JOHNSON, SPEAKER OF THE FLORIDA HOUSE OF REPRESENTATIVES v. DE GRANDY
Legal provision: Voting Rights Act of 1965
Argument of Joel I. Klein
Chief Justice Rehnquist: We'll hear argument now in three consolidated cases.
Number 92-519, Johnson v. De Grandy; 92-593, De Grandy v. Johnson; 92-767, United States v. Florida.
Mr. Klein: Mr. Chief Justice, and may it please the Court:
The district court incorrectly held that Florida's legislative districting plan violates section 2 of the Voting Rights Act by diluting the votes of Hispanics living in Dade County.
The Florida plan provides Dade County Hispanics with a proportional share of majority districts, and we submit that such an allocation necessarily gives them the same opportunity as others to elect voters, to elect representatives of their choice, which is all that section 2, by its terms, requires.
The United States agrees with us that proportionality is sufficient, but it argues that we must show proportionality with respect to all Hispanics in Florida, not just those living in Dade County.
But the problem with that argument is that it's flatly inconsistent with this Court's decision in Gingles, which held that any group claiming vote dilution must show that it is sufficiently large and geographically compact to constitute a majority in a single-member district.
In Florida, there's only one such group of Hispanics who can meet that threshold requirement, and those are the Hispanics living in Dade County, and they, as I've said, already have proportional representation.
The remaining Hispanics in Florida are so geographically diverse that it is impossible to construct anything remotely resembling a compact district in which they could be a majority.
Now, the United States' response is, well, you can create more districts for Hispanics in Dade County.
But that simply misses the point of Gingles, which is, in the absence of compactness, the State plan simply doesn't dilute Hispanic votes, and therefore there's no violation under section 2 and no remedial districts in any location are required.
The United States' argument also has the other problem of being incompatible with the text of section 2, which protects a right to elect representatives, not a right to have representatives elected by others of the same race who may live hundreds of miles away in the State.
A concept that the United States calls, quote, virtual representation, but which is nowhere mentioned in the statute, legislative history, or numerous decisions of this Court addressing section 2.
So, if I can, let me state the principle that we think governs the appeal, and that is that a State plan satisfies section 2 if it provides a proportional share of majority districts to each geographically compact group of minorities, something that the Florida plan indisputably does.
If I might, now, let me return--
Unknown Speaker: Mr. Klein, I assume that you are asking us to reject this notion of the Statewide frame of reference totally, for this case and for every case?
Mr. Klein: --I think you have to reject it in the following sense.
Unless you can show reasonable geographic compactness throughout the State, which you might be able to show in a case like Bandemer where there were 59 percent Democrats or Republicans.
Unless you can show that, I think you have to reject it and I think Gingles requires it.
So I think that is my position.
And, indeed, I would suggest to the Court, if one looks at the array of voting rights cases, from '65 forward, frankly, they are always brought locale by locale.
They may be a multidistrict situation, but they're not brought in a Statewide basis for precisely this reason.
Unknown Speaker: Well, even... I had thought perhaps a Statewide basis was the proper focus.
But if the proof at trial of those complaining is limited to, as it was in this case, Dade County, I'm not sure that we need to go beyond that now.
Mr. Klein: I agree with you, Justice O'Connor, that the proof in this case was limited to Dade County.
And I think it's sufficient to dispose of this appeal.
Unknown Speaker: And that's enough to dispose of the case, is it not?
Mr. Klein: It is.
I do want to make the added point... it absolutely enough, but I do want to make the added point that there would be no possible reason for a remand.
Because it's not just a failure of proof, it's that you cannot prove geographical compactness, a fact that the United States concedes by suggesting that you basically concentrate additional districts in Dade County.
But I think you're exactly right, Justice O'Connor, and that's why I'd like to start with the district court's opinion, which, after all, is the case that brought us up here on appeal.
And make no mistake about it--
Unknown Speaker: And the proof, by everybody, basically focused on Dade County.
Mr. Klein: --Absolutely.
The United States contests otherwise, but I think there's no support in the record.
First of all, the district court's opinion, of course, talks only about Dade County.
It made the Gingles compactness, the Gingles cohesion, and the Gingles white-bloc voting findings in Dade County.
It found vote dilution of voters in Dade County.
The United States went first.
They had the burden of proof.
They put on evidence only about Dade County.
We moved for a directed verdict.
They said they proved Gingles in Dade County.
It seems to me that on that record the only issue is vote dilution in Dade County.
Now, as to that, which the district court, in fairness, did address.
Where its error is is in its notion that somehow proportionality isn't a defense.
The district court said, look, we applied Gingles two and three, and we find that there's cohesion and white-bloc voting.
We can create more districts than the State did in Dade County, and so we're going to impose 11 rather than 9 districts.
That is, of course, a maximization principle, and it would apply equally well to any municipality.
If you had a city council with five people on there and you had a 40 percent minority in the city, if they lived compactly you could create, just as a matter of math, three out of five districts.
It happens every time.
Now, our submission would be section 2 obviously doesn't require that.
Where the district court went wrong is in thinking that you don't have to temper the Gingles factors by a proportionality finding, something that the Court in Gingles itself obviously did.
And the reason that is, is section 2 provides a comparative standard.
In other words, you have to have the same opportunity as others.
Well, when you create 11 out of 18 districts in Dade County that are majority Hispanic, you are diminishing the opportunity of white voters.
That's exactly how you do this.
And therefore, what you've done is you've created a far greater opportunity for Hispanic voters than you would for white voters, and that's not what the statute requires.
So I think proportionality is an absolute touchstone, it has to be.
Now, the De Grandy people--
Unknown Speaker: It's sort of curious in a statute that absolutely forbids that.
Do you find any irony in that?
Mr. Klein: --I don't think the statute forbids that, Justice Scalia.
I think the statute says only that it doesn't require it.
And, indeed, our argument is fully consistent with that.
Unknown Speaker: You're saying it's the touchstone.
Mr. Klein: I'm saying--
Unknown Speaker: How can it be the touchstone if it doesn't require it?
Mr. Klein: --It's the touchstone as a maximum.
That is to say in order to... I think this Court in Gingles said the following, and I think this is exactly right, that Gingles stands for the proposition that a large, cohesive, compact... large, cohesive, compact majority does have a right to proportional representation.
That's what Gingles says is the equal opportunity.
Now, that means not mandated proportionality, as the United States says.
You've got to show large, compact, and cohesive.
In this case where there was large, compact, and cohesive, we gave them proportionality.
Whether less than proportionality would have sufficed under the statute is an issue not presented by this case, because everyone concedes in Dade County that there is proportionality.
And our only point is that in order to preserve the equal opportunity language, you have to accept proportionality as an upper limit in terms of what the statute requires, whether the State--
Unknown Speaker: Well do you take... excuse me, do you take the position that it is... necessarily, it is a dispositive upper limitation, or do you say that it is a relevant consideration in deciding what the upper limit should be?
Mr. Klein: --No, I think... I think it is under section 2.
I think it's dispositive.
Unknown Speaker: You say it is dispositive.
Mr. Klein: And I think that's true in a single district case, in contrast--
Unknown Speaker: Is it fair to say that in this case we would not have to go that far to accept your position, because I gather in this case, basically, we've got a record in which there does not seem to be any other explanation than a maximization principle.
So we would not have to hold that it was dispositive in every case in order to reject the maximization theory.
Mr. Klein: --You wouldn't.
But let me say why I think that's... why it would be hard not to accept the principle as a general principle.
If you take a situation and you say to a... let's say this is Dade County, and you say we have 9 out of 18 districts that are majority Hispanic, that's the way we design our plan.
I find it hard to imagine... assuming that there's not some other glitch like people are prevented from getting to the polls, how could that not provide people in Dade County with an equal opportunity as other members of the electorate.
By hypothesis, if Hispanics are cohesive, they will win 9 out of 18 districts.
That is the most that a white majority could do.
Unknown Speaker: So you're... in so many words you're saying that this is strictly a results kind of test.
I mean equality--
Mr. Klein: Well, I think that--
Unknown Speaker: --Is a bottom-line equality, and it has nothing to do with discrimination that may have occurred, I think, in Judge Easterbrook's phrase, along the line.
Mr. Klein: --Well, I think--
Unknown Speaker: In other words, if you get a result which is consistent with proportionality, it doesn't matter that that result may, in fact, have been arrived at through various discriminations along the way which just happen to work out numerically in a way which, on the face of it, gives equality.
Mr. Klein: --It depends what you mean, Justice Souter.
And what I mean by that is in a single district plan it's very difficult to see, when you have a compact group and you allocate districts on a proportional basis, what kind of steps in the process might be discriminatory.
If there are discriminatory steps, then I would concede you raise a Fourteenth Amendment issue.
But I think--
Unknown Speaker: But not a section 2.
Mr. Klein: --Section 2, it's absolutely clear.
Indeed, the whole amendment in 1982 was that it is effects that matter.
And I would submit to the Court, if you have effects without intent, you lose under section 2, there's a violation.
And if you have intent without effects, there is no violation.
I think that's absolutely clear and that's what the words of the statute say.
