William H. Rehnquist: We'll hear argument first this morning in number 91-1618, George Voinovich v. Barney Quilter. Mr. Goodman.
N. Victor Goodman: Your Honor, Mr. Chief Justice, and may it please the Court: This Court has repeatedly recognized that state redistricting bodies are best situated to identify and then reconcile traditional State policies with Federal constitutional and statutory requirements. This Court has long held that redistricting and reapportioning legislative bodies is a legislative task which the Federal courts should make every effort not to preempt. The district court in this case made every effort to preempt the legislative reapportionment adopted by the Ohio Apportionment Board on February 18 of this year, which we have referred to in these proceedings as amendment D. During the course of my argument this morning, I plan to discuss each of the district court's intrusions upon Ohio's apportionment process. First, the lower court preempted Ohio's redistricting efforts by improperly shifting the burden of proof to the apportioning persons to justify their apportionment plan under the Voting Rights Act. Second, the district court found, in the face of unprecedented cooperation and consultation with the African American community in our State, that the Apportionment Board intentionally discriminated against minorities in violations of the Fifteenth Amendment. And third, and only as an afterthought in the course of their March 19 opinion where the district court denied our application for a stay pending appeal to this Court, the district court found that the appellants had violated the one person-one vote rule of the Fourteenth Amendment by adhering to a provision of the Ohio constitution which permitted deviations from ideal population of plus or minus 10 percent in the pursuit of our Ohio constitution's policy of respecting county boundaries. We would respectfully suggest to this Court that the record in this case is complete and clear and that none of the findings of violations made by the district court are supported in the record. Accordingly, we would respectfully request this Court to remand this case to the district court with instructions to enter judgment in favor of the Appellants. With respect to the Voting Rights Act, we believe that the findings and conclusions of the district court are both legally and factually incorrect. The district court held that the apportioning persons in our State were automatically forbidden to create majority-minority districts in the absence of what would amount to be a judicial finding of a violation of the Voting Rights Act. The district court held that the apportioning board could not implement the State's policy of attempting to avoid the dilution of minority voting strength in their redistricting plan without first proving that the 1981 plan of apportionment violated the Voting Rights Act or that the plan which they adopted on February 18 did not violate the Voting Rights Act.
Anthony M. Kennedy: Is dilution the only issue in the case under the Fifteenth Amendment, as you see it?
N. Victor Goodman: Your Honor, under the Fifteenth Amendment, no, because the district court in passing seemed to say that because there was some political gerrymandering, which they felt was racially based, that there was a violation of the Fifteenth Amendment.
Anthony M. Kennedy: Well, I take it you concede that race was an explicit factor in the redistricting?
N. Victor Goodman: Yes, Your Honor, it was, but not for an invidious purpose, and we believe this Court's opinion in Carey would support the use of race, which the apportioning persons did in this case.
Anthony M. Kennedy: Well, the--
N. Victor Goodman: It was not for an invidious purpose.
Anthony M. Kennedy: --THe usual rule is that disparate treatment requires the State in this case or the apportioning authorities to bear the burden of proof to show that there was a compelling interest, does it not?
N. Victor Goodman: Well, Your Honor, we believe that the record shows that the use of race was not invidious and was, first of all, necessary because of the housing patterns of the African American community in our State.
Anthony M. Kennedy: Well, first, let's just first of all talk about the burden of proof. If race is the explicit category that's being used, is it not the usual rule in other contexts that the burden of proof would be upon the entity using race to come forward and to show that it was lawful, legitimate, for necessary compelling State interests, et cetera?
N. Victor Goodman: Well, Your Honor, we believe that there is a difference in the argument we make between the placing of the burden of proof under the Voting Rights Act, which was shifted to the appellants, and the burden which we believe we met with respect to the Fifteenth Amendment.
Anthony M. Kennedy: Well, would you agree that the burden should be placed on you in this respect?
N. Victor Goodman: We believe, Your Honor, that would be correct, that we do have an obligation to show... and we believe the record clearly does show... that the use of race was not for an invidious purpose. We believe, first of all, as this Court said in Mobile, that the plan was not adopted for the purpose of discriminating against the African American community. In fact, the record is clear that the Ohio Chapter of the NAACP branches supported the plan before this Court as it affects the minority community in its entirety. And with respect to the four districts of five... and there were only five minority... majority-minority districts created, one more than there was in the 1981 plan... all the black community supported the creation of the four districts in Cleveland, Ohio, or Cuyahoga County, and the Ohio Conference of Branches of the NAACP supported our plan throughout the state as it affected the minority community.
Anthony M. Kennedy: Well, suppose that a State decided that it wanted better urban-rural balance, and it said we need to put some rural voters into the... some urban voters into the rural districts. Could it say, you know, most black people are members of urban communities, so we'll just move black voters in? Would that be constitutional?
N. Victor Goodman: Well, Your Honor, it would depend again if it were such as this Court's decision in Gomillion where we fenced out or minimized the political effectiveness of the black community, it would be a violation of the Fifteenth Amendment. But in this case, all the parties--
Anthony M. Kennedy: But would there be a violation for using this kind of stereotype, this kind of shorthand?
N. Victor Goodman: --I believe not, Your Honor. I believe that there must be a discriminatory intent and an injury, and unless there is shown to be by the plaintiffs, or the appellees in this case, a showing that the apportioning persons used race for an invidious purpose and that there was an injury, then these appellees could not approve and support their case, and--
Antonin Scalia: Mr. Goodman, you seem to be adopting the proposition that the use of race is perfectly okay so long as it is benign, it's intended for a good purpose. I don't know that that accords with our law. We have not allowed, for example, racial set-asides in contracting--
N. Victor Goodman: --Well, Your Honor--
Antonin Scalia: --even though that had a benign purpose. You're saying race... racial judgments are okay so long as your intent is good. Is that right?
