Nos. 94-631, 94-797 and 94-929
ZELL MILLER, et al., APPELLANTS
DAVIDA JOHNSON et al.
LUCIOUS ABRAMS, Jr., et al., APPELLANTS
DAVIDA JOHNSON et al.
UNITED STATES, APPELLANT
DAVIDA JOHNSON et al.
on appeals from the united states district court
for the southern district of georgia
[June 29, 1995]
Justice Kennedy delivered the opinion of the Court.
The constitutionality of Georgia's congressional redistricting plan is at issue here. In Shaw v. Reno, 509 U. S. ___ (1993), we held 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. The question we now decide is whether Georgia's new Eleventh District gives rise to a valid equal protection claim under the principles announced in Shaw, and, if so, whether it can be sustained nonethe- less as narrowly tailored to serve a compelling govern- mental interest.
In Shaw v. Reno, supra, we recognized that these equal protection principles govern a State's drawing of congressional districts, though, as our cautious approach there discloses, application of these principles to elec- toral districting is a most delicate task. Our analysis began from the premise that -[l]aws that explicitly dis- tinguish between individuals on racial grounds fall within the core of [the Equal Protection Clause's] pro- hibition.- Id., at ___ (slip op., at 10). This prohibition extends not just to explicit racial classifications, but also to laws neutral on their face but -`unexplainable on grounds other than race.'- Id., at ___ (slip op., at 12) (quoting Arlington Heights v. Metropolitan Housing De- velopment Corp., 429 U. S. 252, 266 (1977)). Applying this basic Equal Protection analysis in the voting rights context, we held that -redistricting legislation that is so bizarre on its face that it is `unexplainable on grounds other than race,' . . . demands the same close scrutiny that we give other state laws that classify citizens by race.- 509 U. S., at ___ (slip op., at 12) (quoting Arlington Heights, supra, at 266).
This case requires us to apply the principles articu- lated in Shaw to the most recent congressional redis- tricting plan enacted by the State of Georgia.
Between 1980 and 1990, one of Georgia's 10 congres- sional districts was a majority-black district, that is, a majority of the district's voters were black. The 1990 Decennial Census indicated that Georgia's population of 6,478,216 persons, 27% of whom are black, entitled it to an additional eleventh congressional seat, App. 9, prompting Georgia's General Assembly to redraw the State's congressional districts. Both the House and the Senate adopted redistricting guidelines which, among other things, required single-member districts of equal population, contiguous geography, nondilution of minority voting strength, fidelity to precinct lines where possible, and compliance with 2 and 5 of the Act, 42 U. S. C. 1973, 1973c. See App. 11-12. Only after these re- quirements were met did the guidelines permit drafters to consider other ends, such as maintaining the integrity of political subdivisions, preserving the core of existing districts, and avoiding contests between incumbents. Id., at 12.
A special session opened in August 1991, and the General Assembly submitted a congressional redistricting plan to the Attorney General for preclearance on October 1, 1991. The legislature's plan contained two majority- minority districts, the Fifth and Eleventh, and an additional district, the Second, in which blacks com- prised just over 35% of the voting age population. Despite the plan's increase in the number of majority- black districts from one to two and the absence of any evidence of an intent to discriminate against minority voters, 864 F. Supp. 1354, 1363, and n. 7 (SD Ga. 1994), the Department of Justice refused preclearance on Janu- ary 21, 1992. App. 99-107. The Department's objection letter noted a concern that Georgia had created only two majority-minority districts, and that the proposed plan did not -recognize- certain minority populations by plac- ing them in a majority-black district. Id., at 105, 105-106.
