Miller v. Johnson – Oral Argument – April 19, 1995

Media for Miller v. Johnson

Audio Transcription for Opinion Announcement – June 29, 1995 in Miller v. Johnson

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William H. Rehnquist:

We’ll hear argument next in Number 94-631, Miller v. Johnson, consolidated with United States v. Johnson.

Spectators are admonished, do not talk until you get outside the courtroom.

The Court remains in session.

Mr. Walbert, you may proceed.

David F. Walbert:

Mr. Chief Justice and may it please the Court:

We are in this courtroom today almost exactly one half century after the decision by this Court in Colgrove v. Green.

I think that case is particularly important to us today just to remember what Justice Frankfurter said there as he warned against a foray into the political thicket.

William H. Rehnquist:

Wasn’t that overruled later?

David F. Walbert:

That was… for the last 30 years, Your Honor, this Court has navigated that political thicket through Baker v. Carr and Reynolds, but I would suggest to this Court that we’re at a fork in the road where instead of going through a manageable political thicket where one person, one vote decisions are made based on mathematics, we are standing at the edge of a precipice where if Shan is applied like the district court did here, the standards of open-ended review of why the legislature did this, why they did that, the goodness or the badness and the reasonableness of the particular reapportionment decisions, we would respectfully submit on behalf of the State of Georgia that we have a whole new kind and character of political thicket, not like what this Court has ever gone through before.

Antonin Scalia:

Is there an issue about the “why” here?

I thought in this case–

David F. Walbert:

Absolutely, Your Honor.

Antonin Scalia:

–as in the other one, there’s no doubt that the object was to create a majority minority district.

David F. Walbert:

The difference–

Antonin Scalia:

Is that contested?

David F. Walbert:

–That there was a purpose and a goal of drawing a majority minority–

Antonin Scalia:

If you’d like to say purpose or goal instead of object, that’s okay with me, but that was indeed the purpose or goal, to create a majority minority–

David F. Walbert:

–The only difference that we have on this, Your Honor, is whether that was the predominant objective.

There was indeed a purpose to draw that goal, but we have… I think I could not state the argument better than Justice Breyer asked the question.

It is meaningless in these cases to have a district court try and determine what the predominant, substantial, significant type of decision is on how the lines are drawn.

There was a purpose always in this case.

There was a consensus politically before the Department of Justice ever got involved in the State of Georgia to try and draw a majority minority district in East Central Georgia, no question about that fact.

David H. Souter:

–There certainly wasn’t a consensus to draw a third one.

David F. Walbert:

That is correct, Your Honor.

David H. Souter:

Yes.

David F. Walbert:

As a matter of fact, that is correct.

In terms of the second one, the Eleventh District that is at issue here, the one that the findings of the district court are made upon and the one that the judgment of the district court in this case are involved with, the Eleventh, however, in that location generally, East Central Georgia, there was indeed a consensus politically to have a district of this general location.

William H. Rehnquist:

Well, Mr. Walbert, following Brown v. Board of Education there were a number of challenges to school districting in the north where there had never been segregation by law, and those challenges were based on the idea that the school district, the school boards drew racially sensitive district lines tending to keep blacks in one district, and those kind of inquiries were exactly the same sort of inquiry here, what was the predominant purpose of the school board, and apparently those matters were dealt with without any great difficulty.

David F. Walbert:

I would have to beg to differ with Your Honor’s characterization of the relative complexity of the two kinds of cases.

This Court and the evidence in this case, this Court has said any number of times, and the evidence is undisputed if on one point in this case that reapportionment is the most complex, politically complex matter that ever comes before a General Assembly.

William H. Rehnquist:

Well, I think if you asked a school board what was the most complex matter came before it that the school board would probably say redistricting–

David F. Walbert:

Well–

William H. Rehnquist:

–Drawing attendance zones.

David F. Walbert:

–Your Honor, I think that the relative complexity of that and the hundreds of issues of the 236 members of the General Assembly of the State of Georgia, the two would pale by comparison.

I think that is the evidence in this case.

I don’t–

William H. Rehnquist:

So you say that although the motive inquiry was handled apparently without any undue difficulty in the claims of de facto segregation, the similar motive inquiry can’t be handled in a case like this?

David F. Walbert:

–It is unquestionably at least a whole order of magnitude much more sophisticated and much more complicated on the first hand.

On the other hand, we’re talking about politics.

We’re talking about that very thing that should never be in the courts when it doesn’t absolutely have to be, attendance line drawing and the judgments of the district courts about the whys, the wherefores, and the wisdom of attendance line drawing is something that courts should, and maybe could, manage.

William H. Rehnquist:

Well, why should they manage that?

David F. Walbert:

Well, that’s what this Court held they can.

I’m talking about the relative ability–

William H. Rehnquist:

I don’t think the Court… this is a little bit… I don’t think the Court held that.

Go ahead.

David F. Walbert:

–In terms of politics, Your Honor, the critical distinction between this case and what Your Honor raises is this.

The wall of separation of our function of Government that this Court has talked about for 100 years is what we’re talking about crossing now when we get into the wisdoms, the whys, and the wherefores of reapportionment decisions.

If we’re going to make the kind of open-ended review of reapportionment decisions that was made by this district court in this case, the wisdom of whether Savannah should be coastal or whether it should be part of this district–

Antonin Scalia:

You’re saying if Georgia should deliberately draw a district in order to prevent blacks from electing a representative, there would be nothing we could do about that?

David F. Walbert:

–Well, I think that’s the Busbee v. Smith case this Court affirmed which we stand behind.

Antonin Scalia:

We cannot–

David F. Walbert:

But no–

Antonin Scalia:

–you said we can’t do anything about it.

David F. Walbert:

–The Court did something about that.

Antonin Scalia:

Indeed we did, but you’re now telling us we can’t.

Isn’t it the same problem?

David F. Walbert:

No, I don’t believe so, Your Honor.

Antonin Scalia:

Why not?

David F. Walbert:

Those courts… first of all, those cases had the prerequisite that helps you get away from the political complexities of harm.

Harm was proved.

David F. Walbert:

There is no harm proved here.

There is no vote dilution.

There’s no claim and no evidence of any sort–

Antonin Scalia:

This is harm proven.

The harm proven is that someone who said he would be in this district has been excluded from it because of his race.

You’re arguing Shaw v. Reno now.

David F. Walbert:

–No, I don’t think so, Your Honor.

In the Busbee case we’re talking about whether there was an actual effort and an ability to keep blacks out of office, but that–

Antonin Scalia:

I don’t see how it’s any more difficult to figure out whether the legislature drew its lines to put blacks in or to keep blacks out.

The one question is the same as the other question, and the notion that one is impossible for us to determine but the other is not, I don’t understand the reason for that.

David F. Walbert:

–I would respectfully… there’s no question again, Justice Scalia, that there is an element of… and the purpose, there was a purpose, a goal to draw a majority minority district here.