N. Victor Goodman: --I'm not saying that, Your Honor. First of all, this is not a Croson type case. This is not a case brought on behalf of whites urging that there is reverse discrimination. This is a case that while it seems to me is for the benefit of white Democrats... and that was the class sought to be served... it is not a case of reverse discrimination, and I believe that a plurality in the Carey case--
Antonin Scalia: Well, you think that they're the wrong plaintiffs here. Is that the only problem? You want this decided because they're the wrong plaintiffs.
N. Victor Goodman: --No.
Antonin Scalia: If, in fact, some white Democrats had brought the suit claiming that this was diluting their votes, then the suit might lie.
N. Victor Goodman: No, Your Honor. We believe that this case is like the Carey case, although Carey I recognize is a section 5 case. Members of the Court in the plurality in that case said that the purposeful use of race was not per se a violation of the Fourteenth and Fifteenth Amendment. And I am saying that this is not a Croson type case of reverse discrimination. I'm saying that all the parties in this case used race. The apportioning persons used it for the purposes of making sure that in the plan that they drafted, there was no dilution--
Antonin Scalia: They didn't violate the Voting Rights Act. Thereby... I had assumed the purpose of the Voting Rights Act was to prevent racial determinations in voting, that drawing up districts on the basis of race, and what you're suggesting is that it has the ironic effect of inducing all the States to use race in drawing up their districts lest they be accused of a violation of the Voting Rights Act. What an ironic consequence.
N. Victor Goodman: --I think, Justice Scalia, my response would be that since Thornburg and the section 2 amendments focus on the results of a plan, that there is no way that the apportioning persons in this case could have drafted a plan with the housing and the location of the minority community in our States without taking cognizance of race. And as... I would submit that the use for which race is taken is the issue. And unless there can be shown... unless there can be shown... that there was an invidious use of it, that the plan was conceived or operated for the purpose of discrimination, and unless there can be demonstrated an injury that the use in this case was, in fact, benign and to carry out the Federal mandate, I believe after all... and I think the--
Byron R. White: plan... you intentionally used race. You intentionally used race to favor the black... for the minority community to give them a majority... insure them control of these districts. Isn't that so far right?
N. Victor Goodman: --Yes. Well, we--
Byron R. White: Isn't that so far right?
N. Victor Goodman: --That is correct.
Byron R. White: Well, that is a discrimination.
N. Victor Goodman: I'm sorry, Your Honor?
Byron R. White: That is a discrimination.
N. Victor Goodman: Yes, it is a discrimination, Your Honor, but not for an invidious purpose.
Byron R. White: You seem to say that any time the black community agrees with you in creating a minority-majority district, that that's all you need for this purposeful discrimination.
N. Victor Goodman: Well, Your Honor, we think that is clearly a part of what we are arguing, that there could be no injury for the protected class.
Byron R. White: Why do you think the commission should be able to use just the totality of the circumstances test instead of the Gingles test?
N. Victor Goodman: By the Gingles test, you mean, Your Honor, the finding of a majority of the political cohesiveness--
Byron R. White: Yes, and racial block voting.
N. Victor Goodman: --Yes, Your Honor. We believe and have agreed with the argument of the Solicitor that the Gingles preconditions do apply, but as we've said in our brief, we don't believe this Court needs to necessarily adopt that position in order to be able to reverse the district court.
Byron R. White: I know you don't, but... because you don't want to apply the Gingles test.
N. Victor Goodman: No. Your Honor, we would have... we believe that if this Court applied the Gingles test, that the district court was in error in finding a violation because, after all, the district court found--
Byron R. White: Well--
N. Victor Goodman: --that there was no--
Byron R. White: --But you don't want... you want to reverse the district court on another ground.
N. Victor Goodman: --Well--
Byron R. White: You don't want to... I mean, the argument you've been making would reverse the district court not on the mistake on the... in applying the Gingles test--
N. Victor Goodman: --We--
Byron R. White: --but just on this more general view--
N. Victor Goodman: --Well, Justice White--
Byron R. White: --that you can discriminate as long as you think you're doing it for a good purpose.
N. Victor Goodman: --No, Your Honor. We believe that on the voting rights issue, the district court shifted the burden to the apportioning persons to prove that their plan did not violate, but we argue that the burden was on the plaintiffs in this case to bear the burden of proof to show that the plan which we had adopted did, in fact, cause the minority voting strength to be diluted. And we believe, Your Honor, that in attempting to comply with the Federal mandate not to adopt the plan, which does, in fact, cause vote dilution, that we had to take race into account.
David H. Souter: Do you accept the proposition that you have the burden to prove that your object was to comply with the Federal law? Do you have to go that far and then you draw the line and you say the burden is on the other side?
N. Victor Goodman: No, Your Honor. We believe that the burden was on these plaintiffs to show that the plan, which we adopted, the apportioning persons adopted, did cause the dilution of minority voting strength, a burden which they did not bear nor does the facts... do the facts of this case warrant such a conclusion by the district court.
Antonin Scalia: Which is hard to show. Very often it's the party who has to bear the burden of showing dilution or of showing nondilution who's going to lose. So, what you're suggesting is that you have the right intentionally to use race in the drawing up of districts, and the other side is going to have to bear the burden of showing that that intentional use of race somehow caused a dilution.
N. Victor Goodman: Well, Justice Scalia--
Antonin Scalia: That would be an extraordinary principle for us to adopt it seems to me.
N. Victor Goodman: --Well, I would think it would not be extraordinary based upon how these apportionment plans are drafted. We have a set of apportionment persons who say that if we draft a plan that does dilute minority voting strength, or arguably does, we're going to be in court. And we believe that you can't draft a plan to comply with the Federal mandate of section 2, which is to carry out the purposes of the Fifteenth Amendment, to make sure that you are not engaging in some invidious discrimination without taking race into account.
Antonin Scalia: Administrative efficiency.
N. Victor Goodman: I'm sorry, Your Honor?
Antonin Scalia: Administrative efficiency demands it.
N. Victor Goodman: Well, I think, Your Honor, we tried to follow this Court's Gingles opinion, and we tried to follow the Carey case which did, again as I say, note the fact that purposeful noting of race was taken into consideration. Mr. Chief--
Byron R. White: What do you do about the district court's finding that there was no racial block voting in Ohio?