Unknown Speaker: You don't really disagree, as I understand it, with the maximization argument made by the Government.
Your... you concede maximization, don't you?
You just say the maximization only has to occur within the... within the district where there is a cohesive racial group.
Mr. Klein: No, I don't--
Unknown Speaker: And then that district has to be maximized.
Isn't that correct?
Mr. Klein: --I don't concede that at all, because--
Unknown Speaker: Well, what do you mean by proportional representation?
Mr. Klein: --Because what you had here was more than proportional.
Maximization is what the district court here did.
Unknown Speaker: Oh, maximization certainly doesn't mean... doesn't mean that they're going to win if they have 1 vote against 100.
It simply means that on a one person, one vote basis, they will have the number of representatives that is the same percentage of the representatives as their votes are of the total votes.
That's all maximization is.
It doesn't mean they have to get all the representatives, certainly.
Mr. Klein: If that's what you mean by maximization, we're in complete agreement.
Unknown Speaker: Well, what does anybody else mean by it?
Mr. Klein: Well, I think what people mean by maximization, and the lower courts have used the term this way, it is possible in Florida to create 11 majority House districts.
That is even though Hispanics have half the people in Dade County, you can create 11 districts.
That is a simple numerical proposition.
And so if you truly wanted to maximize minority representation, you could give them a disproportionate number of districts.
Now, all we're saying is that's not what section 2 requires.
Unknown Speaker: Oh, I see, okay.
But you agree that it has to be maximized up to the point where they can elect as many representatives as they are numerically of the... racially of the population of the State or of the subunit that has a cohesive group.
Mr. Klein: Where they're compact.
Unknown Speaker: Yeah.
Mr. Klein: Yes--
Unknown Speaker: Allotted might be a better word than maximized, it seems to me, in that situation.
Mr. Klein: --I think that... I think that's a fair word.
Now, let me then say, I think that... that, I think, does dispose of the issues in Dade County.
Unknown Speaker: Just on the maximization point, if a State chose voluntarily to maximize in this instance, would there be a constitutional or a section 2 violation, in your view?
Mr. Klein: Well, I don't think there'd be a section 2 violation, because I don't think majorities have a cause of action under section 2.
I do think it raises a serious constitutional question under Shaw v. Reno, a question that I don't think is--
Unknown Speaker: Suppose the districts were compact?
Mr. Klein: --Even if they were compact, it seems to me you get into a question of whether the creation of a disproportionate number of minority districts is something akin to affirmative action.
If the Voting Rights Act requires that and if, under Metromedia, Congress has that power, I guess the answer is yet... yes.
But, fortunately, none of that is presented--
Unknown Speaker: When you said you don't think the majorities have a cause of action, you decide the majority by looking Statewide or at Dade County?
Mr. Klein: --I think... when I say the majority, I mean white people.
I think you have--
Unknown Speaker: I know.
But there's... I don't think the majority... I don't think the white people are a majority in Dade County.
Mr. Klein: --I don't think that matters under section 2, Justice Stevens.
Unknown Speaker: Because section 2 looks at the entire State, is that the reason?
Mr. Klein: --No.
Section 2 covers protected minorities.
By that, it means blacks, Hispanic, Asians.
It does not apply to whites.
It doesn't matter--
Unknown Speaker: It wouldn't apply to whites even if whites are a minority in the covered jurisdiction.
Mr. Klein: --Right.
Unknown Speaker: You mean nationwide protected minorities.
Mr. Klein: Protected minorities is what Congress had in mind.
That is, it gave a cause of action here to blacks, to Hispanics... as the Court may remember, they added what they called language minorities.
Unknown Speaker: I understand.
Mr. Klein: But there's never been a suggestion... and, of course, it's not presented by this case, but there's never been a suggestion that white voters would have a cause of action on section 2.
Unknown Speaker: Is--
Mr. Klein: Which was designed to implement... originally, to implement the Fifteenth Amendment--
Unknown Speaker: --But under the plain language of the statute I suppose there would--
Mr. Klein: --Well, I think--
Unknown Speaker: --If you discriminated on account of race, or--
Mr. Klein: --Well, the plain language of the statute talks about protected minorities.
Unknown Speaker: --Right.
Mr. Klein: And what I'm submitting to you is that the term protected minorities really does mean a discreet group: that is blacks, Hispanics, and so forth.
Unknown Speaker: Would it comply with the statute, then, in... say Dade County was electing just county officers rather than the State legislature, if they contrived a plan that denied whites a majority in any district?
Mr. Klein: I think it probably would, but I think that would raise an equal protection question that Justice Kennedy--
Unknown Speaker: But you think it would comply with the statute because whites are not a group that's defined by color.
Mr. Klein: --That is, it's not a group that is protected with the term protected minority under the statute.
That's my understanding of the legislative history.
And as I say, the genesis of section 2--
Unknown Speaker: But you have to go to the legislative history to find... to come to that conclusion.
Mr. Klein: --Well, there is... the term in the statute is protected minority.
Unknown Speaker: Where is that term?
It's not in... it's not in section 2.
I mean, that's not in section 2, so.
Section 2 speaks of any citizen, which is what one would have thought it said:
"which results in the denial or abridgment of the right of any citizen of the United States to vote on account on account of race or color. "
Mr. Klein: Well then I misspoke myself, then.
Then it might well apply, Justice Stevens.
I think the legislative history would make it... would make it clear this was designed to implement the Fifteenth Amendment and therefore had a specific purpose.
But I guess it is possible, then, under the literal language of the statute it does talk about members of a class of citizens protected by subsection (a), and I think the general reading of that has been that those are minority citizens in the United States.
Unknown Speaker: Is it your view that the cohesiveness of the groups... there was some issue about that in this case, that that's irrelevant to your analysis.
The question of... is are we talking about a protected group, are the Hispanics in Dade County and in other parts of the State cohesive.
Mr. Klein: We concede that Hispanics in Dade County are cohesive within Dade County.
We vigorously dispute the proposition that Hispanics in Dade County are cohesive with other Hispanics Statewide.
Unknown Speaker: But on your... the view you stated earlier about it's not a compact group, then the lack of cohesiveness, the lack of identity, of necessary identity of interest is kind of surplusage.
Mr. Klein: That's correct.
That is, what our submission is is the failure of the United States to prove cohesion Statewide under its terms, means that it hasn't stated a Statewide claim.
It says in order to show a Statewide claim, you'd have to prove cohesion Statewide and white-bloc voting State-wide.
We say it never proved either of those things, and a result of that it cannot prove up the very claim that it is seeking to advance in this litigation.
However, even if it could prove up both of those points, it would still fail because it failed to prove the first Gingles factor of compactness on a Statewide basis.
Instead, what it did was basically to run directly to something the statute disavows, and that is proportional representation.
It said we don't care where Hispanics live, their vote is diluted unless they get more districts in Dade County because they're entitled to Statewide proportionality.
I think that is so flatly inconsistent with Gingles.
The United States says, well Gingles is just a question of remedy, can you fit these in.
But that's not what the opinion says.
The opinion says that if you don't show you're a compact group, you have no cause of action under section 2.
Indeed, a unanimous Court in Growe v. Emison said failure to prove the first Gingles factor means no violation.
And if there's no violation there cannot be a remedy, we submit.
It's not a question of whether you can fit those districts someplace else in the State.
Unknown Speaker: --On this record, do you... can you say that Florida did have the obligation to structure districts with proportional representation in Dade County itself, or could they have had a luck-of-the-draw system?
Mr. Klein: Well, let me say it depends what one means by luck-of-the-draw system.
I think what I would say is the following, is that the Hispanics in Dade County are reasonably compact, they are cohesive, and there's white-bloc voting.
Therefore it seems to me, in drawing district lines you have to take into account these communities of interest.
Unknown Speaker: Are those premises an assumption that the State has simply accepted in this case, or were they proven?
Mr. Klein: They were proven, we believe, in this case.
And we think that they are not... they are accurate.
That is they were... we've never disputed that those criteria are met.
Now, I think a very different question would be done if a State, for example, took a computer and simply, truly drew circles on a map as a way of drawing lines and in no way took into account race.
But in practicality, Justice Kennedy, States do take into account community interests, including both white and black and religious and otherwise, and as long as you are reasonably compact, as Hispanics in Dade County are, we think that's what the Voting Rights contemplates... Act contemplates, and that's reasonable.
So we are not unhappy with proportionality as a solution here.
We think it's a fair one.
It's just when the United States decides to say that there are another few hundred thousand Hispanics who are dispersed over another 12 million people in Florida and we have to give them proportional representation.
That, we think, can't be countenanced.
And we think, finally, in that regard... let me just make two last points.
One, it seems to me the proof of the pudding here is in the bizarre result the United States is forced to embrace.
Understand, in order to get to 11 House and 4 Senate seats in Dade County, they have to bring in voters all over... actually people all over the State of Florida into their case.
And then what do they say?
Not that those voters get a chance to vote for anyone.
Those voters cannot vote in these minority districts, but people in Dade County who already have a proportional group of representatives, they're going to get extra people.
