OCTOBER TERM, 1994
Syllabus
MILLER ET AL.
v. JOHNSON ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF GEORGIA
No. 94-631. Argued April 19, 1995-Decided June 29, 1995*
In
Shaw v.
Reno, 509 U. S. 630,
this Court articulated the equal protection principles that govern
a State's drawing of congressional districts, noting that laws that
explicitly distinguish between individuals on racial grounds fall
within the core of the Equal Protection Clause's prohibition
against race-based decisionmaking, that this prohibition extends to
laws neutral on their face but unexplainable on grounds other than
race, and that redistricting legislation that is so bizarre on its
face that it is unexplainable on grounds other than race demands
the same strict scrutiny given to other state laws that classify
citizens by race. Georgia's most recent congressional districting
plan contains three majority-black districts and was adopted after
the Justice Department refused to preclear, under § 5 of the Voting
Rights Act (Act), two earlier plans that each contained only two
majority-black districts. Appellees, voters in the new Eleventh
District-which joins metropolitan black neighborhoods together with
the poor black populace of coastal areas 260 miles awaychallenged
the district on the ground that it was a racial gerrymander in
violation of the Equal Protection Clause as interpreted in
Shaw. The District Court agreed, holding that evidence of
the state legislature's purpose, as well as the district's
irregular borders, showed that race was the overriding and
predominant force in the districting determination. The court
assumed that compliance with the Act would be a compelling
interest, but found that the plan was not narrowly tailored to meet
that interest since the Act did not require three majority-black
districts.
Held: Georgia's congressional redistricting plan violates
the Equal Protection Clause. Pp. 910-928.
(a) Parties alleging that a State has assigned voters on the
basis of race are neither confined in their proof to evidence
regarding a district's geometry and makeup nor required to make a
threshold showing of bizarreness. A district's shape is relevant to
Shaw's equal protection analysis not because bizarreness is
a necessary element of the constitu-
*Together with No. 94-797,
Abrams et al. v.
Johnson et
al., and No.
94-929, United States v.
Johnson et
al., also on appeal from the same court.
901
tional 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 a legislature's
dominant and controlling rationale in drawing district lines. In
some exceptional cases, a reapportionment plan may be so highly
irregular that, on its face, it rationally cannot be understood as
anything other than an effort to segregate voters based on race,
but where the district is not so bizarre, parties may rely on other
evidence to establish race-based districting. The very
stereotypical assumptions the Equal Protection Clause forbids
underlie the argument that the Clause's general proscription on
race-based decisionmaking does not obtain in the districting
context because redistricting involves racial consideration. While
redistricting usually implicates a political calculus in which
various interests compete for recognition, it does not follow that
individuals of the same race share a single political interest. Nor
can the analysis used to assess the vote dilution claim in
United Jewish Organizations of Williamsburgh, Inc. v.
Carey, 430 U. S. 144, be applied to
resuscitate this argument. pp. 910-915.
(b) Courts must exercise extraordinary caution in adjudicating
claims that a State has drawn race-based district lines. The
plaintiff must show, whether through circumstantial evidence of a
district's shape and demographics or more direct evidence of
legislative purpose, that race was the predominant factor
motivating the legislature's decision to place a significant number
of voters within or without a district. To make this showing, a
plaintiff must prove that the legislature subordinated traditional
race-neutral districting principles, including but not limited to
compactness, contiguity, respect for political subdivisions or
communities defined by actual shared interests, to racial
considerations. pp. 915-917.
(c) The District Court applied the correct analysis here, and
its finding that race was the predominant factor motivating the
Eleventh District's drawing was not clearly erroneous. It need not
be decided whether the district's shape, standing alone, was
sufficient to establish that the district is unexplainable on
grounds other than race, for there is considerable additional
evidence showing that the state legislature was motivated by a
predominant, overriding desire to create a third majority-black
district in order to comply with the Justice Department's
preclearance demands. The District Court's well-supported finding
justified its rejection of the various alternative explanations
offered for the district. Appellants cannot refute the claim of
racial gerrymandering by arguing the legislature complied with
traditional districting principles, since those factors were
subordinated to racial objectives. Nor are there tangible
communities of interest spanning the district's hundreds of miles
that can be called upon to rescue the plan. Since race
902
Syllabus
was the predominant, overriding factor behind the Eleventh
District's drawing, the State's plan is subject to strict scrutiny
and can be sustained only if it is narrowly tailored to achieve a
compelling state interest. Pp. 917-920.
