GEORGIA v. ASHCROFT, ATTORNEY GENERAL, et al.

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GEORGIA v. ASHCROFT, ATTORNEY GENERAL, et al.
appeal from the united states district court for the
district of columbia
No. 02–182. 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 popula-
tion 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 dis-
tricts. 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 tes-
tified he believed that as a district’s black voting age population in-
creased 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 dis-
tricts and increase the number of Democratic Senate seats, but also to
increase the number of so-called “influence” districts, where black vot-
ers 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 cre-
ated 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

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462 GEORGIA v. ASHCROFT
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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 retro-
gression in the position of racial minorities with respect to their effec-
tive 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, Geor-
gia submitted detailed evidence documenting, among other things, the
total population, total black population, black voting age population, per-
centage of black registered voters, and the overall percentage of Demo-
cratic votes in each district; evidence about how each of these statistics
compared to the benchmark districts; testimony from numerous partici-
pants in the plan’s enactment that it was designed to increase black
voting strength throughout the State as well as to help ensure a contin-
ued 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 evi-
dence 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 re-
port 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 discre-
tion 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 deci-
sion to object belongs only to the Attorney General, is distinguished
because it concerned the administrative, not the judicial, preclearance

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process. Morris itself recognized the difference between the two. See
id., at 503–507. 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 retro-
gression 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 rea-
son to deny § 5 preclearance, because that would inevitably make § 5
compliance contingent on § 2 compliance and thereby replace § 5 retro-
gression 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 exam-
ined 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 compara-
tive 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 88–89 (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 partici-
pate 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

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decisive, role in the electoral process, cf., e. g., Johnson, supra, at 1007.
In assessing these influence districts’ comparative weight, it is impor-
tant 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 mi-
nority representatives in order to achieve greater overall representa-
tion 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 John-
son, supra, at 1020. Maintaining or increasing legislative positions of
power for minority voters’ representatives of choice, while not disposi-
tive 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 state-
wide 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. Sec-
ond, the court did not consider any factor beyond black voters’ compara-
tive 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 affirma-
tively decided that the best way to maximize black voting strength was
to adopt a plan that “unpacked” the high concentration of minority vot-
ers 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, Geor-
gia 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 dis-
tricts 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

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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 inter-
preted, 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.
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.
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.
E. Marshall Braden argued the cause for appellee interve-
nors. With him on the brief were Amy M. Henson, Frank
B. Strickland, and Anne W. Lewis.*
Justice O’Connor delivered the opinion of the Court.
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, prac-
*A brief of amicus 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.

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tice, 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 de-
pends on whether the change “would lead to a retrogression
in the position of racial minorities with respect to their effec-
tive 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 retro-
gressive as compared to its previous, benchmark districting
plan.
I
A
Over the past decade, the propriety of Georgia’s state and
congressional districts has been the subject of repeated liti-
gation. 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 Depart-
ment 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

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Georgia’s third redistricting plan, approving it in the spring
of 1992. See id., at 1537.
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 con-
gressional plan enacted in the end was required in order to
obtain preclearance,” this justification did not permit Geor-
gia 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 unconstitu-
tional in Miller v. Johnson. Johnson v. Miller, 929 F. Supp.,
at 1533, n. 8 (internal quotation marks omitted); see also id.,
at 1536.
Georgia recognized that after Miller v. Johnson, its legis-
lative districts were unconstitutional under the Equal Pro-
tection Clause. See 929 F. Supp., at 1533, 1540. Accord-
ingly, 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 retro-
gressed from the 1992 plan and that Miller v. Johnson con-
cerned only Georgia’s congressional districts, not Georgia’s
State Senate districts. See 929 F. Supp., at 1540–1541.
Private litigants subsequently brought an action challeng-
ing 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 sec-

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tion 5 preclearance process . . . when the Georgia redistrict-
ing 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. John-
son, we specifically disapproved of the Department of Jus-
tice’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 stat-
ute beyond what Congress intended and we have upheld.”
Id., at 925.
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.
Under court direction, Georgia and the Department of Jus-
tice 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.

