The Supreme Court/The Supreme Court.iso/pc/ascii/1994/94_631/94_631.zd1

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SUPREME COURT OF THE UNITED STATES
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Nos. 94-631, 94-797 and 94-929
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ZELL MILLER, et al., APPELLANTS
94-631               v.
DAVIDA JOHNSON et al.

LUCIOUS ABRAMS, Jr., et al., APPELLANTS
94-797               v.
DAVIDA JOHNSON et al.

UNITED STATES, APPELLANT
94-929               v.
DAVIDA JOHNSON et al.
on appeals from the united states district court
for the southern district of georgia
[June 29, 1995]

  Justice Ginsburg, with whom Justices Stevens and
Breyer join, and with whom Justice Souter joins
except as to Part III-B, dissenting.
  Legislative districting is highly political business.
This Court has generally respected the competence of
state legislatures to attend to the task.  When race is
the issue, however, we have recognized the need for
judicial intervention to prevent dilution of minority
voting strength.  Generations of rank discrimination
against African-Americans, as citizens and voters,
account for that surveillance.
  Two Terms ago, in Shaw v. Reno, 509 U. S. ___
(1993), this Court took up a claim -analytically distinct-
from a vote dilution claim.  Id., at ___ (slip op., at 21).
Shaw authorized judicial intervention in -extremely
irregular- apportionments, id., at ___ (slip op., at 10), in
which the legislature cast aside traditional districting
practices to consider race alone-in the Shaw case, to
create a district in North Carolina in which African-
Americans would compose a majority of the voters.
  Today the Court expands the judicial role, announcing
that federal courts are to undertake searching review of
any district with contours -predominantly motivated- by
race: -strict scrutiny- will be triggered not only when
traditional districting practices are abandoned, but also
when those practices are -subordinated to--given less
weight than-race.  See ante, at 15.  Applying this new
-race-as-predominant-factor- standard, the Court invali-
dates Georgia's districting plan even though Georgia's
Eleventh District, the focus of today's dispute, bears the
imprint of familiar districting practices.  Because I do
not endorse the Court's new standard and would not
upset Georgia's plan, I dissent.

                      I
  At the outset, it may be useful to note points on
which the Court does not divide.  First, we agree that
federalism and the slim judicial competence to draw
district lines weigh heavily against judicial intervention
in apportionment decisions; as a rule, the task should
remain within the domain of state legislatures.  See
ante, at 14; Reynolds v. Sims, 377 U. S. 533, 586 (1964)
(-[L]egislative reapportionment is primarily a matter for
legislative consideration and determination . . . .-).
Second, for most of our Nation's history, the franchise
has not been enjoyed equally by black citizens and white
voters.  To redress past wrongs and to avert any
recurrence of exclusion of blacks from political processes,
federal courts now respond to Equal Protection Clause
and Voting Rights Act complaints of state action that
dilutes minority voting strength.  See, e.g., Thornburg v.
Gingles, 478 U. S. 30 (1986); White v. Regester, 412
U. S. 755 (1973).  Third, to meet statutory requirements,
state legislatures must sometimes consider race as a
factor highly relevant to the drawing of district lines.
See Pildes & Niemi, Expressive Harms, -Bizarre Dis-
tricts,- and Voting Rights: Evaluating Election-District
Appearances After Shaw v. Reno, 92 Mich. L. Rev. 483,
496 (1993) (-compliance with the [Voting Rights Act] and
Gingles necessarily requires race-conscious districting-).
Finally, state legislatures may recognize communities
that have a particular racial or ethnic makeup, even in
the absence of any compulsion to do so, in order to
account for interests common to or shared by the
persons grouped together.  See Shaw, 509 U. S., at ___
(slip op., at 14) (-[W]hen members of a racial group live
together in one community, a reapportionment plan that
concentrates members of the group in one district and
excludes them from others may reflect wholly legitimate
purposes.-).
  Therefore, the fact that the Georgia General Assembly
took account of race in drawing district lines-a fact not
in dispute-does not render the State's plan invalid.  To
offend the Equal Protection Clause, all agree, the
legislature had to do more than consider race.  How
much more, is the issue that divides the Court today.