(d) While there is a significant state interest in eradicating
the effects of past racial discrimination, there is little doubt
that Georgia's true interest was to satisfy the Justice
Department's preclearance demands. Even if compliance with the Act,
standing alone, could provide a compelling interest, it cannot do
so here, where the district was not reasonably necessary under a
constitutional reading and application of the Act. To say that the
plan was required in order to obtain preclearance is not to say
that it was required by the Act's substantive requirements.
Georgia's two earlier plans were ameliorative and could not have
violated § 5 unless they so discriminated on the basis of race or
color as to violate the Constitution. However, instead of grounding
its objections on evidence of a discriminatory purpose, the Justice
Department appears to have been driven by its maximization policy.
In utilizing § 5 to require States to create majority-minority
districts whenever possible, the Department expanded its statutory
authority beyond Congress' intent for § 5: to insure that no
voting-procedure changes would be made that would lead to a
retrogression in the position of racial minorities with respect to
their effective exercise of the electoral franchise. The policy
also raises serious constitutional concerns because its implicit
command that States may engage in presumptive unconstitutional
race-based districting brings the Act, once upheld as a proper
exercise of Congress' Fifteenth Amendment authority, into tension
with the Fourteenth Amendment. Pp. 920-927.
864 F. Supp. 1354, affirmed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SCALIA, and THOMAS, JJ., joined.
O'CONNOR, J., filed a concurring opinion,
post, p. 928.
STEVENS, J., filed a dissenting opinion,
post, p. 929.
GINSBURG, J., filed a dissenting opinion, in which STEVENS and
BREYER, JJ., joined, and in which SOUTER, J., joined except as to
Part III-B,
post, p. 934.
David F. Walbert, Special Assistant Attorney General of
Georgia, argued the cause for the state and private appellants.
With him on the briefs for appellants Miller et al. were
Michael J.
Bowers, Attorney General, and
Dennis R.
Dunn, Senior Assistant Attorney General.
Solicitor General
Days argued the cause for the United States. With
903
him on the briefs were Assistant Attorney General Patrick,
Deputy Solicitor General Bender, James A. Feldman, Steven H.
Rosenbaum, and Miriam R. Eisenstein. Laughlin McDonald, Neil
Bradley, Elaine R. Jones, Theodore M. Shaw, Norman J. Chachkin,
Jacqueline A. Berrien, and Gerald R. Weber filed briefs for
appellants Abrams et al.
A. Lee Parks argued the cause for appellees. With him on
the brief was
Larry H. Chesin. t
JUSTICE KENNEDY delivered the opinion of the Court. The
constitutionality of Georgia's congressional redistricting plan is
at issue here. In
Shaw v.
Reno, 509 U. S.
630 (1993), we held that a plaintiff states a claim under the
Equal Protection Clause by alleging that a state redistricting
plan, on its face, has no rational explanation save as an effort to
separate voters on the basis of race. The question we now decide is
whether Georgia's new Eleventh District gives rise to a valid equal
protection claim under the principles an-
tBriefs of
amici curiae urging reversal were filed for
the State of Texas et al. by
Dan Morales, Attorney General
of Texas,
Jorge Vega, First Assistant Attorney General, and
Renea Hicks, State Solicitor, and
Michael F.
Easley, Attorney General of North Carolina; for the
Congressional Black Caucus by
A. Leon Higginbotham, Jr.; for
the Democratic National Committee et al. by
Wayne Arden and
Donald J.
Simon; for the Georgia Association of Black
Elected Officials by
Eben M oglen and
Pamela S.
Karlan; for the Lawyers' Committee for Civil Rights Under
Law by
Michael A. Cooper, Herbert J.
Hansell, Thomas
J.
Henderson, Brenda Wright, J.