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All parties here concede that the 1997 plan is the bench-
mark 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 (herein-
after Pl. Exh.). The 2000 census revealed that these num-
bers had increased so that 13 districts had a black population
of at least 50%, with the black voting age population exceed-
ing 50% in 12 of those districts. See 195 F. Supp. 2d 25, 39
(DC 2002).
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 repre-
sentatives 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.
The Vice Chairman of the Senate Reapportionment Com-
mittee, 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 neces-
sary, 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 Walk-
er was the majority leader of the Senate. Senator Walker

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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 politi-
cal 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.
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 popu-
lation. But if you put people together on voting precincts it
brings people together.” Pl. Exh. 24, at 19.
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 dis-
tricts. 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 popu-
lation 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

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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.
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 Repre-
sentatives 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
Pursuant to § 5 of the Voting Rights Act, a covered juris-
diction like Georgia has the option of either seeking adminis-
trative 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.
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 retrogres-

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sive either in intent or in effect. It submitted detailed evi-
dence 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 per-
centage 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).
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 rep-
resents 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-African-American voters have equal chances of electing
their preferred candidate when the black voting age popula-
tion of a district is at 44.3%. Finally, in response to objec-
tions 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 interve-
nors challenged—Districts 15 and 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 unlaw-
fully 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

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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 lim-
ited 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 vari-
ous witnesses, including lay witnesses living in the three dis-
tricts, 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
1 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 num-
bers 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. Cf. Johnson v. De Grandy, 512 U. S. 997 (1994); Bush v.
Vera, 517 U. S. 952 (1996). Here, however, the case involves an examina-
tion of only one minority group’s effective exercise of the electoral fran-
chise. In such circumstances, we believe it is proper to look at all individ-
uals who identify themselves as black.

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for the plan but questioned how the plan would affect black
voters. See Vols. 25–27 Record, Doc. No. 177, United States
Exhs. 707–736 (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.
Pursuant to Federal Rule of Civil Procedure 24, the Dis-
trict Court also permitted four African-American citizens of
Georgia to intervene. The intervenors identified two other
districts—Districts 15 and 22—where they alleged retro-
gression had occurred. The intervenors “present[ed] little
evidence other than proposed alternative plans and an ex-
pert report critiquing the State’s expert report.” 195 F.
Supp. 2d, at 37.
A three-judge panel of the District Court held that Geor-
gia’s State Senate apportionment violated § 5, and was there-
fore not entitled to preclearance. See id., at 97. Judge Sul-
livan, 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 retro-
gressive effect on African American voters” effective exer-
cise 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.

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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 preserv-
ing 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.
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 mi-
norities have a fair or reasonable opportunity to elect candi-
dates of choice is entitled to preclearance, or whether every
district must remain at or improve on the benchmark proba-
bility of victory, even if doing so maintains a minority super-
majority far in excess of the level needed for effective exer-
cise of [the] electoral franchise.” Id., at 117.
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 propri-
ety of the District Court’s preclearance of the Senate plan as
amended. Georgia asserts that it will use the plan as origi-
nally enacted if it receives preclearance.
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.

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II
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 inter-
vene 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 Geor-
gia 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.
We do not think Georgia’s argument is moot. The inter-
venors 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.
The District Court properly found that Federal Rule of
Civil Procedure 24 governs intervention in this case. Sec-
tion 5 permits a State to bring “an action in the United
States District Court for the District of Columbia for a de-
claratory 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.”
To support its argument, Georgia relies on Morris v. Gres-
sette, 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

