Georgia v. Ashcroft, Attorney General, 539 U.S. 461 (2003)

539 U.S. 461

GEORGIA
v.
ASHCROFT, ATTORNEY GENERAL, ET AL.
No. 02-182.

Supreme Court of United States.
Argued April 29, 2003.
Decided June 26, 2003.

Georgia's 1997 State Senate districting plan is the benchmark plan for this
litigation. That plan drew 56 districts, 11 of them with a total black
population of over 50%, and 10 of them with a black voting age
population of over 50%. The 2000 census revealed that these numbers had
increased so that 13 districts had a black population of at least 50%, with
the black voting age population exceeding 50% in 12 of those districts.
After the 2000 census, the Georgia General Assembly began redistricting
the Senate once again. It is uncontested that a substantial majority of
Georgia's black voters vote Democratic, and that all elected black
representatives in the General Assembly are Democrats. The Senator who
chaired the subcommittee that developed the new plan testified he
believed that as a district's black voting age population increased beyond
what was necessary to elect a candidate, it would push the Senate more
toward the Republicans, and correspondingly diminish the power of
African-Americans overall. Thus, part of the Democrats' strategy was not
only to maintain the number of majority-minority districts and increase
the number of Democratic Senate seats, but also to increase the number of
so-called "influence" districts, where black voters would be able to exert a
significant—if not decisive—force in the election process. The new plan
therefore "unpacked" the most heavily concentrated majority-minority
districts in the benchmark plan, and created a number of new influence
districts, drawing 13 districts with a majority-black voting age population,
13 additional districts with a black voting age population of between 30%50%, and 4 other districts with a black voting age population of between
25%-30%. When the Senate adopted the new plan, 10 of the 11 black
Senators voted for it. The Georgia House of Representatives passed the
plan with 33 of the 34 black Representatives voting for it. No Republican
in either body voted for the plan, making the votes of the black legislators
necessary for passage. The Governor signed the Senate plan into law in
2001.

Because Georgia is a covered jurisdiction under § 5 of the Voting Rights
Act of 1965, it must submit any new voting "standard, practice, or
procedure" for preclearance by either the United States Attorney General
or the District Court for the District of Columbia in order to ensure that
the change "does not have the purpose [or] effect of denying or abridging
the right to vote on account of race or color," 42 U. S. C. § 1973c. No
change should be precleared if it "would lead to a retrogression in the
position of racial minorities with respect to their effective exercise of the
electoral franchise." Beer v. United States, 425 U. S. 130, 141. In order to
preclear its 2001 plan, Georgia filed suit in the District Court seeking a
declaratory judgment that the plan does not violate § 5. To satisfy its
burden of proving nonretrogression, Georgia submitted detailed evidence
documenting, among other things, the total population, total black
population, black voting age population, percentage of black registered
voters, and the overall percentage of Democratic votes in each district;
evidence about how each of these statistics compared to the benchmark
districts; testimony from numerous participants in the plan's enactment
that it was designed to increase black voting strength throughout the State
as well as to help ensure a continued Democratic majority in the Senate;
expert testimony that black and nonblack voters have equal chances of
electing their preferred candidate when the black voting age population of
a district is at 44.3%; and, in response to the United States' objections,
more detailed statistical evidence with respect to three proposed Senate
districts that the United States found objectionable—Districts 2, 12, and
26—and two districts challenged by the intervenors—Districts 15 and 22.
The United States argued that the plan should not be precleared because
the changes to the boundaries of Districts 2, 12, and 26 unlawfully
reduced black voters' ability to elect candidates of their choice. The
United States' evidence focused only on those three districts and was not
designed to permit the court to assess the plan's overall impact. The
intervenors, four African-Americans, argued that retrogression had
occurred in Districts 15 and 22, and presented proposed alternative plans
and an expert report critiquing the State's expert report. A three-judge
District Court panel held that the plan violated § 5, and was therefore not
entitled to preclearance.
Held:

1. The District Court did not err in allowing the private litigants to
intervene. That court found that the intervenors' analysis of the plan
identifies interests not adequately represented by the existing parties.
Private parties may intervene in § 5 actions assuming they meet the
requirements of Federal Rule of Civil Procedure 24, NAACP v. New York,
413 U. S. 345, 365, and the District Court did not abuse its discretion in
allowing intervention in this case, see id., at 367. Morris v. Gressette, 432
U. S. 491, 504-505, in which the Court held that the decision to object
belongs only to the Attorney General, is distinguished because it
concerned the administrative, not the judicial, preclearance process.
Morris itself recognized the difference between the two. See id., at 503507. Pp. 476-477.
2. The District Court failed to consider all the relevant factors when it
examined whether Georgia's Senate plan resulted in a retrogression of
black voters' effective exercise of the electoral franchise. Pp. 477-491.
(a) Georgia's argument that a plan should be precleared under § 5 if it
would satisfy § 2 of the Voting Rights Act, 42 U. S. C. § 1973, is rejected.
A § 2 vote dilution violation is not an independent reason to deny § 5
preclearance, because that would inevitably make § 5 compliance
contingent on § 2 compliance and thereby replace § 5 retrogression
standards with those for § 2. Reno v. Bossier Parish School Bd., 520 U. S.
471, 477. Instead of showing that its plan is nondilutive under § 2,
Georgia must prove that it is nonretrogressive under § 5. Pp. 477-479.
(b) To determine the meaning of "a retrogression in the position of racial
minorities with respect to their effective exercise of the electoral
franchise," Beer, supra, at 141, the statewide plan must first be examined
as a whole: First, the diminution of a minority group's effective exercise of
the electoral franchise violates § 5 only if the State cannot show that the
gains in the plan as a whole offset the loss in a particular district. Second,
all of the relevant circumstances must be examined, such as minority
voters' ability to elect their candidate of choice, the extent of the minority
group's opportunity to participate in the political process, and the
feasibility of creating a nonretrogressive plan. See, e. g., Johnson v. De
Grandy, 512 U. S. 997, 1011-1012, 1020-1021. In assessing the totality of
the circumstances, a minority group's comparative ability to elect a
candidate of its choice is an important factor, but it cannot be dispositive
or exclusive. See, e. g., Thornburg v. Gingles, 478 U. S. 30, 47-50. To
maximize such a group's electoral success, a State may choose to create
either a certain number of "safe" districts in which it is highly likely that
minority voters will be able to elect the candidate of their choice, see, e.
g., id., at 48-49, or a greater number of districts in which it is likely,
although perhaps not quite as likely as under the benchmark plan, that

minority voters will be able to elect their candidates, see, e. g., id., at 8889 (O'CONNOR, J., concurring in judgment). Section 5 does not dictate
that a State must pick one of these redistricting methods over the other.
Id., at 89. In considering the other highly relevant factor in a retrogression
inquiry—the extent to which a new plan changes the minority group's
opportunity to participate in the political process—a court must examine
whether the plan adds or subtracts "influence districts" where minority
voters may not be able to elect a candidate of choice but can play a
substantial, if not decisive, role in the electoral process, cf., e. g., Johnson,
supra, at 1007. In assessing these influence districts' comparative weight,
it is important to consider "the likelihood that candidates elected without
decisive minority support would be willing to take the minority's interests
into account." Thornburg, 478 U. S., at 100 (O'CONNOR, J., concurring
in judgment). Various studies suggest that the most effective way to
maximize minority voting strength may be to create more influence or
coalitional districts. Section 5 allows States to risk having fewer minority
representatives in order to achieve greater overall representation of a
minority group by increasing the number of representatives sympathetic to
the interests of minority voters. See, e. g., id., at 87-89, 99. Another
method of assessing the group's opportunity to participate in the political
process is to examine the comparative position of black representatives'
legislative leadership, influence, and power. See Johnson, supra, at 1020.
Maintaining or increasing legislative positions of power for minority
voters' representatives of choice, while not dispositive by itself, can show
the lack of retrogressive effect. And it is also significant, though not
dispositive, whether the representatives elected from the very districts
created and protected by the Voting Rights Act support the new plan. Pp.
479-485.

(c) The District Court failed to consider all the relevant factors. First,
although acknowledging the importance of assessing the statewide plan as
a whole, the court focused too narrowly on proposed Senate Districts 2,
12, and 26, without examining the increases in the black voting age
population that occurred in many of the other districts. Second, the court
did not consider any factor beyond black voters' comparative ability to
elect a candidate of their choice. It improperly rejected other evidence that
the legislators representing the benchmark majority-minority districts
support the plan; that the plan maintains those representatives' legislative
influence; and that Georgia affirmatively decided that the best way to
maximize black voting strength was to adopt a plan that "unpacked" the
high concentration of minority voters in the majority-minority districts. In
the face of Georgia's evidence of nonretrogression, the United States' only
evidence was that it would be more difficult for minority voters to elect
their candidate of choice in Districts 2, 12, and 26. Given the evidence
submitted in this case, Georgia likely met its burden of showing
nonretrogression. Section 5 gives States the flexibility to implement the
type of plan that Georgia has submitted for preclearance—a plan that
increases the number of districts with a majority-black voting age
population, even if it means that minority voters in some of those districts
will face a somewhat reduced opportunity to elect a candidate of their
choice. Cf. Thornburg, supra, at 89 (O'CONNOR, J., concurring in
judgment). While courts and the Justice Department should be vigilant in
ensuring that States neither reduce minority voters' effective exercise of
the electoral franchise nor discriminate against them, the Voting Rights
Act, as properly interpreted, should encourage the transition to a society
where race no longer matters. Pp. 485-491.
(d) The District Court is in a better position to reweigh all the facts in the
record in the first instance in light of this Court's explication of
retrogression. P. 491.
195 F. Supp. 2d 25, vacated and remanded.
O'CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and SCALIA, KENNEDY, and THOMAS, JJ.,
joined. KENNEDY, J., post, p. 491, and THOMAS, J., post, p. 492, filed
concurring opinions. SOUTER, J., filed a dissenting opinion, in which
STEVENS, GINSBURG, and BREYER, JJ., joined, post, p. 492.

1

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA

2

David F. Walbert argued the cause for appellant. With him on the briefs were
Thurbert E. Baker, Attorney General of Georgia, Dennis R. Dunn, Deputy
Attorney General, and Mark H. Cohen.

3

Malcolm L. Stewart argued the cause for the federal appellees. With him on the
brief were Solicitor General Olson, Assistant Attorney General Boyd, Deputy
Solicitor General Clement, and Mark L. Gross.

4

E. Marshall Braden argued the cause for appellee intervenors. With him on the
brief were Amy M. Henson, Frank B. Strickland, and Anne W. Lewis.*

5

JUSTICE O'CONNOR delivered the opinion of the Court.