And the United States says, well, that's because all these people of the same race have a common interest.
But that seems to me to be a concept so repudiated by this Court's decisions and by the so-called proportionality proviso in section 2 itself.
So I think that is an argument that really falls of its own weight.
The final point I would make--
Unknown Speaker: I'm not sure... but isn't that the same principle that you're accepting within a district?
Mr. Klein: --I think it is within a district.
Unknown Speaker: That is, the vote of no individual black person or other minority person is increased at all, but that person is benefitted only that the votes of others, not necessarily himself, is augmented.
Mr. Klein: I don't--
Unknown Speaker: He may choose to vote for... you know, for not the black candidate but a white candidate.
Mr. Klein: --But the assumption is... this is a group right in the following sense.
Unknown Speaker: It is a group right, exactly.
Mr. Klein: And the group... you've got to have a group of people.
If you are black or you're Hispanic, you've got to have a group of people that you say are politically cohesive.
And if you can show me that you're going to have 50 plus percent, basically... that's what Gingles says, then you are able to, quote, elect representatives of your choice.
The particular individual in the district, the black individual may vote completely contrary to.
But what cohesion says and what compactness says is that you're going to be able, as a group, to elect it.
Now, looking at--
Unknown Speaker: You're saying this is the wrong group.
Mr. Klein: --They're a different group.
Unknown Speaker: It's not an individual right, you're saying.
It's a different group that they belong to.
Mr. Klein: They're a different group, entirely different group.
And their group gets a representative in Dade County.
Now the last--
Unknown Speaker: And have we said in our cases that the equal protection clause grants group rights?
We've never said that.
Mr. Klein: --I don't think you've ever said that in equal protection cases.
Unknown Speaker: I thought the whole underpinning, the whole premise, the whole principle of the Fourteenth Amendment was that people are treated as individuals.
Mr. Klein: I think that's right, but I think that is not the premise of the current Voting Rights Act.
I think the current Voting Rights Act does talk in terms of the ability to elect people of your choice.
And if it says that, that seems to me that you have to have a group, because one voter simply cannot elect people of his or her choice.
And so I think the necessarily consequence... necessary consequence of the Voting Act is that it is a group right.
Unknown Speaker: Well you have... it's a capacity to form a group, isn't it?
I mean isn't that perhaps the way to reconcile it with traditional... the traditional Fourteenth Amendment jurisprudence.
Mr. Klein: Well, I don't know that it has to be reconciled in the following sense.
I think that Congress... obviously this Court in the Bolden case had reconciled it with the Fourteenth Amendment, and Congress went beyond that when it amended the statute.
And it seems to me at least the decision--
Unknown Speaker: Well, the further you get beyond it, the riskier it is, though.
Mr. Klein: --I agree with that, and that's what I think the principle of the Shaw decision was last term.
That is, I think there is a point where Congress' ability to fashion group rights may run into an equal protection problem.
But I don't think any of that's presented here.
The last point, if I might, is even if we were to assume the test of Statewide proportionality here, there's absolutely no question that Florida's plan provides Statewide proportionality to Hispanics on the basis of citizenship.
That is to say that there are... approximately 7.15 percent of the State are citizens, are Hispanics.
That's not just in Dade, but Statewide.
And the number of seats in the House and Senate exceeds 7.15 percent.
And there's no question here what the Voting Rights Act covers.
It covers the rights of citizens, not the rights of people, not the rights of people of a certain age, but the rights of citizens.
Unknown Speaker: I think the Government argues... or perhaps it's the Appellee who argues in response to that that Florida has chosen to draw its districts in terms of total population rather than people of voting age, citizens, and so it can't complain if the Voting Rights Act case is fought out along those lines.
Mr. Klein: I don't... I don't think that's a correct... I think that's what they argue, Mr. Chief Justice.
I don't think they're right about that.
I think this Court has said for one person, one vote allocations you can use population, and Florida did that and I don't think there's any problem.
Now, the question in this case is do Hispanic citizens in Florida... because they're now making a Statewide claim, they're no longer making a district claim... do they have less opportunity than other members of the electorate to elect representatives of their choice?
Now, what I submit is if you have 7 plus percent of the electorate, of the citizens, and you've got 7 plus percent of the seats, then you have exactly the same opportunity.
And that has nothing to do with how you district, because we're now making a Statewide claim.
And so under any view of the facts, we submit that this case should render a finding of no liability with respect to either the Senate or the House plan, and that the judgment with respect to the Senate plan of no violation was correct, and with respect to the House plan should be reversed.
I'd like to reserve the balance, Mr. Chief Justice.
Unknown Speaker: Very well, Mr. Klein.
Mr. Feldman, we'll hear from you.
Argument of James A. Feldman
Mr. Feldman: Mr. Chief Justice, and may it please the Court:
This case is not about the Dade County Council, but about the Florida Legislature.
It will always be the case that when you're measuring whether a group is under or over represented within a larger jurisdiction, there will be some parts of the jurisdiction where the minority group is under represented and other parts of the jurisdiction where it's over represented.
The whole point of looking at this to determine whether the minority group has an equal opportunity to participate and elect, is to determine when you look at those electoral opportunities divided up over the jurisdiction as a whole, of whether it's equal.
Unknown Speaker: How do you square that with the compact and cohesiveness requirement of Gingles?
Mr. Feldman: I actually don't think there's any problem in squaring that with those requirements.
The compactness requirement in Gingles, the Court was quite explicit in stating why that requirement was necessary, and that was to show that there is some area of the jurisdiction where the minority group is sufficiently compact that it could form a district if the State wanted to do that.
Unknown Speaker: See, but once you have some compact group that can sort of carry the banner for the minority Statewide, you can give that compact group as many votes as is necessary to represent the minority Statewide is your argument.
Mr. Feldman: No, that... I wouldn't put it that way.
Within Gingles itself there was no evidence at all... or in any of the cases that have come up since Gingles... concerning how minorities were distributed throughout whatever jurisdiction it was.
There may have been a minority in one of the districts in Gingles who was all the way over on the other side of the jurisdiction at issue there, but that fact really had no bearing.
The point of the first Gingles requirement is could you draw a district or are the problems that are caused... vote dilution here, are they caused by just the residential dispersion.
Could I... I would like to--
Unknown Speaker: So you are providing a remedy to persons who have not been wronged.
Mr. Feldman: --No, I don't think... I don't think that's correct.
Let me give you an example that may illustrate it.
If you look at South Florida there are 20 districts in the House that border... that touch on Dade County and that together comprise all of Dade County and a few surrounding areas.
If you just move up the Florida coast one more county to Broward County, or even... the effect is stronger if you move up two counties to Palm Beach County.
In that case you have all of South Florida, and if you were to look at that area, for instance, the minority Hispanics would be substantially under represented, in fact more so than we... than the two seats that we're talking about here.
There's no way to arbitrarily divide... to draw... there's no reason to take a single line of those 18 districts which themselves don't respect... I'm sorry 20 districts which themselves don't respect county lines in the first place.
There's no reason to take that line and say well we can only look at the vote dilution that has occurred within that area.
Unknown Speaker: But, Mr. Feldman, isn't that the line you drew in your complaint?
Didn't the United States' complaint speak in terms of the 20 district Dade County area?
Mr. Feldman: Yes.
You do have to look at that area for purposes... and particularly you have to look at particular parts of that area to see that the way that the State drew the lines there to fragment and impact the Hispanic population, to... which had the effect of giving them less seats than they would have gotten.
That is the area... just as in any Gingles case there will be one area where you can draw the lines where the minority... that would give the minority... that you can show the minority group could have been given that district.
Unknown Speaker: Where was this State frame of reference stated in the complaint?
Mr. Feldman: The... I think the ultimate allegation was that Hispanics in the State of Florida are denied equal opportunity to participate and elect candidates of their choice.
The complaint also said that Hispanics in the State of Florida are cohesive.
It said that Hispanics in the State of Florida have suffered--
Unknown Speaker: What was the proof of that other than... you state in your brief, for example, English language initiatives, language-based employment discrimination.
If one were to make a list of cohesiveness or lack of cohesiveness, one would have a pretty fair number of entries on the other side as well, would not that be so in this case?
Mr. Feldman: --I think you have to look at the record of this case as it comes to this Court.
There really... there were... this was not all that happened in the case was in 8 days of, or 5 days or whatever it was of trial here.
There had previously been a congressional phase of the case.
The same district court sat on the congressional phase of the case and made detailed findings about the State of Florida in an opinion that's in the joint... the Jurisdictional Statement Appendix here.
Unknown Speaker: Well, other... what other than the two examples that you put in your brief?
Mr. Feldman: Well, in every... I guess what I'm trying to say is that in the Congress... it was already decided before the trial started here.
The court had already decided that there was racially polarized voting, one segment of which is that the Hispanics were cohesive.
There were extensive studies of elections throughout the State of Florida that was the primary basis for that conclusion.
I mean, I could give you some examples.
First of all, there was the Court's opinion, which we cite in our brief.
There was a special master who was appointed to take evidence in that case at Joint Appendix 61.
He comes to the same conclusion.