Gerald Hebert, Nicholas
deB. Katzenbach, and
Alan E. Kraus; for the Mexican
American Legal Defense and Educational Fund et al. by
Charisse
R. Lillie, Karen Narasaki, Wade Henderson, Dennis Courtland Hayes,
Kim Gandy, Deborah Ellis, Rodney G.
Gregory, Elliot
Mincberg, and
Donna R. Lenhoff; and for the National
Voting Rights Institute by
Jamin Raskin.
Briefs of amici curiae urging affirmance were filed for the
AntiDefamation League by F. Peter Phillips, Jeffrey P. Sinensky,
Steven M. Freeman, Debbie N. Kaminer, and Martin E. Karlinsky; for
the Washington Legal Foundation et al. by Daniel J. Popeo and
Richard A. Samp; and for Ruth O. Shaw et al. by Robinson Q Everett
and Clifford Dougherty.
William C. Owens, Jr., filed a brief for A. J. Pate as amicus
curiae.
904
nounced in
Shaw, and, if so, whether it can be sustained
nonetheless as narrowly tailored to serve a compelling governmental
interest.
I A
The Equal Protection Clause of the Fourteenth Amendment provides
that no State shall "deny to any person within its jurisdiction the
equal protection of the laws." U. S. Const., Arndt. 14, § 1. Its
central mandate is racial neutrality in governmental
decisionmaking. See,
e. g., Loving v.
Virginia,
388 U. S. 1, 11 (1967);
McLaughlin v.
Florida, 379 U. S. 184, 191-192 (1964); see also
Brown v.
Board of Education, 347 U. S.
483 (1954). Though application of this imperative raises
difficult questions, the basic principle is straightforward:
"Racial and ethnic distinctions of any sort are inherently suspect
and thus call for the most exacting judicial examination .... This
perception of racial and ethnic distinctions is rooted in our
Nation's constitutional and demographic history."
Regents of
Univ. of Cal. v.
Bakke, 438 U. S. 265, 291 (1978)
(opinion of Powell, J.). This rule obtains with equal force
regardless of "the race of those burdened or benefited by a
particular classification."
Richmond v. J.
A. Croson
Co., 488 U. S. 469, 494 (1989) (plurality
opinion) (citations omitted); id., at 520 (SCALIA, J., concurring
in judgment) ("I agree ... with JUSTICE O'CONNOR'S conclusion that
strict scrutiny must be applied to all governmental classification
by race"); see also
Adarand Constructors, Inc. v.
Pena,
ante, at 224;
Bakke, supra, at 289-291 (opinion of
Powell, J.). Laws classifying citizens on the basis of race cannot
be upheld unless they are narrowly tailored to achieving a
compelling state interest. See,
e. g., Adarand, ante, at
227;
Croson, supra, at 494 (plurality opinion);
Wygant v.
Jackson Bd. of Ed., 476 U. S.
267, 274, 280, and n. 6 (1986) (plurality opinion).
905
In
Shaw v.
Reno, supra, we recognized that these
equal protection principles govern a State's drawing of
congressional districts, though, as our cautious approach there
discloses, application of these principles to electoral districting
is a most delicate task. Our analysis began from the premise that
"[l]aws that explicitly distinguish between individuals on racial
grounds fall within the core of [the Equal Protection Clause's]
prohibition."
Id., at 642. This prohibition extends not just
to explicit racial classifications, but also to laws neutral on
their face but "'unexplainable on grounds other than race.'''
Id., at 644 (quoting
Arlington Heights v.
Metropolitan Housing Development Corp., 429 U.
S. 252, 266 (1977)). Applying this basic equal protection
analysis in the voting rights context, we held that "redistricting
legislation that is so bizarre on its face that it is
'unexplainable on grounds other than race,' ... demands the same
close scrutiny that we give other state laws that classify citizens
by race." 509 U. S., at 644 (quoting
Arlington Heights,
supra, at 266).
This litigation requires us to apply the principles articulated
in
Shaw to the most recent congressional redistricting plan
enacted by the State of Georgia.