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reviewable. See id., at 504–505. But Morris concerned
the administrative preclearance process, not the judicial pre-
clearance process. Morris itself recognized the difference
between administrative preclearance and judicial preclear-
ance. See id., at 503–507.
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
A
Section 5 of the Voting Rights Act “has a limited sub-
stantive goal: “ ‘to insure that no voting-procedure changes
would be made that would lead to a retrogression in the posi-
tion of racial minorities with respect to their effective exer-
cise 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 enti-
tled 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 nonretro-
gressive 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 ab-
sence of backsliding.” Id., at 335.
Georgia argues that a plan should be precleared under § 5
if the plan would satisfy § 2 of the Voting Rights Act of 1965,

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42 U. S. C. § 1973. We have, however, “consistently under-
stood” § 2 to “combat different evils and, accordingly, to im-
pose very different duties upon the States.” Reno v. Bos-
sier 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., concur-
ring 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).
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.
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 retro-
gression standard. Georgia’s argument, like the argument

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in Bossier Parish I, would “shift the focus of § 5 from nonret-
rogression to vote dilution, and [would] change the § 5 bench-
mark 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
Georgia argues that even if compliance with § 2 does not
automatically result in preclearance under § 5, its State Sen-
ate plan should be precleared because it does not lead to
“a retrogression in the position of racial minorities with re-
spect to their effective exercise of the electoral franchise.”
Beer v. United States, supra, at 141. See, e. g., Brief for Ap-
pellant 32, 36.
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 Dis-
trict 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 fran-
chise in one or two districts may be sufficient to show a viola-
tion of § 5, it is only sufficient if the covered jurisdiction can-
not show that the gains in the plan as a whole offset the loss
in a particular district.
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 par-
ticipate 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

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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 retro-
gresses from the benchmark. Johnson v. De Grandy, supra,
at 1020–1021.
In assessing the totality of the circumstances, a court
should not focus solely on the comparative ability of a minor-
ity 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.
The ability of minority voters to elect a candidate of their
choice is important but often complex in practice to deter-
mine. In order to maximize the electoral success of a minor-
ity group, a State may choose to create a certain number of
“safe” districts, in which it is highly likely that minority vot-
ers will be able to elect the candidate of their choice. See
Thornburg v. Gingles, 478 U. S., at 48–49; 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’Con-
nor, 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).
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 elec-
toral 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

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majority-minority districts may virtually guarantee the elec-
tion of a minority group’s preferred candidate in those dis-
tricts. 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 representa-
tives of choice are more likely to mirror the race of the ma-
jority of voters in that district, the representation may be
limited to fewer areas. See H. Pitkin, The Concept of Rep-
resentation 60–91 (1967).
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 can-
didate 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 minor-
ity group’s preferred candidate may lose. Yet as we stated
in Johnson v. De Grandy, supra, at 1020:
“[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 com-
mon political ground, the virtue of which is not to be
slighted in applying a statute meant to hasten the wan-
ing of racism in American politics.”

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Section 5 gives States the flexibility to choose one theory of
effective representation over the other.
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 polit-
ical process is not limited to winning elections.’ ” Thorn-
burg 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.
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 mi-
nority support would be willing to take the minority’s inter-
ests 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 African-American Rep-
resentation: A Critique of “Do Majority-Minority Districts
Maximize Substantive Black Representation in Congress?”
93 Am. Pol. Sci. Rev. 183, 185 (1999) (noting that racial redis-
tricting in the early 1990’s, which created more majority-
minority districts, made Congress “less likely to adopt
initiatives supported by blacks”); Cameron, Epstein, &

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O’Halloran, Do Majority-Minority Districts Maximize Sub-
stantive Black Representation in Congress? 90 Am. Pol.
Sci. Rev. 794, 808 (1996) (concluding that the “[d]istricting
schemes that maximize the number of minority representa-
tives do not necessarily maximize substantive minority rep-
resentation”); 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).
Section 5 leaves room for States to use these types of in-
fluence and coalitional districts. Indeed, the State’s choice
ultimately may rest on a political choice of whether substan-
tive 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 mi-
nority 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.
In addition to influence districts, one other method of as-
sessing the minority group’s opportunity to participate in the
political process is to examine the comparative position of
legislative leadership, influence, and power for representa-
tives of the benchmark majority-minority districts. A legis-
lator, 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 pur-
pose 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

