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BREYER, J., dissenting

Sanders, 372 U. S. 368 (1963); see also Morris v. Fortson, 261 F. Supp. 538, 541 (ND Ga. 1966); Lodge v. Buxton, 639 F. 2d 1358, 1378 (CA5 1981) (racial bloc voting in Burke County); Carrollton Branch of NAACP v. Stallings, 829 F. 2d 1547, 1559 (CA11 1987) (racial bloc voting in Carroll County); Cross v. Baxter, 604 F. 2d 875, 880, n. 8 (CA5 1979); Paige v. Gray, 437 F. Supp. 137, 158 (MD Ga. 1977) (Albany, Ga.); Pitts v. Busbee, 395 F. Supp. 35, 40 (ND Ga. 1975) (Fulton County); Bailey v. Vining, 514 F. Supp. 452, 461 (MD Ga. 1981) (Putnam County); Wilkes County v. United States, 450 F. Supp. 1171, 1174 (DC 1978); see generally E. Foner, Reconstruction: America's Unfinished Revolution, 1863–1877, pp. 423-424 (1988); McDonald, Binford, & Johnson, Georgia, in Quiet Revolution in the South: The Impact of the Voting Rights Act, 1965–1990, pp. 67–74 (C. Davidson & B. Grofman eds. 1994).

The Georgia Legislature was likely aware of the many unfortunate consequences that have flowed from this history. They include the facts that, when Congress first enacted the VRA, fewer than 30 percent of African-Americans eligible to vote in Georgia had registered to vote, ibid., and that no African-American had represented Georgia in Congress since Reconstruction, App. 140, when Congressman Jefferson Franklin Long briefly represented the State. B. Ragsdale & J. Treese, Black Americans in Congress, 1870–1989, p. 81 (1990).

The Georgia Legislature also might have thought that some degree of (indeed, a less than proportionate amount of) majority-minority districting could help to overcome some of the problems these facts suggest. Forty-two members of Georgia's (180 member) House of Representatives themselves were elected from majority-black districts; 30 of those members are black, 12 are white. App. 116. One hundred thirty-eight members of Georgia's House were elected from majority-white districts; 1 of those members is black, 137 are white. Ibid. Forty-three members of Georgia's (56 mem

BREYER, J., dissenting

ber) Senate are elected from majority-white districts; all of those members are white. Ibid. Until 1972, Georgia had not elected any African-American Members of Congress since Reconstruction. 1 Reference Library of Black America 67 (K. Estell ed. 1994). Since then, it has elected a total of four. Sherman, Diluting Black Votes for a Stronger Voice; Politicians Debate Impact of Remap, Atlanta JournalConstitution, Dec. 17, 1995, p. G3. Each of those Members originally represented a majority-minority district (although two of them were recently reelected as incumbents after boundary changes created white majorities in their districts). Ante, at 93.

These circumstances help to explain why the 1991 Georgia Legislature might have thought that the creation of two majority-minority districts would help overcome racerelated barriers—barriers erected by history and prejudice, reinforced by inertia and nonparticipation. Not only the three-district plan, but also the 1991 plan and the first (unprecleared) 1992 plan suggest that that is what the legislature did think. And I can find no reason in the record not to take at face value what all the legislature's plans thereby suggest, namely, that two majority-minority districts represent a significant legislative “policy and preference.”

B

The majority says that the legislature's two-district preference is not owed Upham deference because a plan that embodied that preference is (or would be) “flawed by evidence of predominant racial motive,ante, at 90, or based upon race to a degree not reasonably necessary to comply with $2 of the VRA, 42 U. S. C. $ 1973. The majority means that a two-district plan would be unlawful—that it would violate the Constitution as interpreted in Miller. I cannot agree.

Miller considered the constitutionality of a three-district plan. Its five-Justice majority included one Member who

BREYER, J., dissenting

subsequently made clear that, even if racial considerations "predominate” in a State's drawing of a district boundary, that district is nonetheless lawful (because there is a compelling, hence redeeming, interest) if the State has “a strong basis in evidence for concluding” that the district would otherwise violate VRA $2. Bush, 517 U. S., at 994 (O'CONNOR, J., concurring); see also Miller, 515 U. S., at 921; Shaw v. Reno, 509 U. S. 630, 656–657 (1993). That “(strong basis in evidence' need not take any particular form,” Bush, 517 U. S., at 994 (O'CONNOR, J., concurring), and where it is present, the State “may create a majority-minority district without awaiting judicial findings,” ibid.; see also Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 289–291 (1986) (O'CONNOR, J., concurring); McDaniel v. Barresi, 402 U. S. 39, 41 (1971). The majority does not reject this standard. Ante, at 90–91. And it cannot deny that there is a “strong basis in the evidence” for believing that, after the 1990 census, VRA $ 2, $5, or both, required the creation of a second majority-minority district.

