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BREYER, J., dissenting

JUSTICE BREYER, with whom JUSTICE STEVENS, JUSTICE SOUTER, and JUSTICE GINSBURG join, dissenting.

Georgia elects 11 Members of the United States House of Representatives. Georgia's African-American voting age population is just over 1.7 million, or about 27 percent of a total voting age population of about 6.5 million. See Miller V. Johnson, 515 U. S. 900, 906 (1995). In 1992 Georgia's Legislature redrew congressional district boundaries so as to create an African-American voting age majority in 3 of 11 districts. This Court held that three-district plan unconstitutional. Id., at 928. On remand, the District Court, inter alia, drew up a new redistricting plan with one majorityminority district. Johnson v. Miller, 922 F. Supp. 1556, 1560–1561 (SD Ga. 1995). The basic legal issue before us now is whether the District Court should have retained (not one but) two majority-minority districts.

The majority holds that the District Court could lawfully create a new districting plan that retained only one such district. But in my view that decision departs dramatically from the Georgia Legislature's preference for two such districts—a preference embodied in the legislature's earlier congressional district plans. A two-district plan is not unconstitutional. And the District Court here, like the District Court in Upham v. Seamon, 456 U. S. 37, 43 (1982) (per curiam), "was not free ... to disregard the political program of the ... Legislature.” For that reason, and others, I dissent.

I The majority fully understands the relevance, and the importance, here of this Court's Upham decision. In Upham the Court said:

“Just as a federal district court ... should follow the policies and preferences of the State, as expressed ... in the reapportionment plans proposed by the state legislature, whenever adherence to state policy does not detract from the requirements of the Federal Constitution,

BREYER, J., dissenting

a district court should similarly honor state policies in the context of congressional reapportionment. Id., at 41 (quoting White v. Weiser, 412 U. S. 783, 794–795

(1973)). The majority here, referring to this language, agrees:

“[A] court, as a general rule, should be guided by the legislative policies underlying the existing plan, to the extent those policies do not lead to violations of the Constitution or the Voting Rights Act.” Ante, at 79 (citing

Upham, supra, at 43). It is therefore common ground among us that the District Court should have drawn boundaries so as to leave two majority-minority districts rather than oneunless there was no such state policy or preference; unless the creation of two such districts would have violated the Constitution or the Voting Rights Act of 1965; or unless doing so simply would have proved impractical in light of other important districting objectives. See Upham, supra, at 41-42 (quoting White, supra, at 794–795). Unlike the majority, I cannot find present here any of these three countervailing justifications.

A

No one denies that, if one looks at the redistricting plans proposed by the Georgia Legislature, one will find in them expressions of state “policies and preferences'" for two majority-minority districts. 456 U. S., at 41; see also Appendix to this opinion (Appendix), 1991 Plan, infra. After the 1990 Census, which increased the size of Georgia's congressional delegation from 10 to 11, App. in Miller v. Johnson, O. T. 1994, No. 94–631, p. 9, the state legislature began a lengthy political process of redistricting and considered the majority-minority district issue, among others. Id., at 10–14; see also Deposition of Linda Meggers, Record 11–17, 20-22, 32–33, 85 (May 6, 1994). The legislature proposed one plan in 1991 with two such districts. See Appendix,

BREYER, J., dissenting

1991 Plan, infra. When the United States Department of Justice (DOJ or Justice Department) denied preclearance under $5 of the Voting Rights Act of 1965 (VRA), 42 U. S. C. § 1973, the legislature proposed a second plan, which also contained two such districts. Subsequently the legislature proposed a third plan with three such districts—a plan approved by the Justice Department but struck down by this Court in Miller, supra.

What the District Court and the majority deny is that the "preferences” expressed in these three redistricting plans reflect the Georgia Legislature's true preference. The District Court said that “Georgia's current plan was not the product of Georgia's legislative will,” but rather “was tainted by unconstitutional DOJ interference” into the “process” that produced the plan. 922 F. Supp., at 1560. The majority repeats the District Court's comment about DOJ's “thorough ‘subversion of the redistricting process' since the 1990 census,” ante, at 84, adds that the “State was predominantly driven" by “steady Justice Department pressure,” ante, at 86, and concludes:

“Interference by the Justice Department ... disturbed any sound basis to defer to the 1991 unprecleared plan ...." Ante, at 90.

I believe, however, that the majority's conclusion—its reason for refusing to recognize the Georgia Legislature's twodistrict preference—is wrong both as a matter of fact and as a matter of law.

