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COLLETON COUNTY COUNCIL v. MCCONNELL

March 20, 2002

COLLETON COUNTY COUNCIL; STEVEN MURDAUGH, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CHAIRMAN OF COLLETON COUNTY COUNCIL; DR. JOSEPH FLOWERS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A MEMBER OF COLLETON COUNTY COUNCIL; JANICE H. ALEXANDER, ANDREW F. CALCUTT, JOSEPH HAMILTON, HAZEL HARRELSON, JAS. P. HARRELSON, WILLIAM K. PADGETT, DAISY F. RIZER I.N. RIZER, DAVID M. SMALLS, A.L. SMOAK, JR., KATHLEEN
V.
STEEDLY, WENDELL M. STEEDLY, CHERYL R. TILMAN, AND W. GENE WHETSELL, PLAINTIFFS, AND SEL HEMINGWAY, INDIVIDUALLY, INTERVENOR-PLAINTIFF, V. GLENN F. MCCONNELL, IN HIS OFFICIAL CAPACITY AS THE PRESIDENT PRO TEMPORE OF THE SOUTH CAROLINA SENATE; DAVID H. WILKINS, IN HIS OFFICIAL CAPACITY AS THE SPEAKER OF THE SOUTH CAROLINA HOUSE OF REPRESENTATIVES, AND JAMES H. HODGES, IN HIS OFFICIAL CAPACITY AS THE GOVERNOR OF SOUTH CAROLINA, DEFENDANTS. HUGH K. LEATHERMAN, INDIVIDUALLY AND AS SENATOR FROM THE 31ST DISTRICT, SCOTT H. RICHARDSON, INDIVIDUALLY AND AS SENATOR FROM THE 46TH DISTRICT, AND ROBERT W. HAYES, JR., INDIVIDUALLY AND AS SENATOR FROM THE 15TH DISTRICT, PLAINTIFFS, V. GLENN F. MCCONNELL, IN HIS CAPACITY AS PRESIDENT PRO TEMPORE OF THE SENATE AND CHAIRMAN OF THE SENATE JUDICIARY COMMITTEE, DAVID H. WILKINS, IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF REPRESENTATIVES, AND JAMES F. HENDRIX, IN HIS CAPACITY AS EXECUTIVE DIRECTOR OF THE STATE ELECTION COMMISSION, DEFENDANTS, JAMES H. HODGES, IN HIS OFFICIAL CAPACITY AS THE GOVERNOR OF SOUTH CAROLINA, INTERVENOR-DEFENDANT. KAMAU MARCHARIA, JAMES MELVIN HOLLOWAY, ANN JOHNSON, AND ELDER JAMES JOHNSON, PLAINTIFFS, V. JAMES H. HODGES, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF SOUTH CAROLINA; GLENN F. MCCONNELL, IN HIS OFFICIAL CAPACITY AS PRESIDENT PRO TEMPORE OF THE SOUTH CAROLINA SENATE; DAVID H. WILKINS, IN HIS OFFICIAL CAPACITY AS SPEAKER OF THE SOUTH CAROLINA HOUSE OF REPRESENTATIVES; AND JAMES F. HENDRIX, IN HIS OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR OF THE SOUTH CAROLINA STATE ELECTION COMMISSION, DEFENDANTS.



William B. Traxler, Jr., Circuit Judge, Joseph F. Anderson Jr., Chief Judge, Matthew J. Perry, Jr., Judge

The opinion of the court was delivered by: Per Curiam

      ORDER

The United States Constitution requires the governing officials of the State of South Carolina to enact new districting plans for the South Carolina Senate, the South Carolina House of Representatives, and the United States Congressional districts within the state on an equipopulous basis every ten years, in accordance with population changes revealed by the decennial census. Unfortunately, the governing officials of the State of South Carolina, following receipt of the 2000 census data, failed to successfully fulfill this duty and have now reached an impasse. After a lengthy period of mapping, the South Carolina General Assembly, in which Republicans constitute a majority of both houses, prepared redistricting plans for all three bodies, but the plans were vetoed by Governor James H. Hodges, a Democrat. The General Assembly failed in its attempt to override the veto, prompting the filing of these consolidated lawsuits. In each case now before the court, the plaintiffs seek a declaration that the existing districting plans for each elective district are unconstitutional and the implementation of interim court-ordered plans in time for impending 2002 elections. Thus, this court has once again been placed into the center of partisan politics in South Carolina, assigned the "unwelcome obligation" of devising and approving redistricting plans for each legislative body. Connor v. Finch, 431 U.S. 407, 415 (1977).*fn1