The General Assembly returned to the drawing board. A new plan was enacted and submitted for preclearance. This second attempt assigned the black population in Central Georgia's Baldwin County to the Eleventh District and increased the black populations in the Eleventh, Fifth and Second Districts. The Justice Department refused preclearance again, relying on alternative plans proposing three majority-minority districts. Id., 120-126. One of the alternative schemes relied on by the Department was the so-called -max- black- plan, 864 F. Supp., at 1360, 1362-1363, drafted by the American Civil Liberties Union (ACLU) for the General Assembly's black caucus. The key to the ACLU's plan was the -Macon/Savannah trade.- The dense black population in the Macon region would be transferred from the Eleventh District to the Second, converting the Second into a majority-black district, and the Eleventh District's loss in black population would be offset by extending the Eleventh to include the black populations in Savannah. Id., at 1365-1366. Pointing to the General Assembly's refusal to enact the Macon/Sa- vannah swap into law, the Justice Department concluded that Georgia had -failed to explain adequately- its fail- ure to create a third majority-minority district. App. 125. The State did not seek a declaratory judgment from the District Court for the District of Columbia. 864 F. Supp., at 1366, n. 11.
Twice spurned, the General Assembly set out to create three majority-minority districts to gain preclearance. Id., at 1366. Using the ACLU's -max-black- plan as its benchmark, id., at 1366-1367, the General Assembly enacted a plan that -bore all the signs of [the Justice Department's] involvement: The black population of Meriwether County was gouged out of the Third District and attached to the Second District by the narrowest of land bridges; Effingham and Chatham Counties were split to make way for the Savannah extension, which itself split the City of Savannah; and the plan as a whole split 26 counties, 23 more than the existing congressional districts.- Id., at 1367; see Appendix A (attached). The new plan also enacted the Macon/Savannah swap necessary to create a third majority-black district. The Eleventh District lost the black population of Macon, but picked up Savannah, thereby connecting the black neighborhoods of metropolitan Atlanta and the poor black populace of coastal Chatham County, though 260 miles apart in distance and worlds apart in culture. In short, the social, political and economic makeup of the Eleventh District tells a tale of disparity, not commu- nity. See id., at 1376-1377, 1389-1390; Plaintiff's Exh. No. 85, pp. 10-27 (report of Timothy G. O'Rourke, Ph.D.). As the attached appendices attest, -[t]he populations of the Eleventh are centered around four discrete, widely spaced urban centers that have absolutely nothing to do with each other, and stretch the district hundreds of miles across rural counties and narrow swamp corridors.- 864 F. Supp., at 1389 (footnote omitted). -The dense population centers of the approved Eleventh District were all majority-black, all at the periphery of the district, and in the case of Atlanta, Augusta and Savannah, all tied to a sparsely populated rural core by even less populated land bridges. Extending from Atlanta to the Atlantic, the Eleventh covered 6,784.2 square miles, splitting eight counties and five municipalities along the way.- Id., at 1367 (footnote omitted). The Almanac of American Politics has this to say about the Eleventh District: -Geographically, it is a monstros- ity, stretching from Atlanta to Savannah. Its core is the plantation country in the center of the state, lightly populated, but heavily black. It links by narrow corridors the black neighborhoods in Augusta, Savannah and southern DeKalb County.- M. Barone & G. Ujifusa, Almanac of American Politics 356 (1994). Georgia's plan included three majority-black districts, though, and re- ceived Justice Department preclearance on April 2, 1992. Plaintiff's Exh. No. 6; see 864 F. Supp., at 1367.
Elections were held under the new congressional redis- tricting plan on November 4, 1992, and black candidates were elected to Congress from all three majority-black districts. Id., at 1369. On January 13, 1994, appellees, five white voters from the Eleventh District, filed this action against various state officials (Miller Appellants) in the United States District Court for the Southern District of Georgia. Id., at 1369, 1370. As residents of the challenged Eleventh District, all appellees had standing. See United States v. Hays, ___ U. S. ___, ___ (1995) (slip op., at 8). Their suit alleged that Georgia's Eleventh District was a racial gerrymander and so a vio- lation of the Equal Protection Clause as interpreted in Shaw v. Reno. A three-judge court was convened pursu- ant to 28 U. S. C. 2284, and the United States and a number of Georgia residents intervened in support of the defendant-state officials.
