A sea change in defense strategies is underway in Voting Rights Act litigation now that the Supreme Court has curtailed race-based districting in Miller v. Johnson . ¹ Chief Justice Marshall said in the twilight of our republic that "it is emphatically the province and duty of the judicial branch to say what the law is." ² In light of what the Court has said "the law is" regarding racial redistricting, more proactive defense strategies will be emerging. Previously the orthodox defense to vote dilution claims was to rebut the plaintiffs' proof of the Gingles preconditions ³ and the Senate Report factors. Now, local government defendants hailed into federal court amidst claims of discriminatory electoral systems can use cutting-edge defense strategies that
 

• reach beyond election results to non-racial causes of those results, ⁴
• go beyond historical discrimination to examine its current impact on electoral participation and access, ⁵
• enhance the ability of government defendants to implement narrowly tailored electoral system changes that will serve the public interest and minimize racial division, ⁶ and
• expose demands for proportional allocation of political power on the basis of race, by keeping the focus of § 2 on "equal political and electoral opportunity." ⁷

In the first § 2 vote dilution case decided after the 1982 Voting Rights Act amendments, Thornburg v. Gingles , the Court set out three "necessary preconditions" for plaintiffs to prevail:

(1) Geographical compactness,

(2) Minority political cohesion, and

(3) Legally sufficient white racial bloc voting.

A welter of statistical evidence awaits the trial court in most vote dilution cases. ⁸

In most vote dilution cases, the evidentiary standards call for a high degree of discernment as to which endogenous or exogenous elections shed the most light on the issues, which results are too remote or aberrational, which elections are the product of special circumstances, and which elections reveal significant patterns of crossover voting, minority electoral success or non-racial causes of minority electoral failure. ⁹

During the first decade of litigation under expanded 2, many courts appeared to be driven by a race-based goal of proportional representation--contrary to assurances provided by key Senators during the tense debate over amended 2. Following the 1990 census, as states and local government entities evaluated census data for purposes of one person, one vote compliance, the Department of Justice and private plaintiffs through 5 preclearance proceedings and 2 litigation routinely demanded maximization of the number of majority-minority districts. Racial gerrymandering emerged as a by-product. Majority-minority districts created by relying predominantly upon race and less upon non-racial traditional redistricting principles soon faced equal protection-based challenges North Carolina, Georgia, Louisiana, Texas, California and Florida.

In Shaw v. Reno ¹⁰ , the Supreme Court held that a district violates the Equal Protection Clause of the Fourteenth Amendment if it is

so extremely irregular...that it rationally can be viewed only as an effort to segregate the races for purposes of voting, without regard for traditional districting principles.

On June 29, 1995, the Supreme Court invalidated Georgia's Eleventh Congressional District on equal protection grounds, holding in Miller v. Johnson that where race was the predominant factor motivating the legislature's decision to place a significant number of voters inside or outside a district, and where the legislature subordinated traditional race-neutral districting principles to racial considerations, such a district, unexplainable on grounds other than race, would be subject to the same strict scrutiny as applies to other state laws that classify citizens by race, and can be sustained only if it is narrowly tailored to serve a compelling governmental interest.

In cases prior to Miller v. Johnson , the governmental defendant faced the insoluble dilemma of either following Shaw v. Reno and emphasizing geographical compactness and other non-racial traditional districting criteria in drawing majority-minority districts, or de-emphasizing these traditional districting criteria to satisfy the demands of the Justice Department and private plaintiffs for the creation of additional majority-minority districts, thus risking a Shaw -type equal protection challenge. Now that the Justice Department's maximization agenda has been torpedoed by Miller v. Johnson and racial considerations have been declared constitutionally impermissible as the predominant driving force behind legislative districting decisions, these defense strategies have an even greater significance, particularly in light of the Court's emphasis upon the fundamental principle of federalism that a government body enacting districting legislation "must have discretion to exercise the political judgment necessary to balance competing interests." ¹²

In Clarke v. City of Cincinnati ¹³ , the City's defense was based in part on a showing of electoral success of 47% of minority-preferred candidates in the 1981-91 City Council elections, leading the Sixth Circuit to conclude that plaintiffs had failed to show legally significant white racial bloc voting.

In Teague v. Attala County, Mississippi ¹⁴ , anecdotal evidence from veteran politicians, black and white, proved to be the decisive factor in resolving a classic battle of the experts on the issue of racial polarization, leading the Court to reject 2 challenges to the County's redistricting plan and justice court redistricting plan, based on significant white and black crossover voting and lack of minority cohesion.

