and based on the lives [sic] in which it was drawn,

we feel that there was not enough people, African-Americans,

in that district based on their lines, to successfully elect

an African-American in that district.

R7-48-49. This testimony reflects precisely the racially pejorative

predisposition that the Supreme Court sought to eradicate in

Miller:

When the State assigns voters on the basis of race, it engages

in the offensive and demeaning assumption that voters of a

particular race, because of their race, "think alike, share

the same political interests, and will prefer the same

candidates at the polls." ... Race-based assignments "embody

stereotypes that treat individuals as the product of their

race, evaluating their thoughts and efforts—their very worth

as citizens—according to a criterion barred to the Government

by history and the Constitution."

Miller, --- U.S. at ----, 115 S.Ct. at 2486 (citations omitted).
 8

We acknowledge that the magistrate judge did express some

concern over the issue of compactness and respect for political

subdivisions during the 1993 hearing and contiguity was discussed

to some extent in the 1992 hearing. See, e.g., R6-17-18, 46, R7-

76. In his final order, the district judge concluded that "the

plaintiffs' plan does not violate constitutional or statutory

standards," but he did not make satisfactory evidentiary findings

on this issue. Dillard, 865 F.Supp. at 777. 

The district judge's order adopting Dillard's plan in its

entirety also seems to focus on race. The judge reasons as

follows:

Unlike the city's plans, however, the plaintiffs' plan does

everything reasonably possible to maximize black voting

strength. If the plaintiffs' plan does not conform to § 2 in

providing a complete remedy for minority vote dilution and an

equal opportunity for minorities to elect candidates of their

choice, it is hard to know what would.

 ....

[T]he court notes that it does not base its decision to adopt

the plaintiffs' plan on a finding that the Voting Rights Act

can only be complied with if black voters choose black

candidates. The purpose of § 2 of the Voting Rights Act is

not to assure the election of black candidates.

Dillard v. Greensboro, 865 F.Supp. at 778. The judge also

expresses a troubling reluctance to draw his own plan or tailor

Dillard's plan at all: "Notwithstanding its preference to avoid

drawing a new plan, the court would have to undertake that task if

the plan proposed by the plaintiffs was invalid for some reason."

Id. at 777. The court's determination that Dillard's redistricting

plan is not invalid is manifestly conclusory.

The judge emphasized that the Attorney General remarked that

a "black-supported candidate," not a "black candidate," was

defeated in District 2. Under Miller, this distinction is not

valid because it assumes that all blacks will support the same

candidate.8 Neither the magistrate judge's reports and
 9

While neither the magistrate judge nor the district court

had the benefit of Miller when evaluating the redistricting

plans, the Supreme Court's decision in Shaw was available and

should have guided the court's reasoning.

We note that the Supreme Court granted certiorari and

heard oral argument in two cases that also may prove to be

relevant in the district court's reevaluation of the plan. 

Shaw v. Hunt, 861 F.Supp. 408 (E.D.N.C.1994), cert. granted

--- U.S. ----, 115 S.Ct. 2639, 132 L.Ed.2d 878 (1995); Vera

v. Richards, 861 F.Supp. 1304 (S.D.Tex.1994), cert. granted

sub. nom., Bush v. Vera, --- U.S. ----, 115 S.Ct. 2639, 132

L.Ed.2d 877 (1995). 

recommendations nor the district court's orders reflect an adequate

analysis of the testimony or plans with regard to traditional

districting principles. The redistricting plan must be reevaluated

by the district court in light of Miller.9

C. Department of Justice Preclearance

The Supreme Court in Miller also criticized the Justice

Department's preclearance procedures and found it "inappropriate

for a court engaged in constitutional scrutiny to accord deference

to the Justice Department's interpretation of the Act." Miller, --

- U.S. at ----, 115 S.Ct. at 2491. The Court found that the

Justice Department had been driven by the objectionable policy of

maximizing the number of majority black districts rather than

"grounding its objections [to proposed plans] on evidence of a

discriminatory purpose." Id. at ----, 115 S.Ct. at 2492. "In

utilizing § 5 to require States to create majority-minority

districts wherever possible, the Department of Justice expanded its

authority under the statute beyond what Congress intended and we

have upheld." Id. at ----, 115 S.Ct. at 2493.

When a federal court reviews a redistricting plan, it intrudes

"on the most vital of local functions" and must accord legislatures
the presumption of good faith "until a claimant makes a showing

sufficient to support [its] allegation" that the legislature's

decisionmaking is race-based. Id. at ----, 115 S.Ct. at 2488. The

district court made every attempt to defer to the legislature when

approving the 1992 and 1993 plans, but the court found itself

thwarted at each turn by the Attorney General's rejection of those

plans.

Although we acknowledge that the district court in this case

must have been frustrated by the Attorney General's rejection of

two plans that the court believed to be adequate remedies, the

district court's heavy reliance on finding a plan that will satisfy

the concerns of the Attorney General conflicts with the admonition

of Miller:

[O]rdinarily the court would take seriously concerns about

packing minorities into districts. In this situation,

however, the Attorney General objected to a district with a

black voting age population of 63% because of, among other

factors, "the reduced electoral participation by black

persons, which is traceable to a history of discrimination";

therefore, any plan the court adopts to cure that objection

will necessarily contain districts with a great many blacks.

Dillard, 865 F.Supp. at 778. From the district court's order, it

is difficult to infer anything other than that the purpose of

adopting Dillard's plan was to satisfy the Attorney General.

III. CONCLUSION

In this appeal, Greensboro challenges the district court's

adoption of Dillard's redistricting plan, which it contends is

racially configured to guarantee the election of black-supported

candidates. If the district court determines that race was the

predominant factor in Dillard's redistricting plan, then Miller

requires that the plan be subjected to strict scrutiny. For a
redistricting plan to withstand strict scrutiny under the Voting

Rights Act, the racially gerrymandered districts must be found to

be narrowly tailored to achieve a compelling interest. Miller, ---

U.S. at ----, 115 S.Ct. at 2491. We emphasize that we are not

expressing any opinion as to whether the Dillard plan ultimately

will meet the requirements of the Equal Protection Clause. Our

decision is limited to the conclusion that because neither the

magistrate judge nor the district court had the benefit of Miller

with its reiteration of the importance of examining principles of

compactness, contiguity, and respect for political subdivisions in

analyzing the redistricting plan, it is necessary to remand the

case.

We VACATE the decision of the district court and REMAND this

case for a reevaluation of the proposed redistricting plans in

light of Miller.