N. Victor Goodman: --Your Honor--
Byron R. White: Do we... to find for you, do we have to find that that was plain error or was what? What do we have to do--
N. Victor Goodman: --No, Your Honor. We believe that, as the Solicitor would argue, that finding by the district court means that there was no meeting of the third Gingles precondition, and that alone... that alone... should cause the district court's opinion to be reversed in addition to the fact that what the district court would have us do is to look to each and every district, figure out how many minority voters it takes to elect an incumbent, that would be the amount. And if we put any more black population into that county, we would violate the act. This again runs in the face of the first Gingles preconditions. Mr. Chief Justice, may I reserve the balance of my time for rebuttal?
William H. Rehnquist: --Yes, you may, Mr. goodman.
N. Victor Goodman: Thank you.
William H. Rehnquist: Mr. Hungar, we'll hear from you.
Thomas G. Hungar: Thank you, Mr. Chief Justice, and may it please the Court: I'd like to begin by addressing the district court's interpretation of section 2. The position of the United States is this. The district court's finding of a section 2 vote dilution violation should be reversed because the language and purpose of section 2, as amended in 1982, and the underlying logic of vote dilution claims call for a threshold focus on the three preconditions set forth by this Court in Gingles. Those preconditions are at least as applicable in the context of challenges to single-member districts as they are in cases challenging the inherently dilutive practice of multi-member districting.
Sandra Day O'Connor: Well, Mr.-- --That may... excuse me. Mr. Hungar, would you mind addressing the questions that have been raised heretofore with Mr. Goodman about whether it is possible to take race into account in drawing these lines without invoking the strict scrutiny of cases under the Fourteenth and Fifteenth Amendments when you use race as the basis for doing this?
Thomas G. Hungar: Justice O'Connor, in our view--
Sandra Day O'Connor: And who has the burden of proof?
Thomas G. Hungar: --In our view, that's a very difficult question. It is always troubling when States or government takes race into account in making decisions. The Court yesterday noted probable jurisdiction in a case that squarely presents that question, Shaw against Barr, under the Voting Rights Act in a closely related context. We have not addressed that question in this case, nor have the parties in their briefs because it's not presented in this case. There is no claim in this case that white voters or any... members of any other race, other than blacks, were discriminated against by virtue of the State's decision to take race into account. The only claim in this case is that blacks suffered intentional dilution of their voting power by virtue of the State's decision to take race into account. In fact, all parties before the Court concede that it is appropriate to take race into account. They just differ over the type... the manner in which race is to be taken into account. At page 37 of their brief, for example, the appellees take the position that because there is substantial white crossover voting, the State was required to be very careful in order to avoid diluting black voting power. Obviously, the only way to do that is to take race into account. So, this isn't a Croson type case. This case does not present the issue presented in Shaw against Barr.
Anthony M. Kennedy: Well, in this case there was an allegation in the complaint that influence of black voters was derogated. So, it's not just a dilution case, is it? The complaint certainly can't be read that way.
Thomas G. Hungar: Well, Justice Kennedy, with respect I believe... we interpret the complaint to raise a dilution claim, that is, a claim that black voters were intentionally discriminated against. Whether... the claim certainly is that black voters were intentionally discriminated against and that the State attempted to, in some sense, minimize or reduce their voting power. Whether that is referred to as an influence claim or a dilution claim, that is the nature of the claim. And in our view, that is the only claim before the Court and the proper resolution of that claim is that it should be rejected because the district court essentially committed two errors of law in accepting that claim.
Anthony M. Kennedy: Well, if there's an influence claim, are we remitted to the Gingles factors?
Thomas G. Hungar: We don't believe so. For the... if we're talking about intentional discrimination under the Constitution, we don't believe the Gingles factors are necessarily applicable because the functions served by the constitutional ban against intentional discrimination is different than the functions served by section 2. Section 2 focuses on equal access to the process. The prohibition against intentional discrimination focuses on exactly that.
Anthony M. Kennedy: Well, suppose there's just a section 2 claim that they... which is an influence claim, rather than a dilution claim. You still don't need the Gingles factors, and the burden of proof certainly then should shift to the apportioning authorities, shouldn't it?
Thomas G. Hungar: No, Your Honor. If I understand your question correctly, we believe the Gingles factors are applicable to so-called influence claims. If those are a subset of dilution claims or not, we believe that the three Gingles factors are fully applicable to all challenges, to vote dilution challenges or influence challenges, to redistricting decisions. And the reason for that comes directly from the language of section 2. Section 2 requires that racial polarization, both minority cohesiveness and white block voting, be shown in vote dilution challenges. Section 2 guarantees racial groups an equal opportunity to participate in the political process and elect representatives of their choice. There's no minority cohesiveness. By definition, the minority group has no representatives of its choice.
Byron R. White: What is the justification for a State in reapportioning ever deliberately taking race into account in order to create a... intentionally to create a single-member district that will be controlled by a minority? Does there have to be any precondition met?
Thomas G. Hungar: Justice White, again that's a very difficult question that raises sensitive constitutional issues in--
Byron R. White: Yes. Well, what's your answer? [Laughter]
Thomas G. Hungar: --In United Jewish Organizations against Carey, a plurality of the Court suggested that that would be appropriate certainly in section 5 cases where the Department of Justice has objected. We think more generally that while this case doesn't raise the question, it is appropriate--
Byron R. White: Why doesn't it raise the question?
Thomas G. Hungar: --Because there's no claim in this case that the State's failure to take race into... or decision to take race into account in itself violated the Constitution. Appellees take the position that the State had to take race into account in order to maximize black voting power. We don't agree that that's a proper interpretation--
Byron R. White: What if there has been a challenge to creation of any minority controlled districts in this case?
Thomas G. Hungar: --The United States--
Byron R. White: What would have been your answer?
