ABRAMS v. JOHNSON

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Argument of Seth P. Waxman

Chief Justice Rehnquist: We'll hear argument first this morning in Number 94-1425, Lucious Abrams v. Davida Johnson, and Number 95-1460, United States v. Davida Johnson, consolidated.

Mr. Waxman.

Mr. Waxman: Mr. Chief Justice, and may it please the Court:

On remand from this Court's decision in Miller v. Johnson, the three-judge court, after waiting unsuccessfully for the Georgia legislature to enact a new apportionment plan, created a plan of its own, a plan with one majority-minority district in Metropolitan Atlanta.

In its opinion, and this is at page 21a of the jurisdictional statement, the district court concluded that

"if Georgia had a concentrated minority population large enough to create a second majority-minority district without subverting traditional districting principles, the court would have included one, since Georgia legislatures probably would have done so. "

The illustrative plan that we submitted to the district court in November of last year, which is reprinted at page 44a of the jurisdictional statement, demonstrates, in fact, that a reasonably compact majority black district can be drawn in East Central Georgia without neglecting, subverting, or subordinating Georgia's traditional districting principles and, thus, the district court erred in two independent and fundamental respects:

First, by failing to respect, as Upham v. Seamon and White v. Weiser require, the Georgia legislature's desire, expressed in word and in deed, for a second majority-minority district in East Central Georgia and, second, regardless of the legislature's intent, by failing to recognize that on the record as it existed before the district court at the time, section 2 of the Voting Rights Act required creation of a second district in East Central Georgia to remedy unlawful vote dilution.

Now, the appellants have--

Unknown Speaker: Actually, in your brief you said that the question was whether or not it was proper to reduce the majority black districts from three to one, but that begins with a premise based on an unconstitutional plan, does it not?

Mr. Waxman: --That would... that argument would... would indeed, Justice Kennedy, and I think that where you--

Unknown Speaker: Although that's the argument you made in your brief.

Mr. Waxman: --Well, in our... in the section 5 portion of our brief, which is not an argument that we had noted in... a point that we had noted in our jurisdictional statement but since it was raised by the coappellants we addressed it, in the section 5 analysis you would start with the 1992 plan.

In the Upham v. Seamon--

Unknown Speaker: Why would you begin with an unconstitutional premise?

That's the opening statement in your summary of argument.

You're contesting a plan that reduces from three to one--

Mr. Waxman: --Yes--

Unknown Speaker: --but you begin with an unconstitutional premise.

Mr. Waxman: --I understand your point.

Under Upham v. Seamon and White v. Weiser, a district court, when remedying an unconstitutional plan enacted by the legislature, must make the minimum number of changes to remedy the constitutional violation, but otherwise adhere to the expressed intent and desire and policies of the State legislature.

In this case--

Unknown Speaker: But the minimum number of changes in the case of three majority black districts in which two are unconstitutional, the minimum number of changes are to eliminate the two that are unconstitutional, I would think.

Mr. Waxman: --Well, the issue, I submit, Justice Scalia, is whether it is possible... given the Georgia legislature's expressed desire for a second majority-minority district if one were possible consistent with traditional districting principles--

Unknown Speaker: That expressed desire--

Mr. Waxman: --whether it is possible to do it.

Unknown Speaker: --the court found was expressed... you might call it an extracted desire.

It was expressed because of the Justice Department's insistence--

Mr. Waxman: That is--

Unknown Speaker: --that an additional black district be drawn.

It's not as though the Georgia legislature came to this conclusion on its own.

Mr. Waxman: --I respectfully disagree with you, Justice Scalia.

What the district--

Unknown Speaker: Not with me, but with the court.

Mr. Waxman: --What the district court found was that the 1992 plan, which is the plan reflecting three districts, was the product of improper and unconstitutional Justice Department pressure.

The original plan enacted by the Georgia legislature in 1991, which we refused to preclear, had two majority-minority districts, and when this case was before--

Unknown Speaker: And the court did not say that that plan also had been affected by Justice Department pressure?

Mr. Waxman: --To the contrary.

The court... I believe the court's opinion makes a point of saying that it was error for us not to have approved that plan because it was proper and not regressive.

In fact--

Unknown Speaker: That's a different point from whether the Justice Department, pressure from the Justice Department had induced the legislature to include the second.

Mr. Waxman: --Let me, if I may, Justice Scalia, repeat for you what counsel for the State of Georgia told this Court at the outset of his argument in Miller v. Johnson:

"There was a consensus politically before the Department of Justice ever got involved in the State of Georgia to try and draw a majority-minority district in East Central Georgia, no question about that fact. "

Page 3 of the transcript in Miller v. Johnson.

And there is extensive evidence in the record to support that conclusion.

Unknown Speaker: That proves nothing, Mr. Waxman.

It just proves... I mean, the political consensus could have been a consensus, look, if we don't put in at least one more majority-minority district, this thing will never be precleared by the Justice Department.

The issue is not whether there is a consensus.

The issue is whether, as you portray it, the uncoerced desire of the Georgia legislatures was to have this second district.

Mr. Waxman: Well, I would respectfully submit, Justice Scalia, that the district court found as fact, based on the evidence before it, that the Georgia legislature would have wanted to create a second majority-minority district in East Central Georgia if to do so would not subvert traditional districting principles--

Unknown Speaker: Mr.--

Mr. Waxman: --and I respectfully suggest that the court erred in enacting its plan because the illustrative plan we've provided to the Court demonstrates that that can be done.

The district court's finding in that regard, Justice Scalia, I think is entitled to review under the clear error standard.

Unknown Speaker: --Mr. Waxman, is it your position now that the 1991 plan which had the two districts was unconstitutional at least with respect to one of those districts, and therefore it's the illustrative plan that has two districts that should have been the one adopted?

Mr. Waxman: Yes.

I believe that in light of this Court's decision, subsequent decision in Miller v. Johnson and its decisions thereafter in Bush v. Vera and Shaw v. Hunt, the legislature's 1991 plan, although clearly expressing the legislature's intent for a second district in this area, would violate this Court's decisions because it is an extremely irregular, bizarre district.

The district that we have drawn in this case has no arms, no tentacles, no claws, no land bridges; it doesn't reflect any effort to go around certain racial populations to reach others.