What I am taking about is whether you can get in there and talk about the predominant purposes, and whether you can parse it down and talk about 100 legislators.

This line, once you have the overall objective… let’s, you know, concede this at the outset.

Once you have the overall objective of creating a majority minority district, I’m not sure you can say that any segment or part of that line is indistinct from that.

It does not have some purpose in it.

Every time you look at a… this is an 1,184 mile congressional district line.

Is there 5 miles of it anywhere that have nothing to do with race, given that the overall purpose was in fact to create a majority minority district?

I don’t know.

I don’t know if you can… if there’s an answer to that.

I’m not sure intellectually there is such a thing as an answer to that question.

There are a hundred but-fors at every segment of the line.

But for one person one vote, no piece of the line would be where it was.

But for where counties are, no piece of the line would be where they are.

But for race the line would not be for where it was.

And our difficulty is that the Court, to make those decisions, would be drawn in just like it is.

The Court here talks about the majority of the opinion talks about how it would be better to have Savannah being part of the coastal district, and the distinction between the majority and the dissent I think shows up quite clearly what the Court’s choices in this case were.

Judge Edmondson writes in dissent, I don’t think we should be getting into the minds of legislators like that.

I don’t think we should be making judgments about what is good or bad about reapportionment, and the thing that we are distinguishing between school desegregation in other cases is, where politics are the issue, as they are in this case, that is the single most important area where this court chould tread only at the very–

Anthony M. Kennedy:

Suppose you’re the Attorney General of the United States, do you have a constitutional obligation to refrain from telling the State, do everything you can to create majority minority districts to the maximum amount possible?

David F. Walbert:

–We don’t think what Your Honor just stated is part of section 5 or section 2, so I guess–

Anthony M. Kennedy:

I’m asking whether or not it’s consistent with the Constitution of the United States and the Equal Protection Clause for the Attorney General of che United States to direct a State to proceed as I’ve indicated.

David F. Walbert:

–I think that would not be appropriate, certainly under–

Anthony M. Kennedy:

Why?

David F. Walbert:

–the statutory framework.

Anthony M. Kennedy:

Why?

Why wouldn’t–

David F. Walbert:

The statutes don’t require that.

Anthony M. Kennedy:

–Pardon me?

David F. Walbert:

Neither section 2 nor section 5 require it.

Anthony M. Kennedy:

Suppose the statute did permit the Attorney General to do that, would there be a constitutional violation?

David F. Walbert:

I think it would very much depend on the particular facts of the particular case.

Maximization–

Anthony M. Kennedy:

The facts of the case are maximization for maximization’s sake.

David F. Walbert:

–If it was nothing but maximization, without regard to any other considerations, that would be unconstitutional.

Anthony M. Kennedy:

Why?

David F. Walbert:

Because that at some point would get… it would violate Shaw.

Shaw as we see it–

Anthony M. Kennedy:

And what is the principle of Shaw that would be violated?

David F. Walbert:

–What see in Shaw, I suggest, and we don’t see it, we don’t read it, and we hope it doesn’t mean that you cannot have the goal of a majority minority district for the purpose, given the facts of Georgia, and those facts in a nutshell are the reality of having black people elected to office.

The General Assembly in Georgia when it did this reapportionment had a simple choice.

We will draw districts to have blacks elected, or we won’t.

Anthony M. Kennedy:

But you acknowledge that at some point it’s a violation of the Constitution–

David F. Walbert:

Yes, Your Honor.

Anthony M. Kennedy:

–to direct racial districting.

David F. Walbert:

Where it is done without regard to anything else whatsoever is what I was going to say.

In other words, in our case we have taken, and out of the 1,184-mile district boundary, 71 percent of that follows the State boundary, county boundaries, and city boundaries.

The great bulk of the remaining 29 percent follow precinct boundaries–

Anthony M. Kennedy:

But I assume in answering my question that there’s a constitutional violation, that the Constitution means something.

It stands for protecting a significant interest.

David F. Walbert:

–Yes, sir.

Anthony M. Kennedy:

But you’re telling us that it’s beyond judicial capacity to protect that significant interest.

David F. Walbert:

We’re saying this, Your Honor, and nothing more than this.

We’re saying that to apply Shaw and to reach that question about what is permissible and what is not permissible under the Fourteenth Amendment, we respectfully urge this Court as most strenuously as we can to try and draw an objective set of standards to implement the Shaw case rather than this generalized subjective intent thing, rather than a generalized review of the goodness or the badness of the redistricting decisions of the–

Sandra Day O’Connor:

Well, why is district shape any more objective as a criteria than discriminatory purpose?

I don’t see that it is.

I think they’re both objective.

David F. Walbert:

–Your Honor, we would certainly urge the Court to stay away from shape as a talisman where it’s the eye of the beholder type of shape, does it look good, does it look bad.

What we think and what we urge the Court is, where the district line is predominantly composed and based upon the kind of county boundary, State boundary, city boundaries, and the precinct lines then is the last remaining part, that are locally determined based on geographical markers, major highways, roads, and so on, that’s an objective standard, that we say that is where the line should be drawn, and that’s where we say it’s the most appropriate way because that will not draw the courts into the political thicket any deeper than they otherwise have to be.

David H. Souter:

Well, what if the lines in fact are conveniently drawn precisely as you say.

They follow various political boundaries, and a plaintiff who is a member of the district in question comes in and says, yes, they were lucky, they had these boundaries, but in fact the only motivation behind the drawing of these lines was simply to find a set of lines that would give a majority minority district when there in fact is no justification for it.

Is that person out of court?

David F. Walbert:

That person’s out of court, Your Honor, and I think as a matter of law when you’re following the existing lines that have been drawn for other purposes, that is by–

David H. Souter:

So in effect you’re telling us that the old jurisprudence of dilution is in fact to be thrown out.

David F. Walbert:

–No, not in any way, shape, or form, Your Honor, and for this reason–

David H. Souter:

Well, let’s assume that my mythical plaintiff in my hypo comes in and says that was their predominant purpose, and in fact the result and the intent was racial packing.

You’re saying, I thought, he’s out of court.

If he’s out of court, then at least one category of traditional dilution jurisprudence is overruled.

David F. Walbert:

–I think not, Your Honor.

I would respectfully suggest this is the reason why.

That requires proof of harm.

It’s a totally different case.

A packing case would be very difficult to prove.

As Your Honor mentioned in the Johnson, and discussed in the Johnson v. De Grandy case, this Court has, and for good reason, shown a much greater reluctance to get into how should particular lines be drawn rather than multi-member versus single member challenges.

David H. Souter:

Then are you saying that the… I thought in your brief you thought there was something to the notion that bizarreness would be the threshold.

David F. Walbert:

Yes, sir.

David H. Souter:

You’re really saying it’s not bizarreness, it’s harm?

David F. Walbert:

For Shaw cases.

David H. Souter:

I’m sorry?

