NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.



ABRAMS et al. v. JOHNSON et al.

appeal from the united states court 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. ___, 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 ___. The plan challenged contained three majority black 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. 3-26.

(a) The trial court did not exceed its remedial power under the general rule of Upham v. Seamon, 456 U.S. 37, 43, 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 predominance 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. 3-14.

(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. 15-20.

(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 benchmarks for measuring retrogression, their desired remedy would be impermissible because they have not demonstrated it was possible to create a second majority black district within constitutional bounds. Moreover, none of their proposed benchmarks--the 1991 plan, the State's supposed policy of creating two majority black districts, and the 1992 plan shorn of its constitutional defects--was ever in effect, and thus none could operate as a benchmark under the Attorney General's regulations and, e.g., Holder v. Hall, 512 U.S. 874, 883-884. Nor can the 1992 plan, constitutional defects and all, be the benchmark, since §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. 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. Pp. 20-23.

(d) The plan does not violate the constitutional guarantee of one person, one vote under Article I, §2. Although court ordered districts must ordinarily achieve that provision's goal of population equality with little more than de minimis variation, e.g., Chapman v. Meier, 420 U.S. 1, 26-27, slight deviations are allowed upon enunciation of unique features or historically significant state policies, id., at 26, including, e.g., the desire to respect municipal boundaries and to preserve the cores of prior districts, Karcher v. Daggett, 462 U.S. 725, 740. Here, the trial court's plan has an overall population deviation lower than any other plan presented to it which was not otherwise constitutionally defective. Moreover, the court recited in detail those factors supporting the plan's slight deviation, including Georgia's strong historical preference for not splitting counties outside the Atlanta area and for not splitting precincts, as well as the State's interests in maintaining core districts and communities of interest, given its unusually high number of counties. Even if this Court found the plan's population deviation unacceptable, the solution would not be adoption of appellants' constitutionally infirm, race based, plans, but simply the shifting of a few precincts to even out the districts with the greatest deviations. Moreover, equitable considerations--the passage of more than six years since the census on which appellants' data is based and Georgia's ongoing and dramatic population shifts and changes--disfavor requiring yet another reapportionment to correct the court plan's deviation. See id., at 732. Pp. 23-26.

922 F. Supp 1556, affirmed.

Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Scalia, and Thomas, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined.


* Together with No. 95-1460, United States v. Johnson et al., also on appeal from the same court.