Unknown Speaker: Mr. Waxman--

--Well, on that point, I believe it's district 2... is it Muscogee County?

Is that the way you pronounce it.

Mr. Waxman: I believe it is.

Muscogee County is--

Unknown Speaker: Which side of that map are you reading from, Justice Kennedy?

This would be the illustrative plan--

Mr. Waxman: --I can point to it if I--

Unknown Speaker: --The illustrative plan, and Bibb County is toward the north of section 2, and you split Columbus in order to make up section 2, and that's to pick up black population, and in Bibb County, which is number 11, you split Macon--

Mr. Waxman: --Yes.

Unknown Speaker: --in order to get a black population.

Mr. Waxman: It is correct that in our plan we retain completely intact 148 out of the 150 counties of Georgia outside--

Unknown Speaker: And it just so happens that the counties you split are split along white-black lines.

Mr. Waxman: --Well, there is... Justice Kennedy, there is actually nothing in the record that reflects why or precisely how our illustrative plan divides it, except to--

Unknown Speaker: It just happened that way?

Mr. Waxman: --Well, if I may finish, Your Honor, what... the only thing the record itself reflects is that we divided those same jurisdictions as did the legislature in its original 1991 plan.

Now, if I may go further, because... I think because the district court drew its own plan, even though answer Your Honor's question about why we divided the counties the way we did and how we divided it, because I think it really does go to the question of whether, under this Court's opinion in Miller v. Johnson, race was the predominant reason.

So let me go forward, because I think the district court, in drawing its own plan, took this into account and answered that question.

Muscogee County was divided for three reasons.

Number 1, to keep Fort Benning, which splits... which is in Muscogee County, intact in one district.

The 1991 plan did that, too, and also to comply with one-person one-vote requirements and lower the overall deviation between the second district and the other districts.

Bibb and Macon... Bibb County and Macon was divided both in order to achieve population equality under one-person one-vote, and to include as much of it as possible--

Unknown Speaker: Macon is the county seat of Bibb County?

Mr. Waxman: --Yes... and to include as much of it as possible with the rest of the African American concentration in the region and to be consistent with the 1991 plan.

In point of fact, the area included in our illustrative district is 80 percent of all the population in Macon and includes substantial areas that are almost entirely white, and in point of further fact, the mayor and the city council of Macon unanimously supported division of the county and city into more than one district.

Unknown Speaker: Counsel, one question I had about the DOJ illustrative plan is that apparently it was not ever put on computer to show precincts and rather, it used, what, census tracts or something?

Mr. Waxman: Yes, Your Honor.

Unknown Speaker: And so how did the district court know that if it had been put on computer for precincts that those numbers would have panned out?

It perhaps could have required a lot more adjusting and splitting to do the job ultimately.

Mr. Waxman: Justice O'Connor, the district court didn't... we submitted the plan using precincts because that was what was on our computer at the time.

The--

Unknown Speaker: You mean census tracts, not precincts, I think.

Mr. Waxman: --Using census tracts.

We subsequently obtained the precinct data both for 1992 and now in 1996, and the plan is almost exactly the same, because the precinct lines in Georgia very carefully follow census tracts, and--

Unknown Speaker: But it wasn't ever given to the district court, and I guess we have to ask whether it abused its discretion, and I just wasn't really sure--

Mr. Waxman: --Well--

Unknown Speaker: --whether it would be an abuse of discretion to not consider or adopt an illustrative plan that didn't have those closer figures in--

Mr. Waxman: --Well, I would respectfully suggest, Justice O'Connor, that it was an abuse of discretion at least not to wait for it and give us the opportunity, or try and find out whether a plan that was submitted only for illustrative purposes could, in fact, be drawn in that fashion using precincts.

The district court did not hold a hearing after we submitted our illustrative plan.

Instead, it just ruled.

We have since done the work with the State's computer and, on remand, will be able to demonstrate that this--

Unknown Speaker: --If there is a remand.

Mr. Waxman: --Of course.

Of course, Chief Justice.

Unknown Speaker: Mr. Waxman, may I ask a more basic question?

All of this would be irrelevant if the district judge was right when he said creating a second majority-minority district... this is 21a of your appendix... would require the court to engage in the unconstitutional... in unconstitutional racial gerrymandering.

That sentence seems to be saying, if you start out with the purpose of creating a majority-minority district, then no matter how neat and tidy it is, it's no good.

Mr. Waxman: Well, if that conclusion were a correct conclusion of law, that's right, but that is... that test which the court applied is not, in fact, the test that this Court has adopted in Miller v. Johnson and Bush v. Vera, which is that it is... this Court has stated that a legislature may take race into account, and may create, intentionally create majority-minority districts without incurring strict scrutiny if race was not the predominant reason, which is to say that the plaintiff must prove... if the plaintiff can prove that the legislature subordinated, substantially disregarded, or neglected traditional race-neutral districting principles.

And what we have here, with respect to the eleventh district in our illustrative plan, is a district which on five of the six traditional principles that the court enumerated in its opinion our plan does as well as or better than the court's plan.

With respect to one factor... that is, splitting county lines... in one little portion of this district we split one county line in order to include as much of Bibb County as Macon as possible with the rest of the concentrated African American population in East Central Georgia, and we submit--

Unknown Speaker: But the district judge seemed to think that if race is the driving force, then it is the predominant force, even if other factors are accommodated.

Mr. Waxman: --Well, I can't speak beyond what the court's opinion was, what the district court thought.

I cannot reconcile the district court's conclusion in this case with the articulation of the law that this Court has set forth in Miller v. Johnson and Bush v. Vera.

May I reserve the balance of my time?

Unknown Speaker: Very well, Mr. Waxman.

Mr. McDonald, we'll hear from you.

Argument of Laughlin McDonald

Mr. McDonald: Mr. Chief Justice, and may it please the Court:

One of the fundamental errors of the district court in this case was in thinking that every aspect of the 1992 plan was unconstitutional and that, accordingly, the court could proceed in drawing a remedy plan and ignore the least change principle of Upham v. Seamon.

The court adopted a plan that was maximally disruptive.

