OCTOBER TERM, 1995
Syllabus
BUSH, GOVERNOR OF TEXAS, ET AL.
v. VERA ET AL.
APPEAL FROM THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
TEXAS
No. 94-805. Argued December 5, 1995-Decided June 13, 1996*
Because the 1990 census revealed a population increase entitling
Texas to three additional congressional seats, and in an attempt to
comply with the Voting Rights Act of 1965 (VRA), the Texas
Legislature promulgated a redistricting plan that, among other
things, created District 30 as a new majority-African-American
district in Dallas County and District 29 as a new
majority-Hispanic district in Harris County, and reconfigured
District 18, which is adjacent to District 29, as a
majorityAfrican-American district. After the Department of Justice
precleared the plan under VRA § 5, the plaintiffs, six Texas
voters, filed this challenge alleging that 24 of the State's 30
congressional districts constitute racial gerrymanders in violation
of the Fourteenth Amendment. The three-judge District Court held
Districts 18, 29, and 30 unconstitutional. The Governor of Texas,
private intervenors, and the United States (as intervenor)
appeal.
Held: The judgment is affirmed. 861 F. Supp. 1304,
affirmed.
JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE and JUSTICE
KENNEDY, concluded:
1. Plaintiff Chen, who resides in District 25 and has not
alleged any specific facts showing that he personally has been
subjected to any racial classification, lacks standing under
United States v.
Hays, 515 U. S. 737, 744-745.
But plaintiffs Blum and Powers, who reside in District 18,
plaintiffs Thomas and Vera, who reside in District 29, and
plaintiff Orcutt, who resides in District 30, have standing to
challenge Districts 18,29, and 30. See,
e. g., ibid. pp.
957-958.
2. Districts 18, 29, and 30 are subject to strict scrutiny under
this Court's precedents. Pp. 958-976.
(a) Strict scrutiny applies where race was
"the
predominant factor" motivating the drawing of district lines,
see,
e. g., Miller v.
Johnson, 515 U. S. 900, 916
(emphasis added), and traditional, raceneutral districting
principles were subordinated to race, see
ibid. This is a
mixed motive suit, and a careful review is therefore necessary
to
*Together with No. 94-806,
Lawson et al. v.
Vera et
al., and No. 94-988,
United States v.
Vera et
al., also on appeal from the same court.
953
determine whether the districts at issue are subject to such
scrutiny. Findings that Texas substantially neglected traditional
districting criteria such as compactness, that it was committed
from the outset to creating majority-minority districts, and that
it manipulated district lines to exploit unprecedentedly detailed
racial data, taken together, weigh in favor of the application of
strict scrutiny. However, because factors other than race,
particularly incumbency protection, clearly influenced the
legislature, each of the challenged districts must be scrutinized
to determine whether the District Court's conclusion that race
predominated can be sustained. Pp. 958-965.
(b) District 30 is subject to strict scrutiny. Appellants do not
deny that the district shows substantial disregard for the
traditional districting principles of compactness and regularity,
or that the redistricters pursued unwaveringly the objective of
creating a majority-AfricanAmerican district. Their argument that
the district's bizarre shape is explained by efforts to unite
communities of interest, as manifested by the district's
consistently urban character and its shared media sources and major
transportation lines to Dallas, must be rejected. The record
contains no basis for displacing the District Court's conclusion
that race predominated over the latter factors, particularly in
light of the court's findings that the State's supporting data were
largely unavailable to the legislature before the district was
created and that the factors do not differentiate the district from
surrounding areas with the same degree of correlation to district
lines that racial data exhibit. Appellants' more substantial claim
that incumbency protection rivaled race in determining the
district's shape is also unavailing. The evidence amply supports
the District Court's conclusions that racially motivated
gerrymandering had a qualitatively greater influence on the drawing
of district lines than politically motivated gerrymandering, which
is not subject to strict scrutiny, see
Davis v.
Bandemer, 478
U. S. 109, 132 (White, J., plurality opinion); and that
political gerrymandering was accomplished in large part by the use
of race as a proxy for political characteristics, which is subject
to such scrutiny, cf.
Powers v.
Ohio, 499 U. S. 400,
410. Pp. 965-973.
(c) Interlocking Districts 18 and 29 are also subject to strict
scrutiny. Those districts' shapes are bizarre, and their utter
disregard of city limits, local election precincts, and voter
tabulation district lines has caused a severe disruption of
traditional forms of political activity and created administrative
headaches for local election officials. Although appellants adduced
evidence that incumbency protection played a role in determining
the bizarre district lines, the District Court's conclusion that
the districts' shapes are unexplainable on grounds other than race
and, as such, are the product of presumptively
954
Syllabus
unconstitutional racial gerrymandering is inescapably
corroborated by the evidence. Pp. 973-976.
3. Districts 18, 29, and 30 are not narrowly tailored to serve a
compelling state interest. pp. 976-983.
(a) Creation of the three districts was not justified by a
compelling state interest in complying with the "results" test of
VRA § 2(b). It may be assumed without deciding that such compliance
can be a compelling state interest. See,
e. g., Shaw v.
Hunt, ante, at 915
(Shaw II). States attempting to
comply with § 2 retain discretion to apply traditional districting
principles and are entitled to a limited degree of leeway. But a
district drawn in order to satisfy § 2 must not subordinate
traditional districting principles to race substantially more than
is reasonably necessary. The districts at issue fail this test,
since all three are bizarrely shaped and far from compact, and
those characteristics are predominantly attributable to
gerrymandering that was racially motivated and/or achieved by the
use of race as a proxy. Appellants Lawson et al. misinterpret
Miller, supra, at 913, when they argue that bizarre shaping
and noncompactness go only to motive and are irrelevant to the
narrow tailoring inquiry. Also unavailing is the United States'
contention that insofar as bizarreness and noncompactness are
necessary to achieve the State's compelling interest in compliance
with § 2 while simultaneously achieving other legitimate
redistricting goals, the narrow tailoring requirement is satisfied.
The bizarre shaping and noncompactness of the districts in question
were predominantly attributable to racial, not political,
manipulation, while the Government's argument addresses the case of
an otherwise compact majority-minority district that is misshapen
by predominantly nonracial, political manipulation. Pp.
976-981.
(b) The district lines at issue are not justified by a
compelling state interest in ameliorating the effects of racially
polarized voting attributable to Texas' long history of
discrimination against minorities in electoral processes. Among the
conditions that must be satisfied to render an interest in
remedying discrimination compelling is the requirement that the
discrimination be specific and "identified."
Shaw II, ante,
at 910. Here, the only current problem that appellants cite as in
need of remediation is alleged vote dilution as a consequence of
racial bloc voting, the same concern that underlies their VRA § 2
compliance defense. Once the correct standard is applied, the fact
that these districts are not narrowly tailored to comply with § 2
forecloses this line of defense. Pp. 981-982.
(c) Creation of District 18 (only) was not justified by a
compelling state interest in complying with VRA § 5, which seeks to
prevent voting-procedure changes leading to a retrogression in the
position of
955
racial minorities with respect to their effective exercise of
the electoral franchise. See,
e. g., Miller, 515 U. S., at
926. The problem with appellants' contention that this
"nonretrogression" principle applies because Harris County
previously contained a congressional district in which
Mrican-American voters always succeeded in selecting MricanAmerican
representatives is that it seeks to justify not maintenance, but
substantial augmentation, of the Mrican-American population
percentage, which has grown from 40.8% in the previous district to
50.9% in District 18. Nonretrogression is not a license for the
State to do whatever it deems necessary to ensure continued
electoral
success; it merely mandates that the minority's
opportunity to elect representatives of its choice not be
diminished, directly or indirectly, by the State's actions.
District 18 is not narrowly tailored to the avoidance of § 5
liability. See
Shaw v.
Reno, 509 U. S. 630, 655. Pp.
982-983.
4. Various of the dissents' arguments, none of which address the
specifics of this suit, and which have been rebutted in other
decisions, must be rejected. Pp. 983-986.
JUSTICE THOMAS, joined by JUSTICE SCALIA, concluded that
application of strict scrutiny in this suit was never a close
question, since this Court's decisions have effectively resolved
that the intentional creation of majority-minority districts, by
itself, is sufficient to invoke such scrutiny. See,
e. g.,
Adarand Constructors, Inc. v.
Pena, 515 U. S. 200, 227
(strict scrutiny applies to all government classifications based on
race);
Miller v.
Johnson, 515 U. S. 900, 918-919
(Georgia's concession that it intentionally created
majority-minority districts was sufficient to show that race was a
predominant, motivating factor in its redistricting).
De
Witt v.
Wilson, 515 U. S. 1170, distinguished.
Application of strict scrutiny is required here because Texas has
readily admitted that it intentionally created majority-minority
districts and that those districts would not have existed but for
its affirmative use of racial demographics. Assuming that the State
has asserted a compelling state interest, its redistricting
attempts were not narrowly tailored to achieve that interest.
Pp.999-1003.
O'CONNOR, J., announced the judgment of the Court and delivered
an opinion, in which REHNQUIST, C. J., and KENNEDY, J., joined.
O'CONNOR, J., also filed a separate concurring opinion,
post, p. 990. KENNEDY, J., filed a concurring opinion,
post, p. 996. THOMAS, J., filed an opinion concurring in the
judgment, in which SCALIA, J., joined,
post, p. 999.
STEVENS, J., filed a dissenting opinion, in which GINSBURG and
BREYER, JJ., joined,
post, p. 1003. SOUTER, J., filed a
dissenting opinion, in which GINSBURG and BREYER, JJ., joined,
post, p. 1045.
956
Opinion of O'CONNOR, J.
Javier Aguilar, Special Assistant Attorney General of
Texas, argued the cause for appellants in No. 94-805. With him on
the briefs were
Dan Morales, Attorney General,
Jorge
Vega, First Assistant Attorney General,
Richard E. Gray
II I, and
Roger Moore.
Deputy Solicitor General Bender argued the cause for the United
States in No. 94-988. With him on the briefs were Solicitor General
Days, Assistant Attorney General Patrick, Irving L. Gornstein, and
Steven H. Rosenbaum.
Penda D. Hair argued the cause and filed briefs for appellants
in No. 94-806. With her on the briefs were Elaine R. Jones,
Theodore M. Shaw, Norman
J. Chachkin, Antonia Hernandez,
Anthony E. Chavez, Carmen Rumbaut, and Lawrence Boz.
Daniel E. Troy argued the cause for appellees in all
cases.
With him on the brief were Paul Loy Hurd, Bert W Rein, and
Michael E. Toner.t
JUSTICE O'CONNOR announced the judgment of the Court and
delivered an opinion, in which THE CHIEF JUSTICE and JUSTICE
KENNEDY join.
This is the latest in a series of appeals involving racial
gerrymandering challenges to state redistricting efforts in the
wake of the 1990 census. See
Shaw v.
Hunt, ante, p.
899
(Shaw II); United States v.
Hays, 515 U. S. 737 (1995);
Miller v.
Johnson, 515 U. S. 900 (1995);
Shaw v.
Reno, 509 U. S. 630
(1993) (Shaw I). That census revealed a population
in-
tPaul M. Smith, Donald B. Verrilli, Jr., and
J.
Gerald Hebert filed a brief for the Democratic National
Committee et al. as
amici curiae urging reversal.
Briefs of
amici curiae urging affirmance were filed for
the Pacific Legal Foundation by
Anthony T. Caso and
Deborah J. La Fetra; and for the Washington
Legal Foundation et al. by
Daniel J. Popeo and
Richard A. Samp.
Briefs of amicus curiae were filed for the Institute for Justice
by William H. Mellor III, Clint Bolick, and Scott G. Bullock; and
for A. J. Pate by William C. Owens, Jr.
957
crease, largely in urban minority populations, that entitled
Texas to three additional congressional seats. In response, and
with a view to complying with the Voting Rights Act of 1965 (VRA),
79 Stat. 437, as amended, 42 U. S. C. § 1973
et seq., the
Texas Legislature promulgated a redistricting plan that, among
other things, created District 30, a new majority-African-American
district in Dallas County; created District 29, a new
majority-Hispanic district in and around Houston in Harris County;
and reconfigured District 18, which is adjacent to District 29, to
make it a majorityAfrican-American district. The Department of
Justice precleared that plan under VRA § 5 in 1991, and it was used
in the 1992 congressional elections.
The plaintiffs, six Texas voters, challenged the plan, alleging
that 24 of Texas' 30 congressional districts constitute racial
gerrymanders in violation of the Fourteenth Amendment. The
three-judge United States District Court for the Southern District
of Texas held Districts 18, 29, and 30 unconstitutional.
Vera v.
Richards, 861 F. Supp. 1304 (1994). The
Governor of Texas, private intervenors, and the United States (as
intervenor) now appeal. We noted probable jurisdiction. 515 U. S.
1172 (1995). Finding that, under this Court's decisions in
Shaw
I and
Miller, the district lines at issue are subject to
strict scrutiny, and that they are not narrowly tailored to serve a
compelling state interest, we affirm.
I
As a preliminary matter, the State and private appellants
contest the plaintiffs' standing to challenge these districts.
Plaintiff Chen resides in Texas congressional District 25, and has
not alleged any specific facts showing that he personally has been
subjected to any racial classification. Under our decision in
Hays, he lacks standing. See
Hays, supra, at 744-745.
But plaintiffs Blum and Powers are residents of District 18,
plaintiffs Thomas and Vera are residents of District 29, and
plaintiff Orcutt is a resident of District 30. We
958
Opinion of O'CONNOR, J.
stated in
Hays that "[w]here a plaintiff resides in a
racially gerrymandered district, ... the plaintiff has been denied
equal treatment because of the legislature's reliance on racial
criteria, and therefore has standing to challenge the legislature's
action."
Ibid.; accord,
Miller, supra, at 910-911.
Under this rule, these plaintiffs have standing to challenge
Districts 18, 29, and 30.
II
We must now determine whether those districts are subject to
strict scrutiny. Our precedents have used a variety of formulations
to describe the threshold for the application of strict scrutiny.
Strict scrutiny applies where "redistricting legislation ... is so
extremely irregular on its face that it rationally can be viewed
only as an effort to segregate the races for purposes of voting,
without regard for traditional districting principles,"
Shaw I,
supra, at 642, or where "race for its own sake, and not other
districting principles, was the legislature's dominant and
controlling rationale in drawing its district lines,"
Miller, 515 U. S., at 913, and "the legislature subordinated
traditional race-neutral districting principles ... to racial
considerations,"
id., at 916. See also
id., at 928
(O'CONNOR, J., concurring) (strict scrutiny only applies where "the
State has relied on race in substantial disregard of customary and
traditional districting practices").
Strict scrutiny does not apply merely because redistricting is
performed with consciousness of race. See
Shaw I, supra, at
646. Nor does it apply to all cases of intentional creation of
majority-minority districts. See
De Witt v.
Wilson,
856 F. Supp. 1409 (ED Cal. 1994) (strict scrutiny did not apply
to an intentionally created compact majority-minority district),
summarily aff'd, 515 U. S. 1170 (1995); cf.
Shaw I, supra,
at 649 (reserving this question). Electoral district lines are
"facially race neutral," so a more searching inquiry is necessary
before strict scrutiny can be found applicable in redistricting
cases than in cases of "classifications based explicitly on race."
See
Adarand Constructors, Inc. v.
Pena, 515 U. S.
959
200,213 (1995); cf.
post, at 999-1000, 1002-1003 (THOMAS,
J., concurring in judgment) (assimilating our redistricting cases
to
Adarand). For strict scrutiny to apply, the plaintiffs
must prove that other, legitimate districting principles were
"subordinated" to race.
Miller, 515 U. S., at 916. By that,
we mean that race must be
"the predominant factor motivating
the legislature's [redistricting] decision."
Ibid. (emphasis
added). We thus differ from JUSTICE THOMAS, who would apparently
hold that it suffices that racial considerations be
a
motivation for the drawing of a majority-minority district. See
post, at 1002.
The present suit is a mixed motive suit. The appellants concede
that one of Texas' goals in creating the three districts at issue
was to produce majority-minority districts, but they also cite
evidence that other goals, particularly incumbency protection
(including protection of "functional incumbents," i.
e.,
sitting members of the Texas Legislature who had declared an
intention to run for open congressional seats), also played a role
in the drawing of the district lines. The record does not reflect a
history of"
'purely race-based'" districting revisions. Cf.
Miller, supra, at 918 (emphasis added). A careful review is,
therefore, necessary to determine whether these districts are
subject to strict scrutiny. But review of the District Court's
findings of primary fact and the record convinces us that the
District Court's determination that race was the "predominant
factor" in the drawing of each of the districts must be
sustained.
We begin with general findings and evidence regarding the
redistricting plan's respect for traditional districting
principles, the legislators' expressed motivations, and the methods
used in the redistricting process. The District Court began its
analysis by rejecting the factual basis for appellants' claim that
Texas' challenged "districts cannot be unconstitutionally bizarre
in shape because Texas does not have and never has used traditional
redistricting principles such as natural geographical boundaries,
contiguity, compactness,
960
Opinion of O'CONNOR, J.
and conformity to political subdivisions." 861 F. Supp., at
1333. The court instead found that "generally, Texas has not
intentionally disregarded traditional districting criteria," and
that only one pre-1991 congressional district in Texas was
comparable in its irregularity and noncompactness to the three
challenged districts.
Id., at 1334. The court also noted
that "compactness as measured by an 'eyeball' approach was much
less important,"
id., at 1313, n. 9, in the 1991 plan, App.
144, than in its predecessor, the 1980 Texas congressional
districting plan,
id., at 138, and that districts were
especially irregular in shape in the Dallas and Harris County areas
where the challenged districts are located, see 861 F. Supp., at
1313, n. 9.
These findings comport with the conclusions of an instructive
study that attempted to determine the relative compactness of
districts nationwide in objective, numerical terms. That study gave
Texas' 1980 districting plan a roughly average score for the
compactness and regularity of its district shapes, but ranked its
1991 plan among the worst in the Nation. See Pildes & Niemi,
Expressive Harms, "Bizarre Districts," and Voting Rights:
Evaluating Election-District Appearances After
Shaw v.
Reno, 92 Mich. L. Rev. 483, 571573, table 6 (1993). The same
study ranked Districts 18, 29, and 30 among the 28 least regular
congressional districts nationwide. See
id., at 565, table
3. Our own review gives us no reason to disagree with the District
Court that the districts at issue "have no integrity in terms of
traditional, neutral redistricting criteria," 861 F. Supp., at
1339.
The District Court also found substantial direct evidence of the
legislature's racial motivations. The State's submission to the
Department of Justice for preclearance under VRA § 5 reports a
consensus within the legislature that the three new congressional
districts
"'should be configured in such a way as to allow members of
racial, ethnic, and language minorities to elect Congressional
representatives. Accordingly, the three
961
new districts include a predominantly black district drawn in
the Dallas County area [District 30] and predominantly Hispanic
districts in the Harris County area [District 29] and in the South
Texas region. In addition to creating the three new minority
districts, the proposed Congressional redistricting plan increases
the black voting strength of the current District 18 (Harris
County) by increasing the population to assure that the black
community may continue to elect a candidate of its choice.'"
Id., at 1315 (quoting Narrative of Voting Rights Act
Considerations in Affected Districts, reprinted in App.
104-105).
The appellants also conceded in this litigation that the three
districts at issue "were created for the purpose of enhancing the
opportunity of minority voters to elect minority representatives to
Congress." 861 F. Supp., at 1337. And testimony of individual state
officials confirmed that the decision to create the districts now
challenged as majority-minority districts was made at the outset of
the process and never seriously questioned.
The means that Texas used to make its redistricting decisions
provides further evidence of the importance of race. The primary
tool used in drawing district lines was a computer program called
"REDAPPL." REDAPPL permitted redistricters to manipulate district
lines on computer maps, on which racial and other socioeconomic
data were superimposed. At each change in configuration of the
district lines being drafted, REDAPPL displayed updated racial
composition statistics for the district as drawn. REDAPPL contained
racial data at the block-by-block level, whereas other data, such
as party registration and past voting statistics, were only
available at the level of voter tabulation districts (which
approximate election precincts). The availability and use of
block-by-block racial data was unprecedented; before the 1990
census, data were not broken down beyond the census tract level.
See App. 123. By providing uniquely
962
Opinion of O'CONNOR, J.
detailed racial data, REDAPPL enabled districters to make more
intricate refinements on the basis of race than on the basis of
other demographic information. The District Court found that the
districters availed themselves fully of that opportunity:
"In numerous instances, the correlation between race and
district boundaries is nearly perfect .... The borders of Districts
18, 29, and 30 change from block to block, from one side of the
street to the other, and traverse streets, bodies of water, and
commercially developed areas in seemingly arbitrary fashion until
one realizes that those corridors connect minority populations."
861 F. Supp., at 1336.
These findings-that the State substantially neglected
traditional districting criteria such as compactness, that it was
committed from the outset to creating majority-minority districts,
and that it manipulated district lines to exploit unprecedentedly
detailed racial data-together weigh in favor of the application of
strict scrutiny. We do not hold that any one of these factors is
independently sufficient to require strict scrutiny. The
Constitution does not mandate regularity of district shape, see
Shaw I, 509 U. S., at 647, and the neglect of traditional
districting criteria is merely necessary, not sufficient. For
strict scrutiny to apply, traditional districting criteria must be
subordinated to race. Miller, 515 U. S., at 916. Nor, as we
have emphasized, is the decision to create a majority-minority
district objectionable in and of itself. The direct evidence of
that decision is not, as JusTICE STEVENS suggests,
post, at
1024, "the real key" to our decision; it is merely one of several
essential ingredients. Nor do we "condemn state legislation merely
because it was based on accurate information."
Post, at
1031, n. 28. The use of sophisticated technology and detailed
information in the drawing of majority-minority districts is no
more objectionable than it is in the drawing of majority-majority
dis-
963
tricts. But, as the District Court explained, the direct
evidence of racial considerations, coupled with the fact that the
computer program used was significantly
more sophisticated
with respect to race than with respect to other demographic data,
provides substantial evidence that it was race that led to the
neglect of traditional districting criteria here. We must therefore
consider what role other factors played in order to determine
whether race predominated.
Several factors other than race were at work in the drawing of
the districts. Traditional districting criteria were not
entirely neglected: Districts 18 and 29 maintain the
integrity of county lines; each of the three districts takes its
character from a principal city and the surrounding urban area; and
none of the districts is as widely dispersed as the North Carolina
district held unconstitutional in
Shaw II, ante, p. 899.
(These characteristics are, however, unremarkable in the context of
large, densely populated urban counties.) More significantly, the
District Court found that incumbency protection influenced the
redistricting plan to an unprecedented extent:
"[A]s enacted in Texas in 1991, many incumbent protection
boundaries sabotaged traditional redistricting principles as they
routinely divided counties, cities, neighborhoods, and regions. For
the sake of maintaining or winning seats in the House of
Representatives, Congressmen or would-be Congressmen shed hostile
groups and potential opponents by fencing them out of their
districts. The Legislature obligingly carved out districts of
apparent supporters of incumbents, as suggested by the incumbents,
and then added appendages to connect their residences to those
districts. The final result seems not one in which the people
select their representatives, but in which the representatives have
selected the people." 861 F. Supp., at 1334 (citations and
footnotes omitted).
964
Opinion of O'CONNOR, J.
See also
id., at 1317-1318 (describing specific evidence
of incumbency protection efforts statewide). This finding receives
inferential support from the fact that all but one of Texas' 27
incumbents won in the 1992 elections. See
id., at 1318. And
the appellants point to evidence that in many cases, race
correlates strongly with manifestations of community of interest
(for example, shared broadcast and print media, public transport
infrastructure, and institutions such as schools and churches) and
with the political data that are vital to incumbency protection
efforts, raising the possibility that correlations between racial
demographics and district lines may be explicable in terms of
nonracial motivations. For example, a finding by a district court
that district lines were drawn in part on the basis of evidence
(other than racial data) of where communities of interest existed
might weaken a plaintiff's claim that race predominated in the
drawing of district lines. Cf.
post, at 1049 (SOUTER, J.,
dissenting) (recognizing the legitimate role of communities of
interest in our system of representative democracy).
Strict scrutiny would not be appropriate if race-neutral,
traditional districting considerations predominated over racial
ones. We have not subjected political gerrymandering to strict
scrutiny. See
Davis v.
Bandemer, 478 U. S. 109, 132 (1986)
(White, J., plurality opinion) ("[U]nconstitutional discrimination
occurs only when the electoral system is arranged in a manner that
will consistently degrade a voter's or a group of voters' influence
on the political process as a whole");
id., at 147
(O'CONNOR, J., concurring in judgment) ("[P]urely political
gerrymandering claims" are not justiciable). And we have recognized
incumbency protection, at least in the limited form of "avoiding
contests between incumbent[s]," as a legitimate state goal. See
Karcher v.
Daggett, 462 U. S. 725, 740
(1983);
White v.
Weiser, 412 U. S. 783, 797
(1973);
Burns v.
Richardson, 384 U. S. 73, 89, n. 16
(1966); cf.
Gaffney v.
Cummings, 412 U. S. 735, 751-754,
and 752, n. 18 (1973) (State may draw irregular district lines in
order
965
to allocate seats proportionately to major political parties).
Because it is clear that race was not the only factor that
motivated the legislature to draw irregular district lines, we must
scrutinize each challenged district to determine whether the
District Court's conclusion that race predominated over legitimate
districting considerations, including incumbency, can be
sustained.
A
The population of District 30 is 50% African-American and 17.1 %
Hispanic. Fifty percent of the district's population is located in
a compact, albeit irregularly shaped, core in south Dallas, which
is 69% African-American. But the remainder of the district consists
of narrow and bizarrely shaped tentacles-the State identifies seven
"segments"-extending primarily to the north and west. See App. 335;
see also M. Barone & G. Ujifusa, Almanac of American Politics
1996, p. 1277 (1995) (describing the district). Over 98% of the
district's population is within Dallas County, see App. 118, but it
crosses two county lines at its western and northern extremities.
Its western excursion into Tarrant County grabs a small community
that is 61.9% African-American,
id., at 331; its northern
excursion into Collin County occupies a hook-like shape mapping
exactly onto the only area in the southern half of that county with
a combined AfricanAmerican and Hispanic percentage population in
excess of
50%, id., at 153. The District Court's description
of the district as a whole bears repeating:
"The district sprawls throughout Dallas County, deliberately
excludes the wealthy white neighborhoods of Highland Park and
University Park and extends fingers into Collin County, which
include the outermost suburbs of Dallas. In Collin County, the
district picks up a small African-American neighborhood. The
district extends into Tarrant County only to pick up a small border
area with a high African-American concentration. It
966
Opinion of O'CONNOR, J.
also reaches out to claim Hamilton Park, an affluent
African-American neighborhood surrounded by whites. Part of the
district runs along Trinity River bottom, using it to connect
dispersed minority population. Numerous [voter tabulation
districts] were split in order to achieve the population mix
required for the district.
" ... It is at least 25 miles wide and 30 miles long." 861 F.
