OCTOBER TERM, 1993
Syllabus
JOHNSON, SPEAKER OF THE FLORIDA HOUSE OF REPRESENTATIVES, ET AL.
v.
DE GRANDY ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF FLORIDA
No. 92-519. Argued October 4, 1993-Decided June 30,1994*
In these consolidated cases, a group of Hispanic voters, a group
of black voters, and the Federal Government claim that Florida's
reapportionment plan for the State's single-member Senate and House
districts (SJR 2-G) unlawfully dilutes the voting strength of
Hispanics and blacks in the Dade County area, in violation of § 2
of the Voting Rights Act of 1965. The State Supreme Court, in a
review required by the State Constitution, declared the plan valid
under federal and state law, while acknowledging that time
constraints precluded full review and authorizing any interested
party to bring a § 2 challenge in that court. The plaintiffs chose,
however, to pursue their claims in federal court. A three-judge
District Court reviewed the totality of circumstances as required
by §2 and
Thornburg v.
Gingles, 478 U. S. 30, and
concluded that the three
Gingles preconditions for
establishing dilution were satisfied, justifying a finding of vote
dilution. Specifically, the court found that voting proceeded
largely along racial lines, producing a system of "tripartite
politics"; that Hispanics in the Dade County area could constitute
a majority in 11 House and 4 Senate districts, but that SJR 2-G had
created only 9 House and 3 Senate districts with Hispanic
majorities; that an additional majority-black Senate district could
have been drawn; and that Florida's minorities had suffered
historically from official discrimination, the social, economic,
and political effects of which they continued to feel. The court
imposed a remedial plan with 11 majority-Hispanic House districts
but, concluding that the remedies for blacks and Hispanics in the
senatorial districts were mutually exclusive, left SJR 2-G's Senate
districts in force.
Held:
1. The District Court properly refused to give preclusive effect
to the State Supreme Court's decision validating SJR 2-G. Pp.
1004-1006.
*Together with No. 92-593, De Grandy et al. v. Johnson, Speaker
of the Florida House of Representatives, et al., and No. 92-767,
United States v. Florida, also on appeal from the same court.
998
Syllabus
2. There is no violation of § 2 in SJR 2-G's House districts,
where in spite of continuing discrimination and racial bloc voting,
minority voters form effective voting majorities in a number of
House districts roughly proportional to their respective shares in
the voting-age population. While such proportionality is not
dispositive, it is a relevant fact in the totality of circumstances
to be analyzed when determining whether minority voters 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). Pp. 1006-1022.
(a) This Court assumes without deciding that the first
Gingles factor has been satisfied in these cases. pp.
1008-1009.
(b) While proof of the
Gingles factors is necessary to
make out a claim that a set of district lines violates § 2, it is
not necessarily sufficient. Rather, a court must assess the
probative significance of the
Gingles factors after
considering all circumstances with arguable bearing on the issue of
equal political opportunity. Here, the court misjudged the relative
importance of the
Gingles factors and of historical
discrimination by equating dilution where these had been found with
failure to maximize the number of majority-minority districts.
Dilution cannot be inferred from the mere failure to guarantee
minority voters maximum political influence. Pp. 1009-1017.
(c) Ruling as the State proposes, that as a matter of law no
dilution occurs whenever proportionality exists, would likewise
provide a bright-line decisional rule only in derogation of the
statutory text. While proportionality is an indication that
minority voters have equal political and electoral opportunity in
spite of racial polarization, it is no guarantee, and it cannot
serve as a shortcut to determining whether a set of districts
unlawfully dilutes minority voting strength. Pp. 1017-1021.
(d) This Court need not reach the United States' argument that
proportionality should be assessed only on a statewide basis in
cases challenging districts for electing a body with statewide
jurisdiction. The argument would recast this litigation as it comes
before the Court, for up until now the dilution claims have been
litigated not on a statewide basis, but on a smaller geographical
scale. Pp. 1021-1022.
3. The District Court's decision to leave undisturbed the
State's plan for Senate districts was correct. However, in reaching
its decision, the court once again misapprehended the legal test
for vote dilution. As in the case of the House districts, the
totality of circumstances appears not to support a finding of
dilution in the Senate districts. pp. 1023-1024.
815 F. Supp. 1550, affirmed in part and reversed in part.
999
SOUTER, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and BLACKMUN, STEVENS, O'CONNOR, and GINSBURG,
JJ., joined, and in all but Parts III-B-2, III-B-4, and IV of which
KENNEDY, J., joined. O'CONNOR, J., filed a concurring opinion,
post, p. 1025. KENNEDY, J., filed an opinion concurring in
part and concurring in the judgment,
post, p. 1026. THOMAS,
J., filed a dissenting opinion, in which SCALIA, J., joined,
post, p. 1031.
Joel 1.
Klein argued the cause for appellants in
No. 92-519 and appellees in Nos. 92-593 and 92-767. With him on the
brief for appellees in Nos. 92-593 and 92-767 were
Stephen
N.
Zack, Keith E. Hope, Richard E. Doran, George L. Waas,
and
Gerald B. Curington. Donald B. Verrilli, Jr., Scott A.
Sinder, Kevin X.
Crowley, James A. Peters, and Messrs.
Doran, Waas, and Curington filed briefs for appellants in No.
92-519.
James A. Feldman argued the cause for the United States in all
cases. With him on the briefs were Solicitor General Days, Acting
Solicitor General Bryson, Acting Assistant Attorney General Turner,
Acting Deputy Solicitor General Kneedler, and Jessica Dunsay
Silver.
C. Allen Foster argued the cause for appellees in No. 92519 and
appellants in No. 92-593. With him on the briefs were Robert N.
Hunter, Jr., Benjamin L. Ginsberg, Marshall R. Hurley, E. Thom
Rumberger, and George N. Meros, Jr. E. Barrett Prettyman, Jr., John
C. Keeney, Jr., Charles G. Burr, Dennis Courtland Hayes, and Willie
Abrams filed a brief in all cases for appellee Florida State
Conference of NAACP Branches. t
tMarc D. Stern, Lois C.
Waldman, and
Richard F.
Wolfson filed a brief for the American
Jewish Congress et al. as
amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the
Lawyers' Committee for Civil Rights Under Law by Herbert M.
Wachtell, William H. Brown III, Thomas J. Henderson, Frank R.
Parker, and Brenda Wright; and for the Mexican American Legal
Defense and Educational Fund et al. by Kenneth Kimerling, Arthur A.
Baer, Antonia Hernandez, and Judith Sanders-Castro.
[Footnote t is continued on p. 1000J
1000
JUSTICE SOUTER delivered the opinion of the Court. These
consolidated cases are about the meaning of vote dilution and the
facts required to show it, when § 2 of the Voting Rights Act of
1965 is applied to challenges to singlemember legislative
districts. See 79 Stat. 437, as amended, 42 U. S. C. § 1973. We
hold that no violation of § 2 can be found here, where, in spite of
continuing discrimination and racial bloc voting, minority voters
form effective voting majorities in a number of districts roughly
proportional to the minority voters' respective shares in the
voting-age population. While such proportionality is not
dispositive in a challenge to single-member districting, it is a
relevant fact in the totality of circumstances to be analyzed when
determining whether members of a minority group have "less
opportunity than other members of the electorate to participate in
the political process and to elect representatives of their
choice."
Ibid.
I
On the first day of Florida's 1992 legislative session, a group
of Hispanic voters including Miguel De Grandy (De Grandy
plaintiffs) complained in the United States District Court against
the speaker of Florida's House of Representatives, the president of
its Senate, the Governor, and other state officials (State). The
complainants alleged that the districts from which Florida voters
had chosen their state senators and representatives since 1982 were
malapportioned, failing to reflect changes in the State's
population during the ensuing decade. The State Conference of NAACP
Branches and individual black voters (NAACP
Briefs of
amici curiae were filed for Grant Woods,
Attorney General of Arizona, et al. by
Christopher D. Cerf;
and for the Anti-Defamation League of B'nai B'rith by
Chesterfield Smith, David E. Cardwell, Scott D. Makar, and
Steven M. Freeman.
