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Opinion of the Court
had ample opportunity to present evidence of the need for a second majority-black district under $2 at the remedy hearing, in which they fully participated. The finding that appellants have not shown the threshold Gingles factors for a $2 violation is owed deference, and we find it not clearly
The private appellants contend the District Court's plan also violates $5 of the Voting Rights Act. Although the Justice Department did not include this claim in its jurisdictional statement, it agrees with private appellants and briefed the issue.
As we noted above, $5 requires covered jurisdictions to obtain either administrative preclearance by the Attorney General or approval from the United States District Court for the District of Columbia for any change in a “standard, practice, or procedure with respect to voting,” and requires that the proposed change “not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color.” 42 U. S. C. $ 1973. We have explained that “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.” Beer v. United States, 425 U. S. 130, 141 (1976).
The question arises whether a court decree is subject to $5. We have held that “[a] decree of the United States District Court is not within reach of Section 5 of the Voting Rights Act” such that it must be precleared. Connor v. Johnson, 402 U. S. 690, 691 (1971) (per curiam). The exception applies to judicial plans, devised by the court itself, not to plans submitted to the court by the legislature of a covered jurisdiction in response to a determination of unconstitutionality. McDaniel v. Sanchez, 452 U. S. 130, 148–152 (1981). Here, the District Court made clear it had devised its own plan, a proposition not in dispute. In Sanchez, we Opinion of the Court
emphasized language in a Senate Committee Report saying that, although preclearance does not apply to court-devised plans, “'in fashioning the plan, the court should follow the appropriate Section 5 standards, including the body of administrative and judicial precedents developed in Section 5
Id., at 149 (quoting S. Rep. No. 94–295, p. 19 (1975)). This is a reasonable standard, at the very least as an equitable factor to take into account, if not as a statutory mandate.
Appellants, however, have some difficulty fixing on a benchmark against which to measure any retrogression. Private appellants say the benchmark should be either the State's initial 1991 plan, containing two majority-black districts, or the State's “policy and goal of creating two majority black districts.” Brief for Appellants 48. The Justice Department, for its part, contends the proper benchmark is the 1992 precleared plan, altered to cure its constitutional defects.
Here, as we have noted above in our discussions of both Upham and $ 2, appellants have not demonstrated it was possible to create a second majority-black district within constitutional bounds. So, even were we to accept one of their proposed benchmarks, their desired remedy would be unconstitutional. As it happens, none of appellants' proposed benchmarks is appropriate. The private appellants' first proposal was not in effect in Georgia because it was refused preclearance. It thus could not operate as a benchmark under the Attorney General's regulations:
“In determining whether a submitted change is retrogressive the Attorney General will normally compare the submitted change to the voting practice or procedure in effect at the time of the submission. If the existing practice or procedure upon submission was not in effect on the jurisdiction’s applicable date for coverage ... and is not otherwise legally enforceable under section 5, it cannot serve as a benchmark, and ... the
Opinion of the Court
comparison shall be with the last legally enforceable practice or procedure used by the jurisdiction.” 28 CFR $51.54(b)(1) (1996).
See also Holder v. Hall, 512 U. S. 874, 883–884 (1994) (“Under $5, then, the proposed voting practice is measured against the existing voting practice .... The baseline for comparison is present by definition; it is the existing status. ... [T]here is little difficulty in discerning the two voting practices to compare to determine whether retrogression would occur”); Reno v. Bossier Parish School Board, 520 U. S. 471, 478 (1997). There are sound reasons for requiring benchmarks to be plans that have been in effect; otherwise a myriad of benchmarks would be proposed in every case, with attendant confusion. This rule is all the more appropriate when one considers the attempt to use as a benchmark the State's supposed policy of creating two majority-black districts. And the Justice Department's proposed benchmark—the 1992 plan shorn of its constitutional defects—was also never in effect. Nor can the 1992 plan, constitutional defects and all, be the benchmark. Section 5 cannot be used to freeze in place the very aspects of a plan found unconstitutional.