6

In this case, we decide whether Georgia's State Senate redistricting plan should
have been precleared under § 5 of the Voting Rights Act of 1965, 79 Stat. 439,
as renumbered and amended, 42 U. S. C. § 1973c. Section 5 requires that
before a covered jurisdiction's new voting "standard, practice, or procedure"
goes into effect, it must be precleared by either the Attorney General of the
United States or a federal court to ensure that the change "does not have the
purpose and will not have the effect of denying or abridging the right to vote on
account of race or color." 42 U. S. C. § 1973c. Whether a voting procedure
change should be precleared depends on whether the change "would lead to a
retrogression in the position of racial minorities with respect to their effective
exercise of the electoral franchise." Beer v. United States, 425 U. S. 130, 141
(1976). We therefore must decide whether Georgia's State Senate redistricting
plan is retrogressive as compared to its previous, benchmark districting plan.

7

* A

8

Over the past decade, the propriety of Georgia's state and congressional
districts has been the subject of repeated litigation. In 1991, the Georgia
General Assembly began the process of redistricting after the 1990 census.
Because Georgia is a covered jurisdiction under § 5 of the Voting Rights Act,
see Miller v. Johnson, 515 U. S. 900, 905 (1995), Georgia submitted its revised
State Senate plan to the United States Department of Justice for preclearance.
The plan as enacted into law increased the number of majority-minority
districts from the previous Senate plan. The Department of Justice nevertheless
refused preclearance because of Georgia's failure to maximize the number of
majority-minority districts. See Johnson v. Miller, 929 F. Supp. 1529, 1537,
and n. 23 (SD Ga. 1996). After Georgia made changes to the Senate plan in an
attempt to satisfy the United States' objections, the State again submitted it to
the Department of Justice for preclearance. Again, the Department of Justice
refused preclearance because the plan did not contain a sufficient number of
majority-minority districts. See id., at 1537, 1539. Finally, the United States
precleared Georgia's third redistricting plan, approving it in the spring of 1992.
See id., at 1537.

9

Georgia's 1992 Senate plan was not challenged in court. See id., at 1533-1534.
Its congressional districting plan, however, was challenged as unconstitutional
under the Equal Protection Clause of the Fourteenth Amendment. See Shaw v.
Reno, 509 U. S. 630 (1993). In 1995, we held in Miller v. Johnson that
Georgia's congressional districting plan was unconstitutional because it
engaged in "the very racial stereotyping the Fourteenth Amendment forbids" by
making race the "predominant, overriding factor explaining" Georgia's
congressional districting decisions. 515 U. S., at 928, 920. And even though it
was "safe to say that the congressional plan enacted in the end was required in
order to obtain preclearance," this justification did not permit Georgia to engage
in racial gerrymandering. See id., at 921. Georgia's State Senate districts served
as "building blocks" to create the congressional districting plan found
unconstitutional in Miller v. Johnson. Johnson v. Miller, 929 F. Supp., at 1533,
n. 8 (internal quotation marks omitted); see also id., at 1536.

10

Georgia recognized that after Miller v. Johnson, its legislative districts were
unconstitutional under the Equal Protection Clause. See 929 F. Supp., at 1533,
1540. Accordingly, Georgia attempted to cure the perceived constitutional
problems with the 1992 State Senate districting plan by passing another plan in
1995. The Department of Justice refused to preclear the 1995 plan, maintaining
that it retrogressed from the 1992 plan and that Miller v. Johnson concerned
only Georgia's congressional districts, not Georgia's State Senate districts. See
929 F. Supp., at 1540-1541.

11

Private litigants subsequently brought an action challenging the
constitutionality of the 1995 Senate plan. See id., at 1533. The three-judge
panel of the District Court reviewing the 1995 Senate plan found that "[i]t is
clear that a black maximization policy had become an integral part of the
section 5 preclearance process . . . when the Georgia redistricting plans were
under review. The net effect of the DOJ's preclearance objection[s] . . . was to
require the State of Georgia to increase the number of majority black districts in
its redistricting plans, which were already ameliorative plans, beyond any
reasonable concept of non-retrogression." Id., at 1539-1540. The court noted
that in Miller v. Johnson, we specifically disapproved of the Department of
Justice's policy that the maximization of black districts was a part of the § 5
retrogression analysis. See 929 F. Supp., at 1539. Indeed, in Miller, we found
that the Department of Justice's objections to Georgia's redistricting plans were
"driven by its policy of maximizing majority-black districts." 515 U. S., at 924.
And "[i]n utilizing § 5 to require States to create majority-minority districts
wherever possible, the Department of Justice expanded its authority under the
statute beyond what Congress intended and we have upheld." Id., at 925.

12

The District Court stated that the maximization of majority-minority districts in
Georgia "artificially push[ed] the percentage of black voters within some
majority black districts as high as possible." 929 F. Supp., at 1536. The plan
that eventually received the Department of Justice's preclearance in 1992
"represented the General Assembly's surrender to the black maximization
policy of the DOJ." Id., at 1540. The court then found that the 1995 plan was
an unconstitutional racial gerrymander. See id., at 1543.

13

Under court direction, Georgia and the Department of Justice reached a
mediated agreement on the constitutionality of the 1995 Senate plan. Georgia
passed a new plan in 1997, and the Department of Justice quickly precleared it.
The redrawn map resembled to a large degree the 1992 plan that eventually
received preclearance from the Department of Justice, with some changes to
accommodate the decision of this Court in Miller v. Johnson, and of the District
Court in Johnson v. Miller. All parties here concede that the 1997 plan is the
benchmark plan for this litigation because it was in effect at the time of the
2001 redistricting effort. The 1997 plan drew 56 districts, 11 of them with a
total black population of over 50%, and 10 of them with a black voting age
population of over 50%. See Record, Doc. No. 148, Pl. Exh. 1C (hereinafter Pl.
Exh.). The 2000 census revealed that these numbers had increased so that 13
districts had a black population of at least 50%, with the black voting age
population exceeding 50% in 12 of those districts. See 195 F. Supp. 2d 25, 39
(DC 2002).

14

After the 2000 census, the Georgia General Assembly began the process of
redistricting the Senate once again. No party contests that a substantial majority
of black voters in Georgia vote Democratic, or that all elected black
representatives in the General Assembly are Democrats. The goal of the
Democratic leadership—black and white—was to maintain the number of
majority-minority districts and also increase the number of Democratic Senate
seats. See id., at 41-42. For example, the Director of Georgia's Legislative
Redistricting Office, Linda Meggers, testified that the Senate Black Caucus
"`wanted to maintain'" the existing majority-minority districts and at the same
time "`not waste'" votes. Id., at 41.

15

The Vice Chairman of the Senate Reapportionment Committee, Senator Robert
Brown, also testified about the goals of the redistricting effort. Senator Brown,
who is black, chaired the subcommittee that developed the Senate plan at issue
here. See id., at 42. Senator Brown believed when he designed the Senate plan
that as the black voting age population in a district increased beyond what was
necessary, it would "pus[h] the whole thing more towards [the] Republican[s]."
Pl. Exh. 20, at 24. And "correspondingly," Senator Brown stated, "the more
you diminish the power of African-Americans overall." Ibid. Senator Charles
Walker was the majority leader of the Senate. Senator Walker testified that it
was important to attempt to maintain a Democratic majority in the Senate
because "we [African-Americans] have a better chance to participate in the
political process under the Democratic majority than we would have under a
Republican majority." Pl. Exh. 24, at 19. At least 7 of the 11 black members of
the Senate could chair committees. See 195 F. Supp. 2d, at 41.

16

The plan as designed by Senator Brown's committee kept true to the dual goals
of maintaining at least as many majority-minority districts while also
attempting to increase Democratic strength in the Senate. Part of the
Democrats' strategy was not only to maintain the number of majority-minority
districts, but to increase the number of so-called "influence" districts, where
black voters would be able to exert a significant—if not decisive—force in the
election process. As the majority leader testified, "in the past, you know, what
we would end up doing was packing. You put all blacks in one district and all
whites in one district, so what you end up with is [a] black Democratic district
and [a] white Republican district. That's not a good strategy. That does not
bring the people together, it divides the population. But if you put people
together on voting precincts it brings people together." Pl. Exh. 24, at 19.

17

The plan as designed by the Senate "unpacked" the most heavily concentrated
majority-minority districts in the benchmark plan, and created a number of new
influence districts. The new plan drew 13 districts with a majority-black voting
age population, 13 additional districts with a black voting age population of
between 30% and 50%, and 4 other districts with a black voting age population
of between 25% and 30%. See Pl. Exh. 2C. According to the 2000 census, as
compared to the benchmark plan, the new plan reduced by five the number of
districts with a black voting age population in excess of 60%. Compare Pl. Exh.
1D with Pl. Exh. 2C. Yet it increased the number of majority-black voting age
population districts by one, and it increased the number of districts with a black
voting age population of between 25% and 50% by four. As compared to the
benchmark plan enacted in 1997, the difference is even larger. Under the old
census figures, Georgia had 10 Senate districts with a majority-black voting
age population, and 8 Senate districts with a black voting age population of
between 30% and 50%. See Pl. Exh. 1C. The new plan thus increased the
number of districts with a majority black voting age population by three, and
increased the number of districts with a black voting age population of between
30% and 50% by another five. Compare Pl. Exh. 1C with Pl. Exh. 2C.

18

The Senate adopted its new districting plan on August 10, 2001, by a vote of 29
to 26. Ten of the eleven black Senators voted for the plan. 195 F. Supp. 2d, at
55. The Georgia House of Representatives passed the Senate plan by a vote of
101 to 71. Thirty-three of the thirty-four black Representatives voted for the
plan. Ibid. No Republican in either the House or the Senate voted for the plan,
making the votes of the black legislators necessary for passage. See id., at 41.
The Governor signed the Senate plan into law on August 24, 2001, and Georgia
subsequently sought to obtain preclearance.
B

19

Pursuant to § 5 of the Voting Rights Act, a covered jurisdiction like Georgia
has the option of either seeking administrative preclearance through the
Attorney General of the United States or seeking judicial preclearance by
instituting an action in the United States District Court for the District of
Columbia for a declaratory judgment that the voting change comports with § 5.
42 U. S. C. § 1973c; Georgia v. United States, 411 U. S. 526 (1973). Georgia
chose the latter method, filing suit seeking a declaratory judgment that the State
Senate plan does not violate § 5.