A majority of the District Court panel agreed that the Eleventh District was invalid under Shaw, with one judge dissenting. 864 F. Supp. 1354 (SD Ga. 1994). After sharp criticism of the Justice Department for its use of partisan advocates in its dealings with state of- ficials and for its close cooperation with the ACLU's vigorous advocacy of minority district maximization, the majority turned to a careful interpretation of our opinion in Shaw. It read Shaw to require strict scrutiny when- ever race is the -overriding, predominant force- in the redistricting process. Id., at 1372 (emphasis omitted). Citing much evidence of the legislature's purpose and in- tent in creating the final plan, as well as the irregular shape of the District (in particular several appendages drawn for the obvious purpose of putting black popula- tions into the District), the court found that race was the overriding and predominant force in the districting determination. Id., at 1378. The court proceeded to apply strict scrutiny. Though rejecting proportional rep- resentation as a compelling interest, it was willing to as- sume that compliance with the Voting Rights Act would be a compelling interest. Id., at 1381-1382. As to the latter, however, the court found that the Act did not re- quire three majority-black districts, and that Georgia's plan for that reason was not narrowly tailored to the goal of complying with the Act. Id., at 1392-1393.
Appellants filed notices of appeal and requested a stay of the District Court's judgment, which we granted pending the filing and disposition of the appeals in this case, Miller v. Johnson, 512 U. S. ___ (1994). We later noted probable jurisdiction. 513 U. S. ___ (1995); see 28 U. S. C. 1253.
Shaw recognized a claim -analytically distinct- from a vote dilution claim. 509 U. S., at ___ (slip op., at 21); see id., at ___ (slip op., at 18). Whereas a vote dilution claim alleges that the State has enacted a particular voting scheme as a purposeful device -to minimize or cancel out the voting potential of racial or ethnic minorities,- Mobile v. Bolden, 446 U. S. 55, 66 (1980) (citing cases), an action disadvantaging voters of a par- ticular race, the essence of the equal protection claim recognized in Shaw is that the State has used race as a basis for separating voters into districts. Just as the State may not, absent extraordinary justification, segre- gate citizens on the basis of race in its public parks, New Orleans City Park Improvement Assn. v. Detiege, 358 U. S. 54 (1958) (per curiam), buses, Gayle v. Browder, 352 U. S. 903 (1956) (per curiam), golf courses, Holmes v. Atlanta, 350 U. S. 879 (1955) (per curiam), beaches, Mayor and City Council of Baltimore v. Daw- son, 350 U. S. 877 (1955) (per curiam), and schools, Brown, supra, so did we recognize in Shaw that it may not separate its citizens into different voting districts on the basis of race. The idea is a simple one: -At the heart of the Constitution's guarantee of equal protection lies the simple command that the Government must treat citizens `as individuals, not -as simply components of a racial, religious, sexual or national class.-'- Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 602 (1990) (O'Connor, J., dissenting) (quoting Arizona Governing Comm. for Tax Deferred Annuity and Deferred Compen- sation Plans v. Norris, 463 U. S. 1073, 1083 (1983)); cf. Northeastern Fla. Chapter, Associated Gen. Contrac- tors of America v. Jacksonville, 508 U. S. ___, ___ (1993) (slip op., at 9) (-`injury in fact'- was -denial of equal treatment . . . not the ultimate inability to obtain the benefit-). When the State assigns voters on the basis of race, it engages in the offensive and demeaning assump- tion that voters of a particular race, because of their race, -think alike, share the same political interests, and will prefer the same candidates at the polls.- Shaw, supra, at ___ (slip op., at 16); see Metro Broadcasting, supra, at 636 (Kennedy, J., dissenting). Race-based as- signments -embody stereotypes that treat individuals as the product of their race, evaluating their thoughts and efforts-their very worth as citizens-according to a cri- terion barred to the Government by history and the Con- stitution.- Metro Broadcasting, supra, at 604 (O'Con- nor, J., dissenting) (citation omitted); see Powers v. Ohio, 499 U. S. 400, 410 (1991) (-Race cannot be a proxy for determining juror bias or competence-); Palmore v. Sidoti, 466 U. S. 429, 432 (1984) (-Classi- fying persons according to their race is more likely to reflect racial prejudice than legitimate public concerns; the race, not the person, dictates the category-). They also cause society serious harm. As we concluded in Shaw: -Racial classifications with respect to voting carry particular dangers. Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer matters-a goal that the Fourteenth and Fif- teenth Amendments embody, and to which the Na- tion continues to aspire. It is for these reasons that race-based districting by our state legislatures de- mands close judicial scrutiny.- Shaw, supra, at ___ (slip op., at 26).