It totally ignored the policy choice of the general assembly about where to place the eleventh congressional district, and also as to what the racial composition of that district should be, and it also failed to apply the standards of section 2.

The court completely relocated the eleventh congressional district from that southeastern corridor of the State where the--

Unknown Speaker: Well, if what you say is true, Mr. McDonald, I would think that the State in the person of the attorney general would be here arguing what you're arguing, but the State appears to be on the other side.

Mr. McDonald: --Well, Your Honor, the litigants before this Court are seeking an end to the litigation, I assume, and they are asking for an affirmance, but the general assembly itself clearly articulated what the State policy was in 1991, when it enacted the first plan.

Unknown Speaker: So we should accept your version of what the general assembly wanted rather than the representatives of the State?

Mr. McDonald: Well, Your Honor, I think it's instructive to see what these litigants said on page 2 of their brief.

They explained during the remedy phase of the case they had elected not to submit a proposed redistricting plan to the district court, and the reason that they took that position was, they were not authorized, they said, to state what the legislature's policy was, so these litigants don't pretend to be surrogates for the general assembly.

They've disavowed, in fact, that they have that authority.

Unknown Speaker: Well, the problem is, I guess, that the district court found as a factual matter here that the plan passed by the Georgia legislature in '91 and then their efforts after that did not represent State policy, that they were the result of coercion by the Department of Justice, and we would have to find that's clearly erroneous, wouldn't we--

Mr. McDonald: Well--

Unknown Speaker: --to ignore that district court finding--

Mr. McDonald: --Well, Your Honor--

Unknown Speaker: --to support your view?

Mr. McDonald: --Your Honor, I would submit that that's not what the district court in fact found.

The plaintiffs, for example, never contended that the 1991 plan was unconstitutional.

There was no evidence whatever presented which would support such a finding, and the--

Unknown Speaker: And the district court in your view made no such finding?

Mr. McDonald: --That is correct, Your Honor.

I don't believe there's any finding that the 199--

Unknown Speaker: Well, I thought they did, and found that it was obtained... that it was the product of coercion when the attorney general refused to preclear.

Mr. McDonald: --That was the second and the third plan, Your Honor, but there was no such finding with respect to the first plan.

Unknown Speaker: Well, the first plan that I guess this Court reviewed and found one district unconstitutional.

Mr. McDonald: Your Honor, as I recall this Court's opinion, this Court said that the eleventh congressional district under the first plan did not violate the retrogression principle of section 5.

Unknown Speaker: Just to get our plans clear, the first plan was not precleared, am I correct about that?

Mr. McDonald: That's correct, Your Honor.

Unknown Speaker: All right.

So the first plan was not precleared.

Mr. McDonald: That's correct.

Unknown Speaker: And it's interesting, you want us to go back to a presumed legislative intent that did not obtain preclearance and there was a second legislative plan after that was declared unconstitutional.

Then the district court tells the legislature, give us a plan, please, and the legislature says well, we can't.

Mr. McDonald: The first plan was objected to, but it was not objected to, Your Honor, on the grounds that it contained two majority black districts, so the Department of Justice has not objected to that feature of it, and this Court expressly found that that feature of it would not violate the retrogression principle a second time.

As a practical matter the court... the litigants in this case want to say that John Dunne was a bad guy and that he had coerced and terrified the State, but in point of fact, Your Honor, the reason the State made a conscious, deliberate decision to adopt two majority black districts is based on a myriad of facts and circumstances.

I mean, one has to remember that there's a very large black membership in the general assembly, and those legislators were urging the State to adopt an additional majority-minority congressional district, so that was part of what was going on in the general assembly.

But one also has to see what sort of trauma the State went through in 1970 and in 1982 when it was attempting to preclear this congressional plan, because the 1972 plan was an open racial gerrymander.

It was objected to by the Department of Justice because the State had fragmented the concentration of minority population in the Atlanta area.

They had deliberately drawn Andy Young and Maynard Jackson into a district that went almost down to Augusta because they knew that they would be potential candidates, and if the 1972 plan was bad enough, the 1982 congressional redistricting plan in Georgia was an absolute total embarrassment and humiliation for the State of Georgia.

It had nothing to do with John Dunne or the Department of Justice, but the D.C. court denied preclearance to the 1982 plan because they said the State had deliberately fragmented the concentration of the minority population in the Atlanta area and it accused Ladle, the person in the general assembly, in the House, who was chair of the redistricting committee, who was the chief architect of the plan, and said he was a "racist", and there was all the findings about the N word that he used, and the contempt that he held the legislature.

The State was absolutely determined to avoid at all costs that kind of public humiliation and they wanted to do what they thought was 2 vote dilution litigation.

Since 1970 forty-six cities in the State of Georgia and 56 counties have been sued under section 2 on vote dilution grounds, and almost every one of those cases resulted in the adoption of remedial plans.

The State was just... sort of not acting in a vacuum, of course, but--

Unknown Speaker: Well, it's so difficult to know how to analyze this because there really isn't a clear plan that we can look back to as the base, that didn't have problems.

Mr. McDonald: --Well, I--

Unknown Speaker: And the district court made a number of findings here, and I assume that to support your view we have to find some of those clearly erroneous, and I'm just not sure how we do that, or which ones would lend themselves to being a clearly erroneous finding.

Mr. McDonald: --Well, Your Honor, I think the first plan enacted by the State is the best indication of what the State intended to do and would have done, and the three-judge court in fact found that the State would have adopted a second majority black congressional district, but it refused to do so itself because it was of the view that the minority population was not sufficiently compact, and--

Unknown Speaker: Someone also I think said something to the effect that it would require joining populations from Atlanta and Macon which the district court found did not share a community of interest, that it wasn't a geographically compact group, so what do we do with that kind of finding?

Mr. McDonald: --Your Honor, one of the problems in a State like Georgia is that you do have these urban areas, and then you have these rural areas--

Unknown Speaker: Wide apart... wide apart from each other.

Mr. McDonald: --That is correct--

Unknown Speaker: Yes.

Mr. McDonald: --and in the plan adopted by the court you have what I would submit to Your Honor is the best example of yoking together these widely disparate entities.

Echols County, which is right on the Florida line, is the smallest county in the State.

It's included in the court's eighth congressional district.

