Section 5 of the Voting Rights Act of 1965 (VRA) required that certain states preclear changes to their redistricting plans with either the U.S. Attorney General or a federal court.1 The state had the option to strategically choose either avenue. The preclearance decision then rested on a determination of whether or not the new plan led to a worsening or “retrogression” in the position of racial minorities in that state when it came to representation. Preclearance was required for states with a history of racial discrimination in voting prior to 1965 when the VRA was passed. Georgia was one of the covered jurisdictions.
The majority’s opinion in this case detailed the long, complicated history of Georgia’s prior attempts at redistricting after the 1990 census (23.3 percent of the opinion was spent discussing this history).2 These plans reached the federal courts in Miller v. Johnson (1995)3 and Johnson v. Miller (1996).4 In Miller, the U.S. Supreme Court held Georgia’s 1991 plan unconstitutional because the court determined race was the “predominant, overriding factor explaining” Georgia’s redistricting decisions.5 The decision in Miller became the seminal Supreme Court case forbidding racial gerrymandering. After Miller, Georgia passed another plan in 1995, which the federal district court in Johnson also struck down as unconstitutional racial gerrymandering. After mediation with the Department of Justice, Georgia passed a new plan in 1997 that the DOJ precleared. This 1997 plan became the benchmark plan for this case.
After the 2000 census, the Democratic Party controlled the Georgia General Assembly, and as Justice O’Connor pointed out, its 2001 redistricting plan pursued the very narrow goal of increasing the number of Democratic controlled Senate seats. The Democrats sought to create “influence” districts where Black voters would help Democrats win seats regardless of the racial identity of the candidate running.6 In order to do this, they attempted to “unpack” the Black majority-minority districts by decreasing their Black majorities and increasing the percentage of Black voters in other districts. 7 This would have had the desired effect of maintaining the Black majorities in these districts, but given Democrats a better chance to win in other districts since Black voters in Georgia vote overwhelmingly with the Democratic Party. The evidentiary record demonstrated that the Democrats in the Georgia Assembly were not concerned with protecting the VRA, or even the preferences of Black voters. Their primary concern was winning Democratic seats.
This was essentially the conclusion reached by the lower Federal District Court. After Georgia submitted its 2001 redistricting plan to the District Court, it denied preclearance after a thorough review of the evidence on retrogression submitted by experts, elected representatives, and lay witnesses for the state and the federal government. The burden of proof was on the state to prove by a preponderance of the evidence that its plan was not retrogressive. The District Court found that the state failed to meet the preponderance threshold.8 Traditionally, since District Court judges are well-acquainted with the political realities within a state, they are in the best position to make this determination.9 As the fact-finding court, the District Court provided an exhaustive discussion of the key witness testimony and evidence presented by both sides.
The main precedent the court relied on in its interpretation of § 5 of the VRA10 was Beer v. United States (1976).11 As the court explained in Beer, the purpose of the preclearance requirement was to stop the practice of jurisdictions enacting discriminatory voting laws and then keeping those laws in effect until a challenge worked its way through the courts. Even if the law was struck down, the jurisdiction would just enact a new discriminatory law. Hence, Congress enacted the preclearance requirement to put the federal government ahead of this practice instead of constantly behind. In Beer, the court wrote:
When it adopted a 7-year extension of the Voting Rights Act in 1975, Congress explicitly stated that “the standard [under § 5] can only be fully satisfied by determining on the basis of the facts found by the Attorney General [or the District Court] to be true whether the ability of minority groups to participate in the political process and to elect their choices to office is augmented, diminished, or not affected by the change affecting voting . . .” H.R. Rep. No. 94-196, p. 60 (emphasis added). In other words the purpose of § 5 has always been to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.12
Two parts of this passage were notable. First, it indicated that fact-finding was to be done by the Attorney General or the District Court. The job of the appellate courts was to look for clear error in this determination and not to review the evidence de novo. Second, the court clearly stated that the ability of minority groups to elect representatives of their choice to office shall not be diminished by the change in the law.