Our observation in Shaw of the consequences of racial stereotyping was not meant to suggest that a district must be bizarre on its face before there is a constitu- tional violation. Nor was our conclusion in Shaw that in certain instances a district's appearance (or, to be more precise, its appearance in combination with certain demographic evidence) can give rise to an equal protec- tion claim, 509 U. S., at ___ (slip op., at 17), a holding that bizarreness was a threshold showing, as appellants believe it to be. Our circumspect approach and narrow holding in Shaw did not erect an artificial rule barring accepted equal protection analysis in other redistricting cases. Shape is relevant not because bizarreness is a necessary element of the constitutional wrong or a thresh- old requirement of proof, but because it may be persua- sive circumstantial evidence that race for its own sake, and not other districting principles, was the legislature's dominant and controlling rationale in drawing its district lines. The logical implication, as courts applying Shaw have recognized, is that parties may rely on evidence other than bizarreness to establish race-based districting. See Shaw v. Hunt, 861 F. Supp. 408, 431 (EDNC 1994); Hays v. Louisiana, 839 F. Supp. 1188, 1195 (WD La. 1993), vacated, 512 U. S. ___ (1994); but see DeWitt v. Wilson, 856 F. Supp. 1409, 1413 (ED Cal. 1994).
Our reasoning in Shaw compels this conclusion. We recognized in Shaw that, outside the districting context, statutes are subject to strict scrutiny under the Equal Protection Clause not just when they contain express racial classifications, but also when, though race neutral on their face, they are motivated by a racial purpose or object. 509 U. S. , at ___ (slip op., at 12). In the rare case, where the effect of government action is a pattern -`unexplainable on grounds other than race,'- ibid. (quoting Arlington Heights, 429 U. S., at 266), -[t]he evi- dentiary inquiry is . . . relatively easy.- Arlington Heights, supra, at 266 (footnote omitted). As early as Yick Wo v. Hopkins, 118 U. S. 356 (1886), the Court recognized that a laundry permit ordinance was adminis- tered in a deliberate way to exclude all Chinese from the laundry business; and in Gomillion v. Lightfoot, 364 U. S. 339 (1960), the Court concluded that the redraw- ing of Tuskegee, Alabama's municipal boundaries left no doubt that the plan was designed to exclude blacks. Even in those cases, however, it was the presumed ra- cial purpose of state action, not its stark manifestation, that was the constitutional violation. Patterns of dis- crimination as conspicuous as these are rare, and are not a necessary predicate to a violation of the Equal Protection Clause. Cf. Arlington Heights, supra, at 266, n. 14. In the absence of a pattern as stark as those in Yick Wo or Gomillion, -impact alone is not determina- tive, and the Court must look to other evidence- of race- based decisionmaking. Arlington Heights, supra, at 266 (footnotes omitted).
Shaw applied these same principles to redistricting. -In some exceptional cases, a reapportionment plan may be so highly irregular that, on its face, it rationally cannot be understood as anything other than an effort to `segregat[e] . . . voters' on the basis of race.- Shaw, supra, at ___ (slip op., at 15) (quoting Gomillion, supra, at 341). In other cases, where the district is not so bizarre on its face that it discloses a racial design, the proof will be more -difficul[t].- Ibid. Although it was not necessary in Shaw to consider further the proof re- quired in these more difficult cases, the logical import of our reasoning is that evidence other than a district's bi- zarre shape can be used to support the claim.