                      A
  -We say once again what has been said on many
occasions: reapportionment is primarily the duty and
responsibility of the State through its legislature or
other body, rather than of a federal court.-  Chapman v.
Meier, 420 U. S. 1, 27 (1975); see also ante, at 14.  The
Constitution itself allocates this responsibility to States.
U. S. Const., Art. I, 2; Growe v. Emison, 507 U. S. ___,
___ (1993) (slip op., at 8).
  -Districting inevitably has sharp political impact and
inevitably political decisions must be made by those
charged with the task.-  White v. Weiser, 412 U. S. 783,
795-796 (1973).  District lines are drawn to accommo-
date a myriad of factors-geographic, economic, histori-
cal, and political-and state legislatures, as arenas of
compromise and electoral accountability, are best
positioned to mediate competing claims; courts, with a
mandate to adjudicate, are ill equipped for the task.

                      B
  Federal courts have ventured into the political thicket
of apportionment when necessary to secure to members
of racial minorities equal voting rights-rights denied in
many States, including Georgia, until not long ago.
  The Fifteenth Amendment, ratified in 1870, declares
that the right to vote -shall not be denied . . . by any
State on account of race.-  That declaration, for genera-
tions, was often honored in the breach; it was greeted by
a near century of -unremitting and ingenious defiance-
in several States, including Georgia.  South Carolina v.
Katzenbach, 383 U. S. 301, 309 (1966).  After a brief
interlude of black suffrage enforced by federal troops but
accompanied by rampant violence against blacks, Georgia
held a constitutional convention in 1877.  Its purpose,
according to the convention's leader, was to -`fix it so
that the people shall rule and the Negro shall never be
heard from.'-  McDonald et al., Georgia, in Quiet
Revolution in the South 68 (C. Davidson & B. Grofman
eds. 1994) (quoting Robert Toombs).  In pursuit of this
objective, Georgia enacted a cumulative poll tax, requir-
ing voters to show they had paid past as well as current
poll taxes; one historian described this tax as the -most
effective bar to Negro suffrage ever devised.-  A. Stone,
Studies in the American Race Problem 355 (1908).
  In 1890, the Georgia General Assembly authorized
-white primaries-; keeping blacks out of the Democratic
primary effectively excluded them from Georgia's
political life, for victory in the Democratic primary was
tantamount to election.  McDonald et al., supra, at
68-69.  Early in this century, Georgia Governor Hoke
Smith persuaded the legislature to pass the -Disenfran-
chisement Act of 1908-; true to its title, this measure
added various property, -good character,- and literacy
requirements that, as administered, served to keep
blacks from voting.  Id., at 69; see also Katzenbach, 383
U. S., at 310 (tests of this order were -specifically
designed to prevent Negroes from voting-).  The result,
as one commentator observed 25 years later, was an
-`almost absolute exclusion of the Negro voice in state
and federal elections.'-  McDonald et al., supra, at 70
(quoting R. Wardlaw, Negro Suffrage in Georgia,
1867-1930, p. 69 (unpublished 1932)).
  Faced with a political situation scarcely open to self-
correction-disenfranchised blacks had no electoral
influence, hence no muscle to lobby the legislature for
change-the Court intervened.  It invalidated white
primaries, see Smith v. Allwright, 321 U. S. 649 (1944),
and other burdens on minority voting.  See, e.g., Schnell
v. Davis, 336 U. S. 933 (1949) (per curiam) (discrimina-
tory application of voting tests); Lane v. Wilson, 307
U. S. 268 (1939) (procedural hurdles); Guinn v. United
States, 238 U. S. 347 (1915) (grandfather clauses).
  It was against this backdrop that the Court, constru-
ing the Equal Protection Clause, undertook to ensure
that apportionment plans do not dilute minority voting
strength.  See, e.g., Rogers v. Lodge, 458 U. S. 613, 617
(1982); Regester, 412 U. S., at 765; Wright v. Rockefeller,
376 U. S. 52, 57 (1964).  By enacting the Voting Rights
Act of 1965, Congress heightened federal judicial
involvement in apportionment, and also fashioned a role
for the Attorney General.  Section 2 creates a federal
right of action to challenge vote dilution.  Section 5
requires States with a history of discrimination to
preclear any changes in voting practices with either a
federal court (a three-judge United States District Court
for the District of Columbia) or the Attorney General.
  These Court decisions and congressional directions
significantly reduced voting discrimination against
minorities.  In the 1972 election, Georgia gained its first
black Member of Congress since Reconstruction, and the
1981 apportionment created the State's first majority-
minority district.  This voting district, however, was
not gained easily.  Georgia created it only after the
United States District Court for the District of Columbia
refused to preclear a predecessor apportionment plan
that included no such district-an omission due in part
to the influence of Joe Mack Wilson, then Chairman of
the Georgia House Reapportionment Committee.  As
Wilson put it only 14 years ago, -`I don't want to draw
nigger districts.'-  Busbee v. Smith, 549 F. Supp. 494,
501 (DC 1982).