I. Background

South Carolina's General Assembly is composed of two bodies: a Senate with forty-six single-member district seats, see S.C. Const. art. III, §§ 1 & 6, and a House of Representatives with 124 single-member district seats, see S.C. Const. art. III, § 3. South Carolina is also entitled to six representatives in the United States House of Representatives. Within quite limited variances, federal law requires that the South Carolina General Assembly redraw each seat in its bicameral state legislature, see Reynolds v. Sims, 377 U.S. 533, 577-80 (1964), as well as each of its six congressional seats in the United States House of Representatives, see U.S. Const. art. 1, § 2, cl. 3; Karcher v. Daggett, 462 U.S. 725, 730-31 (1983), on an equipopulous basis in accordance with the results of the decennial census.

In anticipation of receiving the results of the 2000 census, and the inevitable malapportionment of existing districts it would reveal, the South Carolina General Assembly set upon a course to adopt new redistricting plans for its two governing bodies, as well as for its six United States Congressional districts. The process began in January 2001, with the introduction of skeleton bills H.3003 (for the South Carolina House of Representatives) and H.4182 (for the United States House of Representatives). The bills were given first reading and referred by the House Speaker to the House Judiciary Committee for use as redistricting vehicles in the General Assembly.

The House Judiciary Committee received the year 2000 census data from the United States Census Bureau on March 15, 2001. During the month of June 2001. the House Election Laws Subcommittee held public hearings in several locations throughout the state, taking testimony from citizens and public officials regarding the proposed House, Senate, and Congressional plans. The full House of Representatives began consideration of House and Congressional redistricting plans passed by the House Judiciary Committee on August 13, 2001. Plans for the House (H.3003) and Congressional seats (H.4182) were subsequently passed by the House and then submitted to the Senate for consideration on August 17, 2001.

The Senate, through a similar Redistricting Subcommittee of its Judiciary Committee, had also been working on a redistricting plan for the South Carolina Senate. Upon receipt of the passed House Plan and the House version of the Congressional Plan, the Senate combined its Senate Plan with the House Plan into H.3003, attached an amended Congressional Plan, and returned H.3003 to the House on August 22, 2001. The House, after concurring in the Senate amendments, ratified H.3003 and sent the bill to Governor Hodges on August 27, 2001.

Three days later, Governor Hodges returned a veto message for H.3003 to the General Assembly. The Governor's stated reason for vetoing the legislatively passed redistricting plan centered on the claim that the House and Senate plans should have created more so-called minority "influence districts," defined by the Governor as districts with a black voting age population ("BVAP") of between 25% and 50%, and a claim that the Congressional Plan unnecessarily split several counties within the state. On September 4, 2001, the House attempted to override the Governor's veto, but failed by a vote of 73 to 46. Consequently, H.3003 was never enacted as law. See S.C. Const. art. IV, § 21 (requiring that all laws be passed by the General Assembly and signed by the Governor to be effective, unless two-thirds of both the House and the Senate vote to override a gubernatorial veto).

Our involvement in this uniquely state matter resulted from the filing of three separate lawsuits, all of which allege that the existing election districts for the South Carolina General Assembly and the United States Congressional seats in South Carolina violate the "one-person, one-vote" requirement of the United States Constitution. See Karcher, 462 U.S. at 731; Reynolds, 377 U.S. at 568.

Although each group of plaintiffs seeks to advance its own unique interests, all seek essentially the same broad relief — a declaration that, based on the population changes revealed by the 2000 census, the existing districts for the South Carolina Senate and South Carolina House of Representatives are malapportioned in violation of the one-person, one-vote principle of the Fourteenth Amendment to the United States Constitution, a declaration that the existing districts for South Carolina's Congressional seats are malapportioned in violation of Article I, § 2 of the United States Constitution, and a declaration that the legislative redistricting process in South Carolina has reached an impasse, necessitating judicial intervention. Additionally, the parties seek implementation of interim districting plans by the court for all upcoming elections. All of the pending cases were consolidated and designated to be heard before this three-judge panel, appointed pursuant to 28 U.S.C.A. § 2284(a) (West 1994).

Due to the unusual complexity surrounding this type of case, and the skills and expertise which it requires, the court provided early notice of its intention to appoint a technical advisor to assist the court in understanding and utilizing the relevant technology needed to issue an order in the requisite expedited time frame. See Reilly v. United States, 863 F.2d 149, 154-56 (1st Cir. 1988). Specifically, the court notified all counsel of its intent to appoint Mr. Bobby Bowers, Director of the South Carolina Budget and Control Board Office of Research and Statistics, as its technical advisor.*fn3 The parties were also asked to advise the court of any objections to the proposed appointment. No such objections were interposed and on November 26, 2001, Mr. Bowers was appointed in this capacity by order of this court.