The conclusion is factually inadequate because the testimony cited, ante, at 86–87, to show unusual DOJ pressure in the 1991 redistricting process shows nothing unusual. It shows only that the Justice Department told Georgia that it must comply with the VRA, which statement Georgia legislators might have considered an exhortation to create more than one majority-minority district. Tr. 16 (Apr. 18, 1994); id., at 431-433 (Oct. 30, 1995); Deposition of Linda Meggers,

BREYER, J., dissenting

supra, at 20. Indeed, the record indicates that a number of Georgia legislators affirmatively wanted two majorityminority districts. Tr. 431–432 (Oct. 30, 1995); Deposition of Linda Meggers, supra, at 22, 32. It also shows that the 1991 two-district plan was the result of an “'understanding' between the leadership in the legislature and the black caucus. Ante, at 87; see also Tr. 32 (Apr. 18, 1994); id., at 431-432 (Oct. 30, 1995); Deposition of Linda Meggers, supra, at 22, 32; that the 1991 “two district” plan (as the State conceded) "was not perceived as a “racial gerrymander,'ante, at 86 (quoting Brief for Appellants Miller et al. in Miller v. Johnson, O. T. 1994, No. 94-631, p. 49); and that the 1991 “two district” plan (as the District Court found), “like most redistricting efforts, was the culmination of committee meetings, public hearings, examination of various districting proposals, and many hours spent with an extremely sophisticated computer.” Johnson v. Miller, 864 F. Supp. 1354, 1363 (1994). Indeed, much of the departmental "interference” to which the majority refers took place after adoption of the 1991 plan, see ante, at 80; Tr. 21, 39–40, 43, 75 (Oct. 30, 1995); Deposition of Linda Meggers, supra, at 79–80; Miller, 515 U. S., at 906–907; App. in No. 94-641, p. 16, and likely reflected departmental concern related to Georgia's voting discrimination history. See Busbee v. Smith, 549 F. Supp. 494, 500, aff’d, 459 U. S. 1166 (1982); App. 139–140.

The majority is legally wrong because this Court has said that a court should determine a State's redistricting preferences by looking to the “'plans proposed by the state legislature,'Upham, 456 U. S., at 41 (quoting White, 412 U. S., at 794–795), not by evaluating the various political pressures that might have led individual legislators to vote one way rather than another (or, for that matter, by reviewing after-the-fact testimony regarding legislative intent). Cf. Upham, supra, at 41; White, supra, at 794–795; see also Karcher v. Daggett, 462 U. S. 725, 740 (1983). “Districting plans,”” like other legislative Acts, “ are integrated bundles

BREYER, J., dissenting

of compromises, deals, and principles.” Bush v. Vera, 517 U.S. 952, 1059 (1996) (SOUTER, J., dissenting) (quoting Pildes & Niemi, Expressive Harms, “Bizarre Districts,” and Voting Rights: Evaluating Election-District Appearances after Shaw v. Reno, 92 Mich. L. Rev. 483, 585-586 (1993)). District plans, like other legislative Acts, may reflect not only reasoned argument but also political pressures, brought to bear by many different individuals and groups using subtle or unsubtle suggestions, promises, or threats of votes, support, publicity, and even lawsuits.

How can a court say that a legislative Act is legitimatethat it reflects legislative preferences or policies—when those who reason or cajole (or threaten suit) are farmers, businessmen, or consumer groups, but that the same legislative Act becomes illegitimate—that it does not reflect "true" legislative policy or preference—simply because those who seek to persuade (or threaten suit) represent the Justice Department. One cannot say that the Justice Department's power is any less legitimate than that exercised by the many other groups that seek to influence legislative decisions; and its employees' sworn duty to uphold the law would seem more suitably characterized as a reason for paying greater attention to its views rather than as a reason for heeding them less. Regardless, I am not aware of any legal principle that supports the kind of distinction (among legislative pressures) that the District Court made; and the District Court's necessary reliance upon such a distinction, by itself, should warrant vacating the District Court's decision.

Moreover, what reason is there to believe that Georgia's Legislature did not “really” want the two majority-minority districts that its earlier plans created? There is—as I indicated earlier-evidence that a number of legislators did want two majority-minority districts. See supra, at 106. And the legislature was aware of Georgia's long, welldocumented history of past discrimination in voting. See Busbee, supra; Rogers v. Lodge, 458 U. S. 613 (1982); Gray v.

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