Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257 (2015).

Jonathan A. Griffith

Junior Editor, Cumberland Law Review

In Alabama Legislative Black Caucus v. Alabama (“ALBC II”),[i] the United States Supreme Court analyzed the question of whether the State of Alabama’s 2012 redrawing of the boundaries of the state’s 105 House Districts and thirty-five Senate Districts created a “racial gerrymander” in violation of the Fourteenth Amendment’s Equal Protection Clause.[ii] The Alabama Constitution requires the redrawing of district boundaries following each decennial census.[iii] In doing so, Alabama sought to achieve the traditional objectives of “compactness, not splitting counties or precincts, minimizing change, and protecting incumbents.”[iv] The state’s two highest goals, however, were to minimize the extent to which a district might deviate from the theoretical ideal of “one person, one vote,”[v] and to ensure compliance[vi] with the principle of retrogression[vii] within the Voting Rights Act of 1965.[viii] The consequences of these two objectives became the focus of this case.

The Alabama Legislative Black Caucus (“the Caucus”), the Alabama Democratic Conference (“the Conference”), and others argued that the State of Alabama, in attempting to achieve the goal of minimizing the state’s deviation from the ideal of equal population, added more minority voters to certain districts than required by the Act.[ix] This resulted in the excessive concentration of minority voters in a small number of underpopulated districts, thereby minimizing minority presence in other districts and diluting the minority vote.[x] The plaintiffs allege that this scenario created a racial gerrymander[xi] that harmed the very minority voters that the Voting Rights Act seeks to help.[xii]

Claiming that the redistricting violated the Fourteenth Amendment’s Equal Protection Clause, the Caucus and Conference brought suit against the State of Alabama in the United States District Court for the Middle District of Alabama.[xiii] The district court ruled in favor of the state, reasoning that the plaintiffs had not proved that Alabama’s electoral redistricting had placed race as the “dominant and controlling” or “predominant” factor in placing a significant number of minority voters within several majority-minority districts.[xiv] The court also held that even if race was a predominant factor, plaintiffs had not proved that the use of race was “’not narrowly tailored[xv] to serve a compelling state interest.’”[xvi] The plaintiffs appealed and the Supreme Court granted certiorari with respect to the racial gerrymandering claims.[xvii]

The U.S. Supreme Court found “four critical . . . determinations underlying [the district court’s] ultimate ‘no violation’ conclusion” to be legally erroneous, which ultimately led the Court to vacate the decision.[xviii] First, the district court erred in determining that the plaintiffs’ claims restricted the court to the narrower analysis of whether the state’s redistricting as a whole[xix] constituted a racial gerrymander,[xx] versus the broader analysis of whether the legislature had racially gerrymandered any specific district.[xxi] Second, the district court’s determination that the Conference lacked standing[xxii] either to sue on behalf of its members or to bring a racial gerrymandering claim with respect to the State as a whole was not supported by the record.[xxiii] Third, the district court erred in concluding that equal population, rather than race, was the predominant factor in determining the location of all new district lines.[xxiv] Fourth, the district court erred in interpreting Section 5 of the Voting Rights Act[xxv] to require that jurisdictions maintain a particular numerical minority percentage[xxvi] rather than advance a minority’s ability to elect a preferred candidate.[xxvii]

Therefore, the Court ultimately vacated the district court’s decision and remanded the case with the order to apply the corrected analyses.[xxviii] First, the court should analyze the state’s alleged racial gerrymandering on a district-by-district basis.[xxix] Second, the court “should reconsider the Conference’s standing by permitting the Conference to file its list of members and permitting the State to respond.”[xxx] Third, the court should apply the correct “predominance” test for strict scrutiny.[xxxi] Fourth, the court should evaluate the redistricting plan on the basis of “[t]o what extent must [existing minority percentages be preserved] in order to maintain the minority’s present ability to elect the candidate of its choice” rather than on the basis of whether the plan “maintain[s] present minority percentages in majority-minority districts.”[xxxii]

The Court’s decision in ALBC II is the latest development in a decades-old progression of decisions since the Voting Rights Act was put into place. States have been required to walk a fine line between maintaining minorities’ voting rights in adherence to the Act, while honoring the principles of equal protection.[xxxiii] The equal protection challenges have evolved from the initial claim of voter dilution[xxxiv] to the emergence and development of the racial gerrymandering claim.[xxxv] Less than ten years following the passage of the Act, the difficulty of reconciling the Act’s demands with the rights of equal protection were revealed in United Jewish Organizations of Williamsburgh, Inc. v. Carey (UJO II).[xxxvi]