Following expedited discovery, trial in this matter commenced on January 14, 2002. The trial was conducted in three phases, with the House phase of the litigation commencing on January 14 and concluding on January 18, 2002. Following a week-long recess, trial on the Congressional phase ran from January 29 to January 31, 2002, and trial on the Senate phase ran from February 1 to February 12, 2002. Having considered the voluminous evidence and testimony presented in these cases, we agree that the requested relief is necessary. The existing plans for each elective body are unconstitutional, necessitating the court's implementation of court-ordered remedial plans in their place.

II. Remedial Authority

The results of the 2000 census revealed that South Carolina's population has increased from 3,486,703 persons to 4,012,012 persons over the past decade, for an overall population growth of 15.1%. The percentage of the state's black population has remained relatively constant at just under 30% of the total population. The largest population growth occurred in the coastal areas of South Carolina — Horry, Beaufort, Georgetown, and Jasper Counties. With the exception of Greenville County, the urban counties of the state (Charleston, Greenville, Richland, and Spartanburg) did not keep pace with the 15.1% state-wide growth rate, but areas surrounding some existing urban centers — Lexington County, Kershaw County, and Calhoun County surrounding Columbia; York County and Cherokee County south of Charlotte, North Carolina; and Edgefield County and Aiken County near the North Augusta/Aiken metropolitan area — did experience substantial growth. The rural counties were the hardest hit in population losses. Four counties — Allendale, Bamberg, Marlboro, and Union — lost population, and nine others — Chester, Darlington, Dillon, Fairfield, Lee, Marion, Newberry, Orangeburg, and Williamsburg — did not keep pace with the 15.1% state growth rate.

These large population shifts from the rural areas to the urban and coastal areas of the state have resulted in severe malapportionment of both houses of the state legislature and of the United States Congressional districts. The parties have all stipulated that the existing plans for all three bodies are unconstitutionally malapportioned after the 2000 census, see, e.g., Karcher, 462 U.S. at 730-31; Reynolds, 377 U.S. at 568, and the court granted summary judgment as to the malapportionment issue in advance of each phase of the trial.

The primary responsibility for drafting and implementing a redistricting plan in South Carolina always rests with the South Carolina General Assembly, subject to the approval of the Governor. See U.S. Const. art. I, § 2; S.C. Const. art. III, § 3. "[J]udicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so." White v. Weiser, 412 U.S. 783, 794-95 (1973) (quoting Reynolds, 377 U.S. at 586).

[L]egislative reapportionment is primarily a matter for legislative consideration and determination, for a state legislature is the institution that is by far the best situated to identify and then reconcile traditional state policies within the constitutionally mandated framework of substantial population equality. The federal courts by contrast possess no distinctive mandate to compromise sometimes conflicting state apportionment policies in the people's name. In the wake of a legislature's failure constitutionally to reconcile these conflicting state and federal goals, however, a federal court is left with the unwelcome obligation of performing in the legislature's stead, while lacking the political authoritativeness that the legislature can bring to the task. In such circumstances, the court's task is inevitably an exposed and sensitive one that must be accomplished circumspectly, and in a manner free from any taint of arbitrariness or discrimination.

Unfortunately, the elected officials of South Carolina have failed to redistrict the General Assembly and South Carolina's Congressional seats in accordance with their constitutional obligations. Primary elections for Congress and the South Carolina House of Representatives are currently scheduled for June 11, 2002, with the general election to follow on November 5, 2002. All of the parties appearing before us have stipulated, and have presented persuasive evidence, that the General Assembly is at an impasse with the Governor and that there is no chance that the governing officials will reach a compromise in time for the impending 2002 elections.

We too are satisfied that the governing officials cannot complete the requisite redistricting in time for the impending elections. Accordingly, the court is required to take steps "to insure that no further elections are conducted under the invalid plan[s]," Reynolds, 377 U.S. at 585, and to implement remedial districting plans, see Connor, 431 U.S. at 415.*fn4

III. Remedial Factors

Although the court "perform[s] in the legislature's stead" when the latter has failed to redistrict in accordance with the Constitution, see id., in fact operate under more stringent requirements than those imposed upon the state legislature. Accordingly, we begin with a summary of the specific redistricting standards under which we operate, each of which is discussed in more detail later.