1001
plaintiffs) filed a similar suit, which the three-judge District
Court consolidated with the De Grandy case.1
Several months after the first complaint was filed, on April 10,
1992, the state legislature adopted Senate Joint Resolution 2-G
(SJR 2-G), providing the reapportionment plan currently at issue.
The plan called for dividing Florida into 40 single-member Senate,
and 120 single-member House, districts based on population data
from the 1990 census. As the Constitution of Florida required, the
state attorney general then petitioned the Supreme Court of Florida
for a declaratory judgment that the legislature's apportionment
plan was valid under federal and state law. See Fla. Const., Art.
III, § 16(c). The court so declared, while acknowledging that state
constitutional time constraints precluded full review for
conformity with § 2 of the Voting Rights Act and recognizing the
right of any interested party to bring a § 2 challenge to the plan
in the Supreme Court of Florida. See
In re Constitutionality of
Senate Joint Resolution 2G, Special Apportionment Session 1992,
597 So. 2d 276, 285-286 (1992).2
The De Grandy and NAACP plaintiffs responded to SJR 2-G by
amending their federal complaints to charge the new
1 The complaints also challenged Florida's congressional
districts, but that element of the litigation has been resolved
separately, see
De Grandy v.
Wetherell, 794 F. Supp.
1076 (ND Fla. 1992) (three-judge court), and without appeal.
2 In an additional step not directly relevant to this appeal,
the State submitted SJR 2-G to the Department of Justice for
preclearance pursuant to 42 U. S. C. § 1973c (§ 5 of the Voting
Rights Act of 1965). Five Florida counties, but not Dade County,
are subject to preclearance.
De Grandy v.
Wetherell,
815 F. Supp. 1550, 1574 (ND Fla. 1992). When the Attorney General
of the United States refused to preclear the plan's Senate
districts for the Hillsborough County area and the state
legislature refused to revise the plan, the Supreme Court of
Florida ordered the adjustments necessary to obtain preclearance,
601 So. 2d 543 (1992); it is the version of SJR 2-G so adjusted
that is at issue in this litigation. 815 F. Supp., at
1557-1558.
1002
reapportionment plan with violating § 2.3 They claimed that SJR
2-G "'unlawfully fragments cohesive minority communities and
otherwise impermissibly submerges their right to vote and to
participate in the electoral process,'" and they pointed to areas
around the State where black or Hispanic populations could have
formed a voting majority in a politically cohesive, reasonably
compact district (or in more than one), if SJR 2-G had not
fragmented each group among several districts or packed it into
just a few.
De Grandy v.
Wetherell, 815 F. Supp.
1550, 1559-1560 (ND Fla. 1992).
The Department of Justice filed a similar complaint, naming the
State of Florida and several elected officials as defendants and
claiming that SJR 2-G diluted the voting strength of blacks and
Hispanics in two parts of the State in violation of § 2. The
Government alleged that SJR 2-G diluted the votes of the Hispanic
population in an area largely covered by Dade County (including
Miami) and the black population in an area covering much of
Escambia County (including Pensacola).4 App. 75. The District Court
consolidated this action with the other two and held a 5-day trial,
followed immediately by an hours-long hearing on remedy.
At the end of the hearing, on July 1, 1992, the District Court
ruled from the bench. It held the plan's provisions for state House
districts to be in violation of § 2 because "more than [SJR 2-G's]
nine Hispanic districts may be drawn without having or creating a
regressive effect upon black voters," and it imposed a remedial
plan offered by the De Grandy plaintiffs calling for 11
majority-Hispanic House dis-
3 The complaints also alleged violation of Art. I, § 2, and the
Fourteenth and Fifteenth Amendments of the United States
Constitution, but these claims were later dismissed
voluntarily.
4 The Voting Rights Act of 1965 and constitutional claims as to
the Escambia County area were settled by the parties and are not at
issue in this appeal.
1003
tricts. App. to Juris. Statement 2a, 203a. As to the Senate, the
court found that a fourth majority-Hispanic district could be drawn
in addition to the three provided by SJR 2-G, but only at the
expense of black voters in the area.
Id., at 202a; 815 F.
Supp., at 1560. The court was of two minds about the implication of
this finding, once observing that it meant the legislature's plan
for the Senate was a violation of § 2 but without a remedy, once
saying the plan did not violate § 2 at all. 5 In any event, it
ordered elections to be held using SJR 2-G's senatorial
districts.
In a later, expanded opinion the court reviewed the totality of
circumstances as required by § 2 and
Thornburg v.
Gingles,
478 U.
S. 30 (1986). In explaining Dade County's "tripartite
politics," in which "ethnic factors ... predominate over all
other[s] ... ," 815 F. Supp., at 1572, the court found political
cohesion within each of the Hispanic and black populations but none
between the two, id., at 1569, and a tendency of non-Hispanic
whites to vote as a bloc to bar minority groups from electing their
chosen candidates except in a dis-
5 The court's judgment filed July 2, 1992, App. to Juris.
Statement 5a, said SJR 2-G's state senatorial districts "do not
violate Section 2," but its subsequent opinion explaining the
judgment said the senatorial districts do indeed violate § 2, and
that its earlier language "should be read as holding that the
Florida Senate plan does not violate Section 2
such that a
different remedy must be imposed." 815 F. Supp., at 1582
(emphasis added).
Any conflict in these two formulations is of no consequence
here. "This Court 'reviews judgments, not statements in opinions,'"
California v.
Rooney, 483 U. S. 307, 311 (1987)
(per curiam) (quoting
Black v.
Cutter
Laboratories, 351
U. S. 292, 297 (1956)), and the De Grandy plaintiffs and the
United States have appealed the failure of the District Court to
provide relief for alleged § 2 violations in SJR 2-G's senatorial
districts. The State is entitled to "urge any grounds which would
lend support to the judgment below,"
Dayton Bd. of Ed. v.
Brinkman, 433
U. S. 406, 419 (1977), including the argument it makes here
that the District Court was correct not to impose a remedy
different from SJR 2-G because the State's reapportionment plan did
not violate § 2.
1004
trict where a given minority makes up a voting majority,6 id.,
at 1572. The court further found that the nearly one million
Hispanics in the Dade County area could be combined into 4 Senate
and 11 House districts, each one relatively compact and with a
functional majority of Hispanic voters, id., at 1568-1569, whereas
SJR 2-G created fewer majorityHispanic districts; and that one more
Senate district with a black voting majority could have been drawn,
id., at 1576. Noting that Florida's minorities bore the social,
economic, and political effects of past discrimination, the court
concluded that SJR 2-G impermissibly diluted the voting strength of
Hispanics in its House districts and of both Hispanics and blacks
in its Senate districts.
Id., at 1574. The findings of vote
dilution in the senatorial districts had no practical effect,
however, because the court held that remedies for the blacks and
the Hispanics were mutually exclusive; it consequently deferred to
the state legislature's work as the "fairest" accommodation of all
the ethnic communities in south Florida.
Id., at 1580.
We stayed the judgment of the District Court, 505 U. S. 1232
(1992), and noted probable jurisdiction, 507 U. S. 907 (1993).
II
Before going to the issue at the heart of these cases, we need
to consider the District Court's refusal to give preclusive effect
to the decision of the State Supreme Court validating SJR 2-G. The
State argues that the claims of the De Grandy plaintiffs should
have been dismissed as res judicata because they had a full and
fair opportunity to litigate vote dilution before the State Supreme
Court, see
In re Constitutionality of Senate Joint Resolution
2G, Special Apportionment Session 1992, 597 So. 2d, at 285. The
premise, how-
6 The Court recognizes that the terms "black," "Hispanic," and
"white" are neither mutually exclusive nor collectively exhaustive.
We follow the practice of the District Court in using them as rough
indicators of south Florida's three largest racial and linguistic
minority groups.