In UJO II, the Supreme Court analyzed whether New York’s use of racial criteria to comply with the Voting Rights Act of 1965 violated the Fourteenth or Fifteenth Amendment.[xxxvii] The suit arose as a result of New York’s attempt in 1972 to obtain the Attorney General’s approval for the reapportionment of three counties[xxxviii] that were subject to the Act’s preclearance provision.[xxxix] The state submitted to the Attorney General its proposed statute’s provisions for redistricting the state’s three preclearance counties.[xl] On April 1, 1974, the Attorney General announced that the proposed plan did not satisfy the Section 5 requirement of proving that the plan had “neither the purpose nor the effect of abridging the right to vote by reason of race or color.”[xli] The state then submitted a second plan to the Attorney General on May 31, 1974.[xlii] The new plan, while not changing the number majority-minority districts, did change the percentage of nonwhite majorities in most of those districts.[xliii] The legislature’s express purpose for the changes was to create more substantial nonwhite majorities[xliv] in two assembly districts and two senate districts.[xlv] In accomplishing this task, the state split a community of Hasidic Jews between two senate and assembly districts, reassigning the citizens to attain a goal of 65% nonwhite population within the adjacent districts.[xlvi] Plaintiffs sued on behalf of the Hasidic Jewish community, alleging that the redistricting was in violation of the Fourteenth and Fifteenth Amendments because it was designed based solely on race and diluted the plaintiffs’ voting power.[xlvii]

The United States District Court for the Eastern District of New York dismissed the complaint on the grounds that the plaintiffs had no constitutional right in reapportionment to be recognized as a separate community, they were not disenfranchised, and “racial considerations were permissible to correct past discrimination.”[xlviii]   In affirming the district court, the Second Circuit Court of Appeals agreed that the petitioners lacked the constitutional right to be recognized as a separate community, resulting in their being classified as members of the white population.[xlix] Therefore, the appellate court reasoned that the plan would not result in the underrepresentation of the group because the plan left approximately 70% of the senate and assembly districts with white majorities.[l] The plaintiffs appealed and the Supreme Court granted certiorari.[li]

The Supreme Court held that the racial criteria New York used in creating two majority-minority districts were constitutional for two reasons.[lii] First, the redistricting did not dilute the voting strength of white voters.[liii] Second, because the white population was not underrepresented in the counties as a whole, the specific instance of splitting the community could not be viewed as violating the principles of equal protection.[liv] Therefore, the Court acknowledged that the state used race in the redrawing of district lines, yet found nothing unconstitutional in the redistricting because there was no “abridgment of the right to vote on account of race.”[lv] A less subtle explanation for the Court’s affirmance of the decision is offered in the Court’s statement that, the plaintiffs simply failed to show “that New York did more than accede to a position taken by the Attorney General that was authorized by our constitutionally permissible construction of § 5.”[lvi]

Years after UJO II, the Court reviewed what had emerged as the first “racial gerrymandering” claim in Shaw v. Reno (Shaw I).[lvii] In Shaw I, the Court addressed whether two specific districts in North Carolina had been racially gerrymandered to ensure the election of two black representatives.[lviii] Prior to the suit, and as a result of the 1990 census, the General Assembly of North Carolina sought preclearance from the Attorney General for a reapportionment plan.[lix] The Attorney General rejected the initial plan, but approved a second that proposed two majority-black districts[lx] whose bizarrely irregular shapes were compared to that of an inkblot and a winding snake.[lxi] Five residents of Durham County, North Carolina filed suit in the United States District Court for the Eastern District of North Carolina, alleging that the redistricting constituted unconstitutional racial gerrymandering.[lxii] The claims centered on the allegations that the General Assembly had specifically drawn two congressional districts along racial lines and intentionally done so in order to ensure the election of two African American representatives.[lxiii] The district court stated that it lacked subject matter jurisdiction over the matter[lxiv] and dismissed the complaints, finding “no support for [plaintiffs’] contentions that race-based districting is prohibited by Article I, Section IV, or Article I, Section II, of the Constitution, or by . . . the Fourteenth Amendment.[lxv] Relying heavily upon the UJO II decision, the district court ruled that the redistricting did not violate the Equal Protection Clause because: (1) North Carolina’s purpose was to comply with the Voting Rights Act; and (2) the redistricting did not result in a statewide “proportional underrepresentation of white voters.”[lxvi]