Supp., at 1337-1338.
See also Appendix A to this opinion (outline of District
30).
Appellants do not deny that District 30 shows substantial
disregard for the traditional districting principles of compactness
and regularity, or that the redistricters pursued unwaveringly the
objective of creating a majority-AfricanAmerican district. But they
argue that its bizarre shape is explained by efforts to unite
communities of interest in a single district and, especially, to
protect incumbents.
Appellants highlight the facts that the district has a
consistently urban character and has common media sources
throughout, and that its tentacles include several major
transportation lines into the city of Dallas. These factors, which
implicate traditional districting principles, do correlate to some
extent with the district's layout. But we see no basis in the
record for displacing the District Court's conclusion that race
predominated over them, particularly in light of the court's
findings that the State's supporting data were not "available to
the Legislature in any organized fashion before District 30 was
created," 861 F. Supp., at 1338, and that they do not
"differentiate the district from surrounding areas,"
ibid.,
with the same degree of correlation to district lines that racial
data exhibit, see App. 150. In reaching that conclusion, we do not,
as JUSTICE STEVENS fears, require States engaged in redistricting
to compile "a comprehensive administrative record,"
post, at
1026 (STEVENS, J., dissenting), and we do not dismiss facts not
explicitly mentioned in the redistricting plan's legislative
history as "irrelevant,"
967
ibid. If, as may commonly happen, traditional districting
principles are substantially followed without much conscious
thought, they cannot be said to have been "subordinated to race."
In considering whether race was the "predominant factor motivating
the legislatur[e]," it is, however,
evidentially
significant that at the time of the redistricting, the State had
compiled detailed racial data for use in redistricting, but made no
apparent attempt to compile, and did not refer specifically to,
equivalent data regarding communities of interest.
Appellants present a more substantial case for their claim that
incumbency protection rivaled race in determining the district's
shape. Representative Johnson was the principal architect of
District 30, which was designed in part to create a safe Democratic
seat for her. At an early stage in the redistricting process,
Johnson submitted to the state legislature a plan for Dallas County
with a relatively compact 44% African-American district that did
not violate the integrity of any voter tabulation district or
county lines. See App. 139; 861 F. Supp., at 1338. The District
Court found that "[w]hile minority voters did not object" to it,
id., at 1330, "[t]hat plan drew much opposition from
incumbents and was quickly abandoned,"
id., at 1321, n. 22.
"[F]ive other congressmen would have been thrown into districts
other than the ones they currently represent."
Id., at
1330-1331. Appellants also point to testimony from Johnson and
others to the effect that the incumbents of the adjacent Democratic
Districts 5 and 24 exerted strong and partly successful efforts to
retain predominantly African-American Democratic voters in their
districts. (There was evidence that 97% of African-American voters
in and around the city of Dallas vote Democrat.) See generally
id., at 1321-1322.
In some circumstances, incumbency protection might explain as
well as, or better than, race a State's decision to depart from
other traditional districting principles, such as compactness, in
the drawing of bizarre district lines. And
968
Opinion of O'CONNOR, J.
the fact that, "[a]s it happens, ... many of the voters being
fought over [by the neighboring Democratic incumbents] were
African-American,"
id., at 1338, would not, in and of
itself, convert a political gerrymander into a racial gerrymander,
no matter how conscious redistricters were of the correlation
between race and party affiliation. See
Shaw I, 509 U. S.,
at 646. If district lines merely correlate with race because they
are drawn on the basis of political affiliation, which correlates
with race, there is no racial classification to justify, just as
racial disproportions in the level of prosecutions for a particular
crime may be unobjectionable if they merely reflect racial
disproportions in the commission of that crime, cf.
post, at
1032, n. 30 (STEVENS, J., dissenting) (discussing
United
States v.
Armstrong, ante, at 456.
If the State's goal is otherwise constitutional political
gerrymandering, it is free to use the kind of political data on
which JUSTICE STEVENS focuses-precinct general election voting
patterns,
post, at 1030, precinct primary voting patterns,
post, at 1017, and legislators' experience,
post, at
1026-to achieve that goal regardless of its awareness of its racial
implications and regardless of the fact that it does so in the
context of a majority-minority district. To the extent that the
District Court suggested the contrary, it erred. But to the extent
that race is used as a proxy for political characteristics, a
racial stereotype requiring strict scrutiny is in operation. Cf.
Powers v.
Ohio, 499 U. S. 400, 410 (1991)
("Race cannot be a proxy for determining juror bias or
competence"). We cannot agree with the dissenters, see
post,
at 1031 (STEVENS, J., dissenting);
post, at 1051-1052, n. 5
(SouTER, J., dissenting); see also
Shaw II, ante, at
924-925, n. 4 (STEVENS, J., dissenting), that racial stereotyping
that we have scrutinized closely in the context of jury service can
pass without justification in the context of voting. If the promise
of the Reconstruction Amendments, that our Nation is to be free of
state-sponsored discrimination, is to be upheld, we cannot pick and
choose between the basic forms of
969
political participation in our efforts to eliminate unjustified
racial stereotyping by government actors.
Here, the District Court had ample bases on which to conclude
both that racially motivated gerrymandering had a qualitatively
greater influence on the drawing of district lines than politically
motivated gerrymandering, and that political gerrymandering was
accomplished in large part by the use of race as a proxy. The
State's own VRA § 5 submission explains the drawing of District 30,
and the rejection of Johnson's more compact plan, in exclusively
racial terms:
"Throughout the course of the Congressional redistricting
process, the lines of the proposed District 30 were constantly
reconfigured in an attempt to maximize the voting strength for this
black community in Dallas County ... While the legislature was in
agreement that a safe black district should be drawn in the Dallas
County area, the real dispute involved the composition,
configuration and quality of that district. The community
insisted that [a] 'safe' black district be drawn that had a total
black population of at least 50% ....
" ... Although some [alternative] proposals showed a more
compact configuration, none of them reached the threshold 50% total
black population which the community felt was necessary to assure
its ability to elect its own Congressional representative without
having to form coalitions with other minority groups ....
" ... The goal was to not only create a district that would
maximize the opportunity for the black community to elect a
Congressional candidate of its choice in 1992, but also one that
included some of the major black growth areas which will assure
continued electoral and economic opportunities over the next
decades." App. 106-107.
As the District Court noted, testimony of state officials in
earlier litigation (in which District 30 was challenged as a
political gerrymander) contradicted part of their testimony
970
Opinion of O'CONNOR, J.
here, and affirmed that "race was the primary consideration in
the construction of District 30." 861 F. Supp., at 1338; see also
id., at 1319-1321. And Johnson explained in a letter to the
Department of Justice written at the end of the redistricting
process that incumbency protection had been achieved by using race
as a proxy:
" 'Throughout the course of the Congressional redistricting
process, the lines were continuously reconfigured to assist in
protecting the Democratic incumbents in the Dallas/Fort Worth
metroplex area by spreading the Black population to increase the
Democratic party index in those areas.'" Id., at 1322
(quoting Plaintiff Exh. 6E6).
This is not to say that the direct evidence of the districters'
intent showed race to be the sole factor considered. As J usTICE
STEVENS notes,
post, at 1024-1025, nn. 23-24, state
officials' claims have changed as their interests have changed. In
the prior political gerrymandering suit and to the Department of
Justice, they asserted that race predominated. In this suit, their
testimony was that political considerations predominated. These
inconsistent statements must be viewed in light of their
adversarial context. But such questions of credibility are matters
for the District Court, and we simply differ from the dissenters in
our reading of the record when they find insupportable the District
Court's reliance on the State's own statements indicating the
importance of race, see
post, at 1024-1025, nn. 23-24, 1033,
n. 31 (opinion of STEVENS, J.).
Finally, and most significantly, the objective evidence provided
by the district plans and demographic maps suggests strongly the
predominance of race. Given that the districting software used by
the State provided only racial data at the block-by-block level,
the fact that District 30, unlike Johnson's original proposal,
splits voter tabulation districts and even individual streets in
many places, see App. 150; 861
971
F. Supp., at 1339, suggests that racial criteria predominated
over other districting criteria in determining the district's
boundaries. And, despite the strong correlation between race and
political affiliation, the maps reveal that political
considerations were subordinated to racial classification in the
drawing of many of the most extreme and bizarre district lines. For
example, the northernmost hook of the district, where it ventures
into Collin County, is tailored perfectly to maximize minority
population, see App. 153 (all whole and parts of 1992 voter
tabulation districts within District 30's Collin County hook have a
combined African-American and Hispanic population in excess of 50%,
with an average African-American population of 19.8%,
id.,
at 331, while the combined African-American and Hispanic population
in all surrounding voter tabulation districts, and the other parts
of split districts, in Collin County is less than 25%), whereas it
is far from the shape that would be necessary to maximize the
Democratic vote in that area, see
id., at 196 (showing a
Republican majority, based on 1990 voting patterns in seven of the
eight 1990 voter tabulation districts wholly or partly included in
District 30 in Collin County). *
*In the application of our precedents to District 30, our
disagreement with JUSTICE STEVENS' dissent,
post, at
1014-1031, is largely factual. In reviewing the District Court's
findings of primary fact, we cannot ignore the reality that the
District Court heard several days of testimony and argument and
became significantly more familiar with the factual details of this
suit than this Court can be. We therefore believe that the dissent
errs in second-guessing the District Court's assessment of the
witnesses' testimony, see
post, at 1025, n. 24, and in
dismissing as mere "fine tuning,"
post, at 1030, the
practice of using race as a proxy that the District Court found,
based on ample evidence, to be pervasive, see
Vera v.
Richards, 861
For the same reason, we decline to debate the dissent on every
factual nuance on which it diverges from the District Court's, and
our, view. But two of its specific claims about District 30 merit a
response. First, the dissent asserts that "[a] comparison of the
1992 precinct results with a depiction of the proportion of black
population in each census block reveals that Democratic-leaning
precincts cover a far greater area [of District 30]
972
Opinion of O'CONNOR, J.
The combination of these factors compels us to agree with the
District Court that "the contours of Congressional District 30 are
unexplainable in terms other than race." 861 F. Supp., at 1339. It
is true that District 30 does not evince a consistent,
single-minded effort to "segregate" voters on the basis of race,
post, at 1023 (STEVENS, J., dissenting), and does not
represent "apartheid,"
post, at 1054, 1074 (SOUTER, J.,
dissenting). But the fact that racial data were used in complex
ways, and for multiple objectives, does not mean that race did not
predominate over other considerations. The record discloses
intensive and pervasive use of race both
than majority-black census blocks."
Post, at 1030
(emphasis added). While that may be true, the dissent's reliance on
1992 election results is misplaced. Those results were not before
the legislature when it drew the district lines in 1991, and may
well reflect the popularity and campaign success of Representative
Johnson more than the party political predispositions of the
district's residents. (The same error infects the dissent's
discussion of the Collin County hook,
post, at 1020-1021, n.
19 (relying on 1992 election results).) And looking at totals,
rather than at the difference between areas just inside and just
outside the district lines, is misleading: Race may predominate in
the drawing of district lines because those lines are finely drawn
to maximize the minority composition of the district,
notwithstanding that in an overwhelmingly Democratic area, the
total of Democrats in the district far exceeds its total minority
population.
Second, the dissent suggests that strict scrutiny should not
apply because District 30's compact core has a higher
African-American population percentage than its wayward tentacles.
Post, at 1021-1023. In doing so, it again ignores the
necessity of determining whether race predominated in the
redistricters' actions
in light of what they had to work
with. Once various adjacent majority-minority populations had
been carved away from it by the use of race as a proxy to enhance
the electoral chances of neighboring incumbents, the core of
District 30 was substantially too small to form an entire district.
The principal question faced by the redistricters was, therefore,
what territory to add to the core out of the remainder of the
Dallas area, which remainder has an average African-American
population substantially below the 21% county average. In answering
that question, as the District Court explained and the maps bear
witness, the redistricters created bizarre, far-reaching tentacles
that intricately and consistently maximize the available remaining
African-American population.
973
as a proxy to protect the political fortunes of adjacent
incumbents, and for its own sake in maximizing the minority
population of District 30 regardless of traditional districting
principles. District 30's combination of a bizarre, noncompact
shape and overwhelming evidence that that shape was essentially
dictated by racial considerations of one form or another is
exceptional; Texas Congressional District 6, for example, which
JUSTICE STEVENS discusses in detail,
post, at 10191020, has
only the former characteristic. That combination of characteristics
leads us to conclude that District 30 is subject to strict
scrutiny.
B
In Harris County, centered on the city of Houston, Districts 18
and 29 interlock "like a jigsaw puzzle ... in which it might be
impossible to get the pieces apart." Barone & Ujifusa, Almanac
of American Politics 1996, at 1307-1308; see also Appendixes Band C
to this opinion (outlines of Districts 18, 29). As the District
Court noted: "[T]hese districts are so finely 'crafted' that one
cannot visualize their exact boundaries without looking at a
map at least three feet square." 861 F. Supp., at 1323. According
to the leading statistical study of relative district compactness
and regularity, they are two of the three least regular districts
in the country. See Pildes & Niemi, 92 Mich. L. Rev., at
565.
District 18's population is 51% African-American and 15%
Hispanic. App. 110. It "has some of the most irregular boundaries
of any congressional district in the country[,] ... boundaries that
squiggle north toward Intercontinental Airport and northwest out
radial highways, then spurt south on one side toward the port and
on the other toward the Astrodome." Barone & Ujifusa,
supra, at 1307. Its "many narrow corridors, wings, or
fingers ... reach out to enclose black voters, while excluding
nearby Hispanic residents." Pildes & Niemi,
supra, at
556.
District 29 has a 61% Hispanic and 10% African-American
population. App. 110. It resembles
974
Opinion of O'CONNOR, J.
"'a sacred Mayan bird, with its body running eastward along the
Ship Channel from downtown Houston until the tail terminates in
Baytown. Spindly legs reach south to Hobby Airport, while the
plumed head rises northward almost to Intercontinental. In the
western extremity of the district, an open beak appears to be
searching for worms in Spring Branch. Here and there, ruffled
feathers jut out at odd angles.'" Barone & Ujifusa,
supra, at 1335.
Not only are the shapes of the districts bizarre; they also
exhibit utter disregard of city limits, local election precincts,
and voter tabulation district lines. See,
e. g., 861
F. Supp., at 1340 (60% of District 18 and District 29 residents
live in split precincts). This caused a severe disruption of
traditional forms of political activity. Campaigners seeking to
visit their constituents "had to carry a map to identify the
district lines, because so often the borders would move from block
to block"; voters "did not know the candidates running for office"
because they did not know which district they lived in.
Ibid. In light of Texas' requirement that voting be arranged
by precinct, with each precinct representing a community that
shares local, state, and federal representatives, it also created
administrative headaches for local election officials:
"The effect of splitting dozens of [voter tabulation districts]
to create Districts 18 and 29 was an electoral nightmare. Harris
County estimated that it must increase its number of precincts from
672 to 1,225 to accommodate the new Congressional boundaries.
Polling places, ballot forms, and the number of election employees
are correspondingly multiplied. Voters were thrust into new and
unfamiliar precinct alignments, a few with populations as low as 20
voters." Id., at 1325.
See also App. 119-127 (letter from local official setting forth
administrative problems and conflict with local districting
975
traditions);
id., at 147 (map showing splitting of city
limits);
id., at 128, Plaintiffs' Exh. 6El, Attachment A
(map illustrating splitting of voting precincts).
As with District 30, appellants adduced evidence that incumbency
protection played a role in determining the bizarre district lines.
The District Court found that one constraint on the shape of
District 29 was the rival ambitions of its two "functional
incumbents," who distorted its boundaries in an effort to include
larger areas of their existing state legislative constituencies.
861 F. Supp., at 1340. But the District Court's findings amply
demonstrate that such influences were overwhelmed in the
determination of the districts' bizarre shapes by the State's
efforts to maximize racial divisions. The State's VRA § 5
submission explains that the bizarre configuration of Districts 18
and 29 "result[s] in the maximization of minority voting strength"
in Harris County, App. 110, corroborating the District Court's
finding that "[i]n the earliest stages of the Congressional
redistricting process, state Democratic and Republican leaders
rallied behind the idea of creating a new Hispanic safe seat in
Harris County while preserving the safe African-American seat in
District 18." 861 F. Supp., at 1324. State officials testified that
"it was particularly necessary to split [voter tabulation
districts] in order to capture pockets of Hispanic residents" for
District 29, and that a 61 % Hispanic population in that
districtnot a mere majority-was insisted upon.
Id., at
1340-1341. The record evidence of the racial demographics and
voting patterns of Harris County residents belies any suggestion
that party politics could explain the dividing lines between the
two districts: The district lines correlate almost perfectly with
race, see App. 151-152, while both districts are similarly solidly
Democratic, see
id., at 194. And, even more than in District
30, the intricacy of the lines drawn, separating Hispanic voters
from African-American voters on a block-byblock basis, betrays the
critical impact of the block-by-block racial data available on the
REDAPPL program. The Dis-
976
Opinion of O'CONNOR, J.
trict Court's conclusion is, therefore, inescapable: "Because
Districts 18 and 29 are formed in utter disregard for traditional
redistricting criteria and because their shapes are ultimately
unexplainable on grounds other than the racial quotas established
for those districts, they are the product of [presumptively]
unconstitutional racial gerrymandering." 861 F. Supp., at 1341.
III
Having concluded that strict scrutiny applies, we must determine
whether the racial classifications embodied in any of the three
districts are narrowly tailored to further a compelling state
interest. Appellants point to three compelling interests: the
interest in avoiding liability under the "results" test of VRA §
2(b), the interest in remedying past and present racial
discrimination, and the "nonretrogression" principle of VRA § 5
(for District 18 only). We consider them in turn.
A
Section 2(a) of the VRA prohibits the imposition of any
electoral practice or procedure that "results in a denial or
abridgement of the right of any citizen ... to vote on account of
race or color." In 1982, Congress amended the VRA by changing the
language of § 2(a) and adding § 2(b), which provides a "results"
test for violation of § 2(a). A violation exists if,
"based on the totality of circumstances, it is shown that the
political processes leading to nomination or election in the State
or political subdivision are not equally open to participation by
members of a class of citizens protected by subsection (a) of this
section in that its members have less opportunity than other
members of the electorate to participate in the political process
and to elect representatives of their choice." 42 U. S. C. §
1973(b).
977
Appellants contend that creation of each of the three
majority-minority districts at issue was justified by Texas'
compelling state interest in complying with this results test.
As we have done in each of our previous cases in which this
argument has been raised as a defense to charges of racial
gerrymandering, we assume without deciding that compliance with the
results test, as interpreted by our precedents, see,
e. g.,
Growe v.
Emison, 507 U. S. 25, 37-42
(1993), can be a compelling state interest. See
Shaw II,
ante, at
915; Miller, 515 U. S., at 920-921. We also
reaffirm that the "narrow tailoring" requirement of strict scrutiny
allows the States a limited degree of leeway in furthering such
interests. If the State has a "strong basis in evidence,"
Shaw I, 509 U. S., at 656 (internal quotation marks
omitted), for concluding that creation of a majority-minority
district is reasonably necessary to comply with § 2, and the
districting that is based on race "substantially addresses the § 2
violation,"
Shaw II, ante, at 918, it satisfies strict
scrutiny. We thus reject, as impossibly stringent, the District
Court's view of the narrow tailoring requirement, that "a district
must have the least possible amount of irregularity in shape,
making allowances for traditional districting criteria." 861 F.
Supp., at 1343. Cf.
Wygant v.
Jackson Bd. of Ed., 476
U. S. 267, 291 (1986) (O'CONNOR, J., concurring in part and
concurring in judgment) (state actors should not be "trapped
between the competing hazards of liability" by the imposition of
unattainable requirements under the rubric of strict scrutiny).
A § 2 district that is
reasonably compact and regular,
taking into account traditional districting principles such as
maintaining communities of interest and traditional boundaries, may
pass strict scrutiny without having to defeat rival compact
districts designed by plaintiffs' experts in endless "beauty
contests." The dissenters misread us when they make the leap from
our disagreement about the facts of this
978
Opinion of O'CONNOR, J.
suit to the conclusion that we are creating a "stalemate" by
requiring the States to "get things just right,"
post, at
1063 (SOUTER, J., dissenting), or to draw "the precise compact
district that a court would impose in a successful § 2 challenge,"
post, at 1035 (STEVENS, J., dissenting); see also
Shaw
II, ante, at 949 (STEVENS, J., dissenting). Rather, we adhere
to our longstanding recognition of the importance in our federal
system of each State's sovereign interest in implementing its
redistricting plan. See
Voinovich v.
Quilter,
507 U. S. 146,
156 (1993) ("[I]t is the domain of the States, and not the federal
courts, to conduct apportionment in the first place");
Miller,
supra, at 915 ("It is well settled that reapportionment is
primarily the duty and responsibility of the State") (internal
quotation marks omitted). Under our cases, the States retain a
flexibility that federal courts enforcing § 2 lack, both insofar as
they may avoid strict scrutiny altogether by respecting their own
traditional districting principles, and insofar as deference is due
to their reasonable fears of, and to their reasonable efforts to
avoid, § 2 liability. And nothing that we say today should be read
as limiting "a State's discretion to apply traditional districting
principles,"
post, at 1046 (SOUTER, J., dissenting), in
majority-minority, as in other, districts. The constitutional
problem arises only from the subordination of those principles to
race.
Strict scrutiny remains, nonetheless, strict. The State must
have a "strong basis in evidence" for finding that the threshold
conditions for § 2 liability are present:
"first, 'that [the minority group] is sufficiently large and
geographically compact to constitute a majority in a single
member district'; second, 'that it is politically cohesive'; and
third, 'that the white majority votes sufficiently as a bloc to
enable it ... usually to defeat the minority's preferred
candidate.'" Growe, supra, at 40 (emphasis added) (quoting
Thornburg v. Gingles, 478 U. S. 30, 50-51
(1986)).
979
And, as we have noted above, the district drawn in order to
satisfy § 2 must not subordinate traditional districting principles
to race substantially more than is "reasonably necessary" to avoid
§ 2 liability. Districts 18, 29, and 30 fail to meet these
requirements.
We assume, without deciding, that the State had a "strong basis
in evidence" for finding the second and third threshold conditions
for § 2 liability to be present. We have, however, already found
that all three districts are bizarrely shaped and far from compact,
and that those characteristics are predominantly attributable to
gerrymandering that was racially motivated and/or achieved by the
use of race as a proxy. See Part II,
supra. District 30, for
example, reaches out to grab small and apparently isolated minority
communities which, based on the evidence presented, could not
possibly form part of a compact majority-minority district, and
does so in order to make up for minority populations closer to its
core that it shed in a further suspect use of race as a proxy to
further neighboring incumbents' interests. See
supra, at
965-966, 969-973.
These characteristics defeat any claim that the districts are
narrowly tailored to serve the State's interest in avoiding
liability under § 2, because § 2 does not require a State to
create, on predominantly racial lines, a district that is not
"reasonably compact." See
Johnson v.
De Grandy,
512 U. S. 997,
1008 (1994). If, because of the dispersion of the minority
population, a reasonably compact majority-minority district cannot
be created, § 2 does not require a majorityminority district; if a
reasonably compact district can be created, nothing in § 2 requires
the race-based creation of a district that is far from compact.
Appellants argue that bizarre shaping and noncompactness do not
raise narrow tailoring concerns. Appellants Lawson et al. claim
that under
Shaw I and
Miller, "[s]hape is relevant
only as evidence of an improper motive."
980
Opinion of O'CONNOR, J.
Brief for Appellants Lawson et al. 56. They rely on our
statement in
Miller:
"Shape is relevant not because bizarreness is a necessary
element of the constitutional wrong or a threshold requirement of
proof, but because it may be persuasive circumstantial evidence
that race for its own sake, and not other districting principles,
was the legislature's dominant and controlling rationale in drawing
its district lines." 515 U. S., at 913.
The United States takes a more moderate position, accepting that
in the context of narrow tailoring, "consideration must be given to
the extent to which the districts drawn by a State substantially
depart from its customary redistricting practices," Brief for
United States 36, but asserting that insofar as bizarreness and
noncompactness are necessary to achieve the State's compelling
interest in compliance with § 2 "while simultaneously achieving
other legitimate redistricting goals,"
id., at 37, such as
incumbency protection, the narrowly tailoring requirement is
satisfied. Similarly, JUSTICE STEVENS' dissent argues that
"noncompact districts should ... be a permissible method of
avoiding violations of [§ 2]."
Post, at 1034.
These arguments cannot save the districts before us. The Lawson
appellants misinterpret
Miller: District shape is not
irrelevant to the narrow tailoring inquiry. Our discussion in
Miller served only to emphasize that the ultimate
constitutional values at stake involve the harms caused by the use
of unjustified racial classifications, and that bizarreness is not
necessary to trigger strict scrutiny. See
Miller, 515 U. S.,
at 912-913. Significant deviations from traditional districting
principles, such as the bizarre shape and noncompactness
demonstrated by the districts here, cause constitutional harm
insofar as they convey the message that political identity is, or
should be, predominantly racial. For example, the bizarre shaping
of Districts 18 and 29, cutting across pre-
981
existing precinct lines and other natural or traditional
divisions, is not merely evidentially significant; it is part of
the constitutional problem insofar as it disrupts nonracial bases
of political identity and thus intensifies the emphasis on
race.
Nor is the United States' argument availing here. In determining
that strict scrutiny applies here, we agreed with the District
Court that in fact the bizarre shaping and noncompactness of these
districts were predominantly attributable to racial, not political,
manipulation. The United States' argument, and that of the dissent,
post, at 1033-1035 (STEVENS, J., dissenting), address the
case of an otherwise compact majority-minority district that is
misshapen by predominantly nonracial, political manipulation. See
also
post, at 1068 (SOUTER, J., dissenting) (raising "the
possibility that a State could create a majority-minority district
that does not coincide with the
Gingles shape so long as
racial data are not overused"). We disagree with the factual
premise of JUSTICE STEVENS' dissent, that these districts were
drawn using "racial considerations only in a way reasonably
designed" to avoid a § 2 violation,
post, at 1035. The
districts before us exhibit a level of racial manipulation that
exceeds what § 2 could justify.
B
The United States and the State next contend that the district
lines at issue are justified by the State's compelling interest in
"ameliorating the effects of racially polarized voting attributable
to past and present racial discrimination." Brief for United States
32; Brief for Appellants Bush et al. 24-25. In support of that
contention, they cite Texas' long history of discrimination against
minorities in electoral processes, stretching from the
Reconstruction to modern times, including violations of the
Constitution and of the VRA. See,
e. g., Williams v.
Dallas, 734 F. Supp. 1317 (ND Tex.
1990); White v.
Regester, 412
U. S. 755 (1973);
Terry v.
Adams, 345 U. S. 461 (1953);
Smith v.
Allwright, 321 U. S. 649 (1944);
Nixon v.
Condon, 286 U. S. 73 (1932);
Nixon v.