David F. Walbert:

For Shaw cases, bizarreness is the threshold.

For a packing case, that’s a totally different matter.

David H. Souter:

Well, Shaw cases and packing cases are all Fourteenth Amendment cases.

David F. Walbert:

They are, but the elements of them and what they constitute are different as we read that jurisprudence.

That is… those are harm cases, Gingles… packing, and of course, the Court never found a packing case to my knowledge, has ever found proof of one.

David H. Souter:

Well, what would the harm be in a so-called Shaw case that would not also constitute harm under the old line of packing… the old line of dilution cases?

David F. Walbert:

Well, there is no proof of harm in a Shaw case as I understand the Shaw theory.

David H. Souter:

No, but I’m just asking your position.

If harm is, in fact, going to be the criterion, and bizarreness is to be identified by harm, what kind of harm would qualify that would not also have qualified under the old dilution cases?

David F. Walbert:

Your Honor, I think I must have misspoken myself, because we’re not saying that the proof of harm is essential to the Shaw case as that… as we’re reading that case.

I was trying to distinguish how you prove a Shaw case from how you deal with a packing case and I was drawing a distinction, saying that in a packing case the element of harm must be proved, harm in the sense of diminishment, purposeful diminishment.

David H. Souter:

All right.

Then, do we then come back to the fact that there is a so-called Shaw case if, and only if, the lines are drawn in such a way as not to respect preexisting political boundaries?

Is that the essence of the Shaw case?

David F. Walbert:

Well, we would say that that is an objective standard where there is… the lines are first of all drawn for a purpose to create a majority minority district, but then in terms of the objective–

David H. Souter:

Well, then what is grotesque is a question of purpose–

David F. Walbert:

–No, I think not, Your Honor.

David H. Souter:

–and I thought a moment ago you were saying that purpose is a thicket we’d better not get into.

David F. Walbert:

I think the thicket of how much purpose goes into each part of the line, whether it’s a good reapportionment decision is a thicket that I… we urge the Court not to get into, and I think that the objective standards we’re talking about, the objective standards as to the extent to which the district line in fact follows traditional boundaries, geographical markers and physical features and major highways, that is the kind of objective standard that makes a decision of a district court number 1 predictable so the legislature can know in advance what do we have to do and what can’t we do?

Number 2, it ensures that the district court adjudication process is predictable, and I think that’s of critical importance, because there’s two sides… the two sides to the separation of powers question are, 1) the legislature is entitled to have their reapportionment prerogatives.

Politics belong in the courts.

The other thing is, it is inevitable in our judgment, and I think Justice Powell was the one that wrote so eloquently about this is, if the courts start making these kinds of judgments, the integrity of the courts will be perceived by the people to be jeopardized.

Antonin Scalia:

Mr. Walbert, let’s assume I think strict scrutiny is needed.

Why… did Georgia do any study about whether there’s a compelling State interest in having majority minority districts?

Did it do any studies as to whether blacks are better off in having all of their power concentrated in a few districts rather than being dispersed more throughout the State so that representatives from all the districts will have to take into account black people’s point of view?

David F. Walbert:

We would–

Antonin Scalia:

I mean, you know, some people think that’s the best way to reduce the influence of black groups.

David F. Walbert:

–We had that system of Government in Georgia for some time, Justice Scalia.

We had all white districts and black people weren’t very happy under that process.

We had a majority–

Antonin Scalia:

The State did a study to see how much the blacks’ interests were taken into account by white politicians, even though the politicians elected might be white, did they not have to cater to the interests of the black one in their district?

David F. Walbert:

–With all due respect, no one had to commission a study.

David F. Walbert:

The political process made that judgment, which is the appropriate way for that judgment to be made in the reapportionment process, and if I might–

Antonin Scalia:

If we have to consider whether that’s a compelling State interest or not, I don’t know we can just sort of say, well–

David F. Walbert:

–Justice Scalia–

Antonin Scalia:

–the political process made that judgment.

I think… it isn’t self-evident to me that that’s a better way to do it.

David F. Walbert:

–We have 236 Representative and Senate districts in our General Assembly.

Of those, there is one that has elected a black person.

181 of those 236, Justice Scalia–

Antonin Scalia:

That may mean nothing.

David F. Walbert:

–Well, it may be compelling.

Antonin Scalia:

The point is whether the political desires of black people are being taken into account.

We don’t in this country… you know, supposedly we’re not supposed to care about the color of people.

The point is whether the political interests of black people were being taken into account.

Do you know of any studies that say they’re better off by having all blacks lumped into a couple of districts who can elect somebody who is black?

David F. Walbert:

I would put a great more judgment and worth in the testimony of the black people who testified in this case than a study one might hire a university professor to do.

I would put a great deal more credence in the number of elected black officials who have been elected under single member district plans where the majority black members–

Antonin Scalia:

Oh, I’m sure the officials elected think it’s a grand idea–

David F. Walbert:

–and their constituents.

Excuse me.

Antonin Scalia:

–but I’m talking about whether it’s a grand idea for the racial minority that you assert to protect.

David F. Walbert:

Justice Scalia, I think that if the Equal Protection Clause in this country were construed so that it was prohibited to have majority minority districts, which would empirically mean that the delegation in Georgia would revert to all white like it was in the old days, that would be a construction of the Equal Protection Clause that I think would stand the history and the purpose of that clause and the Civil War itself on its head.

I’d like to reserve–

John Paul Stevens:

Don’t you think the answer to Justice Scalia’s question was provided by the statement of judicial notice?

David F. Walbert:

–Well, Your Honor, I would… that’s part of it.

I would say there’s something even more important than that, Justice Stevens, and I think instead of looking at the past history, let’s look at the present reality and the empirical facts:

181 districts in Georgia are majority white in the General Assembly, House and Senate combined.

One of those 181 at the time of trial had a black person representing it.

That tells us that if we’re going to have an integrated congressional delegation we’re going to do it through this technique, period.

That is Georgia’s justification.

That’s why it did it, and we advocate that that is totally significant, adequate, and sufficient under the Constitution of the United States.

Antonin Scalia:

The Constitution has as an objective integrated delegations?

David F. Walbert:

The Constitution–

Antonin Scalia:

I mean, I can understand the Constitution has as an objective that the political interests of every individual, including minority races and everything, should be taken into account, but the Constitution says that the Georgia delegation has to have people of various races.

Is that what the Constitution says?

David F. Walbert:

–The Constitution says this, Your Honor.

It only prohibits the States from doing certain things.

It does not mandate, and in its prohibitions–

Antonin Scalia:

Like treating people on the basis of their race.

David F. Walbert:

–And making a decision that we should have an integrated delegation rather than a segregated one is one that is a legitimate decision that falls within the ambit, and is permitted by the Equal Protection Clause.

That’s all we’re saying.

We’re not saying that the State was mandated to do this.

Antonin Scalia:

Ah.