                     II

                      A
  Before Shaw v. Reno, 509 U. S. ___ (1993), this Court
invoked the Equal Protection Clause to justify interven-
tion in the quintessentially political task of legislative
districting in two circumstances: to enforce the one-
person-one-vote requirement, see Reynolds v. Sims, 377
U. S. 533 (1964); and to prevent dilution of a minority
group's voting strength.  See Regester, 412 U. S., at 765;
Wright, 376 U. S., at 57.
  In Shaw, the Court recognized a third basis for an
equal protection challenge to a State's apportionment
plan.  The Court wrote cautiously, emphasizing that
judicial intervention is exceptional: -[S]trict [judicial]
scrutiny- is in order, the Court declared, if a 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.-  509 U. S., at ___ (slip op., at 10).
  -[E]xtrem[e] irregular[ity]- was evident in Shaw, the
Court explained, setting out this description of the North
Carolina voting district under examination:
-It is approximately 160 miles long and, for much of
its length, no wider than the I-85 corridor.  It winds
in snake-like fashion through tobacco country,
financial centers, and manufacturing areas until it
gobbles in enough enclaves of black neighborhoods.
Northbound and southbound drivers on I-85 some-
times find themselves in separate districts in one
county, only to `trade' districts when they enter the
next county.  Of the 10 counties through which
District 12 passes, five are cut into three different
districts; even towns are divided.  At one point the
district remains contiguous only because it intersects
at a single point with two other districts before
crossing over them.  One state legislator has re-
marked that `-[i]f you drove down the interstate
with both car doors open, you'd kill most of the
people in the district.-'  Washington Post, Apr. 20,
1993, p. A4.  The district even has inspired poetry:
`Ask not for whom the line is drawn; it is drawn to
avoid thee.'  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, 1261, n. 96 (1993)
(internal quotation marks omitted).-  Shaw, 509
U. S., at ___ (slip op., at 3-4) (some citations and
internal quotation marks omitted).
The problem in Shaw was not the plan architects'
consideration of race as relevant in redistricting.
Rather, in the Court's estimation, it was the virtual
exclusion of other factors from the calculus.  Traditional
districting practices were cast aside, the Court con-
cluded, with race alone steering placement of district
lines.