The appropriate benchmark is, in fact, what the District Court concluded it would be: the 1982 plan, in effect for a decade. 922 F. Supp., at 1569, n. 20. Appellants have not shown that black voters in any particular district suffered a retrogression in their voting strength under the court plan measured against the 1982 plan. Absent such proof, there is no violation of $5. We reject appellants' assertion that, even using the 1982 plan as a benchmark, the court's plan is retrogressive. They claim that under the 1982 plan 1 of the 10 districts (10%) was majority black, while under the District Court's plan 1 of 11 districts (9%) is majority black, and therefore blacks do not have the same electoral opportunities under the District Court's plan. Under that logic, each time a State with a majority-minority district was allowed to add
Opinion of the Court
one new district because of population growth, it would have to be majority-minority. This the Voting Rights Act does not require.
Finally, appellants contend the District Court's plan violates the constitutional guarantee of one person, one vote under Article I, $2. This provision requires congressional districts to achieve population equality “as nearly as is practicable.” Wesberry v. Sanders, 376 U. S. 1, 7–8 (1964). Court-ordered districts are held to higher standards of population equality than legislative ones. A court-ordered plan should “ordinarily achieve the goal of population equality with little more than de minimis variation." Chapman v. Meier, 420 U. S. 1, 26–27 (1975); Connor v. Finch, 431 U. S. 407, 414 (1977) (same). Here the District Court was not designing districts to remedy a one-person, one-vote violation, but courts should keep in mind that "absolute population equality [is] the paramount objective.” Karcher v. Daggett, 462 U. S. 725, 732 (1983). Slight deviations are allowed under certain circumstances. Chapman, supra, at 26 (“With a court plan, any deviation from approximate population equality must be supported by enunciation of historically significant state policy or unique features"); Connor, supra, at 419–420 (same); Karcher, supra, at 740 (“Any number of consistently applied legislative policies might justify some variance, including, for instance, making districts compact, respecting municipal boundaries, preserving the cores of prior districts, and avoiding contests between incumbent[s]”).
To help in interpreting what follows, we explain a few terms. Overall population deviation is the difference in population between the two districts with the greatest disparity. Average population deviation is the average of all districts' deviation from perfect one-person, one-vote allocation. If population allocation in Georgia were perfect, each district would have 588,928 people, according to 1990 census data.
Opinion of the Court
Here, the District Court plan has an overall population deviation of 0.35%, and an average deviation of 0.11%. The plan has a lower deviation than: the 1992 plan (with its 0.93% overall deviation and its 0.35% average deviation); the 1982 plan; or “any other plan presented to the Court which was not otherwise constitutionally defective.” 922 F. Supp., at 1561. Private appellants and amici in fact proposed plans with much higher deviations. ACLU 1A, the “least change” plan, had an overall population deviation of 0.94%; Abrams C had an overall deviation of 0.99%; and the Lewis-Gingrich Amici-R plan came in last place with an overall deviation of 1.86%. The only plans with lower overall deviations than the court's plan were the Justice Department's Illustrative Plan (0.19%) and the ACLU's Abrams A (0.29%), whose constitutional infirmities are discussed above.
The District Court recited in detail those state policies and conditions which support the plan's slight deviations. The court explained Georgia's "strong historical preference" for not splitting counties outside the Atlanta area, 922 F. Supp., at 1561, and for not splitting precincts, id., at 1562. (The court observed that some splitting of precincts was unavoidable in Cobb County because of noncontiguous annexation patterns, and that it had split some precincts in Clayton County to achieve lower population deviations. Id., at 1562, n. 6.) The court acknowledged that maintaining political subdivisions alone was not enough to justify less than perfect deviation in a court plan. See, e. g., Kirkpatrick v. Preisler, 394 U. S. 526, 533–534 (1969) (“[W]e do not find legally acceptable the argument that variances are justified if they necessarily result from a State's attempt to avoid fragmenting political subdivisions by drawing congressional district lines along existing county, municipal, or other political subdivision boundaries"). The District Court, in conformance with this standard, considered splitting counties outside the Atlanta area, but found other factors "unique to Georgia” weighed against it. See Chapman, supra, at 26. These in