Appellants and some of their amici argue that the Equal Protection Clause's general proscription on race- based decisionmaking does not obtain in the districting context because redistricting by definition involves racial considerations. Underlying their argument are the very stereotypical assumptions the Equal Protection Clause forbids. It is true that redistricting in most cases will implicate a political calculus in which various interests compete for recognition, but it does not follow from this that individuals of the same race share a single political interest. The view that they do is -based on the demeaning notion that members of the defined racial groups ascribe to certain `minority views' that must be different from those of other citizens,- Metro Broadcast- ing, 497 U. S., at 636 (Kennedy, J., dissenting), the precise use of race as a proxy the Constitution prohibits. Nor can the argument that districting cases are excepted from standard equal protection precepts be resuscitated by United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U. S. 144 (1977), where the Court ad- dressed a claim that New York violated the Constitution by splitting a Hasidic Jewish community in order to in- clude additional majority-minority districts. As we ex- plained in Shaw, a majority of the Justices in UJO con- strued the complaint as stating a vote dilution claim, so their analysis does not apply to a claim that the State has separated voters on the basis of race. 509 U. S., at ___ (slip op., at 20). To the extent any of the opinions in that -highly fractured decision,- id., at ___ (slip op., at 19), can be interpreted as suggesting that a State's assignment of voters on the basis of race would be sub- ject to anything but our strictest scrutiny, those views ought not be deemed controlling.
In sum, we make clear that parties alleging that a State has assigned voters on the basis of race are nei- ther confined in their proof to evidence regarding the district's geometry and makeup nor required to make a threshold showing of bizarreness. Today's case requires us further to consider the requirements of the proof nec- essary to sustain this equal protection challenge.
In our view, the District Court applied the correct analysis, and its finding that race was the predominant factor motivating the drawing of the Eleventh District was not clearly erroneous. The court found it was -exceedingly obvious- from the shape of the Eleventh District, together with the relevant racial demographics, that the drawing of narrow land bridges to incorporate within the District outlying appendages containing nearly 80% of the district's total black population was a deliberate attempt to bring black populations into the district. 864 F. Supp., at 1375; see id., at 1374-1376. Although by comparison with other districts the geomet- ric shape of the Eleventh District may not seem bizarre on its face, when its shape is considered in conjunction with its racial and population densities, the story of racial gerrymandering seen by the District Court becomes much clearer. See Appendix B (attached); see also App. 133. Although this evidence is quite compel- ling, we need not determine whether it was, standing alone, sufficient to establish a Shaw claim that the Eleventh District is unexplainable other than by race. The District Court had before it considerable additional evidence showing that the General Assembly was 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. 864 F. Supp., at 1372, 1378.
The court found that -it became obvious,- both from the Justice Department's objection letters and the three preclearance rounds in general, -that [the Justice Department] would accept nothing less than abject surrender to its maximization agenda.- Id., at 1366, n. 11; see id., at 1360-1367; see also Arlington Heights, 429 U. S., at 267 (-historical background of the decision is one evidentiary source-). It further found that the General Assembly acquiesced and as a consequence was driven by its overriding desire to comply with the Department's maximization demands. The court sup- ported its conclusion not just with the testimony of Linda Meggers, the operator of -Herschel,- Georgia's reapportionment computer, and -probably the most knowledgeable person available on the subject of Geor- gian redistricting,- 864 F. Supp., at 1361, 1363, n. 6, 1366, but also with the State's own concessions. The State admitted that it -`would not have added those portions of Effingham and Chatham Counties that are now in the [far southeastern extension of the] present Eleventh Congressional District but for the need to in- clude additional black population in that district to offset the loss of black population caused by the shift of predominantly black portions of Bibb County in the Sec- ond Congressional District which occurred in response to the Department of Justice's March 20th, 1992, objection letter.'- Id., at 1377. It conceded further that -[t]o the extent that precincts in the Eleventh Congressional Dis- trict are split, a substantial reason for their being split was the objective of increasing the black population of that district.- Ibid. And in its brief to this Court, the State concedes that -[i]t is undisputed that Georgia's eleventh is the product of a desire by the General As- sembly to create a majority black district.- Brief for Miller Appellants 30. Hence the trial court had little difficulty concluding that the Justice Department -spent months demanding purely race-based revisions to Geor- gia's redistricting plans, and that Georgia spent months attempting to comply.- 864 F. Supp., at 1377. On this record, we fail to see how the District Court could have reached any conclusion other than that race was the predominant factor in drawing Georgia's Eleventh Dis- trict; and in any event we conclude the court's finding is not clearly erroneous. Compare Wright v. Rockefeller, 376 U. S. 52, 56-57 (1964) (evidence presented -conflict- ing inferences- and therefore -failed to prove that the New York Legislature was either motivated by racial considerations or in fact drew the districts on racial lines-).