                      B
  The record before us does not show that race similarly
overwhelmed traditional districting practices in Georgia.
Although the Georgia General Assembly prominently
considered race in shaping the Eleventh District, race
did not crowd out all other factors, as the Court found
it did in North Carolina's delineation of the Shaw
district.
  In contrast to the snake-like North Carolina district
inspected in Shaw, Georgia's Eleventh District is hardly
-bizarre,- -extremely irregular,- or -irrational on its
face.-  Id., at ___, ___, ___ (slip op., at 10, 12, 26).
Instead, the Eleventh District's design reflects significant
consideration of -traditional districting factors (such as
keeping political subdivisions intact) and the usual
political process of compromise and trades for a variety
of nonracial reasons.-  864 F. Supp. 1354, 1397, n. 5 (SD
Ga. 1994) (Edmondson, J., dissenting); cf. ante, at 16
(-geometric shape of the Eleventh District may not seem
bizarre on its face-).  The District covers a core area in
central and eastern Georgia, and its total land area of
6,780 square miles is about average for the State.
Defendant's Exh. 177, p. 4.  The border of the Eleventh
District runs 1,184 miles, in line with Georgia's Second
District, which has a 1,243-mile border, and the State's
Eighth District, with a border running 1,155 miles.  See
864 F. Supp., at 1396 (Edmondson, J., dissenting).
  Nor does the Eleventh District disrespect the bound-
aries of political subdivisions.  Of the 22 counties in the
District, 14 are intact and 8 are divided.  See Joint Exh.
17.  That puts the Eleventh District at about the state
average in divided counties.  By contrast, of the Sixth
District's 5 counties, none are intact, ibid., and of the
Fourth District's 4 counties, just 1 is intact.  Ibid.
Seventy-one percent of the Eleventh District's boundaries
track the borders of political subdivisions.  See 864
F. Supp., at 1396 (Edmondson, J., dissenting).  Of the
State's 11 districts, 5 score worse than the Eleventh
District on this criterion, and 5 score better.  See
Defendant's Exh. 177, p. 4.  Eighty-three percent of the
Eleventh District's geographic area is composed of intact
counties, above average for the State's congressional
districts.  864 F. Supp., at 1396 (Edmondson, J., dissent-
ing).  And notably, the Eleventh District's boundaries
largely follow precinct lines.
  Evidence at trial similarly shows that considerations
other than race went into determining the Eleventh
District's boundaries.  For a -political reason--to
accommodate the request of an incumbent State Senator
regarding the placement of the precinct in which his son
lived-the DeKalb County portion of the Eleventh
District was drawn to include a particular (largely
white) precinct.  2 Tr. 187, 202.  The corridor through
Effingham County was substantially narrowed at the
request of a (white) State Representative.  2 Tr.
189-190, 212-214.  In Chatham County, the District was
trimmed to exclude a heavily black community in
Garden City because a State Representative wanted to
keep the city intact inside the neighboring First District.
2 Tr. 218-219.  The Savannah extension was configured
by -the narrowest means possible- to avoid splitting the
city of Port Wentworth.  4 Tr. 172-174, 175-178,
181-183.
  Georgia's Eleventh District, in sum, is not an outlier
district shaped without reference to familiar districting
techniques.  Tellingly, the District that the Court's
decision today unsettles is not among those on a
statistically calculated list of the 28 most bizarre
districts in the United States, a study prepared in the
wake of our decision in Shaw.  See Pildes & Niemi, 92
Mich. L. Rev., at 565.

                      C
  The Court suggests that it was not Georgia's legisla-
ture, but the U. S. Department of Justice, that effec-
tively drew the lines, and that Department officers did
so with nothing but race in mind.  Yet the -Max-Black-
plan advanced by the Attorney General was not the plan
passed by the Georgia General Assembly.  See 864
F. Supp., at 1396-1397, n. 5 (Edmondson, J., dissenting)
(-The Max-Black plan did influence to some degree the
shape of the ultimate Eleventh District . . . .  [But] the
actual Eleventh is not identical to the Max-Black plan.
The Eleventh, to my eye, is significantly different in
shape in many ways.  These differences show . . .
consideration of other matters beyond race . . . .-).
  And although the Attorney General refused preclear-
ance to the first two plans approved by Georgia's
legislature, the State was not thereby disarmed; Georgia
could have demanded relief from the Department's
objections by instituting a civil action in the United
States District Court for the District of Columbia, with
ultimate review in this Court.  Instead of pursuing that
avenue, the State chose to adopt the plan here in
controversy-a plan the State forcefully defends before
us.  We should respect Georgia's choice by taking its
position on brief as genuine.