First, we look to the federal standards which guide us. Because the constitutional wrong we remedy is the malapportionment of the existing districts, the one-person, one-vote requirement of the United States Constitution is always the paramount concern of a court-ordered remedial plan. The plan for redistricting of a state's bicameral legislature "must ordinarily achieve the goal of population equality with little more than de minimis variation," Chapman v. Meier, 420 U.S. 1, 27 (1975), whereas in the congressional redistricting process, a "good-faith effort to achieve precise mathematical equality" is required. Karcher, 462 U.S. at 730 (internal quotation marks omitted).*fn5 And, in fashioning these constitutionally mandated equipopulous plans, the court must comply with the racial-fairness mandates of § 2 of the Voting Rights Act, 42 U.S.C.A. § 1973, and the purpose-or-effect standards of § 5 of the Voting Rights Act, 42 U.S.C.A. § 1973c. See Abrams v. Johnson, 521 U.S. 74, 90, 96 (1997)

Second, in satisfying these federally mandated requisites, we look to the historical redistricting policies of the state, but only insofar as "those policies do not lead to violations of the Constitution or the Voting Rights Act." Abrams, 521 U.S. at 79; see also Upham v. Seamon, 456 U.S. 37, 39 (1982) (noting that "[a]lthough a court must defer to legislative judgments on reapportionment as much as possible, it is forbidden to do so when the legislative plan would not meet the special standards of population equality and racial fairness that are applicable to court-ordered plans"); White, 412 U.S. at 795 (noting that federal courts, in the context of reapportionment, "should follow the policies and preferences of the State, as expressed in statutory and constitutional provisions or in the reapportionment plans proposed by the state legislature, whenever adherence to state policy does not detract from the requirements of the Federal Constitution").

Finally, we reiterate the Supreme Court's admonition that, in implementing a court-ordered remedial plan for malapportioned legislative and congressional districts, the court must always act "circumspectly, and in a manner free from any taint of arbitrariness or discrimination." Connor, 431 U.S. at 415 (internal quotation marks omitted). Federal courts, unlike state legislatures, are not in a position to reconcile conflicting state policies on the electorate's behalf, nor at liberty to engage in political policy-making decisions. See id. We are limited to correcting the unconstitutional aspects of the state's plan while complying with the voting Rights Act requirements. To the extent we can, we will also follow traditional state districting principles, but we do not possess the latitude afforded a state legislature to advance political agendas.

To assist us in our task of implementing a remedial districting plan for each elective body, the parties have presented proposed plans for the two bodies of the South Carolina General Assembly and for the six congressional districts, which they urge us to either adopt in toto or, at a minimum, to use as templates in formulating our own plans. Indeed, in all phases of the trial, the bulk of the evidence presented was devoted to the parties' various redistricting proposals and, in particular, the issue of which of the proposed plans best complies with the one-person, one-vote requirement of the United States Constitution and with the mandates of §§ 2 and 5 of the Voting Rights Act.

We have carefully reviewed the various plans offered by the parties to this litigation, and the evidence presented in support of each, and we are satisfied that none are acceptable for wholesale adoption as a judicially approved redistricting plan. Among a myriad of individual deficiencies, the evidence overwhelmingly demonstrates one fatal problem that permeates them all. The General Assembly and the Governor, being controlled by and a member of, respectively, two different political parties, have proposed plans that are primarily driven by policy choices designed to effect their particular partisan goals. And, in many cases, the choices appear to be reflective of little more than an individual legislator's desire to strengthen his or her ability to be re-elected to the seat in question.

Simply stated, the General Assembly, in which Republicans hold a majority in both bodies, passed plans that the majority of its members believed were favorable to them, and the incumbent Governor, a Democrat, vetoed those plans in order to advocate the implementation of alterative plans that are favorable to the views of his political party and its legislative and congressional members. The Leatherman plaintiffs, all of whom are currently members of the Republican Party, have proposed plans that both advance the Republican Party's agenda in general and strengthen their individual seats in particular. And, the Marcharia plaintiffs, represented by the American Civil Liberties Union ("ACLU"), did not advance plans of their own, but have either endorsed the plans offered by the General Assembly, or suggested modifications of their own, which they feel best serve the interests of black voters in South Carolina.*fn6

Such is the political process. We find it interesting, but are mindful that none of the plans carry the imprimatur of the state and that, whatever merit exists for drawing a plan for political reasons or based upon a particular political ideology,*fn7 it does not exist for us. While all parties are entitled to advocate a legislative redistricting plan that furthers their partisan interests, it is inappropriate for the court to engage in political gerrymandering.*fn8

Accordingly, the court begins its remedial task of redistricting the malapportioned districts on a equipopulous basis and in the racially fair manner mandated by the Voting Rights Act. To the extent we can simultaneously observe districting principles demonstrated to have been of traditional concern to South Carolina in past redistricting, without compromising our obligations under federal law, we attempt to do so.*fn9 We are, however, confident in the knowledge that those who disagree with the plans may seek alternative ones from those in the most appropriate position to redraw them — the General Assembly and Governor of the State of South Carolina. And, because they are indeed in a better position to address the needs of South Carolina and her citizens, we encourage these elected officials, and those who follow in their footsteps, to renew and continue efforts to fulfill their constitutional duties in this respect.