1005
ever, is false, exaggerating the review afforded the De Grandy
plaintiffs in the state court and ignoring that court's own opinion
of its judgment's limited scope. Given the state constitutional
mandate to review apportionment resolutions within 30 days, see
Fla. Const., Art. III, § 16(c), the Supreme Court of Florida
accepted briefs and evidentiary submissions, but held no trial. In
that court's own words, it was "impossible ... to conduct the
complete factual analysis contemplated by the Voting Rights Act ...
within the time constraints of article III," and its holding was
accordingly "without prejudice to the right of any protestor to
question the validity of the plan by filing a petition in this
Court alleging how the plan violates the Voting Rights Act." 597
So. 2d, at 282, 285-286.
The State balks at recognizing this express reservation by
blaming the De Grandy plaintiffs for not returning to the State
Supreme Court with the § 2 claims. But the plaintiffs are free to
litigate in any court with jurisdiction, and their choice to forgo
further, optional state review hardly converted the state
constitutional judgment into a decision following "full and fair
opportunity to litigate,"
Allen v.
McCurry, 449 U. S. 90, 104 (1980),
as res judicata would require. For that matter, a federal court
gives no greater preclusive effect to a state-court judgment than
the state court itself would do,
Marrese v.
American
Academy of Orthopaedic Surgeons, 470 U. S. 373, 384-386
(1985), and the Supreme Court of Florida made it plain that its
preliminary look at the vote dilution claims would have no
preclusive effect under Florida law.
The State does not, of course, argue that res judicata bars the
claims of the United States, which was not a party in the Florida
Supreme Court action. It contends instead that the Federal
Government's § 2 challenge deserved dismissal under this Court's
Rooker/Feldman abstention doctrine, under which a party
losing in state court is barred from seeking what in substance
would be appellate review of the state
1006
judgment in a United States district court, based on the losing
party's claim that the state judgment itself violates the loser's
federal rights. See
District of Columbia Court of Appeals v.
Feldman, 460
U. S. 462, 482 (1983);
Rooker v.
Fidelity Trust
Co., 263 U. S.
413, 416 (1923). But the invocation of
Rooker/Feldman is
just as inapt here, for unlike Rooker or Feldman, the United States
was not a party in the state court. It was in no position to ask
this Court to review the state court's judgment and has not
directly attacked it in this proceeding. Cf.
Feldman, supra,
at 468, and n. 2, 472, and n. 8 (suing District of Columbia Court
of Appeals);
Rooker, supra, at 414 (seeking to have state
court's judgment declared null and void). The United States merely
seeks to litigate its § 2 case for the first time, and the
Government's claims, like those of the private plaintiffs, are
properly before the federal courts.
III
On the merits of the vote dilution claims covering the House
districts, the crux of the State's argument is the power of
Hispanics under SJR 2-G to elect candidates of their choice in a
number of districts that mirrors their share of the Dade County
area's voting-age population (i.
e., 9 out of 20 House
districts); this power, according to the State, bars any finding
that the plan dilutes Hispanic voting strength. The District Court
is said to have missed that conclusion by mistaking our precedents
to require the plan to maximize the number of Hispanic-controlled
districts.
The State's argument takes us back to ground covered last Term
in two cases challenging single-member districts. See
Voinovich v.
Quilter, 507 U. S. 146 (1993);
Growe v.
Emison, 507 U. S. 25 (1993). In
Growe, we held that a claim of vote dilution in a
single-member district requires proof meeting the same three
threshold conditions for a dilution challenge to a multimember
district: that a minority group be "'sufficiently large and
geographically compact to constitute a ma-
1007
jority in a single-member district'''; that it be "'politically
cohesive'''; and that" 'the white majority vot[e] sufficiently as a
bloc to enable it ... usually to defeat the minority's preferred
candidate.'"
Id., at 40 (quoting
Thornburg v.
Gingles, 478 U. S., at 50-51). Of course, as we reflected in
Voinovich and amplify later in this opinion, "the
Gingles factors cannot be applied mechanically and without
regard to the nature of the claim." 507 U. S., at 158.
In
Voinovich we explained how manipulation of district
lines can dilute the voting strength of politically cohesive
minority group members, whether by fragmenting the minority voters
among several districts where a bloc-voting majority can routinely
outvote them, or by packing them into one or a small number of
districts to minimize their influence in the districts next door.
See id., at 153-154. Section 2 prohibits either sort of
line-drawing where its result, " 'interact[ing] with social and
historical conditions,' impairs the ability of a protected class to
elect its candidate of choice on an equal basis with other voters."
Ibid. (quoting
Gingles, supra, at 47).7
Plaintiffs in
Growe and
Voinovich failed to show
vote dilution because the former did not prove political
cohesiveness of the minority group,
Growe, supra, at 41-42,
and the latter showed no significant white bloc voting,
Voinovich, supra, at 158. Here, on the contrary, the
District Court found, and the State does not challenge, the
presence of both these
Gingles preconditions. The dispute in
this litigation centers on two quite different questions: whether
Hispanics are sufficiently numerous and geographically compact to
be a majority in additional single-member districts, as required by
the first
Gingles factor; and whether, even with all three
Gingles
7 See also 478 U. S., at 50, n. 16 (discussing vote dilution
through gerrymandering district lines). For earlier precedents
recognizing that racial gerrymanders have played a central role in
discrimination against minority groups, see
Gomillion v.
Lightfoot, 364
U. S. 339 (1960);
Perkins v.
Matthews, 400 U. S. 379 (1971);
Connor v.
Finch, 431 U. S. 407 (1977).
1008
conditions satisfied, the circumstances in totality support a
finding of vote dilution when Hispanics can be expected to elect
their chosen representatives in substantial proportion to their
percentage of the area's population.
A
When applied to a claim that single-member districts dilute
minority votes, the first
Gingles condition requires the
possibility of creating more than the existing number of reasonably
compact districts with a sufficiently large minority population to
elect candidates of its choice. The District Court found the
condition satisfied by contrasting SJR 2-G with the De Grandy plan
for the Dade County area, which provided for 11 reasonably compact
districts, each with a voting-age population at least 64 percent
Hispanic. 815 F. Supp., at 1580. While the percentage figures are
not disputed, the parties disagree about the sufficiency of these
supermajorities to allow Hispanics to elect representatives of
their choice in all 11 districts. The District Court agreed with
plaintiffs that the supermajorities would compensate for the number
of voting-age Hispanics who did not vote, most commonly because
they were recent immigrants who had not become citizens of the
United States.
Id., at 15671568. The State protests that
fully half of the Hispanic voting-age residents of the region are
not citizens, with the result that several districts in the De
Grandy plan lack enough Hispanic voters to elect candidates of
their choice without cross-over votes from other ethnic groups. On
these assumptions, the State argues that the condition necessary to
justify tinkering with the State's plan disappears.
We can leave this dispute without a winner. The parties'
ostensibly factual disagreement raises an issue of law about which
characteristic of minority populations (e. g., age, citizenship)
ought to be the touchstone for proving a dilution claim and
devising a sound remedy. These cases may be resolved, however,
without reaching this issue or the related
1009
question whether the first
Gingles condition can be
satisfied by proof that a so-called influence district may be
created (that is, by proof that plaintiffs can devise an additional
district in which members of a minority group are a minority of the
voters, but a potentially influential one). As in the past, we will
assume without deciding that even if Hispanics are not an absolute
majority of the relevant population in the additional districts,
the first
Gingles condition has been satisfied in these
cases. See
Voinovich, supra, at 154; see also
Growe,
supra, at 41-42, n. 5 (declining to reach the issue);
Gingles, supra, at 46-47, n. 12 (same).
B
We do, however, part company from the District Court in
assessing the totality of circumstances. The District Court found
that the three
Gingles preconditions were satisfied, and
that Hispanics had suffered historically from official
discrimination, the social, economic, and political effects of
which they generally continued to feel, 815 F. Supp., at 15731574.
Without more, and on the apparent assumption that what could have
been done to create additional Hispanic supermajority districts
should have been done, the District Court found a violation of § 2.
But the assumption was erroneous, and more is required, as a review
of
Gingles will show.
1
Thornburg v.
Gingles, 478 U. S. 30 (1986),
prompted this Court's first reading of § 2 of the Voting Rights Act
of 1965 after its 1982 amendment.8 Section 2(a) of the amended Act
prohibits any "standard, practice, or procedure ... which results
in a denial or abridgement of the right of any citizen of the
United States to vote on account of race or color [or
8 Congress amended the statute to reach cases in which
discriminatory intent is not identified, adding new language
designed to codify
White v.