20

Georgia, which bears the burden of proof in this action, see Pleasant Grove v.
United States, 479 U. S. 462 (1987), attempted to prove that its Senate plan was
not retrogressive either in intent or in effect. It submitted detailed evidence
documenting in each district the total population, the total black population, the
black voting age population, the percentage of black registered voters, and the
overall percentage of Democratic votes (i. e., the overall likelihood that voters
in a particular district will vote Democratic), among other things. See 195 F.
Supp. 2d, at 36; see also Pl. Exhs. 2C, 2D. The State also submitted evidence
about how each of these statistics compared to the benchmark districts. See 195
F. Supp. 2d, at 36; see also Pl. Exhs. 1C, 1D, 1E (revised).

21

Georgia also submitted testimony from numerous people who had participated
in enacting the Senate plan into law, and from United States Congressman John
Lewis, who represents the Atlanta area. These witnesses testified that the new
Senate plan was designed to increase black voting strength throughout the State
as well as to help ensure a continued Democratic majority in the Senate. The
State also submitted expert testimony that African-American and non-AfricanAmerican voters have equal chances of electing their preferred candidate when
the black voting age population of a district is at 44.3%. Finally, in response to
objections raised by the United States, Georgia submitted more detailed
statistical evidence with respect to three proposed Senate districts that the
United States found objectionable— Districts 2, 12, and 26—and two districts
that the intervenors challenged—Districts 15 and 22.

22

The United States, through the Attorney General, argued in District Court that
Georgia's 2001 Senate redistricting plan should not be precleared. It argued that
the plan's changes to the boundaries of Districts 2, 12, and 26 unlawfully
reduced the ability of black voters to elect candidates of their choice. See Brief
for Federal Appellees 8; 195 F. Supp. 2d, at 72. The United States noted that in
District 2, the black voting age population dropped from 60.58% to 50.31%; in
District 12, the black voting age population dropped from 55.43% to 50.66%;
and in District 26, the black voting age population dropped from 62.45% to
50.80%.1 Moreover, in all three of these districts, the percentage of black
registered voters dropped to just under 50%. The United States also submitted
expert evidence that voting is racially polarized in Senate Districts 2, 12, and
26. See id., at 69-71. The United States acknowledged that some limited
percentage of whites would vote for a black candidate, but maintained that the
percentage was not sufficient for black voters to elect their candidate of choice.
See id., at 70-71. The United States also offered testimony from various
witnesses, including lay witnesses living in the three districts, who asserted that
the new contours of Districts 2, 12, and 26 would reduce the opportunity for
blacks to elect a candidate of their choice in those districts; Senator Regina
Thomas of District 2, the only black Senator who voted against the plan;
Senator Eric Johnson, the Republican leader of the Senate; and some black
legislators who voted for the plan but questioned how the plan would affect
black voters. See Vols. 25-27 Record, Doc. No. 177, United States Exhs. 707736 (Depositions). As the District Court stated, "the United States' evidence
was extremely limited in scope—focusing only on three contested districts in
the State Senate plan. That evidence was not designed to permit the court to
assess the overall impact of [the Senate plan]." 195 F. Supp. 2d, at 37.

23

Pursuant to Federal Rule of Civil Procedure 24, the District Court also
permitted four African-American citizens of Georgia to intervene. The
intervenors identified two other districts—Districts 15 and 22—where they
alleged retrogression had occurred. The intervenors "present[ed] little evidence
other than proposed alternative plans and an expert report critiquing the State's
expert report." 195 F. Supp. 2d, at 37.

24

A three-judge panel of the District Court held that Georgia's State Senate
apportionment violated § 5, and was therefore not entitled to preclearance. See
id., at 97. Judge Sullivan, joined by Judge Edwards, concluded that Georgia had
"not demonstrated by a preponderance of the evidence that the State Senate
redistricting plan would not have a retrogressive effect on African American
voters" effective exercise of the electoral franchise. Ibid. The court found that
Senate Districts 2, 12, and 26 were retrogressive because in each district, a
lesser opportunity existed for the black candidate of choice to win election
under the new plan than under the benchmark plan. See id., at 93-94. The court
found that the reductions in black voting age population in Districts 2, 12, and
26 would "diminish African American voting strength in these districts," and
that Georgia had "failed to present any . . . evidence" that the retrogression in
those districts "will be offset by gains in other districts." Id., at 88.

25

Judge Edwards, joined by Judge Sullivan, concurred. Judge Edwards
emphasized that §§ 5 and 2 are "procedurally and substantively distinct
provisions." Id., at 97. He therefore rejected Georgia's argument that a plan
preserving an equal opportunity for minorities to elect candidates of their
choice satisfies § 5. Judge Edwards also rejected the testimony of the black
Georgia politicians who supported the Senate plan. In his view, the testimony
did not address whether racial polarization was occurring in Senate Districts 2,
12, and 26. See id., at 101-102.

26

Judge Oberdorfer dissented. He would have given "greater credence to the
political expertise and motivation of Georgia's African-American political
leaders and reasonable inferences drawn from their testimony and the voting
data and statistics." Id., at 102. He noted that this Court has not answered
"whether a redistricting plan that preserves or increases the number of districts
statewide in which minorities have a fair or reasonable opportunity to elect
candidates of choice is entitled to preclearance, or whether every district must
remain at or improve on the benchmark probability of victory, even if doing so
maintains a minority super-majority far in excess of the level needed for
effective exercise of [the] electoral franchise." Id., at 117.

27

After the District Court refused to preclear the plan, Georgia enacted another
plan, largely similar to the one at issue here, except that it added black voters to
Districts 2, 12, and 26. The District Court precleared this plan. See 204 F.
Supp. 2d 4 (2002). No party has contested the propriety of the District Court's
preclearance of the Senate plan as amended. Georgia asserts that it will use the
plan as originally enacted if it receives preclearance.

28

We noted probable jurisdiction to consider whether the District Court should
have precleared the plan as originally enacted by Georgia in 2001, 537 U. S.
1151 (2003), and now vacate the judgment below.

II
29

Before addressing the merits of Georgia's preclearance claim, we address the
State's argument that the District Court was incorrect in allowing the private
litigants to intervene in this lawsuit. Georgia maintains that private parties
should not be allowed to intervene in § 5 actions because States should not be
subjected to the political stratagems of intervenors. While the United States
disagrees with Georgia on the propriety of intervention here, the United States
argues that this question is moot because the participation of the intervenors did
not affect the District Court's ruling on the merits and the intervenors did not
appeal the court's ruling.

30

We do not think Georgia's argument is moot. The intervenors did not have to
appeal because they were prevailing parties below. Moreover, the District
Court addressed the evidence that the intervenors submitted, which is now in
front of this Court. The issue whether intervenors are proper parties still has
relevance in this Court because they argue here that the District Court correctly
found that the Senate plan was retrogressive.

31

The District Court properly found that Federal Rule of Civil Procedure 24
governs intervention in this case. Section 5 permits a State to bring "an action
in the United States District Court for the District of Columbia for a declaratory
judgment." 42 U. S. C. § 1973c. Section 5 does not limit in any way the
application of the Federal Rules of Civil Procedure to this type of lawsuit, and
the statute by its terms does not bar private parties from intervening. In NAACP
v. New York, 413 U. S. 345, 365 (1973), we held that in an action under § 5, "
[i]ntervention in a federal court suit is governed by Fed. Rule Civ. Proc. 24."

32

To support its argument, Georgia relies on Morris v. Gressette, 432 U. S. 491
(1977). In Morris, we held that in an administrative preclearance action, the
decision to object belongs only to the Attorney General and is not judicially
reviewable. See id., at 504-505. But Morris concerned the administrative
preclearance process, not the judicial preclearance process. Morris itself
recognized the difference between administrative preclearance and judicial
preclearance. See id., at 503-507.

33

Here, the District Court granted the motion to intervene because it found that
the intervenors' "analysis of the.. . Senate redistricting pla[n] identifies interests
that are not adequately represented by the existing parties." App. to Juris.
Statement 218a. Private parties may intervene in § 5 actions assuming they
meet the requirements of Rule 24, and the District Court did not abuse its
discretion in granting the motion to intervene in this case. See NAACP v. New
York, supra, at 367.

III
34

* Section 5 of the Voting Rights Act "has a limited substantive goal: "`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.'" Miller, 515 U. S., at 926 (quoting Beer v.
United States, 425 U. S., [at 141])." Bush v. Vera, 517 U. S. 952, 982-983
(1996). Thus, a plan that merely preserves "current minority voting strength" is
entitled to § 5 preclearance. City of Lockhart v. United States, 460 U. S. 125,
134, n. 10 (1983); Bush v. Vera, supra, at 983. Indeed, a voting change with a
discriminatory but nonretrogressive purpose or effect does not violate § 5. See
Reno v. Bossier Parish School Bd., 528 U. S. 320, 341 (2000). And "no matter
how unconstitutional it may be," a plan that is not retrogressive should be
precleared under § 5. Id., at 336. "[P]reclearance under § 5 affirms nothing but
the absence of backsliding." Id., at 335.

35

Georgia argues that a plan should be precleared under § 5 if the plan would
satisfy § 2 of the Voting Rights Act of 1965, 42 U. S. C. § 1973. We have,
however, "consistently understood" § 2 to "combat different evils and,
accordingly, to impose very different duties upon the States." Reno v. Bossier
Parish School Bd., 520 U. S. 471, 477 (1997) (Bossier Parish I). For example,
while § 5 is limited to particular covered jurisdictions, § 2 applies to all States.
And the § 2 inquiry differs in significant respects from a § 5 inquiry. In contrast
to § 5's retrogression standard, the "essence" of a § 2 vote dilution claim is that
"a certain electoral law, practice, or structure. . . cause[s] 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 id., at
48-50 (enunciating a three-part test to establish vote dilution); id., at 85-100
(O'CONNOR, J., concurring in judgment); 42 U. S. C. § 1973(b). Unlike an
inquiry under § 2, a retrogression inquiry under § 5, "by definition, requires a
comparison of a jurisdiction's new voting plan with its existing plan." Bossier
Parish I, supra, at 478. While some parts of the § 2 analysis may overlap with
the § 5 inquiry, the two sections "differ in structure, purpose, and application."
Holder v. Hall, 512 U. S. 874, 883 (1994) (plurality opinion).

36

In Bossier Parish I, we specifically held that a violation of § 2 is not an
independent reason to deny preclearance under § 5. See 520 U. S., at 477. The
reason for this holding was straightforward: "[R]ecognizing § 2 violations as a
basis for denying § 5 preclearance would inevitably make compliance with § 5
contingent upon compliance with § 2. Doing so would, for all intents and
purposes, replace the standards for § 5 with those for § 2." Ibid.