The plaintiffs appealed and the Supreme Court granted certiorari. Agreeing with the plaintiffs’ contention that “redistricting legislation that is so bizarre on its face that it is ‘unexplainable on grounds other than race’ demands . . . close scrutiny.’”[lxvii] In a seeming departure from its holding in UJO II, the Court introduced a different standard in determining the validity of a racial gerrymander claim. The Court held that a plaintiff has a valid claim under the Equal Protection Clause where a state’s redistricting plan, on its face, has no other rational explanation other than an attempt to separate voters on the basis of race, and remanded the case with instructions to apply an analysis of strict scrutiny.[lxviii] On remand, the district court determined the use of race in redistricting was “both justified by a ‘compelling governmental interest’ and ‘narrowly tailored’ to further that interest,” and did not unduly burden a third party.[lxix] The plaintiffs appealed and the Supreme Court granted certiorari. However, prior to hearing the case, the Court made a significant decision in Miller v. Johnson,[lxx] which is crucial to understanding the progression of the law in this area. The decision provides a much clearer standard by which the Court would address racial gerrymander claims in the future.[lxxi]

In Miller, five Georgia residents brought claims in the United States District Court for the Southern District of Georgia, alleging that the state’s redistricting plan[lxxii] creating a third majority-minority district was a racial gerrymander in violation of the Equal Protection Clause.[lxxiii] The state defended the claim by asserting that the determinative issue was not whether race was the primary factor for creating the new boundaries, but that the plaintiffs had not proved that the district’s shape was so bizarre that it could not be explained other than on the basis of race.[lxxiv] Rejecting this argument regarding the significance of a district’s shape, the district court applied the Supreme Court’s holding in Shaw I, asserting that “whenever race is the ‘overriding, predominant force’ in the redistricting process,’” a strict scrutiny analysis is required to determine whether the redistricting violates the Equal Protection Clause.[lxxv]

Applying the first prong of strict scrutiny, the district court reasoned that compliance with the Voting Rights Act was a compelling interest.[lxxvi] However, the court found the plan must fail under the second prong because Georgia’s redistricting plan went beyond the requirements of the Act, and was therefore not narrowly tailored to comply with the Act.[lxxvii] The court held that the state’s creation of a third majority-black district was a racial gerrymander, “motivated by a predominant, overriding desire to assign black populations to the Eleventh District and thereby permit the creation of a third majority-black district in the Second.”[lxxviii]

The Supreme Court granted certiorari to examine the constitutionality of Georgia’s congressional redistricting plan.[lxxix] After affirming that the district court correctly analyzed the racial gerrymandering claim, the Court agreed that “race was the predominant factor motivating” the creation of the new congressional district.[lxxx] Conforming to—and also clarifying—its holding in Shaw I, the Court stated that because race was “the predominant, overriding factor” in the redistricting plan creating the Eleventh District, the plan could not be upheld unless it survived strict scrutiny.[lxxxi] The Court agreed that Georgia’s plan did not satisfy the “narrowly tailored” prong of strict scrutiny because there was no reason that Georgia’s earlier proposed plans, which resulted in only two majority-black districts, did not satisfy the nonretrogression principle of Section 5.[lxxxii] By affirming the district court’s application of Shaw I, the Supreme Court’s analysis clarified that whether a redistricting plan constitutes a racial gerrymander is determined by analyzing (1) whether race was the predominant factor in the drawing of the district lines, and if it was, (2) whether the use of race was narrowly tailored to satisfy a compelling government interest.[lxxxiii]

As the Supreme Court recognized in Shaw I, cases arising in the wake of the Voting Rights Act present two very “complex” and “sensitive” issues: “the meaning of the constitutional ‘right’ to vote, and the propriety of race-based state legislation designed to benefit members of historically disadvantaged racial minority groups.”[lxxxiv] While the historically murky waters of the relationship between the Voting Rights Act and the principles of equal protection have become clearer, the tension between the two federal rights does not appear to have been completely resolved. At the onset of this tension, the Court’s “highly fractured decision”[lxxxv] in UJO II offered very little in the way of sorting out when a plaintiff had a valid equal protection claim against redistricting plans. While its progeny has provided helpful developments, there are questions which remain unanswered.