The City of Gainesville, Georgia, prevailed in a 2 challenge brought against its at-large electoral system in Johnson v. Hamrick ¹⁵ , based in part on proof of "the extent opportunities minority voters enjoyed to participate in the political process."

Mississippi's method of electing Supreme Court Justices was upheld in Magnolia Bar Association v. Lee ¹⁶ , the Fifth Circuit reasoning that a district court is not bound by expert testimony on the subject of bloc voting and is free to examine election results and draw its own conclusions as to whether white bloc voting is legally significant.

The District Court in NAACP, Inc. v. City of Columbia, S.C. ¹⁷ rejected a 2 challenge mounted against the City's 4-2-1 method of electing members of the City Council, based on Plaintiffs' failure to prove minority political cohesion and white bloc voting. Its causation analysis was the linchpin to a defense victory. The overall evidence suggested no strong link between past discrimination and present political participation, since older blacks were more likely than young ones to be active voters, just the opposite of what one would suspect if past discrimination were affecting present participation.

Following the District Court's determination that the County's at-large electoral system for electing its Board of Commissioners violated 2, the District Court in Cane v. Worcester County, Maryland ¹⁸ issued a remedial order that mandated implementation of a cumulative voting system for county elections. The Fourth Circuit declared this remedial order clearly erroneous, based on the District Court's failure to give adequate deference to the County's expressed governmental interests and policy preferences for residency requirements "that would ensure that the Board members were knowledgeable of and responsive to the diverse interests of the various regions of the county." ¹⁹

In a passage which could have been extracted directly from Johnson v. Miller , the Eleventh Circuit in Nipper v. Smith ²⁰ concluded that the Plaintiffs' proposed remedial options of electoral subdistricts, creation of new majority-minority Circuit courts and a cumulative voting system would not only encourage racial bloc voting but "necessarily fuel the notion that judges were influenced by race when administering justice," and that the Courts in implementing such an altered electoral scheme "would be proclaiming that race matters in the administration of justice."

The Eighth Circuit held in African-American Voting Rights Legal Defense Fund v. Villa ²¹ that the City of St. Louis' 21-year history of proportionality was of sufficient duration to be deemed "sustained", and that the lower court properly granted summary judgment to the City "where the record before it demonstrated that sustained and substantial proportionality existed between the percentage of blacks in the citywide voting age population and the number of safe black wards."

In Uno v. City of Holyoke , ²² the First Circuit vacated and remanded the District Court's finding of a violation of 2 of the Voting Rights Act in a challenge by a group of Hispanic voters to the City of Holyoke, Massachusetts' aldermanic system holding in part that the Plaintiffs' showing of the Gingles preconditions may be rebutted and the burden remains on the Plaintiffs, that 2 plaintiffs cannot prevail "if there is significant probative evidence that whites voted as a bloc for reasons wholly unrelated to racial animus," id . at 981, and that the inference of racial bias that arises from proof of the bloc voting and cohesion preconditions may be rebutted if the 2 defendant "adduces credible evidence tending to prove that detected voting patterns can most logically be explained by factors unconnected to the intersection of race with the electoral system" including in these factors organizational disarray, lack of funds, want of campaign experience, unattractiveness of particular candidates, or the universal popularity of an opponent. Id . at 983.

In Alonzo v. City of Corpus Christi , ²³ the Fifth Circuit rejected a 2 challenge to the City's method of implementing City Council elections brought by an Hispanic citizens' group, holding that while relatively few Mexican-American candidates had been elected to city positions, these election results were better explained by factors other than discrimination, such as low voter turnout among Mexican-Americans and the fact that in many of the elections the first choice of the Mexican-American voters was not the Mexican-American candidate.

In NAACP, Inc. v. City of Niagara Falls , ²⁴ the Second Circuit upheld the City's at-large electoral system based on its analysis of the totality of the circumstances. Circuit Judge Cabranes rejected the 2 Plaintiffs' argument that only unresponsiveness, and not responsiveness, was relevant to a 2 inquiry, noting significant evidence of the City's numerous efforts to address the needs of members of the minority community through creation of a city Human Rights Commission which had begun an affirmative action task force to increase the number of minority applicants for the city police and fire departments, efforts by the City to secure grants for increased "community policing" in certain black neighborhoods, and a school integration program established by the Board of Education in 1970 that achieved substantial success, and adoption of a fair housing law by the City Council along with a minority business loan fund to provide loans to black business owners.
 