B
In 1965, the Attorney General designated Georgia a covered
jurisdiction under § 4(b) of the Voting Rights Act (Act), 79 Stat.
438, as amended, 42 U. S. C. § 1973b(b). 30 Fed. Reg. 9897 (1965);
see 28 CFR pt. 51, App.; see also
City of Rome v.
United
States, 446 U. S. 156, 161 (1980). In
consequence, § 5 of the Act requires Georgia to obtain either
administrative preclearance by the Attorney General or approval by
the United States District Court for the District of Columbia of
any change in a "standard, practice, or procedure with respect to
voting" made after November 1, 1964. 42 U. S. C. § 1973c. The
preclearance mechanism applies to
906
congressional redistricting plans, see,
e. g., Beer v.
United States, 425 U. S. 130, 133 (1976),
and requires that the proposed change "not have the purpose and
will not have the effect of denying or abridging the right to vote
on account of race or color." 42 U. S. C. § 1973c. "[T]he purpose
of § 5 has always been to insure that no voting-procedure changes
would be made that would lead to a retrogression in the position of
racial minorities with respect to their effective exercise of the
electoral franchise."
Beer, supra, at 141.
Between 1980 and 1990, one of Georgia's 10 congressional
districts was a majority-black district, that is, a majority of the
district's voters were black. The 1990 Decennial Census indicated
that Georgia's population of 6,478,216 persons, 27% of whom are
black, entitled it to an additional eleventh congressional seat,
App. 9, prompting Georgia's General Assembly to redraw the State's
congressional districts. Both the House and the Senate adopted
redistricting guidelines which, among other things, required
single-member districts of equal population, contiguous geography,
nondilution of minority voting strength, fidelity to precinct lines
where possible, and compliance with §§ 2 and 5 of the Act, 42 U. S.
C. §§ 1973, 1973c. See App. 11-12. Only after these requirements
were met did the guidelines permit drafters to consider other ends,
such as maintaining the integrity of political subdivisions,
preserving the core of existing districts, and avoiding contests
between incumbents.
Id., at 12.
A special session opened in August 1991, and the General
Assembly submitted a congressional redistricting plan to the
Attorney General for preclearance on October 1, 1991. The
legislature's plan contained two majority-minority districts, the
Fifth and Eleventh, and an additional district, the Second, in
which blacks comprised just over 35% of the voting age population.
Despite the plan's increase in the number of majority-black
districts from one to two and the absence of any evidence of an
intent to discriminate against minority voters, 864 F. Supp. 1354,
1363, and n. 7 (SD Ga. 1994), the
907
Department of Justice refused preclearance on January 21, 1992.
App. 99-107. The Department's objection letter noted a concern that
Georgia had created only two majorityminority districts, and that
the proposed plan did not "recognize" certain minority populations
by placing them in a majority-black district.
Id., at 105,
105-106.
The General Assembly returned to the drawing board. A new plan
was enacted and submitted for preclearance. This second attempt
assigned the black population in Central Georgia's Baldwin County
to the Eleventh District and increased the black populations in the
Eleventh, Fifth, and Second Districts. The Justice Department
refused preclearance again, relying on alternative plans proposing
three majority-minority districts.
Id., at 120-126. One of
the alternative schemes relied on by the Department was the
so-called "max-black" plan, 864 F. Supp., at 1360, 1362-1363,
drafted by the American Civil Liberties Union (ACLU) for the
General Assembly's black caucus. The key to the ACLU's plan was the
"Macon/Savannah trade." The dense black population in the Macon
region would be transferred from the Eleventh District to the
Second, converting the Second into a majority-black district, and
the Eleventh District's loss in black population would be offset by
extending the Eleventh to include the black populations in
Savannah.
Id., at 1365-1366. Pointing to the General
Assembly's refusal to enact the Macon/Savannah swap into law, the
Justice Department concluded that Georgia had "failed to explain
adequately" its failure to create a third majority-minority
district. App. 125. The State did not seek a declaratory judgment
from the District Court for the District of Columbia. 864 F. Supp.,
at 1366, n. 11.
Twice spurned, the General Assembly set out to create three
majority-minority districts to gain preclearance.