982
Opinion of O'CONNOR, J.
Herndon, 273 U. S. 536 (1927); see
also 861 F. Supp., at 1317 (because of its history of official
discrimination, Texas became a covered jurisdiction under VRA § 5
in 1975, and the Department of Justice has since "frequently
interposed objections against the State and its subdivisions").
Appellants attempt to link that history to evidence that in recent
elections in majority-minority districts, "Anglos usually bloc
voted against" Hispanic and African-American candidates.
Ibid.
A State's interest in remedying discrimination is compelling
when two conditions are satisfied. First, the discrimination that
the State seeks to remedy must be specific, "identified
discrimination"; second, the State "must have had a 'strong basis
in evidence' to conclude that remedial action was necessary,
'before it embarks on an affirmative action program.'''
Shaw II, ante, at 910 (citations omitted). Here, the only
current problem that appellants cite as in need of remediation is
alleged vote dilution as a consequence of racial bloc voting, the
same concern that underlies their VRA § 2 compliance defense, which
we have assumed to be valid for purposes of this opinion. We have
indicated that such problems will not justify race-based
districting unless "the State employes] sound districting
principles, and ... the affected racial group's residential
patterns afford the opportunity of creating districts in which they
will be in the majority."
Shaw I, 509 U. S., at 657
(internal quotation marks omitted). Once that standard is applied,
our agreement with the District Court's finding that these
districts are not narrowly tailored to comply with § 2 forecloses
this line of defense.
C
The final contention offered by the State and private appellants
is that creation of District 18 (only) was justified by a
compelling state interest in complying with VRA § 5. We have made
clear that § 5 has a limited substantive goal: "'to insure that no
voting-procedure changes would be made that
983
would lead to a retrogression in the position of racial
minorities with respect to their effective exercise of the
electoral franchise.'"
Miller, 515 U. S., at 926 (quoting
Beer v.
United States, 425 U. S. 130, 141
(1976)). Appellants contend that this "nonretrogression" principle
is implicated because Harris County had, for two decades, contained
a congressional district in which African-American voters had
succeeded in selecting representatives of their choice, all of whom
were African-Americans.
The problem with the State's argument is that it seeks to
justify not maintenance, but substantial augmentation, of the
African-American population percentage in District 18. At the
previous redistricting, in 1980, District 18's population was 40.8%
African-American. Plaintiffs' Exh. 13B, p. 55. As a result of
Hispanic population increases and AfricanAmerican emigration from
the district, its population had reached 35.1% African-American and
42.2% Hispanic at the time of the 1990 census. The State has shown
no basis for concluding that the
increase to a 50.9%
African-American population in 1991 was necessary to ensure
nonretrogression. Nonretrogression is not a license for the State
to do whatever it deems necessary to ensure continued electoral
success; it merely mandates that the minority's
opportunity to elect representatives of its choice not be
diminished, directly or indirectly, by the State's actions. We
anticipated this problem in
Shaw I, 509 U. S., at 655: "A
reapportionment plan would not be narrowly tailored to the goal of
avoiding retrogression if the State went beyond what was reasonably
necessary to avoid retrogression." Applying that principle, it is
clear that District 18 is not narrowly tailored to the avoidance of
§ 5 liability.
IV
The dissents make several further arguments against today's
decision, none of which address the specifics of this case. We have
responded to these points previously. JusTICE SOUTER, for example,
reiterates his contention from
984
Opinion of O'CONNOR, J.
Shaw I that because districts created with a view to
satisfying § 2 do not involve "racial subjugation,"
post, at
1055, and may in a sense be "'benign[lyJ''' motivated,
Shaw
I, 509 U. S., at 685 (SOUTER, J., dissenting), strict
scrutiny should not apply to them. We rejected that argument in
Shaw I, and we reject it now. As we explained then,
see
id., at 653, we subject racial classifications to strict
scrutiny precisely because that scrutiny is necessary to determine
whether they are benign-as JUSTICE STEVENS' hypothetical of a
targeted outreach program to protect victims of sickle cell anemia,
see
post, at 1032, would, no doubt, be-or whether they
misuse race and foster harmful and divisive stereotypes without a
compelling justification. We see no need to revisit our prior
debates.
Both dissents contend that the recognition of the
Shaw I
cause of action threatens public respect for, and the independence
of, the Federal Judiciary by inserting the courts deep into the
districting process. We believe that the dissents both exaggerate
the dangers involved, and fail to recognize the implications of
their suggested retreat from
Shaw 1.
As to the dangers of judicial entanglement, JUSTICE STEVENS'
dissent makes much of cases stemming from state districting plans
originally drawn up before
Shaw I, in which problems
have arisen from the uncertainty in the law prior to and during its
gradual clarification in
Shaw I, Miller, and
today's cases. See
post, at 1037-1038 (STEVENS, J.,
dissenting). We are aware of the difficulties faced by the States,
and by the district courts, in confronting new constitutional
precedents, and we also know that the nature of the expressive
harms with which we are dealing, and the complexity of the
districting process, are such that bright-line rules are not
available. But we believe that today's decisions, which both
illustrate the defects that offend the principles of
Shaw
I and reemphasize the importance of the States' discretion
in the redistricting process, see
supra, at 978-979, will
serve
985
to clarify the States' responsibilities. The States have
traditionally guarded their sovereign districting prerogatives
jealously, and we are confident that they can fulfill that
requirement, leaving the courts to their customary and appropriate
backstop role.
This Court has now rendered decisions after plenary
consideration in five cases applying the
Shaw I doctrine
(Shaw I, Miller, Hays, Shaw II, and this suit). The
dissenters would have us abandon those precedents, suggesting that
fundamental concerns relating to the judicial role are at stake.
See
post, at 1035, 1038, 1041 (STEVENS, J., dissenting);
post, at 1047, and n. 2, 1052, 1064, 1074, 1076-1077
(SouTER, J., dissenting);
Shaw II, ante, at 919-920,
922-923, and n. 3, 929 (STEVENS, J., dissenting); but see
ante, at 932-933 (noting that the judicial task of
distinguishing race-based from non-race-based action in
Shaw
I cases is far from unique). While we agree that those concerns
are implicated here, we believe they point the other way. Our
legitimacy requires, above all, that we adhere to
stare
decisis, especially in such sensitive political contexts as the
present, where partisan controversy abounds. Legislators and
district courts nationwide have modified their practices-or,
rather, reembraced the traditional districting practices that were
almost universally followed before the 1990 census-in response to
Shaw 1. Those practices and our precedents, which
acknowledge voters as more than mere racial statistics, play an
important role in defining the political identity of the American
voter. Our Fourteenth Amendment jurisprudence evinces a commitment
to eliminate unnecessary and excessive governmental use and
reinforcement of racial stereotypes. See,
e. g., Georgia v.
McCollum, 505
U. S. 42, 59 (1992) ("[T]he exercise of a peremptory challenge
must not be based on either the race of the juror or the racial
stereotypes held by the party");
Edmonson v.
Leesville
Concrete Co., 500 U. S. 614, 630-631
(1991) ("If our society is to continue to progress as a multiracial
democracy, it must recog-
986
Opinion of O'CONNOR, J.
nize that the automatic invocation of race stereotypes retards
that progress and causes continued hurt and injury");
Powers, 499 U. S., at 410 ("We may not accept as a defense
to racial discrimination the very stereotype the law condemns");
Holland v.
Illinois, 493 U. S. 474, 484, n. 2
(1990) ("[A] prosecutor's 'assumption that a black juror may be
presumed to be partial simply because he is black' ... violates the
Equal Protection Clause");
Batson v.
Kentucky,
476 U. S. 79, 104
(1986) ("[T]he Equal Protection Clause prohibits a State from
taking any action based on crude, inaccurate racial stereotypes").
We decline to retreat from that commitment today.
***
The judgment of the District Court is
Affirmed.
987
APPENDIX A TO OPINION OF O'CONNOR, J.
TEXAS CONGRESSIONAL DISTRICT 30
988
Apppendix B to opinion of O'CONNOR, J.
APPENDIX B TO OPINION OF O'CONNOR, J.
TEXAS CONGRESSIONAL DISTRICT 18
989
APPENDIX C TO OPINION OF O'CONNOR, J.
TEXAS CONGRESSIONAL DISTRICT 29
990
JUSTICE O'CONNOR, concurring.
I write separately to express my view on two points.
First, compliance with the results test of § 2 of the Voting
Rights Act (VRA) is a compelling state interest. Second, that test
can coexist in principle and in practice with
Shaw v.
Reno, 509 U.
S. 630 (1993), and its progeny, as elaborated in today's
opinions.
I
As stated in the plurality opinion,
ante, at 977
(O'CONNOR, J., joined by REHNQUIST, C. J., and KENNEDY, J.), this
Court has thus far assumed without deciding that compliance with
the results test of VRA § 2(b) is a compelling state interest. See
Shaw v.
Hunt, ante, at 915
(Shaw II); Miller
v.
Johnson, 515 U. S. 900, 920-921
(1995). Although that assumption is not determinative of the
Court's decisions today, I believe that States and lower courts are
entitled to more definite guidance as they toil with the twin
demands of the Fourteenth Amendment and the VRA.
The results test is violated if,
"based on the totality of circumstances, it is shown that the
political processes leading to nomination or election in the State
or political subdivision are not equally open to participation by
members of [e. g., a racial minority group] in that its
members have less opportunity than other members of the electorate
to participate in the political process and to elect
representatives of their choice." 42 U. S. C. § 1973(b).
In the 14 years since the enactment of § 2(b), we have
interpreted and enforced the obligations that it places on States
in a succession of cases, assuming but never directly addressing
its constitutionality. See
Johnson v.
De Grandy,
512 U. S. 997
(1994);
Holder v.
Hall, 512 U. S. 874 (1994);
Voinovich v.
Quilter, 507 U. S. 146 (1993);
Growe v.
Emison, 507 U. S. 25, 37-42
(1993);
Chisom v.
Roemer, 501 U. S. 380
(1991); Thornburg v.
Gingles, 478 U. S. 30 (1986); cf.
Chisom,
991
supra, at 418 (KENNEDY, J., dissenting) (noting that a
constitutional challenge to the statute was not before the Court).
Meanwhile, lower courts have unanimously affirmed its
constitutionality. See
United States v.
Marengo County
Comm'n, 731 F.2d
1546, 1556-1563 (CAll), cert. denied, 469 U. S. 976 (1984);
Jones v.
Lubbock, 727 F.2d
364, 372-375 (CA5 1984);
Shaw v.
Hunt, 861 F.
Supp. 408, 438 (EDNC 1994), aff'd,
Shaw II, ante, p. 899;
Prosser v.
Elections Bd., 793 F. Supp. 859, 869 (WD
Wis. 1992);
Wesley v.
Collins, 605 F. Supp. 802, 808
(MD Tenn. 1985), aff'd,
791 F.2d
1255 (CA6
1986); Jordan v.
Winter, 604 F. Supp.
807, 811 (ND Miss.), aff'd
sub nom. Allain v.
Brooks,
469 U. S. 1002
(1984);
Sierra v.
El Paso Independent School Dist.,
591 F. Supp. 802, 806 (WD Tex. 1984);
Major v.
Treen,
574 F. Supp. 325, 342-349 (ED La. 1983); accord, Hartman, Racial
Vote Dilution and Separation of Powers: An Exploration of the
Conflict Between the Judicial "Intent" and the Legislative
"Results" Standards, 50 Geo. Wash. L. Rev. 689, 739-752 (1982). Cf.
South Carolina v.
Katzenbach, 383 U. S. 301 (1966)
(upholding the original VRA as a valid exercise of Congress' power
under § 2 of the Fifteenth Amendment);
Fullilove v.
Klutznick, 448
U. S. 448, 477 (1980)
(Katzenbach and its successors
interpreting § 2 of the Fifteenth Amendment "confirm that
congressional authority extends beyond the prohibition of
purposeful discrimination to encompass state action that has
discriminatory impact perpetuating the effects of past
discrimination");
White v.
Alabama, 867 F. Supp.
1519, 1549 (MD Ala. 1994) (the results test "has not been held
unconstitutional and complying with it remains a strong state
interest"), vacated and remanded on other grounds,
74 F.3d
1058, 1069 (CAll 1996) (noting that "Section 2 was enacted to
enforce the Fifteenth Amendment's prohibition against denying a
citizen the right to vote 'on account of race' ").
Against this background, it would be irresponsible for a State
to disregard the § 2 results test. The Supremacy Clause obliges the
States to comply with all constitutional
992
exercises of Congress' power. See U. S. Const., Art. VI, cl. 2.
Statutes are presumed constitutional, see,
e. g.,
Fairbank v.
United States, 181 U. S. 283, 285
(1901), and that presumption appears strong here in light of the
weight of authority affirming the results test's constitutionality.
In addition, fundamental concerns of federalism mandate that States
be given some leeway so that they are not "trapped between the
competing hazards of liability."
Wygant v.
Jackson Bd. of
Ed., 476 U. S.
267, 291 (1986) (O'CONNOR, J., concurring). We should allow
States to assume the constitutionality of § 2 of the VRA, including
the 1982 amendments.
This conclusion is bolstered by concerns of respect for the
authority of Congress under the Reconstruction Amendments. See
City of Rome v.
United States, 446 U. S. 156, 179
(1980). The results test of § 2 is an important part of the
apparatus chosen by Congress to effectuate this Nation's commitment
"to confront its conscience and fulfill the guarantee of the
Constitution" with respect to equality in voting. S. Rep. No.
97-417, p. 4 (1982). Congress considered the test "necessary and
appropriate to ensure full protection of the Fourteenth and
Fifteenth Amendments rights."
Id., at 27. It believed that
without the results test, nothing could be done about "overwhelming
evidence of unequal access to the electoral system,"
id., at
26, or about "voting practices and procedures [that] perpetuate the
effects of past purposeful discrimination,"
id., at 40. And
it founded those beliefs on the sad reality that "there still are
some communities in our Nation where racial politics do dominate
the electoral process."
Id., at 33. Respect for those
legislative conclusions mandates that the § 2 results test be
accepted and applied unless and until current lower court precedent
is reversed and it is held unconstitutional.
In my view, therefore, the States have a compelling interest in
complying with the results test as this Court has interpreted
it.
993
II
Although I agree with the dissenters about § 2's role as part of
our national commitment to racial equality, I differ from them in
my belief that that commitment can and must be reconciled with the
complementary commitment of our Fourteenth Amendment jurisprudence
to eliminate the unjustified use of racial stereotypes. At the same
time that we combat the symptoms of racial polarization in
politics, we must strive to eliminate unnecessary race-based state
action that appears to endorse the disease.
Today's decisions, in conjunction with the recognition of the
compelling state interest in compliance with the reasonably
perceived requirements of § 2, present a workable framework for the
achievement of these twin goals. I would summarize that framework,
and the rules governing the States' consideration of race in the
districting process, as follows.
First, so long as they do not subordinate traditional
districting criteria to the use of race for its own sake or as a
proxy, States may intentionally create majority-minority districts,
and may otherwise take race into consideration, without coming
under strict scrutiny. See
ante, at 958-959 (plurality
opinion);
post, at 1008-1011, and n. 8, 1025 (STEVENS, J.,
dissenting);
post, at 1056, 1065, 1073 (SOUTER, J.,
dissenting). Only if traditional districting criteria are neglected
and that neglect is predominantly due to the misuse of race
does strict scrutiny apply.
Ante, at 962, 964, 978
(plurality opinion).
Second, where voting is racially polarized, § 2 prohibits States
from adopting districting schemes that would have the effect that
minority voters "have less opportunity than other members of the
electorate to ... elect representatives of their choice." § 2(b).
That principle may require a State to create a majority-minority
district where the three
Gingles factors are present-viz.,
(i) the minority group "is sufficiently large and geographically
compact to constitute a
994
majority in a single-member district," (ii) "it is politically
cohesive," and (iii) "the white majority votes sufficiently as a
bloc to enable it ... usually to defeat the minority's preferred
candidate,"
Thornburg v.
Gingles, 478 U. S., at
50-51.
Third, the state interest in avoiding liability under VRA § 2 is
compelling. See
supra, at 990-992;
post, at 1033
(STEVENS, J., dissenting);
post, at 1065 (SOUTER, J.,
dissenting). If a State has a strong basis in evidence for
concluding that the
Gingles factors are present, it may
create a majorityminority district without awaiting judicial
findings. Its "strong basis in evidence" need not take any
particular form, although it cannot simply rely on generalized
assumptions about the prevalence of racial bloc voting.
Fourth, if a State pursues that compelling interest by creating
a district that "substantially addresses" the potential liability,
Shaw II, ante, at 918, and does not deviate substantially
from a hypothetical court-drawn § 2 district for predominantly
racial reasons, cf.
ante, at 979 (plurality opinion)
(explaining how District 30 fails to satisfy these criteria), its
districting plan will be deemed narrowly tailored. Cf.
ante,
at 981 (plurality opinion) (acknowledging this possibility);
post, at 1068 (SOUTER, J., dissenting) (same);
post,
at 10331035 (STEVENS, J., dissenting) (contending that it is
applicable here).
Finally, however, districts that are bizarrely shaped and
noncompact, and that otherwise neglect traditional districting
principles and deviate substantially from the hypothetical
court-drawn district,
for predominantly racial reasons, are
unconstitutional. See
ante, at 979 (plurality opinion).
District 30 illustrates the application of these principles.
Dallas County has a history of racially polarized voting. See,
e. g., White v.
Regester, 412 U. S. 755, 765-767
(1973);
Lipscomb v.
Wise, 399 F. Supp. 782, 785-786
(ND Tex. 1975), rev'd,
551 F.2d
1043 (CA5 1977), rev'd,
437 U. S. 535 (1978). One
year before the redistricting at issue here, a District Court
invalidated under § 2 the Dallas City Council election
995
scheme, finding racial polarization and that candidates
preferred by African-American voters were consistently defeated.
See
Williams v.
Dallas, 734 F. Supp. 1317, 13871394
(ND Tex. 1990). Expert testimony in this litigation also confirmed
the existence of racially polarized voting in and around Dallas
County. 4 Tr. 187; see also App. 227. With respect to geographical
compactness, the record contains two quite different possible
designs for District 30, the original Johnson Plan,
id., at
139, and the Owens-Pate Plan,
id., at 141, that are
reasonably compact and include, respectively, 44% and 45.6%
African-American populations. This evidence provided a strong basis
for Texas' belief that the creation of a majority-minority district
was appropriate. But Texas allowed race to dominate the drawing of
District 30 to the almost total exclusion of nonracial districting
considerations, and ultimately produced a district that, because of
the misuse of race as a proxy in addition to legitimate efforts to
satisfy § 2, is bizarrely shaped and far from compact. See
ante, at 965-966, 969-973, and n. (plurality opinion);
compare
post, at 1014-1032 (STEVENS, J., dissenting). It
thus came under strict scrutiny and failed the narrow tailoring
test.
As the disagreement among Members of this Court over District 30
shows, the application of the principles that I have outlined
sometimes requires difficult exercises of judgment. That difficulty
is inevitable. The VRA requires the States and the courts to take
action to remedy the reality of racial inequality in our political
system, sometimes necessitating race-based action, while the
Fourteenth Amendment requires us to look with suspicion on the
excessive use of racial considerations by the government. But I
believe that the States, playing a primary role, and the courts, in
their secondary role, are capable of distinguishing the appropriate
and reasonably necessary uses of race from its unjustified and
excessive uses.
996
JUSTICE KENNEDY, concurring.
I join the plurality opinion, but the statements in Part II of
the opinion that strict scrutiny would not apply to all cases of
intentional creation of majority-minority districts,
ante,
at 958, 962-963, require comment. Those statements are unnecessary
to our decision, for strict scrutiny applies here. I do not
consider these dicta to commit me to any position on the question
whether race is predominant whenever a State, in redistricting,
foreordains that one race be the majority in a certain number of
districts or in a certain part of the State. In my view, we would
no doubt apply strict scrutiny if a State decreed that certain
districts had to be at least 50 percent white, and our analysis
should be no different if the State so favors minority races.
We need not answer this question here, for there is ample
evidence that otherwise demonstrates the predominance of race in
Texas' redistricting, as the plurality shows,
ante, at
958-976. And this question was not at issue in
De Witt v.
Wilson, 856 F. Supp. 1409 (ED Cal. 1994), summarily aff'd in
part and dism'd in part, 515 U. S. 1170 (1995). (I note that our
summary affirmance in
De Witt stands for no proposition
other than that the districts reviewed there were constitutional.
We do not endorse the reasoning of the district court when we order
summary affirmance of the judgment.
Mandel v.
Bradley, 432
U. S. 173, 176 (1977)
(per curiam); Edelman v.
Jordan, 415 U.
S. 651, 671 (1974).)
On the narrow-tailoring issue, I agree that the districts
challenged here were not reasonably necessary to serve the assumed
compelling state interest in complying with § 2 of the Voting
Rights Act of 1965, 42 U. S. C. § 1973. As the plurality opinion
indicates,
ante, at 978, in order for compliance with § 2 to
be a compelling interest, the State must have a strong basis in the
evidence for believing that all three of the threshold conditions
for a § 2 claim are met:
"[F]irst, 'that [the minority group] is sufficiently large and
geographically compact to constitute a majority in
997
a single-member district'; second, 'that it is politically
cohesive'; and third, 'that the white majority votes sufficiently
as a bloc to enable it ... usually to defeat the minority's
preferred candidate.'" Growe v. Emison, 507 U. S. 25, 40 (1993),
quoting Thornburg v. Gingles, 478 U. S. 30, 50-51
(1986).
The first
Gingles condition refers to the compactness of
the minority population, not to the compactness of the contested
district. As the plurality observes: "If, because of the dispersion
of the minority population, a reasonably compact majority-minority
district cannot be created, § 2 does not require a
majority-minority district .... "
Ante, at 979. We may
assume, as the plurality does expressly,
ibid., that there
was sufficient evidence of racial polarization to fulfill the
second and third
Gingles conditions, and we may assume, as
must be done to reach the narrow-tailoring question, that the
African-American and Hispanic populations in Harris County and the
African-American population in Dallas County were each concentrated
enough to form a majority in a reasonably compact district, thereby
meeting the first
Gingles condition.
If a State has the assumed compelling interest in avoiding § 2
liability, it still must tailor its districts narrowly to serve
that interest. "[T]he districting that is based on race [must]
'substantially addres[s] the § 2 violation.'"
Ante, at 977
(quoting
Shaw v.
Hunt, ante, at 918
(Shaw
II)). The State may not engage in districting based on race
except as reasonably necessary to cure the anticipated § 2
violation, nor may it use race as a proxy to serve other interests.
Ante, at 979. The plurality gives as an example of the
former the fact that "District 30 ... reaches out to grab small and
apparently isolated minority communities which, based on the
evidence presented, could not possibly form part of a compact
majority-minority district."
Ibid. (referring to tentacles
of District 30 that coil around outlying African-American
communities in Collin and Tarrant Counties,
ante, at
965-
998
966). And, as the plurality further holds in a portion of its
predominant-factor analysis that is central to the narrowtailoring
inquiry, District 30 also involved the illicit use of race as a
proxy when legislators shifted blocs of AfricanAmerican voters to
districts of incumbent Democrats in order to promote partisan
interests. See
ante, at 968-970.
N arrow tailoring is absent in Districts 18 and 29 as well.
Although the State could have drawn either a
majorityAfrican-American or majority-Hispanic district in Harris
County without difficulty, there is no evidence that two reasonably
compact majority-minority districts could have been drawn there. Of
the major alternative plans considered below, only the Owens-Pate
plan drew majority-AfricanAmerican and majority-Hispanic districts
in Harris County, App. 142, but those districts were not compact.
Section 2 does not require the State to create two noncompact
majority-minority districts just because a compact district could
be drawn for either minority independently. See
ante, at 979
("§ 2 does not require a State to create, on predominantly racial
lines, a district that is not 'reasonably compact' ");
Johnson v.
De Grandy, 512 U. S. 997, 1024
(1994) (affirming, upon a finding of no vote dilution, District
Court decision not to give § 2 remedies to both African-Americans
and Hispanics because population overlap made the remedies mutually
exclusive). The race-based districting that the State performed in
drawing Districts 18, 29, and 30 was not justified by § 2, or
indeed by any other compelling interest, either real or assumed.
That itself suffices to defeat the State's claim that those three
districts were narrowly tailored.
Shaw II, ante, at 915-918.
(In this respect, I disagree with the apparent suggestion in
JUSTICE O'CONNOR'S separate concurrence that a court should conduct
a second predominant-factor inquiry in deciding whether a district
was narrowly tailored, see
ante, at 994. There is nothing
in
999
the plurality opinion or any opinion of the Court to support
that proposition. The simple question is whether the racebased
districting was reasonably necessary to serve a compelling
interest.)
While § 2 does not require a noncompact majority-minority
district, neither does it forbid it, provided that the rationale
for creating it is proper in the first instance. Districts not
drawn for impermissible reasons or according to impermissible
criteria may take any shape, even a bizarre one. States are not
prevented from taking into account race-neutral factors in drawing
permissible majority-minority districts. If, however, the bizarre
shape of the district is attributable to race-based districting
unjustified by a compelling interest
(e. g., gratuitous
race-based districting or use of race as a proxy for other
interests), such districts may "cause constitutional harm insofar
as they convey the message that political identity is, or should
be, predominantly racial,"
ante, at 980. While districts
"may pass strict scrutiny without having to defeat rival compact
districts designed by plaintiffs' experts in endless 'beauty
contests,'"
ante, at 977, the District Court was right to
declare unconstitutional the egregious, unjustified race-based
districting that occurred here.
JUSTICE THOMAS, with whom JUSTICE SCALIA joins, concurring in
the judgment.
In my view, application of strict scrutiny in this suit was
never a close question. I cannot agree with JUSTICE O'CONNOR'S
assertion that strict scrutiny is not invoked by the intentional
creation of majority-minority districts. See
ante, at 958.
Though
Shaw v.
Reno, 509 U. S. 630, 649 (1993)
(Shaw I), expressly reserved that question, we effectively
resolved it in subsequent cases. Only last Term, in
Adarand
Constructors, Inc. v.
Pena, 515 U. S. 200, 227
(1995), we vigorously asserted that all governmental racial
classifica-
1000
THOMAS, J., concurring in judgment
tions must be strictly scrutinized.1 And in
Miller v.
Johnson, 515
U. S. 900 (1995), Georgia's concession that it intentionally
created majority-minority districts was sufficient to show that
race was a predominant, motivating factor in its redistricting.
Id., at 918-919.
Strict scrutiny applies to all governmental classifications
based on race, and we have expressly held that there is no
exception for race-based redistricting.
Id., at 913-915;
Shaw I, supra, at 643-647. While we have recognized the
evidentiary difficulty of proving that a redistricting plan is, in
fact, a racial gerrymander, see
Miller, supra, at 916-917;
Shaw I, 509 U. S., at 646-647, we have never suggested that
a racial gerrymander is subject to anything less than strict
scrutiny. See
id., at 646 ("The difficulty of proof, of
course, does not mean that a racial gerrymander, once established,
should receive less scrutiny under the Equal Protection Clause than
other state legislation classifying citizens by race").