Regester, 412 U. S. 755, 766
(1973). S. Rep. No. 97-417, p. 2 (1982) (hereinafter Senate
Report).
1010
"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. The extent to which
members of a protected class have been elected to office in the
State or political subdivision is one circumstance which may be
considered: Provided, That nothing in this section
establishes a right to have members of a protected class elected in
numbers equal to their proportion in the population." 42 U. S. C. §
1973(b).
Gingles provided some structure to the statute's
"totality of circumstances" test in a case challenging multimember
legislative districts. See 478 U. S., at 46-51. The Court listed
the factors put forward as relevant in the Senate Report treating
the 1982 amendments,9 and held that
9 As summarized in
Gingles, 478 U. S., at 44-45: "The
Senate Report specifies factors which typically may be relevant to
a § 2 claim: the history of voting-related discrimination in the
State or political subdivision; the extent to which voting in the
elections of the State or political subdivision is racially
polarized; the extent to which the State or political subdivision
has used voting practices or procedures that tend to enhance the
opportunity for discrimination against the minority group, such as
unusually large election districts, majority vote requirements, and
prohibitions against bullet voting; the exclusion of members of the
minority group from candidate slating processes; the extent to
which minority group members bear the effects of past
discrimination in areas such as education, employment, and health,
which hinder their ability to participate effectively in the
political process; the use of overt or subtle racial appeals in
political campaigns; and the extent to which members of the
minority group have been elected to public office in the
jurisdiction. [Senate Report 28-29.] The Report
1011
"[w]hile many or all of [them] may be relevant to a claim of
vote dilution through submergence in multimember districts, unless
there is a conjunction of the following circumstances, the use of
multimember districts generally will not impede the ability of
minority voters to elect representatives of their choice. Stated
succinctly, a bloc voting majority must usually be able to
defeat candidates supported by a politically cohesive,
geographically insular minority group." Id., at 48-49
(footnote omitted) (emphasis in original).
The Court thus summarized the three now-familiar
Gingles
factors (compactness/numerousness, minority cohesion or bloc
voting, and majority bloc voting) as "necessary preconditions,"
id., at 50, for establishing vote dilution by use of a multimember
district.
But if
Gingles so clearly identified the three as
generally necessary to prove a § 2 claim, it just as clearly
declined to hold them sufficient in combination, either in the
sense that a court's examination of relevant circumstances was
complete once the three factors were found to exist, or in the
sense that the three in combination necessarily and in all
circumstances demonstrated dilution. This was true not only because
bloc voting was a matter of degree, with a variable legal
significance depending on other facts, id., at 55-58, but also
because the ultimate conclusions about equality or inequality of
opportunity were intended by Congress to be judgments resting on
comprehensive, not limited, canvassing of relevant facts. Lack of
electoral success is evidence of vote dilution, but courts must
also examine other evidence in the totality of circumstances,
including the extent of the opportunities minority voters enjoy to
participate in the po-
notes also that evidence demonstrating that elected officials
are unresponsive to the particularized needs of the members of the
minority group and that the policy underlying the State's or the
political subdivision's use of the contested practice or structure
is tenuous may have probative value.
Id., at 29."
1012
litical processes.
Id., at 46, 79-80;
id., at
98-99 (O'CONNOR, J., concurring in judgment). To be sure, some § 2
plaintiffs may have easy cases, but although lack of equal
electoral opportunity may be readily imagined and unsurprising when
demonstrated under circumstances that include the three essential
Gingles factors, that conclusion must still be addressed
explicitly, and without isolating any other arguably relevant facts
from the act of judgment.1o
2
If the three
Gingles factors may not be isolated as
sufficient, standing alone, to prove dilution in every multimember
district challenge,
a fortiori they must not be when the
challenge goes to a series of single-member districts, where
dilution may be more difficult to grasp. Plaintiffs challenging
single-member districts may claim, not total submergence, but
partial submergence; not the chance for some electoral
10 If challenges to multimember districts are likely to be the
easier plaintiffs' cases, it is worth remembering that even in
multimember district challenges, proof of the
Gingles
factors has not always portended liability under § 2. In
Baird v.
Consolidated City of Indianapolis, 976 F.2d
357 (1992), the Seventh Circuit confronted a scheme for
electing a City-County Council of 29 members. Voters chose 25 of
their representatives from single-member districts and 4 at large,
from a district representing the entire area. Black plaintiffs
brought a vote dilution claim challenging the lines for
single-member districts and the existence of the four-member
at-large district. After the Council had redrawn its single-member
districts to rectify dilution there, the District Court held, and
the Seventh Circuit affirmed, that the four-member district did not
dilute black voting strength because proof of the three
Gingles factors was not enough "if other considerations show
that the minority has an undiminished right to participate in the
political process." 976 F. 2d, at 359. The "other considerations"
in
Baird included the fact that the new single-member
districts were so drawn that blacks formed a voting majority in
seven of them (28 percent of the single-member districts and 24
percent of the entire council) while blacks constituted 21 percent
of the local population; and that while the four at-large seats
tended to go to Republicans, one of the Republicans elected in 1991
was black.
Id., at 358, 361.
1013
success in place of none, but the chance for more success in
place of some. When the question thus comes down to the
reasonableness of drawing a series of district lines in one
combination of places rather than another, judgments about
inequality may become closer calls. As facts beyond the ambit of
the three
Gingles factors loom correspondingly larger,
factfinders cannot rest uncritically on assumptions about the force
of the
Gingles factors in pointing to dilution.
The cases now before us, of course, fall on this more complex
side of the divide, requiring a court to determine whether
provision for somewhat fewer majority-minority districts than the
number sought by the plaintiffs was dilution of the minority votes.
The District Court was accordingly required to assess the probative
significance of the
Gingles factors critically after
considering the further circumstances with arguable bearing on the
issue of equal political opportunity. We think that in finding
dilution here the District Court misjudged the relative importance
of the
Gingles factors and of historical discrimination,
measured against evidence tending to show that in spite of these
facts, SJR 2-G would provide minority voters with an equal measure
of political and electoral opportunity.
The District Court did not, to be sure, commit the error of
treating the three
Gingles conditions as exhausting the
enquiry required by § 2. Consistently with
Gingles, the
court received evidence of racial relations outside the immediate
confines of voting behavior and found a history of discrimination
against Hispanic voters continuing in society generally to the
present day. But the District Court was not critical enough in
asking whether a history of persistent discrimination reflected in
the larger society and its bloc-voting behavior portended any
dilutive effect from a newly proposed districting scheme, whose
pertinent features were majorityminority districts in substantial
proportion to the minority's share of voting-age population. The
court failed to ask whether the totality of facts, including those
pointing to
1014
proportionality,l1 showed that the new scheme would deny
minority voters equal political opportunity.
Treating equal political opportunity as the focus of the
enquiry, we do not see how these district lines, apparently
providing political effectiveness in proportion to voting-age
numbers, deny equal political opportunity. The record establishes
that Hispanics constitute 50 percent of the votingage population in
Dade County and under SJR 2-G would make up supermajorities in 9 of
the 18 House districts located primarily within the county.
Likewise, if one considers the 20 House districts located at least
in part within Dade County, the record indicates that Hispanics
would be an effective voting majority in 45 percent of them (i.
e., nine), and would constitute 47 percent of the voting-age
population in the area. 815 F. Supp., at 1580; App. to Juris.