As the majority agrees, $2 requires a second majorityminority district here, if the “totality of [the] circumstances” suggests that racial minorities are excluded from "participat[ing] in the political process” and “elect[ing] representatives of their choice," 42 U. S. C. $ 1973(b), and the evidence shows that (1) the minority group “is sufficiently large and geographically compact to constitute a majority” in a second "single-member district"; (2) the minority group is “politically cohesive”; and (3) the majority “votes sufficiently as a bloc to enable it ... usually to defeat the minority's preferred candidate.” Thornburg v. Gingles, 478 U. S. 30, 50–51 (1986).

The majority discusses only these last (Gingles) requirements at any length. As to the first requirement-compactness—the plans before the District Court raised two possibilities: first, the creation of a majority-minority district in southwest Georgia—in approximately the area labeled Dis

BREYER, J., dissenting

trict 2 in the court's plan (Appendix, 1995 Court Plan, infra); and second, the creation of the majority-minority district in southeastern central Georgia—in approximately the area labeled District 11 in the Justice Department's Illustrative Plan (Appendix, Illustrative Plan, in fra).

The first possibility could have involved a compactly shaped district. Regardless, the DOJ's Illustrative Plan (which the District Court considered on the merits, 922 F. Supp., at 1561, n. 4) suggests a newly drawn District 11 with an African-American population of 54.60 percent, an African-American voting age population of 51.04 percent, and a population deviation of 0.10. (This deviation percentage—the highest in the Illustrative Plan—was still lower than the deviation in two of the districts contained in the Court Plan.) It suggests that the District Court's statement that “the only way Georgia could create a majorityminority district out of the minority concentrations in eastcentral Georgia was to link” rural and urban communities by using “land bridges and appendages” similar to those used in the unconstitutional 1992 plan, 922 F. Supp., at 1566, n. 15, was erroneous. The proposed district is different from its unconstitutional predecessor. It does not try to build a land bridge linking southern Atlanta with Savannah. Cf. Miller, supra, at 908. And its boundaries are far more regular.

Moreover, it strikes me that the District Court's finding that a district in east-central Georgia that encompassed both rural and urban African-American communities could not be "compact” confuses a number of issues. Shaw v. Reno and Miller compactness, which concerns the shape or boundaries of a district, differs from $2 compactness, which concerns a minority group's compactness. Additionally, where (as here) the racial minority group is geographically compact, see Appendix, Illustrative Plan, infra, the fact that communities are rural or urban has more to do with political cohesiveness—whether communities share common intereststhan with $2 compactness. To my knowledge, no case has

BREYER, J., dissenting

ever held that rural and urban racial minorities cannot together create a compact minority for $2 compactness purposes. Moreover, it seems clear that rural and urban African-American voters who live near each other might share important common interests; and I have found nothing in the record that suggests that the rural and urban black voters here, living near each other, do not share many common interests—in respect to many important legislative matters. See Karlan & Levinson, Why Voting Is Different, 84 Calif. L. Rev. 1201, 1216_1220 (1996); see also Gingles, supra, at 64 (citing Butler, Constitutional and Statutory Challenges to Election Structures: Dilution and the Value of the Right to Vote, 42 La. L. Rev. 851, 902 (1982), and S. Verba & N. Nie, Participation in America 151–152 (1972)).

The District Court considered the remaining two Gingles factors (the minority's “political cohesiveness” and the majority's “bloc voting") under a single rubric, which the majority calls “the extent of racially polarized voting.” Ante, at 92. Of course, Georgia's history, including the political results that I have mentioned before—the fact that AfricanAmerican representatives have come almost exclusively from majority-minority districts—strongly support the existence of that “polarization.” Moreover, appellants produced experts who testified that the percentage of District 11 white voters willing to vote for a black candidate varied from 0 to 26 percent, while the number of black voters willing to vote for a white candidate varied from 3 to 11 percent. App. 54-61, 69–70, 72. Other expert testimony suggested less polarization (placing the relevant numbers at 22 to 38 percent white-for-black and 20 percent to 23 percent black-for-white). Johnson v. Miller, 864 F. Supp., at 1390. But that other testimony rested in considerable part on local (and judicial, and primary) election results with multiple candidates or other special features that discouraged racial bloc voting, and for that reason they may have overstated

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