In
Shaw I, we noted that proving a racial gerrymander
"sometimes will not be difficult at all,"
ibid., and
suggested that evidence of a highly irregular shape or disregard
for traditional race-neutral districting principles could suffice
to invoke strict scrutiny. We clarified in
Miller that a
plaintiff may rely on both circumstantial and direct evidence and
said that a plaintiff "must prove that the legislature subordinated
traditional race-neutral districting principles ... to racial
considerations." 515 U. S., at 916. The shape of Georgia's Eleventh
District was itself "quite compelling" evidence of
1 In
Adarand, we overruled
Metro Broadcasting,
Inc. v.
FCC, 497 U. S. 547 (1990), and
held that strict scrutiny applies to racial classifications by the
Federal Government as well as to those by the States. For quite
some time, however, we have consistently held that race-based
classifications by the States must be strictly scrutinized. See,
e. g., Richmond v.
J. A. Croson Co., 488 U. S. 469, 493-494
(1989) (plurality opinion);
id., at 520 (SCALIA, J.,
concurring in judgment);
Wygant v.
Jackson Bd. of
Ed., 476 U. S.
267, 273 (1986) (plurality opinion);
id., at 285
(O'CONNOR, J., concurring in part and concurring in judgment).
1001
a racial gerrymander, but there was other evidence that showed
that the legislature was motivated by a "predominant, overriding
desire" to create a third majority-black district. That evidence
was the State's own concession that the legislature had
intentionally created an additional majorityblack district. See
id., at 918-919. On that record, we found that the District
Court could not have "reached any conclusion other than that race
was the predominant factor in drawing Georgia's Eleventh District."
Id., at 918.
We have said that impermissible racial classifications do not
follow inevitably from a legislature's mere awareness of racial
demographics. See
id., at 916;
Shaw I, supra, at 646.
But the intentional creation of a majority-minority district
certainly means more than mere awareness that application of
traditional, race-neutral districting principles will result in the
creation of a district in which a majority of the district's
residents are members of a particular minority group. See
Personnel Administrator of Mass. v.
Feeney, 442 U. S. 256, 279 (1979)
(distinguishing discriminatory intent from "intent as volition" or
"intent as awareness of consequences"). In my view, it means that
the legislature affirmatively undertakes to create a
majority-minority district that would not have existed but for the
express use of racial classifications-in other words, that a
majority-minority district is created "because of," and not merely
"in spite of," racial demographics. See
ibid. When that
occurs, traditional race-neutral districting principles are
necessarily subordinated (and race necessarily predominates), and
the legislature has classified persons on the basis of race. The
resulting redistricting must be viewed as a racial gerrymander.
Our summary affirmance of
De Witt v.
Wilson, 856
F. Supp. 1409 (ED Cal. 1994), summarily aff'd in part and dism'd in
part, 515 U. S. 1170 (1995), cannot justify exempting intentional
race-based redistricting from our well-established Fourteenth
Amendment standard. "When we summarily
1002
THOMAS, J., concurring in judgment
affirm, without opinion, the judgment of a three-judge district
court we affirm the judgment but not necessarily the reasoning by
which it was reached. An unexplicated summary affirmance settles
the issues for the parties, and is not to be read as a renunciation
by this Court of doctrines previously announced in our opinions
after full argument."
Fusari v.
Steinberg, 419 U. S. 379, 391-392
(1975) (Burger, C. J., concurring) (footnote omitted). I would not
read our summary affirmance of
De Witt to eviscerate the
explicit holding of
Adarand or to undermine the force of our
discussion of Georgia's concessions in
Miller.
In this suit, Texas readily admits that it intentionally created
majority-minority districts and that those districts would not have
existed but for its affirmative use of racial demographics. As the
State concedes in its brief:
"Texas intentionally maintained [District] 18 as an
African-American opportunity district and intentionally created
[Districts] 29 and 30 as minority opportunity districts in order to
comply voluntarily with its reasonable belief, based upon strong
evidence, that it was required to do so by the Voting Rights Act,
and because it desired to insure that minorities who have
historically been excluded from the electoral process in Texas had
a reasonable opportunity to elect candidates of their choice."
Brief for State Appellants 25.
See also
ante, at 959-961, 969-970 (reciting similar
concessions by Texas). That is enough to require application of
strict scrutiny in this suit.2 I am content to reaffirm our holding
in
Adarand that all racial classifications by government
must be strictly scrutinized and, even in the
2 It is unnecessary to parse in detail the contours of each
challenged district. See
ante, at 965-976. I agree that the
geographic evidence is itself sufficient to invoke strict scrutiny,
but once the State directly conceded that it intentionally used
racial classifications to create majorityminority districts, there
was no need to rely on circumstantial evidence.
1003
sensitive area of state legislative redistricting, I would make
no exceptions.
I am willing to assume without deciding that the State has
asserted a compelling state interest. Given that assumption, I
agree that the State's redistricting attempts were not narrowly
tailored to achieve its asserted interest. I concur in the
judgment.
JUSTICE STEVENS, with whom JUSTICE GINSBURG and JUSTICE BREYER
join, dissenting.
The 1990 census revealed that Texas' population had grown, over
the past decade, almost twice as fast as the population of the
country as a whole. As a result, Texas was entitled to elect three
additional Representatives to the United States Congress, enlarging
its delegation from 27 to 30. Because Texas' growth was
concentrated in south Texas and the cities of Dallas and Houston,
the state legislature concluded that the new congressional
districts should be carved out of existing districts in those
areas. The consequences of the political battle that produced the
new map are some of the most oddly shaped congressional districts
in the United States.
Today, the Court strikes down three of Texas' majorityminority
districts, concluding,
inter alia, that their odd shapes
reveal that the State impermissibly relied on predominantly racial
reasons when it drew the districts as it did. For two reasons, I
believe that the Court errs in striking down those districts.
First, I believe that the Court has misapplied its own tests for
racial gerrymandering, both by applying strict scrutiny to all
three of these districts, and then by concluding that none can meet
that scrutiny. In asking whether strict scrutiny should apply, the
Court improperly ignores the "complex interplay" of political and
geographical considerations that went into the creation of Texas'
new congressional districts,
Miller v.
Johnson,
515 U. S. 900,
915-916 (1995), and
1004
focuses exclusively on the role that race played in the State's
decisions to adjust the shape of its districts. A quick comparison
of the unconstitutional majority-minority districts with three
equally bizarre majority-Anglo districts, compare
ante, at
Appendixes A-C, with
infra, at Appendixes A-C, demonstrates
that race was not necessarily the predominant factor contorting the
district lines. I would follow the fair implications of the
District Court's findings,l and conclude that Texas' entire map is
a political, not a racial, gerrymander.2 See Part IV;
infra.
Even if strict scrutiny applies, I would find these districts
constitutional, for each considers race only to the extent
necessary to comply with the State's responsibilities under the
Voting Rights Act while achieving other race-neutral political and
geographical requirements. The plurality's finding to the contrary
unnecessarily restricts the ability of States to conform their
behavior to the Voting Rights Act while simultaneously complying
with other race-neutral goals. See Part V,
infra.
Second, even if I concluded that these districts failed an
appropriate application of this still-developing law to
appropriately read facts, I would not uphold the District Court
decision. The decisions issued today serve merely to rein-
1 The District Court recognized, but erroneously ignored, the
overwhelming weight of evidence demonstrating that political
considerations dominated the shaping of Texas' congressional
districts. See
Vera v.
Richards, 861 F. Supp. 1304,
1331, 1334-1336 (SD Tex. 1994);
infra, at 1027-1029.
2 Because I believe that political gerrymanders are more
objectionable than the "racial gerrymanders" perceived by the Court
in recent cases, see
Karcher v.
Daggett, 462 U. S. 725, 748 (1983)
(STEVENS, J., concurring);
Davis v.
Bandemer,
478 U. S. 109,
161-162, 166 (1986) (Powell, J., concurring in part and dissenting
in part), I am not entirely unsympathetic to the Court's holding. I
believe, however, that the evils of political gerrymandering should
be confronted directly, rather than through the racespecific
approach that the Court has taken in recent years. See also
infra, at 1038-1040.
1005
force my conviction that the Court has, with its "analytically
distinct" jurisprudence of racial gerrymandering,
Shaw v.
Reno, 509 U.
S. 630, 652 (1993)
(Shaw 1), struck out into a
jurisprudential wilderness that lacks a definable constitutional
core and threatens to create harms more significant than any
suffered by the individual plaintiffs challenging these districts.
See Parts VI-VII,
infra; Shaw v.
Hunt, ante, at
918-919
(Shaw II) (STEVENS, J., dissenting). Though we
travel ever farther from it with each passing decision, I would
return to the well-traveled path that we left in
Shaw 1.
I
The factors motivating Texas' redistricting plan are clearly
revealed in the results of the 1992 elections. Both before and
immediately after the 1990 census, the Democratic Party was in
control of the Texas Legislature. Under the new map in 1992, more
than two-thirds of the Districts-including each of the new
ones-elected Democrats, even though Texas voters are arguably more
likely to vote Republican than Democrat.3 Incumbents of both
parties were just as successful: 26 of the 27 incumbents were
reelected, while each of the three new districts elected a state
legislator who had essentially acted as an incumbent in the
districting process,4 giving "incumbents" a 97% success rate.
3 In elections since 1980, the State has elected a Democrat in
only two of four gubernatorial races, and in only two of six races
for the United States Senate. America Votes 21: A Handbook of
Contemporary American Election Statistics 417 (R. Scammon & A.
McGillivray eds. 1995). Furthermore, in 1994, Republican candidates
received a total of 550,000 more votes than Democratic candidates
in Texas' 30 races for the United States House of Representatives,
id., at 4, while in 1992, Democratic House candidates
outpolled Republicans by only 147,000 votes (despite winning 27 of
30 districts). America Votes 20: A Handbook of Contemporary
American Election Statistics 474 (R. Scammon & A. McGillivray
eds. 1993).
4 Then-State Senator from Dallas, Eddie Bernice Johnson, who was
chair of the Senate Subcommittee on Congressional Districts,
maneuvered to construct District 30 in a manner that would ensure
her election. 861
1006
It was not easy for the State to achieve these results while
simultaneously guaranteeing that each district enclosed the
residence of its incumbent, contained the same number of people,
and complied with other federal and state districting requirements.
Much of Dallas and Houston, for example, was already represented in
Congress by Democrats, and creating new Democratic districts in
each city while ensuring politically safe seats for sitting
Representatives required significant political gerrymandering. This
task was aided by technological and informational advances that
allowed the State to adjust lines on the scale of city blocks,
thereby guaranteeing twists and turns that would have been
essentially impossible in any earlier redistricting.5 "[T]he result
of the Legislature's efforts," the District Court concluded, was
"a
F. Supp., at 1313; Politics in America 1994: The 103rd Congress
1536 (1993) ("This is the District Eddie Bernice Johnson drew").
Vice chair of the same committee, Frank Tejeda, also "attempted to
draw a district [District 28] that would facilitate his potential
candidacy." 861 F. Supp., at 1326. And State Senator Gene Green and
State Representative Roman Martinez, both Houston-area officials
with designs on Congress, competed in an effort to design District
29 in a way that would guarantee their own election.
Id., at
1324, n. 27. (Martinez later dropped out of the congressional race
to run for State Senate.) Because the role that these legislators
played in the redistricting process was largely identical to that
played by sitting incumbents, my references to the role of
"incumbents" in the redistricting process generally refer to these
individuals as well.
5 As did many other States, Texas kept track of the shapes of
its post1990 districts with a computer districting program loaded
with 1990 census information and geographic information at scales
ranging from statewide to that of a city block. See generally
Shaw v.
Hunt, 861 F. Supp. 408, 457 (EDNC 1994)
(describing computer programs); 861 F. Supp., at 1318-1319. The
dramatic increase in bizarrely shaped districts after 1990 can be
traced, at least in part, to the fact that computers allowed
legislators to achieve their political goals geographically in a
manner far more precise than heretofore possible. See Pildes &
Niemi, Expressive Harms, "Bizarre Districts," and Voting Rights:
Evaluating Election-District Appearances After
Shaw v. Reno,
92 Mich. L. Rev. 483, 574 (1993); Note, The Illegitimacy of the
Incumbent Gerrymander, 74 Texas L. Rev. 913, 924 (1996).
1007
crazy-quilt of districts" that bore little resemblance to "the
work of public-spirited representatives."
Vera v.
Richards, 861 F. Supp. 1304, 1309 (SD Tex. 1994); see,
e. g., Appendixes A-D.
It is clear that race also played a role in Texas' redistricting
decisions. According to the 1990 Census, Texas contained 16,986,510
residents, of whom 22.5% were of Hispanic origin, and 11.6% were
non-Hispanic African-American. 861 F. Supp., at 1311. Under the
pre-1990 districting scheme, Texas' 27 -member delegation included
four Hispanics and one African-American. In Harris County, a
concentrated Hispanic community was divided among several
majorityAnglo districts as well as the majority-minority District
18. In Dallas County, the majority-black community in South Dallas
was split down the middle between two majorityAnglo districts. The
legislature was well aware, after the 1990 census, that the
minority communities in each county were disproportionately
responsible for the growth in population that gained three
representatives for the State. Given the omnipresence of § 2 of the
Voting Rights Act, 42 U. S. C. § 1973, the demographics of the two
communities, and the pressure from leaders of the minority
communities in those cities, it was not unreasonable-and certainly
not invidious discrimination of any sort-for the State to accede to
calls for the creation of majority-minority districts in both
cities.6
6The State added District 28 (a majority-Hispanic district in
south Texas), District 29 (a majority-Hispanic district in
Houston), and District 30 (a majority-black district in Dallas). In
addition, the State reconfigured Houston's District 18. That
district had elected African-American Representatives to Congress
since the early 1970's and remained majority-minority in 1990,
although a plurality of its population was by then Hispanic. To
create District 29, the legislature altered the shape of District
18 to move parts of its Hispanic population into that neighboring
district while retaining a majority-black population.
To the extent that the precise shape of these districts relied
on race rather than other factors, that racial gerrymandering was
somewhat less
1008
While complying with a multitude of other political and legal
requirements, then, Texas created three new majorityminority
congressional districts and significantly reconfigured one
pre-existing district. The District Court concluded that the State
impermissibly emphasized race over nonracial factors when it drew
two of these new districts (District 30 in Dallas and District 29
in Houston) and the reconfigured District 18 in Houston. To
determine whether the Court correctly affirms that decision, I
begin, as does the plurality, by asking whether "strict scrutiny"
should be applied to the State's consideration of race in the
creation of these majority-minority districts.
II
We have traditionally applied strict scrutiny to state action
that discriminates on the basis of race. Prior to
Shaw I,
however, we did so only in cases in which that discrimination
harmed an individual or set of individuals because of their race.
In contrast, the harm identified in
Shaw I and its progeny
is much more diffuse. See
Shaw II, ante, at 921925 (STEVENS,
J., dissenting). Racial gerrymandering of the sort being addressed
in these cases is "discrimination" only in the sense that the lines
are drawn based on race, not in the sense that harm is imposed on
specific persons on account of their race.
Ante, at 923-924
(STEVENS, J., dissenting).
Aware of this distinction, a majority of this Court has endorsed
a position crucial to a proper evaluation of Texas' congressional
districts: Neither the Equal Protection Clause nor any other
provision of the Constitution was offended merely because the
legislature considered race when it deliberately
effective than the political gerrymandering had been: District
29, created as a majority-Hispanic district, elected an Anglo,
former State Senator Green, in 1992, and reelected him in 1994.
America Votes 21, at 437. Given his substantial role in crafting
the district to meet his electoral needs, see n. 4,
supra,
Green's success suggests the power of incumbency over race.
1009
created three majority-minority districts.7 The plurality's
statement that strict scrutiny "does [not] apply to all cases of
intentional creation of majority-minority districts,"
ante,
at 958, merely caps a long line of discussions, stretching from
Shaw I to
Shaw II, which have both expressly and
implicitly set forth precisely that conclusion.8
71 do not agree with the Court's approach to these cases.
Nonetheless, given that the Court seems settled in its conclusion
that racial gerrymandering claims such as these may be pursued, I
endorse this proposition.
S Though expressly reserving the issue in
Shaw I, we
noted there that appellants wisely conceded that while
"race-conscious redistricting is not always unconstitutional. ...
This Court has never held that race-conscious state decisionmaking
is impermissible in
all circumstances." 509 U. S., at 642
(emphasis in original). The threshold test for the application of
strict scrutiny as set forth in
Miller v.
Johnson,
515 U. S. 900
(1995), implicitly accepts this as true, concluding that strict
scrutiny applies not when race merely
influences the
districting process, but only when "the legislature
subordinated traditional race-neutral districting principles
... to racial considerations."
Id., at 916 (emphasis added);
see also
id., at 928-929 (O'CONNOR, J., concurring) (test
does not "throw into doubt the vast majority of the Nation's 435
congressional districts ... even though race may well have been
considered in the redistricting process").
Shaw II similarly
recognizes that intent does not trigger strict scrutiny: Although
the District Court concluded that the State "deliberately drew" the
district in question to ensure that it included a majority of
Mrican-American citizens, see
Shaw, 861 F. Supp., at 473;
Shaw II, ante, at 905, the Court reviews the District
Court's findings regarding the demographics of the district to
determine whether the strict scrutiny was appropriately applied.
See
ante, at 905-906; cf.
ante, at 999 (THOMAS, J.,
concurring in judgment) (where State intends to create
majority-minority district, application of strict scrutiny not even
a "close question").
JUSTICE THOMAS takes a strong view on this matter, arguing that
a majority-minority district should escape strict scrutiny only
when it is created "in spite of," not "because of," the race of its
population.
Ante, at 1001. But because minorities are, by
definition, minorities in the population, it will be rare indeed
for a State to stumble across a district in which the minority
population is both large enough and segregated enough to allow
majority-minority districts to be created with at most a "mere
awareness" that the placement of the lines will create such a
district. See
ibid. Indeed, I doubt that any such district
exists in the entire Nation; the creation of even the most compact
majority-minority district will gen-
1010
The conclusion that race-conscious districting should not always
be subject to strict scrutiny merely recognizes that our equal
protection jurisprudence can sometimes mislead us with its rigid
characterization of suspect classes and levels of scrutiny. As I
have previously noted, all equal protection jurisprudence might be
described as a form of rational basis scrutiny; we apply "strict
scrutiny" more to describe the likelihood of success than the
character of the test to be applied. See
Cleburne v.
Cleburne Living Center, Inc., 473 U. S. 432, 452-453 (1985)
(STEVENS, J., concurring). Because race has rarely been a
legitimate basis for state classifications, and more typically an
irrational and invidious ground for discrimination, a "virtually
automatic invalidation of racial classifications" has been the
natural result of the application of our equal protection
jurisprudence.
Id., at 453. In certain circumstances,
however, when the state action (i) has neither the intent nor
effect of harming any particular group, (ii) is not designed to
give effect to irrational prejudices held by its citizens but to
break them down, and (iii) uses race as a classification because
race is "relevant" to the benign goal of the classification,
id., at 454, we need not view the action with the typically
fatal skepticism that we have used to strike down the most
pernicious forms of state behavior. See
Wygant v.
Jackson
Bd. of Ed., 476
U. S. 267,
erally require a conscious decision to draw its lines "just so"
to ensure that the group is not a minority in the district
population. It appears, however, that even when a district is
placed "just so" in order to include a traditional community in
which race does correlate with community interests (consider, for
example, New York District 15, which is centered on Harlem),
JUSTICE THOMAS would review that district with the same presumption
of invidiousness with which we viewed the district in
Gomillion v.
Lightfoot, 364 U. S. 339 (1960). Cf.
Miller, 515 U. S., at 944 (GINSBURG, J., dissenting) (noting
that "ethnicity itself can tie people together" in communities of
interest). Because the creation of such a district threatens
neither the harms of
Gomillion nor, I believe, any harms
against which the Fourteenth Amendment was intended to protect, I
cannot accept his conclusion.
1011
316-317 (1986) (STEVENS, J., dissenting);
Regents of Univ. of
Gal. v.
Bakke, 438 U. S. 265, 320
(1978). While the Court insisted in
Shaw I that racial
classifications of this sort injure the Nation (though not
necessarily any particular group) in myriad ways, see 509 U. S., at
647-648, redistricting that complies with the three factors I
outline above simply is not the sort of despicable practice that
has been taken in the past to exclude minorities from the electoral
process. See
Shaw II, ante, at 931-933 (STEVENS, J.,
dissenting);
Shaw I, 509 U. S., at 682-685 (SOUTER, J.,
dissenting); cf.,
e. g., Gomillion v.
Lightfoot,
364 U. S. 339
(1960);
Terry v.
Adams, 345 U. S. 461 (1953). While
any racial classification may risk some stereotyping, the risk of
true "discrimination" in this case is extremely tenuous in light of
the remedial purpose the classification is intended to achieve and
the long history of resistance to giving minorities a full voice in
the political process. Given the balancing of subtle harms and
strong remedies-a balancing best left to the political process, not
to our own well-developed but rigid jurisprudence-the plurality
reasonably concludes that race-conscious redistricting is not
always a form of "discrimination" to which we should direct our
most skeptical eye.
III
While the Court has agreed that race can, to a point, govern the
drawing of district lines, it nonetheless suggests that at a
certain point, when the State uses race "too much," illegitimate
racial stereotypes threaten to overrun and contaminate an otherwise
legitimate redistricting process. In
Miller, the Court
concluded that this point was reached when "race for its own sake,
and not other districting principles, was the ... dominant and
controlling rationale" behind the shape of the district. 515 U. S.,
at 913. For strict scrutiny to apply, therefore, the plaintiff must
demonstrate that "the legislature subordinated traditional
race-neutral districting principles, including but not limited to
compactness,
1012
contiguity, [and] respect for political subdivisions ... to
racial considerations."
Id., at 916; see also
id., at
928 (O'CONNOR, J., concurring) (strict scrutiny should be applied
only if State emphasized race in "substantial disregard" for
traditional districting principles);
ante, at 962 (opinion
of O'CONNOR, J.).
Of course, determining the "predominant" motive of the Texas
Legislature,
ante, at 959 (citing
Miller, 515 U. S.,
at 916), is not a simple matter.9 The members of that body
9 Because the Court's approach to cases of this kind seeks to
identify the "predominant" motive of the legislature, it is worth
pointing out, as we have on so many prior occasions, that it is
often "difficult or impossible for any court to determine the
'sole' or 'dominant' motivation behind the choices of a group of
legislators."
Palmer v.
Thompson, 403 U. S. 217, 225
(1971). As in every other legislative body, each of the members of
Texas' Legislature has his or her own agenda and
interests-particularly in the "complicated process" of
redistricting, in which every decision "inevitably has sharp
political impact."
White v.
Weiser, 412 U. S. 783, 795796
(1973). In these circumstances, "[r]arely can it be said that a
legislature ... operating under a broad mandate made a decision
motivated solely by a single concern, or even that a particular
purpose was the 'dominant' or 'primary' one. In fact, it is because
legislators ... are properly concerned with balancing numerous
competing considerations that courts refrain from reviewing the
merits of their decisions, absent a showing of arbitrariness or
irrationality."
Arlington Heights v.
Metropolitan Housing
Development Corp., 429 U. S. 252, 265 (1977)
(footnote omitted); see also
Edwards v.
Aguillard,
482 U. S. 578,
636-639 (1987) (SCALIA, J., dissenting);
Shaw II, ante, at
940 (STEVENS, J., dissenting).
Not only is this a case in which a legislature is operating
under a "broad mandate," but other factors weigh in favor of
deference as well. First, the inherently political process of
redistricting is as much at the core of state sovereignty as any
other. Second, the "motive" with which we are concerned is not
per se impermissible. (For that reason, this litigation is
very different from
Price Waterhouse v.
Hopkins,
490 U. S. 228
(1989), and
Arlington Heights v.
Metropolitan Housing
Development Corp., 429 U. S. 252 (1977), in
which the plaintiffs alleged that the defendant's action was
motivated by an intent to harm individuals because of their status
as members of a particular group. Where there is "proof that a
discriminatory purpose has been a motivating factor in the
decision," the "judicial deference" due to the legislative process
is no longer justified.
Id., at 265-
1013
faced many unrelenting pressures when they negotiated the
creation of the contested districts. They had to ensure that there
was no deviation in population from district to district.10 They
reasonably believed that they had to create districts that would
comply with the Voting Rights Act. See
supra, at 1007. If
the redistricting legislation was to be enacted, they had to secure
the support of incumbent Congressmen of both parties by drawing
districts that would ensure their election. And all of these
desires had to be achieved within a single contiguous district.
Every time a district line was shifted from one place to another,
each of these considerations was implicated, and additional,
compensating shifts were necessary to ensure that all competing
goals were simultaneously accomplished. In such a constrained
environment, there will rarely be one "dominant and controlling"
influence. Nowhere is this better illustrated
266.) Finally, those that are injured by the allegedly
discriminatory districts can alleviate their injury through the
democratic process: Those in the district could elect a
representative who is not a part of their racial group, while the
population at large could elect a legislature that refused to rely
on racial considerations in the drawing of districts. In such
circumstances we should take particular care in questioning the
legislature's motives and, if in doubt, presume that the
legislature has acted appropriately. See
post, at 1058-1062
(SOUTER, J., dissenting).
lOWe require state legislatures to ensure that populations, from
district to district, are "as mathematically equal as reasonably
possible," with
de minimis exceptions permissible only in
"unavoidable" instances.
White v.
Weiser, 412 U. S.,
at 790; see also
Karcher, 462 U. S., at 734-735. Population
variances are not permissible even" 'if they necessarily result
from a State's attempt to avoid fragmenting political subdivisions
by drawing congressional district lines along existing ...
political subdivision boundaries.'''
White, 412 U. S., at
791 (citing
Kirkpatrick v.
Preisler, 394 U. S. 526, 533-534
(1969)). The legislature, therefore, understandably felt compelled
to achieve mathematical equality regardless of other concerns.
Rather surprisingly, they were able to do so: Every one of Texas'
30 congressional districts contains precisely 566,217 persons. Of
course, this precision could not have been accomplished without
breaking apart counties, cities, neighborhoods, and even
pre-existing voting precincts.
1014
than in Dallas' District 30 where, at the very least, it is
clear that race was
not such an overriding factor.
IV
The plurality lists several considerations which, when taken in
combination, lead it to conclude that race, and no other cause, was
the predominant factor influencing District 30's configuration.
First, there is the shape itself. Second, there is evidence that
the districts were intentionally drawn with consciousness of race
in an effort to comply with the Voting Rights Act. Third, the
plurality dismisses two raceneutral considerations (communities of
interest and incumbency protection) that appellants advanced as
race-neutral considerations that led to the odd shape of the
districts. Finally, the plurality concludes that race was
impermissibly used as a proxy for political affiliation during the
course of redistricting. In my opinion, an appropriate reading of
the record demonstrates that none of these factors-either singly or
in combination-suggests that racial considerations "subordinated"
race-neutral districting principles. I discuss each in turn.