A. Equality of Population and Acceptable Variances; the "One Person, One-Vote" Requirement of the United States Constitution.

1. Congressional Reapportionment

The origin of the constitutional guarantee of "one-person, one-vote" for the election of congressional representatives is found in Article I, § 2 of the United States Constitution. In relevant part, it provides that "[t]he House of Representatives shall be composed of Members chosen every second Year by the People of the several States" and that such "Representatives . . . shall be apportioned among the several States which may be included within this Union, according to their respective Numbers." U.S. Const. art. I, § 2.

The provision sets "a high standard of justice and common sense for the apportionment of congressional districts: equal representation for equal numbers of people." Karcher, 462 U.S. at 730 (internal quotation marks omitted). "[C]onstrued in its historical context," the Supreme Court has held, "the command that Representatives be chosen `by the People of the several States' means that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's." Wesberry v. Sanders, 376 U.S. 1, 7-8 (1964) (emphasis added). This standard is a demanding one, "requir[ing] that the State make a good-faith effort to achieve precise mathematical equality." Karcher, 462 U.S. at 730 (internal quotation marks omitted); see also White, 412 U.S. at 790. "[A]bsolute population equality [is] the paramount objective . . . in the case of congressional districts, for which the command of Art. I, § 2, as regards the National Legislature outweighs the local interests that a State may deem relevant in apportioning districts for representatives to state and local legislatures . . . ." Karcher, 462 U.S. at 732-33. "Unless population variances among congressional districts are shown to have resulted despite [a good-faith] effort, the State must justify each variance, no matter how small." Kirkpatrick v. Preisler, 394 U.S. 526, 531 (1969). "[T]here are no de minimis population variations, which could practicably be avoided, but which nonetheless meet the standard of Art. I, § 2, without justification." Karcher, 462 U.S. at 734.

Small population deviations may be justified by legitimate state policies such as "making districts compact, respecting municipal boundaries, preserving the cores of prior districts, and avoiding contests between incumbent Representatives," if the state policies are consistent with constitutional norms. Karcher, 462 U.S. at 740. "As long as the criteria are nondiscriminatory, these are all legitimate objectives that on a proper showing could justify minor population deviations." Id. (emphasis added) (internal citation omitted). However, a state must "show with some specificity that a particular objective required the specific deviations in its plan, rather than simply relying on general assertions." Id. (noting that differences in the numbers of eligible voters and projected population shifts might justify small variations in congressional district populations).

2. Redistricting of the South Carolina General Assembly

The Equal Protection Clause of the United States Constitution requires that the seats in both houses of a bicameral legislature — here the South Carolina Senate and House of Representatives — also be apportioned on an equipopulous basis. See Reynolds, 377 U.S. at 568. This one-person, one-vote principle, established by the Court in Reynolds and grounded in equal protection, ensures that each person's vote receives equal weight. See id.

In all cases, "the overriding objective [of redistricting] must be substantial equality of population among the various [legislative] districts," Id. at 579. States, however, are permitted somewhat more flexibility with respect to state legislative apportionment than in congressional districting in order to pursue other legitimate state policies, including "maintain[ing] the integrity of various political subdivisions," id. at 578, "provid[ing] for compact districts of contiguous territory," id., and recognizing "natural or historical boundary lines," Swann v. Adams, 385 U.S. 440, 444 (1967). Generally, a "safe harbor" exists for legislatively implemented plans achieving less than a 10% deviation. See Voinovich v. Quilter, 507 U.S. 146, 161 (1993) (noting that a plan with a maximum deviation under 10% is generally considered to fall within the category of minor deviations); see also Connor, 431 U.S. at 418; White v. Resister, 412 U.S. 755, 764 (1973).

Court-ordered remedial plans for bicameral state legislative bodies, in contrast, are held to a much more stringent standard of population equality. See Chapman, 420 U.S. at 26. Although not required to attain the mathematical preciseness required of courts and state legislatures for congressional redistricting, see id. at 27 n. 19, a court-ordered plan "must ordinarily achieve the goal of population equality with little more than de minimis variation," id. at 27; see also Abrams, 521 U.S. at 98; Connor, 431 U.S. at 414. "[A]ny deviation from approximate population equality must be supported by enunciation of historically significant state policy or unique features." Chapman, 420 U.S. at 26.