                      D
  Along with attention to size, shape, and political
subdivisions, the Court recognizes as an appropriate
districting principle, -respect for . . . communities
defined by actual shared interests.-  Ante, at 15.  The
Court finds no community here, however, because a
report in the record showed -fractured political, social,
and economic interests within the Eleventh District's
black population.-  Ante, at 18.
  But ethnicity itself can tie people together, as volumes
of social science literature have documented-even
people with divergent economic interests.  For this
reason, ethnicity is a significant force in political life.
As stated in a classic study of ethnicity in one city of
immigrants:
-[M]any elements-history, family and feeling,
interest, formal organizational life-operate to keep
much of New York life channeled within the bounds
of the ethnic group. . . .
     -. . . The political realm . . . is least willing to
consider [ethnicity] a purely private affair. . . .
          .       .      .      .      .
     -[P]olitical life itself emphasizes the ethnic charac-
ter of the city, with its balanced tickets and its
special appeals . . . .-  N. Glazer & D. Moynihan,
Beyond the Melting Pot 19-20 (1963).
See also, e.g., E. Litt, Beyond Pluralism: Ethnic Politics
in America 2 (1970) (-[E]thnic forces play a surprisingly
persistent role in our politics.-); Ethnic Group Politics,
Preface ix (H. Bailey & E. Katz eds. 1969) (-[E]thnic
identifications do exist and . . . one cannot really
understand the American political process without giving
special attention to racial, religious and national
minorities.-).
  To accommodate the reality of ethnic bonds, legisla-
tures have long drawn voting districts along ethnic lines.
Our Nation's cities are full of districts identified by their
ethnic character-Chinese, Irish, Italian, Jewish, Polish,
Russian, for example.  See, e.g., S. Erie, Rainbow's End:
Irish-Americans and the Dilemmas of Urban Machine
Politics, 1840-1985, p. 91 (1988) (describing Jersey City's
-Horseshoe district- as -lumping most of the city's Irish
together-); Coveted Landmarks Add a Twist to Redis-
tricting Task, L. A. Times, Sept. 10, 1991, pp. A1, A24
(-In San Francisco in 1961, . . . an Irish Catholic [State
Assembly member] `wanted his district drawn following
[Catholic] parish lines so all the parishes where he went
to baptisms, weddings and funerals would be in his
district' . . . .-); Stone, Goode: Bad and Indifferent,
Washington Monthly, July-August 1986, pp. 27, 28
(discussing -The Law of Ethnic Loyalty- . . . a univer-
sal law of politics,- and identifying -predominantly
Italian wards of South Philadelphia,- a -Jewish Los
Angeles district,- and a -Polish district in Chicago-).
The creation of ethnic districts reflecting felt identity is
not ordinarily viewed as offensive or demeaning to those
included in the delineation.

                     III
  To separate permissible and impermissible use of race
in legislative apportionment, the Court orders strict
scrutiny for districting plans -predominantly motivated-
by race.  No longer can a State avoid judicial oversight
by giving-as in this case-genuine and measurable
consideration to traditional districting practices.
Instead, a federal case can be mounted whenever
plaintiffs plausibly allege that other factors carried less
weight than race.  This invitation to litigate against the
State seems to me neither necessary nor proper.

                      A
  The Court derives its test from diverse opinions on the
relevance of race in contexts distinctly unlike apportion-
ment.  See ante, at 9-10.  The controlling idea, the
Court says, is -`the simple command [at the heart of the
Constitution's guarantee of equal protection] that the
Government must treat citizens as individuals, not as
simply components of a racial, religious, sexual or
national class.'-  See ante, at 9 (quoting Metro Broad-
casting, Inc. v. FCC, 497 U. S. 547, 602 (1990)
(O'Connor, J. dissenting)) (some internal quotation
marks omitted).  But cf. Strauder v. West Virginia, 100
U. S. 303, 307 (1880) (pervading purpose of post-Civil
War Amendments was to bar discrimination against
once-enslaved race).
  In adopting districting plans, however, States do not
treat people as individuals.  Apportionment schemes, by
their very nature, assemble people in groups. States do
not assign voters to districts based on merit or achieve-
ment, standards States might use in hiring employees or
engaging contractors.  Rather, legislators classify voters
in groups-by economic, geographical, political, or social
characteristics-and then -reconcile the competing claims
of [these] groups.-  Davis v. Bandemer, 478 U. S. 109,
147 (1986) (O'Connor, J., concurring in judgment).
  That ethnicity defines some of these groups is a
political reality.  See supra, at 12-13.  Until now, no
constitutional infirmity has been seen in districting Irish
or Italian voters together, for example, so long as the
delineation does not abandon familiar apportionment
practices.  See supra, at 8-11.  If Chinese-Americans
and Russian-Americans may seek and secure group
recognition in the delineation of voting districts, then
African-Americans should not be dissimilarly treated.
Otherwise, in the name of equal protection, we would
shut out -the very minority group whose history in the
United States gave birth to the Equal Protection
Clause.-  See Shaw, 509 U. S., at ___ (slip op., at 4)
(Stevens, J., dissenting).