The Court’s introduction of strict scrutiny to tackle the racial gerrymander claim in Shaw I was probably the greatest catalyst in the progression toward a coherent analysis regarding racial gerrymander claims under the Act. However, it was not until Miller that all the pieces seemed to truly come together. The Court provided the first clear test for determining whether a redistricting plan violated the principles of equal Protection. The Miller test brought together the required elements of a valid equal protection claim by establishing that the use of race must have been a predominant factor in the redistricting, and the state’s use of race failed to further a compelling interest.[lxxxvi]

The Court’s analysis in ALBC II provides further clarification regarding the meaning of the “predominance of race” in redistricting, but it also raises interesting questions regarding the “compelling interest” prong of strict scrutiny. The Court rejected the district court’s conclusion that race is not a predominant factor in Alabama’s redistricting plan because “equal population” is not a factor with which to compare the use of race for the purposes of predominance. While the decision certainly helps clarify the issue of predominance, another question looms over the Court’s remarks regarding its decision in Shelby County v. Holder.[lxxxvii] Though failing to offer any direction on the matter,[lxxxviii] the Court clearly questions whether “continued compliance with [Section] 5 remains a compelling interest.”[lxxxix] The Shelby decision and the question of whether compliance with Section 5 constitutes a compelling interest seem to set the stage for intriguing litigation. Time will tell whether those issues will be at the heart of the Court’s next major decision regarding racial gerrymandering claims and the Voting Rights Act.

[i] Alabama Legislative Black Caucus v. Alabama (ALBC II), 135 S. Ct. 1257 (2015).

[ii] Id. at 1262–63. The Equal Protection Clause of the Fourteenth Amendment provides, in relevant part, that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. The Supreme Court has stated that an equal protection “analysis begins with the basic principle that a [party] who alleges an equal protection violation has the burden of proving ‘the existence of purposeful discrimination.’” McCleskey v. Kemp, 481 U.S. 279, 292 (1987) (quoting Whitus v. Georgia, 385 U.S. 545, 550 (1967)).

[iii] Ala. Const. art. IX, §§ 199–200.

[iv] ALBC II, 135 S. Ct. at 1263.

[v] Id. The Court has likened a deviation from “one person, one-vote” to granting the population in one area of a state the right to cast multiple ballots while limiting others to only one, and also stated that “the Equal Protection Clause requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable.” Reynolds v. Sims, 377 U.S. 533, 577 (1964). See also Brown v. Thomson, 462 U.S. 835, 842 (1983) (holding that as much as 10% deviation is permissible under the Constitution).

[vi] The Supreme Court has explained that Section 5 of the Voting Rights Act was designed “‘to rid the country of racial discrimination in voting. . . . [b]y prohibiting the enforcement of a voting-procedure change until it has been demonstrated to the United States Department of Justice or to a three-judge federal court that the change does not have a discriminatory effect . . . .” Beer v. United States, 425 U.S. 130, 140 (1976) (quoting South Carolina v. Katzenbach, 383 U.S. 301, 315 (1976)).

[vii] Section 5 of the Voting Rights Act required the state to show that redistricting would not cause retrogression in the ability of racial minorities to elect “their preferred candidates of choice.” ALBC II, 135 S. Ct. at 1263 (quoting 52 U.S.C. § 10304(b) (2012)).

[viii] Id. Section (b) of the Voting Rights Act of 1965 states:

Any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting that has the purpose of or will have the effect of diminishing the ability of any citizens of the United States on account of race or color, or in contravention of the guarantees set forth in section 10303(f)(2) of this title, to elect their preferred candidates of choice denies or abridges the right to vote within the meaning of subsection (a) of this section.

Voting Rights Act of 1965, 52 U.S.C. § 10304(b) (2012).

[ix] Alabama Legislative Black Caucus v. Alabama (ALBC I), 989 F. Supp. 2d 1227, 1321 (M.D. Ala. 2013), judgment entered, No. 2:12-CV-1081, 2013 WL 6913115 (M.D. Ala. Dec. 20, 2013), vacated and remanded, 135 S. Ct. 1257 (2015). The district court understood plaintiffs to contend that the redrawing of Senate Districts 7, 11, 22, and 26 constituted racial gerrymandering. Id. at 1288.