Thomas G. Hungar: --The position of the United States is that it is appropriate for States to take race into account in certain circumstances in order to avoid a violation of section 2. In enacting amended section 2 in 1982, Congress commanded the States not merely to avoid intentionally discriminating against racial groups, but also to avoid practices--
Byron R. White: In short, if the Gingles... if the State can satisfy the Gingles factors, they may create these districts.
Thomas G. Hungar: --If... we don't believe that the Gingles factors alone, Your Honor, are enough to establish a section 2 violation, but if the State has a--
Byron R. White: I didn't ask you that. Constitutionally I would like to know what a State has to show ever to create a... intentionally a minority controlled district.
Thomas G. Hungar: --If a State... if the State has a reasonable basis for believing that it is necessary to create majority and minority districts in order to avoid a violation of section 2, it is permitted to do so. That is the necessary implication of what Congress said in enacting amended section 2 in 1982.
Byron R. White: And that involves applying the Gingles factors?
Thomas G. Hungar: Yes, that's part of the analysis in our view. Now, the... now, it's not necessarily... certainly up until this point, it has not been clear whether the Gingles factors even apply in this context. We believe they do. The lower courts have taken different positions on that question, and we are asking the Court to hold against--
John Paul Stevens: But then are you arguing that the proponent of the plan had the burden of showing there was no section 2 violation?
Thomas G. Hungar: --No, Your Honor, because again there is no... this case does not involve the type of claim that we've just been discussing. There's no claim in this case that the State violated the Constitution merely by taking race into account. The appellees contend that the State had to take race into account.
John Paul Stevens: No, but in performing their duty to prepare a proper plan, you say have a duty to avoid a section 2 violation, that would seem to me, if you're saying that, that they have a duty to decide for themselves that this particular plan is necessary and, therefore, assume the burden. Maybe I don't understand you.
Thomas G. Hungar: Well, certainly if a State chooses... Congress, in enacting section 2, commanded the States to avoid violating section 2. If a State wants to be sure it's avoiding... violating section 2, it makes sense. Depending on the circumstances in the particular State, it may be appropriate for the State to look at racial considerations and make sure it's not violating section 2. It depends--
Antonin Scalia: Sure, and give it a wide berth. I assume they should act prophylactically if there's even a minor risk, right, of a Gingles violation.
Thomas G. Hungar: --Well, again, Your Honor--
Antonin Scalia: So, it isn't just Gingles applied all the way. It's even a minor risk. Play it safe and use racial districts all the time.
Thomas G. Hungar: --As you know--
Antonin Scalia: Is that proper?
Thomas G. Hungar: --we have not addressed the precise nature of this type of claim in our brief and have not taken a formal position on that question because in our view it's not presented in this case. It is presented in Shaw against Barr.
John Paul Stevens: Let me ask you this. Supposing there were two alternate plans, one with four majority-minority districts and one with five majority-minority... however you phrase that, and they thought both of them would comply with the law, could they select a plan with the five districts on the ground they thought that would be good public policy?
Thomas G. Hungar: I'm not sure, Your Honor. It depends... it's unlikely. The reality of redistricting is that there are many factors and many considerations that go into the choice of a particular plan over a particular--
John Paul Stevens: Your answer to my question is you don't know.
Thomas G. Hungar: --Yes. We believe the first Gingles precondition--
Byron R. White: Neither does the Government I guess.
Thomas G. Hungar: --That's correct, Your Honor. Thank you.
William H. Rehnquist: Thank you, Mr. Hungar. We'll hear from you, Mr. Gilliam.
Armistead W. Gilliam, Jr.: Mr. Chief Justice, and may it please the Court: I would like to take up a little bit of the factual background for the decision that was made here and then to respond, I believe, to some of the issues that have been raised by the Court's questions. The stage on which this was played out in Ohio in 1991 was that there were 11 black legislators who had been repeatedly elected. They had been repeatedly elected with very large majorities. They were... seven of them were elected from districts where there were less than 50 percent black population. The court found that there was no racial block voting. The experts on both sides agreed with that proposition. The experts for the appellants found that in the period 1986 to 1990 the white crossover vote was in the magnitude of 60 percent or greater. Our expert found coalitional voting throughout the State of Ohio. That finding was supported by the fact that blacks had been repeatedly elected with 35 percent of the population, and they had done that over a period of 20 years. Now, into this particular breach, the appellants stepped and said we must create as many majority-minority districts as we possibly can. There was no investigation prior to that policy announcement of whether or not there was polarized voting.
John Paul Stevens: May I ask at that point, Mr. Gilliam?
Armistead W. Gilliam, Jr.: Yes, Your Honor.
John Paul Stevens: Suppose instead of saying they think we must do it to comply with the statute, they had said we think it would be good policy to create as many as we could. Would that be illegal in your view?
Armistead W. Gilliam, Jr.: On those facts alone, no. The question would be was their act vote dilutive. Did it have the effect of diluting the votes of black citizens under the Voting Rights Act?
Byron R. White: Why wouldn't it violate the Constitution to deliberately use race in this manner?
Armistead W. Gilliam, Jr.: Your Honor, I'm not arguing my opponent's case. What I'm saying is that if race is used, there are circumstances, for example, in section 5 cases where race is used to correct a racial discrimination, a racial vote dilution.
Byron R. White: Exactly, exactly. All right.
Armistead W. Gilliam, Jr.: And that's the only circumstances under which race can be used.
Byron R. White: Well, the way you describe it, there would be no reason in Ohio to discriminate.
Armistead W. Gilliam, Jr.: I misled you then, sir. I intended to indicate that--
Byron R. White: Well, you said that there had been no discrimination against blacks in all... anywhere in Ohio.
Armistead W. Gilliam, Jr.: --Well, there had been no--
Byron R. White: And if prior discrimination is a predicate to satisfying the Constitution, it wasn't present in Ohio.
Armistead W. Gilliam, Jr.: --That's correct, exactly. In fact, the prior predicate, racial discrimination, wasn't shown even as a threshold matter in this case. The two Gingles factors which are critical, which is the polarized voting, was totally shown not to occur... the Solicitor General bases his argument on that particular point. Secondly, there was no inability of black candidates to be elected. They were repeatedly elected, and they elected... black voters elected not only black candidates, but white candidates of choice repeatedly.