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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.
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 assess-
ing retrogressive effect. See 195 F. Supp. 2d, at 89; see also
post, at 503 (Souter, J., dissenting). But we think this evi-
dence is also relevant for retrogressive effect. As the dis-
sent 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 en-
sure continued minority participation in the political process
have some knowledge about how “voters will probably act”
and whether the proposed change will decrease minority vot-
ers’ effective exercise of the electoral franchise.
The dissent maintains that standards for determining non-
retrogression under § 5 that we announce today create a situ-
ation 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 inte-
gral 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 coali-
tional districts is relevant to the § 5 inquiry. See post, at
492, 504. Yet assessing whether a plan with coalitional dis-
tricts is retrogressive is just as fact-intensive as whether a
plan with both influence and coalitional districts is retro-
gressive. 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 retro-
gression under § 5. See Johnson v. De Grandy, supra, at

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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 dis-
trict. 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).
The dissent nevertheless asserts that it “cannot be right”
that the § 5 inquiry goes beyond assessing whether a minor-
ity 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 op-
portunities minority voters enjoy to participate in the politi-
cal 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
The District Court failed to consider all the relevant fac-
tors when it examined whether Georgia’s Senate plan re-
sulted 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 in-
creases 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-

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minority districts to elect a candidate of their choice. In
doing so, it paid inadequate attention to the support of leg-
islators representing the benchmark majority-minority dis-
tricts and the maintenance of the legislative influence of
those representatives.
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 Dis-
trict 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 “un-
packed” 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 re-
ductions 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 ev-
idence 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.

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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 diffi-
cult 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 Geor-
gia’s evidence that the increase in black voting age popula-
tion 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.
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 dis-
tricts 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 dis-
tricts 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.
Using the census numbers in effect at the time the bench-
mark 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 popula-
tion of between 30% and 50%. See Pl. Exhs. 1C, 2C. Thus,

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488 GEORGIA v. ASHCROFT
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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 pop-
ulation 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 popu-
lation in other districts. The testimony from those who de-
signed the Senate plan confirms what the statistics sug-
gest—that Georgia’s goal was to “unpack” the minority
voters from a few districts to increase blacks’ effective exer-
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. See post, 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 prog-
eny. When the decennial census numbers are released, States must redis-
trict 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 man-
date 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).

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Opinion of the Court
cise of the electoral franchise in more districts. See supra,
at 469–471.
Other evidence supports the implausibility of finding ret-
rogression here. An examination of black voters’ opportuni-
ties to participate in the political process shows, if anything,
an increase in the effective exercise of the electoral fran-
chise. It certainly does not indicate retrogression. The 34
districts in the proposed plan with a black voting age popula-
tion 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 Dis-
trict 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., con-
curring in judgment). These statistics also buttress the tes-
timony of the designers of the plan such as Senator Brown,
who stated that the goal of the plan was to maintain or in-
crease black voting strength and relatedly to increase the
prospects of Democratic victory. See supra, at 469–470.
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 21–23. 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

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490 GEORGIA v. ASHCROFT
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somewhat reduced opportunity to elect a candidate of their
choice. Cf. Thornburg v. Gingles, supra, at 89 (O’Connor,
J., concurring in judgment).
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 dis-
tricts. While the District Court engaged in a thorough
analysis of the issue, we must remand the case for the Dis-
trict Court to examine the facts using the standard that we
announce today. We leave it for the District Court to deter-
mine 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 determi-
nation. But the dissent does not appear to dispute that if
the District Court’s legal standard was incorrect, the deci-
sion below should be vacated.
The purpose of the Voting Rights Act is to prevent dis-
crimination in the exercise of the electoral franchise and to
foster our transformation to a society that is no longer fix-
ated 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 democ-
racy in the South. In the movement, we would call it cre-
ating 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