[x] Id. at 1294. This is referred to as diluting minority voting strength, and violates Section 2 of the Voting Rights Act. See, e.g., Shaw v. Reno (Shaw I), 509 U.S. 630, 641 (1993).

[xi] The Supreme Court has recognized that the traditional redistricting principles cannot “suffice to refute a claim of racial gerrymandering,” where “those factors [are] subordinated to racial objectives.” Miller v. Johnson, 515 U.S. 900, 919 (1995).

[xii] ALBC II, 135 S. Ct. at 1265.

[xiii] ALBC I, 989 F. Supp. 2d at 1237.

[xiv] ALBC II, 135 S. Ct. at 1263–64. See Miller, 515 U.S. at 913, 916 (holding that there is a valid equal protection claim when race is the “dominant and controlling” or “predominant” consideration in deciding “to place a significant number of voters within or without a particular district.”).

[xv]ALBC II, 135 S. Ct. at 1264 (quoting Shaw v. Hunt (Shaw III), 517 U.S. 899, 902 (1996)). See Shaw III, 517 U.S. at 902 (stating race may be used in redrawing district lines if it is “narrowly tailored to serve a compelling state interest.”).

[xvi] While the district court found the prevention of retrogression to be a compelling interest under Section 5 of the Voting Rights Act, the Supreme Court did not make a determination regarding that prong of the analysis. ALBC II, 135 S. Ct. at 1274. The Court did, however, allude to the fact that its decision in Shelby County v. Holder may affect that determination. Id. See Shelby Cty. v. Holder, 133 S. Ct. 2612, 2631 (2013) (holding the Voting Rights Act Section 4(b) coverage formula unconstitutional).

[xvii] ALBC II, 135 S. Ct. at 1264.

[xviii] Id. at 1264, 1274.

[xix] The Court disagreed with the district court’s argument that the plaintiffs waived the right to any consideration of a district-by-district analysis by asserting in their complaint that the legislature had racially gerrymandered the “State ‘as’ an undifferentiated ‘whole.’” Id. at 1267.

[xx] “A racial gerrymandering claim . . . applies to the boundaries of individual districts. It applies district-by-district. It does not apply to a State considered as an undifferentiated ‘whole.’” Id. at 1265.

[xxi] Id. at 1266. The Court asserts that the correct analysis is a district-by-district analysis, in which it is determined whether race-based criteria predominately affected the drawing of any individual districts. Id. (emphasis added).

[xxii] The district court denied standing on the basis that the Conference failed to establish the districts in which its members reside and that the Conference had members with standing to bring suit on district-specific racial gerrymandering claims. ALBC II, 135 S. Ct. at 1268–69.

[xxiii] Id. at 1269.

[xxiv] Id. at 1270. The Court deemed this determination erroneous because the district court confused the state’s goal of equal population as a factor to be weighed against the use of race to determine whether race “predominates.” Rather than a factor, equal population is “part of the redistricting background, taken as a given, when determining whether race, or other factors, predominate in a legislator’s determination as to how equal population objectives will be met.” Id.

[xxv] Section 5 required the State to show that redistricting would not cause retrogression in the ability of racial minorities to elect “their preferred candidates of choice.” Id. at 1263.

[xxvi] The effect of this interpretation led to the vast majority of the additional population added to the under-populated, majority-minority districts to be minorities, thus decreasing the number of minority voters in the other districts. Id. at 1266–68.

[xxvii] ALBC II, 135 S. Ct. at 1272.

[xxviii] Id. at 1274.

[xxix] Id. at 1268.

[xxx] Id. at 1270. The Court disagreed with the district court on this issue, finding that the Conference’s statements that it is a “statewide political caucus” imply that it has members in all of the state’s majority-minority districts. Id. at 1269.

[xxxi] Id. at 1272. “‘[P]redominance’ in the context of a racial gerrymandering claim . . . is not about whether a legislature believes that the need for equal population takes ultimate priority,” but “whether the legislature ‘placed’ race ‘above traditional districting considerations in determining which persons were placed in appropriately apportioned districts.’” ALBC II, 135 S. Ct. at 1271 (quoting Brief for United States Amicus Curiae at 19).

[xxxii] Id. at 1274. The district court “asked the wrong question with respect to narrow tailoring.” Id.