37

Georgia here makes the flip side of the argument that failed in Bossier Parish
I—compliance with § 2 suffices for preclearance under § 5. Yet the argument
fails here for the same reasons the argument failed in Bossier Parish I. We
refuse to equate a § 2 vote dilution inquiry with the § 5 retrogression standard.
Georgia's argument, like the argument in Bossier Parish I, would "shift the
focus of § 5 from nonretrogression to vote dilution, and [would] change the § 5
benchmark from a jurisdiction's existing plan to a hypothetical, undiluted plan."
Id., at 480. Instead of showing that the Senate plan is nondilutive under § 2,
Georgia must prove that its plan is nonretrogressive under § 5.
B

38

Georgia argues that even if compliance with § 2 does not automatically result in
preclearance under § 5, its State Senate plan should be precleared because it
does not lead to "a retrogression in the position of racial minorities with respect
to their effective exercise of the electoral franchise." Beer v. United States,
supra, at 141. See, e. g., Brief for Appellant 32, 36.

39

While we have never determined the meaning of "effective exercise of the
electoral franchise," this case requires us to do so in some detail. First, the
United States and the District Court correctly acknowledge that in examining
whether the new plan is retrogressive, the inquiry must encompass the entire
statewide plan as a whole. See 195 F. Supp. 2d, at 73; Tr. of Oral Arg. 28-29.
Thus, while the diminution of a minority group's effective exercise of the
electoral franchise in one or two districts may be sufficient to show a violation
of § 5, it is only sufficient if the covered jurisdiction cannot show that the gains
in the plan as a whole offset the loss in a particular district.

40

Second, any assessment of the retrogression of a minority group's effective
exercise of the electoral franchise depends on an examination of all the relevant
circumstances, such as the ability of minority voters to elect their candidate of
choice, the extent of the minority group's opportunity to participate in the
political process, and the feasibility of creating a nonretrogressive plan. See, e.
g., Johnson v. De Grandy, 512 U. S. 997, 1011-1012, 1020-1021 (1994);
Richmond v. United States, 422 U. S. 358, 371-372 (1975); Thornburg v.
Gingles, supra, at 97-100 (O'CONNOR, J., concurring in judgment). "No single
statistic provides courts with a shortcut to determine whether" a voting change
retrogresses from the benchmark. Johnson v. De Grandy, supra, at 1020-1021.

41

In assessing the totality of the circumstances, a court should not focus solely on
the comparative ability of a minority group to elect a candidate of its choice.
While this factor is an important one in the § 5 retrogression inquiry, it cannot
be dispositive or exclusive. The standard in § 5 is simple— whether the new
plan "would lead to a retrogression in the position of racial minorities with
respect to their effective exercise of the electoral franchise." Beer v. United
States, 425 U. S., at 141.

42

The ability of minority voters to elect a candidate of their choice is important
but often complex in practice to determine. In order to maximize the electoral
success of a minority group, a State may choose to create a certain number of
"safe" districts, in which it is highly likely that minority voters will be able to
elect the candidate of their choice. See Thornburg v. Gingles, 478 U. S., at 4849; id., at 87-89 (O'CONNOR, J., concurring in judgment). Alternatively, a
State may choose to create a greater number of districts in which it is likely—
although perhaps not quite as likely as under the benchmark plan—that
minority voters will be able to elect candidates of their choice. See id., at 88-89
(O'CONNOR, J., concurring in judgment); cf. Pildes, Is Voting-Rights Law
Now at War With Itself? Social Science and Voting Rights in the 2000s, 80 N.
C. L. Rev. 1517 (2002).

43

Section 5 does not dictate that a State must pick one of these methods of
redistricting over another. Either option "will present the minority group with
its own array of electoral risks and benefits," and presents "hard choices about
what would truly `maximize' minority electoral success." Thornburg v. Gingles,
supra, at 89 (O'CONNOR, J., concurring in judgment). On one hand, a smaller
number of safe majority-minority districts may virtually guarantee the election
of a minority group's preferred candidate in those districts. Yet even if this
concentration of minority voters in a few districts does not constitute the
unlawful packing of minority voters, see Voinovich v. Quilter, 507 U. S. 146,
153-154 (1993), such a plan risks isolating minority voters from the rest of the
State, and risks narrowing political influence to only a fraction of political
districts. Cf. Shaw v. Reno, 509 U. S., at 648-650. And while such districts
may result in more "descriptive representation" because the representatives of
choice are more likely to mirror the race of the majority of voters in that
district, the representation may be limited to fewer areas. See H. Pitkin, The
Concept of Representation 60-91 (1967).

44

On the other hand, spreading out minority voters over a greater number of
districts creates more districts in which minority voters may have the
opportunity to elect a candidate of their choice. Such a strategy has the potential
to increase "substantive representation" in more districts, by creating coalitions
of voters who together will help to achieve the electoral aspirations of the
minority group. See id., at 114. It also, however, creates the risk that the
minority group's preferred candidate may lose. Yet as we stated in Johnson v.
De Grandy, supra, at 1020:

45

"[T]here are communities in which minority citizens are able to form coalitions
with voters from other racial and ethnic groups, having no need to be a majority
within a single district in order to elect candidates of their choice. Those
candidates may not represent perfection to every minority voter, but minority
voters are not immune from the obligation to pull, haul, and trade to find
common political ground, the virtue of which is not to be slighted in applying a
statute meant to hasten the waning of racism in American politics." Section 5
gives States the flexibility to choose one theory of effective representation over
the other.

46

In addition to the comparative ability of a minority group to elect a candidate of
its choice, the other highly relevant factor in a retrogression inquiry is the
extent to which a new plan changes the minority group's opportunity to
participate in the political process. "`[T]he power to influence the political
process is not limited to winning elections.'" Thornburg v. Gingles, supra, at 99
(O'CONNOR, J., concurring in judgment) (quoting Davis v. Bandemer, 478 U.
S. 109, 132 (1986)); see also White v. Regester, 412 U. S. 755, 766-767 (1973);
Whitcomb v. Chavis, 403 U. S. 124, 149-160 (1971); Johnson v. De Grandy,
512 U. S., at 1011-1012.

47

Thus, a court must examine whether a new plan adds or subtracts "influence
districts"—where minority voters may not be able to elect a candidate of choice
but can play a substantial, if not decisive, role in the electoral process. Cf. Shaw
v. Hunt, 517 U. S. 899, 947, n. 21 (1996) (Stevens, J., dissenting); Hays v.
Louisiana, 936 F. Supp. 360, 364, n. 17 (WD La. 1996); Johnson v. De
Grandy, supra, at 1011-1012; Thornburg v. Gingles, 478 U. S., at 98-100
(O'CONNOR, J., concurring in judgment). In assessing the comparative weight
of these influence districts, it is important to consider "the likelihood that
candidates elected without decisive minority support would be willing to take
the minority's interests into account." Id., at 100 (O'CONNOR, J., concurring in
judgment). In fact, various studies have suggested that the most effective way
to maximize minority voting strength may be to create more influence or
coalitional districts. See, e. g., Lublin, Racial Redistricting and AfricanAmerican Representation: A Critique of "Do Majority-Minority Districts
Maximize Substantive Black Representation in Congress?" 93 Am. Pol. Sci.
Rev. 183, 185 (1999) (noting that racial redistricting in the early 1990's, which
created more majority-minority districts, made Congress "less likely to adopt
initiatives supported by blacks"); Cameron, Epstein, & O'Halloran, Do
Majority-Minority Districts Maximize Substantive Black Representation in
Congress? 90 Am. Pol. Sci. Rev. 794, 808 (1996) (concluding that the "
[d]istricting schemes that maximize the number of minority representatives do
not necessarily maximize substantive minority representation"); C. Swain,
Black Faces, Black Interests 193-234 (1995); Pildes, 80 N. C. L. Rev., at 1517;
Grofman, Handley, & Lublin, Drawing Effective Minority Districts: A
Conceptual Framework and Some Empirical Evidence, 79 N. C. L. Rev. 1383
(2001).

48

Section 5 leaves room for States to use these types of influence and coalitional
districts. Indeed, the State's choice ultimately may rest on a political choice of
whether substantive or descriptive representation is preferable. See Pitkin,
supra, at 142; Swain, supra, at 5. The State may choose, consistent with § 5,
that it is better to risk having fewer minority representatives in order to achieve
greater overall representation of a minority group by increasing the number of
representatives sympathetic to the interests of minority voters. See Thornburg
v. Gingles, supra, at 87-89, 99 (O'CONNOR, J., concurring in judgment); cf.
Johnson v. De Grandy, 512 U. S., at 1020.

49

In addition to influence districts, one other method of assessing the minority
group's opportunity to participate in the political process is to examine the
comparative position of legislative leadership, influence, and power for
representatives of the benchmark majority-minority districts. A legislator, no
less than a voter, is "not immune from the obligation to pull, haul, and trade to
find common political ground." Ibid. Indeed, in a representative democracy, the
very purpose of voting is to delegate to chosen representatives the power to
make and pass laws. The ability to exert more control over that process is at the
core of exercising political power. A lawmaker with more legislative influence
has more potential to set the agenda, to participate in closed-door meetings, to
negotiate from a stronger position, and to shake hands on a deal. Maintaining or
increasing legislative positions of power for minority voters' representatives of
choice, while not dispositive by itself, can show the lack of retrogressive effect
under § 5.

50

And it is also significant, though not dispositive, whether the representatives
elected from the very districts created and protected by the Voting Rights Act
support the new districting plan. The District Court held that the support of
legislators from benchmark majority-minority districts may show retrogressive
purpose, but it is not relevant in assessing retrogressive effect. See 195 F. Supp.
2d, at 89; see also post, at 503 (SOUTER, J., dissenting). But we think this
evidence is also relevant for retrogressive effect. As the dissent recognizes, the
retrogression inquiry asks how "voters will probably act in the circumstances in
which they live." Post, at 509. The representatives of districts created to ensure
continued minority participation in the political process have some knowledge
about how "voters will probably act" and whether the proposed change will
decrease minority voters' effective exercise of the electoral franchise.