William H. Rehnquist: What... Mr. Gilliam, what if the Apportionment Board had said we want to have a Republican reapportionment, and so we're going to try to cut down Democratic voting strength wherever we can, consistent with the Ohio constitution, and so forth? And they end up creating an additional majority-minority block vote, but they treat white and black Democratic legislators equally. They discriminate against them all. Is there anything constitutionally wrong with that?
Armistead W. Gilliam, Jr.: The way you've said it, no. Let me amplify, if I may, Your Honor. In Ohio there's a constitution. There is no conflict shown between the constitutional provisions which deal with reapportionment and the Voting Rights Act. Acting under the constitution, they are free to engage in policy. If they created a majority-minority district which had the dilutive effect on black voters so that the voters in that district were packed and fragmented as, for example, happened in the Armour case, then they would have to respond as to why that was done. If--
William H. Rehnquist: Under the Voting Rights Act or under the Constitution?
Armistead W. Gilliam, Jr.: --They would have to respond under both because, as the Court has observed, strict scrutiny is required because of racial classifications. There's a long line of cases.
William H. Rehnquist: Well, but the argument on the other side here would be, you know, this is a disparate impact perhaps, but it is not done with intent to discriminate against blacks.
Armistead W. Gilliam, Jr.: The argument is made, Your Honor, that there's no difference between a partisan gerrymander which has racial effects and a racial gerrymander, and I suggest they are one and the same because--
William H. Rehnquist: Well, what do you do with a case like Whitcomb against Chavis then?
Armistead W. Gilliam, Jr.: --Your Honor, with respect to Whitcomb v. Chavis, intent was not a factor in that case. It was conceded not to be a factor in that case.
William H. Rehnquist: Right. Well, supposing you have here the intent is not to... as I believe I have put in my question, the intent is not to discriminate against blacks, but to diminish Democratic voting strength.
Armistead W. Gilliam, Jr.: Well, then we look to the effects under the Voting Rights Act and where you have a racial gerrymander, which is statewide, which packs and fragments black voters with dilutive effects.
William H. Rehnquist: Well, but you keep hypothesizing a racial gerrymander, intimating that it is with intent. But my question is it was not with intent to discriminate against blacks.
Armistead W. Gilliam, Jr.: Your Honor, I say it was racial because it's admitted that it was racial.
William H. Rehnquist: Well, but you're not answering my hypothetical question.
Armistead W. Gilliam, Jr.: Oh, I beg your pardon. Absent race and there's a political gerrymander, my view of that is that whites and blacks may not be treated alike because section 2 forbids that.
Anthony M. Kennedy: But it's an important question. And race isn't absent in the Chief Justice's hypothetical because race is the basis for reassigning the voters. So, don't say race is not applicable. Race is the surrogate used in order to accomplish a political gerrymander. In that case, what result?
Armistead W. Gilliam, Jr.: Violation of the Fourteenth, the Fifteenth Amendment, and the Voting Rights Act if dilutive effects are shown.
Anthony M. Kennedy: But not if dilutive effects are not shown?
Armistead W. Gilliam, Jr.: I think there has--
Anthony M. Kennedy: So--
Armistead W. Gilliam, Jr.: --I think there have to be effects under both the Voting Rights Act and the Fourteenth and Fifteenth Amendments.
Anthony M. Kennedy: --So, it's just a Gingles... so, it's a Gingles case no matter?
Armistead W. Gilliam, Jr.: No. I think that under your decisions, race is an impermissible use where there are unequal and disparate results. Here the... there were unequal, disparate results, and in my view that is sufficient. I also say that we have here a statewide packing of black citizens, and the theory is that this is necessary. If we look at the statute, Your Honor, it says that you're not entitled to proportional representation. There's a disclaimer in the statute. That's a clear prohibition upon creating a right to majority-minority districts, which is what is proclaimed here by guaranteed safe seats, which is their theory upon which they are operating. Now, unless they remove that disclaimer, they have nothing but a naked, freestanding gerrymander with no justification. They say they don't have to justify. There is no burden of proof upon them to justify this. They make no excuse about how the disclaimer should be overcome. In fact, what they say is we have a rational State policy. We don't know what that rational State policy is because they're not following the Ohio constitution. They claim federalism but abandon their own constitution in the name of the Voting Rights Act.
William H. Rehnquist: Well, Mr.-- --Was there any finding in the court below that there was a violation of the Ohio constitution?
Armistead W. Gilliam, Jr.: No, Your Honor. What the court below found was that the Ohio constitution was abandoned in that... in favor of the Voting Rights Act. So, there was not a finding that the Ohio constitution was violated by the district court.
Sandra Day O'Connor: Mr. Gilliam, why do the appellants have to prove that the Voting Rights Act required their plan? Why isn't the question whether the plan violates the Voting Rights Act? I mean, could you explain that to us?
Armistead W. Gilliam, Jr.: Yes. For this reason, they have admitted a racial classification. The strict scrutiny cases of this Court require that there be a permissible inquiry by the court as to why is that so. You have now made these majority-minority districts. Why did you do so? They have to show, at a minimum, that there is no vote dilution. If we look at the issues of voting rights, we should look at the totality of circumstances standards. There are nine of them set forth in the statute. They say that we don't have to even look at these standards. We can simply apply these... the voting rights without reference to its own standards, without reference to the history of Ohio, which shows no polarized voting, a key fact, without reference to the fact that there's coalitional voting. We just do it. And that was the excuse that was used in Gomillion. The Alabama legislature said we simply rely on State power. It's perfectly all right for us to gerrymander blacks out of Tuskegee, and my opponents say it's perfectly all right to gerrymander blacks out of the white suburbs into the inner cities simply because we have the power to do so. We need not justify use of race by going through the standards of the Voting Rights Act. With respect to--
Antonin Scalia: Are you saying, Mr. Gilliam, that it's perfectly okay so long as it doesn't dilute? That's the only claim you're making here, that this is bad because it dilutes, and if we find that that is not a valid reason to object, then you're content to have judgment go against you.
