Here is the syllabus. Links to the opinions at my blog.
GEORGIA v. ASHCROFT, ATTORNEY GENERAL, ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
No. 02–182. Argued April 29, 2003—Decided June 26, 2003
Georgia’s 1997 State Senate districting plan is the benchmark plan for
this litigation. That plan drew 56 districts, 11 of them with a total
black population of over 50%, and 10 of them with a black voting age
population of over 50%. The 2000 census revealed that these num-
bers had increased so that 13 districts had a black population of
at
least 50%, with the black voting age population exceeding 50% in 12
of those districts. After the 2000 census, the Georgia General As-
sembly began redistricting the Senate once again. It is uncontested
that a substantial majority of Georgia’s black voters vote Democratic,
and that all elected black representatives in the General Assembly
are Democrats. The Senator who chaired the subcommittee that de-
veloped the new plan testified he believed that as a district’s black
voting age population increased beyond what was necessary to elect a
candidate, it would push the Senate more toward the Republicans,
and correspondingly diminish the power of African-Americans over-
all. Thus, part of the Democrats’ strategy was not only to maintain
the number of majority-minority districts and increase the number of
Democratic Senate seats, but also to increase the number of so-called
“influence” districts, where black voters would be able to exert a sig-
nificant—if not decisive—force in the election process. The new plan
therefore “unpacked” the most heavily concentrated majority-
minority districts in the benchmark plan, and created a number
of
new influence districts, drawing 13 districts with a majority-black
voting age population, 13 additional districts with a black voting age
population of between 30%–50%, and 4 other districts with a black
voting age population of between 25%–30%. When the Senate
adopted the new plan, 10 of the 11 black Senators voted for it. The
Georgia House of Representatives passed the plan with 33 of the 34
2 GEORGIA v. ASHCROFT
Syllabus
black Representatives voting for it. No Republican in either body
voted for the plan, making the votes of the black legislators necessary
for passage. The Governor signed the Senate plan into law in 2001.
Because Georgia is a covered jurisdiction under §5 of the Voting
Rights Act of 1965, it must submit any new voting “standard, prac-
tice, or procedure” for preclearance by either the United States At-
torney General or the District Court for the District of Columbia in
order to ensure that the change “does not have the purpose [or] effect
of denying or abridging the right to vote on account of race or color,”
42 U. S. C. §1973c. No change should be precleared if it “would lead
to a retrogression in the position of racial minorities with respect to
their effective exercise of the electoral franchise.” Beer v.
United
States, 425 U. S. 130, 141. In order to preclear its 2001 plan, Georgia
filed suit in the District Court seeking a declaratory judgment
that
the plan does not violate §5. To satisfy its burden of proving nonret-
rogression, Georgia submitted detailed evidence documenting, among
other things, the total population, total black population, black voting
age population, percentage of black registered voters, and the overall
percentage of Democratic votes in each district; evidence about how
each of these statistics compared to the benchmark districts; testi-
mony from numerous participants in the plan’s enactment that it was
designed to increase black voting strength throughout the State
as
well as to help ensure a continued Democratic majority in the Senate;
expert testimony that black and nonblack voters have equal chances
of electing their preferred candidate when the black voting age
population of a district is at 44.3%; and, in response to the United
States’ objections, more detailed statistical evidence with respect
to
three proposed Senate districts that the United States found objec-
tionable—Districts 2, 12, and 26—and two districts challenged by the
intervenors—Districts 15 and 22. The United States argued that the
plan should not be precleared because the changes to the boundaries
of Districts 2, 12, and 26 unlawfully reduced black voters’ ability
to
elect candidates of their choice. The United States’ evidence focused
only on those three districts and was not designed to permit the court
to assess the plan’s overall impact. The intervenors, four African-
Americans, argued that retrogression had occurred in Districts 15
and 22, and presented proposed alternative plans and an expert re-
port critiquing the State’s expert report. A three-judge District Court
panel held that the plan violated §5, and was therefore not entitled to
preclearance.
Held:
1. The District Court did not err in allowing the private litigants to
intervene. That court found that the intervenors’ analysis of the plan
identifies interests not adequately represented by the existing par-
Cite as: 539 U. S. ____ (2003) 3
Syllabus
ties. Private parties may intervene in §5 actions assuming they meet
the requirements of Federal Rule of Civil Procedure 24, NAACP v.
New York, 413 U. S. 345, 365, and the District Court did not abuse its
discretion in allowing intervention in this case, see id., at 367. Mor-
ris v. Gressette, 432 U. S. 491, 504–505, in which the Court held that
that the decision to object belongs only to the Attorney General, is
distinguished because it concerned the administrative, not the judi-
cial, preclearance process. Morris itself recognized the difference be-
tween the two. See id., at 503–507. Pp. 11–13.
2. The District Court failed to consider all the relevant factors
when it examined whether Georgia’s Senate plan resulted in a retro-
gression of black voters’ effective exercise of the electoral franchise.
Pp. 11–27.