In a trio of cases, the Fifth Circuit has vacated and remanded district court decisions of non-liability under 2, based on lack of sufficiently particularized findings of fact and conclusions of law. In each case, the District Court had rejected the plaintiffs' 2 vote dilution after express consideration of the Gingles preconditions and the Senate Report factors. ²⁵ Further proceedings after remand led to district court decisions in favor of the County Defendants in Teague and Clark and both have again been appealed by the Plaintiffs to the Fifth Circuit.

The genesis of this "particularized findings" rule may be found in Velasquez v. City of Abilene ²⁶ where the Court held that "[a]lthough the trial court is not required to recount and discuss every bit of evidence offered to it, it is required to discuss all the substantial evidence contrary to its opinion." ²⁷

One way to navigate through the Velasquez mine field is to take full advantage of the opportunity often extended by District Judges pursuant to Rule 52, F.R.C.P., by submitting proposed findings of fact and conclusions of law that are suitable for a published opinion. These should at a minimum:

(1) Be exquisitely detailed;
(2) Discuss all substantial, relevant contrary evidence with respect to each of the Gingles factors and Senate Report factors and other probative evidence;
(3) Comprehensively tie the evidence in the record to the Gingles preconditions and the Senate Report factors;
(4) Comprehensively analyze the totality of the circumstances;
(5) Set forth comprehensive individual findings that reflect deliberative decision-making; and,
(6) Articulate a clear factual basis for credibility choices, both as to expert testimony and anecdotal evidence.

Given the crucial role that minority electoral outcomes play in 2 litigation, defense counsel would be well-advised to prepare and maintain an individual file for each election, endogenous and exogenous, containing a certified copy of each election return and the following data:

(1) Candidate by name and race;
(2) Office or position;
(3) Date of election;
(4) Type of election, i.e., primary, runoff, general, special;
(5) Relative qualifications of each candidate;
(6) Newspaper articles pertaining to the pre-election activities, announcements, speeches, and debates;
(7) Policies and written platforms of each candidate;
(8) Experience of each candidate;
(9) Abilities of each candidate as a speaker and public figure;
(10) Track records of each candidate in their respective communities;
(11) Name recognition of each candidate;
(12) Financial support received by each candidate, including groups or organizations providing financial support or in-kind support;
(13) Personalities of each candidate;
(14) Identity of detractors of each candidate;
(15) Financial report forms and similar documents.

From a risk management perspective, local government entities faced with the potential threat of Shaw -type racial gerrymandering claims aimed at pre- Shaw majority-minority districts may be able to engage in post-hoc rationalizations to persuade a court that the plan is based on articulated compelling justification, such as Voting Rights Act compliance, attainment of proportional representation, or eradication of the effects of past discrimination. Such cases will stand or fall on the factual finding of whether race-neutral considerations were subordinated to race in the redistricting process.

Local government entities about to embark upon the redistricting process , however, can certainly take a number of affirmative steps to minimize exposure to a claim of unconstitutional racial gerrymandering.
 

1. Utilize traditional, objective districting criteria in developing single-member district plans, including geographical compactness, respect for political subdivisions, contiguity, maintenance of communities of interest and other recognized, race-neutral criteria for redistricting, preferably grounded in the state constitution or positive state law.
2. Avoid creating boundaries which are dictated solely or predominantly by racial considerations. This same prohibition applies, of course, to boundaries which are created solely to advance one racial group's common interests.
3. Any districts which can be reasonably perceived as irrationally misshapen, highly irregular or bizarre in shape must be supported by a compelling governmental interest and narrowly tailored to further that interest, as shown by a legislative history which reveals a balancing of race-consciousness with other considerations as in DeWitt v. Wilson .
4. Particularly for jurisdictions covered under 5, identify the benchmark for purposes of avoiding retrogression.
5. To ensure that a potentially racially gerrymandered plan is narrowly tailored to serve a compelling governmental interest, i.e., clearly linked to specific instances of past discrimination, develop a legislative history that tracks Croson ²⁸ -like constraints on racial classifications and accomplishes at least five objectives:
 
(a) demonstrate the clear need for such a drastic measure, i.e., through particularized findings of past discrimination which may provide the requisite "strong basis in evidence" for concluding that remedial action is necessary.
(b) evaluate the efficacy of alternative race-neutral measures;
(c) evaluate the efficacy of alternative, more narrowly-tailored racial classifications;
(d) evaluate the flexibility and duration of the proposed remedial racial classification; and,
(e) expressly consider the impact of the remedy upon the rights of third parties. ²⁹

Our nation, at the prompting of many federal courts and the Justice Department, appeared to be sliding into a system of "political apartheid," through a process that ultimately browbeat some states and other governmental entities into racial gerrymandering of electoral districts in order to avoid the cost and disruption of Voting Rights Act litigation. Justice Clarence Thomas described this balkanization practice in his concurring opinion in Holder v. Hall ³⁰ :

The practice now promises to embroil the courts in a lengthy process of attempting to undo, or at least to minimize, the damage wrought by the system we created.