There was an independent expert who was appointed to develop a plan in that case.
At 101 to 103 of the Joint Appendix he says:
"It is beyond dispute that there's racially polarized voting whereby African-Americans or Hispanics vote one way and whites or Anglos vote another. "
And he's talking about the State of Florida.
Unknown Speaker: Was there evidence that there is a greater identity between the Hispanics in other parts outside Dade County and African-Americans than with Hispanics in Dade County, that the identity of those two groups... so if you were going to pick a group to bracket the Hispanics outside Dade County, it would not be the Hispanics inside Dade County, but you would find more cohesiveness with African-Americans inside Dade County?
Mr. Feldman: --I think there was some anecdotal evidence that there were various segments of the Hispanic community, that it does not vote cohesively with the community as a whole.
It is... the statute does protect Hispanics... I think persons of Spanish descent is the way the statute--
Unknown Speaker: But didn't the district court make a finding to that effect?
Mr. Feldman: --The district court finding was that there is racially polarized voting in the State of Florida.
Unknown Speaker: But didn't it also... didn't it also point out just what Justice Ginsburg said, that the Cuban Hispanics in Dade County tend to vote quite different from non-Cuban Hispanics?
Mr. Feldman: I don't believe the district court did make that finding.
It did refer at one point... it referred to the testimony of, actually, one of the plaintiffs' experts, that Hispanics in Dade County have somewhat different voting patterns in terms of party affiliation than Hispanics in the rest of the country.
I don't take that to read the rest of Florida, especially in light of the consistent findings that Hispanics vote cohesively in the State of Florida.
In addition, the court looked at all of these various subgroups of Hispanics.
Unknown Speaker: What does it mean to vote cohesively?
Does it mean, for example, to vote for one party rather than the other?
Mr. Feldman: I mean I think that might be a factor.
But the way it's commonly proven is you look at studies of how people... of how groups vote.
And what was found in Florida is that very consistently Hispanics want to elect Hispanics as candidates, throughout the State, and they do, and the only time when they have the opportunity to do that is when they're in the majority district.
In addition, there are Statewide elections, and you can look and see how the Hispanics in the State as a whole vote on those elections.
Unknown Speaker: They must want to elect Hispanics.
Mr. Feldman: They don't--
Unknown Speaker: It isn't enough if all... say all Hispanics vote Republican or, you know, all of some minority... some other minority votes Democratic all the time?
Mr. Feldman: --No.
Unknown Speaker: That's not enough.
They have to vote for a member of their race, that's required.
Mr. Feldman: --No, I don't think that's required, but I think that that may be proven in a given case.
Unknown Speaker: But it's not required.
Mr. Feldman: No.
Unknown Speaker: It would be enough if they always vote for one party.
Mr. Feldman: I think, yeah.
I don't know if... I don't know if just showing a party affiliation would necessarily prove anything.
It may be that people in different--
Unknown Speaker: Well, then what is it?
If that's not enough, they have to vote... want to vote for a person of their race, is that it?
Mr. Feldman: --No, I don't think that that's it.
I think, as this Court... this Court in Gingles said that it was the candidate... it was the race of the elector, not the race of the candidate that's what you look at here.
I think it... looks and sees whether they tend to vote for the same people.
If they tend to vote for the same people, you say that they vote cohesively.
If not, then not.
Unknown Speaker: You said a minute ago that Hispanics were not protected.
But what was the group that is protected?
Mr. Feldman: I think... I believe the statutory language says persons of Spanish descent.
Unknown Speaker: Where is that?
Where does that statute say which people are entitled to equal voting opportunity?
Mr. Feldman: I think--
Unknown Speaker: As opposed to everybody, just certain groups, where it that?
Mr. Feldman: --No, everybody's entitled to equal voting opportunity, but there are particular... the statute protects against unequal voting opportunities on account of race, for example, and that would affect everybody.
Unknown Speaker: Right.
Mr. Feldman: It also specifically uses the term persons protected by... let me just see, it says by...
"in contravention of the guarantees set forth in. "
--this is in section 2(a)... it says
"of the guarantees set forth in section 1973b(f)(2) of this title. "
And that provision has to do with language minorities, and I believe--
Unknown Speaker: Oh, okay.
Mr. Feldman: --For purposes of this section the term language minorities means a number of different groups including--
Unknown Speaker: Right.
Mr. Feldman: --Or persons of Spanish heritage.
Unknown Speaker: May I ask just as... out of curiosity, what is the defining characteristic of the Hispanic group we're talking about?
Is it the language in 1973, or is it the race or the color?
Mr. Feldman: It's the... it's the fact... I mean, technically, it is that they are of Spanish heritage, that's the statutory term.
Unknown Speaker: The statute refers to Spanish heritage.
Mr. Feldman: Yes.
But that... it is clear that what Congress had... that term is used in the context of a provision... a different provision of the statute that talks about the rights of language minorities and the problems that have been caused by discrimination against people on the basis of the fact that they speak a different language.
Unknown Speaker: Well, what provision of the statute is it that refers to people of Spanish heritage?
Mr. Feldman: It's--
Unknown Speaker: Something in 1973?
Mr. Feldman: --It's... 42 U.S.C. 1973 aa-1a(e).
I'm sorry it's such a complex... and, actually, the term is also, for instance, in the 1973 1(c)(3), and I think it's probably in a couple of other provisions as well.
Unknown Speaker: And how does that become relevant to the race or color criterion of section 2?
Mr. Feldman: Because section 2 protects not only for discrimination or unequal electoral opportunities on the base of race or color, but also in this provision... where it adds.
Unknown Speaker: Oh, just the 1973(b), I see.
Mr. Feldman: Right.
And that, in essence, as language of minorities.
But in any event, the evidence at... the evidence at the congressional hearing, and, in fact, some of the evidence from the State's own expert at the legislative... at this, at the hearing that was held immediately before the judgment in this case, clearly showed... I mean everyone agreed that Hispanics vote cohesively in the State of Florida, given all of this voluminous data.
Unknown Speaker: Well, Mr. Feldman, I assume we are looking at this case and this judgment, right?
Mr. Feldman: That's right.
Unknown Speaker: And did the district court in this case that we're reviewing make any vote dilution findings outside of Dade County?
Mr. Feldman: The district court... I think what the district court, having made the number of findings... it did in this very case.
I mean the record in the congressional case is in this court.
It was from the same complaints and it is the same case and the same parties.
In that case, I think they made all... they made... they had made a wide variety of findings about elections and voters in the State of Florida.
When they started the hearing in the legislative case, as a matter of fact Judge Hatchett said:
"This court has made findings regarding elections in the State of Florida. "
This is volume 1 of the transcript, page 82.
"Now we talk about whether we're talking about a different State and different voters, but the voters we're talking about are the same ones and we made very detailed findings regarding those voters in elections. "
Having done that, what the Court concentrated on, I think, in this case was the question of whether you really... they had made most of the necessary findings... of whether there was any reason to alter those findings.
Or, in particular, whether the plaintiffs could show that you really could draw additional districts in Dade County, as they had alleged in their complaint.
That there was a lot... most of... I think it's fair to say that most of the evidence at trial centered around the issue of whether those additional districts would be compact, whether Hispanics in Dade County were cohesive.
Because if they weren't cohesive, the Hispanic districts wouldn't... they wouldn't be able, if they formed their own districts, to elect the candidates of their choice.
And whether they would... those districts would have Hispanic majorities, that was what most of the trial was about.
Unknown Speaker: Mr. Feldman, on page 40a of the Appendix to the Jurisdictional Statement where you get to part B of the court's opinion, that first sentence is the plaintiffs... that the Dade County's...
"the Dade County's Hispanic population is sufficiently large and geographically compact to constitute a majority in 4 Senate and 11 House districts. "
That sounds to me as if they were thinking in terms of Dade County and not of the State at large.
Mr. Feldman: I think... I think it may be inartfully drawn.
Unknown Speaker: But it's very difficult to contend otherwise, at least with respect to that particular sentence.
Mr. Feldman: I think what they meant in that sentence was that the vote dilution that had occurred... I mean, what you had was a practice where Hispanics could only elect other Hispanics... or could only elect candidates of their choice where they were the majority... where they were in the majority in a district.
And that the State had deliberately drawn lines to fragment Hispanic populations in Miami... or the State had drawn lines that had the effect of fragmenting Hispanics in the State of Miami... I'm sorry, excuse me, in Dade County.
And what the court was saying was that was where the dilution... you could kind of... you could point to it there.
And it was focusing on all of the evidence that it heard at trial about whether those districts were viable and whether... and whether that fragmentation of the Hispanic populations had occurred.
Unknown Speaker: Well, we're told by the Appellants that the case was tried, basically, on the basis of Dade County.
You're telling us no, it wasn't, it was State wide.
We weren't there.
We have to look at places like this to try to make a judgment between the two of you.
And it seems to me a statement like this in the opinion does cut against your point of view.
Mr. Feldman: I would agree with you that it cuts against my... our point of view.
What I would say is that if you... you can't look at this case and make sense of what happened in terms of 8 days, or however many it was, at the end of June in 1992.