                      B
  Under the Court's approach, judicial review of the
same intensity, i.e., strict scrutiny, is in order once it is
determined that an apportionment is predominantly
motivated by race.  It matters not at all, in this new
regime, whether the apportionment dilutes or enhances
minority voting strength.  As very recently observed,
however, -[t]here is no moral or constitutional equiva-
lence between a policy that is designed to perpetuate a
caste system and one that seeks to eradicate racial
subordination.-  Adarand Constructors, Inc. v. Pe-a,
ante, at ___ (slip op., at 2) (Stevens, J., dissenting).
  Special circumstances justify vigilant judicial inspec-
tion to protect minority voters-circumstances that do
not apply to majority voters.  A history of exclusion from
state politics left racial minorities without clout to
extract provisions for fair representation in the lawmak-
ing forum.  See supra, at 4-6.  The equal protection
rights of minority voters thus could have remained
unrealized absent the Judiciary's close surveillance.  Cf.
United States v. Carolene Products Co., 304 U. S. 144,
153, n. 4 (1938) (referring to the -more searching
judicial inquiry- that may properly attend classifications
adversely affecting -discrete and insular minorities-).
The majority, by definition, encounters no such blockage.
White voters in Georgia do not lack means to exert
strong pressure on their state legislators.  The force of
their numbers is itself a powerful determiner of what
the legislature will do that does not coincide with
perceived majority interests.
  State legislatures like Georgia's today operate under
federal constraints imposed by the Voting Rights
Act-constraints justified by history and designed by
Congress to make once-subordinated people free and
equal citizens.  But these federal constraints do not
leave majority voters in need of extraordinary judicial
solicitude.  The Attorney General, who administers the
Voting Rights Act's preclearance requirements, is herself
a political actor.  She has a duty to enforce the law
Congress passed, and she is no doubt aware of the
political cost of venturing too far to the detriment of
majority voters.  Majority voters, furthermore, can press
the State to seek judicial review if the Attorney General
refuses to preclear a plan that the voters favor.  Finally,
the Act is itself a political measure, subject to modifica-
tion in the political process.

                      C
  The Court's disposition renders redistricting perilous
work for state legislatures.  Statutory mandates and
political realities may require States to consider race
when drawing district lines.  See supra, at 2-3.  But
today's decision is a counterforce; it opens the way for
federal litigation if -traditional . . . districting principles-
arguably were accorded less weight than race.  See ante,
at 15.  Genuine attention to traditional districting
practices and avoidance of bizarre configurations seemed,
under Shaw, to provide a safe harbor.  See 509 U. S., at
___ (slip op., at 15) (-[T]raditional districting principles
such as compactness, contiguity, and respect for political
subdivisions . . . are objective factors that may serve to
defeat a claim that a district has been gerrymandered
on racial lines.-).  In view of today's decision, that is no
longer the case.
  Only after litigation-under either the Voting Rights
Act, the Court's new Miller standard, or both-will
States now be assured that plans conscious of race are
safe.  Federal judges in large numbers may be drawn
into the fray.  This enlargement of the judicial role is
unwarranted.  The reapportionment plan that resulted
from Georgia's political process merited this Court's
approbation, not its condemnation.  Accordingly, I
dissent.

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