51

The dissent maintains that standards for determining non-retrogression under §
5 that we announce today create a situation where "[i]t is very hard to see
anything left of" § 5. Post, at 495. But the dissent ignores that the ability of a
minority group to elect a candidate of choice remains an integral feature in any
§ 5 analysis. Cf. Thornburg v. Gingles, supra, at 98 (O'CONNOR, J.,
concurring in judgment). And the dissent agrees that the addition or subtraction
of coalitional districts is relevant to the § 5 inquiry. See post, at 492, 504. Yet
assessing whether a plan with coalitional districts is retrogressive is just as factintensive as whether a plan with both influence and coalitional districts is
retrogressive. As JUSTICE SOUTER recognized for the Court in the § 2
context, a court or the Department of Justice should assess the totality of
circumstances in determining retrogression under § 5. See Johnson v. De
Grandy, supra, at 1020-1021. And it is of course true that evidence of racial
polarization is one of many factors relevant in assessing whether a minority
group is able to elect a candidate of choice or to exert a significant influence in
a particular district. See Thornburg v. Gingles, 478 U. S., at 37; id., at 100-104
(O'CONNOR, J., concurring in judgment); see also White v. Regester, 412 U. S.
755 (1973); Zimmer v. McKeithen, 485 F. 2d 1297 (CA5 1973) (en banc).

52

The dissent nevertheless asserts that it "cannot be right" that the § 5 inquiry
goes beyond assessing whether a minority group can elect a candidate of its
choice. Post, at 494. But except for the general statement of retrogression in
Beer, the dissent cites no law to support its contention that retrogression should
focus solely on the ability of a minority group to elect a candidate of choice. As
JUSTICE SOUTER himself, writing for the Court in Johnson v. De Grandy,
supra, at 1011-1012, has recognized, the "extent of the opportunities minority
voters enjoy to participate in the political processes" is an important factor to
consider in assessing a § 2 vote-dilution inquiry. See also Thornburg v.
Gingles, supra, at 98-100 (O'CONNOR, J., concurring in judgment). In
determining how the new districting plan differs from the benchmark plan, the
same standard should apply to § 5.
C

53

The District Court failed to consider all the relevant factors when it examined
whether Georgia's Senate plan resulted in a retrogression of black voters'
effective exercise of the electoral franchise. First, while the District Court
acknowledged the importance of assessing the statewide plan as a whole, the
court focused too narrowly on proposed Senate Districts 2, 12, and 26. It did
not examine the increases in the black voting age population that occurred in
many of the other districts. Second, the District Court did not explore in any
meaningful depth any other factor beyond the comparative ability of black
voters in the majority-minority districts to elect a candidate of their choice. In
doing so, it paid inadequate attention to the support of legislators representing
the benchmark majority-minority districts and the maintenance of the
legislative influence of those representatives.

54

The District Court correctly recognized that the increase in districts with a
substantial minority of black voters is an important factor in the retrogression
inquiry. See 195 F. Supp. 2d, at 75-78. Nevertheless, it did not adequately
apply this consideration to the facts of this case. The District Court ignored the
evidence of numerous other districts showing an increase in black voting age
population, as well as the other evidence that Georgia decided that a way to
increase black voting strength was to adopt a plan that "unpacked" the high
concentration of minority voters in the majority-minority districts. Its statement
that Georgia did not "presen[t] evidence regarding potential gains in minority
voting strength in Senate Districts other than Districts 2, 12 and 26" is therefore
clearly erroneous. Id., at 94. Like the dissent, we accept the District Court's
findings that the reductions in black voting age population in proposed Districts
2, 12, and 26 to just over 50% make it marginally less likely that minority
voters can elect a candidate of their choice in those districts, although we note
that Georgia introduced evidence showing that approximately one-third of
white voters would support a black candidate in those districts, see id., at 66,
and that the United States' own expert admitted that the results of statewide
elections in Georgia show that "there would be a `very good chance' that . . .
African American candidates would win election in the reconstituted districts."
Id., at 71; see also id., at 84-85. Nevertheless, regardless of any racially
polarized voting or diminished opportunity for black voters to elect a candidate
of their choice in proposed Districts 2, 12, and 26, the District Court's inquiry
was too narrow.

55

In the face of Georgia's evidence that the Senate plan as a whole is not
retrogressive, the United States introduced nothing apart from the evidence that
it would be more difficult for minority voters to elect their candidate of choice
in Districts 2, 12, and 26. As the District Court stated, the United States did not
introduce any evidence to rebut Georgia's evidence that the increase in black
voting age population in the other districts offsets any decrease in black voting
age population in the three contested districts: "[T]he United States' evidence
was extremely limited in scope—focusing only on three contested districts in
the State Senate plan." Id., at 37. Indeed, the District Court noted that the
United States' evidence "was not designed to permit the court to assess the
overall impact" of the Senate plan. Ibid.

56

Given the evidence submitted in this case, we find that Georgia likely met its
burden of showing nonretrogression. The increase in black voting age
population in the other districts likely offsets any marginal decrease in the
black voting age population in the three districts that the District Court found
retrogressive. Using the overlay of the 2000 census numbers, Georgia's strategy
of "unpacking" minority voters in some districts to create more influence and
coalitional districts is apparent. Under the 2000 census numbers, the number of
majority black voting age population districts in the new plan increases by one,
the number of districts with a black voting age population of between 30% and
50% increases by two, and the number of districts with a black voting age
population of between 25% and 30% increases by another 2. See Pl. Exhs. 1D,
2C; see also supra, at 470-471.

57

Using the census numbers in effect at the time the benchmark plan was enacted
to assess the benchmark plan, the difference is even more striking. Under those
figures, the new plan increases from 10 to 13 the number of districts with a
majority-black voting age population and increases from 8 to 13 the number of
districts with a black voting age population of between 30% and 50%. See Pl.
Exhs. 1C, 2C. Thus, the new plan creates 8 new districts—out of 56—where
black voters as a group can play a substantial or decisive role in the electoral
process. Indeed, under the census figures in use at the time Georgia enacted its
benchmark plan, the black voting age population in Districts 2, 12, and 26 does
not decrease to the extent indicated by the District Court. District 2 drops from
59.27% black voting age population to 50.31%. District 26 drops from 53.45%
black voting age population to 50.80%. And District 12 actually increases,
from 46.50% black voting age population to 50.66%. See Pl. Exhs. 1C, 2C.2
And regardless of any potential retrogression in some districts, § 5 permits
Georgia to offset the decline in those districts with an increase in the black
voting age population in other districts. The testimony from those who
designed the Senate plan confirms what the statistics suggest—that Georgia's
goal was to "unpack" the minority voters from a few districts to increase blacks'
effective exercise of the electoral franchise in more districts. See supra, at 469471.

58

Other evidence supports the implausibility of finding retrogression here. An
examination of black voters' opportunities to participate in the political process
shows, if anything, an increase in the effective exercise of the electoral
franchise. It certainly does not indicate retrogression. The 34 districts in the
proposed plan with a black voting age population of above 20% consist almost
entirely of districts that have an overall percentage of Democratic votes of
above 50%. See Pl. Exh. 2D. The one exception is proposed District 4, with a
black voting age population of 30.51% and an overall Democratic percentage of
48.86%. See ibid. These statistics make it more likely as a matter of fact that
black voters will constitute an effective voting bloc, even if they cannot always
elect the candidate of their choice. See Thornburg v. Gingles, 478 U. S., at 100
(O'CONNOR, J., concurring in judgment). These statistics also buttress the
testimony of the designers of the plan such as Senator Brown, who stated that
the goal of the plan was to maintain or increase black voting strength and
relatedly to increase the prospects of Democratic victory. See supra, at 469470.

59

The testimony of Congressman John Lewis is not so easily dismissed.
Congressman Lewis is not a member of the State Senate and thus has less at
stake personally in the outcome of this litigation. Congressman Lewis testified
that "giving real power to black voters comes from the kind of redistricting
efforts the State of Georgia has made," and that the Senate plan "will give real
meaning to voting for African Americans" because "you have a greater chance
of putting in office people that are going to be responsive." Pl. Exh. 21, at 2123. Section 5 gives States the flexibility to implement the type of plan that
Georgia has submitted for preclearance—a plan that increases the number of
districts with a majority-black voting age population, even if it means that in
some of those districts, minority voters will face a somewhat reduced
opportunity to elect a candidate of their choice. Cf. Thornburg v. Gingles,
supra, at 89 (O'CONNOR, J., concurring in judgment).

60

The dissent's analysis presumes that we are deciding that Georgia's Senate plan
is not retrogressive. See post, at 501-508. To the contrary, we hold only that the
District Court did not engage in the correct retrogression analysis because it
focused too heavily on the ability of the minority group to elect a candidate of
its choice in the majority-minority districts. While the District Court engaged in
a thorough analysis of the issue, we must remand the case for the District Court
to examine the facts using the standard that we announce today. We leave it for
the District Court to determine whether Georgia has indeed met its burden of
proof. The dissent justifies its conclusion here on the ground that the District
Court did not clearly err in its factual determination. But the dissent does not
appear to dispute that if the District Court's legal standard was incorrect, the
decision below should be vacated.

61

The purpose of the Voting Rights Act is to prevent discrimination in the
exercise of the electoral franchise and to foster our transformation to a society
that is no longer fixated on race. Cf. Johnson v. De Grandy, 512 U. S., at 1020;
Shaw v. Reno, 509 U. S., at 657. As Congressman Lewis stated: "I think that's
what the [civil rights] struggle was all about, to create what I like to call a truly
interracial democracy in the South. In the movement, we would call it creating
the beloved community, an all-inclusive community, where we would be able
to forget about race and color and see people as people, as human beings, just
as citizens." Pl. Exh. 21, at 14. While courts and the Department of Justice
should be vigilant in ensuring that States neither reduce the effective exercise of
the electoral franchise nor discriminate against minority voters, the Voting
Rights Act, as properly interpreted, should encourage the transition to a society
where race no longer matters: a society where integration and color-blindness
are not just qualities to be proud of, but are simple facts of life. See Shaw v.
Reno, supra, at 657.
IV

62

The District Court is in a better position to reweigh all the facts in the record in
the first instance in light of our explication of retrogression. The judgment of
the District Court for the District of Columbia, accordingly, is vacated, and the
case is remanded for further proceedings consistent with this opinion.

63

It is so ordered.

Notes:
*

1

A brief ofamicus curiae urging affirmance was filed for the Georgia
Coalition for the Peoples' Agenda by Laughlin McDonald, Neil Bradley,
Barbara R. Arnwine, Thomas J. Henderson, Anita Hodgkiss, Elaine R.
Jones, Norman J. Chachkin, and Todd A. Cox.
Georgia and the United States have submitted slightly different figures
regarding the black voting age population of each district. The differing
figures depend upon whether the total number of blacks includes those
people who self-identify as both black and a member of another minority
group, such as Hispanic. Georgia counts this group of people, while the
United States does not do so. Like the District Court, we consider all the
record information, "including total black population, black registration
numbers and both [black voting age population] numbers." 195 F. Supp.
2d 25, 79 (DC 2002). We focus in particular on Georgia's black voting age
population numbers in this case because all parties rely on them to some
extent and because Georgia used its own black voting age population
numbers when it enacted the Senate plan. Moreover, the United States
does not count all persons who identify themselves as black. It counts
those who say they are black and those who say that they are both black
and white, but it does not count those who say they are both black and a
member of another minority group. Using the United States' numbers may
have more relevance if the case involves a comparison of different
minority groups. CfJohnson v. De Grandy, 512 U. S. 997 (1994); Bush v.
Vera, 517 U. S. 952 (1996). Here, however, the case involves an
examination of only one minority group's effective exercise of the electoral
franchise. In such circumstances, we believe it is proper to look at all
individuals who identify themselves as black.