You have to look at the whole case.
And there had already been another opinion issued in the case that had extensive findings, and you have to look at the findings that were made here in light of that and in light of all of the evidence.
If the Court... I think if you look at all of that, you see that it was a Statewide claim from the very beginning.
Unknown Speaker: Mr. Feldman, could you... there's an awful lot of pages here to look through, as we understand.
Could you pinpoint what you think is the strongest statement in any of the three opinions saying that they're cohesive Statewide and compact Statewide?
Mr. Feldman: But that... first of all, I don't think... well, as to compactness, I don't know what it would mean to say that they're compact Statewide.
Counsel talked about Davis and Bandemer.
There was no showing in Davis and Bandemer that the Democrats were throughout the State in some proportion, or only in one part of the State, or several parts of the State.
Unknown Speaker: No, but I think a lot of the people assume that within the Hispanic community there are Cuban Americans who tend to vote very regular... very conservative Republicans, and there are a lot of agricultural workers and the rest, who have a different Hispanic origin, who tend to vote Democratic.
I assume that's true in Florida.
It's probably true nationwide.
Does there... is there anything in the record to tell us?
For example, do the Hispanics in the Tampa area vote the same way as the Cuban Americans in Miami, or anything... any light on that at all?
Mr. Feldman: Well, I can cite you the voluminous exhibits showing the runs of election after election.
I mean there... it is... the Hispanics in Florida are not uniform, nor does any minority group vote uniform anywhere.
And there are local variations and there's also... it just... and even in any given locality, the minority group is not going to vote 100 percent cohesively.
Unknown Speaker: Well, apart from looking at reams and reams of exhibits.
Mr. Feldman: Right.
Unknown Speaker: Is there any statement anywhere that is as succinct as the one the Chief Justice pointed you to, but pointing in the opposite direction?
Mr. Feldman: Well, if you look at the... the JSF in that, I think '92, 5/19, if you look at page 79a, they... the court says at the bottom of that page, and carrying over to the next one: "The parties agree"...
"The parties agree that racially polarized voting exists throughout Florida to varying degrees. "
"The results of Florida's legislative elections over the past 10 years established the presence of racially polarized voting. "
Racially polarized voting, as this Court knows and as was made clear in Gingles, has two components: that the minority group votes cohesively and that the majority votes usually as a bloc to defeat minority candidates.
There are also... that same finding in different terms, and sometimes in stronger terms, I think as I was saying before, was made by the special master... some of these other things are in the Joint Appendix and not in the JSF.
And the independent expert--
Unknown Speaker: Yes, but your statement that racially polarized voting exists throughout Florida to varying degrees could mean that in Dade County there's racially polarized voting among blacks that is contra to the way the Cuban Americans vote, and that there's racially polarized voting in Tampa that's contra to either of those two groups.
I mean, it really doesn't... that certainly doesn't tell us that all Hispanics vote... tend to vote in the same way.
Indeed, the rest of that paragraph doesn't even speak about Hispanics.
It speaks about African-Americans.
Mr. Feldman: --Right.
But this opinion clearly addresses... they then go on to give some specific facts about African-Americans, but the opinion addresses the voting rights situation with respect to both Hispanics and African-Americans.
The whole litigation was concerned about both groups and in the congressional phase they were extremely concerned with both groups as to whether they were going to... whether they were required to draw districts for that.
Unknown Speaker: But the paragraph you refer to... us to, starting on page 79a does appear, at least, at the end of the paragraph, to refer just to African-Americans.
Mr. Feldman: Yes, well I can--
Unknown Speaker: Where do you extract from this opinion an indication that it's proper on your Statewide frame to bracket the Hispanics outside Dade County with the Hispanics inside, rather than with African-Americans.
Mr. Feldman: --Well, I think... that's how I read the finding that there's racially polarized voting in Florida.
I think the natural... that the natural meaning of those words is that, especially in the context of a case where this was the type of issue that was litigated throughout.
Unknown Speaker: It's certainly a Delphic way of putting it, isn't it?
Mr. Feldman: I beg your pardon?
Unknown Speaker: It's Delphic, isn't it, to get all that out of racially polarized voting, which could mean Hispanics and African-Americans versus whites?
Mr. Feldman: Your Honor, the... if you... the... if you go beyond the three-judge court, it adopted findings that a special master had made.
As I recall, the special master's findings were in similar terms.
But both the court and the special master adopted other findings that were made by an independent expert.
And it's not that any of these findings disagreed with each other in any way, but the independent expert, for instance, on the Joint... in the Joint Appendix on page 103, said it is... he lists a bunch of things that he thinks are beyond dispute.
And he says there is, quote:
"racially polarized voting, whereby African-Americans or Hispanics vote one way, and whites or Anglos vote another. "
Unknown Speaker: Yes, but that doesn't--
Mr. Feldman: That doesn't?
Unknown Speaker: --Deal with the question that I asked you.
Because in one part of this case, the Senate part, wasn't there a question if there's only room for one more, who should get it?
Mr. Feldman: Yes.
That was an issue, yes.
We don't agree that that was... we think that that really didn't need to be an issue in the case, and that the problem was that we didn't have the opportunity to show that there could be a remedy for both groups.
Unknown Speaker: But if you're talking about creating two more districts and if the cohesiveness is closer between African-Americans and Hispanics outside Dade County, then why should those two districts go to Hispanics in Dade County?
Mr. Feldman: Well, I think... well I think I can only make... perhaps answer that by repeating, I think, what I said before, which is the question is whether Hispanics in the State of Florida vote cohesively.
It has been shown in this case that there... well, it has been shown in this case that no Hispanic, for example, was elected to the Florida State Senate until 1988, never, that no Hispanic was elected to Congress until 1989.
That Hispanics... there were findings that Hispanics do not win elections in Florida unless they're in the majority of a district.
Maybe that supplies the... what's... what you... clarifies what these findings are.
But all of these findings point in the same direction, that where Hispanics are in the majority in a district, they get the opportunity to elect the candidates of their choice, and where they're not, they don't.
And I think that there were experts who testified to support the independent expert's and special master's findings, and so on.
But, in any event, that... I think they all mutually support each other, which is that in the State... in the State, as a whole, Hispanics vote cohesively.
Unknown Speaker: Well, we may... we may have difficulty in figuring out what the findings are, but do you agree that if we do not read those findings as establishing dilution outside of Dade County, that the Hispanic population outside of Dade County cannot legitimately be taken into consideration for purposes of the maximization that went on here?
Mr. Feldman: Yes, I do.
And I think if there's some doubt about what... if you look at the Joint Appendix at 61, at 103, there's expert testimony, 81, 209, 38, 266, if you look at all those and you still don't think that it's made out on a Statewide basis, I think the appropriate thing to do would be to remand the case and let the district court make the finding that you would find would not have been made.
Unknown Speaker: Is it enough if... I mean are we supposed to go through the testimony to see if it was made out?
Doesn't Gingles require that there be a finding?
Mr. Feldman: Well, the only reason I refer... this is... the only reason I refer to the testimony is because there are, in addition to the opinion that was... that the court issued on July 17th, there was the previous congressional opinion and the special master's and independent expert's opinions, which were specifically adopted by the court.
And all of those make findings about racially polarized voting in the State of Florida.
I only raised--
Unknown Speaker: So you're talking about findings, not just testimony.
Mr. Feldman: --Yes.
I only raised the testimony because that was what the finding was based on.
And, in turn, the testimony was attached to quite voluminous exhibits showing the election runs in Florida and how people vote.
Unknown Speaker: Let me ask you a question of your interpretive criterion.
When you speak of findings, do you... do you account it as a finding by the court when the court simply recites... or strike the word simply, when the court recites a summary of testimony by expert witnesses?
For example, I think twice in your brief you refer to findings on the court on page 43a of the petition appendix, of fragmentation of the Hispanic population within Dade County.
And I looked at that twice, and I don't see any findings there.
What I do see is a repetition by the court of summaries of what witnesses said.
This one testified this, that one testified that.
Are you counting those recitations as findings by the court?
Mr. Feldman: I think the district court's opinion, with due respect to the court, was written hastily.
And I think you have to look at the context in each case.
I think the court tended at times--
Unknown Speaker: Then the answer to my question, then, is yes, you are--
Mr. Feldman: --No, the answer is sometimes yes and sometimes no.
And they have to look at the... you have to look at the context of it.
Again, I would emphasize that the questions that we've been... the things I've been talking about really go to whether... to the nature of the findings that were made by the district court in this case.
And if the Court ultimately doesn't agree with us that those findings were made by the court, the appropriate thing to do would be to remand and--
Unknown Speaker: --Well, why should that be?
It seems to me the plaintiffs have an opportunity to prove their case at trial and if they fail, if there was insufficient evidence to support the decree that they wanted, you don't send it back and say, well, let them try again.
You say they had their chance, the judgment is reversed, and judgment is entered for the defendants.
Mr. Feldman: --Yes.
I don't think there's any basis to... I mean, I don't think there's any question that there was sufficient evidence.