Statement 180a-183a. In other words, under SJR 2-G Hispanics in the
Dade County area would enjoy substantial proportionality. On this
evidence, we think the State's scheme would thwart the historical
tendency to exclude Hispanics, not encourage or perpetuate it. Thus
in spite of that history and its legacy, including the racial
cleavages that characterize Dade County politics today, we see no
grounds for holding in these cases
11 "Proportionality" as the term is used here links the number
of majority-minority voting districts to minority members' share of
the relevant population. The concept is distinct from the subject
of the proportional representation clause of § 2, which provides
that "nothing in this section establishes a right to have members
of a protected class elected in numbers equal to their proportion
in the population." 42 U. S. C. § 1973(b). This proviso speaks to
the success of minority candidates, as distinct from the political
or electoral power of minority voters. Cf. Senate Report 29, n. 115
(minority candidates' success at the polls is not conclusive proof
of minority voters' access to the political process). And the
proviso also confirms what is otherwise clear from the text of the
statute, namely, that the ultimate right of § 2 is equality of
opportunity, not a guarantee of electoral success for
minority-preferred candidates of whatever race.
1015
that SJR 2-G's district lines diluted the votes cast by Hispanic
voters.
The De Grandy plaintiffs urge us to put more weight on the
District Court's findings of packing and fragmentation, allegedly
accomplished by the way the State drew certain specific lines:
"[T]he line of District 116 separates heavily Hispanic
neighborhoods in District 112 from the rest of the heavily Hispanic
Kendall Lakes area and the Kendall area," so that the line divides
"neighbors making up the ... same housing development in Kendall
Lakes," and District 114 "packs" Hispanic voters, while Districts
102 and 109 "fragmen[t]" them. 815 F. Supp., at 1569 (internal
quotation marks omitted). We would agree that where a State has
split (or lumped) minority neighborhoods that would have been
grouped into a single district (or spread among several) if the
State had employed the same line-drawing standards in minority
neighborhoods as it used elsewhere in the jurisdiction, the
inconsistent treatment might be significant evidence of a § 2
violation, even in the face of proportionality. The District Court,
however, made no such finding. Indeed, the propositions the court
recites on this point are not even phrased as factual findings, but
merely as recitations of testimony offered by plaintiffs' expert
witness. While the District Court may well have credited the
testimony, the court was apparently wary of adopting the witness's
conclusions as findings. But even if one imputed a greater
significance to the accounts of testimony, they would boil down to
findings that several of SJR 2-G's district lines separate portions
of Hispanic neighborhoods, while another district line draws
several Hispanic neighborhoods into a single district. This,
however, would be to say only that lines could have been drawn
elsewhere, nothing more. But some dividing by district lines and
combining within them is virtually inevitable and befalls any
population group of substantial size. Attaching the labels
"packing" and "fragmenting" to these phenom-
1016
ena, without more, does not make the result vote dilution when
the minority group enjoys substantial proportionality.
3
It may be that the significance of the facts under § 2 was
obscured by the rule of thumb apparently adopted by the District
Court, that anything short of the maximum number of
majority-minority districts consistent with the
Gingles
conditions would violate § 2, at least where societal
discrimination against the minority had occurred and continued to
occur. But reading the first
Gingles condition in effect to
define dilution as a failure to maximize in the face of bloc voting
(plus some other incidents of societal bias to be expected where
bloc voting occurs) causes its own dangers, and they are not to be
courted.
Assume a hypothetical jurisdiction of 1,000 voters divided into
10 districts of 100 each, where members of a minority group make up
40 percent of the voting population and voting is totally polarized
along racial lines. With the right geographic dispersion to satisfy
the compactness requirement, and with careful manipulation of
district lines, the minority voters might be placed in control of
as many as 7 of the 10 districts. Each such district could be drawn
with at least 51 members of the minority group, and whether the
remaining minority voters were added to the groupings of 51 for
safety or scattered in the other three districts, minority voters
would be able to elect candidates of their choice in all seven
districts.12 The point of the hypothetical is not, of course, that
any given district is likely to be open to such extreme
manipulation, or that bare majorities are likely to vote in full
force and strictly along racial lines, but that reading § 2 to
define dilution as any failure to maximize tends to
12 Minority voters might instead be denied control over a single
seat, of course. Each district would need to include merely 51
members of the majority group; minority voters fragmented among the
10 districts could be denied power to affect the result in any
district.
1017
obscure the very object of the statute and to run counter to its
textually stated purpose. One may suspect vote dilution from
political famine, but one is not entitled to suspect (much less
infer) dilution from mere failure to guarantee a political feast.
However prejudiced a society might be, it would be absurd to
suggest that the failure of a districting scheme to provide a
minority group with effective political power 75 percent above its
numerical strength 13 indicates a denial of equal participation in
the political process. Failure to maximize cannot be the measure of
§ 2.
4
While, for obvious reasons, the State agrees that a failure to
leverage minority political strength to the maximum possible point
of power is not definitive of dilution in bloc-voting societies, it
seeks to impart a measure of determinacy by applying a definitive
rule of its own: that as a matter of law no dilution occurs
whenever the percentage of singlemember districts in which minority
voters form an effective majority mirrors the minority voters'
percentage of the relevant population.14 Proportionality so
defined, see n. 11,
13 When 40 percent of the population determines electoral
outcomes in 7 out of 10 districts, the minority group can be said
to enjoy effective political power 75 percent above its numerical
strength.
14 See Brieffor Appellees in Nos. 92-593, 92-767, p. 20 ("If the
statutory prohibition against providing minorities 'less
opportunity than other members of the electorate ... to elect
representatives of their choice' is given its natural meaning, it
cannot be violated by a single-member district plan that assures
minority groups voting control over numbers of districts that are
numerically proportional to their population in the area where
presence of the three
Gingles preconditions has been
established").
The parties dispute whether the relevant figure is the minority
group's share of the population, or of some subset of the
population, such as those who are eligible to vote, in that they
are United States citizens, over 18 years of age, and not
registered at another address (as students and members of the
military often are). Because we do not elevate this proportion to
the status of a magic parameter, and because it is not dispositive
here, we do not resolve that dispute. See supra, at 1008-1009.
1018
supra, would thus be a safe harbor for any districting
scheme.
The safety would be in derogation of the statutory text and its
considered purpose, however, and of the ideal that the Voting
Rights Act of 1965 attempts to foster. An inflexible rule would run
counter to the textual command of § 2, that the presence or absence
of a violation be assessed "based on the totality of
circumstances." 42 U. S. C. § 1973(b). The need for such "totality"
review springs from the demonstrated ingenuity of state and local
governments in hobbling minority voting power,
McCain v.
Lybrand, 465 U. S. 236, 243-246 (1984), a point recognized
by Congress when it amended the statute in 1982: "[S]ince the
adoption of the Voting Rights Act, [some] jurisdictions have
substantially moved from direct, over[t] impediments to the right
to vote to more sophisticated devices that dilute minority voting
strength," Senate Report 10 (discussing § 5). In modifying § 2,
Congress thus endorsed our view in
White v.
Regester,
412 U. S. 755
(1973), that "whether the political processes are 'equally open'
depends upon a searching practical evaluation of the 'past and
present reality,'" Senate Report 30 (quoting 412 U. S., at 766,
770). In a substantial number of voting jurisdictions, that past
reality has included such reprehensible practices as ballot box
stuffing, outright violence, discretionary registration, property
requirements, the poll tax, and the white primary; and other
practices censurable when the object of their use is
discriminatory, such as at-large elections, runoff requirements,
anti-single-shot devices, gerrymandering, the impeachment of
officeholders, the annexation or deannexation of territory, and the
creation or elimination of elective offices.15 Some of those
expedients
15 See generally J. M. Kousser, The Shaping of Southern
Politics: Suffrage Restriction and the Establishment of the
One-Party South, 18801910 (1974); Kousser, The Undermining of the
First Reconstruction, Lessons for the Second, in Minority Vote
Dilution 27 (C. Davidson ed. 1984); Hearings on the Extension of
the Voting Rights Act before the Subcom-
1019
could occur even in a jurisdiction with numerically demonstrable
proportionality; the harbor safe for States would thus not be safe
for voters.16 It is, in short, for good reason that we have been,
and remain, chary of entertaining a simplification of the sort the
State now urges upon us. Cf.
Gingles, 478 U. S., at 77
("[P]ersistent proportional representation ... [may] not accurately
reflect the minority group's ability to elect its preferred
representatives").