Armistead W. Gilliam, Jr.: --No. Let me put it this way, Your Honor.
Antonin Scalia: You're making some other claim besides the dilution?
Armistead W. Gilliam, Jr.: Yes. I think that there... that the State has to justify its use of race I think in and of itself. We asked for a declaratory judgment, and the declaratory judgment request that we made was that the trial court remove from the appellants the sword of the Voting Rights Act and require them to comply with the Ohio Constitution. That is the central claim of our case: their misuse of the Voting Rights Act and the way they have done it without justifying. The answer to your question would be yes. That would be sufficient for a declaratory judgment in this case.
David H. Souter: Let's assume that you had a very different political complexion in Ohio and the... at the time it was clear that they had to reapportion. The board unanimously agreed that everything basically seemed to be going fine. The only thing they had to worry about was one person-one vote so that they said we will redraw the districts in a way that will preserve the same racial mix that we have now, since it seems to work to everybody's satisfaction. Would that be a use of race which would place a burden upon them?
Armistead W. Gilliam, Jr.: No.
David H. Souter: Why not? That's using race and it's consciously using race.
Armistead W. Gilliam, Jr.: I understand that. There is in your hypothetical no use of race which has a conceivable dilutive effect, and you have explained the justification for it without any explanation which adds dilution to it. In those circumstances, I do not quarrel with that.
David H. Souter: But doesn't your answer to me also imply that you have got to... that you would have the burden to prove in the first instance that there was, in fact, a dilutive effect? And isn't that what they are claiming you should do here?
Armistead W. Gilliam, Jr.: Your question suggests that in those circumstances, I would have the burden of proof. Let me answer the answer would be yes, and let me tell you why, if I may. Any apportionment will create a certain number of majority-minority districts. It is inevitable because of the situation that we live in in the cities and countryside. That is not what we complain about. We are not complaining about an apportionment that creates majority-minority districts that simply emerge from the process. We are not complaining about a situation, for example, where a cohesive minority group were simply held together. We're not talking about a situation where section 5 applies. What we're talking about here is a deliberate use of race to gerrymander statewide done because... not because of State policy, but because it is mandated by the Voting Rights Act.
David H. Souter: Well, would the facts in this case be different if your opponents had not taken the position that they had drawn the lines, as they did, for purposes of avoiding a section 2 violation? If they had just kept mum, would you then have had on your own theory the entire burden of proof to prove that this was a section 2 violation?
Armistead W. Gilliam, Jr.: Your Honor, given the widespread implications of what they did, it would have been obvious what they did.
David H. Souter: Well, that is simply to say that you might have had an easy job under your theory.
Armistead W. Gilliam, Jr.: I might have had an easier job, yes, but the answer to your question--
David H. Souter: But you... would you still have had the burden in the first instance?
Armistead W. Gilliam, Jr.: --Yes, I would in that... in your example, yes.
John Paul Stevens: Okay. What if their purpose was overtly to pack Democrats into districts, and as a byproduct of that, they packed certain racial groups in the districts? Would that violate either the statute or the Constitution?
Armistead W. Gilliam, Jr.: Yes, Your Honor. It would violate both.
John Paul Stevens: Would it violate if you had a racially homogeneous State and you're deliberately packing districts for the purpose of getting as many majority Republican districts as you could?
Armistead W. Gilliam, Jr.: The racially homogeneous State is a much more difficult question, and I--
John Paul Stevens: Well, it certainly wouldn't... it couldn't violate section 2.
Armistead W. Gilliam, Jr.: --answer... I would probably answer it no. I'd probably answer your question no because it would be almost impossible to pack blacks in a racially homogeneous State as you have suggested.
John Paul Stevens: No, but you could pack Democrats.
Armistead W. Gilliam, Jr.: You could pack Democrats. The decisions of this Court has allowed the packing of Democrats from time to time.
John Paul Stevens: But here you would say it's the same violation... maybe I'm asking the same question the Chief Justice did. If their intent was to pack Democrats and incidentally, in order to do that, they inevitably had to pack some blacks--
Armistead W. Gilliam, Jr.: Yes.
John Paul Stevens: --that would violate section 2.
Armistead W. Gilliam, Jr.: That would violate section 2.
Anthony M. Kennedy: On the grounds that it diluted the black vote?
Armistead W. Gilliam, Jr.: On the grounds that it diluted the black vote.
Anthony M. Kennedy: Why do you have to say dilution? Can't you just say that it's a degradation to the black race to use them in this manner?
Armistead W. Gilliam, Jr.: It is, Your Honor.
Anthony M. Kennedy: Well, why do you have to talk about vote dilution then?
Armistead W. Gilliam, Jr.: Well, let me put it this way. The cases, as I have read them, have required both... and the Fifteenth Amendment both intent and effect. The Voting Rights Act cases are effect cases. You can have both in a Voting Rights Act case. I don't shrink from the burden of showing effect in this case, but that is my reading of the cases of this Court.
Anthony M. Kennedy: Does... can your complaint be construed... did you allege, as one of the theories of your complaint, that influence of blacks was diminished in some districts?
Armistead W. Gilliam, Jr.: Yes, and that's an effect.
Anthony M. Kennedy: And this would be different than dilution, wouldn't it?
Armistead W. Gilliam, Jr.: Well, it is different. It is an effect also, however. Where blacks are gerrymandered or anybody is gerrymandered, the entire purpose of the gerrymander is to move a group out of a district where they're expressing a voting preference, where they're engaged in some sort of influence. If they didn't have influence, there wouldn't be a reason to gerrymander them, and that is what occurred in this case. I want to--
Antonin Scalia: Mr. Gilliam, in the response that you gave to, I guess it was, Justice Stevens' question where you... your object is to pack Democrats, but an easy way to do it is that since you believe that the... that blacks are largely voting Democratic, you've packed blacks as a means of packing Democrats, you said that would be bad.
