Georgia v. Ashcroft, John, Atty. Gen. (06/26/2003)

Questions presented: 1. Whether section 5 of the Voting Rights Act requires the drawing of safe majority-minority districts with super majority-minority populations rather than districts that afford minorities equal opportunities at success? 2. Whether section 5 can be constitutionally construed to require the drawing of supermajority-minority legislative districts in order to create safe seats rather than seats that afford minorities equal opportunities at success? 3. Whether private parties should be allowed to intervene in a section 5 preclearance action and assume the role and authority of the Attorney General?

BY MORGAN EVANS, MEDILL NEWS SERVICE

"Gerrymander" is an ugly word. It was coined by a political cartoonist in 1812 to accuse Massachusetts Governor Elbridge Gerry of drawing misshapen, salamander-like voting districts to give his party an edge. Why not call it something with a little less bite, like "creative cartography," or "the old democracy shuffle?" After all, partisan strategy is involved whenever states redraw their voting lines, and it can be hard to tell the difference between acceptable bias and a salamander.

Just ask Georgia. According to a 2002 ruling by the a special three-judge U.S. District Court in Washington D.C., Georgia Democrats drew salamanders when they remapped their State Senate voting districts in 2001.

African-Americans tend to vote for Democrats over Republicans. With the 2001 State Senate plan, Georgia Democrats were trying to spread their support by pulling minority constituents from lock districts into swing districts. David Walbert, counsel for Georgia, said the plan is legal, and that all voting district changes are partisan by nature.

"In the last 200 years Ive never seen it go otherwise," Walbert said. "Some of the academics would say committees should draw the districts, but you should never take the politics out of it."

Mark Braden, counsel for the U.S. assisting Attorney General John Ashcroft, disagreed and called the plan a "classic case of gerrymandering."

In district court, the U.S. argued successfully that Georgias plan makes it harder for a minority Senate candidate to be elected. The court ruled that the State Senate plan violated Section 5 of the Voting Rights Act by splitting up several large groups of minorities into separate districts. This changed three districts that were virtual locks for minority candidates into toss-ups. Georgia also redrew its State House of Representatives and Congressional districts in 2001, but the district court found these plans acceptable.

The district court held that there was a reasonable chance the State Senate plan would prevent minorities from being elected because of "racially polarized voting." The idea is that when only minority voters will vote for minority candidates, there needs to be a critical mass of minority voters in a given district for a minority to be elected.

But what constitutes a critical mass? This is the heart of the case. The Voting Rights Act states that redrawn voting districts must not "have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color." Courts have interpreted the act to mean that a state has to prove its plan won't cause "retrogression" in minority voting strength. On these grounds the district court rejected Georgia's plan because it turns two strong minority districts with over 60 percent Black voting age populations into borderline minority districts with 55 percent Black voting populations. Georgia argued that its plan provides minority candidates with equal opportunity, and that this should be enough to satisfy the Voting Rights Act.

Braden said that retrogression is a valid interpretation of the Voting Rights Act.

"The question is whether a toss-up seat is equal opportunity," he said. "We say it isn't."

Walbert framed the issue differently, questioning the idea of retrogression.

"What if youve got a seat that happens to be very high [in minority voting population]? If you go from a 90 to a 70 percent minority population is that retrogression?"

After the district court invalidated Georgias State Senate map, the state of Georgia adopted a revised State Senate plan and submitted that one to the district court. The court approved that one, however the state of Georgia did not want to give up on its original map. It appealed to the U.S. Supreme Court, which noted probable jurisdiction on Jan. 17, 2003.

As Georgia v. Ashcroft pended before the Supreme Court, Georgia Governor Sonny Perdue was fighting his own battle against the Democratic redistricting, which was signed into law by his predecessor, Governor Roy Barnes. The Republican governor sued Thurbert Baker, a Democrat and Georgias Attorney General, to force him to dismiss the states appeal of the district court decision. Perdue lost at the county level and asked the state high court to hear the case. The Georgia Supreme Court heard oral arguments in the case on May 6, one week after the U.S. Supreme Court heard oral arguments.

On June 26, 2003, a divided Court sided with Georgia, vacating the district court's judgment and remanding the case for more full consideration.

Writing for a 5-4 majority, Justice Sandra Day O'Connor concluded that thedistrict court had failed to consider all the relevant factors when it examined whether Georgia's Senate plan, and had placed too much emphasis on vote dilution to the detriment of issues relating to retrogression.

Justice David Souter wrote the dissent on behalf of himself and Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer.