521 U.S. 74 (1997), argued 9 Dec. 1996, decided 19 June 1997 by vote of 5 to 4; Kennedy for the Court, Breyer in dissent. Following the 1990 census, the Supreme Court was asked repeatedly to assess the constitutionality of so-called majority-minority legislative districts in the South. These efforts produced a mixed bag of constitutional results, with the justices placing important limitations on the use of race to gerrymander districts that would produce a majority of African-American voters. The states had taken these actions in an effort to comply with the Voting Rights Act of 1965 and its subsequent amendments.
The 1990 census revealed that population growth in Georgia entitled the state to one additional congressional district. The legislature the following year redrew its district lines and created not one but two majority African-American districts, adding the second in response to demands by the United States Department of Justice (DOJ). The DOJ, however, acting under the authority of the Voting Rights Act, refused to approve even this plan and placed additional pressure on the legislature to create a third majority African-American district, a demand to which the legislature acceded in 1992. White voters in one of these new districts, the Eleventh, immediately filed suit claiming that the new plan was racial gerrymandering in violation of the Equal Protection Clause of the Fourteenth Amendment. The Supreme Court in Miller v. Johnson (1995) agreed and threw the plan out as unconstitutional because it relied on race as a driving factor.
The federal district court in Georgia overseeing the case then waited for the legislature to act, but the legislators deadlocked and the court was left to perform the task of drawing new district lines. The Supreme Court's precedents provided that when judges redistrict they should give special attention to the policies followed by the legislature. Given the fact that the legislature had created two African-American districts in 1991, it followed that the district court would be expected to approve the same number.
After holding hearings the district court created only one African-American district. The judge argued that in order to establish a second majority-minority district he would have to use race as a predominant factor, a practice that the Rehnquist Court had clearly rejected. The Department of Justice and African-American voters led by Lucious Abrams filed suit claiming that the district court should have retained at least the two African-American districts agreed upon by the legislature in 1991.
The Supreme Court in a relatively brief opinion upheld the actions of the district court and sidestepped without overturning its previous precedents. Justice Anthony Kennedy's opinion found that the original 1991 plan, although drafted by the legislature, was itself illegitimate because it resulted from steady Department of Justice pressure to use race. Therefore, the district court was not required to defer to the legislature's decision. Kennedy also rejected arguments by the plaintiffs that the failure to create a second African-American district was a violation of the Voting Rights Act. To make his point, Kennedy observed that the 1996 victories of Representatives Cynthia A. McKinney and Sanford D. Bishop, Jr., both incumbent African-American Democrats who won reelection in new white districts, argued against DOJ's approach. White voters, it turned out, would select African-American candidates.