Id., at
1366. Using the ACLU's "max-black" plan as its benchmark, id., at
1366-1367, the General Assembly enacted a plan that
908
"bore all the signs of [the Justice Department's] involvement:
The black population of Meriwether County was gouged out of the
Third District and attached to the Second District by the narrowest
of land bridges; Effingham and Chatham Counties were split to make
way for the Savannah extension, which itself split the City of
Savannah; and the plan as a whole split 26 counties, 23 more than
the existing congressional districts."
Id., at 1367.
See Appendix A,
infra, following p. 928. The new plan
also enacted the Macon/Savannah swap necessary to create a third
majority-black district. The Eleventh District lost the black
population of Macon, but picked up Savannah, thereby connecting the
black neighborhoods of metropolitan Atlanta and the poor black
populace of coastal Chatham County, though 260 miles apart in
distance and worlds apart in culture. In short, the social,
political, and economic makeup of the Eleventh District tells a
tale of disparity, not community. See 864 F. Supp., at 1376-1377,
1389-1390; Plaintiff's Exh. No. 85, pp. 10-27 (report of Timothy G.
O'Rourke, Ph.D.). As the appendices to this opinion attest,
"[t]he populations of the Eleventh are centered around four
discrete, widely spaced urban centers that have absolutely nothing
to do with each other, and stretch the district hundreds of miles
across rural counties and narrow swamp corridors." 864 F. Supp., at
1389 (footnote omitted).
"The dense population centers of the approved Eleventh District
were all majority-black, all at the periphery of the district, and
in the case of Atlanta, Augusta and Savannah, all tied to a
sparsely populated rural core by even less populated land bridges.
Extending from Atlanta to the Atlantic, the Eleventh covered
6,784.2 square miles, splitting eight counties and five
municipalities along the way." Id., at 1367 (footnote
omitted).
909
The Almanac of American Politics has this to say about the
Eleventh District: "Geographically, it is a monstrosity, stretching
from Atlanta to Savannah. Its core is the plantation country in the
center of the state, lightly populated, but heavily black. It links
by narrow corridors the black neighborhoods in Augusta, Savannah
and southern DeKalb County." M. Barone & G. Ujifusa, Almanac of
American Politics 356 (1994). Georgia's plan included three
majorityblack districts, though, and received Justice Department
preclearance on April 2, 1992. Plaintiff's Exh. No.6; see 864 F.
Supp., at 1367.
Elections were held under the new congressional redistricting
plan on November 4, 1992, and black candidates were elected to
Congress from all three majority-black districts.
Id., at
1369. On January 13, 1994, appellees, five white voters from the
Eleventh District, filed this action against various state
officials (Miller Appellants) in the United States District Court
for the Southern District of Georgia.
Id., at 1369, 1370. As
residents of the challenged Eleventh District, all appellees had
standing. See
United States v.
Hays, ante, at
744-745. Their suit alleged that Georgia's Eleventh District was a
racial gerrymander and so a violation of the Equal Protection
Clause as interpreted in
Shaw v.
Reno. A three-judge
court was convened pursuant to 28 U. S. C. § 2284, and the United
States and a number of Georgia residents intervened in support of
the defendant-state officials.
A majority of the District Court panel agreed that the Eleventh
District was invalid under
Shaw, with one judge dissenting.
864 F. Supp. 1354 (1994). After sharp criticism of the Justice
Department for its use of partisan advocates in its dealings with
state officials and for its close cooperation with the ACL U's
vigorous advocacy of minority district maximization, the majority
turned to a careful interpretation of our opinion in
Shaw.
It read
Shaw to require strict scrutiny whenever race is the
"overriding, predominant force" in the redistricting process. 864
F. Supp., at
910
1372 (emphasis deleted). Citing much evidence of the
legislature's purpose and intent in creating the final plan, as
well as the irregular shape of the district (in particular several
appendages drawn for the obvious purpose of putting black
populations into the district), the court found that race was the
overriding and predominant force in the districting determination.
Id., at 1378. The court proceeded to apply strict scrutiny.