In light of its well-supported finding, the District Court was justified in rejecting the various alternative explanations offered for the District. Although a legislature's compliance with -traditional districting principles such as compactness, contiguity, and respect for political subdivisions- may well suffice to refute a claim of racial gerrymandering, Shaw, 509 U. S., at ___ (slip op., at 15), appellants cannot make such a refuta- tion where, as here, those factors were subordinated to racial objectives. Georgia's Attorney General objected to the Justice Department's demand for three majority- black districts on the ground that to do so the State would have to -violate all reasonable standards of compactness and contiguity.- App. 118. This statement from a state official is powerful evidence that the legislature subordinated traditional districting principles to race when it ultimately enacted a plan creating three majority-black districts, and justified the District Court's finding that -every [objective districting] factor that could realistically be subordinated to racial tinkering in fact suffered that fate.- 864 F. Supp., at 1384; see id., at 1364, n. 8; id., at 1375 (-While the boundaries of the Eleventh do indeed follow many precinct lines, this is because Ms. Meggers designed the Eleventh District along racial lines, and race data was most accessible to her at the precinct level-).
Nor can the State's districting legislation be rescued by mere recitation of purported communities of interest. The evidence was compelling -that there are no tangible `communities of interest' spanning the hundreds of miles of the Eleventh District.- Id., at 1389-1390. A compre- hensive report demonstrated the fractured political, so- cial, and economic interests within the Eleventh Dis- trict's black population. See Plaintiff's Exh. No. 85, pp. 10-27 (report of Timothy G. O'Rourke, Ph.D.). It is apparent that it was not alleged shared interests but rather the object of maximizing the District's black popu- lation and obtaining Justice Department approval that in fact explained the General Assembly's actions. 864 F. Supp., at 1366, 1378, 1380. A State is free to recog- nize communities that have a particular racial makeup, provided its action is directed toward some common thread of relevant interests. -[W]hen members of a racial group live together in one community, a reappor- tionment plan that concentrates members of the group in one district and excludes them from others may reflect wholly legitimate purposes.- Shaw, supra, at ___ (slip op., at 14). But where the State assumes from a group of voters' race that they -think alike, share the same political interests, and will prefer the same can- didates at the polls,- it engages in racial stereotyping at odds with equal protection mandates. Id., at ___ (slip op., at 16); cf. Powers v. Ohio, 499 U. S., at 410 (-We may not accept as a defense to racial discrimination the very stereotype the law condemns-). Race was, as the District Court found, the predomi- nant, overriding factor explaining the General Assembly's decision to attach to the Eleventh District various appendages containing dense majority-black populations. 864 F. Supp., at 1372, 1378. As a result, Georgia's congressional redistricting plan cannot be up- held unless it satisfies strict scrutiny, our most rigorous and exacting standard of constitutional review.
The Justice Department refused to preclear both of Georgia's first two submitted redistricting plans. The District Court found that the Justice Department had adopted a -black-maximization- policy under 5, and that it was clear from its objection letters that the Depart- ment would not grant preclearance until the State made the -Macon/Savannah trade- and created a third ma- jority-black district. 864 F. Supp., at 1366, 1380. It is, therefore, safe to say that the congressional plan enacted in the end was required in order to obtain preclearance. It does not follow, however, that the plan was required by the substantive provisions of the Voting Rights Act.