Bizarre Shape
As noted,
supra, at 1003, and n. 6, Texas' Legislature
concluded that it would add a new district to Dallas County that
would incorporate the rapidly growing minority communities in South
Dallas. To do so, the new district would have to fit into the
existing districts: Before redistricting, most of southern Dallas
County (including the African-American communities in South Dallas)
was divided between Districts 5 and 24, represented by Democratic
Representatives Bryant and Frost, respectively. The middle of the
northern section of the county was divided between Districts 3 and
26, both represented by Republicans.
Then-State Senator Johnson began the redistricting process by
proposing a compact, Democratic, majority-minority
1015
district encompassing all of South Dallas. See App. 139; 861 F.
Supp., at 1321, n. 22. Representatives Bryant and Frost objected,
however, because the proposed district included not only Johnson's
residence, but their own homes, located within only 10 miles of
each other on opposite sides of the city. Furthermore, Johnson's
plan transferred many of Frost and Bryant's most reliable
Democratic supporters into the proposed district. Rather than
acquiesce to the creation of this compact majority-minority
district, Frost and Bryant insisted that the new district avoid
both their own homes and many of the communities that had been
loyal to them. Johnson's plan was, therefore, "quickly abandoned."
Ibid.
To accommodate the incumbents' desires, District 30 required
geographical adjustments that had telling effects on its shape.
First, two notches carefully avoiding the residences of and
neighborhoods surrounding Frost and Bryant were carved out of
District 30's side. See Appendix D,
infra.ll
Furthermore, Frost and Bryant retained several communities-many
majority-black-along the southern and eastern sides of the proposed
district. See generally 861 F. Supp., at 1321-1322.12
11 This phenomenon is not unique to Dallas County: Throughout
the State, "incumbent residences repeatedly fall just along
district lines." 861 F. Supp., at 1318 (giving examples); see
State's Exhs. lOA and lOB (showing incumbent residences). District
6, for instance, changed from a rural district stretching far to
the southeast of Dallas to a more suburban district wrapping around
Fort Worth. As it did so, however, the district pivoted around the
home of incumbent Representative Joe Barton, whose residence sits
at the extreme southeastern end of a district stretching in a
100-mile-Iong loop around Fort Worth. See Appendix D,
infra.
12 The plurality suggests that these communities were shed from
District 30 in a "suspect use of race as a proxy to further
neighboring incumbents' interests."
Ante, at 979; see also
ante, at 971-972, n. I had thought, however, that the
Court's concern in these cases was the "resemblance to political
apartheid" involved in the creation of majority-minority districts.
Shaw I, 509 U.
S. 630, 647 (1993). I do not see how the decision to
include minority communities in a neighboring majority-white
district bears any resemblance to such "apartheid" or, for that
matter, how it has any rele-
1016
Had these communities been retained by District 30, it would
have been much more compact. By giving up these voters to Frost and
Bryant, however, District 30 was forced to seek out population and
Democratic voters elsewhere. The Democratic incumbents had blocked
its way to the south and east; north (and, to a lesser extent,
west) was the only way it could gO.13
It would not have helped the prospects of a Democratic candidate
in the new District 30 had it simply plowed directly north to pick
up additional population. Immediately north of the city of Dallas
are the "Park Cities," which include a population that has voted
strongly Republican throughout recent elections. See State's Exhs.
9A and 9B (depicting one index of political affiliation in 1990 and
1992 elections). Rather than dilute the Democratic vote (and
threaten the Republican incumbents) in this manner, District 30
skirted these communities on the west, and then curved east,
picking up communities on either side of the region's major
interstate freeways.14
As the process of extracting Democratic voters out of the core
of the Republican districts in North Dallas progressed, the
distinction between Democratic and Republican voters moved from the
precinct level (the smallest level at which political affiliation
data was immediately available in the re-
vance to the validity of the creation of a district from which
those minority communities have been excluded. See also
infra, at 1030-1032.
13 See,
e. g., 3 Tr. 187 (testimony of Christopher
Sharman: "[A]ny time you took part of a district away on one end,
you would usually squeeze or push the district out on another end;
and in this case, most of the time the district would get pushed to
the north").
14 The author of the District Court opinion was herself aware of
these political realities. See
id., at 194 (Jones, J.,
noting that Johnson did not want anything to do with the Park
Cities because she "[d]idn't want competition from Ross Perot"). In
light of this recognition, it is difficult to understand why the
District Court described District 30's efforts to avoid that
community as a contributing factor to the allegedly race-based
bizarreness of the district borders. See 861 F. Supp., at 1337;
ante, at 967.
1017
districting programs) down to the smaller census block level
(the smallest level at which demographic and socioeconomic data was
available).15 In an effort to further identify which census blocks
were likely to support their candidacy, the incumbents used not
only census data, but their own long experience as local
representatives as well as the experiences of staffers and
supporters. See 3 Tr. 177-179, 181-182 (describing methods, such as
simply driving through neighborhoods, that staff members and
candidates for office used to develop block-specific information
regarding the likely political affiliation of voters).16
In addition, although information about political affiliation
was not available at the block level through the computer program,
legislators and staffers were able to get relatively precise
information about voter preferences through a system, developed by
the Democratic Party, that allowed candidates to determine in which
party primary voters had participated.
Id., at 179-180. By
examining this information, legislators were able to further
fine-tune district lines to include likely supporters and exclude
those who would prob-
15 Because political boundaries are more closely packed in urban
than in rural areas, drawing lines based on such boundaries will
almost always require tighter twists and turns in urban districts
than in rural districts. Significantly, the three districts struck
down by the District Court are the only three districts in the
entire State with population densities of over 2,000 persons per
square mile. See U. S. Dept. of Commerce, Bureau of the Census,
Population and Housing Characteristics for Congressional Districts
of the 103d Congress: Texas 40-44 (Feb. 1993). If enough empty land
were added to these districts that they matched the sparse
densities of rural districts (such as District 28, which was upheld
by the District Court), their turns would not appear so sharp, and
the open space, without its demographic implications, could smooth
the deepest of the districts' notches.
16 As Democratic communities were identified, they had to be
connected with the core of the district. Although Texas has no
state statutory or constitutional requirement to that effect, state
legislators agreed that each of the 30 districts should be entirely
contiguous, permitting any candidate, map in hand, to visit every
residence in her district without leaving it.
1018
ably support their opponents. Cf.
Gaffney v.
Cummings, 412
U. S. 735, 753 (1973) ("[W]hen [political profiles are]
overlaid on a census map, it requires no special genius to
recognize the political consequences of drawing a district line
along one street rather than another").17
The careful gerrymandering conducted by the Texas Legislature
under the watchful eye of Johnson and her staff was a success not
only on a districtwide level (Johnson was elected with over 70% of
the vote in both 1992 and 1994), but on a precinct level. While the
pre-1990 precincts in the heavily Republican North Dallas gave
little reason for a Democratic incumbent to hope for much support,
see State's Exh. 9B (maps of Dallas and Collin Counties with 1990
election index results showing only a few Democrat-leaning
precincts in North Dallas), the gerrymandering that occurred in
1991 resulted in smaller precincts that, by all indications,
gathered concentrations of Democratic voters into District 30 while
leaving concentrations of Republican voters in surrounding
Districts 3 and 26. See State's Exh. 9A (maps of Dallas and Collin
Counties with 1992 election index results showing many more
Democrat-leaning precincts in the North Dallas sections of District
30).
Presumably relying on
Shaw 1's statement that "a
reapportionment plan may be so highly irregular that, on its face,
it rationally cannot be understood as anything other than an effort
to 'segregat[e] ... voters' on the basis of race," 509
17 Incumbents influenced the shape of districts in other ways.
Both District 30 and District 29, for instance, detoured to include
portions of the state legislative districts that were being
represented by the state legislators who hoped to run for Congress.
See,
e. g., State's Exh. 31 (showing that portion of
Tarrant County included in District 30 had been part of Johnson's
State Senate district). In some cases, legislators drew districts
to avoid the residences of potential primary challengers. See 3 Tr.
192193; 4
id., at 46. Incumbents also sought to include
communities that they expected (or knew) to contain particularly
active supporters; this interest in "active" voters often trumped
any desire to ensure a particular racial makeup. See 3
id.,
at 190; 4
id., at 40-41; 861 F. Supp., at 1320.
1019
u. S., at 646-647, the plurality offers mathematical proof that
District 30 is one of the most bizarre districts in the Nation, see
ante, at 960, and relates the now-obligatory florid
description of the district's shape,
ante, at 965-966; see
also
ante, at 973-974 (describing District 29). As the maps
appended to this opinion demonstrate, neither District 30 nor the
Houston districts have a monopoly on either of these
characteristics. Three other majority-white districts are ranked
along with the majority-minority districts as among the oddest in
the Nation. See Pildes & Niemi, Expressive Harms, "Bizarre
Districts," and Voting Rights: Evaluating Election-District
Appearances After
Shaw v. Reno, 92 Mich. L. Rev. 483, 565
(1993). Perhaps the clearest example of partisan gerrymandering
outside of the context of majorityminority districts is District 6,
a majority-Anglo district represented by a Republican.18
18While two extremely noncompact majority-Anglo districts in
Texas (Districts 3 and 25) might be able to blame part (though by
no means all) of their contortions on their contiguity with the
majority-minority districts, District 6 has little excuse. Although
it shares a border with District 30 for a short distance, that
stretch is one of the straightest in either of the districts,
running almost entirely along the county line through the
Dallas-Fort Worth International Airport. See Appendix D,
infra.
As for the obligatory florid description: District 6 has far
less of an identifiable core than any of the majority-minority
districts struck down by the District Court. To the extent that it
"begins" anywhere, it is probably near the home of incumbent Rep.
Barton in Ennis, located almost 40 miles southwest of downtown
Dallas. From there, the district winds across predominantly rural
sections of Ellis County, finally crossing into Tarrant County, the
home of Fort Worth. It skips across two arms of Joe Pool Lake,
noses its way into Dallas County, and then travels through
predominantly Republican suburbs of Fort Worth. Nearing the central
city, the borders dart into the downtown area, then retreat to curl
around the city's northern edge, picking up the airport and growing
suburbs north of town. Worn from its travels into the far
northwestern corner of the county (almost 70 miles, as the crow
flies, from Ennis), the district lines plunge south into Eagle
Mountain Lake, traveling along the waterline for miles, with
occasional detours to collect voters that have built homes along
its shores. Refreshed, the district rediscovers its roots in rural
Parker
1020
For every geographic atrocity committed by District 30, District
6 commits its own and more. District 30 split precincts to
gerrymander Democratic voters out of Republican precincts; District
6 did the same. See State's Exh. 9B (Tarrant County, showing
District 6 cuts). District 30 travels down a riverbed; District 6
follows the boundaries of a lake. District 30 combines various
unrelated communities of interest within Dallas and its suburbs;
District 6 combines rural, urban, and suburban communities.
District 30 sends tentacles nearly 20 miles out from its core;
District 6
is a tentacle, hundreds of miles long (as the
candidate walks), and it has no core.
The existence of the equally bizarre majority-white District 6
makes the plurality's discussion of District 30's odd shape largely
irrelevant. If anything, the similarities between Districts 6 and
30 suggest that it is more likely than not that the incumbency
considerations that led to the mutation of District 6 were the same
considerations that forced District 30 to twist and turn its way
through North Dallas.19
County, then flows back toward Fort Worth from the southwest for
another bite at Republican voters near the heart of that city. As
it does so, the district narrows in places to not much more than a
football field in width. Finally, it heads back into the rural
regions of its fifth countyJohnson-where it finally exhausts itself
only 50 miles from its origin, but hundreds of "miles apart in
distance and worlds apart in culture."
Miller, 515 U. S., at
908 (describing a similar combined rural/urban district).
19 Seeking specific examples, the plurality makes much hay over
a portion of Collin County located just over the county line north
of Dallas. See
ante, at 965, 971. There, District 30
excludes a portion of a precinct that voted Democratic in 1990, and
maps
"exactly onto the only area in the southern half of
thEe] county with a [minority] percentage population in excess of
50%."
Ante, at 965.
The map to which the plurality refers, however, groups the
minority percentage by precinct, and since precincts are defined by
the district boundaries, it is no surprise that the district maps
"exactly" onto the precinct. See App. 153. (One might similarly
argue that "District 30 maps
exactly onto the only area in
all of north Texas that is 50% black," but such a statement reveals
little about the underlying demographics of spe-
1021
The political, rather than the racial, nature of District 30's
gerrymander is even more starkly highlighted by comparing it with
the districts struck down in
Shaw II and
Miller.
District 30's black population is, for instance, far more
concentrated than the minority population in North Carolina's
District 12. And in
Miller, the Court made it clear that the
odd shape of Georgia's Eleventh District was the result of a
conscious effort to
increase its proportion of minority
populations: It was, the Court found, "'exceedingly obvious' from
the shape of the Eleventh District, together with the racial
demographics, that the drawing of narrow land bridges to
incorporate within the district outlying appendages containing
nearly 80% of the district's total black population was a
deliberate attempt to bring black populations into the district."
Miller, 515 U. S., at 917 (emphasis added; citation
omitted).
District 30 is the precise demographic
converse of the
district struck down in
Miller. District 30, for example,
has a compact core in South Dallas which contains 50% of the
district population and
nearly 70% of the district's total
black population. Cf.
ibid. Unlike the appendages to
Georgia's District 11, the tentacles stretching north and west
cific sections of the district.) The more telling maps are the
census block maps, which demonstrate that the Collin County section
of District 30 contains many more
census blocks of less than
25% minority population than it does blocks that are more than 50%
minority. See State's Exhs. 45 and 46 (Exh. 45 is reproduced, in
part, as Appendix D,
infra). Even if those majority-white
blocks have relatively small populations, they were nonetheless
included, suggesting that the creation of the district was not as
single-mindedly focused on race as the Court and the District Court
assume.
Even more significant is the fact that the new precinct leaned
overwhelmingly Democratic in the 1992 election, while the portion
of the precinct that was not included in District 30 voted
overwhelmingly Republican. See State's Exh. 9B (Collin County).
While the excluded portion of the 1990 precinct may have been
dropped, in part, to help comply with the State's goals under the
Voting Rights Act, it also involved a successful effort to maximize
Democratic votes while avoiding Republican votes.
1022
from District 30 add progressively less in the way of
population, and, more important for purposes of this inquiry, they
actually
reduce the proportional share of minorities in the
district. See State's Exh. 33.
For example: The worst offender, in the trained eye of the
Court, may be the northern arm of the district that winds around
the Park Cities and then up into Collin County. But that arm, which
contains 22% of the population, is only 21 % black,
ibid.-a
proportion essentially identical to the proportion of
African-Americans in Dallas County as a whole.20
The plurality is certainly correct in pointing out that District
30's outlying reaches encompass some communities with high
concentrations of minorities.21 It is implausible
20 See 861 F. Supp., at 1312 (black population in Dallas County
is 362,130); Bureau of Census, Population and Housing Unit Counts
185 (Oct. 1993) (total population of Dallas County is
1,852,810).
21 Several responses to the plurality's specific examples are
worth making, however. In Collin County, the plurality relies on
the fact that the "combined African-American and Hispanic"
population in the Collin County extremity of the northern appendage
to District 30 is in excess of 50%.
Ante, at 971. But
District 30 was created with an eye to a
majority-black
population, rather than a majority-minority population, so the more
relevant facts are that (i) African-Americans make up only 19.8% of
the Collin County appendage, App. 331, (ii) those Mrican-Americans
consist of only two-tenths of 1% of the entire population in the
district,
ibid., and (iii) this appendage contains more
majority-white census blocks than it does majority-minority
census blocks, see State's Exh. 45.
The plurality also points out that a small portion of one of the
tentacles-the one that extends west into Tarrant County-contains an
Mrican-American majority.
Ante, at 965. It would be
implausible to claim, however, that race was the "predominant"
reason that this community was included in District 30. First, the
community had been part of Senator Johnson's state legislative
district, see n. 17,
supra; second, it also includes
majority-white census blocks; and third, the
total
population in that portion of the district is less than 2,000
people. App. 331. Finally, and more important, the population of
the entire western tentacle (at the tip of which is the Tarrant
County community) is only 29% black, see State's Exh. 33-less than
half the proportion of minorities in the core of the district.
1023
to suggest, however, that an effort to "segregate" voters drove
District 30 to collect those populations. After all, even the
District Court noted that African-American voters immediately
adjacent to the core of District 30 were intentionally
excluded from the district
"in order to protect
incumbents." 861 F. Supp., at 1339 (emphasis added). Forced
into Republican territory to collect Democratic votes, the district
intentionally picked up some minority communities (though far more
majority-white communities). If it had not, the goal of creating a
majority-black district would have been sacrificed to incumbency
protection (the very sort of "predominance" of race over
race-neutral factors that the plurality discredits). But unlike
Georgia's District 11 and North Carolina's District 12, the
reason that the district was there in the first place was
not to collect minority communities, but to collect
population-preferably Democrats. It would, therefore, be fanciful
to assert that the "several appendages" to District 30 were "drawn
for the obvious," let alone the
predominant, "purpose of
putting black populations into the district."
Miller, 515 U.
S., at 910.22
In sum, a fair analysis of the shape of District 30, like the
equally bizarre shape of District 6, belies the notion that its
shape was determined by racial considerations.
22 Indeed, if the "appendages" to District 30 reaching into
neighboring counties were cut off, the proportion of
African-Americans in the resulting district would actually
increase. See App. 331. As presently constituted, District
30 includes 566,217 people, of which 283,225 (or 50.02%) are
Mrican-American. If the Tarrant County and Collin County portions
of the district were removed, the resulting district would have
557,218 people, of which 280,620 (or 50.36%) would be
African-American. While the resulting district would not include
the "zero deviation" necessary under
Reynolds v.
Sims, 377 U.
S. 533 (1964), and its progeny, see n. 10,
supra, the
missing population could easily be acquired in majority-black
census blocks adjacent to District 30's southern and eastern edge,
thereby increasing the proportion of black population still
further. Because the alleged racial goals of the district could be
achieved
more effectively by making the district
more
compact, I simply do not comprehend how the plurality can conclude
that the effort to create a majority-minority district
"predominated" over other, race-neutral goals.
1024
Intent
Perhaps conscious that noncompact congressional districts are
the rule rather than the exception in Texas, the plurality
suggests,
ante, at 960-961, 969-970, that the real key is
the direct evidence, particularly in the form of Texas' § 5 Voting
Rights Act submissions and the person of then-State Senator
Johnson, that the State expressed an intent to create these
districts with a given "minimum percentage of the favored
minority." 861 F. Supp., at 1309. Even if it were appropriate to
rest this test of dominance on an examination of the subjective
motivation of individual legislators,23 or on
23 Testimony by individuals is relevant, but hardly dispositive
evidence of collective motivations. See n. 9,
supra. It may
be true that the most important concern motivating Senator Johnson,
the Chairman of the Senate Districting Committee, was her desire to
create the first Congressional District in the history of the State
in which Mrican-Americans were in the majority. Johnson never
testified, however, that racial considerations were the
sole
concern motivating the changes to the shapes of the districts. See,
e. g., App. 454-456 (certain areas that were minority
communities were assigned to Anglo incumbents because of incumbent
power),
id., at 459 ("[J]ust as 30 went looking for friendly
territory regardless of color, [the incumbents] went looking for
friendly territory as well regardless of color"). Since this
testimony was not only irrelevant to the § 2 proceedings but
arguably harmful to her claim there that racial considerations had
been taken into account, these admissions are particularly
telling.
To the extent that testimony of individual legislators is
relevant, the following statements from the floor of the Texas
House confirm that many legislators viewed these districts as
political, not racial, gerrymanders:
"This plan was drawn to protect incumbents ....
"[I]n order to protect an incumbent Dallas congressman and an
incumbent Houston congressman, county lines were not respected,
urban boundaries were not respected, precinct boundaries were not
respected."
Id., at 374-375 (statement of Rep. Ogden).
"With the adoption of this plan, you will have 8 Republican
Congressmen out of 30. That's de facto regression and provides for
less Republican representation in Washington, D. C.
"Communities throughout the State are surgically split in what
appears to be illogical, irrational and erratic pattern[s]. But if
you look at election result data throughout the State, you'll find
that these lines are very logi-
1025
testimony given in a legal proceeding designed to prove a
conflicting conclusion,24 this information does little more than
confirm that the State believed it necessary to comply with the
Voting Rights Act. Given its reasonable understanding of its legal
responsibilities, see
supra, at 1007, the legislature acted
to ensure that its goal of creating a majority-black district in
Dallas County was not undermined by the changes made to accommodate
District 30 to other, race-neutral districting principles. As the
plurality admits, see
ante, at 958, the intent to create
majority-minority districts does not in itself trigger strict
scrutiny; these admissions prove nothing more than that. See also
Shaw II, ante, at 930-932 (STEVENS, J., dissenting).
Nonracial Factors: Community
In an effort to provide a definitive explanation for the odd
shape of the district, the State emphasized two factors: The
cal and very rational. The lines have been drawn, dissecting
communities very creatively in order to pack Republicans and
maximize Democratic representation."
Id., at 376 (statement
of Rep. Gusendorf).
See also
id., at 377-380 (statement of Rep. Gusendorf
illustrating the gerrymandering process by reference to District 6,
not a majority-minority district).
These gerrymanders "d[o] not have to happen. It has nothing to
do with fairness. It has nothing to do with minority representation
because if we were really concerned about minority representation,
we would have drawn this map in such a way that the minorities were
considered and not simply to elect Democrats."
Id., at 384
(statement of Rep. Hill).
24 It is ironic and slightly unfair for the plurality and
District Court to use the State's § 5 submission and Congresswoman
Johnson's testimony in a § 2 challenge to the congressional
district as evidence against them in these cases. See,
e.
g., 861 F. Supp., at 1319-1321, 1338-1339;
ante, at
969-970. Both of those proceedings required the State to assure the
Attorney General and a federal court, respectively, that the State
had adequately considered the interests of minority voters in the
1991 redistricting process. Under such circumstances, it is not at
all surprising that the relevant declarant would limit his or her
comments to the role that race played in the redistricting process,
for other considerations were largely irrelevant (the District
Court's opinion to the contrary notwithstanding, see 861 F. Supp.,
at 1339).
1026
presence of communities of interest tying together the
populations of the district, and the role of incumbency protection.
The District Court and the plurality improperly dismissed these
considerations as ultimately irrelevant to the shape of the
districts.
First, the appellants presented testimony that the districts
were drawn to align with certain communities of interest, such as
land use, family demographics, and transportation corridors. See
861 F. Supp., at 1322-1323. Although the District Court recognized
that these community characteristics amounted to accurate
descriptions of District 30,
id., at 1323, it dismissed them
as irrelevant to the districting process, concluding that there was
no evidence that "the Legislature had these particular 'communities
of interest' in mind when drawing the boundaries of District 30."
Ibid. The plurality concludes that appellants present no
reason to displace that conclusion.
Ante, at 966-967.
I do not understand why we should require such evidence ever to
exist. It is entirely reasonable for the legislature to rely on the
experience of its members when drawing particular boundaries rather
than on clearly identifiable "evidence" presented by demographers
and political scientists. Most of these representatives have been
members of their communities for years. Unless the Court intends to
interfere in state political processes even more than it has
already expressed an intent to do, I presume that it does not
intend to require States to create a comprehensive administrative
record in support of their redistricting process. State legislators
should be able to rely on their own experience, not only prepared
reports. To the extent that the presence of obvious communities of
interest among members of a district explicitly or implicitly
guided the shape of District 30, it amounts to an entirely
legitimate nonracial consideration.25
25 As JUSTICE GINSBURG noted in her dissent in
Miller,
"ethnicity itself can tie people together" in communities of
interest. 515 U. S., at 944; see also
Rogers v.
Lodge, 458 U.
S. 613, 651 (1982) (STEVENS, J., dissenting)
1027
Nonracial Factors: Incumbency
The plurality admits that the appellants "present a .
substantial case for their claim that incumbency protection rivaled
race in determining the district's shape."
Ante, at 967.
Every individual who participated in the redistricting process knew
that incumbency protection was a critical factor in producing the
bizarre lines and, as the plurality points out,
ante, at
963-964, even the District Court recognized that this nearly
exclusive focus on the creation of "safe" districts for incumbents
was intimately related to the bizarre shape of district lines
throughout the State.
"[I]n Texas in 1991, many incumbent protection boundaries
sabotaged traditional redistricting principles as they routinely
divided counties, cities, neighborhoods, and regions. For the sake
of maintaining or winning seats in the House of Representatives,
Congressmen or would-be Congressmen shed hostile groups and
potential opponents by fencing them out of their districts. The
Legislature obligingly carved out districts of apparent supporters
of incumbents, ... and then added appendages to connect their
residences to those districts. The final result seems not one in
which the people select their representatives, but in which the
representatives
(''Whenever identifiable groups in our society are
disadvantaged, they will share common political interests and tend
to vote as a 'bloc' "). Furthermore, it may be that the very fact
of racial bloc voting, a prerequisite to § 2 liability, see
Thornburg v.
Gingles, 478 U. S. 30, 51 (1986)
(and, under the Court's recent jurisprudence, to the voluntary
formation of a majority-minority district), demonstrates the
presence of a minority community. While communities based on race
may merit a more skeptical review to ensure that a bond, rather
than mere stereotyping, ties the community, see 861 F. Supp., at
1338, recognition of such a community in an electoral district
certainly could, in certain circumstances, serve as a legitimate
race-neutral explanation for particularly odd district shapes. By
suggesting the contrary, I believe that the District Court erred.
See
ibid.; post, at 1060-1061 (SOUTER, J., dissenting).
1028
have selected the people." 861 F. Supp., at 1334 (citations and
footnotes omitted).
See also
id., at 1335, n. 43. Despite this overwhelming
evidence that incumbency protection was
the critical
motivating factor in the creation of the bizarre Texas districts,
the District Court reached the stunning conclusion that because the
process was so "different in degree" from the "generalized, and
legitimate, goal of incumbent and seniority protection" that this
Court has previously recognized, it could not serve as a legitimate
explanation for the bizarre boundaries of the congressional
districts.
Id., at 1334-1335. In dismissing incumbency
protection once and for all, the District Court stated that
"[i]ncumbent protection is a valid state interest only to the
extent that it is not a pretext for unconstitutional racial
gerrymandering."
Id., at 1336.