But the district court simply... they entered judgment for us and they didn't... they didn't... if the Court finds that the court, the district court didn't specify, for instance, whether Hispanics in the State of Florida, as a whole, are or are not cohesive, then that's a finding that simply has to be made one way or the other.
They... certainly the district court never said that Hispanics were not cohesive in the State of Florida.
If the court had said that, then I think it would be... the appropriate thing to do probably would be to reverse.
There might still be additional issues remaining in the case on other points.
Unknown Speaker: So you're saying there was... at worse, from your point of view, there was a failure of the district court to find on a crucial issue.
Mr. Feldman: That's... that would be what I would say, yes.
But in any event, all of these things go... none of these go to our central premise, which is that... the question... you have to look Statewide to determine... the appropriate measure for whether a State's districting plan fragments or dilutes the votes of the black community, you have to look Statewide.
Unknown Speaker: Is there any support in the case law for this Statewide frame of reference as opposed to the geographical districts?
Mr. Feldman: Actually, yes, I think there is.
I think Davis against Bandemer looked at the whole State when it was looking at a very similar type of claim.
I also think that the four Justices in Shaw against Reno who dissented, who analyzed the case quite different from the majority... the way the majority did.
But the majority didn't suggest that vote dilution claims of the sort that the dissent didn't... wouldn't have existed.
That those four Justices had looked at the State of North Carolina in concluding that whites in North Carolina were not disproportionately represented.
I also think I might have misspoke.
What we're really talking about here is... in a relatively minor way.
But what we're talking about here is the... is proportional representation in the State of Florida.
That's only one factor that has to be considered in the totality of the circumstances' analysis.
And I don't want to suggest... it is... although I think it bears very heavy weight, I don't think that that is conclusive.
And I think Mr. Klein characterized our position that way, but I think it's possible claims could be--
Unknown Speaker: Mr. Feldman, assume there were no Gingles preconditions show, could a State, on its own initiative, maximize the voting strength of racial minorities within its jurisdiction?
Mr. Feldman: --I'm not... I guess I would have one... initially, I'm not sure what maximizing would mean there?
Does that mean--
Unknown Speaker: Maximizing as you use it here.
Mr. Feldman: --Well, we've never--
Unknown Speaker: Taking a State... taking a State-wide sample of all the minorities and giving them the maximum possible number of seats in, say, the State legislature.
Mr. Feldman: --I think a State can reasonably act, for instance, to preclude a section 2 claim.
And if that requires drawing as many districts in an area, or in the State or wherever it is, in which the minority group would be the majority, then I think that that would be the proper thing to do.
Unknown Speaker: Well, but I'm assuming that Gingles... that the Gingles conditions, preconditions cannot be found.
Mr. Feldman: If they cannot be found?
Unknown Speaker: There's no bloc voting.
Mr. Feldman: I... you know, I would hesitate to hazard an answer to that.
I think that would raise questions... I guess the question would be whether that would be unconstitutional for a State to do that.
Unknown Speaker: It raises at least at least a delicate constitutional question.
Mr. Feldman: A delicate... the question would be whether it would be unconstitutional for a State to do that.
Unknown Speaker: Doesn't that mean it's all the more important for us to be quite confident that the district court's judgment was no more than necessary to remedy the violations that were shown?
Mr. Feldman: I would certainly agree that the district court is obligated simply to remedy the section 2 violations.
But it found section 2 violations, and I think the record supported those findings.
And I do think that if you... if you arbitrarily limit the proportional representation part of the analysis to Dade County, you're going to lead to very odd results in different sorts of cases where people are trying to draw smaller or larger circles.
In fact, even in Dade County there are--
Unknown Speaker: Well it seems to me an odd result to give a remedy to someone who has not suffered a wrong.
Mr. Feldman: --Well, I think the answer... I think that's... that's one way... that's slightly mischaracterizing what's happening.
What is happening here is that you have... the whole premise of the statute is based on an idea of a group's rights and a group's fair, equal opportunities to participate and elect.
And you're necessarily abstracting from individuals when you do that.
That's going to be true, though, even if you look at Dade County.
There are individual Hispanics in Dade County who don't live in Hispanic-majority districts and who don't... wouldn't live in Hispanic-majority districts under any conceivable plan.
Now, under Mr. Klein's analysis are we supposed to exclude those from the proportional representation analysis?
Are we just supposed to look at where you can draw the majority Hispanic districts under the State's plan, just the people who live there, or under our plan or what alternative?
Unknown Speaker: Thank you, Mr. Feldman.
Mr. Foster, we'll hear now from you.
Argument of C. Allen Foster
Mr. Foster: Mr. Chief Justice, and may it please the Court:
In contrast to what I believe has been the tenor of the argument so far, this is not a maximization case.
In this case the plaintiffs have not only proved the Gingles preconditions factors, they proved all of the totality of the circumstances factors, and in addition, over and above all of that, they proved disparate treatment.
What the plaintiffs are saying in this case is they want to be treated... when districts are drawn in neighborhoods where they live, they want to be treated the same way that Anglos are treated when districts are drawn in Anglo neighborhoods.
That's what the plaintiffs are saying, and that is the reason why I have asked the clerk to give you these maps that you have in front of you, because I'd like to direct your attention to the first map.
This is Plaintiffs' Exhibit 5 and this is the State plan which was challenged in this case.
And I would like for you to look up where you can see the 91 in this yellow district.
That's Fort Lauderdale.
And I would like to draw your attention to the blue district, that rather oddly shaped blue district that splatters its way across Broward County there.
And I believe that you will agree, after your experience in Show v. Reno, that you would suspect that this is a minority district that was created for minorities.
It is not.
It is an Anglo district.
Unknown Speaker: Are you talking about the kind of purplish blue or the cobalt blue?
There are two different--
Mr. Foster: Actually, Mr. Chief Justice, you can take your pick, both of them are Anglo districts.
But I'm talking about the cobalt blue just to the left of where it says Fort Lauderdale.
Actually, Fort Lauderdale is written across part of that district.
This is an Anglo district, as is district 90, and if you looked at district 99, that's an Anglo district, as is district 101, which is right on the border of Broward and Dade County and actually dips down into Dade County to submerge some Spanish voters... or Hispanic voters that are in Dade County.
And if you look down in Dade County at district 119, which is the gray district toward the bottom, that is an Anglo district.
And all the Hispanic voters in this case have asked the court below to do is to have districts drawn where they live that are just... that utilize the same districting criteria that the State legislature used to draw districts in Anglo neighborhoods.
That's all they're asking, but that's not what they got.
Because if you use the same districting criteria that were used to draw the districts in the Anglo neighborhoods, you will get 11 Hispanic seats in the Dade County area... not Dade County, and I'll turn to that in just a minute, because that's another misconception that we're--
Unknown Speaker: --Suppose that you used those same factors and you got 15, would you be entitled to that remedy?
Mr. Foster: --In this particular case I think we might well be entitled to it, Justice Kennedy.
Because if you take the statistics of Hispanic population in the Dade County area and if you truly maximize... this is not a maximization case.
We never asked for the maximum number of districts.
We asked for the number of districts that could be drawn if you used the same criteria that was used for Anglo districts.
There's nothing in the record as to what the maximum number of districts is.
There's nothing there.
Unknown Speaker: Counsel, what are the criteria used in drawing Anglo districts that you say should have been used, to draw funny looking shapes like this?
Mr. Foster: No, sir.
They... although they certainly are funny looking, they were drawn... they respect Anglo neighborhoods, they respect Anglo incumbents.
Of course, the number of Hispanics that could be elected was coming up and so there weren't as many incumbents to respect.
But if you respect Hispanic neighborhoods in the Dade County area, if you just respect and don't split, don't pack their neighborhoods, if you treat them the same way that Anglo neighborhoods were treated in this... in both Broward and Dade Counties, you will get 11 Hispanic districts and you will 4 Hispanic Senate districts.
If you just treat them equally--
Unknown Speaker: Does that involve any disrespect to the lines that existed before for other groups?
Mr. Foster: --No, ma'am.
Unknown Speaker: In other words if you said... respect everyone equally and Hispanic groups were not respected equally, do the new lines disrespect any other groups?
Mr. Foster: No, ma'am.
There's no allegation in this case that any other group, other than... the groups that were considered were the African-Americans, the Hispanics, and the Anglos.
The Anglos were going down in numbers of seats, and... yes, sir.
Unknown Speaker: I don't understand.
I had thought that the whole name of the game in trying to maximize the racial vote is not to keep neighborhoods together, but to keep only so many of them together as will give you 51 percent of the vote.
Mr. Foster: And if you try--
Unknown Speaker: And then put another 51... or, you know, to make it safe, 60 percent.
You don't want a 100 percent Hispanic district.
That will not maximize the Hispanic vote.
So I don't know how these criteria you've been talking about has anything to do with this.
Mr. Foster: --That will pack.
Unknown Speaker: You have to intentionally go about packing districts on the basis not of neighborhood lines.
You have to be very careful to include a fair number of Anglos in the district.
Mr. Foster: In fairness... in fairness, Your Honor, to what the plaintiffs tried to do in this case and what the district court adopted, the plaintiffs' plan did respect communities.