Armistead W. Gilliam, Jr.: --Yes.
Antonin Scalia: That would only be bad I think you would say if you can establish block voting. Even if you couldn't establish block voting, would it be bad?
Armistead W. Gilliam, Jr.: Yes, Your Honor.
Antonin Scalia: Well, how would it be violating... how would there be any dilution? Why would section 2 be violated?
Armistead W. Gilliam, Jr.: Well, because a racial gerrymander may be a new dilution. Section 2 of the act deals with vote dilution in general. The argument of the Solicitor General in this case is essentially that in the absence of racially polarized voting, there can't be any vote dilution. By that theory, one could pack and fragment blacks to one's heart's content, create 100 percent black districts.
Antonin Scalia: Right, right, so long as they don't vote as a block.
Armistead W. Gilliam, Jr.: Well, no, no.
Antonin Scalia: That's wrong.
Armistead W. Gilliam, Jr.: Voting as a block is different from polarized voting. Voting as a block in this case, may... if I may address the facts of this case, it was very clear. Both sides concede that blacks voted cohesively. It happened to be 85 to 95 percent Democratic. But that's quite different from polarized voting. If polarized voting doesn't exist... if, for example, the patient is well and it wasn't Ohio, it is the view then of the appellants, we could send the patient to the hospital, do a racial gerrymander, remove vital organs, to carry the metaphor further, and don't do this without a diagnosis, no medical checkup. Now, the Voting Rights Act prevents new discriminations, as well as old discriminations. It doesn't say that we only have these factors to look at. It's not a mechanical application, as the Solicitor General would suggest. He also suggests that unless you have 50 percent blacks in the district, there is no potential for dilution of their vote. If you had a 49 percent district, for example, which was regularly electing a black candidate, you could split it in half and that's perfectly okay. Now, the Voting Rights Act reaches that kind of behavior, and we say that you cannot split blacks for racial or partisan purposes. You can't fragment them for racial or partisan purposes--
Antonin Scalia: Even if it does not produce any dilution. I mean, apart from the constitutionality of it, just whether it violates section 2.
Armistead W. Gilliam, Jr.: --If it does not produce dilution--
Antonin Scalia: It still violates section 2.
Armistead W. Gilliam, Jr.: --then you've got... then I have to fall back on my argument which I made to you earlier, which is that there's a misuse of the Voting Rights Act. To create this, you cannot use a Federal statute for this purpose. You must stick with your State statute. If it does not create dilution and there is no prohibition in State law, then I haven't proven a violation of the Voting Rights Act unless I prove effect.
Anthony M. Kennedy: What is the forbidden effect that you're trying to prove... that you have to prove? Can you give us the standard--
Armistead W. Gilliam, Jr.: Yes, Your Honor.
Anthony M. Kennedy: --to tell us when there's a section 2 Voting Rights--
Armistead W. Gilliam, Jr.: The forbidden effect--
Anthony M. Kennedy: --violation?
Armistead W. Gilliam, Jr.: --of a gerrymander is multiple. First of all, if blacks are packed, where it's very clear that for years and years and years they've been electing a black candidate with a very large majority... for example, a majority here was in the area of 75 percent. Because of the packing, the results of the last election were that the majority went up to 85 percent. That's clearly packing under any definition in terms of the results of what occurred. So, you've got wasted votes in the packed districts.
David H. Souter: May I ask you just one question? I'm sorry to interrupt you, but would that be true if there... if the percentages in the other districts were so high that there was no significant dilution in the other districts by virtue of packing in the one?
Armistead W. Gilliam, Jr.: But your... the answer would be no, if I understand you correct... your answer correctly.
John Paul Stevens: But if that's your answer, then really you should focus on the other districts to see if they're diluted--
Armistead W. Gilliam, Jr.: That's the issue, Your Honor.
John Paul Stevens: --because the packing itself is not enough, as I understand your theory.
Armistead W. Gilliam, Jr.: Well, I think packing is dilutive.
John Paul Stevens: Well, it's evidence of dilution in other districts.
Armistead W. Gilliam, Jr.: It's evidence of dilution, and it is dilution under my theory, Your Honor, if I may.
John Paul Stevens: Well, then you seem to be giving a different answer than you gave to Justice Souter.
Armistead W. Gilliam, Jr.: Well, in that case, I'm mistaken. Somehow or other I'm confused. Let me see if I can straighten it out.
Antonin Scalia: But dilution of what, Mr. Gilliam? Of the black vote or of the Democratic vote? I thought the Voting Rights Act was intended to protect blacks, not Democrats--
Armistead W. Gilliam, Jr.: It is dilution--
Antonin Scalia: --or Republicans for that matter.
Armistead W. Gilliam, Jr.: --It's dilution of the black vote that we are talking about. Black votes are diluted if they are wasted, Your Honor, because they don't have as much value as the value of white votes that haven't been packed. Now, black votes also when they're packed create, as Your Honor has quite accurately pointed out, a side effect which is the removal of the blacks from the area where they were the problem.
John Paul Stevens: But that's the only harm because if you go from 85 to 95 in district 1, and you go from 15 to 10 in district 2, and 15 to 10 in district 3, your harm is strictly in districts 2 and 3, isn't it?
Armistead W. Gilliam, Jr.: Well, the harm is felt throughout the State because the number of legislators who have to respond to black interests is diluted. The ability of the blacks to build the coalition that they built, for example, in Ohio is affected. Their ability to participate in the political process, which is what we have been talking about, is affected.
John Paul Stevens: Because there's 40 percent Democrats instead of 30... 40 white Democrats instead of 35 percent. Well, if all of those concerns are valid, if those are valid concerns, of the Voting Rights Act, then our Gingles test must be wrong because all of the evils that you describe do not flow from block voting, and we shouldn't have all those block voting criteria in Gingles if, indeed, these evils are direct... are, you know... are the object the object of the voting rights.