It is difficult to know where to begin to attack the
misperceptions reflected in these conclusions,26 and the
plurality's failure to do so seriously taints its evaluation of the
relative importance of nonracial considerations in the creation of
District 30. The initial problem, of course, is that under the
Court's threshold test as set forth in
Miller, one must
consider the role of incumbency protection
before
determining whether there is an "unconstitutional racial
gerrymander." And because the ultimate focus in these
gerrymandering cases is the claim that race was the "dominant and
controlling rationale in drawing [the] district lines," 515 U. S.,
at 913, a court
must, in applying that test, consider a
State's claim that a given race-neutral rationale controlled the
creation of those lines. See
id., at 916 ("Where
[compactness, contiguity,] or
other race-neutral
considerations are the basis for redistricting legislation, and
are not subordinated to race, a State can 'defeat a claim that a
district has been
26 The District Court's legal analysis was probably flawed in
part because its decision was issued before this Court announced
its opinion in
Miller.
1029
gerrymandered on racial lines' "). Although a court may not like
the State's explanation, that is no excuse for ignoring it.
If some independent bar prevented the use of that raceneutral
criterion, then the District Court might be in a position to object
to the State's use of it. We have, however, affirmed that a State
has an interest in incumbency protection, see,
e. g.,
ante, at 964-965 (opinion of O'CONNOR, J.);
White v.
Weiser, 412 U.
S. 783, 791, 797 (1973), and also assured States that the
Constitution does not require compactness, contiguity, or respect
for political borders, see
Shaw I, 509 U. S., at 647. While
egregious political gerrymandering may not be particularly
praiseworthy, see
infra, at 10381040, it may nonetheless
provide the race-neutral explanation necessary for a State to avoid
strict scrutiny of the district lines where gerrymandering is the
"dominant and controlling" explanation for the odd district
shapes.27
The District Court's error had an apparently dispositive effect
on its assessment of whether strict scrutiny should apply at all.
Although aspects of our dispute with the plurality are "largely
factual,"
ante, at 971, n., they arise not out of our
disagreement with the District Court's credibility assessments, but
out of that court's erroneous conclusion that the State's
overwhelming reliance on this race-neutral factor was illegitimate
and irrelevant to its evaluation of the factors involved in the
shifting of this district's lines. A fair evaluation of the record
made in light of appropriate legal standards requires a conclusion
very different from the District Court's. By following the District
Court down its misdirected path, the plurality itself goes
astray.
27While it may be that the political gerrymandering in this case
is "different in degree" from that previously recognized, 861 F.
Supp., at 1334, I do not believe that the reference in
Shaw
I and
Miller to "traditional" districting principles,
see
Shaw I, 509 U. S., at 642;
Miller, 515 U. S., at
916, was intended to prohibit a State from changing the process or
policies underlying the complex negotiating process that is modern
redistricting.
1030
Race as a Proxy
Faced with all this evidence that politics, not race, was the
predominant factor shaping the district lines, the plurality
ultimately makes little effort to contradict appellants' assertions
that incumbency protection was far more important in the placement
of District 30's lines than race. See
ante, at 967-969.
Instead, it adopts a fallback position based on an argument far
removed from even the "analytically distinct" claim set forth in
Shaw I, 509 U. S., at 652. In it, the plurality suggests
that even if the predominant reason for the bizarre features of the
majority-minority districts was incumbency protection, the State
impermissibly used race as a proxy for determining the likely
political affiliation of blocks of voters. See
ante, at
968-971 (opinion of O'CONNOR, J.).
The effect of this process, in all likelihood, was relatively
unimportant to the overall shape of the district. A comparison of
the 1992 precinct results with a depiction of the proportion of
black population in each census block reveals that
Democratic-leaning precincts cover a far greater area than
majority-black census blocks. Compare State's Exh. 9A with State's
Exh. 45. One would expect the opposite effect if the single-minded
goal of those drawing the districts was racial composition rather
than political affiliation. At the very least, the maps suggest
that the drawing of boundaries involves a demographic calculus far
more complex than simple racial stereotyping.
Furthermore, to the extent that race served as a proxy at all,
it did so merely as a means of "fine tuning" borders that were
already in particular locations for primarily political reasons.
This "fine tuning" through the use of race is, of course, little
different from the kind of fine tuning that could have legitimately
occurred around the edges of a compact majority-minority
district.28 I perceive no reason why a
28 The plurality expresses particular concern over the use of
computer programs, particularly the availability of block-by-block
racial data, and
1031
legitimate process-choosing minority voters for inclusion in a
majority-minority district-should become suspect once nonracial
considerations force district lines away from its core.
Finally, I note that in most contexts racial classifications are
invidious because they are irrational. For example, it is
irrational to assume that a person is not qualified to vote or to
serve as a juror simply because she has brown hair or brown skin.
It is neither irrational, nor invidious, however, to assume that a
black resident of a particular community is a Democrat if reliable
statistical evidence discloses that 97% of the blacks in that
community vote in Democratic primary elections. See Brief for
United States 44. For that reason, the fact that the architects of
the Texas plan sometimes appear to have used racial data as a proxy
for making political judgments seems to me to be no more
"unjustified,"
ante, at 969 (opinion of O'CONNOR, J.), and
to have no more constitutional significance, than an assumption
that wealthy suburbanites, whether black or white, are more likely
to be Repub-
argues that the State's effort to "compil[e] detailed racial
data,"
ante, at 967, is evidence of the controlling role of
race in the computer-dominated process of redistricting. See
ante, at 961-962; 861 F. Supp., at 1318-1319. It is worth
noting, however, that the State made no particular "effort" to
gather these data; it was included, along with similarly detailed
information about sex, age, and income levels, in the data set
provided by the Census Bureau and imported wholesale into the
State's redistricting computers. Cf.
Shaw, 861 F. Supp., at
457. Furthermore, even if the computer was used to fine tune the
district lines to ensure that minority communities were included in
District 30 (rather than individualized requests from candidates
and their staffers on the basis of block-level data, see
supra, at 1017-1018), such a technique amounts to little
more than the use of a particularly efficient and accurate means of
ensuring that the intended nature of the district was not
undermined as incumbency protection forced it out of a compact
district. I do not suggest that the end can always justify the
means, but if those means are no more invidious than the end
itself, I do not understand why their use should affect the
analysis. I would not condemn state legislation merely because it
was based on accurate information.
1032
licans than Communists.29 Requiring the State to ignore the
association between race and party affiliation would be no more
logical, and potentially as harmful, as it would be to prohibit the
Public Health Service from targeting AfricanAmerican communities in
an effort to increase awareness regarding sickle-cell anemia.30
Despite all the efforts by the plurality and the District Court,
then, the evidence demonstrates that race was not, in all
likelihood, the "predominant" goal leading to the creation of
District 30. The most reasonable interpretation of the record
evidence instead demonstrates that political considerations were.
In accord with the presumption against interference with a
legislature's consideration of complex and competing factors, see
n. 9,
supra, I would conclude that the configuration of
District 30 does not require strict scrutiny.
29 "A prediction based on a racial characteristic is not
necessarily more reliable than a prediction based on some other
group characteristic. Nor, since a legislator's ultimate purpose in
making the prediction is political in character, is it necessarily
more invidious or benign than a prediction based on other group
characteristics. In the line-drawing process, racial, religious,
ethnic, and economic gerrymanders are all species of political
gerrymanders."
Mobile v.
Bolden, 446 U. S. 55, 88 (1980)
(STEVENS, J., concurring in judgment) (footnote omitted).
To the extent that a political prediction based on race is
incorrect, the voters have an entirely obvious way to ensure that
such irrationality is not relied upon in the future: Vote for a
different party. A legislator relying on racial demographics to
ensure his or her election will learn a swift lesson if the
presumptions upon which that reliance was based are incorrect.
30 I find it particularly ironic that the Court considers the
use of race
verboten in this benign context, while the Court
just recently, on the basis of evidence that,
inter alia,
"[m]ore than 90% of the persons sentenced in 1994 for crack cocaine
trafficking were black," dismissed out of hand the Ninth Circuit's
assumption that "people of
all races commit
all types
of crimes."
United States v.
Armstrong, ante, at 469.
The Ninth Circuit's conclusion, it seems to me, is a model of the
sort of race-neutral decisionmaking that this Court insists should
be a part of constitutional decisionmaking processes.
1033
v
The Houston districts present a closer question on the
application of strict scrutiny. There is evidence that many of the
same race-neutral factors motivating the zigzags of District 30
were present at the creation (or recreation) of Districts 29 and
18. In contrast to District 30, however, there is also evidence
that the interlocking shapes of the Houston districts were
specifically, and almost exclusively, the result of an effort to
create, out of largely integrated communities, both a
majority-black and a majority-Hispanic district. For purposes of
this opinion, then, I am willing to accept,
arguendo, the
plurality's conclusion that the Houston districts should be
examined with strict scrutiny.31 Even so, the plurality errs by
concluding that these districts would fail that test.
The plurality begins with the perfectly obvious assumptions that
a State has a compelling interest in complying with §2 of the
Voting Rights Act and that Texas had a strong basis for believing
that it would have violated that Act in 1991 if it did not create
three new majority-minority districts.32 The plurality goes on to
conclude, however, that because the final shape of these districts
is not coextensive with the community that would form the core of a
§ 2 violation, these districts would not be "narrowly tailored" to
further that state interest.
Ante, at 979. I respectfully
disagree.
Neither evidence nor insinuation suggests that the State in the
redistricting process considered race for any reason
31 Although I conclude that no reasonable interpretation of the
record would require the application of strict scrutiny to District
30, I believe for the reasons that follow that it, too, would
survive strict scrutiny if it were to be subject to that level of
review.
32 While I believe that the evidence supporting the State's
conclusions in this regard is stronger than that suggested by the
plurality or JUSTICE KENNEDY in his concurring opinion, I will
simply assume,
arguendo, as the plurality does, that the
State had a reasonable fear of liability under § 2. See also
supra, at 1007.
1034
other than as a means of accomplishing its compelling interest
of creating majority-minority districts in accord with the Voting
Rights Act. The goal was, by all accounts, achieved, for these
districts would certainly avoid liability under § 2 of the Voting
Rights Act.33 For reasons that continue to escape me, however, the
plurality simply insists that the lack of compactness in the
districts prevents them from being "narrowly tailored" solutions to
the State's interests.
The plurality uses two premises to reach its conclusion that
compactness is required to meet the "narrow tailoring" requirement:
(i) § 2 would not have been violated unless a reasonably compact
majority-minority district could have been created; and (ii)
nothing in § 2 requires the creation of a noncompact district. I
have no quarrel with either proposition, but each falls far short
of mandating the conclusion that the plurality draws from it. While
a State can be liable for a § 2 violation only if it could have
drawn a compact district and failed to do so, it does not follow
that creating such a district is the only way to avoid a § 2
violation. See generally
Shaw II, ante, at 946-950 (STEVENS,
J., dissenting). The plurality admits that a State retains "a
limited degree of leeway" in drawing a district to alleviate fears
of § 2 liability,
ante, at 977, but if there is no
independent constitutional duty to create compact districts in the
first place, and the plurality suggests none, there is no reason
why noncompact districts should not be a permissible method of
avoiding violations of law. The fact that they might be
unacceptable judicial remedies does not speak to the question
whether they
33 Even if the Court in
Shaw II is correct in asserting
that North Carolina's District 12 would not have allowed the State
to avoid liability under § 2, see
ante, at 916-918, no such
plausible argument could be made in these cases. The core of
District 30, for instance, contains more than half of all the
Mrican-American population in the district, and coincides precisely
with the heart of the compact community that the State reasonably
believes would give rise to a § 2 violation were it not placed in a
majorityminority district. The same facts are true with respect to
the Houston districts.
1035
may be acceptable when adopted by a state legislature. Because
these districts satisfy the State's compelling interest and do so
in a manner that uses racial considerations only in a way
reasonably designed to ensure such a satisfaction, I conclude that
the districts are narrowly tailored.
VI
I cannot profess to know how the Court's developing
jurisprudence of racial gerrymandering will alter the political and
racial landscape in this Nation-although it certainly
will
alter that landscape. As the Court's law in this area has
developed, it has become ever more apparent to me that the Court's
approach to these cases creates certain perverse incentives and (I
presume) unanticipated effects that serve to highlight the
essentially unknown territory into which it strides. Because I
believe that the social and political risks created by the Court's
decisions are not required by the Constitution, my first choice
would be to avoid the preceding analysis altogether, and leave
these considerations to the political branches of our
Government.
The first unintended outcome of the legal reasoning in
Shaw
II and this case is the very result that those decisions seek
to avoid: the predominance of race in the districting process, over
all other principles of importance. Given the Court's unwillingness
to recognize the role that race-neutral districting principles
played in the creation of the bizarrely shaped districts in both
this case and
Shaw II, it now seems clear that the only way
that a State can both create a majority-minority district and avoid
a racial gerrymander is by drawing, "without much conscious
thought,"
ante, at 967 (opinion of O'CONNOR, J.), and within
the "limited degree of leeway" granted by the Court,
ante,
at 977, the precise compact district that a court would impose in a
successful § 2 challenge. See
post, at 1066-1067 (SOUTER,
J., dissenting). After the Court's decisions today, therefore,
minority voters can make up a majority only in compact districts,
whether
1036
intentionally or accidentally drawn, while white voters can be
placed into districts as bizarre as the State desires.
The great irony, of course, is that by
requiring the
State to place the majority-minority district in a particular place
and with a particular shape, the district may stand out as a stark,
placid island in a sea of oddly shaped majority-white neighbors.
See Karlan, Still Hazy After All These Years:
Voting Rights in the
Post-Shaw Era, 26 Cumberland L. Rev.
287, 309 (1995-1996). The inviolable sanctity of the § 2eligible
districts will signal in a manner more blatant than the most
egregious of these racial gerrymanders that "a minority community
sits here: Interfere with it not." The Court-imposed barriers
limiting the shape of the district will interfere more directly
with the ability of minority voters to participate in the political
process than did the oddly shaped districts that the Court has
struck down in recent cases. Unaffected by the new racial
jurisprudence, majority-white communities will be able to
participate in the districting process by requesting that they be
placed into certain districts, divided between districts in an
effort to maximize representation, or grouped with more distant
communities that might nonetheless match their interests better
than communities next door. By contrast, none of this political
maneuvering will be permissible for majority-minority districts,
thereby segregating and balkanizing them far more effectively than
the districts at issue here, in which they were manipulated in the
political process as easily as white voters. This result, it seems
to me, involves "discrimination" in a far more concrete manner than
did the odd shapes that so offended the Court's sensibilities in
Miller, Shaw II, and these cases.
In light of this Court's recent work extolling the importance of
state sovereignty in our federal scheme, cf.
Seminole Tribe of
Fla. v.
Florida, ante, p. 44, I would have expected the
Court's sensibilities to steer a course rather more deferential to
the States than the one that it charts with its
1037
decisions today. As we have previously noted, "[e]lectoral
districting is a most difficult subject for legislatures, and so
the States must have discretion to exercise the political judgment
necessary to balance competing interests."
Miller, 515 U.
S., at 915; see also
post, at 1047-1048 (SOUTER, J.,
dissenting). The record in these cases evidences the "complex
interplay of forces that enter a legislature's redistricting
calculus," 515 U. S., at 915-916, and the Court's failure to
respect those forces demonstrates even less respect for the
legislative process than I would have expected after the decision
in
Miller.
The results are not inconsequential. After
Miller and
today's decisions, States may find it extremely difficult to avoid
litigation flowing from decennial redistricting. On one hand,
States will risk violating the Voting Rights Act if they fail to
create majority-minority districts. If they create those districts,
however, they may open themselves to liability under
Shaw
and its progeny. See
Miller, 515 U. S., at 949 (GINSBURG,
J., dissenting). Perhaps States will simply avoid the problem by
abandoning voluntary compliance with § 2 of the Voting Rights Act
altogether. See
Shaw I, 509 U. S., at 672
(White, J., dissenting);
post, at 1063-1064 (SouTER, J.,
dissenting).34 This result would not necessarily bring peace to
redistricting, for there is no guarantee that districts created by
court order to comply with § 2 will be immune from attack under
Shaw; in both Florida and Illinois, for instance, that very
sort of schizophrenic second-guessing has already occurred. See
King v.
State Bd. of Elections,
34 The difficulty of balancing between these competing legal
requirements will only be exacerbated by the ability of litigants
(and courts) to use evidence proffered in defense by the State or
its actors in one context as evidence
against the State in
another. See n. 24,
supra. While there is nothing wrong with
using prior inconsistent statements (to the extent that they really
are inconsistent), States will be all the more unwilling to enter
into the process at all given the certainty that they will be
subject to suits in which evidence offered in one as defense will
be fodder for the plaintiffs in another.
1038
No. 95-C-827, 1996 WL 130439 (ND Ill., Mar. 15, 1996);
Johnson v.
Mortham, 926 F. Supp. 1460 (ND Fla. 1996).
Given the difficulty of reconciling these competing legal
responsibilities, the political realities of redistricting, and the
cost of ongoing litigation, some States may simply step out of the
redistricting business altogether, citing either frustration or
hopes of getting a federal court to resolve the issues definitively
in a single proceeding. See,
e. g., Johnson v.
Miller, 922 F. Supp. 1556, 1559 (SD Ga. 1995) (after remand
from
Miller, Georgia Legislature abdicated its redistricting
responsibilities to Federal District Court);
post, at 1064
(SouTER, J., dissenting) (noting the likely "vacuum of
responsibility" at the state level).
Regardless of the route taken by the States, the Court has
guaranteed that federal courts will have a hand-and perhaps the
only hand-in the "abrasive task of drawing district lines."
Wells v.
Rockefeller, 394 U. S. 542, 553 (1969)
(White, J., dissenting). Given the uniquely political nature of the
redistricting process, I fear the impact this new role will have on
the public's perception of the impartiality of the Federal
Judiciary. I can only reiterate the Court's cautionary admonition,
issued over two decades ago, that "[i]n fashioning a
reapportionment plan or in choosing among plans, a district court
should not pre-empt the legislative task nor 'intrude upon state
policy any more than necessary.'"
White v.
Weiser,
412 U. S., at 795 (citing
Whitcomb
I do not wish to leave the impression that decisions of the
Court from
Shaw I to the present are focusing on entirely
nonexistent problems. I merely believe that the Court has entirely
misapprehended the nature of the harm that flows from this sort of
gerrymandering. Rather than attach blameworthiness to a decision by
the majority to
share political power with the victims of
past discriminatory practices, the Court's real concern should be
with the more significant harms that flow from legislative
decisions that "serve no
1039
purpose other than to favor one segment-whether racial, ethnic,
religious, economic, or political-that may occupy a position of
strength at a particular point in time, or to disadvantage a
politically weak segment of the community."
Karcher v.
Daggett, 462
U. S. 725, 748 (1983) (STEVENS, J., concurring). These cases
are as good an illustration of such self-serving behavior on the
part of legislators as any-but not with respect to racial
gerrymandering. The real problem is the politically motivated
gerrymandering that occurred in Texas. Many of the oddest twists
and turns of the Texas districts would never have been created if
the legislature had not been so intent on protecting party and
incumbents. See also
Shaw II, ante, at 937-938 (STEVENS, J.,
dissenting) (noting the same influences behind the bizarre shape of
North Carolina's District 12).
By minimizing the critical role that political motives played in
the creation of these districts, I fear that the Court may
inadvertently encourage this more objectionable use of power in the
redistricting process.35 Legislatures and elected representatives
have a responsibility to behave in a way that incorporates the
"elements of legitimacy and neutrality that must always
characterize the performance of the sovereign's duty to govern
impartially."
Cleburne, 473 U. S., at 452. That
responsibility is not discharged when legislatures permit and even
encourage incumbents to use their positions as public servants to
protect themselves and their parties rather than the interests of
their constituents. See
Karcher v.
Daggett, 462 U.
S., at 748, 754 (STEVENS, J., concurring). If any lines in Texas
are worth straightening,
35 The contrary is also possible, of course. Perhaps the
burgeoning role of federal courts in this process, along with their
relative isolation from the political pressures that motivate
legislatures to bend district lines, will mean that there will
actually be fewer politically gerrymandered districts. Regardless
of whether political gerrymanders are more or less prevalent after
our decisions today, my point is the same: The Court has its
hierarchy of values upside down.
1040
it is those that were twisted to exclude, not those altered to
include.36
VII
The history of race relations in Texas and throughout the South
demonstrates overt evidence of discriminatory voting practices
lasting through the 1970's. Brischetto, Richards, Davidson, &
Grofman, Texas, in Quiet Revolution in the South: The Impact of the
Voting Rights Act, 1965-1990, pp. 233-248 (C. Davidson & B.
Grofman eds. 1994). Even in recent years, Texans have elected only
two black candidates to statewide office; majority-white Texas
districts have never elected a minority to either the State Senate
or the United States Congress. Brief for Appellants in No. 94806,
p. 53. One recent study suggests that majority-white districts
throughout the South remain suspiciously unlikely
36 My view that a State may act unconstitutionally by
gerrymandering to minimize the influence of a group on the
political process is consistent with the belief that there is no
constitutional error in the drawing of district lines based on
benign racial considerations. As Justice Powell noted in his
opinion in
Davis v.
Bandemer, 478 U. S., at 165,
there is a sharp distinction between "gerrymandering in the 'loose'
sense" (i.
e., the drawing of district lines to advance
general political and social goals), and "gerrymandering that
amounts to unconstitutional discrimination" (i.
e., the
drawing of district lines for the sole purpose of "'occupy[ing] a
position of strength at a particular time, or to disadvantage a
politically weak segment of the community,'"
id., at 164
(citing
Karcher, 462 U. S., at 748 (STEVENS, J.,
concurring)). See also 478 U. S., at 125, n. 9 ("[A] preference for
nonpartisan as opposed to partisan gerrymanders ... merely
recognizes that nonpartisan gerrymanders in fact are aimed at
guaranteeing rather than infringing fair group representation").
While I believe that allegations of discriminatory intent and
impact, if proved, should give rise to a constitutional violation,
Shaw, Miller, and these cases all involve allegations of
both impact and intent that are far more diffuse than the
allegations to which we have traditionally directed our most
rigorous review. See
Shaw II, ante, at 921-923 (STEVENS, J.,
dissenting); cf.
Gomillion v.
Lightfoot, 364 U. S. 339 (1960).
Limiting the constitutional ban on gerrymandering to those claims
alleging that a specific group (as opposed to every group) has been
harmed would be far more consistent with prior precedent than the
Court's still-developing jurisprudence of racial
gerrymandering.
1041
to elect black representatives. Davidson & Grofman, The
Effect of Municipal Election Structure on Black Representation in
Eight Southern States, in Quiet Revolution in the South, at 344.
And nationwide, fewer than 15 of the hundreds of legislators that
have passed through Congress since 1950 have been black legislators
elected from majoritywhite districts.37 In 1994, for example, 36 of
the Nation's 39 black Representatives were elected from
majority-minority districts, while only 3 were elected from
majority-white districts.38 See
post, at 1050-1051 (SOUTER,
J., dissenting).
Perhaps the state of race relations in Texas and, for that
matter, the Nation, is more optimistic than might be expected in
light of these facts. If so, it may be that the plurality's
exercise in redistricting will be successful. Perhaps minority
candidates, forced to run in majority-white districts, will be able
to overcome the long history of stereotyping and discrimination
that has heretofore led the vast majority of majority-white
districts to reject minority candidacies. Perhaps not. I am certain
only that bodies of elected federal and state officials are in a
far better position than anyone on this Court to assess whether the
Nation's long history of discrimination has been overcome, and that
nothing in the Constitution requires this unnecessary intrusion
into the ability of States to negotiate solutions to political
differences while providing long-excluded groups the opportunity to
participate effectively in the democratic process. I respectfully
dissent.
[Appendixes to opinion of STEVENS, J., follow this page.]
37 Compare 51 Congressional Quarterly 10 (1993) (list of
MricanAmericans who have served in Congress through the end of
1992) and Supplement to 52 Congressional Quarterly 10 (Nov. 12,
1994) (listing minorities in the 104th Congress) with biyearly
publications of The Almanac of American Politics (published
1975-present).
38 D. Bositis, Joint Center for Political and Economic Studies,
MricanAmericans & the 1994 Midterms 22 (rev. May 1995). Fifteen
black candidates ran for office in majority-white districts.
Ibid.
1042
Appendix A to opinion of STEVENS, J.
APPENDIX A TO OPINION OF STEVENS, J.
TEXAS CONGRESSIONAL DISTRICT 3
1043
APPENDIX B TO OPINION OF STEVENS, J.
TEXAS CONGRESSIONAL DISTRICT 6
1044
Appendix C to opinion of STEVENS, J.
APPENDIX C TO OPINION OF STEVENS, J.
TEXAS CONGRESSIONAL DISTRICT 25
APPENDIX D TO OPINION OF STEVENS, J.
\
* = Incumbent Residence
DALLAS-FORT WORTH AREA CONGRESSIONAL DISTRICTS
After 1991 Redistricting
Before 1991 Redistricting
1045
JUSTICE SOUTER, with whom JUSTICE GINSBURG and JUSTICE BREYER
join, dissenting.
When the Court devises a new cause of action to enforce a
constitutional provision, it ought to identify an injury
distinguishable from the consequences of concededly constitutional
conduct, and it should describe the elements necessary and
sufficient to make out such a claim. Nothing less can give notice
to those whose conduct may give rise to liability or provide
standards for courts charged with enforcing the Constitution. Those
principles of justification, fair notice, and guidance have never
been satisfied in the instance of the action announced three Terms
ago in
Shaw v.
Reno, 509 U. S. 630 (1993)
(Shaw I), when a majority of this Court decided that a State
violates the Fourteenth Amendment's Equal Protection Clause by
excessive consideration of race in drawing the boundaries of voting
districts, even when the resulting plan does not dilute the voting
strength of any voters and so would not otherwise give rise to
liability under the Fourteenth or Fifteenth Amendments, or under
the Voting Rights Act.
Far from addressing any injury to members of a class subjected
to differential treatment, the standard presupposition of an equal
protection violation,
Shaw I addressed a putative harm
subject to complaint by any voter objecting to an untoward
consideration of race in the political process. Although the Court
has repeatedly disclaimed any intent to go as far as to outlaw all
conscious consideration of race in districting, after three rounds
of appellate litigation seeking to describe the elements and define
the contours of the
Shaw cause of action, a helpful
statement of a
Shaw claim still eludes this Court. This is
so for reasons that go to the conceptual bone.
The result of this failure to provide a practical standard for
distinguishing between the lawful and unlawful use of race has not
only been inevitable confusion in statehouses and courthouses, but
a consequent shift in responsibility for
1046
setting district boundaries from the state legislatures, which
are invested with front-line authority by Article I of the
Constitution, to the courts, and truly to this Court, which is left
to superintend the drawing of every legislative district in the
land.
Today's opinions do little to solve
Shaw's puzzles or
return districting responsibility to the States. To say this is not
to denigrate the importance of JUSTICE O'CONNOR'S position in her
separate opinion,
ante, at 990-992, that compliance with § 2
of the Voting Rights Act is a compelling state interest; her
statement takes a very significant step toward alleviating
apprehension that
Shaw is at odds with the Voting Rights
Act. It is still true, however, that the combined plurality,
minority, and Court opinions do not ultimately leave the law
dealing with a
Shaw claim appreciably clearer or more
manageable than
Shaw I itself did. And to the extent that
some clarity follows from the knowledge that race may be considered
when reasonably necessary to conform to the Voting Rights Act,
today's opinions raise the specter that this ostensible progress
may come with a heavy constitutional price. The price of
Shaw I, indeed, may turn out to be the practical
elimination of a State's discretion to apply traditional
districting principles, widely accepted in States without racial
districting issues as well as in States confronting them.