I thought you were saying–

David F. Walbert:

We-re saying–

Antonin Scalia:

–I thought you were saying that was a constitutional… desirable.

You’re just saying the Constitution was neutral about it.

David F. Walbert:

–We’re saying to construe the Constitution in the opposite direction to prohibit what the State did, that’s our problem.

We think that would be inappropriate.

If I may reserve the last–

William H. Rehnquist:

Yes.

David F. Walbert:

–seconds–

William H. Rehnquist:

Thank you, Mr. Walbert.

General Days.

Drew S. Days, III:

Mr. Chief Justice, and may it please the Court:

I want to address first the issue that members of the Court have raised on several occasions in both the prior argument and this argument, and that is the predominant or motivating factor.

Our position is that that is not the proper analysis.

The proper analysis under Shaw or under this Court’s prior precedents is whether the State is doing something for blacks that it would not do for others.

That is, where blacks are being treated differently, given different treatment, arguably to assist blacks, that it would not provide for other groups.

If that can be established either by looking at the shape of the district or of some other evidence, that is sufficient to move the case into strict scrutiny.

But in our estimation, that has to be the threshold analysis.

Drew S. Days, III:

It picks up many of the questions that have come from the bench today.

That is, if the State is drawing districts that it would draw for Polish Americans, or for Scottish Irish in Louisiana, or for other groups, then our position is that does not trigger strict scrutiny.

William H. Rehnquist:

But are you stipu… are you assuming that Irish descent, Polish descent is subject to strict scrutiny the same way that race is?

Drew S. Days, III:

No, I’m not arguing that it is subject to strict scrutiny, but the point I’m making is that if the State were not to treat blacks who have a community of interest, and that can be established in the record, as it would treat other groups, then blacks are being denied the equal protection of the laws, because the only reason they’re being denied the treatment that others receive is because of the color of their skins.

William H. Rehnquist:

Well, that just repudiates, though, our equal protection jurisprudence.

Categorization by race is subjected to a much more demanding standard of inquiry than something else.

Drew S. Days, III:

I don’t believe it does, with respect, Mr. Chief Justice.

If one looks at this case, for example, what the district court found was that there was evidence that was partially convincing of the fact that there was a community of interest among African Americans within the Eleventh District, but what the Court said is as follows, and this is at 44a of the jurisdictional statement appendix:

It says,

“The problem with this tack is that, while partially convincing, such a community of interest is barred from constitutional recognition. “

That cannot be correct under the Constitution.

It cannot be the case that blacks who share political interest, social interest, economic interest, a history of discrimination against them based upon their race, cannot be recognized as a community that has a right to representation in the halls of Congress.

Antonin Scalia:

It wasn’t recognized on that basis.

There was no study done to show that the people in this particular district have a whole lot of community… the judgment was made, blacks have a community interest.

Drew S. Days, III:

But Justice Scalia–

Antonin Scalia:

That is racial–

Drew S. Days, III:

–just read you–

Antonin Scalia:

–That is simply racial classification.

Drew S. Days, III:

–I just read you what the court said about this, that there was partially convincing… in other words, there was evidence that there was a community of interest that transcended race.

David H. Souter:

But wasn’t there also evidence that community of interest or no community of interest, the only reason this was done was that the Justice Department was demanding a third district, time was growing short, you didn’t want to take your chances and perhaps, indeed, didn’t have time, or the State didn’t, in the District of Columbia Court, and so that in fact something was being done here differently for blacks from anything that would have been done from any other identifiable group, and that in effect was to say, we surrender to the Justice Department.

Your demand is going to carry the day.

Drew S. Days, III:

Well, I don’t concede that.

I think that what happened here–

David H. Souter:

Well, there was certainly an evidentiary basis for the judge to find that, wasn’t there?

Drew S. Days, III:

–I think that what the Court did here was apply an incorrect legal standard.

That is, rather than trying to determine whether Georgia had done something differently for blacks than it had done for other groups, it concluded that because race was involved in the process, even a predominating–

David H. Souter:

Well, and indeed–

Drew S. Days, III:

–consideration, that it automatically moved into strict scrutiny.

David H. Souter:

–I will assume that that was error, but even on your own criterion, wasn’t the… wasn’t there also an evidentiary basis for the court to do what it did?

Drew S. Days, III:

I think what the court did was not look at the extent to which the district that was drawn was consistent with principles that Georgia had applied in a variety of other circumstances.

David H. Souter:

All right, wasn’t the evidence equally clear that Georgia was in fact not applying them here, that Georgia had no intention to apply them to create a third district, and the only reason the third district was created was that the Justice Department was demanding it and time was running out?

Drew S. Days, III:

I don’t believe that’s correct, Justice Souter.

I think what the court did here was ignore the fact, which the dissent brings out very clearly, that what Georgia was doing was consistent with what it had done in the past, that there was no State requirement of compactness, that there had been no State requirement that you couldn’t split counties, that you couldn’t split cities.

That’s what Georgia had done in the past, so the question becomes one of, was Georgia doing something different in this case–

Ruth Bader Ginsburg:

General Days, maybe I can help get you to focus on the question I think Justice Souter was trying to put.

There is in this record two plans, successive plans–

Drew S. Days, III:

–Yes.

Ruth Bader Ginsburg:

–that the State legislature put forward with two, not three districts.

Both were turned down by the Department of Justice.

Drew S. Days, III:

Yes.

Ruth Bader Ginsburg:

What relevance, if any, does that have that Georgia tried for two and only when it was turned down by the Department of Justice did it come up with three?

Drew S. Days, III:

The relevance is that if one looks at the letters from the Department of Justice, what those letters reflect was that Georgia was doing not only with respect to the Congress, congressional delegations, but with respect to the State Senate and the State lower body things that it was not doing with respect to other groups.

That is, it was fragmenting black populations, it was moving blacks out of districts where they appropriately belonged, and those were the reasons why the objections were lodged against those two plans.

Sandra Day O’Connor:

Well, the findings of the court below indicated that the Department of Justice was insisting upon maximization of any possible black voting strength.

It was not retrogressive for the State to create two districts, but the Department of Justice insisted on three majority minority, and the court found that to be the case, and was it the policy of the Department of Justice to insist upon maximization–

Drew S. Days, III:

Absolutely–

Sandra Day O’Connor:

–of all possible–

Drew S. Days, III:

–Absolutely not.

Sandra Day O’Connor:

–strength?

I mean, it certainly appeared to be the case, and–

Drew S. Days, III:

Well–

Sandra Day O’Connor:

–even to the extent that confidential informants were used by the Department of Justice and within the State legislative process.

It was quite a dramatic story, actually.

Drew S. Days, III:

–Well, I–

Sandra Day O’Connor:

And if, in fact, that is what the Department was requiring, can that serve as a justification?

Drew S. Days, III:

–What the… I don’t accept the characterization of the Court, but I won’t dignify it by going into the details.

The point is, the Justice Department was doing what the Congress of the United States directed it to do and what the decisions of this Court have given the Attorney General the power to do.