Unknown Speaker: Was this one of the four corners?

Mr. McDonald: No, Your Honor, that's not... the four corners are... this might be part of the southwestern corner.

Unknown Speaker: I see, number 8.

Mr. McDonald: But also Bibb County is included in there.

It's one of the largest metropolitan areas in the State, and then that eighth district goes all the way up to these counties that are very near the Metropolitan Atlanta Area, so that's precisely the kind of district--

Unknown Speaker: Well, but it was drawn with basically a nonobjectionable clean set of lines compared to the general assembly plan of 1991.

I mean, it draws kind of a wide swath from north to south, but nonetheless, pretty clean lines.

Mr. McDonald: --It aggregates a lot more counties, Your Honor, and you're entirely correct.

Unknown Speaker: But Mr. McDonald, may I interrupt you just--

Mr. McDonald: Yes, Your Honor.

Unknown Speaker: --Because there's one thing I may not understand about your answer.

You're not necessarily claiming that the 1991 plan should have been adopted by the district court, are you?

In other words, I think you're claiming that the feature of the '91 plan of having two majority-minority districts is what the district court should have adopted under Upham and Seamon.

Mr. McDonald: That's right.

Unknown Speaker: But you're not claiming that the 1991 plan as such should have been adopted by the district court.

Mr. McDonald: No.

We've never taken that position.

Unknown Speaker: Do you... what is your position in relation to the Justice Department's illustrative plan?

Mr. McDonald: That would be... is an example of what the court could do and what it was obligated to do.

It shows that you can, in fact, adopt a remedial plan that contains two reasonably compact districts that do not subordinate traditional redistricting--

Unknown Speaker: So you'd settle for that.

So... but your assertion is that it is okay to say that the legislature would have set out to create a second majority-minority district, and setting out to do that is okay?

Mr. McDonald: --It is, Your Honor, as I read the decisions of this Court, so long as you don't subordinate traditional redistricting principles to race, that a State can make a determination that it wants to be inclusive and create two majority-minority districts.

Now, what the... it really... I did some county counting over the last couple of days, and there is not a single county that was included in the 1991 version of the eleventh congressional district that ends up in the court-ordered eleventh congressional district.

Not a single county ends up in the existing eleventh congressional district.

Unknown Speaker: What eleventh does not end up, the 1991 eleventh?

Mr. McDonald: That's correct, Your Honor.

Those counties that were in--

Unknown Speaker: Was the 1991 eleventh constitutional?

Mr. McDonald: --No, it was not.

It was not, but I think--

Unknown Speaker: Well, so what difference does that make?

I mean, it was a district that the legislature had carved out to... you know, to pursue an unconstitutional objective, and that eleventh district touched how many counties?

It touched an awful lot of other districts--

Mr. McDonald: --Yes.

Unknown Speaker: --didn't it?

Mr. McDonald: And there were features of that plan that were expressly identified as being unconstitutional, and it's possible to correct those defects and not totally, absolutely ignore the policy choice of the general assembly that, where that district should go.

Unknown Speaker: But the policy choice of the general assembly was to create... specifically to create an unconstitutional district, to specifically create a district just for the sake of, other considerations aside, obtaining a majority-minority district.

Mr. McDonald: With all respect, Your Honor, I don't think that their plan was to create an unconstitutional district.

They wanted to create one that was constitutional.

They failed to do so.

But the record clearly indicates that it is possible to create one that is constitutional, that the--

Unknown Speaker: What is the record evidence, Mr. McLaughlin?

In addition to the illustrative plan, wasn't there a problem that that plan was introduced after the close of the evidence, so there was some question whether it was appropriate for it to be considered?

Mr. McDonald: --Well, Justice Ginsburg, the district court in fact did consider it, so if there was a problem it did not regard it as an insurmountable one.

But there were other plans, Your Honor, that were introduced.

The Abrams appellants, whom I represent, introduced four plans, and... the least change plan, and plan A and B and C... and those plans all created a second majority black district, and we would contend that it did so in a way that fully complied with Miller v. Johnson.

We tried to aggregate as many counties as possible.

We read the decision of this Court and the decision of the lower court.

We fixed the land bridge in Henry County.

We avoided the heroic reach to Savannah.

We cured the split in the land bridge in Effingham County.

We cured the problems in Richmond County and Augusta, where the Court said the redistricting plan of the State had linked up black neighborhoods.

We did a plan which I think was an effort and in good faith and in fact responded to all the concerns which were expressed by this Court and the district court concerning the eleventh congressional district.

Unknown Speaker: Mr. McDonald, you have just a moment or two left, and you've not addressed one of your arguments that was one of the issues raised in the petition, which was a violation of the one-person one-vote principles.

How would that help you on this other substantive aspect of your case?

I mean, to send it back to tinker with minor population deviations doesn't seem to address your main concern at all.

Mr. McDonald: It would not address the question--

Unknown Speaker: No.

Mr. McDonald: --of the creation of a second--

Unknown Speaker: No.

Mr. McDonald: --majority black district, and you're probably right about that, Your Honor.

What we think the Court should do and what we request the Court to do is to reverse and remand with instructions to the three-judge court to adopt a new remedial plan that applies the least change standards of Upham v. Seamon and that also complies with section 2 of the Voting Rights Act, and we think that if the Court does that, that such a plan would, in fact, contain two majority black districts.

Unknown Speaker: Thank you, Mr. McDonald.

General Bowers, we'll hear from you.

Argument of Michael J. Bowers

Mr. Bowers: Mr. Chief Justice, and may it please the Court:

The issue is whether the district court abused its discretion in redrawing or fixing Georgia's basically unconstitutional congressional districts.

I will address Upham v. Seamon and whether the Court adhered to Georgia's traditional districting principles.

As a preliminary matter, I would urge the Court to consider that this case may, in fact, be a case about discretion or leeway, and the question initially may be, is there any room for a State between what this Court has said is the limit in congressional district drawing in Johnson v. Miller and what the Justice Department is urging upon this Court as mandated by section 2 of the Voting Rights Act?

I think the Justice Department would say no, there's no room.

There's a perfect congruence between where this Court has left off in Johnson v. Miller and where the... section 2 of the Voting Rights Act comes to.