As the flaws of
Shaw I persist, and as the burdens placed
on the States and the courts by
Shaw litigation loom larger
with the approach of a new census and a new round of redistricting,
the Court has to recognize that
Shaw's problems result from
a basic misconception about the relation between race and
districting principles, a mistake that no amount of case-by-case
tinkering can eliminate. There is, therefore, no reason for
confidence that the Court will eventually bring much order out of
the confusion created by
Shaw I, and because it has
not, in any case, done so yet, I respectfully dissent.
1047
I
As its text indicates and our cases have necessarily and
repeatedly recognized,l Article I of the Constitution places
responsibility for drawing voting districts on the States in the
first instance. See Art. I, § 2, cl. 1 ("The House of
Representatives shall be composed of Members chosen every second
Year by the People of the several States, and the Electors in each
State shall have the Qualifications requisite for Electors of the
most numerous Branch of the State Legislature"); Art. I, § 4, cl. 1
("The Times, Places and Manner of holding Elections for Senators
and Representatives, shall be prescribed in each State by the
Legislature thereof; but the Congress may at any time by Law make
or alter such Regulations"). The Court has nonetheless recognized
limits on state districting autonomy when it could discern a strong
constitutional justification and a reasonably definite standard for
doing so, as, for example, in announcing the numerical requirement
of one person, one vote, see
Reynolds v.
Sims,
377 U. S. 533
(1964).2 But the Court has never ignored the
1 See,
e. g., Growe v.
Emison,
507 U. S. 25, 34
(1993) ("[T]he Constitution leaves with the States primary
responsibility for apportionment of their federal congressional and
state legislative districts") (citing U. S. Const., Art. I, § 2);
Voinovich v.
Quilter, 507 U. S. 146, 156
(1993);
Reynolds v.
Sims, 377 U. S. 533, 586
(1964).
2 Even in the no longer controversial instance of the
one-person, onevote rule, the adequacy of justification and
standard was subject to sharp dispute, and some of the Court's best
minds expressed principled hesitation to go even this far into what
has been called the political thicket, see
id., at 615
(Harlan, J., dissenting) ("The Court's elaboration of its new
'constitutional' doctrine indicates how far-and how unwisely-it has
strayed from the appropriate bounds of its authority. The
consequence of today's decision is that in all but the handful of
States which may already satisfy the new requirements the local
District Court or, it may be, the state courts, are given blanket
authority and the constitutional duty to supervise apportionment of
the State Legislatures. It is difficult to imagine a more
intolerable and inappropriate interference by the judiciary with
the independent legislatures of the States");
Baker v.
Carr, 369
1048
Constitution's commitment of districting responsibility to the
political branches of the States and has accordingly assumed over
the years that traditional districting principles widely accepted
among States represented an informal baseline of acceptable
districting practices. We have thus accorded substantial respect to
such traditional principles (as those, for example, meant to
preserve the integrity of neighborhood communities, to protect
incumbents, to follow existing political boundaries, to recognize
communities of interest, and to achieve compactness and
contiguity); we have seen these objectives as entirely consistent
with the Fourteenth and Fifteenth Amendments' demands. See,
e. g., id., at 578 ("A State may legitimately desire
to maintain the integrity of various political subdivisions,
insofar as possible, and provide for compact districts of
contiguous territory in designing a legislative apportionment
scheme");
White v.
Weiser, 412 U. S. 783, 797 (1973)
("[T]he District Court did not suggest or hold that the legislative
policy of districting so as to preserve the constituencies of
congressional incumbents was unconstitutional or even
undesirable");
Voinovich v.
Quilter, 507 U. S. 146, 156 (1993)
("Because the States ... derive their reapportionment authority ...
from independent provisions of state and federal law, the federal
courts are bound to respect the States' apportionment choices
unless those choices contravene federal requirements") (internal
quotation marks omitted; citation omitted).
The fundamental tenet underlying most of these constitutionally
unobjectionable principles (respect for communities of interest or
neighborhoods, say) is that voting is more than
u. S. 186, 267 (1962) (Frankfurter, J., dissenting) ("The
Court's authoritypossessed of neither the purse nor the
sword-ultimately rests on sustained public confidence in its moral
sanction. Such feeling must be nourished by the Court's complete
detachment, in fact and in appearance, from political entanglements
and by abstention from injecting itself into the clash of political
forces in political settlements").
1049
an atomistic exercise.3 Although it is the law of the
Constitution that representatives represent people, not places or
things or particular interests,
Reynolds, supra, at 562, the
notion of representative democracy within the federalist framework
presumes that States may group individual voters together in a way
that will let them choose a representative not only acceptable to
individuals but ready to represent widely shared interests within a
district. Aleinikoff & Issacharoff, Race and Redistricting:
Drawing Constitutional Lines After
Shaw v. Reno, 92 Mich. L.
Rev. 588, 601 (1993) ("It is only as collective partisans of the
same political preference-whether that preference is defined by
party or race or any other measure-that voters can assert their
right to meaningful participation in the political process").
Hence, in respecting the States' implementation of their own,
traditional districting criteria, the Court has recognized the
basically associational character of voting rights in a
representative democracy.
3 As Professor Issacharoff notes, our vote-dilution cases
acknowledged that "the right to cast an effective ballot implied
more than simply the equal weighting of all votes .... To be
effective, a voter's ballot must stand a meaningful chance of
effective aggregation with those of likeminded voters to claim a
just share of electoral results. For this reason, any sophisticated
right to genuinely meaningful electoral participation must be
evaluated and measured as a group right .... " Issacharoff, Groups
and the Right to Vote, 44 Emory L. J. 869, 883 (1995); see also
Davidson, The Recent Revolution in Voting Rights Law Affecting
Racial and Language Minorities, in Quiet Revolution in the South:
The Impact of the Voting Rights Act, 1965-1990, p. 23
(C.
Davidson & B. Grofman eds. 1994) ("Ethnic or racial vote
dilution takes place when a majority of voters, by bloc voting for
its candidates in a series of elections, systematically prevents an
ethnic minority from electing most or all of its preferred
candidates .... Vote dilution not only can deprive minority voters
of the important symbolic achievement of being represented by
preferred members of their own group, it can deprive them of a
committed advocate in councils of government ... [and] of the
substantial benefits that government bestows ... ").
1050
A
Accordingly, before
Shaw I, the Court required evidence
of substantial harm to an identifiable group of voters to justify
any judicial displacement of these traditional districting
principles. Such evidence existed in
Reynolds v.
Sims,
supra, when the disparate weighting of votes was held
unconstitutional, and it was present again when the Court
recognized the unconstitutional consequences of vote dilution, see
Whitcomb v.
Chavis, 403 U. S. 124 (1971);
White v.
Regester, 412 U. S. 755 (1973). In
the one case, the harm was mathematically identifiable; in the
other, the arithmetic provided powerful circumstantial evidence of
the impossibility of political success for the chosen candidate of
a racial and numerical minority in an area with pervasive
racial-bloc voting. In both cases, the complainants were from an
easily identified group of voters; and even in cases of racial
votedilution claims, which were conceptually more difficult to
state than the principle of one person, one vote, there were
readily recognized examples of the harm in question. Indeed, even
when one acknowledged that voters would be served by a
representative not of their own race and that the Constitution
guaranteed no right to pick a winner, see
Whitcomb, supra,
at 153-155, it was impossible to see mere happenstance in the facts
that the American voting-age population was 10.5% black, but the
Congress that assembled in 1981 had only 17 black representatives
out of 435 and no black senator. Statistical Abstract of the United
States, 1982-83, p. 490 (103d ed. 1982) (Table 802); Black
Americans:
A Statistical Sourcebook 142 (L. Hornor ed. 1995) (Table 4.02);
see also Parker, The Damaging Consequences of the Rehnquist Court's
Commitment to Color-Blindness Versus Racial Justice, 45 Am. U. L.
Rev. 763, 770-771 (1996) (observing that "[p]rior to the latest
round of redistricting after the 1990 Census, ... [b]lacks, who
constitute 11.1% of the nation's voting age population, made up
only 4.9% of the members of Congress"). The conclusion was
inescapable that what we
1051
know of as intentional vote dilution accounted for this
astonishing fact,4 just as it is equally inescapable that remedies
for vote dilution (and hedges against its reappearance) in the form
of majority-minority districts account for the fact that the 104th
Congress showed an increase of 39 black Members over the 1981
total. Minorities in Congress, 52 Congo Q., Supplement to No. 44,
p. 10 (Nov. 12, 1994); see also Parker,
supra, at 771
(noting "a fifty percent increase in the number of black members of
Congress").5
4 See Pildes, The Politics of Race, 108 Harv. L. Rev. 1359, 1369
(1995) (reviewing Quiet Revolution in the South: The Impact of the
Voting Rights Act, 1965-1990
(C. Davidson & B. Grofman
eds. 1994)) (noting that studies of Southern States demonstrate
that, as a result of racial-bloc voting, "the probability of a
district's electing a Black representative was less than 1%
regardless of a district's median family income, its percentage of
high school graduates; its proportion of residents who were
elderly, urban, foreign-born, or who had been residents of the
state for more than five years; or the region of the country in
which the district was located");
id., at 1375 (finding
similar results nationwide). There is, of course, reason to hope
that conditions are improving. See
infra, at 1076
(discussing elections in which crossover voting favors minority
incumbents and in which racial issues have not played a significant
role in the outcome). As I discuss in detail in Part IV,
infra, I believe that these improvements may be attributed
in large part to the effect of the Voting Rights Act, and thus to
our willingness to allow race-conscious districting in certain
situations.
5 I recognize, of course, that elsewhere we have imposed
prohibitions on the consideration of race, but contexts are crucial
in determining how we define "equal opportunity." Consider our
decisions on peremptory jury challenges. There, as in politics, one
race may not have had a fair shake from the other. But the
differences between jury decisionmaking and political
decisionmaking are, I believe, important ones. Politics includes
choices between different sets of social values, choices that may
ultimately turn on the ability of a particular group to enforce its
demands through the ballot box. Jury decisionmaking is defined as a
neutral process, the impartial application of law to a set of
objectively discovered facts. To require racial balance in jury
selection would risk redefining the jury's role. Without denying
the possibility that race, especially as an imperfect proxy for
experience, makes a difference in jury decisionmaking (and, in some
cases, legitimately so), it seems to me that the better course is
to
1052
Before
Shaw I, we not only thus limited judicial
interference with state districting efforts to cases of readily
demonstrable harm to an identifiable class of voters, but we also
confined our concern with districting to cases in which we were
capable of providing a manageable standard for courts to apply and
for legislators to follow. Within two years of holding in
Baker v.
Carr, 369 U. S. 186 (1962),
that malapportionment was a justiciable issue, "the Court
recognized that its general equal protection jurisprudence was
insufficient for the task and announced an increasingly rigid,
simple to apply, voting-specific mandate of equipopulousity."
Karlan, Still Hazy After All These Years: Voting Rights in the
Post
Shaw Era, 26 Cumberland L. Rev. 287, 299 (1996)
(hereinafter Karlan,
Post-Shaw Era). Likewise, although it
is quite true that the common definition of a racial vote-dilution
injury ("less opportunity ... to participate in the political
process and to elect representatives ... ," 42 U. S. C. § 1973(b))
is no model of concrete description, the Court has identified
categories of readily comprehensible evidence bearing on the
likelihood of such an injury, including facts about size of
minority population, quantifiable indications of political
cohesiveness and bloc voting, historical patterns of
ensure a fair shake by denying each side the right to make
race-based selections. The cost of the alternative is simply too
great. It is an entirely different matter, however, to recognize
that racial groups, like all other groups, play a real and
legitimate role in political decisionmaking. It involves nothing
more than an acknowledgment of the reality that our concepts of
common interest, geography, and personal allegiances are in many
places simply too bound up with race to deny some room for a theory
of representative democracy allowing for the consideration of
racially conceived interests. A majority of the Court has never
disagreed in principle with this position. See,
e.
g., Shaw I, 509 U. S. 630, 642 (1993)
(noting that race-conscious redistricting is not always
unconstitutional);
Miller v.
Johnson, 515 U. S. 900, 928-929
(1995) (O'CONNOR, J., concurring) (consideration of race in the
redistricting process does not always violate the Constitution);
ante, at 958 (opinion of O'CONNOR, J.) (noting that strict
scrutiny does "not apply merely because redistricting is performed
with consciousness of race").
1053
success or failure of favored candidates, and so on. See,
e. g., Thornburg v.
Gingles, 478 U. S. 30 (1986);
White v.
Regester, 412 U. S., at 766-770. The
particularity of this evidence goes far to separate victims of
political "inequality" from those who just happened to support
losing candidates.
B
Shaw I, however, broke abruptly with these standards,
including the very understanding of equal protection as a practical
guarantee against harm to some class singled out for disparate
treatment. Whereas malapportionment measurably reduces the
influence of voters in more populous districts, and vote dilution
predestines members of a racial minority to perpetual frustration
as political losers, what
Shaw I spoke of as harm is
not confined to any identifiable class singled out for
disadvantage. See
Shaw v.
Hunt, ante, at 923-925, 928
(Shaw II) (STEVENS, J., dissenting) (noting the absence of a
customary disadvantaged class and describing the
Shaw I
cause of action as a substantive due process, rather than an equal
protection, claim). If, indeed, what
Shaw I calls harm is
identifiable at all in a practical sense, it would seem to play no
favorites, but to fall on every citizen and every representative
alike. The Court in
Shaw I explained this conception of
injury by saying that the forbidden use of race "reinforces the
perception that members of the same racial group ... think alike,
share the same political interests, and will prefer the same
candidates at the polls," and that it leads elected officials "to
believe that their primary obligation is to represent only the
members of that group, rather than their constituency as a whole."
Shaw I, 509 U. S., at 647-648. This injury is probably best
understood as an "expressive harm," that is, one that "results from
the idea or attitudes expressed through a governmental action,
rather than from the more tangible or material consequences the
action brings about." Pildes & Niemi, Expressive Harms,
"Bizarre Districts," and Voting Rights: Evaluat-
1054
ing Election-District Appearances after
Shaw v. Reno, 92
Mich. L. Rev. 483, 506-507 (1993); see also
id., at 493
("The theory of voting rights [that
Shaw 1] endorses centers
on the perceived legitimacy of structures of political
representation, rather than on the distribution of actual political
power between racial or political groups"). To the extent that
racial considerations do express such notions, their shadows fall
on majorities as well as minorities, whites as well as blacks, the
politically dominant as well as the politically impotent. Thus, as
an injury supposed to be barred by the Equal Protection Clause,
this subject of the "analytically distinct" cause of action created
by
Shaw I, supra, at 652, bears virtually no resemblance to
the only types of claims for gerrymandering we had deemed
actionable following
Davis v.
Bandemer, 478 U. S. 109 (1986),
those involving districting decisions that removed an identifiable
class of disfavored voters from effective political participation.
See,
e. g., Gomillion v.
Lightfoot,
364 U. S. 339
(1960);
Thornburg v.
Gingles, supra.6
Just as the logic of traditional equal protection analysis is at
odds with
Shaw's concept of injury, so the Court's rhetoric
of racially motivated injury is inapposite to describe the
consideration of race that it thinks unreasonable. Although the
Court used the metaphor of "political apartheid" as if to refer to
the segregation of a minority group to eliminate its association
with a majority that opposed integration,
Shaw I, supra, at
647, talk of this sort of racial separation is not on point here.
The
de jure segregation that the term "political
6 Leaving aside the question whether such a catholic injury can
be a violation of the Equal Protection Clause, there still might be
a use of race that harms all district voters because it is used to
an unreasonable degree. But see
Valley Forge Christian
College v.
Americans United for Separation of Church and
State, Inc., 454
U. S. 464, 489 (1982). But the Court has never succeeded in
identifying how much is too much, having adopted a "predominant
purpose" test that amounts to a practical repudiation of any hope
of devising a workable standard. See Part I-C,
infra.
1055
apartheid" brings to mind is unconstitutional because it
emphatically implies the inferiority of one race. See
Brown
v.
Board of Education, 347 U. S. 483, 494 (1954)
("To separate [minority children] from others of similar age and
qualifications solely because of their race generates a feeling of
inferiority as to their status in the community").
Shaw I,
in contrast, vindicated the complaint of a white voter who objected
not to segregation but to the particular racial proportions of the
district. See Karlan, Our Separatism? Voting Rights as an American
Nationalities Policy, 1995 U. Chi. Legal Forum 83, 94 (hereinafter
Karlan, Our Separatism) (noting the irony of using the term
"apartheid" to describe what are "among the most integrated
districts in the country"). Whatever this district may have
symbolized, it was not "apartheid." Nor did the proportion of its
racial mixture reflect any purpose of racial subjugation, the
district in question having been created in an effort to give a
racial minority the same opportunity to achieve a measure of
political power that voters in general, and white voters and
members of ethnic minorities in particular, have enjoyed as a
matter of course. In light of a majority-minority district's
purpose to allow previously submerged members of racial minorities
into the active political process, this use of race cannot
plausibly be said to affect any individual or group in any sense
comparable to the injury inflicted by
de jure segregation.
It obviously conveys no message about the inferiority or outsider
status of members of the white majority excluded from a district.
And because the condition addressed by creating such a district is
a function of numbers, the plan implies nothing about the capacity
or value of the minority to which it gives the chance of electoral
success.
Added to the anomalies of
Shaw 1's idea of equal
protection injury and the rhetoric of its descriptions, there is a
further conceptual inadequacy in
Shaw 1. Whereas it defines
injury as the reinforcement of the notion that members of a racial
group will prefer the same candidates at the polls, the imme-
1056
diate object of the constitutional prohibition against the
intentional dilution of minority voting strength is to protect the
right of minority voters to make just such a preference effective.
There would, for example, be no vote dilution by virtue of
racial-bloc voting unless voters of a racial minority would
themselves tend to stick together in voting for a given candidate
(perhaps, though not necessarily, of their own race, as well).
Indeed, if there were no correlation between race and candidate
preference, it would make no sense to say that minority voters had
less opportunity than others to elect whom they would; they would
be part of the mainstream and the winners would be their own
choices. When voting is thus racially polarized, it is just because
of this polarization that majority-minority districts provide the
only practical means of avoiding dilution or remedying the dilution
injury that has occurred already.
Shaw I has thus placed
those who choose to avoid the long-recognized constitutional harm
of vote dilution at risk by casting doubt on the legitimacy of its
classic remedy; the creation of a majority-minority district
"reinforces" the notion that there is a correlation between race
and voting, for that correlation is the very condition on which the
success of the court-ordered remedy depends. So it is that the
Court's definition of injury is so broad as to cover
constitutionally necessary efforts to prevent or remedy a violation
of the Fourteenth and Fifteenth Amendments and of §2 of the Voting
Rights Act.
One way to temper the overreach of the Court's concept of injury
(though it would not avoid the difficulty that there is no equal
protection injury in the usual sense, discussed above, see
supra, at 1050) would be simply to exclude by definition
from
Shaw I injury a use of race in districting that is
reasonably necessary to remedy or avoid dilution; the Court's move
at least in this direction, see
infra, at 10661069, is a
sound one, as is its continuing recognition (despite its broad
definition of harm) that not every intentional creation of a
majority-minority district requires strict scrutiny.
1057
See
ante, at 958;
ante, at 993 (O'CONNOR, J.,
concurring); cf.
Miller, 515 U. S., at 928 (O'CONNOR, J.,
concurring). But the suggested qualification would fall short of
eliminating the difficulty caused by the existing definition, for
the uses of race to remedy past dilution or to hedge against future
dilution are not the only legitimate uses of race that are covered,
and threatened, by the overbreadth of the
Shaw injury. This
will become clear in examining the Court's efforts to solve its
definitional problems by relying upon the degree to which race is
used in defining the injury it discerns.
C
The Court's failure to devise a concept of
Shaw harm that
distinguishes those who are injured from those who are not, or to
differentiate violation from remedy, is matched by its inability to
provide any manageable standard to distinguish forbidden
districting conduct from the application of traditional state
districting principles and the plans that they produce. This
failure, while regrettable, need not have occurred, for when the
Court spoke in
Shaw I of a district shape so "bizarre" as to
be an unequivocal indication that race had influenced the
districting decision to an unreasonable degree,
Shaw I could
have been pointing to some workable criterion of shape translatable
into objective standards. Leaving
Shaw's theoretical
inadequacies aside, it would have been possible to devise a cause
of action that rested on the expressive character of a district's
shape, and created a safe harbor in the notion of a compact
district objectively quantified in terms of dispersion, perimeter,
and population. See Pildes & Niemi, 92 Mich. L. Rev., at
553-575. Had the Court followed this course, the districts whose
grotesque shapes provoke the sharpest reaction would have been
eliminated in racially mixed States, which would have known how to
avoid
Shaw violations and, thus, federal judicial intrusion.
Shaw would have been left a doctrinal incongruity, but not
an unmanageable one.
1058
The Court, however, rejected this opportunity last Term in
Miller v.
Johnson, supra, when it declined to contain
Shaw by any standard sufficiently quantifiable to guide the
decisions of state legislators or to inform and limit review of
districting decisions by the courts. The Court rejected shape as a
sufficient condition for finding a
Shaw violation, or even a
necessary one. 515 U. S., at 915. See also Issacharoff, The
Constitutional Contours of Race and Politics, 1995 S. Ct. Rev. 45,
56 (hereinafter Issacharoff, Constitutional Contours)
("Miller is rather categorical in its refusal to limit the
application of the equal protection clause to bizarre districts
alone"). Instead, it recharacterized the cause of action in terms
devised in other cases addressing essentially different problems,
by proscribing the consideration of race when it is the
"predominant factor motivating the legislatur[e]," 515 U. S., at
916, or when the use of race is "in substantial disregard of
customary and traditional districting practices,"
id., at
928 (O'CONNOR, J., concurring).
As a standard addressed to the untidy world of politics, neither
"predominant factor" nor "substantial disregard" inspires much
hope.7 It is true of course that the law rests certain other
liability decisions on the feasibility of untangling mixed motives,
and courts and juries manage to do the untangling. See,
e. g.,
Mt. Healthy City Bd. of Ed. v.
Doyle, 429 U. S. 274, 287 (1977)
(employee's burden to show that constitutionally protected conduct
is a "substantial factor" in
7See
Cannon v.
North Carolina State Ed. of Ed.,
917 F. Supp. 387,391 (EDNC 1996) (describing this "difficult area
of the law" and predicting that it will "gain better definition by
reason of an imminent decision by the Supreme Court of the United
States [in
Shaw II]"); Briffault, Race and Representation
After
Miller v. Johnson, 1995 U. Chi. Legal Forum 23, 50
(1995) ("[I]t is unclear what work the adjectives 'predominant' and
'overriding' do in the Supreme Court's test"); Karlan,
Post-Shaw Era
287 (Miller "further unsettled the
already unclear roadmap" of
Shaw I); Issacharoff,
Constitutional Contours 60 ("[T]he Court's facile reliance on
standards of causation vaguely reminiscent of tort law does nothing
to defer confronting the hard issue of acceptable standards of
conduct").
1059
decision not to rehire him; employer's burden to show that it
would have made same decision "even in the absence of the protected
conduct");
Hunter v.
Underwood, 471 U. S. 222, 228 (1985)
("Once racial discrimination is shown to have been a 'substantial'
or 'motivating' factor behind the enactment of the law, the burden
shifts to the law's defenders to demonstrate that the law would
have been enacted without this factor"); but see
Arlington
Heights v.
Metropolitan Housing Development Corp.,
429 U. S. 252,
265 (1977) ("Rarely can it be said that a legislature or
administrative body operating under a broad mandate made a decision
motivated solely by a single concern, or even that a particular
purpose was the 'dominant' or 'primary' one"). At first glance,
then, it may not seem entirely out of the question for courts to
sort out the strands in
Shaw cases. But even this cool
comfort would be misplaced.
While a court may be entitled to some confidence that in most
cases it will be able, for example, to distinguish the relative
strength of an employer's dissatisfaction with an employee's job
performance from his displeasure over a worker's union membership,
see
NLRB v.
Transportation Management Corp., 462 U. S. 393, 403-405
(1983), such confidence would be unwarranted in the districting
context. It is not merely that the very nature of districting
decisions makes it difficult to identify whether any particular
consideration, racial or otherwise, was the "predominant motive,"
though that is certainly true:
"Districting plans are integrated bundles of compromises, deals
and principles. To ask about the reason behind the design of anyone
particular district is typically to implicate the entire pattern of
purposes and trade-offs behind a districting plan as a whole.
Searching for 'the reason' or 'the dominant reason' behind a
particular district's shape is often like asking why one year's
federal budget is at one level rather than another. Moreover, to
require a coherent explanation for the spe-
1060
cific shape of even one district is to impose a model of
legalistic decisionmaking on the one political process that least
resembles that model." Pildes & Niemi,
supra, at 585-586
(footnote omitted).
The reason that use of the predominant motive standard in
reviewing a districting decision is bound to fail is more
fundamental than that: in the political environment in which race
can affect election results, many of these traditional districting
principles cannot be applied without taking race into account and
are thus, as a practical matter, inseparable from the supposedly
illegitimate racial considerations. See Pildes & Niemi,
supra, at 578 ("[R]ace frequently correlates with other
socioeconomic factors. In evaluating oddly shaped districts, this
correlation will require courts to attempt to untangle legitimate
communities of interest from the now-illegitimate one of race. If
blacks as blacks cannot be grouped into a 'highly irregular'
district, but urban residents or the poor can, how will courts
distinguish these contexts, and under what mixed-motive
standard?"); Issacharoff, Constitutional Contours 58 ("Given the
palpability of racial concerns in the political arena,
[Miller's causation standard could] either doom all attempts
to distribute political power in multi-ethnic communities or ...
fail to provide a basis for distinguishing proper from improper
considerations in redistricting").
If, for example, a legislature may draw district lines to
preserve the integrity of a given community, leaving it intact so
that all of its members are served by one representative, this
objective is inseparable from preserving the community's racial
identity when the community is characterized, or even self-defined,
by the race of the majority of those who live there. This is an old
truth, having been recognized every time the political process
produced an Irish or Italian or Polish ward.
1061
"[E]thnicity itself can tie people together, as volumes of
social science literature have documented-even people with
divergent economic interests. For this reason, ethnicity is a
significant force in political life ....
" ... The creation of ethnic districts reflecting felt identity
is not ordinarily viewed as offensive or demeaning to those
included in the delineation." Miller v. Johnson, 515
U. S., at 944-945 (GINSBURG, J., dissenting).
Or take the traditional principle of providing protection for
incumbents. The plurality seems to assume that incumbents may
always be protected by drawing lines on the basis of data about
political parties. Cf.
ante, at 967-968, 970-971. But what
if the incumbent has drawn support largely for racial reasons?