Anthony M. Kennedy:

If the Justice Department said that as a matter of preclearance policy we will litigate with you unless you maximize all black districts, would that raise constitutional concerns?

Drew S. Days, III:

Your Honor, first of all, I don’t know what you mean by maximization, but the answer–

Anthony M. Kennedy:

That you draw as many majority black districts as you possibly can within the population.

Drew S. Days, III:

–Absolutely not.

I mean, that is not the policy of the Justice Department.

Anthony M. Kennedy:

Would that… if that were the policy, would it raise constitutional concerns?

Drew S. Days, III:

Yes, it would.

Anthony M. Kennedy:

Why?

Drew S. Days, III:

Well, because the mandate of the Voting Rights Act is to remedy discrimination and to prevent actions that would harm groups that are protected under the act.

To the extent the Attorney General is carrying out her responsibilities in ways that don’t connect with the purpose underlying the act, then there would be problems under the Fifteenth Amendment, under the Fourteenth Amendment.

Sandra Day O’Connor:

What if the legislature is found by the court to have been so driven by racial considerations that it ignores compactness and contiguity in a way that it would not and has not for any other group, and that it was driven to do it for the purpose of maximizing a particular race in the district.

Drew S. Days, III:

If maximization means that the Justice Department was requiring something that was not reflective of the fact that there was reason to believe that there was discriminatory purpose or effect, then that would create constitutional problems, but that is not what happened here.

I think if one looks at the record, looks at the letters at 99 and 120 of the joint appendix, it is clear that… may I complete my answer?

William H. Rehnquist:

Yes.

Drew S. Days, III:

That the Justice Department was looking at what Georgia had done, looking at the fact that there had been prior findings of unconstitutional purpose, and simply saying, you’ve got to do more, given these facts.

Thank you very much.

William H. Rehnquist:

Thank you, General Days.

Mr. Parks, we’ll hear from you.

A. Lee Parks:

Mr. Chief Justice, may it please the Court:

The plaintiffs in this case ask the Court to affirm the judgment of the district court that the Eleventh Congressional District was an intentional racial gerrymander that is at constitutional odds with the equal protection jurisprudence of this Court.

All parties in this case I think would agree with this opening premise: race-based remedies are a constitutional evil that will be condoned only on a limited basis, and if they’re temporary.

We have fallen in love with the assumption that race-based is remedial, and in this case the illness was not defined before the remedy was assumed.

The real world of this case is beyond much of what we have talked about here today.

The real world of this case is simple, and put forward in length in the district court’s opinion.

The State of Georgia was confronted with a regional plan of the Department of Justice that required maximization of black voting strength based upon a heretofore unavailable technology.

That technology allowed reapportionment to be done at a census block level with such scalpel-like precision that the races could be separated to achieve particular racial percentages.

Not only within the district, but because of that precision, the Department of Justice made the assumption that the Voting Rights Act requires racial proportionality within the districts.

That is the only explanation for why Georgia would have been required to rip out the core of two traditionally established districts and to change from what they originally proposed to what ended up as the Georgia districting plan.

Clarence Thomas:

Mr. Parks, let me change the facts just a little.

Let’s say that the Georgia legislature, anticipating that they were going to have some difficulty in retaining the white vote… let’s say, the Democrats… decided that our loyal constituent, 90-percent voters for the Democratic Party, are blacks, so now that we have this additional district, let’s make sure that we have a solid Democratic district, and the Eleventh District was drawn solely to have a solid Democratic district, and to include the most loyal Democratic voters.

What’s wrong with that?

A. Lee Parks:

I think the Court in the first Hays opinion dealt with Your Honor’s hypothetical, and the Court made, I think, the appropriate distinction between motive and intent.

It may well be that a motive would be, we want to increase the Democratic strength of a particular district, but if the intent was to strictly use racial classifications, then I think–

Clarence Thomas:

That’s not my question.

I’m sorry to interrupt you, but that’s really not my question.

My question is purely political.

The State of Georgia is becoming increasingly Republican.

We don’t want to lose the entire State.

The… to retain at least three districts, we will go… we will create three districts with our most loyal Democratic voters, who happen to be black.

Let’s say that is the purpose for the three districts.

What is wrong with that?

A. Lee Parks:

–I think because it employs racial classifications, whether… now, the State would come in and say… at least you would move to direct scrutiny because it employed the racial classification.

I don’t think that the desires of the Democratic Party rise to the level of a compelling State interest–

Stephen G. Breyer:

So then in your… sorry.

A. Lee Parks:

–That… the direct answer is, that’s not going to avoid the traditional strict scrutiny analysis, and if you get into that, I think that the political issue is not going to rise to the level of a compelling State interest that would allow that type of districting to succeed.

Stephen G. Breyer:

So then, in your view, if people in the legislature take race, or religion, or nationality into account and put lots of members of one group into a district for a host of political reasons, then the court system, the 700 Federal judges, or whatever, will start to reexamine that.

Is that what your statement is?

A. Lee Parks:

No, Justice Breyer.

I think that… I think your hypothetical takes it a step further.

As I understood Justice Thomas’, there was only one consideration, that these black voters were going to be moved.

Stephen G. Breyer:

And–

A. Lee Parks:

If we begin to broaden the spectrum of consideration, then I think that it becomes a more difficult question.

Stephen G. Breyer:

–They do the same thing, but a lot of Democrats are also of Group X that isn’t black, and they put them in, or in California they put in another group, and in Illinois… you understand the problem.

A. Lee Parks:

Right.

Stephen G. Breyer:

The problem is the same problem throughout, that is there… how do you define… throughout… if I put the problem in my mind, it’s this way.

Throughout history, maybe race, religion, nationality, and a host of similar factors have been taken into account in districting.

I take it under Shaw v. Reno that sometimes the single factor of race, while it could be taken into account, goes too far.

All right.

What’s the criterion by which you measure going too far?

Now, I understand the opposite side’s criteria.

They say, you don’t go too far.

You don’t even get into this matter unless you have a bizarrely shaped district that differs in significant ways from what used to be in this State, because that bizarrely shaped district is a signal, a signal that the consideration went too far.

Now, there could be other kinds of signals.

Stephen G. Breyer:

What are the other signals, in your view, because if we could find a signal, then perhaps… and I could understand an application of Shaw that wouldn’t turn everything topsy-turvy, but what are the signals?

The Solicitor General says, I’ll tell you one, that the shape is so bizarre when considered with the past that that fact, together with the racial motivation, provides a threshold.

Now, maybe I don’t… maybe that isn’t the right signal, maybe I don’t have it right, but I’m trying to get your view on that question.

A. Lee Parks:

In looking at that question, I went back to the oral argument that was presented to this Court in Shaw v. Reno to see if the Court engaged in any discussion of that.

There is only a single question in response on whether the shape of the district would either be an element or some some threshold test or merely evidence of racial classifications.