It respected Anglo communities, it respected Hispanic communities, and it respected African-American communities.
And that's the reason why... the district court was faced with two plans, one put forward by the State which demonstrably did not respect Hispanic communities.
It demonstrably split and packed Hispanic communities.
On the other hand, it was faced with another plan put forward by the plaintiffs which didn't do that, which treated Hispanics and African-Americans the same way that it treated Anglo voters.
And the court... and we think this is exactly what section 2 commands, the court chose the one that treated everyone alike.
And that's what... section 2 commands that everyone have the equal opportunity.
And it is the plaintiffs' plan and only the plaintiffs' plan that offers--
Unknown Speaker: Mr. Foster.
Mr. Foster: --Yes, sir.
Unknown Speaker: Wherein was the violation of the Voting Rights Act in the law passed by the Florida legislature?
Mr. Foster: It both... it... number one, we proved all three of the Gingles preconditions.
Number two, the court carefully considered the Zimmer factors and found that they supported.
And number three, the court... while there may be some question as to whether there are findings or not, as Justice Souter says, the court goes through the testimony and it certainly, I think, fairly appears to me that the court is citing with approval the testimony that finds disparate treatment.
Unknown Speaker: Well... and you say nine districts was not enough.
In Dade County or Statewide?
Mr. Foster: Well, sir, I'm glad you brought up that point.
Would you turn to map number 3.
Unknown Speaker: Well, would you answer my question?
Mr. Foster: Yes, sir.
No one's talking about Dade County in this case, Mr. Chief Justice, and I'd like to demonstrate that to you.
What you've heard previously simply is not the fact.
Please look at map number 3, and I'd like to demonstrate to you what I'm talking about.
Map number 3 shows... you can see District number 102, it's the light-blue district that stretches all the way from Miami and goes over to Naples.
It's over 100 miles long.
That is a district which the State must count in order to make out their case for proportionality.
Now, they have come in here and they have told you that we're only talking about Dade County, right.
That district has three times as much land in Collier County in it as it does in Dade County.
Unknown Speaker: Well, I think what they said, as I understood it, was that they were talking about districts which included some part of Dade County.
I don't think they insisted that it was limited to Dade County.
Mr. Foster: Yes, sir.
And if you'll look at--
Unknown Speaker: Before you leave that district, is that an Anglo district?
Mr. Foster: --It's an Hispanic district, sir, and they have to count it in order to get proportionality.
They cannot get their so-called proportionality unless they count District 102.
And it is no more Dade County than a man in the moon.
Also, if you will look--
Unknown Speaker: Are you saying it doesn't include any part of Dade County.
Mr. Foster: --Just a wee bit.
And it doesn't... you can look and see where it goes over into Dade County.
It's more than a wee bit, it's about 25 percent Dade County and about 75 percent Collier County.
It most certainly doesn't--
Unknown Speaker: Are you talking areawise or population?
Mr. Foster: --Areawise and I don't remember the precise figures, but I think that's pretty close to populationwise as well.
Also, if you will look on your first map, District 101 that I pointed out to you which is at the border of Broward County and Dade County, the only aspect of Dade County that is included in District 101 is that infinitesimal little yellow blip that comes down into the light blue.
That's what... that is where they are trying to say that we limited our proof to Dade County and for that reason, somehow or another, you can't take into account anything else.
They're taking into account District 101 which is 99 percent, in population and area, in Broward County.
Unknown Speaker: Is that a Hispanic district?
Mr. Foster: That happens to be a white district, an Anglo district.
Unknown Speaker: Well then you gained by having them do that.
Mr. Foster: That's true.
But the point is that their... that their analysis makes no sense.
Their analysis does not tell us anything--
Unknown Speaker: But if you left out both 101 and 102, the proportion of Hispanic representation would be even higher.
Mr. Foster: --Barely, by the fact that you're dropping one number from the numerator and one from the denominator.
But the point is that their analysis... if you focus down on any one single district... if you focus on District 114, for example, which is this one to the left of the pink district here in Dade County, and if you focus on that and you say let's just look at that district, then Hispanics are 84 percent of the population there and they have 100 percent of the seats, so they're underrepresented.
And then, as a matter of logic, as the circle grows wider you will reach a point where there is proportional representation.
And then as the circle gets bigger than that, there will be underrepresentation.
That is true any time you have a concentrated minority.
It will always be true.
If you think about it in terms of a target with a bull's-eye and a lot of concentric circles around the bull's-eye.
As you go from the bull's-eye... which is the concentration of minorities where you may well have over representation because the minorities may have all the seats, but as you pointed out, Mr. Chief Justice, less than 100 percent of population.
And as you go out from that circle into Anglo areas, the successive dilutive effect of the increased Anglo areas is going to change the numbers.
What this is saying is that any analysis that does not go to the whole jurisdiction, the State, simply hasn't told you anything.
It's not probative because you can pick and choose, you can cherry-pick the area that you want to pick and you can prove anything with the numbers.
Unknown Speaker: Well, who were these exhibits introduced by?
Were these your exhibits?
Mr. Foster: These are plaintiffs' exhibits.
This is the State's plan.
Unknown Speaker: Yes, and you have one dealing with the Miami area, one dealing with what you call South Florida, another dealing with what you call South Florida.
I take it your exhibits didn't go beyond at least South Florida.
Mr. Foster: That is true.
Our case was focused on South Florida, because that is where the minority... the Hispanic population is primarily concentrated.
But I agree with the Solicitor General's view that certainly there are findings in this record having to do with all of the factors which pertain to Hispanics in the entire State of Florida.
And I simply think an analysis that focuses on anything less than the total jurisdiction hasn't told us anything.
I would only like to make one other point, and that has to do with the Senate.
If you will look at map number 2... because this, again, tells you how much further the plaintiffs in this case have gone than just is required by the plurality opinion in Gingles.
In fact, I think we've satisfied all of the conditions that Justice O'Connor mentioned in her concurring opinion.
Because here you have District 32, which is the blue district.
This an Anglo district which has come down, crossed the Dade County line... again, they're not limiting their districts to Dade County.
It crosses the Dade County line and submerges the Hispanics that live in this portion of North Hialeah, which is right there below the Dade County area.
Down at the bottom, the purple district you have, which is an Anglo district, creates a wall that separates the otherwise cohesive minority... Hispanic minority populations in South Miami.
That wall runs up Highway 1, if you've ever driven down to the Keys.
Like the district you looked at in Shaw v. Reno, during most of the area where it runs up Highway 1... and you can barely see it on the map... it's no wider than the highway.
But this is an Anglo district that was created.
And what these plaintiffs are complaining about is that they haven't been treated equally.
That is the very violation that section 2 speaks to, not only in its words but I believe philosophically.
Unknown Speaker: Counsel, what is District 30, is that an Anglo district?
Mr. Foster: District 30.
Unknown Speaker: That's the long tall one up between--
Mr. Foster: Oh, the yellow one, District 31.
Unknown Speaker: No, no, not yellow, the one to the left of the yellow district.
Mr. Foster: That is an Anglo district.
And I would also point out, Justice Stevens, that it makes it look a lot prettier than it really is, because the line as drawn by the computer here goes offshore for 4 or 5 miles.
Unknown Speaker: No, no, I'm not talking about the yellow district.
Mr. Foster: The yellow district, yes, sir.
Unknown Speaker: No, I'm talking about the one immediately to the one to the left of the yellow district, the purple district.
Mr. Foster: Oh.
The little purple district.
Unknown Speaker: The long--
Mr. Foster: Oh, I see.
I believe that's an African-American district.
Unknown Speaker: --And do you have any problem with the way that's drawn?
Mr. Foster: That wasn't my case, sir.
It was not necessary, under any circumstances, to draw districts like that that respected Hispanic communities of interest.
Unknown Speaker: But it was to respect the African-Americans.
Mr. Foster: Yes, sir.
Unknown Speaker: Thank you, Mr. Foster.
Mr. Foster: Thank you.
Unknown Speaker: Mr. Klein, you have 18 minutes remaining.
Rebuttal of Joel I. Klein
Mr. Klein: I would ask the Court... with indulgence, I want to refer to the Appendix, the Joint... Jurisdictional Appendix on 92, 5/19, the JSF, to the district court's opinion, because I think that we need to have a couple of points of grounding here.
The lawyer for the De Grandy people just made an argument about natural communities and compact districts.
On the bottom of 43a, in the district court's opinion, I'd like to read the Court.
The court says:
"This court does not find that the districts drawn by the De Grandy plaintiffs are significantly less geographically compact than those districts by the State of Florida. "
So to begin with, so we have a baseline, the district court has said that their map, which counsel didn't include in his handout... their map is not more compact, it's less compact, less natural.
You were shown a district, 102.
Unknown Speaker: Well, I don't... if you're depending on the sentence you just read for the conclusion that they're less compact, I don't think that sentence supports you.
Mr. Klein: They say they are not significantly less geographically compact.
I take it it means they are less compact, just not significantly so, right?
Unknown Speaker: Well, that's reading it very favorably.