[xxxiii] This is perhaps most clearly revealed in the process of the states’ submission of proposed redistricting plans to the Attorney General for preclearance, the plans’ subsequent rejection, and the litigation that follows. In Miller v. Johnson, after having its first two proposed plans denied by the Attorney General, the third plan, while approved by the Attorney General, was found unconstitutional by the Supreme Court. 515 U.S. 900 (1995).

[xxxiv] See, e.g., United Jewish Orgs. of Williamsburgh, Inc. v. Carey (UJO II), 430 U.S. 144 (1977) (Hasidic Jewish community brought claims against the State of New York’s redistricting plan, alleging that the plan was based solely on race and diluted the group’s voting power). Congress amended Section 2 of the Voting Rights Act to combat the issue of voter dilution by prohibiting “legislation that results in the dilution of a minority group’s voting strength, regardless of the legislature’s intent.” Shaw I, 509 U.S. at 641.

[xxxv] Id. at 633–35.

[xxxvi] UJO II, 430 U.S. at 144.

[xxxvii] Id. at 148.

[xxxviii] Kings, New York, and Bronx Counties became subject to the preclearance requirement after the Attorney General determined that each of the counties used a literacy test and the Director of the Census determined that less than 50% of the residents of voting age voted in the 1968 Presidential election. Id. at 148.

[xxxix] Id. at 148–50.

[xl] Id. at 150. The Attorney General also received submissions criticizing and defending the proposed plan. Among the criticisms were “assertions that voting in [the three counties] was racially polarized and that the district lines had been created with the purpose or effect of diluting the voting strength of nonwhites (blacks and Puerto Ricans).” Id. at 149–50.

[xli] UJO II, 430 U.S. at 150.

[xlii] Id. at 151.

[xliii] Id.

[xliv] In Kings County, the new plan changed the three senate districts’ nonwhite majorities from approximately 91%, 61%, and 53% to between 70% and 75% in each of the three. Under the original plan, the state assembly’s seven majority-minority districts included four between 85% and 95% nonwhite, and three that were approximately 76%, 61%, and 52% nonwhite. The new plan increased the two smallest majority-minority districts to 65% and 67.5%, and the two largest were decreased to between 80% and 90%. Id. at 151–52.

[xlv] Id. at 152.

[xlvi] Id.

[xlvii] UJO II, 430 U.S. at 152–53.

[xlviii] Id. at 153.

[xlix] Id. at 153–54.

[l] Id. at 154.

[li] Id. at 155.

[lii] Id. at 162.

[liii] UJO II, 430 U.S. at 163.

[liv] Id. at 165. “As the Court of Appeals observed, the plan left white majorities in approximately 70% of the assembly and senate districts in Kings County, which had a countywide population that was 65% white.” Id. at 166.

[lv] Id. at 165.

[lvi] Id. at 164. This assertion is anchored by the Court’s statement that “[t]he creation of substantial nonwhite majorities in approximately 30% of the senate and assembly districts in Kings County was reasonably related to the constitutionally valid statutory mandate of maintaining nonwhite voting strength.” Id. at 163.

[lvii] Shaw I, 509 U.S. 630.

[lviii] Id. at 633–34.

[lix]Id. at 634. At the time, preclearance was required under Section 5 of the Voting Rights Act for 40 of North Carolina’s 100 counties. Id.

[lx] Id. at 635–36.

[lxi] Id. at 635.

[lxii] Shaw I, 509 U.S. at 636–37. The first suit filed regarding the redistricting made claims that the redrawing constituted a political gerrymander and was dismissed. Pope v. Blue, 809 F. Supp. 392 (W.D.N.C.), aff’d, 506 U.S. 801 (1992).

[lxiii] Shaw I, 509 U.S. at 637.

[lxiv] Id. The Act granted exclusive jurisdiction to the District Court for the District of Columbia to issue injunctions under the Act. Id.

[lxv] Id. at 638.

[lxvi] Id. at 638–39. Both reasons offered by the district court seemingly aligned with the holding in UJO II. See UJO II, 430 U.S. at 164–65 (holding New York’s redistricting plan to be constitutional because it was in accord with Section 5 and did not cause the underrepresentation of the white voters).

[lxvii] Shaw I, 509 U.S. at 644 (quoting Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977)).