We do not accept the contention that the State has a compelling interest in complying with whatever preclearance mandates the Justice Department issues. When a state governmental entity seeks to justify race- based remedies to cure the effects of past discrimination, we do not accept the government's mere assertion that the remedial action is required. Rather, we insist on a strong basis in evidence of the harm being remedied. See, e.g., Shaw, supra, at ___ (slip op., at 26); Croson, supra, at 500-501; Wygant, supra, at 276-277 (plurality opinion). -The history of racial classifications in this country suggests that blind judicial deference to legisla- tive or executive pronouncements of necessity has no place in equal protection analysis.- Croson, supra, at 501. Our presumptive skepticism of all racial classifica- tions, see Adarand, supra, at ___ (slip op., at 21), prohibits us as well from accepting on its face the Justice Department's conclusion that racial districting is necessary under the Voting Rights Act. Where a State relies on the Department's determination that race-based districting is necessary to comply with the Voting Rights Act, the judiciary retains an independent obligation in adjudicating consequent equal protection challenges to ensure that the State's actions are narrowly tailored to achieve a compelling interest. See Shaw, supra, at ___-___ (slip op., at 23-24). Were we to accept the Justice Department's objection itself as a compelling interest adequate to insulate racial districting from constitutional review, we would be surrendering to the Executive Branch our role in enforcing the constitutional limits on race-based official action. We may not do so. See, e.g., United States v. Nixon, 418 U. S. 683, 704 (1974) (judicial power cannot be shared with Executive Branch); Marbury v. Madison, 1 Cranch 137, 177 (1803) (-It is emphatically the province and duty of the judicial department to say what the law is-); cf. Baker v. Carr, 369 U. S. 186, 211 (1962) (Supreme Court is -ultimate interpreter of the Constitution-); Cooper v. Aaron, 358 U. S. 1, 18 (1958) (-permanent and indispensable feature of our constitutional system- is that -the federal judi- ciary is supreme in the exposition of the law of the Constitution-).
For the same reasons, we think it inappropriate for a court engaged in constitutional scrutiny to accord deference to the Justice Department's interpretation of the Act. Although we have deferred to the Department's interpretation in certain statutory cases, see, e.g., Presley v. Etowah County Comm'n, 502 U. S. 491, 508-509 (1992) and cases cited therein, we have rejected agency interpretations to which we would otherwise defer where they raise serious constitutional questions. Edward J. DeBartolo Corp. v. Florida Gulf Coast Buildidng & Con- struction Trades Council, 485 U. S. 568, 574-575 (1988). When the Justice Department's interpretation of the Act compels race-based districting, it by definition raises a serious constitutional question, see, e.g., Bakke, 438 U. S., at 291 (opinion of Powell, J.) (-Racial and ethnic distinctions of any sort are inherently supect- under the Equal Protection Clause), and should not re- ceive deference.
Georgia's drawing of the Eleventh District was not required under the Act because there was no reasonable basis to believe that Georgia's earlier enacted plans violated 5. Wherever a plan is -ameliorative,- a term we have used to describe plans increasing the number of majority-minority districts, it -cannot violate 5 unless the new apportionment itself so discriminates on the basis of race or color as to violate the Constitution.- Beer, 425 U. S., at 141. Georgia's first and second pro- posed plans increased the number of majority-black dis- tricts from 1 out of 10 (10%) to 2 out of 11 (18.18%). These plans were -ameliorative- and could not have vio- lated 5's non-retrogression principle. Ibid. Acknowl- edging as much, see Brief for United States 29; 864 F. Supp., at 1384-1385, the United States now relies on the fact that the Justice Department may object to a state proposal either on the ground that it has a prohib- ited purpose or a prohibited effect, see, e.g., Pleasant Grove v. United States, 479 U. S. 462, 469 (1987). The Government justifies its preclearance objections on the ground that the submitted plans violated 5's purpose element. The key to the Government's position, which is plain from its objection letters if not from its briefs to this Court, compare App. 105-106, 124-125 with Brief for United States 31-33, is and always has been that Georgia failed to proffer a nondiscriminatory purpose for its refusal in the first two submissions to take the steps necessary to create a third majority-minority district.