2

The dissent summarily rejects any inquiry into the benchmark plan using
the census numbers in effect at the time the redistricting plan was passed.
Seepost, at 506. Yet we think it is relevant to examine how the new plan
differs from the benchmark plan as originally enacted by the legislature.
The § 5 inquiry, after all, revolves around the change from the previous
plan. The 1990 census numbers are far from "irrelevant." Ibid. Rather,
examining the benchmark plan with the census numbers in effect at the
time the State enacted its plan comports with the one-person, one-vote
principle of Reynolds v. Sims, 377 U. S. 533 (1964), and its progeny.
When the decennial census numbers are released, States must redistrict to
account for any changes or shifts in population. But before the new
census, States operate under the legal fiction that even 10 years later, the
plans are constitutionally apportioned. After the new enumeration, no
districting plan is likely to be legally enforceable if challenged, given the
shifts and changes in a population over 10 years. And if the State has not
redistricted in response to the new census figures, a federal court will
ensure that the districts comply with the one-person, one-vote mandate
before the next election. See, e. g., Branch v. Smith, 538 U. S. 254 (2003);
Lawyer v. Department of Justice, 521 U. S. 567 (1997); Growe v. Emison,
507 U. S. 25 (1993).

64

JUSTICE KENNEDY, concurring.

65

As is evident from the Court's accurate description of the facts in this case, race
was a predominant factor in drawing the lines of Georgia's State Senate
redistricting map. If the Court's statement of facts had been written as the
preface to consideration of a challenge brought under the Equal Protection
Clause or under § 2 of the Voting Rights Act of 1965, a reader of the opinion
would have had sound reason to conclude that the challenge would succeed.
Race cannot be the predominant factor in redistricting under our decision in
Miller v. Johnson, 515 U. S. 900 (1995). Yet considerations of race that would
doom a redistricting plan under the Fourteenth Amendment or § 2 seem to be
what save it under § 5.

66

I agree that our decisions controlling the § 5 analysis require the Court's ruling
here. See, e. g., Reno v. Bossier Parish School Bd., 520 U. S. 471 (1997); Reno
v. Bossier Parish School Bd., 528 U. S. 320 (2000). The discord and
inconsistency between §§ 2 and 5 should be noted, however; and in a case
where that issue is raised, it should be confronted. There is a fundamental flaw,
I should think, in any scheme in which the Department of Justice is permitted or
directed to encourage or ratify a course of unconstitutional conduct in order to
find compliance with a statutory directive. This serious issue has not been
raised here, and, as already observed, the Court is accurate both in its summary
of the facts and in its application of the controlling precedents. With these
observations, I join the opinion of the Court.

67

JUSTICE THOMAS, concurring.

68

I continue to adhere to the views expressed in my opinion in Holder v. Hall,
512 U. S. 874, 891 (1994) (opinion concurring in judgment). I join the Court's
opinion because it is fully consistent with our § 5 precedents.

69

JUSTICE SOUTER, with whom JUSTICE STEVENS, JUSTICE GINSBURG,
and JUSTICE BREYER join, dissenting.

70

* I agree with the Court that reducing the number of majority-minority districts
within a State would not necessarily amount to retrogression barring
preclearance under § 5 of the Voting Rights Act of 1965. See ante, at 480-482.
The prudential objective of § 5 is hardly betrayed if a State can show that a new
districting plan shifts from supermajority districts, in which minorities can elect
their candidates of choice by their own voting power, to coalition districts, in
which minorities are in fact shown to have a similar opportunity when joined
by predictably supportive nonminority voters. Cf. Johnson v. De Grandy, 512
U. S. 997, 1020 (1994) (explaining in the context of § 2 that although "society's
racial and ethnic cleavages sometimes necessitate majority-minority districts to
ensure equal political and electoral opportunity, that should not obscure the fact
that there are communities in which minority citizens are able to form
coalitions with voters from other racial and ethnic groups, having no need to be
a majority within a single district in order to elect candidates of their choice").

71

Before a State shifts from majority-minority to coalition districts, however, the
State bears the burden of proving that nonminority voters will reliably vote
along with the minority. See, e. g., Reno v. Bossier Parish School Bd., 520 U.
S. 471, 478 (1997). It must show not merely that minority voters in new
districts may have some influence, but that minority voters will have effective
influence translatable into probable election results comparable to what they
enjoyed under the existing district scheme. And to demonstrate this, a State
must do more than produce reports of minority voting age percentages; it must
show that the probable voting behavior of nonminority voters will make
coalitions with minorities a real prospect. See, e. g., Pildes, Is Voting-Rights
Law Now at War With Itself? Social Science and Voting Rights in the 2000s,
80 N. C. L. Rev. 1517, 1539 (2002). If the State's evidence fails to convince a
factfinder that high racial polarization in voting is unlikely, or that high white
crossover voting is likely, or that other political and demographic facts point to
probable minority effectiveness, a reduction in supermajority districts must be
treated as potentially and fatally retrogressive, the burden of persuasion always
being on the State.

72

The District Court majority perfectly well understood all this and committed no
error. Error enters this case here in this Court, whose majority unmoors § 5
from any practical and administrable conception of minority influence that
would rule out retrogression in a transition from majority-minority districts, and
mistakes the significance of the evidence supporting the District Court's
decision.
II

73

The Court goes beyond recognizing the possibility of coalition districts as
nonretrogressive alternatives to those with majorities of minority voters when it
redefines effective voting power in § 5 analysis without the anchoring reference
to electing a candidate of choice. It does this by alternatively suggesting that a
potentially retrogressive redistricting plan could satisfy § 5 if a sufficient
number of so-called "influence districts," in addition to "coalitio[n] districts,"
were created, ante, at 483, 484, or if the new plan provided minority groups
with an opportunity to elect a particularly powerful candidate, ante, at 483-484.
On either alternative, the § 5 requirement that voting changes be
nonretrogressive is substantially diminished and left practically
unadministrable.

74

* The Court holds that a State can carry its burden to show a nonretrogressive
degree of minority "influence" by demonstrating that "`candidates elected
without decisive minority support would be willing to take the minority's
interests into account.'" Ante, at 482 (quoting Thornburg v. Gingles, 478 U. S.
30, 100 (1986) (O'CONNOR, J., concurring in judgment)). But this cannot be
right.

75

The history of § 5 demonstrates that it addresses changes in state law intended
to perpetuate the exclusion of minority voters from the exercise of political
power. When this Court held that a State must show that any change in voting
procedure is free of retrogression it meant that changes must not leave minority
voters with less chance to be effective in electing preferred candidates than they
were before the change. "[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." Beer v. United States, 425 U. S. 130, 141 (1976); see, e. g.,
id., at 140-141 ("Section 5 was intended `to insure that [the gains thus far
achieved in minority political participation] shall not be destroyed through new
[discriminatory] procedures and techniques'" (quoting S. Rep. No. 94-295, p.
19 (1975))). In addressing the burden to show no retrogression, therefore,
"influence" must mean an opportunity to exercise power effectively.

76

The Court, however, says that influence may be adequate to avoid retrogression
from majority-minority districts when it consists not of decisive minority
voting power but of sentiment on the part of politicians: influence may be
sufficient when it reflects a willingness on the part of politicians to consider the
interests of minority voters, even when they do not need the minority votes to
be elected. The Court holds, in other words, that there would be no
retrogression when the power of a voting majority of minority voters is
eliminated, so long as elected politicians can be expected to give some
consideration to minority interests.

77

The power to elect a candidate of choice has been forgotten; voting power has
been forgotten. It is very hard to see anything left of the standard of
nonretrogression, and it is no surprise that the Court's cited precedential support
for this reconception, see ante, at 482, consists of a footnote from a dissenting
opinion in Shaw v. Hunt, 517 U. S. 899 (1996), and footnote dictum in a case
from the Western District of Louisiana.

78

Indeed, to see the trouble ahead, one need only ask how on the Court's new
understanding, state legislators or federal preclearance reviewers under § 5 are
supposed to identify or measure the degree of influence necessary to avoid the
retrogression the Court nominally retains as the § 5 touchstone. Is the test
purely ad hominem, looking merely to the apparent sentiments of incumbents
who might run in the new districts? Would it be enough for a State to show that
an incumbent had previously promised to consider minority interests before
voting on legislative measures? Whatever one looks to, however, how does one
put a value on influence that falls short of decisive influence through coalition?
Nondecisive influence is worth less than majority-minority control, but how
much less? Would two influence districts offset the loss of one majorityminority district? Would it take three? Or four? The Court gives no guidance
for measuring influence that falls short of the voting strength of a coalition
member, let alone a majority of minority voters. Nor do I see how the Court
could possibly give any such guidance. The Court's "influence" is simply not
functional in the political and judicial worlds.
B

79

Identical problems of comparability and administrability count at least as much
against the Court's further gloss on nonretrogression, in its novel holding that a
State may trade off minority voters' ability to elect a candidate of their choice
against their ability to exert some undefined degree of influence over a
candidate likely to occupy a position of official legislative power. See ante, at
483-484. The Court implies that one majority-minority district in which
minority voters could elect a legislative leader could replace a larger number of
majority-minority districts with ordinary candidates, without retrogression of
overall minority voting strength. Under this approach to § 5, a State may value
minority votes in a district in which a potential committee chairman might be
elected differently from minority votes in a district with ordinary candidates.

80

It is impossible to believe that Congress could ever have imagined § 5
preclearance actually turning on any such distinctions. In any event, if the
Court is going to allow a State to weigh minority votes by the ambitiousness of
candidates the votes might be cast for, it is hard to see any stopping point. I
suppose the Court would not go so far as to give extra points to an incumbent
with the charisma to attract a legislative following, but would it value all
committee chairmen equally? (The committee chairmen certainly would not.)
And what about a legislator with a network of influence that has made him a
proven dealmaker? Thus, again, the problem of measurement: is a shift from 10
majority-minority districts to 8 offset by a good chance that 1 of the 8 may elect
a new Speaker of the House?