Justice O’Connor asked the question at page 38 of the transcript, I guess you would agree that district 12 is a highly irregular shape.

Do you think that districts such as that could be, in and of itself, some evidence of an invidious intent, and the State of North Carolina agreed.

I have always assumed that we would never create some type of a threshold that would be visual in nature that might, in fact, mask more sophisticated–

Stephen G. Breyer:

Then–

A. Lee Parks:

–of racially gerry–

Stephen G. Breyer:

–then, fine.

Then that… you’ve righted my question, and I’m sorry to… but then, 1) I can understand this possibility, as several of the briefs have stated and the amicus briefs have stated.

First, you have a threshold.

Maybe it is visual, to show that it went too far.

Then, once you go beneath the threshold, you look to see if there’s a compelling interest, namely a remedy for past discrimination, of which there has been plenty.

A. Lee Parks:

–Right.

Stephen G. Breyer:

All right, and then you look for tailoring under the five traditional criteria of whether… that this Court has put out.

I understand that.

I’m not saying it’s correct.

I understand it.

I understand the alternative, which would be to go into every district in half the counties in this State, and what I’m looking for, is there some other way of doing it?

A. Lee Parks:

Your Honor, the… there’s one additional fact I don’t know if Your Honor has included, but when we talk about visual, there are two maps you have to look at.

You cannot just look at the map that shows in macro form the geographical boundaries of the district.

No matter how irregular and how elongated their appendages, they might just show that a municipality was on that appendage.

David H. Souter:

No, but all you’re saying… all you’re saying, I think, is that the so-called visual test, the bizarreness test, will not, in fact, smoke out everything that is wrong.

A. Lee Parks:

That’s correct.

David H. Souter:

And I think General Days was very clear in answering me that that is not his position.

He’s saying that that is a sufficient test to identify a case in which there should be strict scrutiny.

He is also, I think, clearly saying that the other tests, those tests, for example, that we have identified for a traditional dilution jurisprudence, are still there, so that in the point that you made that we might, in fact, have a nonbizarre district which nonetheless masked quite invidiously intentional discrimination, they’re not saying that you can’t look at that.

They’re simply saying that you have to state a different kind of claim, e.g., a packing claim, whatever it might be.

A. Lee Parks:

Well, but then maybe, but if we have just this specific claim, voters contending that there has been intentional racial classifications that has resulted in a gerrymandered district, but we’re not allowed to look past the visual to juxtapose the race map to see that these lines are drawn–

David H. Souter:

No, you are allowed to look beyond it, but if you want to look beyond it for purposes other than bringing what I will call a bizarreness Shaw claim, you’ve got to allege those kinds of harms, for example, i.e., those are your thresholds that are identified with dilution, and there may be other reasons, too, but that would be one reason, and that, it seems to me, would be one answer that you could give to Justice Breyer.

A. Lee Parks:

–And I would agree with that, but I don’t think it is the end-all.

For example, in this case we have not only the bizarre shape of this district compared to the past districting principles, but we also have facts as found by the district court that this entire districting plan was driven by proportionality, and that proportionality far exceeded the racial and geographic demographics of this State to sustain it.

Sandra Day O’Connor:

Well, would you say that if the legislature is so driven by race that it ignores compactness and contiguity in a way that it would not and has not for any other group, that that would state an equal protection claim?

A. Lee Parks:

Yes, Your Honor, and I think that is the essence of Shaw v. Reno.

I think what Shaw v. Reno is trying to give us is an operative way of dealing with these cases.

Antonin Scalia:

So if there has been a political gerrymander, as occurred in the case we heard just before this one, then you could do a racial district that more or less matches that political gerrymander, right?

A. Lee Parks:

No, Your Honor, I don’t think so.

Antonin Scalia:

I thought that’s what you just said, so long as you conform to past practice.

A. Lee Parks:

Well, I would assume that if there has been a gerrymander it is not a past practice, it is an aberration from past practices.

Antonin Scalia:

No.

They’ve been doing this in Louisiana for a long time.

They have–

[Laughter]

A. Lee Parks:

Well, they haven’t in Georgia.

We have–

Antonin Scalia:

No, but I mean, you’re lucky, or you’re unlucky, depending on whether you want to use racial districting or not.

If you’re lucky enough to come from a State that’s been using gerrymanders, you can do it, and if you’re unlucky enough to come from a State that hasn’t been, as you tell me Georgia is, then you can’t do it.

Does that make very much sense?

A. Lee Parks:

–No, it doesn’t, Your Honor, because it then allows racial… it allows racial gerrymanders to escape the strict scrutiny that this Court wants to apply, and I think–

Antonin Scalia:

You ought to reconsider your position about whether, you know, the criterion is whether you’ve done it like this before.

A. Lee Parks:

–Well, I didn’t view that as the end-all of the case.

I viewed that that would be, again, some evidence that there exists a racial gerrymander.

Antonin Scalia:

You don’t need evidence if there’s an admission.

I mean, what if you come in–

A. Lee Parks:

Exactly.

You don’t.

Antonin Scalia:

–we’ve done it for this purpose?

A. Lee Parks:

And we have that in this case.

David H. Souter:

No, but where does your answer leave you in response to the question, is everything, in fact, going to qualify for attack, because the Shaw bizarreness criterion says look, there is a point at which the consideration of race may indeed become just outrageous.

A. Lee Parks:

Right.

David H. Souter:

We accept the fact that some considerations of race are necessary.

I mean, you can’t be blind when you draw the line.

Some are outrageous.

The traditional dilution jurisprudence says well, we identify certain kinds of harms as triggering a cause of action, but it seems to me that you were saying well, we’re not going to depend on bizarreness, and we’re not going to depend on the kind of dilution harms, and doesn’t that leave you as saying, whenever you consider it for any purpose, which in fact is always, because you can’t district without taking it into consideration somehow, it’s going to be subject to strict scrutiny, and therefore every single districting decision in a multiracial district is at least going to get you into court.

How do you avoid… what is your answer to that problem?

A. Lee Parks:

The answer that the district court had to that problem, Your Honor, was elevating the standard, and I think it made an intentional elevation from the Arlington Heights standard to a higher standard in recognition that reapportionment is a legislative act where race is frequently taken into consideration.

“Predominant and overriding”, in the words of our court, created a demonstrably higher standard than I think the one that the justice is concerned about.

I do think that that higher standard was a reasoned choice by the district court that spoke to that issue, and I disagree with the appellants that predominant intent is some unworkable, unmanageable standard that courts can’t deal with.

David H. Souter:

Is there any way to comment on… and maybe there isn’t, but is there any way to comment on the likelihood that the predominance standard is in fact going to raise a series of claims subject to strict scrutiny in greater numbers than the bizarreness threshold would do?

How do we compare those two?

A. Lee Parks:

In terms of the potential litigation that either test might generate?

David H. Souter:

Yes.