Even if the State's safe harbor were open only in cases of
alleged dilution by the manipulation of district lines, however, it
would rest on an unexplored premise of highly suspect validity:
that in any given voting jurisdiction (or portion of that
jurisdiction under consideration), the rights of some minority
voters under § 2 may be traded off against the rights of other
members of the same minority class. Under the State's view, the
most blatant racial gerrymandering in half of a county's
single-member districts would be irrelevant under § 2 if offset by
political gerrymandering in the other half, so long as
proportionality was the bottom line. But see
Baird v.
Consolidated City of Indianapolis, 976
F.2d 357, 359 (CA7 1992) ("A balanced bottom line does not
foreclose proof of discrimination along the way");
Richmond
v.
United States, 422 U. S. 358, 378-379
(1975) (territorial annexation aimed at diluting black votes
forbidden by § 5, regardless of its actual effect).
Finally, we reject the safe harbor rule because of a tendency
the State would itself certainly condemn, a tendency to promote and
perpetuate efforts to devise majority-minority districts even in
circumstances where they may not be neces-
mittee on Civil and Constitutional Rights of the House Committee
on the Judiciary, 97th Cong., 1st Sess., 1999-2022, 2115-2120
(1981).
16 The State might say, of course, that ostensibly
"proportional" districting schemes that were nonetheless subject to
diluting practices would not "assur[e]" minority voters their
apparent voting power. But this answer would take us right back to
a searching review of the factual totality, leaving the State's
defensive rule without any particular utility.
1020
sary to achieve equal political and electoral opportunity.
Because in its simplest form the State's rule would shield from § 2
challenge a districting scheme in which the number of
majority-minority districts reflected the minority's share of the
relevant population, the conclusiveness of the rule might be an
irresistible inducement to create such districts. I t bears
recalling, however, that for all the virtues of majority-minority
districts as remedial devices, they rely on a quintessentially
race-conscious calculus aptly described as the "politics of second
best," see B. Grofman, L. Handley, & R. Niemi, Minority
Representation and the Quest for Voting Equality 136 (1992). If the
lesson of
Gingles is that society's racial and ethnic
cleavages sometimes necessitate majorityminority districts to
ensure equal political and electoral opportunity, that should not
obscure the fact that there are communities in which minority
citizens are able to form coalitions with voters from other racial
and ethnic groups, having no need to be a majority within a single
district in order to elect candidates of their choice. Those
candidates may not represent perfection to every minority voter,
but minority voters are not immune from the obligation to pull,
haul, and trade to find common political ground, the virtue of
which is not to be slighted in applying a statute meant to hasten
the waning of racism in American politics.
It is enough to say that, while proportionality in the sense
used here is obviously an indication that minority voters have an
equal opportunity, in spite of racial polarization, "to participate
in the political process and to elect representatives of their
choice," 42 U. S. C. § 1973(b), the degree of probative value
assigned to proportionality may vary with other facts. 17 No single
statistic provides courts with a shortcut
17 So, too, the degree of probative value assigned to
disproportionality, in a case where it is shown, will vary not only
with the degree of disproportionality but with other factors as
well. "[T]here is no indication that Congress intended to mandate a
single, universally applicable standard for measuring undiluted
minority voting strength, regardless of local con-
1021
to determine whether a set of single-member districts unlawfully
dilutes minority voting strength.
5
While the United States concedes the relevance of
proportionality to a § 2 claim, it would confine proportionality to
an affirmative defense, and one to be made only on a statewide
basis in cases that challenge districts for electing a body with
statewide jurisdiction. In this litigation, the United States would
have us treat any claim that evidence of proportionality supports
the State's plan as having been waived because the State made no
argument in the District Court that the proportion of districts
statewide in which Hispanics constitute an effective voting
majority mirrors the proportion of statewide Hispanic
population.18
The argument has two flaws. There is, first, no textual reason
to segregate some circumstances from the statutory totality, to be
rendered insignificant unless the defendant pleads them by way of
affirmative defense. Second, and just as importantly, the argument
would recast these cases as they come to us, in order to bar
consideration of proportionality except on statewide scope, whereas
up until now the
ditions and regardless of the extent of past discrimination
against minority voters in a particular State or political
subdivision."
Gingles, 478 U. S., at 94-95 (O'CONNOR, J.,
concurring in judgment).
18The argument for proportionality statewide favors the State if
it is based on the proportion of Hispanic citizens of voting age
statewide. According to census data not available at the time of
trial and thus not in the record, Hispanics constitute 7.15 percent
of the citizen voting-age population of Florida, which corresponds
to eight or nine Hispanic-majority House districts (120 X 7.15% =
8.58).
If instead one calculates the proportion of statewide
Hispanic-majority House districts on the basis of total population
or voting-age population, the result favors plaintiffs. Hispanics
constitute 12.2 percent of the State's total population and 11.7
percent of the State's voting-age population, corresponding to 14
or 15 seats (120 X 12.2% = 14.64; 120 X 11.7% = 14.04). We need not
choose among these calculations to decide these cases.
1022
dilution claims have been litigated on a smaller geographical
scale. It is, indeed, the plaintiffs themselves, including the
United States, who passed up the opportunity to frame their
dilution claim in statewide terms. While the United States points
to language in its complaint alleging that the redistricting plans
dilute the votes of "Hispanic citizens and black citizens in the
State of Florida," App. 77, the complaint identifies "several areas
of the State" where such violations of § 2 are said to occur, and
then speaks in terms of Hispanics in the Dade County area (and
blacks in the area of Escambia County), id., at 75-76. Nowhere do
the allegations indicate that claims of dilution "in the State of
Florida" are not to be considered in terms of the areas
specifically mentioned. The complaint alleges no facts at all about
the contours, demographics, or voting patterns of any districts
outside the Dade County or Escambia County areas, and neither the
evidence at trial nor the opinion of the District Court addressed
white bloc voting and political cohesion of minorities statewide.
The De Grandy plaintiffs even voluntarily dismissed their claims of
Hispanic vote dilution outside the Dade County area. See 815 F.
Supp., at 1559, n. 13. Thus we have no occasion to decide which
frame of reference should have been used if the parties had not
apparently agreed in the District Court on the appropriate
geographical scope for analyzing the alleged § 2 violation and
devising its remedy.
6
In sum, the District Court's finding of dilution did not address
the statutory standard of unequal political and electoral
opportunity, and reflected instead a misconstruction of § 2 that
equated dilution with failure to maximize the number of reasonably
compact majority-minority districts. Because the ultimate finding
of dilution in districting for the Florida House was based on a
misreading of the governing law, we hold it to be clearly
erroneous. See
Gingles, 478 U. S., at 79.
1023
IV
Having found insufficient evidence of vote dilution in the
drawing of House districts in the Dade County area, we look now to
the comparable districts for the state Senate. As in the case of
House districts, we understand the District Court to have
misapprehended the legal test for vote dilution when it found a
violation of § 2 in the location of the Senate district lines.
Because the court did not modify the State's plan, however, we hold
the ultimate result correct in this instance.
SJR 2-G creates 40 single-member Senate districts, 5 of them
wholly within Dade County. Of these five, three have Hispanic
supermajorities of at least 64 percent, and one has a clear
majority of black voters. Two more Senate districts crossing county
lines include substantial numbers of Dade County voters, and in one
of these, black voters, although not close to a majority, are able
to elect representatives of their choice with the aid of cross-over
votes. 815 F. Supp., at 1574, 1579.
Within this seven-district Dade County area, both minority
groups enjoy rough proportionality. The voting-age population in
the seven-district area is 44.8 percent Hispanic and 15.8 percent
black. Record, U. S. Exh. 7. Hispanics predominate in 42.9 percent
of the districts (three out of seven), as do blacks in 14.3 percent
of them (one out of seven). While these numbers indicate something
just short of perfect proportionality (42.9 percent against 44.8;
14.3 percent against 15.8), the opposite is true of the five
districts located wholly within Dade County.19
19 In the five districts wholly within Dade County, where
Hispanics are concentrated, the voting-age population is 53.9
percent Hispanic and 13.5 percent black. Sixty percent of the
districts are Hispanic majority (three out of five), and 20 percent
are black majority (one out of five), so that each minority group
protected by § 2 enjoys an effective voting majority in marginally
more districts than proportionality would indicate (60 percent over
53.9; 20 percent over 13.5).
