Johnson v. De Grandy Page 2

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Media for Johnson v. De Grandy

Audio Transcription for Oral Argument - October 04, 1993 in Johnson v. De Grandy

Joel I. Klein:

Because it's not just a failure of proof, it's that you cannot prove geographical compactness, a fact that the United States concedes by suggesting that you basically concentrate additional districts in Dade County.

But I think you're exactly right, Justice O'Connor, and that's why I'd like to start with the district court's opinion, which, after all, is the case that brought us up here on appeal.

And make no mistake about it--

Sandra Day O'Connor:

And the proof, by everybody, basically focused on Dade County.

Joel I. Klein:


The United States contests otherwise, but I think there's no support in the record.

First of all, the district court's opinion, of course, talks only about Dade County.

It made the Gingles compactness, the Gingles cohesion, and the Gingles white-bloc voting findings in Dade County.

It found vote dilution of voters in Dade County.

The United States went first.

They had the burden of proof.

They put on evidence only about Dade County.

We moved for a directed verdict.

They said they proved Gingles in Dade County.

It seems to me that on that record the only issue is vote dilution in Dade County.

Now, as to that, which the district court, in fairness, did address.

Where its error is is in its notion that somehow proportionality isn't a defense.

The district court said, look, we applied Gingles two and three, and we find that there's cohesion and white-bloc voting.

We can create more districts than the State did in Dade County, and so we're going to impose 11 rather than 9 districts.

That is, of course, a maximization principle, and it would apply equally well to any municipality.

If you had a city council with five people on there and you had a 40 percent minority in the city, if they lived compactly you could create, just as a matter of math, three out of five districts.

It happens every time.

Now, our submission would be section 2 obviously doesn't require that.

Where the district court went wrong is in thinking that you don't have to temper the Gingles factors by a proportionality finding, something that the Court in Gingles itself obviously did.

And the reason that is, is section 2 provides a comparative standard.

In other words, you have to have the same opportunity as others.

Well, when you create 11 out of 18 districts in Dade County that are majority Hispanic, you are diminishing the opportunity of white voters.

That's exactly how you do this.

And therefore, what you've done is you've created a far greater opportunity for Hispanic voters than you would for white voters, and that's not what the statute requires.

So I think proportionality is an absolute touchstone, it has to be.