A. Lee Parks:

I think that if you’re talking about bizarreness in the eye of the beholder–

David H. Souter:

Well, they’re saying bizarreness in the–

A. Lee Parks:

–that could be any–

David H. Souter:

–Bizarreness in the eye of history is what they’re saying.

A. Lee Parks:

–But that ultimately becomes in the eye of the beholder.

I mean, everyone can look at a map and see their own animal, just like you look at the clouds, but hard and fast evidence of intent is hard to prove.

David H. Souter:

Yes, but you’ve got to find an animal in the past, too, and that makes it a little harder.

[Laughter]

A. Lee Parks:

Right.

But I submit to you that visual versus the burden that the district court placed on us of showing that the United States Department of Justice drove this plan to the point of irrationality–

David H. Souter:

No, but that–

A. Lee Parks:

–that that evidence is so overwhelming–

David H. Souter:

–That may be, but that… I don’t want to interrupt you unduly–

A. Lee Parks:

–Yes.

David H. Souter:

–but that gets it to a pretty fact-specific point.

How, as a general criterion, would we compare what predominant purpose and bizarre district would result in?

A. Lee Parks:

I’m not–

David H. Souter:

Are we going to get a lot more cases on predominant purpose than there would–

A. Lee Parks:

–I think not.

David H. Souter:

–be on bizarre district?

Why not?

A. Lee Parks:

Because I–

David H. Souter:

If not, why not stick with bizarre district?

A. Lee Parks:

–First of all… let’s back up.

These districts were drawn before Shaw.

This was a legislature that assumed that all districts possible was the law.

This legislature now has that.

They are going to be able to conduct legislative hearings when they put these districts together that make sure that there are other considerations.

They will create their legislative record which will insulate the district, and if they don’t, they should be challenged.

This is a pre-Shaw prototype, where they couldn’t do it and they were open and honest about what they were doing, and I don’t think–

John Paul Stevens:

They didn’t know how to manufacture legislative history, is what you’re saying.

[Laughter]

May I ask–

A. Lee Parks:

–Your Honor, that is not far off the point.

John Paul Stevens:

–Yes, I understand.

May I ask you a question about your view of a portion of the district court’s holding–

A. Lee Parks:

Yes, Your Honor.

John Paul Stevens:

–that grows out of Justice Scalia’s suggestion that perhaps community of interest among persons in a group might justify an odd-shaped district, and the district court, as the Solicitor General pointed out, said that the problem with doing that is that such a community of interest is barred from constitutional recognition if it’s defined by racial group.

Do you think that’s a correct statement of the law?

A. Lee Parks:

I think that if you’re talking about, in Your Honor’s question, a bizarre shape, yes, I do, because the only thing that I can–

John Paul Stevens:

Well, let’s assume we don’t have a bizarre shape, if you just have evidence of predominant motive, and then the response is, yes, we had the predominant motive, but we were trying to justify… we tried to justify it on the grounds of a community of interest.

A. Lee Parks:

–Right.

John Paul Stevens:

And my question is, is that barred from constitutional recognition, in your view?

You could probably tell me yes or no, I suppose.

[Laughter]

A. Lee Parks:

If you all continue to believe that UJO is the law, then that is not barred from constitutional permissibility.

A. Lee Parks:

If you’re meeting sound districting principles–

John Paul Stevens:

Do you think it should be barred from constitutional recognition?

A. Lee Parks:

–I think it depends upon the extent to which there is a community.

John Paul Stevens:

I assume you… if it’s barred from constitutional recognition, it could be a perfect community.

They could all go to the same church, all belong to the same athletic clubs, and all do everything in common, but it would still be impermissible under the court… as I read the court opinion.

A. Lee Parks:

Yes, that’s right, Your Honor, and the only reason–

John Paul Stevens:

And do you think that’s a correct statement of the law?

A. Lee Parks:

–The only reason that I hesitate is that the community of interest that was sought to be put forward in our case was pure race, and as I understand in Your Honor’s hypothetical you’re going beyond that, and if you go beyond that, and it’s not race-based–

John Paul Stevens:

And you say as in Justice Thomas’ hypo for example, they’re all members of the… 90 percent members of the Democratic Party, they’re… 90 percent go to the same church, 90 percent share certain athletic interests, or other community interests, would that be permissible justification?

That’s the question.

A. Lee Parks:

–Yes, because… I think it would, because race has fallen out of the mix in terms of predominant characteristic here.

You’re talking about things that have nothing to do with race.

John Paul Stevens:

I envision rather long, factual trials on these cases, on both sides, both on the motive issue and on the justification issue.

A. Lee Parks:

Well, Your Honor, this is a case that we got done in about a week, and the State never really–

John Paul Stevens:

But as you say, you didn’t have Shaw v. Reno.

After Shaw v. Reno, do you think you can do it in a week?

A. Lee Parks:

–Well, I don’t know if it will even need to be done then, because what we’d be facing then is a legislature that made a reasoned judgment and made sure that it did not violate those tenets.

That is an overwhelming burden that a plaintiff is going to have.

Not only do we have–

John Paul Stevens:

Well, what if you had a legislative finding that all the people in the district shared a community of interest, a legislative finding tracking the language that they tried to put in, the evidence they tried to put in in this case.

A. Lee Parks:

–Right.

John Paul Stevens:

Would that be the end of the case, then?

A. Lee Parks:

No, obviously not, but again, I would assume, hearkening back to Justice Scalia’s question earlier on, there would be a study or some basis for that, and that we would then, as plaintiffs, evaluate that and determine whether this is pretext or whether… I mean, race cases in employment law, in contracting law, in admissions to colleges, we all… they all deal with these issues, and we don’t say that we’re going to ignore quotas at a university, or we’re going to ignore quotas on public contracting because the give-and-take of a political fight might make uncovering the racial animus that drives those programs difficult.

We elevate the burden of proof to plaintiffs because it’s reapportionment, but we don’t close the courthouse door because it may be bothersome.

Antonin Scalia:

Can I ask you a question about an earlier question that Justice Thomas asked about adopting an odd-shaped district in order to maximize the number of Democratic voters, or Republican voters, whatever.

You said it would be bad if you simply crammed a lot of voters of a certain race into that district in order to maximize the vote of a party, knowing that that race votes 90 percent one way or the other.

Suppose you didn’t do it that way, however.

Suppose you just looked at the voting returns, and without considering race, drew the same weird-shaped district.

It would come out the same way.

A. Lee Parks:

You say by precincts?

Antonin Scalia:

By precincts, about which precincts voted Republican, which voted Democratic, and when you ended up, you had an odd-shaped district that was 60 percent black.

A. Lee Parks:

Right.

Antonin Scalia:

Would that be a violation?

A. Lee Parks:

No.

No, race did not predominate.

No, I don’t think so.

It’s similar to drawing our Fifth Congressional District.