While the challenging questions raised in Miller must not be responded to in a way that guts the Voting Rights Act's promise of equal electoral opportunity, it is submitted that timely and vigorous implementation of the above defense strategies should materially minimize, if not undo, part of the damage created by this "enterprise of segregating the races into political homelands...." ³¹ .
 

*     *     *     *     *     *     *     *     *     *     *     *

Ben Griffith is a partner in the Cleveland, Mississippi, firm of Griffith & Griffith and has served as President of the National Association of County Civil Attorneys and Mississippi Association of County Board Attorneys, and Recorder of the Litigation and Risk Management Section of International Municipal Lawyers Association (formerly National Institute of Municipal Law Officers). He is a member of the ABA Section on State and Local Government Law (Civil Rights Liability Subcommittee of Committee on Governmental Liability, Election Subcommittee of Government Operations Committee) and Section on Litigation, ATLA's Civil Rights Section, Defense Research Institute (Governmental Liability Committee) and NACo's Intergovernmental Relations Steering Committee and is past-Chair of the Government Law Section of The Mississippi Bar. In May 1994 he testified before the House Judiciary Committee as part of the Voting Rights Roundtable. His federal civil litigation practice emphasizes representation of local government entities in voting rights litigation. He is board certified in civil trial advocacy by the National Board of Trial Advocacy.
 

1. 515 U.S. ___, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995).

2. Marbury v. Madison , 1 Cranch 137, 177 (1803), cited in Miller v. Johnson , supra , 132 L.Ed.2d at 784.

3. Thornburg v. Gingles , 478 U.S. 30, 50-51, 92 L.Ed.2d 25, 106 S.Ct. 2752 (1986).

4. League of United Latin American Citizens v. Clements , 999 F.2d 831, 847 (5th Cir. 1993); Alonzo v. City of Corpus Christi , 68 F.3d 944, 947 (5th Cir. 1995); Uno v. City of Holyoke , 72 F.3d 973, 983 (1st Cir. 1995)("[O]nce the Defendant proffers enough evidence to raise a legitimate question in regard to whether non-racial factors adequately explain racial voting patterns, the ultimate burden of persuading the factfinder that the voting patterns were engendered by race rests with the Plaintiffs.").

5. NAACP, Inc. v. City of Columbia, S.C. , 850 F. Supp. 404, 423 (D. S.C. 1993), aff'd , 33 F.3d 52 (4th Cir. 1994), cert. denied , 63 U.S.L.W. 3625 (1995)("[A] past history of discrimination in other areas is relevant insofar as its lingering effects presently influence the ability of blacks to participate in the political process."); Little Rock School District v. Pulaski County Special School District , 56 F.3d 904 (8th Cir. 1995)(concluding that even on the assumption the Plaintiff had met the three Gingles preconditions, they did not make a strong enough case to establish a violation of 2 under the totality of circumstances, based in part on the Court's reasoning that "certainly there is a history of official discrimination in Arkansas, though its present effects are less pronounced in Pulaski County than in some other parts of the state.").

6. Hines v. Mayor and Town Council of Ahoskie , 998 F.2d 1266, 1274 (4th Cir. 1993) (rejecting an electoral plan proposed by 2 plaintiffs where no sufficient justification was shown for a districting plan motivated solely by racial concerns).

7. NAACP, Inc. v. City of Niagara Falls , 65 F.3d 1002, 1016 (2nd Cir. 1995)(Rejecting a 2 challenge to the City's at-large electoral system, Circuit Judge Jose Cabranes declined to adopt an approach that would preclude the possibility of a white candidate being the actual and legitimate choice of minority voters, reasoning that "such an approach would project a bleak, if not hopeless, view of our society--a view inconsistent with our people's aspirations for a multi-racial and integrated constitutional democracy.").

8. Teague v. Attala County , 17 F.3d 796, 798 (5th Cir. 1994)(While the District Court was required to discuss 2 Plaintiffs' statistical evidence more thoroughly and to submit more detailed findings and conclusions directly evaluating such statistical evidence, tying it directly to the Gingles preconditions, the Court of Appeals acknowledged that the District Court "is not obliged to accept statistical evidence as conclusive on the question whether racially polarized voting exists.").