Mr. Klein: Well, but at a minimum--
But at a minimum, Mr. Chief Justice, this notion that somehow we did all these unnatural things... their plan draw districts, again, that were, in the court's words, at least as noncompact.
Second of all, you were shown a district, 102, on the House plan, and you were told all sorts of representations about this district.
Let me tell you the facts.
The district goes across the Everglades of Florida.
It's largely nonpopulated in Collier County.
In fact the numbers are that 78 percent of that district is from Dade County.
It's largely Hispanic.
Unknown Speaker: 78 percent of the population.
Mr. Klein: Of the population, yes.
The reason it goes across the Everglades and picks up a group in Collier County is Collier County is a section 5 county and we had to preclear that county with the Department of Justice.
We picked up a group of Hispanics in that county, a small group, so that they would be in a majority district.
Now to move to the more important things.
The question is was this a Statewide case or was this is a Dade County case?
And I think this is an important question because I think there was a lot of confusion generated.
I would start with page 30a of the Appendix, the JSF, the district court's opinion.
And I would refer the Court to the key statement made by the district court with respect to the Senate plan... this is right before it becomes application of the Gingles factors.
It says with respect to the Senate, Plan, Hispanic and African-American vote dilution exists in Dade County.
In Dade County.
Additionally, under the totality of the circumstances, Hispanic vote dilution exists in Dade County under the House plan.
That's what the district court found.
Now, the United States says you've got to look at lots of records.
The United States put evidence on in this case.
What did it put evidence on?
It put evidence on about Dade County only.
There is no dispute about that.
The district court in this opinion... if you look at its findings on the three Gingles factors, just read them one at a time.
Geographic compactness, cohesion, and white-bloc voting, and I represent to the Court each and every one of those findings unmistakably is in Dade County.
Indeed, on 73a in the concurring opinion... just because it's more compact here... the court flatly says in paragraph 2:
"For Dade County, the second and third parts of the test. "
referring to Gingles, "are established".
The De Grandy people say in their brief that they said on the record, we are presenting evidence of vote dilution, quote, only as to Dade County.
And the district court's opinion--
Unknown Speaker: Mr. Klein, do you have... did you participate in the trial?
Mr. Klein: --I did not.
Unknown Speaker: Do you have any idea when the reference is made to Dade County, as in that sentence you just quoted or some other, is that referring to the Dade County in the sense of all districts which touched on Dade County or is it referring to Dade County as a geographical entity regardless of what districts might extend both in and out of it?
Mr. Klein: I think it's referring to Dade County as a geographical entity, and let me explain why, Mr. Chief Justice.
The Hispanic group of plaintiffs is concentrated in Dade County.
They do not spill over in any numbers into other counties, that is like Broward which is north.
Of the House districts there are 5 out of 7 solidly in Dade County, one that starts in the south of Dade and the only southern county beneath it, and one that goes in the north, that's in the Senate.
In the House, there are 17 districts in Dade County, one largely in Dade County, and 2 that touch a piece.
This was a Dade County case.
That's what the evidence showed.
And I think the notion that this was a Statewide dilution claim is really wholly insupportable.
And let me give a few additional facts.
Unknown Speaker: Were there other previous proceedings in the same case?
Do we have to look at other proceedings?
Mr. Klein: --There were proceedings in the Congress.
Unknown Speaker: Do we have to look at other findings and opinions?
Mr. Klein: I don't think that's right.
I think the only finding, so to speak... the quote that you're getting is racial polarization existed to varying degrees.
That is the only thing lifted from any other proceeding, in a context of a district court drawing a Statewide congressional plan, Justice O'Connor.
Now, that statement, on its face, does not support Hispanic cohesion.
Let me tell you why.
You can have Hispanics in North Florida who are Democrats who get outvoted by Republican whites.
That might show cohesion and bloc vote, polarized voting, but that doesn't show anything about Hispanics in North Florida and Hispanics in Dade County.
We know one undisputed fact which the United States concedes in its brief.
Outside of Dade County there's one other House member in the State of Florida who's Hispanic.
He was elected in Hillsborough County, the Tampa area, all right.
That person is a Democrat.
There are... all the other Hispanics, from Dade County, are Republicans.
That person was elected with strong Hispanic support.
So the idea... the only other city in the whole State where there's a large bloc of Hispanics of any number, they vote for a Democrat, and in South Florida, in Dade County, they all vote Republican.
The idea that there's cohesion is simply untenable.
If you want... and I agree with the Court, I don't think we need to go beyond the opinion--
Unknown Speaker: Just to be sure I understand where this is coming... you're telling us what the record shows about voting patterns by Hispanics in other parts of the State?
Mr. Klein: --Yes.
The record shows where... that is there are data in the record that in Hillsborough County, in Tampa, a Hispanic was elected in a district that is a Hispanic-influence district and it's a Democratic Hispanic.
That is undisputed in this case.
And what I'm saying is that, if anything, suggests that far from cohesion there's noncohesion.
The De Grandy experts, Justice Stevens, said... and they don't dispute this... they said Hispanics in South Florida are different from Hispanics everywhere else, including in the rest of Florida.
Unknown Speaker: Now, are they different because they... one group votes Democratic and the other votes Republican, or are they also different because they have different ethnic backgrounds?
Mr. Klein: They have different ethnic backgrounds.
But principally for our purposes, they're not politically cohesive.
One group votes Democrat... and, indeed, this goes to the polarized voting point you discussed... they join together with blacks in North Florida to vote for Democrats.
Unknown Speaker: Under this statute, if one group of Hispanics with one ethnic background achieves sufficient political power to take advantage of another group of Hispanics of a different ethnic background, would the statute apply?
Mr. Klein: I don't know the answer to that question.
But if you say one group, if there's noncohesion between those two groups--
Unknown Speaker: You have two cohesive groups, both Hispanic but different ethnic backgrounds, one is strong enough to discriminate against the other successfully.
Would the statute apply?
Mr. Klein: --If they... I think they could make a subgroup claim.
If they could show that their subgroup, that is, let's say, Hispanics who are from Puerto Rico and not from Cuba... yes, I think they could make that claim out under this statute.
So I think, in fairness, the record is absolutely clear on this.
And a single line that says there's racially polarized voting when you're dealing with three different racial groups, is not evidence.
And if the United States thought this was all done, they wouldn't have put on their case in this case.
They put on evidence about racial polarization in Florida.
The district court understood that.
That's this case.
Two other factors, if I might.
Even if you prove cohesion, there is simply no showing of compactness.
And I think the United States seriously misreads Gingles.
Let me explain why.
Gingles says you have to show compactness, not for a remedy but for liability, and there's a reason for that.
Section 2 only applies to State procedures, standards, and so forth that dilute votes.
There's no automatic cure for vote dilution.
You've got to show something that the State did.
Now, what is the State... what is the allegation here that's in play?
That is the State drew lines on a map and diluted votes.
Now, if you're not compact, the State lines don't dilute your votes.
That's the geography.
Unknown Speaker: Let me ask you a question... another question there.
Did you hear the argument in the preceding case, the similar case this morning?
Mr. Klein: Yes, I did.
Unknown Speaker: Where they suggested that five districts should be drawn in place of one.
Are you arguing that in order to sustain that argument they'd have to prove that all the relevant minority voters were in the one district that would be minority black?
Mr. Klein: I... they'd have to show a geographically compact group, absolutely.
Unknown Speaker: So that they shouldn't even count the black voters who are not within the black majority district that might be created.
Mr. Klein: --They have to show that the black voters in a single district, Justice Stevens, would make up a majority.
Now, in fact, the question that came up is if you assumed 20 percent blacks in that group and you have five seats, then if you had 12 percent of the blacks in a compact group they could constitute a majority in one of five.
But there's no question in--
Unknown Speaker: Does that mean that in determining whether there's a violation or whether there's dilution, you ignore the other 8 percent?
Mr. Klein: --Absolutely.
Because you cannot... the State's drawing compact single district lines.
That's exactly what the Court says in Gingles itself.
In drawing a line... let's just think of the map as we draw it.
Here you have a group.
Let's say you have 5 percent of blacks who live in one part of this large county, and the other 15 percent are dispersed.
You cannot draw a single-district map that would give them a majority.
It can't be done.
You've got to give them a gerrymander of extreme proportion.
If that's true, the question is under section 2, what is the State procedure or standard that's diluting their vote?
And the Court in Gingles says there is none because the lines can't do it.
So I submit to you at a minimum... and that's why I think it's called the precondition... if a group of minorities, of any group of minorities, if that group cannot make up a majority within a compact single district, they have no vote dilution claim.
Their vote, if it's diluted so to speak, is diluted not by the State but by geography, and section 2 doesn't address it.
The last point I'd make before I sit down is you notice nobody mentioned the issue of citizenship.
And the reason is whatever else is said, there is Statewide proportionality on the basis of citizenship.
And the statute, clear as it can be, refers to citizens, not to population.
We submit, thank you.
Chief Justice Rehnquist: Thank you, Mr. Klein.
The case is submitted.
Unknown Speaker: The honorable court is now adjurned until tomorrow at ten o'clock.