81

I do not fault the Court for having no answers to these questions, for there are
no answers of any use under § 5. The fault is more fundamental, and the very
fact that the Court's interpretation of nonretrogression under § 5 invites
unanswerable questions points to the error of a § 5 preclearance regime that
defies reviewable administration. We are left with little hope of determining
practically whether a districting shift to one party's overall political advantage
can be expected to offset a loss of majority-minority voting power in particular
districts; there will simply be greater opportunity to reduce minority voting
strength in the guise of obtaining party advantage.

82

One is left to ask who will suffer most from the Court's new and unquantifiable
standard. If it should turn out that an actual, serious burden of persuasion
remains on the States, States that rely on the new theory of influence should be
guaranteed losers: nonretrogression cannot be demonstrated by districts with
minority influence too amorphous for objective comparison. But that outcome
is unlikely, and if in subsequent cases the Court allows the State's burden to be
satisfied on the pretense that unquantifiable influence can be equated with
majority-minority power, § 5 will simply drop out as a safeguard against the
"unremitting and ingenious defiance of the Constitution" that required the
procedure of preclearance in the first place. South Carolina v. Katzenbach, 383
U. S. 301, 309 (1966).
III

83

The District Court never reached the question the Court addresses, of what kind
of influence districts (coalition or not) might demonstrate that a decrease in
majority-minority districts was not retrogressive. It did not reach this question
because it found that the State had not satisfied its burden of persuasion on an
issue that should be crucial on any administrable theory:1 the State had not
shown the possibility of actual coalitions in the affected districts that would
allow any retreat from majority-minority districts without a retrogressive effect.
This central evidentiary finding is invulnerable under the correct standard of
review.

84

This Court's review of the District Court's factual findings is for clear error.
See, e. g., Miller v. Johnson, 515 U. S. 900, 917 (1995); Pleasant Grove v.
United States, 479 U. S. 462, 469 (1987); McCain v. Lybrand, 465 U. S. 236,
258 (1984); City of Lockhart v. United States, 460 U. S. 125, 136 (1983). We
have no business disturbing the District Court's ruling "simply because we
would have decided the case differently," but only if based "on the entire
evidence, [we are] left with the definite and firm conviction that a mistake has
been committed." Easley v. Cromartie, 532 U. S. 234, 242 (2001) (internal
quotation marks omitted). It is not, then, up to us to "decide whether Georgia's
State Senate redistricting plan is retrogressive as compared to its previous,
benchmark districting plan." Ante, at 466. Our sole responsibility is to see
whether the District Court committed clear error in refusing to preclear the
plan. It did not.

85

* The District Court began with the acknowledgment (to which we would all
assent) that the simple fact of a decrease in black voting age population
(BVAP) in some districts is not alone dispositive about whether a proposed
plan is retrogressive: "`Unpacking' African American districts may have
positive or negative consequences for the statewide electoral strength of
African American voters. To the extent that voting patterns suggest that
minority voters are in a better position to join forces with other segments of the
population to elect minority preferred candidates, a decrease in a district's
BVAP may have little or no effect on minority voting strength." 195 F. Supp.
2d 25, 76 (DC 2002).

86

See id., at 78 ("[T]he Voting Rights Act allows states to adopt plans that move
minorities out of districts in which they formerly constituted a majority of the
voting population, provided that racial divisions have healed to the point that
numerical reductions will not necessarily translate into reductions in electoral
power"); id., at 84 ("[T]he mere fact that BVAP decreases in certain districts is
not enough to deny preclearance to a plan under Section 5").2

87

The District Court recognized that the key to understanding the impact of drops
in a district's BVAP on the minority group's "effective exercise of the electoral
franchise," Beer, 425 U. S., at 141, is the level of racial polarization. If racial
elements consistently vote in separate blocs, decreasing the proportion of black
voters will generally reduce the chance that the minority group's favored
candidate will be elected; whereas in districts with low racial bloc voting or
significant white crossover voting, a decrease in the black proportion may have
no effect at all on the minority's opportunity to elect their candidate of choice.
See, e. g., 195 F. Supp. 2d, at 84 ("[R]acial polarization is critically important
because its presence or absence in the Senate Districts challenged by the United
States goes a long way to determining whether or not the decreases in BVAP
and African American voter registration in those districts are likely to produce
retrogressive effects").

88

This indisputable recognition, that context determines the effect of decreasing
minority numbers for purposes of the § 5 enquiry, points to the nub of this case,
and the District Court's decision boils down to a judgment about what the
evidence showed about that context. The District Court found that the United
States had offered evidence of racial polarization in the contested districts,3 id.,
at 86, and it found that Georgia had failed to present anything relevant on that
issue. Georgia, the District Court said, had "provided the court with no
competent, comprehensive information regarding white crossover voting or
levels of polarization in individual districts across the State." Id., at 88. In
particular, the District Court found it "impossible to extrapolate" anything
about the level of racial polarization from the statistical submissions of
Georgia's lone expert witness. Id., at 85. And the panel majority took note that
Georgia's expert "admitted on cross-examination" that his evidence simply did
not address racial polarization: "the whole point of my analysis," the expert
stated, "is not to look at polarization per se. The question is not whether or not
blacks and whites in general vote for different candidates." Ibid. (internal
quotation marks omitted).

89

Accordingly, the District Court explained that Georgia's expert: "made no
attempt to address the central issue before the court: whether the State's
proposal is retrogressive. He failed even to identify the decreases in BVAP that
would occur under the proposed plan, and certainly did not identify
corresponding reductions in the electability of African American candidates of
choice. The paucity of information in [the expert's] report thus leaves us unable
to use his analysis to assess the expected change in African American voting
strength statewide that will be brought by the proposed Senate plan." Id., at 81.
B

90

How is it, then, that the majority of this Court speaks of "Georgia's evidence
that the Senate plan as a whole is not retrogressive," against which "the United
States did not introduce any evidence [in] rebut[tal]," ante, at 487? The answer
is that the Court is not engaging in review for clear error. Instead, it is
reweighing evidence de novo, discovering what it thinks the District Court
overlooked, and drawing evidentiary conclusions the District Court supposedly
did not see. The Court is mistaken on all points.

91

* Implicitly recognizing that evidence of voting behavior by majority voters is
crucial to any showing of nonretrogression when minority numbers drop under
a proposed plan, the Court tries to find evidence to fill the record's gap. It says,
for example, that "Georgia introduced evidence showing that approximately
one-third of white voters would support a black candidate in [the contested]
districts." Ante, at 486. In support of this claim, however, the majority focuses
on testimony offered by Georgia's expert relating to crossover voting in the preexisting rather than proposed districts. 195 F. Supp. 2d, at 66. The District
Court specifically noted that the expert did not calculate crossover voting under
the proposed plan. Id., at 65, n. 31 ("The court also emphasizes that Epstein did
not attempt to rely on the table's calculations to demonstrate voting patterns in
the districts, and calculated crossover in the existing, and not the proposed,
Senate districts"). Indeed, in relying on this evidence the majority attributes a
significance to it that Georgia's own expert disclaimed, as the District Court
pointed out. See id., at 85 ("[I]t is impossible to extrapolate these voting
patterns from Epstein's database. As Epstein admitted on cross-examination:
the whole point of my analysis is not to look at polarization per se. The question
is not whether or not blacks and whites in general vote for different candidates"
(internal quotation marks omitted)).
2

92

In another effort to revise the record, the Court faults the District Court,
alleging that it "focused too narrowly on proposed Senate Districts 2, 12, and
26." Ante, at 485. In fact, however, it is Georgia that asked the District Court to
consider only the contested districts, and the District Court explicitly refused to
limit its review in any such fashion: "we reject the State's argument that this
court's review is limited only to those districts challenged by the United States,
and should not encompass the redistricting plans in their entirety. . . . [T]he
court's review necessarily extends to the entire proposed plan." 195 F. Supp.
2d, at 73. The District Court explained that it "is vested with the final authority
to approve or disapprove the proposed change as a whole." Ibid. "The question
before us is whether the proposed Senate plan as a whole, has the `purpose or
effect of denying or abridging the right to vote on account of race or color.'" Id.,
at 103 (Oberdorfer, J., concurring in part and dissenting in part) (quoting 42 U.
S. C. § 1973c). Though the majority asserts that "[t]he District Court ignored
the evidence of numerous other districts showing an increase in black voting
age population," ante, at 486, the District Court, in fact, specifically considered
the parties' dispute over the statewide impact of the change in black voting age
population. See, e. g., 195 F. Supp. 2d, at 93 ("The number of Senate Districts
with majorities of BVAP would, according to Georgia's calculations, increase
from twelve to thirteen; according to the Attorney General's interpretation of
the census data, the number would decrease from twelve to eleven").
3

93

In a further try to improve the record, the Court focuses on the testimony of
certain lay witnesses, politicians presented by the State to support its claim that
the Senate plan is not retrogressive. Georgia, indeed, relied heavily on the near
unanimity of minority legislators' support for the plan. But the District Court
did not overlook this evidence; it simply found it inadequate to carry the State's
burden of showing nonretrogression. The District Court majority explained that
the "legislators' support is, in the end, far more probative of a lack of
retrogressive purpose than of an absence of retrogressive effect." Id., at 89
(emphasis in original). As against the politicians' testimony, the District Court
had contrary "credible," id., at 88, evidence of retrogressive effect. This
evidence was the testimony of the expert witness presented by the United
States, which "suggests the existence of highly racially polarized voting in the
proposed districts," ibid., evidence of retrogressive effect to which Georgia
offered "no competent" response, ibid. The District Court was clearly within
bounds in finding that (1) Georgia's proposed plan decreased BVAP in the
relevant districts, (2) the United States offered evidence of significant racial
polarization in those districts, and (3) Georgia offered no adequate response to
this evidence.

94

The reasonableness of the District Court's treatment of the evidence is
underscored in its concluding reflection that it was possible Georgia could have
shown the plan to be nonretrogressive, but the evidence the State had actually
offered simply failed to do that. "There are, without doubt, numerous other
ways, given the limited evidence of racially polarized voting in State Senate
and local elections, that Georgia could have met its burden of proof in this case.
Yet, the court is limited to reviewing the evidence presented by the parties, and
is compelled to hold that the State has not met its burden." Id., at 94. "[T]he
lack of positive racial polarization data was the gap at the center of the State's
case [and] the evidence presented by [the] estimable [legislators] does not come
close to filling that void." Id., at 100.

