OCTOBER TERM, 1996
ABRAMS ET AL. v. JOHNSON ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA
No. 95-1425. Argued December 9, 1996-Decided June 19, 1997*
The electoral district lines for Georgia's congressional delegation are here a second time, appeal now being taken from the District Court's rulings and determinations on remand after Miller v. Johnson, 515 U. S. 900, in which this Court affirmed the finding that the State's Eleventh District was unconstitutional because race was a predominant factor in its drawing, id., at 915-917. The plan challenged contained three majorityblack districts, and after remand the complaint was amended to challenge another of these, the then-Second District, which the trial court found was also improperly drawn under Miller. The court deferred to Georgia's Legislature to draw a new plan, but the legislature could not reach agreement. The court then drew its own plan, containing but one majority-black district, the Fifth; this Court declined to stay the order; and the 1996 general elections were held under it. The appellants, various voters and the United States, now seek to set the trial court's plan aside, claiming that it does not adequately take into account the interests of Georgia's black population.
Held: The District Court's redistricting plan is not unconstitutional. pp.79-101.
(a) The trial court did not exceed its remedial power under the general rule of Upham v. Seamon, 456 U. S. 37, 43 (per curiam), whereby courts drawing voting district lines must be guided by the legislative policies underlying the existing plan, to the extent they do not lead to violations of the Constitution or the Voting Rights Act of 1965 (Act). Appellants' argument that this rule required the trial court to adopt three majority-black districts, as in the 1992 plan at issue in Miller, or two such districts, as in the Georgia Legislature's original 1991 plan, is unavailing, given the background against which the legislature-and later the trial court-attempted to draw districts. The considerable evidence of Justice Department pressure on Georgia to create the maximum number of majority-black districts, leading the state legislature to act based on an overriding concern with race, disturbed any sound basis for the trial court to defer to the 1991 plan; the unconstitutional pre-
*Together with No. 95-1460, United States v. Johnson et al., also on appeal from the same court.cralaw
dominance of race in the 1992 plan's provenance of the Second and Eleventh Districts caused them to be improper departure points; and the proposals for either two or three majority-black districts in plans urged in the remedy phase of this litigation were flawed by evidence of predominant racial motive in their design. Thus, the trial court acted well within its discretion in deciding it could not draw two majority-black districts without engaging in racial gerrymandering. Pp. 79-90.
(b) The court-ordered plan does not contravene § 2 of the Act, a violation of which occurs if "it is shown that the political processes leading to ... election ... are not equally open to participation by members of [a racial minority] ... ," 42 U. S. C. § 1973(b). The Court rejects appellants' contrary position premised on impermissible vote dilution in the trial court's failure to create a second majority-black district. A plaintiff seeking to establish such dilution must, inter alia, meet three requirements set forth in Thornburg v. Gingles, 478 U. S. 30, 50-51. Because the trial court found, without clear error, that the black population was not sufficiently compact for a second majority-black district, the first of these factors is not satisfied. Nor can it be said, given evidence of significant white crossover voting, that the trial court clearly erred in finding insufficient racial polarization to meet the second and third Gingles factors, that the minority group is "politically cohesive" and that the majority votes sufficiently as a bloc to enable it to defeat the minority's preferred candidate. The Court disagrees with appellants' arguments that the trial court's § 2 findings are not owed deference because its rulings that § 2 required maintenance of the Fifth District but not creation of a new majority-black district are inconsistent, because it did not hold a separate hearing on whether its remedial plan violated § 2, and because it barred private intervention to defend the Second District's constitutionality. Pp. 90-95.
(c) The plan does not violate § 5 of the Act, which requires that covered jurisdictions obtain either administrative preclearance by the United States Attorney General or approval from the United States District Court for the District of Columbia for any voting-procedure change, and that such a change "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. The section aims to prevent changes leading 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. Although a court-devised redistricting plan such as the one at issue need not be precleared under § 5, Connor v. Johnson, 402 U. S. 690, 691 (per curiam), the court should take into account the appropriate § 5 standards in fashioning such a plan, McDaniel v. Sanchez, 452 U. S. 130, 149. Even were this Court to accept one of appellants' proposed benchmarkscralaw