1024
The District Court concentrated not on these facts but on
whether additional districts could be drawn in which either
Hispanics or blacks would constitute an effective majority. The
court found that indeed a fourth senatorial district with a
Hispanic supermajority could be drawn, or that an additional
district could be created with a black majority, in each case
employing reasonably compact districts. Having previously
established that each minority group was politically cohesive, that
each labored under a legacy of official discrimination, and that
whites voted as a bloc, the District Court believed it faced "two
independent, viable Section 2 claims." 815 F. Supp., at 1577.
Because the court did not, however, think it was possible to create
both another Hispanic district and another black district on the
same map, it concluded that no remedy for either violation was
practical and, deferring to the State's plan as a compromise
policy, imposed SJR 2-G's senatorial districts.
Id., at
1580.
We affirm the District Court's decision to leave the State's
plan for Florida State Senate districts undisturbed. As in the case
of the House districts, the totality of circumstances appears not
to support a finding of vote dilution here, where both minority
groups constitute effective voting majorities in a number of state
Senate districts substantially proportional to their share in the
population, and where plaintiffs have not produced evidence
otherwise indicating that under SJR 2-G voters in either minority
group 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).
V
There being no violation of the Voting Rights Act shown, we have
no occasion to review the District Court's decisions going to
remedy. The judgment of the District Court is accordingly affirmed
in part and reversed in part.
It is so ordered.
1025
JUSTICE O'CONNOR, concurring.
The critical issue in these cases is whether § 2 of the Voting
Rights Act of 1965, 42 U. s. C. § 1973, requires courts to
"maximize" the number of districts in which minority voters may
elect their candidates of choice. The District Court, applying the
maximization principle, operated "on the apparent assumption that
what could have been done to create additional Hispanic
supermajority districts should have been done."
Ante, at
1009. The Court today makes clear that the District Court was in
error, and that the Voting Rights Act does not require
maximization.
Ante, at 1017 ("Failure to maximize cannot be
the measure of § 2");
ante, at 1022 (the District Court
improperly "equated dilution with failure to maximize the number of
reasonably compact majorityminority districts").
But today's opinion does more than reject the maximization
principle. The opinion's central teaching is that
proportionality-defined as the relationship between the number of
majority-minority voting districts and the minority group's share
of the relevant population-is
always relevant evidence in
determining vote dilution, but is
never itself dispositive.
Lack of proportionality is probative evidence of vote dilution.
"[A]ny theory of vote dilution must necessarily rely to some extent
on a measure of minority voting strength that makes some reference
to the proportion between the minority group and the electorate at
large."
Thornburg v.
Gingles, 478 U. S. 30, 84 (1986)
(O'CONNOR, J., concurring in judgment). Thus, in evaluating the
Gingles preconditions and the totality of the circumstances
a court must always consider the relationship between the number of
majorityminority voting districts and the minority group's share of
the population. Cf. id., at 99 ("[T]he relative lack of minority
electoral success under a challenged plan, when compared with the
success that would be predicted under the measure of undiluted
minority voting strength the court is employing, can constitute
powerful evidence of vote dilution").
1026
Opinion of KENNEDY, J.
The Court also makes clear that proportionality is never
dispositive. Lack of proportionality can never by itself prove
dilution, for courts must always carefully and searchingly review
the totality of the circumstances, including the extent to which
minority groups have access to the political process.
Ante,
at 1011-1012. Nor does the presence of proportionality prove the
absence of dilution. Proportionality is not a safe harbor for
States; it does not immunize their election schemes from § 2
challenge.
Ante, at 1017-1021.
In sum, the Court's carefully crafted approach treats
proportionality as relevant evidence, but does not make it the only
relevant evidence. In doing this the Court makes clear that § 2
does not require maximization of minority voting strength, yet
remains faithful to § 2's command that minority voters be given
equal opportunity to participate in the political process and to
elect representatives of their choice. With this understanding, I
join the opinion of the Court.
JUSTICE KENNEDY, concurring in part and concurring in the
judgment.
At trial, the plaintiffs alleged that the State violated § 2 of
the Voting Rights Act of 1965, 42 U. S. C. § 1973, by not creating
as many majority-minority districts as was feasible. The District
Court agreed and found a violation of § 2, thus equating
impermissible vote dilution with the failure to maximize the number
of majority-minority districts. I agree with the Court that the
District Court's maximization theory was an erroneous application
of § 2.
A more difficult question is whether proportionality,
ascertained by comparing the number of majority-minority districts
to the minority group's proportion of the relevant population, is
relevant in deciding whether there has been vote dilution under § 2
in a challenge to election district lines. The statutory text does
not yield a clear answer.
The statute, in relevant part, provides: "The extent to which
members of a protected class have been elected to
1027
office in the State or political subdivision is one circumstance
which may be considered [in determining whether there has been vote
dilution]:
Provided, That nothing in this section
establishes a right to have members of a protected class elected in
numbers equal to their proportion in the population." § 1973(b)
(emphasis in original). By its terms, this language addresses the
number of minorities elected to office, not the number of districts
in which minorities constitute a voting majority. These two things
are not synonymous, and it would be an affront to our
constitutional traditions to treat them as such. The assumption
that majority-minority districts elect only minority
representatives, or that majority-white districts elect only white
representatives, is false as an empirical matter. See
Voinovich v.
Quilter, 507 U. S. 146, 151-152,
158 (1993); A. Thernstrom, Whose Votes Count? Affirmative Action
and Minority Voting Rights 210-216 (1987); C. Swain, Black Faces,
Black Interests, ch. 6 (1993). And on a more fundamental level, the
assumption reflects "the demeaning notion that members of the
defined racial groups ascribe to certain 'minority views' that must
be different from those of other citizens."
Metro Broadcasting,
Inc. v.
FCC, 497 U. S. 547, 636 (1990)
(KENNEDY, J., dissenting); see also
United Jewish Organizations
of Wi lliams burgh, Inc. v.
Carey, 430 U. S. 144, 186-187
(1977) (Burger, C. J., dissenting).
Although the statutory text does not speak in precise terms to
the issue, our precedents make clear that proportionality, or the
lack thereof, has some relevance to a vote dilution claim under §
2. In a unanimous decision last Term, we recognized that
single-member districts were subject to vote dilution challenges
under § 2, and further that "[d]ividing [a politically cohesive]
minority group among various [single-member] districts so that it
is a majority in none" is one "device for diluting minority voting
power" within the meaning of the statute.
Voinovich v.
Quilter, 507 U. S., at 152-153. If "the fragmentation of a
minority group among
1028
Opinion of KENNEDY, J.
various districts" is an acknowledged dilutive device, id., at
153, it follows that analysis under § 2 takes some account of
whether the number of majority-minority districts falls short of a
statistical norm. Cf.
Washington v.
Davis, 426 U. S. 229, 242 (1976)
(discriminatory impact relevant to allegation of intentional
discrimination). Both the majority and concurring opinions in
Thornburg v.
Gingles, 478 U. S. 30 (1986),
reflect the same understanding of the statute. See id., at 50, n.
16 (In a "gerrymander case, plaintiffs might allege that the
minority group that is sufficiently large and compact to constitute
a single-member district has been split between two or more
multimember or single-member districts, with the effect of diluting
the potential strength of the minority vote"); id., at 84
(O'CONNOR, J., concurring in judgment) ("[A]ny theory of vote
dilution must necessarily rely to some extent on a measure of
minority voting strength that makes some reference to the
proportion between the minority group and the electorate at
large"). Indeed, to say that proportionality is irrelevant under
the § 2 results test is the equivalent of saying (contrary to our
precedents) that no § 2 vote dilution challenges can be brought to
the drawing of single-member districts.
To be sure, placing undue emphasis upon proportionality risks
defeating the goals underlying the Voting Rights Act of 1965, as
amended. See
Gingles, supra, at 99 (O'CONNOR, J., concurring
in judgment). As today's decision provides, a lack of
proportionality is "never dispositive" proof of vote dilution, just
as the presence of proportionality "is not a safe harbor for States
[and] does not immunize their election schemes from § 2 challenge."