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491 Cite as: 539 U. S. 461 (2003)
Kennedy, J., concurring
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
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.
It is so ordered.
Justice Kennedy, concurring.
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 Pro-
tection Clause or under § 2 of the Voting Rights Act of 1965,
a reader of the opinion would have had sound reason to con-
clude 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 Four-
teenth Amendment or § 2 seem to be what save it under § 5.
I agree that our decisions controlling the § 5 analysis re-
quire the Court’s ruling here. See, e. g., Reno v. Bossier
Parish School Bd., 520 U. S. 471 (1997); Reno v. Bossier Par-
ish School Bd., 528 U. S. 320 (2000). The discord and incon-
sistency 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 ob-

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492 GEORGIA v. ASHCROFT
Souter, J., dissenting
served, 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.
Justice Thomas, concurring.
I continue to adhere to the views expressed in my opinion
in Holder v. Hall, 512 U. S. 874, 891 (1994) (opinion concur-
ring in judgment). I join the Court’s opinion because it is
fully consistent with our § 5 precedents.
Justice Souter, with whom Justice Stevens, Justice
Ginsburg, and Justice Breyer join, dissenting.
I
I agree with the Court that reducing the number of
majority-minority districts within a State would not neces-
sarily 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 supermajor-
ity 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 opportu-
nity when joined by predictably supportive nonminority vot-
ers. Cf. Johnson v. De Grandy, 512 U. S. 997, 1020 (1994)
(explaining in the context of § 2 that although “society’s ra-
cial and ethnic cleavages sometimes necessitate majority-
minority districts to ensure equal political and electoral op-
portunity, that should not obscure the fact that there are
communities in which minority citizens are able to form co-
alitions with voters from other racial and ethnic groups, hav-
ing no need to be a majority within a single district in order
to elect candidates of their choice”).
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 mi-
nority. See, e. g., Reno v. Bossier Parish School Bd., 520

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Souter, J., dissenting
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 vot-
ing 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 Vot-
ing 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 demo-
graphic facts point to probable minority effectiveness, a re-
duction in supermajority districts must be treated as poten-
tially and fatally retrogressive, the burden of persuasion
always being on the State.
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 practi-
cal and administrable conception of minority influence that
would rule out retrogression in a transition from majority-
minority districts, and mistakes the significance of the evi-
dence supporting the District Court’s decision.
II
The Court goes beyond recognizing the possibility of coali-
tion districts as nonretrogressive alternatives to those with
majorities of minority voters when it redefines effective vot-
ing 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

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494 GEORGIA v. ASHCROFT
Souter, J., dissenting
with an opportunity to elect a particularly powerful candi-
date, ante, at 483–484. On either alternative, the § 5 re-
quirement that voting changes be nonretrogressive is sub-
stantially diminished and left practically unadministrable.
A
The Court holds that a State can carry its burden to show
a nonretrogressive degree of minority “influence” by demon-
strating 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.
The history of § 5 demonstrates that it addresses changes
in state law intended to perpetuate the exclusion of minor-
ity 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] proce-
dures and techniques’ ” (quoting S. Rep. No. 94–295, p. 19
(1975))). In addressing the burden to show no retrogres-
sion, therefore, “influence” must mean an opportunity to ex-
ercise power effectively.
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 senti-
ment on the part of politicians: influence may be sufficient

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Souter, J., dissenting
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 elimi-
nated, so long as elected politicians can be expected to give
some consideration to minority interests.
The power to elect a candidate of choice has been forgot-
ten; 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.
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 retro-
gression the Court nominally retains as the § 5 touchstone.
Is the test purely ad hominem, looking merely to the appar-
ent sentiments of incumbents who might run in the new dis-
tricts? Would it be enough for a State to show that an
incumbent had previously promised to consider minority in-
terests 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? Non-
decisive influence is worth less than majority-minority con-
trol, but how much less? Would two influence districts off-
set the loss of one majority-minority district? Would it take
three? Or four? The Court gives no guidance for measur-
ing influence that falls short of the voting strength of a coali-
tion member, let alone a majority of minority voters. Nor
do I see how the Court could possibly give any such guid-
ance. The Court’s “influence” is simply not functional in the
political and judicial worlds.