B. The Voting Rights Act

In exercising our equitable power to redistrict, we must also comply with the requirements imposed upon states by the racial-fairness mandates of § 2 of the Voting Rights Act, 42 U.S.C.A. § 1973, and the purpose-or-effect standards of § 5 of the Voting Rights Act, 42 U.S.C.A. § 1973c. See Abrams, 521 U.S. at 90, 96 (1997). Indeed, the number and composition of majority-minority districts in each proposed plan accounted for the lion's share of the evidence in every phase of this case.*fn10

1. Section 2: The Prohibition Against Minority Vote Dilution

Simply stated, § 2 prohibits the implementation of an electoral law that "interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives." Thornburg v. Gingles, 478 U.S. 30, 47 (1986); see also Voinovich, 507 U.S. at 155 (explaining that § 2 "focuses exclusively on the consequences of apportionment. Only if the apportionment scheme has the effect of denying a protected class the equal opportunity to elect its candidate of choice does it violate § 2.").

In Gingles, the Supreme Court set forth the specific framework for evaluating a § 2 vote dilution claim.*fn12 Three preconditions must first be established: (1) that the minority group "is sufficiently large and geographically compact to constitute a majority in a single-member district"; (2) that the minority group is "politically cohesive"; and (3) that the majority "votes sufficiently as a bloc to enable it . . . usually to defeat the minority's preferred candidate." Id. at 50-51. If these factors are established, "the court considers whether, "on the totality of circumstances,' minorities have been denied an "equal opportunity' to `participate in the political process and to elect representatives of their choice.'" Abrams, 521 U.S. at 91 (quoting 42 U.S.C.A. § 1973(b)).*fn13

The voting strength of a politically cohesive minority group may be diluted by fragmenting the minority voters among districts:

In the context of single-member districts, the usual device for diluting minority voting power is the manipulation of district lines. A politically cohesive minority group that is large enough to constitute the majority in a single-member district has a good chance of electing its candidate of choice, if the group is placed in a district where it constitutes a majority. Dividing the minority group among various districts so that it is a majority in none may prevent the group from electing its candidate of choice: If the majority in each district votes as a bloc against the minority candidate, the fragmented minority group will be unable to muster sufficient votes in any district to carry its candidate to victory.

Voinovich, 507 U.S. at 153 (emphasis added). Or, minority voting strength may be diluted by concentrating minority voters within a district:

How such concentration or "packing" may dilute minority voting strength is not difficult to conceptualize. A minority group, for example, might have sufficient numbers to constitute a majority in three districts. So apportioned, the group inevitably will elect three candidates of its choice, assuming the group is sufficiently cohesive. But if the group is packed into two districts in which it constitutes a super-majority, it will be assured only two candidates. As a result, we have recognized that "dilution of racial minority group voting strength may be caused" either "by the dispersal of blacks into districts in which they constitute an ineffective minority of voters or from the concentration of blacks into districts where they constitute an excessive majority.

Id. at 153-54 (internal alteration omitted) (quoting Gingles, 478 U.S. at 46).

Although "[o]n its face, § 2 does not apply to a court-ordered remedial redistricting plan . . ., courts should comply with the section when exercising their equitable powers to redistrict." Abrams, 521 U.S. at 90. Thus, to prevail on a § 2 claim, a plaintiff must demonstrate that, under the totality of the circumstances, the election scheme enacted by a legislature dilutes the minority's voting strength by either unnecessarily fragmenting or packing a politically cohesive minority population. See Vinovich, 507 U.S. at 157; Gingles, 478 U.S. at 46. In the context of preparing a court-ordered redistricting plan, we interpret the Supreme Court's command as requiring us to consider the Gingles test as we draw, paying particular attention to those areas of the state where a "politically cohesive minority group . . . is large enough to constitute the majority in a single-member district." Voinovich, 507 U.S. at 153. In this way, we operate much like the state legislature should, taking steps to ensure that our plan will not have the effect, albeit unintended, of diluting the voting strength of that majority-minority population. See Abrams, 521 U.S. at 90-91.