95

As must be plain, in overturning the District Court's thoughtful consideration of
the evidence before it, the majority of this Court is simply rejecting the District
Court's evidentiary finding in favor of its own. It is reweighing testimony and
making judgments about the competence, interest, and character of witnesses.
The Court is not conducting clear error review.
4

96

Next, the Court attempts to fill the holes in the State's evidence on retrogression
by drawing inferences favorable to the State from undisputed statistics. See
ante, at 487-489. This exercise comes no closer to demonstrating clear error
than the others considered so far.

97

In the first place, the District Court has already explained the futility of the
Court's effort. Knowing whether the number of majority BVAP districts
increases, decreases, or stays the same under a proposed plan does not alone
allow any firm conclusion that minorities will have a better, or worse, or
unvarying opportunity to elect their candidates of choice. Any such inference
must depend not only on trends in BVAP levels, but on evidence of likely voter
turnout among minority and majority groups, patterns of racial bloc voting,
likelihood of white crossover voting, and so on.4 Indeed, the core holding of
the Court today, with which I agree, that nonretrogression does not necessarily
require maintenance of existing supermajority minority districts, turns on this
very point; comparing the number of majority-minority districts under existing
and proposed plans does not alone reliably indicate whether the new plan is
retrogressive.

98

Lack of contextual evidence is not, however, the only flaw in the Court's
numerical arguments. Thus, in its first example, ante, at 487, the Court points
out that under the proposed plan the number of districts with majority BVAP
increases by one over the existing plan,5 but the Court does not mention that the
number of districts with BVAP levels over 55% decreases by four. See Record,
Doc. No. 148, Pl. Exhs. 1D, 2C. Similarly, the Court points to an increase of
two in districts with BVAP in the 30% to 50% range, along with a further
increase of two in the 25% to 30% range. Ante, at 487. It fails to mention,
however, that Georgia's own expert argued that 44.3% was the critical
threshold for BVAP levels, 195 F. Supp. 2d, at 107, and the data on which the
Court relies shows the number of districts with BVAP over 40% actually
decreasing by one, see Record, Doc. No. 148, Pl. Exhs. 1D, 2C. My point is not
that these figures conclusively demonstrate retrogression; I mean to say only
that percentages tell us nothing in isolation, and that without contextual
evidence the raw facts about population levels fail to get close to indicating that
the State carried its burden to show no retrogression. They do not come close to
showing clear error.
5

99

Nor could error, clear or otherwise, be shown by the Court's comparison of the
proposed plan with the description of the State and its districts provided by the
1990 census. Ante, at 487-489. The 1990 census is irrelevant. We have the
2000 census, and precedent confirms in no uncertain terms that the issue for § 5
purposes is not whether Georgia's proposed plan would have had a
retrogressive effect 13 years ago: the question is whether the proposed plan
would be retrogressive now. See, e. g., Reno v. Bossier Parish School Bd., 528
U. S. 320, 334 (2000) (Under § 5 "the baseline is the status quo that is proposed
to be changed"); Holder v. Hall, 512 U. S. 874, 883 (1994) (plurality opinion)
(Under § 5, "[t]he baseline for comparison is present by definition; it is the
existing status"); City of Lockhart v. United States, 460 U. S., at 132 ("The
proper comparison is between the new system and the system actually in
effect"); Cf. 28 CFR § 51.54(b)(2) (2002) (when determining if a change is
retrogressive under § 5 "[t]he Attorney General will make the comparison
based on the conditions existing at the time of the submission"). The Court's
assumption that a proper § 5 analysis may proceed on the basis of obsolete data
from a superseded census is thus as puzzling as it is unprecedented. It is also an
invitation to perverse results, for if a State could carry its burden under § 5
merely by showing no retrogression from the state of affairs 13 years ago, it
could demand preclearance for a plan flatly diminishing minority voting
strength under § 5.6
6

100 The Court's final effort to demonstrate that Georgia's plan is nonretrogressive
focuses on statistics about Georgia Democrats. Ante, at 489. The Court explains
that almost all the districts in the proposed plan with a BVAP above 20% have
a likely overall Democratic performance above 50%, and from this the Court
concludes that "[t]hese statistics make it more likely as a matter of fact that
black voters will constitute an effective voting bloc." Ibid. But this is not so.
The degree to which the statistics could support any judgment about the effect
of black voting in State Senate elections is doubtful, and even on the Court's
assumptions the statistics show no clear error by the District Court.
101 As for doubt about what the numbers have to do with State Senate elections, it
is enough to know that the majority's figures are taken from a table describing
Democratic voting in statewide, not local, elections. The Court offers no basis
for assuming that voting for Democratic candidates in statewide elections
correlates with voting behavior in local elections,7 and in fact, the record points
to different, not identical, voting patterns. The District Court specifically noted
that the United States's expert testified that "African American candidates
consistently received less crossover voting in local election[s] than in statewide
elections," 195 F. Supp. 2d, at 71, and the court concluded that there is
"compelling evidence that racial voting patterns in State Senate races can be
expected to differ from racial voting patterns in statewide races," id., at 85-86.
102 But even if we assume the data on Democratic voting statewide can tell us
something useful about Democratic voting in State Senate districts, the Court's
argument does not hold up. It proceeds from the faulty premise that even with a
low BVAP, if enough of the district is Democratic, the minority Democrats will
necessarily have an effect on which candidates are elected. But if the proportion
of nonminority Democrats is high enough, the minority group may well have
no impact whatever on which Democratic candidate is selected to run and
ultimately elected. In districts, say, with 20% minority voters (all of them
Democrats) and 51% nonminority Democrats, the Democratic candidate has no
obvious need to take the interests of the minority group into account; if
everybody votes (or the proportion of stay-at-homes is constant throughout the
electorate) the Democrat can win the general election without minority support.
Even in a situation where a Democratic candidate needs a substantial fraction of
minority voters to win (say the population is 25% minority and 30%
nonminority Democrats), the Democratic candidate may still be able to ignore
minority interests if there is such ideological polarization as between the major
parties that the Republican candidate is entirely unresponsive to minority
interests. In that situation, a minority bloc would presumably still prefer the
Democrat, who would not need to adjust any political positions to get the
minority vote.

103 All of this reasoning, of course, carries a whiff of the lamp. I do not know how
Georgia's voters will actually behave if the percentage of something is x, or
maybe y, any more than the Court does. We are arguing about numerical
abstractions, and my sole point is that the Court's abstract arguments do not
hold up. Much less do they prove the District Court wrong.
IV
104 Section 5, after all, was not enacted to address abstractions. It was "to shift the
advantage of time and inertia from the perpetrators of the evil to its victim,"
Beer, 425 U. S., at 140 (internal quotation marks omitted) (quoting H. R. Rep.
No. 94-196, pp. 57-58 (1970)), and the State of Georgia was made subject to
the requirement of preclearance because Congress "had reason to suppose" it
might "try . . . to evade the remedies for voting discrimination" and thus
justifies § 5's "uncommon exercise of congressional power." South Carolina v.
Katzenbach, 383 U. S., at 334-335. Section 5 can only be addressed, and the
burden to prove no retrogression can only be carried, with evidence of how
particular populations of voters will probably act in the circumstances in which
they live. The State has the burden to convince on the basis of such evidence.
The District Court considered such evidence: it received testimony, decided
what it was worth, and concluded as the trier of fact that the State had failed to
carry its burden. There was no error, and I respectfully dissent.

Notes:
1

The District Court correctly recognized that the State bears the burden of
proof in establishing that its proposed redistricting plan satisfied the
standards of § 5. See,e. g., 195 F. Supp. 2d 25, 86 (DC 2002) ("We look to
the State to explain why retrogression is not present"); see also Reno v.
Bossier Parish School Bd., 520 U. S. 471, 478 (1997) (covered
jurisdiction "bears the burden of proving that the change does not have the
purpose and will not have the effect of denying or abridging the right to
vote on account of race or color" (internal quotation marks omitted)); id.,
at 480 (Section 5 "imposes upon a covered jurisdiction the difficult burden
of proving the absence of discriminatory purpose and effect");Reno v.
Bossier Parish School Bd., 528 U. S. 320, 332 (2000) ("In the specific
context of § 5 . . . the covered jurisdiction has the burden of persuasion");
cf. Beer v. United States, 425 U. S. 130, 140 (1976) (Congress in passing
§ 5 sought to "freez[e] election procedures in the covered areas unless the
changes can be shown to be nondiscriminatory" (internal quotation marks
omitted)).

2

3

4

5

6

7

Indeed, the other plans approved by the District Court, Georgia's State
House plan, 195 F. Supp. 2d, at 95, congressional plan,ibid., and the
interim plan approved for the State Senate, 204 F. Supp. 2d 4, 7 (DC
2002), all included decreases in BVAP in particular districts.
The majority cites the District Court's comment that "`the United States'
evidence was extremely limited in scope—focusing only on three
contested districts in the State Senate plan.'"Ante, at 474 (quoting 195 F.
Supp. 2d, at 37). The District Court correctly did not require the United
States to prove that the plan was retrogressive. As the District Court
explained: "[u]ltimately, the burden of proof in this matter lies with the
State. We look to the State to explain why retrogression is not present, and
to prove the absence of racially polarized voting that might diminish
African American voting strength in light of several districts' decreased
BVAPs." Id., at 86.
The fact that the Court premises its analysis on BVAP alone is ironic
given that the Court, incorrectly, chastises the District Court for
committing the very error the Court now engages in, "fail[ing] to consider
all the relevant factors."Ante, at 485.
Though the Court does not acknowledge it in its discussion of why
"Georgia likely met its burden,"ante, at 487, even this claim was disputed.
As the District Court explained: "[t]he number of Senate Districts with
majorities of BVAP would, according to Georgia's calculations, increase
from twelve to thirteen; according to the Attorney General's interpretation
of the census data, the number would decrease from twelve to eleven."
195 F. Supp. 2d, at 93.
For example, if a covered jurisdiction had two majority-minority districts
in 1990, but rapidly changing demography had produced two more during
the ensuing decade, a new redistricting plan, setting the number of
majority-minority districts at three would conclusively rule out
retrogression on the Court's calculus. This would be the case even when
voting behavior showed that nothing short of four majority-minority
districts would preserve the status quo as of 2000
Even if the majority wanted to rely on these figures to make a claim about
Democratic voting in statewide elections, the predictors' significance is
utterly unclear. The majority pulls its figures from an exhibit titled,
"Political Data Report," and a column labeled, "%OVER DEMVOTES,"
Pl. Exh. 2D. Seeante, at 489. The document provides no information
regarding whether the numbers in the column reflect an average of past
performance, a prediction for future performance, or something else
altogether.