[lxviii] Id. at 657–58; see also Shaw v. Hunt (Shaw II), 861 F. Supp. 408, 422 (E.D. N.C. 1994) (noting that the Supreme Court held in UJO II that the “Equal Protection Clause did not prevent a jurisdiction subject to § 5 of the Voting Rights Act from deliberately creating districts in which racial minorities were a majority, so long as it did so with the purpose of complying with the Voting Rights Act and did not unfairly dilute or cancel out the voting strength of any other racial group.”).

[lxix] Id. at 434 (quoting Shaw I, 509 U.S. at 631). The district court held that the plan survived strict scrutiny because it was “narrowly tailored” to further the compelling state interest of compliance with the Voting Rights Act and did not impose an unacceptable burden upon innocent third parties. Id. at 454. The court also reasoned that the plan would place undue burden on third parties only if it unequally weighed the votes of certain individuals, diluted the voting power of a specified group of voters, or prevented citizens from receiving “fair and effective representation.” Id. (quoting Reynolds v. Sims, 377 U.S. 533, 577 (1964)).

[lxx] 515 U.S. 900 (1995).

[lxxi] In deciding Shaw III, the Court applied Miller’s clarified version of the Court’s Shaw II holding. Shaw III, 517 U.S. at 906–07, 918 (holding the redistricting plan was not narrowly tailored to the State’s asserted interest in complying with § 2 of the Voting Rights Act).

[lxxii] The Attorney General designated Georgia a covered jurisdiction under Section 4 of the Voting Rights Act in 1965, requiring preclearance for any change in its voting procedures. Miller, 515 U.S. at 905.

[lxxiii] Id. at 907–09. The plan was the state’s third attempt to achieve pre-clearance from the Attorney General. Johnson v. Miller, 864 F. Supp. 1354, 1366 (S.D. Ga. 1994). The first two proposed plans created a second majority-minority district and this plan, accepted by the Attorney General, created a third, expanding the state’s number of majority-minority districts from two to three. Id. at 1363–67.

[lxxiv] Miller, 515 U.S. at 910–11. This argument was based on the Court’s holding in Shaw I “that a plaintiff states a claim under the Equal Protection Clause by alleging that a state redistricting plan, on its face, has no rational explanation save as an effort to separate voters on the basis of race.Id. at 903.

[lxxv] Id. at 909 (quoting Johnson, 864 F. Supp. at 1372).

[lxxvi] Id. at 910.

[lxxvii] Id. The court found that the “Act did not require three majority-black districts.” Id. (emphasis added).

[lxxviii] Id. at 917.

[lxxix] Miller, 515 U.S. at 903.

[lxxx] Id. at 917. The Court also agreed that “it was ‘exceedingly obvious’ from the shape of the Eleventh District, together with the relevant racial demographics,” that the state deliberately attempted “to bring black populations into the district.” Id. The Court also found that the traditional districting principles of “compactness, contiguity, and respect for political subdivisions” were “subordinated to racial objectives.” Id. at 919.

[lxxxi] Id. at 920.

[lxxxii] Id. at 923. The “drawing of [the third district] was not required . . . because there was no reasonable basis to believe that Georgia’s earlier enacted plans violated § 5. Georgia’s first and second proposed plans increased the number of majority-black districts from 1 out of 10 (10%) to 2 out of 11 (18.18%).” Miller, 515 U.S. at 923.

[lxxxiii] Id. at 909–10.

[lxxxiv] Shaw I, 509 U.S. at 633.

[lxxxv] Id. at 651.

[lxxxvi] Though put forth in Miller, the Court’s first practical example of the Miller test was in Shaw III. See ALBC II, 135 S. Ct. at 1262 (stating that race cannot be used as the predominant factor in redrawing district lines unless it is narrowly tailored to achieve a compelling state interest) (citing Shaw III, 517 U.S. at 907–08)).

[lxxxvii] Id. at 1273–74. In Shelby County, the Supreme Court held that the coverage formula in Section 4(b) of the Voting Rights Act, used to determine which states and subdivisions were subject to Section 5 preclearance, was unconstitutional. Shelby Cty., 133 S. Ct. at 2615.

[lxxxviii] The Court seems to suggest that the district court should revisit the issue of whether compliance with Section 5 remains a compelling interest. ALBC II, 135 S. Ct. at 1274.

[lxxxix] Id. (alteration in original).

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