2. Section 5: Avoiding Retrogression

Section 5 of the Voting Rights Act likewise requires us to consider race in our draw. This provision requires certain covered jurisdictions — those with a history of discrimination against minorities — to obtain either administrative preclearance by the Attorney General or approval by the United States District Court for the District of Columbia for any change in a "standard, practice, or procedure with respect to voting." 42 U.S.C.A. § 1973c. To obtain preclearance, the covered jurisdiction must demonstrate that the proposed change has neither the purpose nor effect "of denying or abridging the right to vote on account of race or color." 42 U.S.C.A. § 1973c; see McDaniel v. Sanchez, 452 U.S. 130, 149 (1981)

Enacted as "a response to a common practice in some jurisdictions of staying one step ahead of the federal courts by passing new discriminatory voting laws as soon as the old ones had been struck down," Beer v. United States, 425 U.S. 130, 140 (1976) (internal quotation marks omitted), § 5 "shift[s] the advantage of time and inertia from the perpetrators of the evil to its victim, by freezing election procedures in the covered areas unless the changes can be shown to be nondiscriminatory," id. (emphasis added; internal quotation marks omitted). "[T]he purpose of § 5 has always been to insure that no voting-procedure changes would be made that would lead to a retrogression in the Position of racial minorities with respect to their effective exercise of the electoral franchise." Id. at 141 (emphasis added).

Although they share the goal of addressing the evils of racial discrimination, § 5 differs in important respects from § 2 of the Voting Rights Act. First, § 2 applies to all states, whereas § 5 applies only to those states, such as South Carolina, which have the worst reputation for historical and ongoing discrimination against blacks. Second, by requiring the creation of majority-minority districts where vote dilution under the Gingles test would occur, § 2 looks beyond the status quo to ensure that a redistricting plan affords blacks an equal opportunity to elect the representatives of their choice as white voters enjoy. See 42 U.S.C.A. § 1973(b); Gingles, 478 U.S. at 47. Section 5, in contrast, maintains the status quo. It only prevents "backsliding" in those jurisdictions subject to its requirements by prohibiting the implementation of any proposed voting change that has been enacted for a retrogressive purpose, see Reno v. Bossier Parish Sch. Bd., 528 U.S. 320, 335 (2000) ("Bossier Parish II"), or that has a retrogressive effect on minority voting strength, see Beer, 425 U.S. at 141. Section 5 requires no separate inquiry into the Gingles factors to determine whether an opportunity district must be created, but "mandates that the minority's [existing] opportunity to elect representatives of its choice not be diminished, directly or indirectly, by the State's actions." Bush v. Vera, 517 U.S. 952, 983 (1996)

The distinction between § 2 and § 5 was expounded upon by the Supreme Court in Reno v. Bossier Parish School Board, 520 U.S. 471 (1997) ("Bossier Parish I"). There, the Court struck down the Department of Justice's denial of preclearance under § 5 on the basis that the plan was, in the opinion of the Department of Justice, violative of § 2. See id. at 477. This position, the Court held, would "make compliance with § 5 contingent upon compliance with § 2," and would effectively "replace the standards for § 5 with those for § 2." Id. The Court explained that such an interpretation would contradict its "longstanding recognition that the two provisions were designed to combat different evils, and, accordingly, to impose very different duties upon the States." Id.

Thus, in the redistricting context, Section 5 has a quite limited substantive goal — to insure that the state does not adopt a redistricting plan that, when compared to the existing or "benchmark" plan, "would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." Beer, 425 U.S. at 141; see Holder v. Hall, 512 U.S. 874, 883 (plurality opinion) ("Under § 5, then, the proposed voting practice is measured against the existing voting practice to determine whether retrogression would result from the proposed change."); Bossier Parish I, 520 U.S. at 478 (explaining that "the jurisdiction's existing plan is the benchmark against which the `effect' of voting changes is measured"). Thus,

[i]n § 5 preclearance proceedings — which uniquely deal only and specifically with changes in voting procedures — the baseline is the status quo that is proposed to be changed: If the change "abridges the right to vote" relative to the status quo, preclearance is denied, and the status quo (however discriminatory it may be) remains in effect.

Bossier Parish II, 528 U.S. at 334.

"Section 2, on the other hand, was designed as a means of eradicating voting practices that minimize or cancel out the voting strength and political effectiveness of minority groups." Bossier Parish I, 520 U.S. at 479 (internal quotation marks omitted). It involves changes to the status quo itself. See Bossier Parish II, 528 U.S. at 334. Because a determination of vote dilution requires "the existence of an `undiluted' practice against which the fact of dilution may be measured, a § 2 plaintiff must also postulate a reasonable alternative voting practice to serve as the benchmark `undiluted' voting practice." Bossier Parish I, 520 U.S. at 480. Thus, "the comparison must be made with a hypothetical alternative: If the status quo results in an abridgement of the right to vote or abridges the right to vote relative to what the right to vote ought to be, the status quo itself must be changed." Bossier Parish II, 528 U.S. at 334 (alterations and internal quotation marks omitted).