Ante, at 1026 (O'CONNOR, J., concurring); see also
ante, at 1020-1021, n. 17. But given our past construction
of the statute, I would hesitate to conclude that proportionality
has no relevance to the § 2 inquiry.
It is important to emphasize that the precedents to which I
refer, like today's decision, only construe the statute, and
1029
do not purport to assess its constitutional implications. See
Chisom v.
Roemer, 501 U. S. 380, 418 (1991)
(KENNEDY, J., dissenting). Operating under the constraints of a
statutory regime in which proportionality has some relevance,
States might consider it lawful and proper to act with the explicit
goal of creating a proportional number of majority-minority
districts in an effort to avoid § 2 litigation. Likewise, a court
finding a § 2 violation might believe that the only appropriate
remedy is to order the offending State to engage in race-based
redistricting and create a minimum number of districts in which
minorities constitute a voting majority. The Department of Justice
might require (in effect) the same as a condition of granting
preclearance, under § 5 of the Act, 42 U. S. C. § 1973c, to a
State's proposed legislative redistricting. Those governmental
actions, in my view, tend to entrench the very practices and
stereotypes the Equal Protection Clause is set against. See
Metro Broadcasting, Inc. v.
FCC, supra, at 636-637
(KENNEDY, J., dissenting). As a general matter, the sorting of
persons with an intent to divide by reason of race raises the most
serious constitutional questions.
"The moral imperative of racial neutrality is the driving force
of the Equal Protection Clause."
Richmond v. J.
A. Croson
Co., 488 U. S.
469, 518 (1989) (KENNEDY, J., concurring in part and concurring
in judgment). Racial classifications "are by their very nature
odious to a free people whose institutions are founded upon the
doctrine of equality," and are presumed invalid.
Shaw v.
Reno, 509 U.
S. 630, 643 (1993) (internal quotation marks omitted); see also
A. Bickel, The Morality of Consent 133 (1975). This is true
regardless of "the race of those burdened or benefited by a
particular classification."
Croson, supra, at 494 (opinion
of O'CONNOR, J.); 488 U. S., at 520 (SCALIA, J., concurring in
judgment). Furthermore, "[i]t is axiomatic that racial
classifications do not become legitimate on the assumption that all
persons
1030
Opinion of KENNEDY, J.
suffer them in equal degree."
Powers v.
Ohio,
499 U. S. 400,
410 (1991); see also
Plessy v.
Ferguson, 163 U. S. 537, 560 (1896)
(Harlan, J., dissenting).
These principles apply to the drawing of electoral and political
boundaries. As Justice Douglas, joined by Justice Goldberg, stated
30 years ago:
"When racial or religious lines are drawn by the State, the
multiracial, multireligious communities that our Constitution seeks
to weld together as one become separatist; antagonisms that relate
to race or to religion rather than to political issues are
generated .... Since that system is at war with the democratic
ideal, it should find no footing here." Wright v.
Rockefeller, 376 U. S. 52, 67 (1964)
(dissenting opinion).
In like fashion, Chief Justice Burger observed that the "use of
a mathematical formula" to assure a minimum number of
majority-minority districts "tends to sustain the existence of
ghettos by promoting the notion that political clout is to be
gained or maintained by marshaling particular racial, ethnic, or
religious groups in enclaves."
United Jewish Organizations
v.
Carey, 430 U. S., at 186 (dissenting opinion). And last
Term in
Shaw, we voiced our agreement with these sentiments,
observing that "[r]acial gerrymandering, even for remedial
purposes, may balkanize us into competing racial factions; it
threatens to carry us further from the goal of a political system
in which race no longer mattersa goal that the Fourteenth and
Fifteenth Amendments embody, and to which the Nation continues to
aspire." 509 U. S., at 657.
Our decision in
Shaw alluded to, but did not resolve, the
broad question whether "the intentional creation of
majority-minority districts, without more, always gives rise to an
equal protection claim."
Id., at 649 (internal quotation
marks omitted); see also id., at 657. While recognizing that
redistricting differs from many other kinds of state decision-
1031
making "in that the legislature always is
aware of race
when it draws district lines, just as it is aware of age, economic
status, religion and political persuasion," we stated that "the
difficulty of determining from the face of a single-member
districting plan that it purposefully distinguishes between voters
on the basis of race" 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."
Id., at 646 (emphasis in original). We went on to
hold that "a reapportionment scheme so irrational on its face that
it can be understood only as an effort to segregate voters into
separate voting districts because of their race" must be subject to
strict scrutiny under the Equal Protection Clause.
Id., at
658; see also
id., at 649, 653. Given our decision in
Shaw, there is good reason for state and federal officials
with responsibilities related to redistricting, as well as
reviewing courts, to recognize that explicit race-based districting
embarks us on a most dangerous course. It is necessary to bear in
mind that redistricting must comply with the overriding demands of
the Equal Protection Clause. But no constitutional claims were
brought here, and the Court's opinion does not address any
constitutional issues. Cf.
Voinovich v.
Quilter, 507
U. S., at 157.
With these observations, I concur in all but Parts III-B-2,
III-B-4, and IV of the Court's opinion and in its judgment.
JUSTICE THOMAS, with whom JUSTICE SCALIA joins, dissenting.
For the reasons I explain in
Holder v.
Hall, ante,
p. 891, I would vacate the judgment of the District Court and
remand with instructions to dismiss the actions consolidated in
these cases for failure to state a claim under § 2 of the Voting
Rights Act of 1965. 42 U. S. C. § 1973. Each of the actions
consolidated in these cases asserted that Florida's apportionment
plan diluted the vote of a minority group. In ac-
1032
cordance with the views I express in
Holder, I would hold
that an apportionment plan is not a "standard, practice, or
procedure" that may be challenged under § 2. I therefore
respectfully dissent.
1033
The next page is purposely numbered 1201. The numbers between
1032 and 1201 were intentionally omitted, in order to make it
possible to publish the orders with permanent page numbers, thus
making the official citations available upon publication of the
preliminary prints of the United States Reports.
1034
JUNE 13, 1994 Certiorari Granted-Vacated and Remanded
No. 93-428. LIVINGSTONE V. DONAHEY ET AL. C. A. 6th Cir.
Certiorari granted, judgment vacated, and case remanded for
further consideration in light of
Key Tronic Corp. v.
United States, 511 U. S. 809 (1994).
Reported below:
987 F.2d
1250.
Miscellaneous Orders
No. A-991. GRIGSBY V. O'DONNELL, JUDGE, 301sT DISTRICT COURT,
DALLAS COUNTY, TEXAS. Dist. Ct., 301st Jud. Dist., Dallas County,
Tex. Application for stay, addressed to JUSTICE GINSBURG and
referred to the Court, denied.
No. D-1063. IN RE DISBARMENT OF WEISS. Disbarment entered. [For
earlier order herein, see 502 U. S. 1011.]
No. D-1375. IN RE DISBARMENT OF McNAMARA. Disbarment entered.
[For earlier order herein, see 511 U. S. 1002.]
No. D-1380. IN RE DISBARMENT OF COOPER. Disbarment entered. [For
earlier order herein, see 511 U. S. 1016.]
No. D-1385. IN RE DISBARMENT OF MCCLENNY. Disbarment entered.
[For earlier order herein, see 511 U. S. 1028.]
No. D-1405. IN RE DISBARMENT OF WARNER. It is ordered that Marq
J. Warner, of Englewood, Colo., be suspended from the practice of
law in this Court and that a rule issue, returnable within 40 days,
requiring him to show cause why he should not be disbarred from the
practice of law in this Court.
No. D-1406. IN RE DISBARMENT OF BRENNAN. It is ordered that John
Daniel Brennan, of Evanston, Ill., be suspended from the practice
of law in this Court and that a rule issue, returnable within 40
days, requiring him to show cause why he should not be disbarred
from the practice of law in this Court.
No. D-1407. IN RE DISBARMENT OF ANAST. It is ordered that Nick
J. Anast, of Schererville, Ind., be suspended from the 1201
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