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496 GEORGIA v. ASHCROFT
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B
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 influ-
ence 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 num-
ber 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.
It is impossible to believe that Congress could ever have
imagined § 5 preclearance actually turning on any such dis-
tinctions. In any event, if the Court is going to allow a
State to weigh minority votes by the ambitiousness of candi-
dates the votes might be cast for, it is hard to see any stop-
ping point. I suppose the Court would not go so far as to
give extra points to an incumbent with the charisma to at-
tract a legislative following, but would it value all commit-
tee 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?
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 preclear-
ance regime that defies reviewable administration. We are

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Souter, J., dissenting
left with little hope of determining practically whether a dis-
tricting 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.
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 demon-
strated 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 inge-
nious defiance of the Constitution” that required the proce-
dure of preclearance in the first place. South Carolina v.
Katzenbach, 383 U. S. 301, 309 (1966).
III
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 dis-
tricts 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 ad-
ministrable theory: 1 the State had not shown the possibility
1 The District Court correctly recognized that the State bears the bur-
den 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

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498 GEORGIA v. ASHCROFT
Souter, J., dissenting
of actual coalitions in the affected districts that would allow
any retreat from majority-minority districts without a retro-
gressive effect. This central evidentiary finding is invulner-
able under the correct standard of review.
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 “sim-
ply 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 com-
mitted.” Easley v. Cromartie, 532 U. S. 234, 242 (2001) (in-
ternal 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 dis-
tricting plan.” Ante, at 466. Our sole responsibility is to
see whether the District Court committed clear error in re-
fusing to preclear the plan. It did not.
A
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:
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 con-
text 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)).

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Souter, J., dissenting
“ ‘Unpacking’ African American districts may have posi-
tive 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).
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 popula-
tion, 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
The District Court recognized that the key to understand-
ing 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
2 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 in-
terim plan approved for the State Senate, 204 F. Supp. 2d 4, 7 (DC 2002),
all included decreases in BVAP in particular districts.

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500 GEORGIA v. ASHCROFT
Souter, J., dissenting
or not the decreases in BVAP and African American voter
registration in those districts are likely to produce retro-
gressive effects”).
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 regard-
ing white crossover voting or levels of polarization in individ-
ual 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 sub-
missions 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 ad-
dress 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).
Accordingly, the District Court explained that Georgia’s
expert:
3 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 pres-
ent, and to prove the absence of racially polarized voting that might dimin-
ish African American voting strength in light of several districts’ de-
creased BVAPs.” Id., at 86.

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Souter, J., dissenting
“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 un-
able 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
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 in-
troduce any evidence [in] rebut[tal],” ante, at 487? The an-
swer is that the Court is not engaging in review for clear
error. Instead, it is reweighing evidence de novo, discover-
ing what it thinks the District Court overlooked, and draw-
ing evidentiary conclusions the District Court supposedly did
not see. The Court is mistaken on all points.
1
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 pre-existing 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

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that Epstein did not attempt to rely on the table’s calcu-
lations 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 pat-
terns 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 candi-
dates” (internal quotation marks omitted)).
2
In another effort to revise the record, the Court faults the
District Court, alleging that it “focused too narrowly on pro-
posed Senate Districts 2, 12, and 26.” Ante, at 485. In fact,
however, it is Georgia that asked the District Court to con-
sider only the contested districts, and the District Court ex-
plicitly 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 Sen-
ate 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 nu-
merous other districts showing an increase in black voting
age population,” ante, at 486, the District Court, in fact, spe-
cifically considered the parties’ dispute over the statewide