Because South Carolina is a covered jurisdiction under the Voting Rights Act, any redistricting plan that it adopts is subject to the preclearance requirements of § 5. See Allen v. State Bd. of Elections, 393 U.S. 544, 548-49 (1969). A legislative plan still reflects "the exercise of legislative judgment" and "the policy choices of the elected representatives of the people"; such plans, therefore, remain subject to preclearance under § 5 even if later reviewed by a court. See McDaniel, 452 U.S. at 153.

Generally, "a decree of the United States District Court is not within reach of Section 5 of the Voting Rights Act such that it must be precleared," Abrams, 521 U.S. at 95 (internal quotation marks and alterations omitted), but "[t]he exception applies only to judicial plans devised by the court itself," not to legislative plans which are submitted to the court by the parties for consideration, id.; see Lopez v. Monterey County, 525 U.S. 266, 286 (1999). Because we have independently devised plans for each elective body from scratch, however, none of the plans implemented by this court order are subject to the preclearance requirements of § 5 and, accordingly, must be immediately implemented for the upcoming elections.

Even where the court elects to devise its own plan, such that it need not be precleared. the court must still "`follow the appropriate § 5 standards, including the body of administrative and judicial precedents developed in Section 5 cases.'" Abrams, 521 U.S. at 96 (quoting McDaniel, 452 U.S. at 149). Thus, like state legislatures, we must ensure that our redistricting plan does not "lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise" in South Carolina. Beer, 425 U.S. at 141.

3. Equal Protection Constraints Upon The Voting Rights Act Requirements; the Limits of Racial Gerrymandering.

In complying with the Voting Rights Act in the redistricting context, we must also remain cognizant of the limitations the Fourteenth Amendment of the United States Constitution imposes upon the permissible use of race in the process. The Equal Protection Clause of the United States Constitution requires racial neutrality in governmental decision-making. See U.S. Const., amend. XIV, § 1 (providing that no State shall "deny to any person within its jurisdiction the equal protection of the laws"). And, the Supreme Court has repeatedly held that dividing voters according to their race in the redistricting context is subject to the strictures of the Equal Protection Clause. See Shaw v. Hunt, 517 U.S. 899, 904-05 (1996) ("Shaw II"); Miller v. Johnson, 515 U.S. 900, 905 (1995) Shaw v. Reno, 509 U.S. 630, 644 (1993) ("Shaw I")

By prohibiting election plans that have the effect of diluting minority voting strength or that lead to retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise, however, the Voting Rights Act necessarily forces states to consider race in the redistricting context, placing the Act in obvious tension with the Equal Protection Clause. The end result is that the Voting Rights Act must always be considered in tandem with the strictures of the Equal Protection Clause, with the latter operating as a constant limit upon the degree to which state legislatures — and this court acting in its remedial capacity — can engage in race-based districting to achieve the goals of the Voting Rights Act.

Race-based classifications, of course, are generally subjected to strict scrutiny and will pass constitutional muster only if the state action is narrowly tailored to achieve a compelling state interest. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 224 (1995). In this case, however, we have no occasion to apply strict scrutiny, at least not in the usual way. Strict scrutiny is a particularly stringent level of judicial review applied to determine the constitutionality of a law or other action already taken by the state. Because the General Assembly failed to implement redistricting plans, we have no pre-existing plans to which strict scrutiny could be applied. Instead, we are drawing the plans ourselves, not reviewing plans drawn by the General Assembly. Nonetheless, because our draw is guided by similar limitations as those imposed upon states in the redistricting context, the purposes of a strict scrutiny review are of importance in this case as well.

a. When does the consideration of race trigger strict scrutiny analysis?

The Equal Protection Clause, as interpreted by Adarand, would seem to compel strict scrutiny of any governmental classification based on race. However, the Court has held that strict scrutiny in the redistricting context only applies where "race was the predominant factor motivating the legislature's decision to place a significant number of voters within or without a particular district." Miller, 515 U.S. at 916. Because a state must observe the Voting Rights Act requirements when redistricting its legislative and congressional districts, such redistricting decisions necessarily differ from other types of governmental decision-making:

[T]he legislature is always aware of race when it draws district lines, just as it is aware of age, economic status, religious and political persuasion, and a variety of other demographic facts. That sort of race consciousness does not lead inevitably to impermissible race discrimination. . . . [W]hen members of a racial group live in one community, a reapportionment plan that concentrates members of the group in one district and excludes them from others may reflect wholly legitimate purposes. The district lines may be ...

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