We must as closely as possible move toward what this Court has decided in Johnson v. Miller in complying with the Voting Rights Act, section 2.

This is nothing but another attempt at maximization, albeit with a grudging admission by the Justice Department that there is some... there are some limits which did not heretofore exist.

Unknown Speaker: Well, general, it seems to me that there's a different argument for maximization here, and it's... and I think you're going to address it, but it's the Upham and Seamon argument, and the premise of the Upham and Seamon argument is that the... sort of the latest un... the latest expression of State intentions, untainted by coercion from the Justice Department, was that there be two majority-minority districts.

And that's not maximization.

That's kind of the least change principle, and I take it your position is that the '91 plan, with its feature of two such districts, was not a valid... in effect a valid statement of the State's desires, is that correct?

Mr. Bowers: It is valid in some respects, Your Honor, but as the district court found in its order, and it's stated in footnote 9, which is at page 13a of the jurisdictional statement, you can't draw the kind of district that existed in the '91 plan for the eleventh district because what you're doing is you're joining disparate and distant minority populations, namely the urban minority population in South De Kalb County, and the rural, primarily rural urban, or primarily rural minority population located in East Central Georgia.

Unknown Speaker: Well, as I--

Mr. Bowers: You can't do that.

Unknown Speaker: --As I understand the argument that I've just heard, the Abrams least change plan and the Department of Justice's illustrative plan avoided those pitfalls.

Is that correct?

Mr. Bowers: No, sir.

I respectfully submit that that is not correct and, as to the illustrative plan, by referring to page 44a of the jurisdictional statement you can see that very closely.

Looking at the eleventh district specifically, in the northwest corner, that county, that last county is De Kalb County.

That is an urban--

Unknown Speaker: The one that's right next to five?

Mr. Bowers: --Right next to what, Your Honor?

Unknown Speaker: The one that's--

Mr. Bowers: Right next to district 5.

Unknown Speaker: --Five, yes.

Mr. Bowers: That's correct, Your Honor.

That split has never heretofore occurred with respect to De Kalb County in a congressional districting.

There is no question whatsoever, although we have not had the chance to litigate the illustrative plan, it being submitted 3 weeks after the Justice Department said on the record at about 400, page 400 of the transcript that they weren't going to submit a plan, but we know the purpose of that can only be said to be race, because you're getting all of the black population, virtually, of De Kalb County, about 212,000 people out of a district requirement of about 589,000.

Then you go up, and where else is the minority population, and the only significant minority population in this district is going to Bibb County, where you split Bibb County three ways, which again has never occurred in the history of redistricting in Georgia, you put those two populations together, and they constitute 80 percent of the minority population in this illustrative plan, and if that's not drawing a district with the primary motive being race, I don't know--

Unknown Speaker: What about the Abrams least change plan?

Has that got the same problem?

Mr. Bowers: --It's substantially the same thing, Your Honor.

Unknown Speaker: Did the... and help me out here.

I should know this, but I'm not clear on it.

Did the district court here find that, as a blanket matter that it was impossible to come up with a two minority... majority-minority districts without these features, or did it simply find that the 1991 plan involved such features as this when it came up with two majority-minority districts?

Mr. Bowers: I think it was the latter, Your Honor.

What specifically is in the record is testimony of Ms. Linda Meggers, who is the State's demographer, a recognized expert on this area, as well as the testimony of the demographer that the appellant ACLU used.

Ms. Meggers said point blank, it is impossible to draw a second minority population in this area because you don't have a large enough compact minority population.

Mr. Carter, at the very best, can be said to say that he doesn't know, so on this record there is nothing whatsoever that would mandate a district court to find that the first Gingles requirement has been satisfied, namely, this compact large minority population.

Unknown Speaker: Well, should... and here's a question I have about the way the standard should be set.

If we accept as our starting premise that there should be something like a least change principle, an Upham and Seamon principle, should the burden be on a district court like this to find that it is impossible to draw districts which come any closer to whatever the benchmark is?

So that in this case, I take it if that were the principle we would say, the opinion of the three-judge court has a hole in it here, because... and the hole is, it did not find that it was impossible, consistent with the first Miller case and normal districting principles, to come any closer to a two-district scheme than it did.

Would that... is my principle right about how we should apply Upham and Seamon, and number 2, if that's the way we should apply it, is there a defect in what the district court did here?

Mr. Bowers: I think the principle you enunciated as to Upham v. Seamon is correct, Your Honor.

I think in the application the district court has satisfied Upham v. Seamon by trying to follow Georgia's traditional districting principles using the '91 plan, the very first plan that the general assembly passed which was rejected by Justice, except as to the eleventh congressional district and what has to be done there, keeping in mind that the bulk of the population in the eleventh, even in the '91 plan, is located in some appendages which this Court acknowledged in its opinion in Johnson v. Miller had nothing to do with one another.

Augusta--

Unknown Speaker: Yes, but shouldn't the district court have to conclude that it would be impossible to come up with a two-district plan without these impermissible appendages?

Mr. Bowers: --I would respectfully submit no, Your Honor.

Unknown Speaker: Why not?

Mr. Bowers: It should not have to do that because that is dealing with its discretion or leeway that a legislature--

Unknown Speaker: Well, it's got discretion, but it's also got to worry about Upham and Seamon, and how do we know that Upham and Seamon is satisfied unless the court does, in fact, make a finding of impossibility?

Mr. Bowers: --Your Honor, I think if you will allow me to go through what the district court has done in respect to Upham v. Seamon you can... this Court can see how closely it followed.

I would respectfully submit that a finding of impossibility as to that second district is not one of the requirements, but even if it is, this Court in this case on these facts has come pretty close to saying that in footnote 9, which is at page 13a of the jurisdictional statement.

Unknown Speaker: Well, and this argument assumes, of course, that that feature of the earlier State plan which must be followed is two majority-minority districts, why... that that is sacrosanct, that if the other features, such as not splitting precincts and things of that sort, would stand in the way of it, nonetheless, for some reason the two majority-minority feature is a... an overwhelmingly determinative feature of the earlier plan.

Mr. Bowers: I agree, Your Honor.