You would draw our Fifth Congressional District–

Antonin Scalia:

Which is probably the way parties do political gerrymandering, isn’t it, by looking at the returns and including within the gerrymandered district those precincts that have returns going for one party, the other whatever, whether it’s blacks or whites that were responsible for the returns.

A. Lee Parks:

–Your Honor, we are very naive in about political–

Antonin Scalia:

Oh–

A. Lee Parks:

–gerrymandering in Georgia.

Antonin Scalia:

–I’m sure.

[Laughter]

A. Lee Parks:

But I would assume that would be a good way to do it, and the further reason I say that is this.

The computer… I have seen this computer.

We bought this computer that does this work, and it sat on the bench at this trial, and this computer can bring that information up just like that, show you the precinct, show you the last election, and you can draw that Democratic precinct anywhere you want, and you can do that independent of race.

Then you can overlay race.

Then you can overlay any, and unbelievable amounts of demographic information.

It truly is the Big Brother of Government, and that technology has led us into this abyss.

That… the law has got to catch up with the technology.

Legislatures now–

John Paul Stevens:

You don’t think precinct captains used to do this?

[Laughter]

A. Lee Parks:

–Huh?

John Paul Stevens:

You don’t think precinct captains ever did this?

A. Lee Parks:

I don’t… I can’t conceive that they could do it with the surgeon-like precision we can do it now.

John Paul Stevens:

They did it in Chicago.

[Laughter]

Antonin Scalia:

Justice Stevens is from Chicago in the good old days.

Antonin Scalia:

[Laughter]

A. Lee Parks:

I stand corrected.

Let me read to you what the State of Georgia said 2 weeks before it gave in and threw its towel in, what it said to a Federal district court when faced with a Department of Justice demand that three districts be created.

This is on page 22, footnote 22 of our brief:

“This plan amounts to nothing more than a complaint that the State should have but has not sought proportional representation for minority citizens as a goal. “

The State went on to lambast the Department of Justice as asking for not only unprecedented but a dangerous plan regarding the political proces of this Nation.

It then contended that the plan, as it was ultimately passed, would cause racial polarization and encourage candidates of one race to be unresponsive to the needs and wishes of another race, thereby breeding extremism in both races to the detriment of all citizens.

A Max Black’s plan, which was the proponent and the blueprint for their plan, in the opinion of the State 2 weeks before they accepted it,

“will most certainly have the effect and result of diminishing minority effectiveness in the political process… diminishing minority effectiveness in the political process. “

Sandra Day O’Connor:

Mr. Parks–

–But they’re here defending it today, aren’t they?

A. Lee Parks:

They’re here defending it today, but I submit to you that the record is overwhelmingly clear that that is out of expedience rather than any compelling State justification.

John Paul Stevens:

I thought your footnote described the complaint in another case, that they were describing, the complaint in Jones… is this Jones v. Miller?

A. Lee Parks:

Yes, but the State… in that case, they sought through section 2 to have these three minority districts drawn.

The State was defending it and filed a motion to dismiss the case, and those quotes are from the State’s brief opposing the implementation of the plan.

John Paul Stevens:

And they’re describing the complaint in that case.

A. Lee Parks:

Yes, but that plan is seeking to have the Department of Justice mandate made the law through section 2.

The State of Georgia admits that the Voting Rights Act could not stand as a compelling State interest for this plan.

When you remove the Voting Rights Act from this type of racial gerrymandering, what else is there?

What else could there be?

The State says, a fair shot.

A fair shot is code for proportionality, because proportionality is all they argued at the district court.

They read De Grandy as sanctioning proportionality, and I read–

Stephen G. Breyer:

Why isn’t it a compelling… isn’t it–

A. Lee Parks:

–that opinion very differently.

Stephen G. Breyer:

–Couldn’t it be a compelling interest that in a particular place for many, many years… many, many, many, many yeas the State was set up in such a way to prevent African Americans from having the same kind of vote, or even having a vote, as other persons had?

I mean, wouldn’t that be a justification, possibly, in particular circumstances for overcoming the effects of a history of discrimination?

A. Lee Parks:

Yes, that would become… but then we would go into traditional equal protection analysis.

Have you, the State of Georgia, come up with a limited race-based remedy, temporary in nature, and narrowly tailored to the purpose.

Stephen G. Breyer:

So then, would we then use–

A. Lee Parks:

It can’t just automatically be proportionality.

Stephen G. Breyer:

–But then would we then use, if we got past the threshold and then we found such a compelling interest, then would you not use what the Abrams briefs or some of the briefs have, the five, the traditional tests that this Court’s developed in order to show narrow tailoring that… limited in duration… you know the five.

A. Lee Parks:

Yes, sir.

Stephen G. Breyer:

Limited in duration, it’s roughly–

A. Lee Parks:

Right.

Stephen G. Breyer:

–equivalent to the–

A. Lee Parks:

Right.

But we get to the point, they’re not contending that.

They are contending that proportionality in and of itself is a State sovereign legislative prerogative that they don’t… that they… they’re asking this Court to politely butt out.

They’re saying to the courts of the United States that we want, under some States’ rights theory, the right, even though we really did this because the Justice Department made us do it, we have to defend it, and what we want to say is, is that if we want to manipulate racially our political boundaries, it’s no business of the Federal Government.

John Paul Stevens:

–Well, you would agree, would you not, that if the city, say, was composed of one-third Polish Americans, one-third Swedish Americans, and one-third Irish Americans, they could set out to divide up the city council in thirds for representation of each.

That would be constitutionally permissible, wouldn’t it?

A. Lee Parks:

If that is the only–

John Paul Stevens:

That’s the only reason, yes.

A. Lee Parks:

–I would hope not, Justice Stevens.

John Paul Stevens:

You’d hope they wouldn’t do it, but would it be–

A. Lee Parks:

No, I hope that would not be constitutional.

That was the only expressed reason… no communities of interest, no nothing.

John Paul Stevens:

–Other than a presumption that may or may not be valid–

A. Lee Parks:

Right.

John Paul Stevens:

–that Swedish Americans tend to share certain interests, they have Swedish clubs and–

A. Lee Parks:

And that’s why strict scrutiny helps us with this.

It makes–

John Paul Stevens:

–But you’d say strict scrutiny would be required even though there was no racial basis in that one?

A. Lee Parks:

–Shaw says racial or ethnic enclaves.

Are these not ethnic enclaves, and is an ethnic enclave somehow more constitutional than a racial enclave?

We read… we don’t read a distinction in the Shaw case.

If you are separating people because of their race, and ethnicity is certainly a subcategory of race, I want the State to have to go through the hoops.

It may well get through it, because it will show that when we go into Chinatown, the signs are all in Chinese, and everyone worships a different God, and these people have genuine, independent community-based needs to have a political voice that is weighted in a plethora of other interests, rather than–

William H. Rehnquist:

Thank you, Mr. Parks.

A. Lee Parks:

–Thank you.

William H. Rehnquist:

The case is submitted.

The honorable court is now adjourned until Monday at 10 o’clock.