The Government's position is insupportable. -[A]meliorative changes, even if they fall short of what might be accomplished in terms of increasing minority representation, cannot be found to violate section 5 unless they so discriminate on the basis of race or color as to violate the Constitution.- Days, Section 5 and the Role of the Justice Department, in B. Grofman & C. Davidson, Controversies in Minority Voting 56 (1992). Although it is true we have held that the State has the burden to prove a nondiscriminatory purpose under 5, e.g., Pleasant Grove, supra, at 469, Georgia's Attorney General provided a detailed explanation for the State's initial decision not to enact the max-black plan, see App. 117-119. The District Court accepted this explanation, 864 F. Supp., at 1365, and found an absence of any dis- criminatory intent, id., at 1363, and n. 7. The State's policy of adhering to other districting principles instead of creating as many majority-minority districts as possi- ble does not support an inference that the plan -so dis- criminates on the basis of race or color as to violate the Constitution,- Beer, supra, at 141; see Mobile v. Bolden, 446 U. S. 55 (1980) (plurality opinion), and thus cannot provide any basis under 5 for the Justice Department's objection.
Instead of grounding its objections on evidence of a discriminatory purpose, it would appear the Government was driven by its policy of maximizing majority-black districts. Although the Government now disavows having had that policy, see Brief for United States 35, and seems to concede its impropriety, see Tr. of Oral Arg. 32-33, the District Court's well-documented factual finding was that the Department did adopt a maximiza- tion policy and followed it in objecting to Georgia's first two plans. One of the two Department of Justice line attorneys overseeing the Georgia preclearance process himself disclosed that -what we did and what I did specifically was to take a . . . map of the State of Georgia shaded for race, shaded by minority concentra- tion, and overlay the districts that were drawn by the State of Georgia and see how well those lines adequately reflected black voting strength.- 864 F. Supp., at 1362, n. 4. In utilizing 5 to require States to create ma- jority-minority districts wherever possible, the Depart- ment of Justice expanded its authority under the statute beyond what Congress intended and we have upheld.
Section 5 was directed at preventing a particular set of invidious practices which had the effect of -undo[ing] or defeat[ing] the rights recently won by nonwhite vot- ers.- H. R. Rep. No. 91-397, p. 8 (1969). As we ex- plained in Beer v. United States, -`Section 5 was 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. That practice had been possible because each new law remained in effect until the Justice Department or private plaintiffs were able to sustain the burden of proving that the new law, too, was discrimina- tory. . . . Congress therefore decided, as the Su- preme Court held it could, -to shift 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.-'- 425 U. S., at 140 (quoting H. R. Rep. No. 94-196, pp. 57-58 (1975) (footnotes omitted)).
Based on this historical understanding, we recognized in Beer that -the 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.- 425 U. S., at 141. The Justice Department's maximization policy seems quite far removed from this purpose. We are especially reluc- tant to conclude that 5 justifies that policy given the serious constitutional concerns it raises. In South Carolina v. Katzenbach, 383 U. S. 301 (1966), we upheld 5 as a necessary and constitutional response to some states' -extraordinary stratagem[s] of contriving new rules of various kinds for the sole purpose of perpetu- ating voting discrimination in the face of adverse federal court decrees.- Id., at 335 (footnote omitted); see also City of Rome v. United States, 446 U. S. 156, 173-183 (1980). But our belief in Katzenbach that the federalism costs exacted by 5 preclearance could be justified by those extraordinary circumstances does not mean they can be justified in the circumstances of this case. And the Justice Department's implicit command that States engage in presumptively unconstitutional race-based dis- tricting brings the Voting Rights Act, once upheld as a proper exercise of Congress' authority under 2 of the Fifteenth Amendment, Katzenbach, supra, at 327, 337, into tension with the Fourteenth Amendment. As we re- called in Katzenbach itself, Congress' exercise of its Fifteenth Amendment authority even when otherwise proper still must -`consist with the letter and spirit of the constitution.'- 383 U. S., at 326 (quoting McCulloch v. Maryland, 4 Wheat. 316, 421 (1819)). We need not, however, resolve these troubling and difficult constitu- tional questions today. There is no indication Congress intended such a far-reaching application of 5, so we re- ject the Justice Department's interpretation of the stat- ute and avoid the constitutional problems that interpre- tation raises. See, e.g., DeBartolo Corp. v. Florida Gulf Coast Trades Council, 485 U. S., at 575.
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The judgment of the District Court is affirmed, and the case is remanded for further proceedings consistent with this decision. It is so ordered.
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