Unknown Speaker: And are you prepared to--

--May I interrupt right there for... just to get the argument in... it seems to me you can respond to the argument that they had a duty to form two majority-minority districts in two ways.

One, they had no such duty, or two, they tried but it wasn't possible or it wasn't feasible without violating all these other principles--

It seems to me the district court, and I think your argument also, assumes that it was a permissible objective.

In fact, they had some duty to make an effort to try and create two majority-minority districts.

I think you agree with the district court on that, don't you?

Mr. Bowers: If--

Unknown Speaker: If it were... if you could do it without causing these other collateral effects.

Mr. Bowers: --Yes, Your Honor, but--

Unknown Speaker: Which is different from the argument that Justice Scalia was suggesting.

Mr. Bowers: --Yes.

Unknown Speaker: I would have thought differently from your answer to Justice Scalia, that there are a number of factors, presumably, which make up the 1991 redistricting plan, one of them is two majority-minority districts, and that the district court is obliged to consider that along with all the other factors but it's not obliged to simply take that as a be-all and end-all, that it's got to have that whatever else it sacrifices.

Mr. Bowers: Correct, Your Honor.

Only... it is only required to do so if it meets or can find met in the record the criteria set forth in Gingles, and here the court--

Unknown Speaker: But you do agree that if it can meet those criteria it had a duty to do so?

Mr. Bowers: --Yes.

Unknown Speaker: Okay.

That's--

--So that Upham basically provides a kind of presumptive principle.

This is where you ought to... this is what you ought to do if you can do it consistently with these other collateral limitations.

Mr. Bowers: Yes.

Unknown Speaker: Okay.

Mr. Bowers: I agree, Your Honor.

Here, what the district court did, it took the '91 plan which we've reflected on the composite map in front of you here in the middle, and you'll note they're almost similar, this '91 plan and what the court ultimately came up with.

It preserved the corners.

It preserved core districts in the eighth, the tenth, the fourth, also.

It drew the best it could what the general assembly had said to draw in the '91 plan, but correcting the unconstitutional defects in the second and in the eleventh, and the second and the eleventh touched all but six of the remaining districts.

Unknown Speaker: It just left out Hamlet.

Mr. Bowers: I beg your pardon?

Unknown Speaker: It was without the Hamlet, without the Prince.

It simply left out the main point, which was to have the two majority-minority districts.

Isn't it... my question really is, in respect to that, is, isn't it constitutional, or is it, in your opinion, for the legislature directly to draw a line on the basis of race where the legislature reasonably feels that that is necessary to prevent a violation of section 2 of the Voting Rights Act?

Mr. Bowers: If it is... yes, Your Honor.

Unknown Speaker: All right.

If the answer to that question is yes, then, if the legislature has tried to do that in 1991, and if you believe people should in fact in courts pay attention to legislatures and give them lots of leeway, then why shouldn't the judge here have tried to carry out that legislature's primary intention, giving it that leeway to draw those two district boundaries in a way that would reasonably have prevented a violation of the Voting Rights Act?

Mr. Bowers: Because on this record, Your Honor, there is no evidence that that district was required.

That is clear.

Unknown Speaker: Oh, yes, there--

Mr. Bowers: There's not--

Unknown Speaker: --There is lots of evidence.

The evidence when you in fact go into the section 2 part of the two... of the second district.

It's a close question, isn't it?

Mr. Bowers: --No, sir.

I was--

Unknown Speaker: The district judge doesn't think--

Mr. Bowers: --It's not that close.

Unknown Speaker: --that's a close question?

All right.

So you would say the legislature could not have reasonably thought... perhaps wrongly, but reasonably, that a second majority-minority district was necessary?

Mr. Bowers: It was--

Unknown Speaker: Is that your... is that the point?

Mr. Bowers: --It thought a second district was necessary.

Unknown Speaker: Did they reasonably think so?

Mr. Bowers: No, sir.

Unknown Speaker: If it was reasonable in their thinking so, then would you agree that the district court should, in fact, have followed their intent?

Mr. Bowers: If it were reasonable on the factual record, yes, Your Honor, but if it's not--

Unknown Speaker: Well then, I think you've changed your argument, haven't you, because I thought your... you started out arguing saying there is a realm of discretion.

What the district court did is within that realm, and therefore no abuse, no reversal.

Now I think you're saying that there wasn't discretion, that the district court could not, in fact, have done anything consistent with section 2 except come up with a one-district plan.

Mr. Bowers: --On this record that is my--

Unknown Speaker: So it isn't a discretionary matter.

You're saying as a matter of law it has to be a... on this record--

Mr. Bowers: --On this record.

Unknown Speaker: --it has to be a one-district plan.

Mr. Bowers: It can only be that if you look at what, for example, the Justice Department is putting forth in the illustrative plan.

You have to link disparate distant minority populations.

That's the only way that you can get that second district in the area of the eleventh, and that can only be for the purpose of drawing lines based upon race, which this Court has condemned as a predominant motive in Johnson v. Miller, but we would urge this Court to affirm, to give a State or a court acting in its place some leeway between what this Court has said--

Unknown Speaker: But on your view we don't have to give it leeway.

On your view, it would be appropriate to affirm by saying this is the only thing it could have done.

As a matter of law, this was required.

Isn't that correct?

Mr. Bowers: --Yes, sir, but also, it would then... that would... that holding would give us and a court acting in our stead leeway between what the Justice Department is suggesting under section 2 and what this Court has found under the Fourteenth Amendment.

Thank you.

Unknown Speaker: Thank you, General Bowers.

Mr. Parks, we'll hear from you.

Argument of A. Lee Parks

Mr. Parks: Mr. Chief Justice, and may it please the Court:

I want to first address Justice Souter's question with regard to the district court's findings.

At page 20a and 21a of the jurisdictional statement, in the opinion of the district court, the district court specifically found that it could not create a second majority-minority district in Georgia without violating the teachings of Miller.

It states there, analysis of the racial map in Georgia reveals the State's minority population is widely dispersed.

In fashioning a remedy, we considered the possibility of creating a second majority-minority district and concluded that to do so would require us to subordinate Georgia's traditional districting policies and consider race predominantly.

Now, the Solicitor General also referenced the oral argument of the State of Georgia in Miller I, and they did say that it was the legislative policy to create a second majority-minority district, but they also said at page 14, in explaining why that policy was created... this is page 14 of the oral argument... that their purpose was this.