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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 calcu-
lations, 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
In a further try to improve the record, the Court focuses
on the testimony of certain lay witnesses, politicians pre-
sented 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 ex-
plained that the “legislators’ support is, in the end, far more
probative of a lack of retrogressive purpose than of an ab-
sence of retrogressive effect.” Id., at 89 (emphasis in orig-
inal). As against the politicians’ testimony, the District
Court had contrary “credible,” id., at 88, evidence of retro-
gressive effect. This evidence was the testimony of the ex-
pert witness presented by the United States, which “sug-
gests 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.
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 non-
retrogressive, but the evidence the State had actually of-
fered simply failed to do that. “There are, without doubt,

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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 [legis-
lators] does not come close to filling that void.” Id., at 100.
As must be plain, in overturning the District Court’s
thoughtful consideration of the evidence before it, the major-
ity of this Court is simply rejecting the District Court’s evi-
dentiary finding in favor of its own. It is reweighing testi-
mony and making judgments about the competence, interest,
and character of witnesses. The Court is not conducting
clear error review.
4
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.
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 In-
4 The fact that the Court premises its analysis on BVAP alone is ironic
given that the Court, incorrectly, chastises the District Court for commit-
ting the very error the Court now engages in, “fail[ing] to consider all the
relevant factors.” Ante, at 485.

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deed, the core holding of the Court today, with which I agree,
that nonretrogression does not necessarily require mainte-
nance 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.
Lack of contextual evidence is not, however, the only flaw
in the Court’s numerical arguments. Thus, in its first exam-
ple, ante, at 487, the Court points out that under the pro-
posed plan the number of districts with majority BVAP in-
creases 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 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 interpreta-
tion of the census data, the number would decrease from twelve to eleven.”
195 F. Supp. 2d, at 93.

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5
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 ret-
rogressive 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 ex-
isting 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 pro-
ceed on the basis of obsolete data from a superseded census
is thus as puzzling as it is unprecedented. It is also an invi-
tation to perverse results, for if a State could carry its bur-
den 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 For example, if a covered jurisdiction had two majority-minority dis-
tricts 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 retro-
gression on the Court’s calculus. This would be the case even when vot-
ing behavior showed that nothing short of four majority-minority districts
would preserve the status quo as of 2000.

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6
The Court’s final effort to demonstrate that Georgia’s plan
is nonretrogressive focuses on statistics about Georgia Dem-
ocrats. 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 consti-
tute an effective voting bloc.” Ibid. But this is not so.
The degree to which the statistics could support any judg-
ment about the effect of black voting in State Senate elec-
tions is doubtful, and even on the Court’s assumptions the
statistics show no clear error by the District Court.
As for doubt about what the numbers have to do with
State Senate elections, it is enough to know that the majori-
ty’s figures are taken from a table describing Democratic vot-
ing 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 iden-
tical, voting patterns. The District Court specifically noted
that the United States’s expert testified that “African Ameri-
can 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 evi-
dence that racial voting patterns in State Senate races can
be expected to differ from racial voting patterns in statewide
races,” id., at 85–86.
7 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. See ante, 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.

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But even if we assume the data on Democratic voting
statewide can tell us something useful about Democratic vot-
ing 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 mi-
nority 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 se-
lected to run and ultimately elected. In districts, say, with
20% minority voters (all of them Democrats) and 51% nonmi-
nority 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 con-
stant throughout the electorate) the Democrat can win the
general election without minority support. Even in a situa-
tion where a Democratic candidate needs a substantial frac-
tion 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 unrespon-
sive 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 minor-
ity vote.
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 abstrac-
tions, and my sole point is that the Court’s abstract argu-
ments do not hold up. Much less do they prove the District
Court wrong.
IV
Section 5, after all, was not enacted to address abstrac-
tions. It was enacted “to shift the advantage of time and

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Souter, J., dissenting
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 preclear-
ance 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. Sec-
tion 5 can only be addressed, and the burden to prove no
retrogression can only be carried, with evidence of how par-
ticular populations of voters will probably act in the circum-
stances 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.