9. Teague v. Attala County , supra ("In sum, the record contains testimony of established politicians in Attala County that support the Defendants' claims that non-racial factors influence voters and determine election outcomes in Attala County. Significantly, the experiences and observations of individuals involved in the political process in Attala County strongly indicate a lack of black political cohesion and a significant white and black crossover voting." March 20, 1995, Slip Opinion at 17-18).

10. 509 U.S. ___, 113 S.Ct. 2816, 2824-27, 125 L.Ed.2d 511 (1993).

11. Quilter v. Voinovich , ___ F. Supp. ___, 1995 WL 681182 *5 (N.D. Ohio 1995)(decided pre- Miller , May 25, 1995)("Although the Court in Reno clearly created a new means to challenge state apportionment plans pursuant to the Fourteenth Amendment, its analysis left many unanswered questions that are integral to the proper resolution of a Shaw v. Reno claim:

(1) To what extent must "race" be a factor in an apportionment plan before the plan becomes a racial gerrymander subject to strict scrutiny analysis?
(2) Is circumstantial evidence of "bizarre" district shapes necessary to state and sustain a Shaw v. Reno claim?
(3) Once strict scrutiny is triggered, who has the burden of proof in a Reno claim?
(4) What constitutes a "compelling state interest" that would justify race-based redistricting?
(5) What is the meaning of "narrowly tailored" in the redistricting context?")

13. 40 F.3d 807 (6th Cir. 1994).

14. 807 F. Supp. 392 (N.D. Miss. 1992), aff'd in part, vacated in part and remanded , 17 F.3d 796 (5th Cir. 1994), further proceedings on remand , No. 1:91cv209-D-D (N.D. Miss. March 20, 1995), appeal pending , No. 95-60204 (5th Cir.).

15. Slip Op. at 19, No. 2:91-cv-02-WCO (N.D. Ga. September 29, 1994)(unpublished order and opinion), appeal pending , No. 94-9203, United States Court of Appeals for the Eleventh Circuit.

16. 994 F.2d 1143 (5th Cir. 1993).

17. 850 F. Supp. 404 (D. S.C. 1993), aff'd , 33 F.3d 52 (4th Cir. 1994), cert. denied , 63 U.S.L.W. 3625 (February 16, 1995).

18. 840 F. Supp. 1081 (D. Md. 1994), further proceedings , 847 F. Supp. 369 (D. Md. 1994), aff'd in part, vacated in part and remanded , 35 F.3d 921 (4th Cir. 1994), cert. denied , 115 S.Ct. 1097 (1995), on remand , 874 F. Supp. 687 (D. Md. 1995), aff'd in part, vacated in part and remanded , 57 F.3d 1065 (4th Cir. 1995), on pet. for writ of cert. , No. 95-270, 64 U.S.L.W. 3254 (U.S.).

19. 35 F.3d at 928.

20. 39 F.3d. 1494, 1546 (11th Cir. 1994), cert. denied , ___ S.Ct. ____ (1995). Accord , Southern Christian Leadership Conference of Alabama v. Sessions , 56 F.3d 1281 (11th Cir. 1995).

21. 54 F.3d 1345, 1995 W.L. 276660 *7, 11 (8th Cir. 1995).

22. 72 F.3d 973 (1st Cir. 1995).

23. 68 F.3d 944 (5th Cir. 1995).

24. 65 F.3d 1002 (2nd Cir. 1995).

25. Teague v. Attala County, Mississippi , 17 F.3d 796 (5th Cir. 1994); Clark v. Calhoun County, Mississippi , 21 F.3d 92 (5th Cir. 1994); Houston v. Lafayette County, Mississippi , 51 F.3d 547 (5th Cir. 1995), modified on pet. for rehearing , 56 F.3d 606 (5th Cir. 1995).

26. 725 F.2d 1017, 1020 (5th Cir. 1984).

27. Uno v. City of Holyoke , 72 F.3d 973, 989 (1st Cir. 1995)("[T]he District Court should not confine itself to raw numbers, but must make a practical, common sense assay of all the evidence.").

28. City of Richmond v. J. A. Croson Co. , 488 U.S. 469, 102 L.Ed.2d 854, 109 S.Ct. 706 (1989).

29. See Quilter v. Voinovich , ___ F. Supp. ___, 1995 WL 681182 *12 (N.D. Ohio 1995), where the Court concluded that in determining whether a racial gerrymander, if justified by a compelling state interest, is narrowly tailored to further that interest, the best analytical approach is to examine Crowson and other decisions that apply the narrowly tailored standard in other race-based remedial contexts, including examination of these five factors.

30. 114 S.Ct. 2581, 2598 (1994).

31. Id . at 2598.