The facts, in a nutshell, are the reality of having black people elected to office.

The general assembly in Georgia, when it did this reapportionment plan, had a simple choice: we will draw districts to have blacks elected.

You will recall in Miller I that they made the argument proportionality was a compelling State interest, and they lost that argument.

The creation of a second majority-minority district is therefore infected with that belief, that belief borne of what they had been told by the Justice Department before they began their redistricting process in 1990 that all districts that were technically possible were required under the Justice Department's melding of section 5 and section 2.

This case boils down to whether or not the eleventh district, as stated by the appellants, is required to be maintained as a majority-minority district.

The district court's findings in that regard are not clearly erroneous.

The district--

Unknown Speaker: Mr. Parks, is there anything in the court's opinion here that reflects what you just said about the Georgia legislature's frame of mind in its 1991 apportionment?

Mr. Parks: --Yes, Your Honor.

They specifically cite Linda Meggers' testimony and credit that testimony where she says, I was the reason we drew the first district.

Unknown Speaker: Where is that in the court's opinion, do you know?

Mr. Parks: I don't have the page number, Your Honor... perhaps they could find it... but they specifically cite her testimony to the effect that they believed that Georgia did have that mind set going into the process.

The DOJ in their brief pins this case on... at page 29 of their brief on this contingent.

An African American candidate cannot win a congressional election in Georgia without a majority of African American voters being put into the district.

They say that that is the standard for section 2 liability.

In our view, they have juxtaposed a constitutional violation with a statutory mandate, and whenever that occurs, the constitutional requirements prevail.

Unknown Speaker: May I ask you if you think the court's creation of the fifth district was constitutional?

Mr. Parks: Your Honor, yes, we do.

That was not litigated.

The court--

Unknown Speaker: But you do accept that as a constitutional--

Mr. Parks: --We do, Your Honor, because that... we are... the issue of section 5 retrogression, the constitutional of that is not in this case, and whether or not a district can continue on in perpetuity when there has been an original finding on vote dilution is a question we do not litigate, so we don't take that position.

The real world of this case, juxtaposed with the Department of Justice's statement as to what standard the standard of section 2 liability is, is that both minority candidates won.

They relied, rather than upon the Justice Department, upon self-help.

They found biracial coalitions.

They came out with positions that would appeal to both black and white voters, and they won.

It seems to me anomalous that we are standing here now--

Unknown Speaker: --Does the record tell us what percentage of the black voters voted for them and what percentage of the white voters did?

Mr. Parks: --No, it does not, Your Honor.

Unknown Speaker: Isn't it something like 90 percent of the blacks and 30 percent of the whites?

Mr. Parks: According to the submission of the ACLU in response to our motion to supplement the record, in the fourth district 39 percent of the whites voted for the minority candidate, but as I read a section 2 analysis, for them to be able to come in and show this Court that section 2 required a second majority-minority district as opposed to just a policy decision to create a second majority-minority--

Unknown Speaker: But isn't the issue whether, in 1991, the legislature could reasonably have thought that the Constitution... strike the Constitution... section 2 of the Voting Rights Act required them to have a second minority district?

They would have read Gingles.

They would have read this Court's opinions.

They would have thought that quite possibly, not definitely, section 2 requires a second majority-minority district.

Mr. Parks: --The--

Unknown Speaker: Is that... I mean, and if that's so, why shouldn't the district court have to pay attention to that legislative decision when... instead of just making up its own plan?

Mr. Parks: --Because the State of Georgia in the entire... from the beginning to end of Miller v. I never took the position that the Voting Act... Rights Act required anything more than one majority-minority district.

It never accepted the Department of Justice's argument that there was a fair question on that point.

It made a separate argument that as long as the district was not bizarre, and as long as they felt that diversity in the delegation was a policy choice the legislature was free to make, that they could draw those districts.

That is very different from saying that their decision to draw that district to a two majority-minority plan the first time around was motivated by any believe that section 2 required it.

Unknown Speaker: But normally... normally... I mean, maybe there's a different rule here, but normally I thought you looked at a legislator's... legislature's motive by and large by what they do.

I mean, legislatures are subject always to people threatening them with all kinds of things, and all kinds of people saying all kinds of things.

Mr. Parks: Right.

Unknown Speaker: Are we supposed to look to when Congress enacts something as to whether a Congressman or Senator was under threat that large groups of people would vote for someone else, or someone would bring a lawsuit?

Mr. Parks: Well--

Unknown Speaker: Don't we normally look to what they did?

Mr. Parks: --Your Honor, you're correct, but however, we have an extraordinary case here where we have the State coming and confessing what happened.

But be that as it may, we have a district court's opinion that goes beyond that.

Unknown Speaker: But you're willing to accept as the State's policy that a district court must follow the legislature's incorrect--

Mr. Parks: No, Your Honor.

Unknown Speaker: --perception of the law?

Well, I thought you were in response to Justice Breyer--

Mr. Parks: No, Your Honor.

I'm saying that--

Unknown Speaker: --That if the legislature incorrectly believed that it had to adopt a second district--

Mr. Parks: --It's indefinitive--

Unknown Speaker: --the court, knowing now that it didn't have to, must give--

Mr. Parks: --No.

Unknown Speaker: --No, then--

--give effect to the legislature's mistaken belief that it had to.

Mr. Parks: No, Your Honor.

I--

Unknown Speaker: No.

No.

If the answer's no, then you mean that every plan in the United States that any legislature adopted thinking it was necessary under section 2 is open to relitigation on the question of whether or not it really violates section 2, after all, a matter that's very, very hard to know, and what would be left of leaving to legislatures the power to write voting districts if we accepted that argument?

Mr. Parks: --Your Honor, that argument argues for accepting the district court's opinion.

It stands as a surrogate for the legislature.

It made a best judgment call that section 2 did not require this.

The record does not substantiate a finding that Georgia acted with that intent to adhere to section 2, but for totally different reasons.

There--

Unknown Speaker: Mr. Parks, could you explain one thing to me that does seem connected to the legislative will?

The judge seemed reticent to create a second majority-minority district.