Beer remained the Supreme Court’s precedent on preclearance for decades. It provided a straightforward, mathematical approach to preclearance—if a redistricting plan decreased the ability of minority voters to elect representatives of their choosing, then preclearance would be denied. It did not matter if the redistricting plan benefited a particular political party or increased the percentages of minority voters across multiple districts. The state had to prove by a preponderance that the plan would not diminish the choices of minority voters. This was the formula the District Court followed in its decision below.
Nevertheless, the majority in this case ignored the District Court’s findings, reviewed the evidence de novo and created a new standard for preclearance review. Rather than following the straightforward approach provided by Beer, the majority muddied the waters to the point where applying § 5 across all jurisdictions has become impracticable.
In the majority opinion, Justice O’Connor cited precedent to a greater extent than other election law cases. Table 4.1 indicates that 9.4 percent of the opinion utilized case law to argue for the majority’s interpretation of retrogression, 5.3 percent to differentiate the § 2 standard13 from the § 5 standard, 3.7 percent to explain the VRA, and 3.7 percent on Miller v. Johnson (1995). Thus, at least 22 percent of the opinion cited case law or statutory construction.
Table 4.1 Justice O’Connor’s Majority Opinion, Georgia v. Ashcroft (2003)
|
Content |
Number of lines |
Percentage of opinion |
|
References to lower federal district court opinions |
31 |
12.65 |
|
Background of Georgia’s 2001 redistricting plan |
29 |
11.84 |
|
Background of Georgia’s 1990s redistricting plans |
28 |
11.43 |
|
Majority’s interpretation of retrogression(with citation) |
23 |
9.39 |
|
Georgia’s arguments defending its redistricting plan |
21 |
8.57 |
|
Majority’s interpretation of retrogression(w/o citation) |
20 |
8.16 |
|
Differentiating § 2 (vote dilution) standard from § 5 (retrogression) (with citation) |
13 |
5.31 |
|
Voting Rights Act § 5 explained (with citation) |
9 |
3.67 |
|
Attorney General Ashcroft’s arguments against preclearance |
9 |
3.67 |
|
Miller v. Johnson (1995) case precedent |
9 |
3.67 |
|
Majority’s ruling on intervention by private parties |
9 |
3.67 |
Notes: N = 245. This table presents data for content that appeared at least nine times in the opinion.
Source: Table created by author based on data from Georgia v. Ashcroft, 539 U.S. 461 (2003).
Justice O’Connor frequently relied on her own concurring opinion in Thornburg v. Gingles (1986). Thornburg involved a redistricting plan in which the state created multimember districts with white majorities in areas where single-member districts with a Black majority existed. In that case, she argued for the importance of coalitional districts. When citing her concurrence in Thornburg, Justice O’Connor wrote:
In order to maximize the electoral success of a minority group, a State may choose to create a certain number of “safe” districts, in which it is highly likely that minority voters will be able to elect the candidate of their choice. See Thornburg v. Gingles, 478 U.S., at 48-49, 92 L Ed 2d 25, 106 S Ct 2752; id., at 87-89, 92 L Ed 2d 25, 106 S Ct 2752 (O’Connor, J., concurring in judgment). Alternatively, a state may choose to create a greater number of districts in which it is likely—although perhaps not quite as likely as under the benchmark plan—that minority voters will be able to elect candidates of their choice. See id., at 88-89, 92 L Ed 2d 25, 106 S Ct 2752 (O’Connor, J., concurring in judgment).14
According to her interpretation, the retrogression test was not about assessing whether Black voters could elect a candidate of their choice, but about whether they had the opportunity to exert influence over the election of a candidate. In making this point, Justice O’Connor also relied heavily on Johnson v. De Grandy (1994).15 By citing De Grandy, Justice O’Connor suggested that a state’s plan was not retrogressive if it had the effect of increasing the number of representatives “sympathetic to the interests of minority voters.”16
Justice O’Connor’s use of Thornburg and De Grandy was misleading, though. Neither of those cases supported the proposition that the ability of minority voters to “influence” the election of candidates, or elect representatives “sympathetic to minority voters” was enough to satisfy the requirements for preclearance. In Thornburg, the court stated that if the white majority in a district voted consistently as a bloc, and minority voters within that district were therefore impeded from electing candidates of their choosing, then there was evidence of § 2 vote dilution. Thus, if the state wanted to dilute the voting strength of minority voters in majority-minority districts, it had the burden of proving that minority voters would be able to elect a candidate of their choosing in the coalition districts. Otherwise, the plan was retrogressive.