What, indeed, if the incumbent was elected in a majority-minority
district created to remedy vote dilution that resulted from
racial-bloc voting? It would be sheer fantasy to assume that
consideration of race in these circumstances is somehow separable
from application of the traditional principle of incumbency
protection, and sheer incoherence to think that the consideration
of race that is constitutionally required to remedy Fourteenth and
Fifteenth Amendment vote dilution somehow becomes unconstitutional
when aimed at protecting the incumbent the next time the census
requires redistricting.
Thus, it is as impossible in theory as in practice to untangle
racial consideration from the application of traditional
districting principles in a society plagued by racial-bloc voting8
with a racial minority population of political significance, or at
least the unrealized potential for achieving it. And it
8 Even in areas where there is no racial-bloc voting, the
application of certain traditional districting principles may
involve a legitimate consideration of race.
1062
is for just this fundamental reason that a test turning on
predominant purpose is incapable of producing any answer when
traditional districting principles are applied in the political
environment in which
Shaw I actions are brought.
II
Shaw 1's recognition of a misuse of race in districting
even when no vote dilution results thus rests upon two basic
deficiencies: first, the failure to provide a coherent concept of
equal protection injury, there being no separably injured class and
no concept of harm that would not condemn a constitutionally
required remedy for past dilution as well as many of the
districting practices that the Court is seeking to preserve;
second, the failure to provide a coherent test for distinguishing a
"predominant" racial consideration from the application of
traditional districting principles in a society whose racial
mixture is politically significant and where racial-bloc voting
exists. The necessary consequence of these shortcomings is
arbitrariness; it is impossible to distinguish what is valid from
what is not, or to decide how far members of racial minorities may
engage "in the same sort of pluralist electoral politics that every
other bloc of voters enjoys." Karlan, Our Separatism 103. Indeed,
if one needed further proof of this arbitrariness, one need go no
further than JUSTICE STEVENS'S dissent in this case. The plurality
effectively concedes that JUSTICE STEVENS has not unfairly applied
the principles governing the
Shaw cause of action, cf.
ante, at 971, n. (noting that "[i]n the application of our
precedents to District 30, our disagreement with JusTICE STEVENS'
dissent,
[ante], at 1014-1031, is largely factual"); in my
judgment he has faithfully applied those principles in the spirit
intended by the plurality. And yet the conclusions that the two
sides reach after applying precisely the same test could not be
more different.
1063
Along with this endemic unpredictability has come the
destruction of any clear incentive for the States with substantial
minority populations to take action to avoid vote dilution. Before
Shaw, state politicians who recognized that minority vote
dilution had occurred, or was likely to occur without redistricting
aimed at preventing it, could not only urge their colleagues to do
the right thing under the Fourteenth Amendment, but counsel them
in terrorem that losing a dilution case would bring
liability for counsel fees under 42 U. S. C. § 1988(b) or 42 U. S.
C. §
1973l(e). See Issacharoff, Constitutional Contours 48
("Minority political actors could leverage not only their political
power but the enforcement provisions of Section 5 of the Voting
Rights Act, and the threat of suit under Section 2 of the Act
against adverse districting decisions"); cf.
Hastert v.
Illinois State Bd. of Election Commr's, 28 F.3d
1430, 1444 (CA7 1993) (awarding fees to the prevailing parties
in a case in which the state legislature failed to draw
congressional districts, over the Board of Elections's objection
that it had "no interest in the eventual outcome except that there
be an outcome" for it to implement) (emphasis in original).
But this argument is blunted now, perhaps eliminated in practice,
by the risk of counsel fees in a
Shaw I action. States
seeking to comply in good faith with the requirements of federal
civil rights laws "now find themselves walking a tightrope: if they
draw majority-black districts they face lawsuits under the equal
protection clause; if they do not, they face both objections under
section 5 of the Voting Rights Act and lawsuits under section 2."
Karlan,
Post-Shaw Era 289. See
ante, at 1037
(STEVENS, J., dissenting) ("On one hand, States will risk violating
the Voting Rights Act if they fail to create majorityminority
districts. If they create those districts, however, they may open
themselves to liability under
Shaw and its progeny"). The
States, in short, have been told to get things just right, no
dilution and no predominant consider-
1064
ation of race short of dilution, without being told how to do
it. The tendency of these conflicting incentives is toward a
stalemate, and neither the moral force of the Constitution nor the
mercenary threat of liability can operate effectively in this
obscurity.
As a consequence, where once comprehensible districting
obligations confronted the legislators and governors of the States,
there is now a vacuum of responsibility in any State with the mixed
population from which
Shaw suits come. We can no longer say
with the old assurance that such States have a duty to comply with
federal requirements in districting, since a State, like an
individual, can hardly be blamed for failing to fulfill an
obligation that has never been explained. It is true, of course,
that a State may suffer consequences if the ultimate arbiter
decides on a result different from the one the State has put in
place, but that bad luck does not change the fact that a State
cannot be said to be obliged to apply a standard that has not been
revealed. Because the responsibility for the result can only be
said to rest with the final arbiter, the practical responsibility
over districting has simply shifted from the political branches of
the States with mixed populations to the courts, and to this Court
in particular. "The Court has apparently set itself upon a course
of ... reviewing challenged districts one by one and issuing
opinions that depend so idiosyncratically on the unique facts of
each case that they provide no real guidance to either lower courts
or legislatures." Karlan,
Post-Shaw Era 288. The tragedy in
this shift of political responsibility lies not only in the fact of
its occurrence in this instance, but in the absence of coherent or
persuasive justifications for causing it to occur.
III
Although today's cases do not address the uncertainties that
stem from
Shaw's underlying incoherence, they do aim to
mitigate its inscrutability with some specific rules.
1065
A
In each of today's cases, the Court expressly assumes that
avoiding a violation of the Voting Rights Act qualifies as a
sufficiently compelling government interest to satisfy the
requirements of strict scrutiny. See
ante, at 977 ("As we
have done in each of our three previous cases ... , we assume
without deciding that compliance with the results test [of § 2 of
the Voting Rights Act] ... can be a compelling state interest");
Shaw II, ante, at 915 ("We assume,
arguendo, for the
purpose of resolving this case, that compliance with § 2 could be a
compelling interest"). While the Court's decision to assume this
important point,
arguendo, is no holding, see
Seminole
Tribe of Fla. v.
Florida, ante, at 125 (SOUTER, J.,
dissenting), the assumption itself is encouraging because it
confirms the view that the intentional creation of majorityminority
districts is not necessarily a violation of
Shaw I, ante, at
958 (strict scrutiny does not "apply to all cases of intentional
creation of majority-minority districts"), and it indicates that
the Court does not intend to bring the
Shaw cause of action
to what would be the cruelly ironic point of finding in the Voting
Rights Act of 1965 (as amended) a violation of the Fourteenth
Amendment's equal protection guarantee. Cf. Pildes & Niemi, 92
Mich. L. Rev., at 498 (observing that "[i]f the Court believed
there were serious constitutional questions with the fundamental
structure of this scheme, the Court had numerous means to avoid
permitting an unconstitutionally composed legislature to assume
power," and seeing the reservation of this question in
Voinovich v.
Quilter, 507 U. S., at 157, as "evidence
that a majority of the Court is not prepared to find a general ban
on raceconscious districting in the Constitution"). JUSTICE
O'CONNOR'S separate opinion,
ante, at 990-992, bears on each
of these points all the more emphatically, for her view that
compliance with § 2 is (not just
arguendo) a compelling
state interest and her statement of that position virtually
insulate the Voting Rights Act from jeopardy under
Shaw as
such.
1066
B
The second point of reference to come out of today's cases is
the rule that if a State begins its map-drawing efforts with a
compact majority-minority district required by
Gingles, the
State may not rely too heavily on racial data in adjusting that
district to serve traditional districting principles. While this
rule may indeed provide useful guidance to state legislatures, its
inherent weakness is clear from what was said above,
supra,
at 1060-1062: it is in theory and in fact impossible to apply
"traditional districting principles" in areas with substantial
minority populations without considering race. As to some of those
principles, to be sure, the ban on the overuse of racial data may
not have much significance; racially identified communities can be
identified in other ways and will be, after today. But protecting a
minority incumbent may be another matter, since we cannot assume,
as the plurality does, that reliance on information about "party
affiliation" will serve to protect a minority incumbent, and we
cannot tell when use of racial data will go too far on the
plurality's view,
ante, at 962-963. It therefore may well be
that loss of the capacity to protect minority incumbency is the
price of the rule limiting States' use of racial data. If so, it
will be an exceedingly odd result, when the whole point of creating
yesterday's majority-minority district was to remedy prior
dilution, thus permitting the election of the minority incumbent
who (the Court now seems to declare) cannot be protected as any
other incumbent could be.
C
The third point of reference attributable to today's cases is as
yet only a possibility; a suggestion in the discussions of the
narrow tailoring test that States seeking to avoid violating § 2 of
the Voting Rights Act may draw the district that the Voting Rights
Act compels, and this district alone. See
Shaw II, ante, at
915-918 (rejecting North Carolina's District 12 because it does not
sufficiently coincide with the
1067
assumed
Gingles district);
ante, at 1035 (STEVENS,
J., dissenting) ("[I]t now seems clear that the only way that a
State can both create a majority-minority district and avoid a
racial gerrymander is by drawing ... within the 'limited degree of
leeway' granted by the Court ... the precise compact district that
a court would impose in a successful § 2 challenge"). If the Court
were to say that a district drawn to avoid dilution must respond to
the dilution threat in some geographically exact way, but see
Shaw II, ante, at 916, n. 8 (suggesting that States may have
flexibility in complying with § 2 of the Voting Rights Act);
ante, at 1037 (STEVENS, J., dissenting) (noting that States
traditionally have enjoyed a broader discretion in drawing district
lines), then presumably a district drawn in a race-conscious
fashion could survive only if it was as compact as the
Gingles district hypothesized for purposes of stating a
vote-dilution claim, and positioned where the hypothetical district
would be.
If the Court ultimately were to reach such a conclusion, it
would in one respect be taking a step back toward
Shaw I and
its suggestion that a district's shape might play an important, if
not determinative role in establishing a cause of action. Such a
step would, however, do much more than return to
Shaw I,
which suggested that a compact district would be a safe haven, but
not that the district hypothesized under
Gingles was the
only haven. See,
e. g., Shaw I, 509 U. S., at 646 ("The
district lines may be drawn, for example, to provide for compact
districts of contiguous territory, or to maintain the integrity of
political subdivisions").
I refer to this step as a "possibility" deliberately. The Court
in
Shaw II does not go beyond an intimation to this effect,
and
Bush raises doubt that the Court would go so far. See
ante, at 977-978 (rejecting the argument made by JUSTICE
STEVENS); see also
ante, at 978 ("[T]he States retain a
flexibility that federal courts enforcing § 2 lack .... And nothing
that we say today should be read as limiting 'a State's discretion
to apply traditional districting princi-
1068
pIes' "); but see
ante, at 994 (O'CONNOR, J., concurring)
("[I]f a State pursues that compelling interest by creating a
district that 'substantially addresses' the potential liability,
and does not deviate substantially from a hypothetical courtdrawn §
2 district for predominantly racial reasons, its districting plan
will be deemed narrowly tailored" (citations omitted)); but see
also
ante, at 977 ("We also reaffirm that the 'narrow
tailoring' requirement of strict scrutiny allows the States a
limited degree of leeway in furthering such interests .... We thus
reject, as impossibly stringent, the District Court's view of the
narrow tailoring requirement, that 'a district must have the least
possible amount of irregularity in shape, making allowances for
traditional districting criteria'" (citation omitted)). Indeed,
Bush leaves open the possibility that a State could create a
majority-minority district that does not coincide with the
Gingles shape so long as racial data are not overused,
ante, at 962, 981, and it does not suggest that a
Shaw claim could be premised solely on a deviation from a
Gingles district.
Suffice it to say for now that if the Court were to try to
render
Shaw more definite by imposing any such limitations
on shape and placement, the added measure of clarity would either
be elusive or it would come at an exorbitant price from States
seeking to comply with the Voting Rights Act and the Fourteenth and
Fifteenth Amendments. It would be elusive if the Court meant that
race could be considered in alleviating racial dilution but not in
applying any traditional districting principle: we have already
seen that race is inextricably intertwined with some common
districting principles when applied in a multiracial society. See
supra, at 1060-1062. Or it would come at an exorbitant
price, because no other districting principle would be allowed to
affect the compactness or placement that would be required for
purposes of
Gingles. The Court would thus be cutting back on
a State's power to vary district shape through its application of
the very districting principles that are supposed to pre-
1069
dominate in importance over racial consideration. That is, the
Court would be reducing the discretion of a State seeking to avoid
or correct dilution to the scope of a federal court's discretion
when devising a remedy for dilution. There could, of course, be no
justification for taking any such step. While there is good reason
to limit a federal court's discretion to interfere in a State's
political process when it employs its remedial power in dilution
cases, cf.
Voinovich v.
Quilter, 507 U. S., at 156
("Federal courts are barred from intervening in state apportionment
in the absence of a violation of federal law precisely because it
is the domain of the States ... to conduct apportionment"), there
is no apparent reason to impose the same limitations upon the
discretion accorded to a State subject to an independent
constitutional duty to make apportionment decisions, see
ibid. ("Because the States ... derive their reapportionment
authority ... from independent provisions of state and federal law,
... the federal courts are bound to respect the States'
apportionment choices unless those choices contravene federal
requirements") (internal quotation marks omitted). The principles
of federalism that we have tried to follow strongly counsel against
imposing any such limitations.
D
In sum, the three steps the Court takes today toward a more
definite cause of action either fail to answer the objections to
Shaw lor prompt objections of their own. Recognition of a
State's interest in complying with the Voting Rights Act does not
address the practical impossibility courts will encounter in
identifying a predominant use of race, as distinguished from some
lesser, reasonable consideration of it, when a State applies its
customary districting principles. The limitation on the use of
racial data is unlikely to make much difference in practice except
to jeopardize minority incumbency protection. And the possibility
that the Court will require
Gingles districts (or districts
substantially close
1070
to them) when compliance with § 2 of the Voting Rights Act is an
object of districting would render a State's districting obligation
more definite only by eliminating its ability to apply the very
districting principles traditionally considered to be important
enough to furnish a theoretical baseline of reasonable districting
practices.
IV
If today's developments fall short of curing
Shaw's
unworkability, it must be said that options for addressing them are
few. Assuming that
Shaw is not to be overruled as a flawed
experiment, the Court may select from two alternatives, depending
on whether its weightier concern is to preserve traditional
districting principles or to cure the anomalies created by
Miller's "predominant purpose" criterion.
If the Court's first choice is to preserve
Shaw in some
guise with the least revolutionary effect on districting principles
and practice, the Court could give primacy to the principle of
compactness and define the limits of tolerance for unorthodox
district shape by imposing a measurable limitation on the bizarre,
presumably chosen by reference to historical practice (adjusted to
eliminate the influence of any dilution that very practice may have
caused in the past, cf. Pildes & Niemi, 92 Mich. L. Rev., at
573-574, n. 246 (discussing the egregious racial gerrymanders of
the 19th century)) and calculated on the basis of a district's
dispersion, perimeter, and population. See
id., at 553-575.
This alternative would be true to
Shaw I in maintaining that
a point can be reached when the initially lawful consideration of
race becomes unreasonable and in identifying appearance as the
expression of undue consideration; and it would eliminate
Miller's impossible obligation to untangle racial
considerations from so-called "race-neutral" objectives (such as
according respect to community integrity and protecting the seats
of
1071
incumbents) when the racial composition of a district and voter
behavior bar any practical chance of separating them. The
incongruities of
Shaw's concept of injury when considered in
light of our customary equal protection analysis, our remedial
practice, and traditional respect for state districting discretion
would, of course, persist, but if
Shaw were defined by
measures that identified forbidden shape as the manifestation of
unreasonable racial emphasis, we would at least provide the notice
and guidance that are missing from the law today.
The other alternative for retaining a
Shaw cause of
action in some guise would be to accept the fact that, in the kind
of polarized multiracial societies that will generate
Shaw
actions as presently understood, racial considerations are
inseparable from many traditional districting objectives, making it
impossible to speak of race as predominating. The consequence of
facing this reality is that if some consideration of race is to be
forbidden as supposedly unreasonable in degree, then the use of
districting principles that implicate the use of race must be
forbidden. That is, traditional districting practices must be
eliminated. Such a result would, of course, be consistent with
Shaw 1's concept of injury as affecting voters of whatever
race. But cf.
Valley Forge Christian College v.
Americans
United for Separation of Church and State, Inc., 454 U. S. 464, 489 (1982)
(fact that some expressive harms are insufficient to satisfy
Article III standing requirements does not allow for relaxation of
those requirements). The result, in short, would be colorblindness
in determining the manner of choosing representatives, either by
eliminating the practice of districting entirely, or by replacing
it with districting on some principle of randomness that would not
account for race in any way.
While such is the direction in which
Shaw and
Miller together point, the objections to following any such
course seem insurmountable. The first is the irony that the
price
1072
of imposing a principle of colorblindness in the name of the
Fourteenth Amendment would be submerging the votes of those whom
the Fourteenth and Fifteenth Amendments were adopted to protect,
precisely the problem that necessitated our recognition of vote
dilution as a constitutional violation in the first place.
Eliminating districting in the name of colorblindness would produce
total submersion; random submersion (or packing) would result from
districting by some computerized process of colorblind randomness.
Thus, unless the attitudes that produce racial-bloc voting were
eliminated along with traditional districting principles, dilution
would once again become the norm. While dilution as an intentional
constitutional violation would be eliminated by a randomly
districted system, this theoretical nicety would be overshadowed by
the concrete reality that the result of such a decision would
almost inevitably be a socalled "representative" Congress with
something like 17 black members. See
supra, at 1050. In any
event, the submergence would violate the prohibition of even
nonintentional dilution found in § 2 of the Voting Rights Act. The
only way to avoid this conflict would be to declare the Voting
Rights Act unconstitutional, a prospect hardly in harmony with the
Court's readiness to assume today that compliance with the Voting
Rights Act qualifies as a compelling state interest for purposes of
litigating a
Shaw claim.
The second objection is equally clear. Whatever may be the
implications of what I have called
Shaw's failings, the
Court has repeatedly made it plain that
Shaw was in no way
intended to effect a revolution by eliminating traditional
districting practice for the sake of colorblindness.
Shaw I,
509 U. S., at 642 ("Despite their invocation of the ideal of a
'color-blind' Constitution, see
Plessy v.
Ferguson,
163 U. S. 537,
559 (1896) (Harlan, J., dissenting), appellants appear to concede
that race-conscious districting is not always unconstitutional. ...
That concession is wise: This Court
1073
never has held that race-conscious state decisionmaking is
impermissible in
all circumstances"); cf.
Richmond v.
J. A. Croson Co., 488 U. S. 469, 520-521
(1989) (SCALIA, J., concurring in judgment) (criticizing the
majority for rejecting a strict principle of colorblindness).
Indeed, the very fear that led to the creation of the
Shaw
cause of action was that racial concerns were taking too heavy a
toll on districting practices that had evolved over the years
through the political process.
Shaw I, 509 U. S., at
644-649. JUSTICE O'CONNOR, moreover, has made it obvious that race
has a legitimate place in districting,
id., at 642
("[R]aceconscious redistricting is not always unconstitutional");
Miller, 515 U. S., at 928-929 (O'CONNOR, J., concurring);
ante, at 993 (O'CONNOR, J., concurring), that the
intentional creation of majority-minority districts is not
forbidden by
Shaw, Miller, supra, at 928 (O'CONNOR, J.,
concurring) (districts may be permissible "even though race may
well have been considered in the redistricting process");
ante, at 990992 (O'CONNOR, J., concurring), and that
Shaw was aimed at only the exceptional district, 515 U. S.,
at 928-929 ("Application of the Court's standard does not throw
into doubt the vast majority of the Nation's 435 congressional
districts"). Of the present Court majority, only JUSTICES SCALIA
and THOMAS are on record as concluding that any intentional
creation of a majority-minority district is a forbidden racial
gerrymander.
Ante, at 1001 (THOMAS, J., concurring in
judgment).
Since a radical transformation of the political selection
process in the name of colorblindness is out of the question, the
Court's options for dealing with
Shaw's unworkability are in
truth only these: to confine the cause of action by adopting a
quantifiable shape test or to eliminate the cause of action
entirely. Because even a truncated
Shaw would rest on the
untenable foundation I have described, and the supposed, expressive
harm
Shaw seeks to remedy is unlikely
1074
to justify the disruption that even a modified
Shaw would
invite, there is presently no good reason that the Court's
withdrawal from the presently untenable state of the law should not
be complete. While I take the commands of
stare decisis very
seriously, the problems with
Shaw and its progeny are
themselves very serious. The Court has been unable to provide
workable standards, the chronic uncertainty has begotten no
discernible reliance, and the costs of persisting doubt about the
limits of state discretion and state responsibility are high.
There is, indeed, an added reason to admit
Shaw's failure
in providing a manageable constitutional standard and to allow for
some faith in the political process. That process not only evolved
the very traditional districting principles that the Court has
pledged to preserve, but has applied them in the past to deal with
ethnicity in a way that should influence our thinking about the
prospects for race. It is difficult to see how the consideration of
race that
Shaw condemns (but cannot avoid) is essentially
different from the consideration of ethnicity that entered American
politics from the moment that immigration began to temper regional
homogeneity. Recognition of the ethnic character of neighborhoods
and incumbents, through the application of just those districting
principles we now view as traditional, allowed ethnically
identified voters and their preferred candidates to enter the
mainstream of American politics, see
Miller, supra, at
944-945 (GINSBURG, J., dissenting); D. Judd, The Politics of
American Cities: Private Power and Public Policy 70 (3d ed. 1988);
see generally S. Erie, Rainbow's End: Irish-Americans and the
Dilemmas of Urban Machine Politics, 1840-1985 (1988), and to attain
a level of political power in American democracy. The result has
been not a state regime of ethnic apartheid, but ethnic
participation and even a moderation of ethnicity's divisive effect
in political practice. For although consciousness of ethnicity has
not disappeared from the
1075
American electorate, its talismanic force does appear to have
cooled over time.9 It took Boston Irish voters, for example, to
elect Thomas Menino mayor in 1993.10
9 See Karst, Paths to Belonging: The Constitution and Cultural
Identity, 64 N. C. L. Rev. 303, 347, 350 (1986) ("[T]he surest path
to assimilation is participation in the larger society's activities
and institutions. Voting is not just an expression of political
preferences; it is an assertion of belonging to a political
community .... " ''When legislative districts are defined in ways
that exclude the possibility of significant minority
representation, potential minority voters see that their votes are
not worth casting. Yet electoral mobilization is vital ... to the
group members' perceptions that they belong to the community");
Walzer, Pluralism in Political Perspective, in The Politics of
Ethnicity 1, 18 (S. Thernstrom, A. Orlov, & O. Handlin eds.
1982) ("[P]olitical life is in principle open, and this openness
has served to diffuse the most radical forms of ethnic
competition"); Kantowicz, Voting and Parties, in The Politics of
Ethnicity,
supra, at 29, 45 (noting that political successes
and recognition made members of an ethnic group "feel that it
belonged in the wider society ... [and brought] them inside the
political system"); Mintz, Ethnicity and Leadership: An Mterword,
in Ethnic Leadership in America 198 (J. Higham ed. 1978)
(concluding after reviewing several studies of ethnic politics that
"we ignore at our peril the need to understand those processes by
which being shortchanged ... politically can become any group's
motto or battle standard"); cf. Karlan, Our Separatism 102 ("two
generations of communist suppression and ethnic and religious
tension in Yugoslavia did little to ensure stability, tolerance, or
integration").
10 See,
e. g., Nolan, Boston Mayoral Race Could
Break Dominance of Ethnicity, Boston Globe, Apr. 9, 1993, p. 40
("When Boston finishes choosing a new mayor, the city may discover
that after centuries of immigration, ethnicity is no longer the
dominant factor in its politics"); Black, OnceSolid Voting Blocks
are Splitting in Boston, Boston Globe, Nov. 1, 1993, p. 1
(commenting that voters consider Menino's Italian descent "little
more than a historical footnote" and observing that "ethnic voting
has faded ... [a]s various groups enter the American economic and
social mainstream ... [and] gain some semblance of [political]
power"); D'Innocenzo, Gulotta Can't Count on Ethnicity, Newsday,
Oct. 19, 1993, p. 97 (noting that "[t]he vowel at the end of Tom
Gulotta's name may not matter in this year's county executive
election as it once did" because "Italian-Americans in Nassau
County are likely to go to the polls with more than ethnic
favoritism in mind"; attributing the decline in ethnicity-based
voting to the
1076
There is, then, some reason to hope that if vote dilution is
attacked at the same time that race is given the recognition that
ethnicity has historically received in American politics, the force
of race in politics will also moderate in time. There are even
signs that such hope may be vindicated, even if the evidence is
necessarily tentative as yet. See U. S. Comm'n on Civil Rights, The
Voting Rights Act: Ten Years After, p. 155 (Jan. 1975) ("In many
areas the great increase in minority registration and voting since
the passage of the Voting Rights Act in 1965 has meant that
politicians can no longer afford to ignore minority voters. This
has brought about a significant decline in racial appeals by
candidates and has made incumbents and candidates more responsive
to minority needs"); Carsey, The Contextual Effects of Race on
White Voter Behavior: The 1989 New York City Mayoral Election, 57
J. of Politics 221, 228 (1995) (reporting, in 1994, that "the
contextual effects of race may not be so different from the
contextual effects of factors like partisanship, ethnicity, or
social class as we might have believed"); Sigelman, Sigelman,
Walkosz, & Nitz, Black Candidates, White Voters:
Understanding Racial Bias in Political Perceptions, 39 Am. J. of
Political Science 243, 244 (1995) ("Over the years, white Americans
have expressed increasing willingness to vote for black
candidates"); Peirce, Fresh Air in City Hall, Baltimore Sun, Nov.
8, 1993, p. 7A ("In contest after contest, victory has gone to
mayoral candidates who eschew talk of race"); see also
Gingles, 478 U. S., at 56 (noting that crossover voting in
favor of minority candidates is more common when minority
incumbents stand for reelection);
Collins v.
Norfolk,
883 F. 2d 1232, 1243 (CA4 1989) (same). This possibility that
racial politics, too, may grow wiser so long as minority votes are
rescued from submergence should be considered in determining how
far the Fourteenth and Fifteenth Amendments require us to devise
constitutional common law to supplant
fact that "Nassau Italian-Americans feel less marginali[zed] as
an ethnic group").
1077
the democratic process with litigation in federal courts. It
counsels against accepting the profession that
Shaw has yet
evolved into a manageable constitutional standard, and from that
case's invocation again today I respectfully dissent.
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