I'm looking at 22a, and this is the spillover of footnote 16.

The judge said that the counsel for the Speaker of the Georgia House of Representatives said that if the court included a second majority-minority district it would be set in stone.

What was the fear that the district judge--

Mr. Parks: --Retrogression, Your Honor, that if the district court acted here without a firm belief that the Voting Rights Act required a second majority-minority district, that retrogression would basically create that district eternally, that it would be forever saddled with it.

Unknown Speaker: --The legislature couldn't change it and eliminate it.

Mr. Parks: Could never change--

Unknown Speaker: Whereas if the legislature wants an additional one, there's no problem--

Mr. Parks: --Absolutely not, Your Honor.

Unknown Speaker: --with the legislature altering the district court's plan.

Mr. Parks: Right, and towards the end of the opinion, Justice Ginsburg, the court makes, I think, a critical point that ties in with the importance of State sovereignty in this area.

It said, were we to do this, were we to take a step that we do not find authorized or justified by the Voting Rights Act, we leave a political footprint on the State of Georgia that will never be washed away.

That, in their view, was a decision that the Georgia legislature could make.

When we talk about intent, let's remember the 1995 special session.

The Georgia legislature could not agree on this issue because of the difficulties the constitutional... this constitutional area of the law presented, so it did not act, and it deferred back to the legislature the opportunity to create that district.

Unknown Speaker: --back to the court.

Mr. Parks: Back to the court, yes, Your Honor.

But it said also this plan is a caretaker plan.

We do no harm with it.

We do only what we were required to do to remedy the constitutional defects and we leave it to the legislature to change that plan should it no desire the next time it comes into session, or it can wait till the next millennium.

Now, that, to me, is giving everybody a little bit of what they want.

It respects State sovereignty.

Seven years of litigation over this plan, three to go before the--

Unknown Speaker: Isn't it correct... isn't it correct, if the district court's analysis of the demographics here is correct the legislature could not create a second majority-minority district?

Mr. Parks: --Well, the legislature can do whatever it chooses.

It will have to--

Unknown Speaker: Well, but not... it can't violate the Constitution--

Mr. Parks: --That's right.

Unknown Speaker: --as construed by a majority of this Court.

Mr. Parks: That's correct, but--

Unknown Speaker: So that then under the demographics, under the findings, they just simply couldn't create a second one, as I understand it.

Mr. Parks: --They could not--

Unknown Speaker: Isn't that right?

If the findings are all correct--

Mr. Parks: --They would face a Miller challenge.

Unknown Speaker: --Sure, and they would lose on the Miller challenge.

Mr. Parks: That's right, but that--

Unknown Speaker: They could bring it to court anyway.

Mr. Parks: --They--

Unknown Speaker: Whereas if it came out the other way they couldn't even get to court.

It's just--

Mr. Parks: --That's correct, Your Honor.

Unknown Speaker: --Retrogression, period.

Is there--

--It's the end of the case.

I'm sorry.

Were you through?

Yes?

Is there evidence in the record that shows the racial distribution in relation to these lines at all?

Mr. Parks: Yes, Your Honor, there is.

I don't have... but the--

Unknown Speaker: Where would we find that?

Mr. Parks: --That is in the record that shows... you're talking about the... each plan, each district and each plan?

Unknown Speaker: That shows us on any kind of map where the--

Mr. Parks: The racial concentrations are?

Unknown Speaker: --The racial concentrations are in Georgia.

Mr. Parks: The record... each map that was put in has a, right next to it a racial map, a racial composition map of those districts, and through the colorations of red, yellow, orange, and green will show you that.

Unknown Speaker: We would find it in the record.

Mr. Parks: It's in the record.

Unknown Speaker: But not in the appendix or anything.

Mr. Parks: That's right, Your Honor.

That's right, Your Honor.

Unknown Speaker: Did you want to comment on the percentage of deviation in the plan that was adopted?

Mr. Parks: I will briefly, Your Honor.

I think that the appellants really are foreclosed from that argument.

Their plan, with the exception of the illustrative plan offered to the district court, had deviations far in excess of what the court plan offered.

I think that the concurring opinion in White v. Weiser, which Mr. Chief Justice Rehnquist joined in back in 1973, really says it all.

We cannot put this down to a question of slide rule precision.

We have an average deviation here of 328 people in districts that total 589,000.

The deviation argument here--

Unknown Speaker: Isn't that the deviation between the two plans, the Abrams plan and your plan?

Mr. Parks: --The illustrative plan--

Unknown Speaker: That's not the absolute--

Mr. Parks: --That's the difference between the illustrative plan, which was their best deviation plan, and the court's plan.

Unknown Speaker: --Yes, but that... it's about 3,000... the court's plan is about 3,000 from a zero variation, is it not?

Mr. Parks: If you added all eleven districts up, the court's plan is better in four districts, the DOJ's plan is better in five districts, and they tied on two.

It came down to a.11 variation for the court's plan average for the districts,.07 for the DOJ's plan, 328 people.

What's happening here, and this speaks to 2000, the deviation argument has nothing to do with the invidious devaluation of a person's vote any more.

It is a way to get in the door to gerrymander.

They didn't divide Muscogee County to reduce the variation.

They divided it to defectively create a majority-minority district in the second congressional district.

That district, when you take out Fort Benning's population... the other reason they gave... which is a nonvoting population, effectively becomes a majority-minority district, and the appellants achieved--

Unknown Speaker: Well, can't people in the military claim residence in Georgia and vote--

Mr. Parks: --Your Honor, they--

Unknown Speaker: --while living in Fort Benning?

Mr. Parks: --They do, but as a--

Unknown Speaker: And some probably do.

Mr. Parks: --That's correct, Your Honor, but as a districting principle, when they design these districts they generally consider military population to be generally nonvoting.

The effect of it is to accentuate the minority vote.

So the deviation issue, in my answer to your question, I think we have de minimis deviation here, and the court more than justified the 328 people by--

Rebuttal of Seth P. Waxman

Chief Justice Rehnquist: Thank you, Mr. Parks.

The case is submitted.

Your time expired as you were leaving the lectern.

Mr. Waxman: I'm sorry, Your Honor.

Chief Justice Rehnquist: The case is submitted.