Moreover, the cases Justice O’Connor relied upon involved § 5 retrogression, which required a different standard of analysis than § 2 vote dilution. Thornburg established a three-part test for determining vote dilution under § 2, and the court had consistently maintained that the same test did not apply to § 5 inquiries.17 A § 2 inquiry involved an electoral law or practice that caused an inequality for minority voters, whereas, a § 5 inquiry compared a new redistricting plan to the old redistricting plan.18 Therefore, compliance with § 2 did not mean the state had passed the standard for preclearance under § 5. Under § 2, the state only had to show that its plan was not diluting the strength of Black voters and opportunities for them to elect candidates of their choice. Conversely, the purpose of § 5 was to prevent backsliding. The question for the court was whether the new redistricting plan was worse for minority voters than the old benchmark plan. Section 5 analysis involved a more practical, mathematical approach. If a state chose to decrease the number of majority-minority representatives from the old plan, it had to show where those numbers would be made up in the new plan. In other words, the new plan had to at least maintain the status quo.
While the Democratic leadership in Georgia may have been oblivious to the long-term ramifications of their redistricting decisions, the justices who joined the majority opinion in Georgia v. Ashcroft knew exactly what they were doing—diluting the strength of the VRA. Ashcroft was a major salvo in the war against the VRA in Southern states. Undeniably, this was a victory for the Republican Party since minority candidates are almost always Democrats and this decision decreased their chances of getting elected.
The majority opinion left the false impression that the vast majority of Black leaders in Georgia supported this redistricting plan. However, the District Court went into great detail regarding the opposition to the plan, which the court barely mentioned. The ACLU filed an amicus brief on behalf of a coalition of civil rights groups in opposition to this new interpretation of retrogression.19 The Georgia Coalition for the Peoples’ Agenda (GCPA), included representatives from the following: The Concerned Black Clergy, Georgia Association of Black Elected Officials, Georgia Coalition of Black Women, and the Georgia NAACP, among others. If any of the justices genuinely believed this plan would benefit Black voters in the long run, the strong opposition to it by representatives of some of the foremost civil rights organizations in the country should have raised a red flag.
The GCPA’s amicus brief stated, “Minority influence theory, moreover, is frequently nothing more than a guise for diluting minority voting strength.”20 The record from the District Court provided evidence that Black members of the Georgia Senate voted with the plan because they feared the consequences of the Democratic Party losing its tenuous hold on power in Georgia. The GCPA wrote, “The state’s demographer, Ms. Meggers, said that most of the black senators went along with the Democrats’ plan because if the Democrats failed to control the house and senate, ‘all existing African American chairs of committees would be lost.’”21 Clearly, these state senators were less concerned with protecting the rights of Black voters, than with protecting their own political fortunes. Viewing the record in its entirety, it is puzzling how the justices in the majority could have concluded that this new interpretation of retrogression was going to benefit Black voters in the long run.
The dissent, written by Justice Souter, agreed with the majority’s view that simply decreasing the number of majority-minority districts in the state did not automatically amount to retrogression under the VRA if there was a shift from supermajority districts to coalition districts. The burden was on the state to show that, even if minority voters did not have the ability to elect a candidate of their choice on their own, there were enough supportive nonminority voters in the district to help them accomplish the same goal. That is to say, it is not enough for minority voters to have influence in the district, they must be able to achieve election results similar to what they achieved before the redistricting. Otherwise, it follows, the effect of the decrease in majority-minority districts was retrogressive because minority voters lost the ability to choose a candidate of their choice. On this point, the dissent sided with the District Court’s opinion.