Armistead W. Gilliam, Jr.: Well, unless I misunderstand your question, Gingles itself says in footnote 11, page 46, that racial gerrymanders are bad. They exempt that from the major discussion of the case. They also say they're not talking about single-member districts. They're talking about multi-member districts where blacks have submerged. In single-member districts, blacks are fragmented, fractured, and segregated, moved out of the suburbs, as it were, in this case into the inner cities. Gingles... a mechanical application of Gingles, as is suggested here, would basically give a green light to racial gerrymandering of the most extreme sort in a State where there had been no racial block voting, as Ohio was.
John Paul Stevens: May I ask you what you mean by the term racial gerrymander?
Armistead W. Gilliam, Jr.: All right, sir, yes. Racial, meaning that blacks were the target of the gerrymander. Gerrymander--
John Paul Stevens: I'm asking you what you mean by gerrymander.
Armistead W. Gilliam, Jr.: --Yes, I think. Gerrymander because they were moved for partisan purposes, and to a--
John Paul Stevens: And is every redistricting that's motivated in part by partisan purposes a partisan gerrymander?
Armistead W. Gilliam, Jr.: --No.
John Paul Stevens: Well, when is it and when it is not?
Armistead W. Gilliam, Jr.: When you use race for partisan purposes, you are engaging in an invidious use of race because a racial gerrymander and a partisan gerrymander using race, as I have said, is one and the same thing. It's the deliberate use of race to achieve an object.
William H. Rehnquist: It's not the same thing under Whitcomb against Chavis, Mr. Gilliam, if there was no intent... if the intent is only to discriminate against Democrats so far as the Constitution is concerned, unless you're just talking about the Voting Rights Act.
Armistead W. Gilliam, Jr.: I am talking about the Voting Rights Act, and I am also talking about the Constitution, Your Honor. I understand the rule of Whitcomb v. Chavis and that we have the burden of showing intent under the Fifteenth Amendment.
William H. Rehnquist: So that just disparate treatment of Democrats and Republicans, even though it also involved black Democrats, as well as white Democrats, would not automatically rule something out under the Constitution at any rate.
Armistead W. Gilliam, Jr.: That would be my understanding of the law, Your Honor. With respect to the matter of proportional representation, I simply want to address that briefly, if I may. We have said here that there were guaranteed safe seats, and this was the remedy that was being applied. They have said, well, they were doing this for benevolent purposes for a rational State purpose. If we look at the actual districts that were involved, for example, Mr. Mallory who is here in the audience. Mr. Mallory is 60 years old. We're going to increase his district because he may not make it into the next 10 years. We look at a couple of others, Mr. Beatty, Mr. Miller. They may run for other offices. If we look at Mr. Jones, Mr. Sykes, they're living in Toledo and they're living in Akron. We're going to increase theirs because there may be some racial migration. Blacks may actually move to the suburbs, and we've got to protect that seat. And these are the explanations I've set forth on pages 10 and 11 in my brief, and I submit that that's not rational. That's not a State policy. That's not correction of prior dilution or vote discrimination or curing anything that happened under the Voting Rights. And those are the purposes they said at the beginning of this case to this trial court that they were pursuing. They were eliminating discrimination. They say that in their answer. They argue that in the trial courts... to the trial court which resulted in the trial court saying show us. Tell us how you're doing that. Thank you.
William H. Rehnquist: Thank you, Mr. Gilliam. Mr. Goodman, you have 3 minutes remaining.
N. Victor Goodman: Thank you, Mr. Chief Justice. If I might, I would like to clear up the record because, as I listened to Mr. Gilliam, I wasn't sure I was hearing the same case that we're before this Court on. In the first place, in answer to your question, Mr. Chief Justice, the district court abstained. The Ohio Supreme Court found that the plan did comport with the Ohio Constitution, and there is no other decision of any court to conflict with that. Secondly, with respect to the questions of political gerrymandering, the district court did not find, even though it was raised in the course of their amended complaint, that there was a political gerrymandering. And I believe yesterday this Court affirmed the decision of the district court in Wepron. And I believe that the reason that the district court did not make a political gerrymandering finding under the Fourteenth Amendment is because after the election, November the 3rd, the Democrats maintained control of the House of Representatives, they picked up one additional African American seat, and the Republicans lost the seat in the Senate. And therefore, there is no degradation of anyone's political influence on the process as a whole. And when the Court has, as I'm sure it has already, had an opportunity to look at the charts, which appear on pages 177 and 260 of the appendix, the Court will find that the Democrat plan that was submitted contained six majority-minority districts. The plan that is before this Court has five majority-minority districts. And the chart that we appended to our reply brief, chart la, will show that the complaint that was made that we decrease the number of 10 percent districts... in fact, the apportioning persons created 21 districts of 10 percent or more; the Democrat plan, only 20. So, I think when the Court reviews the facts of this case... and it is not, by the way, a strict scrutiny case. There's not even a citation of Croson. But in any event, we believe that the facts of this case show that they did not meet the burden of proof. They did not show that the plan which was adopted and before this Court, known as amendment D, in any way diluted the voting strength of the black community in our State. They did not show that there was any invidious discrimination under the Fifteenth Amendment. This Court's opinion, as I said earlier, in Carey supports us in that. Yes, we did use race, but we had to because of the residence of a black community in the urban areas. There was no way that we could not have taken race into account. And with respect to the Fourteenth Amendment claim, Your Honor, it is clearly and simply a one person-one vote claim. It was made in passing in their March 19 opinion. It was sort of like pin the tail on the donkey, or it may have been pin the tail on the Republicans. But we have shown that there was a rational State basis, namely, our constitution. There is no other plan that was available that could have met the one man-one vote requirements of our Constitution, and there was no builtin bias because we created--
Antonin Scalia: Mr. Goodman--
N. Victor Goodman: --Yes, Your Honor.
Antonin Scalia: --do you acknowledge that the reason race was used in particular was in order to assure compliance with the Voting Rights Act?
N. Victor Goodman: Yes.
Antonin Scalia: All right.
N. Victor Goodman: That is correct. Thank you, Your Honor.
William H. Rehnquist: Thank you, Mr. Goodman. The case is submitted.