(a) Georgia’s argument that a plan should be precleared under §5
if it would satisfy §2 of the Voting Rights Act, 42 U. S. C. §1973, is
rejected. A §2 vote dilution violation is not an independent reason to
deny §5 preclearance, because that would inevitably make §5 compli-
ance contingent on §2 compliance and thereby replace §5 retrogres-
sion standards with those for §2. Reno v. Bossier Parish School Bd.,
520 U. S. 471, 477. Instead of showing that its plan is nondilutive
under §2, Georgia must prove that it is nonretrogressive under
§5.
Pp. 13–15.
(b) To determine the meaning of “a retrogression in the position
of racial minorities with respect to their effective exercise of the elec-
toral franchise,” Beer, supra, at 141, the statewide plan must first be
examined as a whole: First, the diminution of a minority group’s effec-
tive exercise of the electoral franchise violates §5 only if the State can-
not show that the gains in the plan as a whole offset the loss in a par-
ticular district. Second, all of the relevant circumstances must
be
examined, such as minority voters’ ability to elect their candidate of
choice, the extent of the minority group’s opportunity to participate
in the political process, and the feasibility of creating a nonretrogres-
sive plan. See, e.g., Johnson v. De Grandy, 512 U. S. 997, 1011–1012,
1020–1021. In assessing the totality of the circumstances, a minority
group’s comparative ability to elect a candidate of its choice is an im-
portant factor, but it cannot be dispositive or exclusive. See, e.g.,
Thornburg, 478 U. S., at 47–50. To maximize such a group’s electoral
success, a State may choose to create either 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, e.g., id., at 48–49, or
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 their candidates, see e.g., id., at 88–89
(O’CONNOR, J., concurring in judgment). Section 5 does not dictate
4 GEORGIA v. ASHCROFT
Syllabus
that a State must pick one of these redistricting methods over the
other. Id., at 89. In considering the other highly relevant factor in a
retrogression inquiry—the extent to which a new plan changes the
minority group’s opportunity to participate in the political process—a
court must examine whether the plan adds or subtracts “influence
districts” where minority voters may not be able to elect a candidate
of choice but can play a substantial, if not decisive, role in the elec-
toral process, cf., e.g., Johnson, supra, at 1007. In assessing these in-
fluence districts’ comparative weight, it is important to consider “the
likelihood that candidates elected without decisive minority support
would be willing to take the minority’s interests into account.”
Thornburg, 478 U. S., at 100 (O’CONNOR, J., concurring in judgment).
Various studies suggest that the most effective way to maximize mi-
nority voting strength may be to create more influence or coalitional
districts. Section 5 allows States to risk having fewer minority rep-
resentatives in order to achieve greater overall representation of a
minority group by increasing the number of representatives sympa-
thetic to the interests of minority voters. See, e.g., id., at 87–89, 99.
Another method of assessing the group’s opportunity to participate in
the political process is to examine the comparative position of black
representatives’ legislative leadership, influence, and power. See
Johnson, supra, at 1020. Maintaining or increasing legislative posi-
tions of power for minority voters’ representatives of choice, while not
dispositive by itself, can show the lack of retrogressive effect. And it
is also significant, though not dispositive, whether the representa-
tives elected from the very districts created and protected by the
Voting Rights Act support the new plan. Pp. 15–21.
(c) The District Court failed to consider all the relevant factors.
First, although acknowledging the importance of assessing the
statewide plan as a whole, the court focused too narrowly on proposed
Senate Districts 2, 12, and 26, without examining the increases in
the black voting age population that occurred in many of the other
districts. Second, the court did not consider any factor beyond black
voters’ comparative ability to elect a candidate of their choice. It im-
properly rejected other evidence that the legislators representing the
benchmark majority-minority districts support the plan; that the
plan maintains those representatives’ legislative influence; and that
Georgia affirmatively decided that the best way to maximize black
voting strength was to adopt a plan that “unpacked” the high concen-
tration of minority voters in the majority-minority districts. In the
face of Georgia’s evidence of nonretrogression, the United States’ only
evidence was that it would be more difficult for minority voters
to
elect their candidate of choice in Districts 2, 12, and 26. Given
the
evidence submitted in this case, Georgia likely met its burden of
Cite as: 539 U. S. ____ (2003) 5
Syllabus
showing nonretrogression. Section 5 gives States the flexibility to
implement the type of plan that Georgia has submitted for preclear-
ance—a plan that increases the number of districts with a majority-
black voting age population, even if it means that minority voters in
some of those districts will face a somewhat reduced opportunity
to
elect a candidate of their choice. Cf. Thornburg, supra, at 89
(O’CONNOR, J., concurring). While courts and the Justice Department
should be vigilant in ensuring that States neither reduce minority
voters’ effective exercise of the electoral franchise nor discriminate
against them, the Voting Rights Act, as properly interpreted, should
encourage the transition to a society where race no longer matters.
Pp. 21–27.
(d) The District Court is in a better position to reweigh all
the
facts in the record in the first instance in light of this Court’s explica-
tion of retrogression. P. 27.
195 F. Supp. 2d 25, vacated and remanded.
O’CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined.
KENNEDY, J., and THOMAS, J., filed concurring opinions. SOUTER,
J.,
filed a dissenting opinion, in which STEVENS, GINSBURG, and BREYER,
JJ., joined.
--
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlaw.blogspot.com