The District Court concluded that the resolution of this issue depended on the level of racial polarization in each district. If racial groups consistently voted as distinct blocs in a district, then a decrease in minority voters would decrease minority power. On the other hand, in districts with low racial polarization, where nonminority voters frequently crossed over, than a decrease in the proportion of Black voters might not decrease their power. The District Court criticized the state of Georgia for failing to address this point. In fact, the expert testimony presented to the lower court failed to even address the issue of racial polarization in the districts.
Following the District Court, the dissent insisted that merely having “influence” is not enough.22 Minority groups must be able to exercise real political power. The dissent took issue with the majority’s argument that as long as a candidate elected without overwhelming support was willing to take into consideration minority interests than there was no retrogression. Justice Souter wrote:
The history of § 5 demonstrates that it addresses changes in state law intended to perpetuate the exclusion of minority voters from the exercise of political power. When this Court held that a State must show that any change in voting procedure is free of retrogression it meant that changes must not leave minority voters with less chance to be effective in electing preferred candidates than they were before the change.23
Furthermore, the dissent raised the issue of accurately measuring minority “influence” in a district.24 Do courts look at the words or actions of an incumbent while in office or a candidate’s promises? How do courts measure candidate sympathy toward minority interests? The dissent pointed out the lack of guidance given by the justices in the majority for addressing these questions. What made the majority’s analysis even more ambiguous was its suggestion that a powerful legislator, such as a committee chairperson, elected from a majority-minority district could offset the loss of power from two or more majority-minority districts with ordinary candidates. In other words, the majority found it feasible for states to place a value in terms of political power on the legislators from each district. As the dissent pointed out, this created a new problem—how do we measure the value of a legislator? Are some committee chairs more valuable than others? What about a legislator who authors a significant piece of legislation, or is good at deal-making? What about a popular legislator with a large online following? What the justices in the majority suggested was unquantifiable.
Instead of evaluating the District Court’s decision for clear error, the majority conducted its own novel review of the record, and at times even tried to improve the record for the state of Georgia. The District Court ruled that the state failed to meet its evidentiary burden, and therefore, the Supreme Court’s job was to determine if that decision constituted clear error. The dissent chastised the majority for overstepping its bounds and conducting what amounted to a de novo review and making its own evidentiary findings. The majority reweighed testimony and made judgments about the credibility and competence of witnesses. By doing so, the justices failed to conduct a simple clear error review.
NOTES
1. Voting Rights Act of 1965 § 5, 52 U.S.C. § 10101.
2. Georgia v. Ashcroft, 539 U.S. 461 (2003).
3. Miller v. Johnson, 515 U.S. 900 (1995).
4. Johnson v. Miller, 929 F.Supp. 1529 (S.D. Ga. 1996).
5. Miller, 515 U.S. at 928.
6. Ashcroft, 539 U.S. at 470.
7. Id.
8. Georgia v. Ashcroft, 195 F.Supp.2d 25 (D.D.C. 2002).
9. Thornburg v. Gingles, 478 U.S. 30, 80 (1986).
10. Voting Rights Act of 1965 § 5, 52 U.S.C. § 10101.
11. Beer v. United States, 425 U.S. 130 (1976).
12. Beer, 425 U.S. at 141.
13. Voting Rights Act of 1965 § 2, 52 U.S.C. § 10101.
14. Ashcroft, 539 U.S. at 480.
15. Johnson v. De Grandy, 512 U.S. 997 (1994).
16. Ashcroft, 539 U.S. at 483.
17. Id. at 478.
18. Id.
19. Georgia Coalition for the Peoples’ Agenda as Amicus Curiae in Support of Appellees, Georgia v. Ashcroft 539 U.S. 461 (2003) (no. 02-182).
20. Amicus Brief for GCPA, at 16.
21. Amicus Brief for GCPA, at 18 (citing 195 F.Supp.2d at 42).
22. Ashcroft, 539 U.S. at 494.
23. Id.
24. Id. at 495.