Though rejecting proportional representation as a compelling
interest, it was willing to assume that compliance with the Act
would be a compelling interest.
Id., at 1381-1382. As to the
latter, however, the court found that the Act did not require three
majority-black districts, and that Georgia's plan for that reason
was not narrowly tailored to the goal of complying with the Act.
Id., at 1392-1393.
Appellants filed notices of appeal and requested a stay of the
District Court's judgment, which we granted pending the filing and
disposition of the appeals in this litigation,
Miller v.
Johnson, 512 U. S. 1283 (1994). We later noted probable
jurisdiction. 513 U. S. 1071 (1995); see 28 U. S. C. § 1253.
II A
Finding that the "evidence of the General Assembly's intent to
racially gerrymander the Eleventh District is overwhelming, and
practically stipulated by the parties involved," the District Court
held that race was the predominant, overriding factor in drawing
the Eleventh District. 864 F. Supp., at 1374; see id., at
1374-1378. Appellants do not take issue with the court's factual
finding of this racial motivation. Rather, they contend that
evidence of a legislature's deliberate classification of voters on
the basis of race cannot alone suffice to state a claim under
Shaw. They argue that, regardless of the legislature's
purposes, a plaintiff must demonstrate that a district's shape is
so bizarre that it is unexplainable other than on the basis of
race, and that
911
appellees failed to make that showing here. Appellants'
conception of the constitutional violation misapprehends our
holding in
Shaw and the equal protection precedent upon
which
Shaw relied.
Shaw recognized a claim "analytically distinct" from a
vote dilution claim. 509 U. S., at 652; see id., at 649-650.
Whereas a vote dilution claim alleges that the State has enacted a
particular voting scheme as a purposeful device "to minimize or
cancel out the voting potential of racial or ethnic minorities,"
Mobile v.
Bolden, 446 U. S. 55, 66
(1980) (citing cases), an action disadvantaging voters of a
particular race, the essence of the equal protection claim
recognized in
Shaw is that the State has used race as a
basis for separating voters into districts. Just as the State may
not, absent extraordinary justification, segregate citizens on the
basis of race in its public parks,
New Orleans City Park
Improvement Assn. v.
Detiege, 358 U. S.
54 (1958)
(per curiam), buses,
Gayle v.
Browder, 352 U. S. 903 (1956)
(per curiam), golf
courses,
Holmes v.
Atlanta, 350 U. S. 879 (1955)
(per curiam), beaches,
Mayor of Baltimore v.
Dawson, 350 U. S. 877 (1955)
(per curiam), and
schools,
Brown v.
Board of Education, 347
U. S. 483 (1954), so did we recognize in
Shaw that it
may not separate its citizens into different voting districts on
the basis of race. The idea is a simple one: "At the heart of the
Constitution's guarantee of equal protection lies the simple
command that the Government must treat citizens 'as individuals,
not "as simply components of a racial, religious, sexual or
national class."'"
Metro Broadcasting, Inc. v.
FCC,
497 U. S. 547, 602 (1990) (O'CONNOR, J.,
dissenting) (quoting
Arizona Governing Comm.for Tax Deferred
Annuity and Deferred Compensation Plans v.
Norris,
463 U. S. 1073, 1083 (1983)); cf.
Northeastern
Fla. Chapter, Associated Gen. Contractors of America v.
Jacksonville, 508 U. S. 656, 666 (1993) ("
'injury in fact'" was "denial of equal treatment ... , not the
ultimate inability to obtain the benefit"). When the State assigns
voters on the basis of race, it engages in
912
the offensive and demeaning assumption that voters of a
particular race, because of their race, "think alike, share the
same political interests, and will prefer the same candidates at
the polls."
Shaw, supra, at 647; see
Metro Broadcasting,
supra, at 636 (KENNEDY, J., dissenting). Race-based assignments
"embody stereotypes that treat individuals as the product of their
race, evaluating their thoughts and effortstheir very worth as
citizens-according to a criterion barred to the Government by
history and the Constitution."
Metro Broadcasting, supra, at
604 (O'CONNOR, J., dissenting) (citation omitted); see
Powers v.
Ohio, 499 U. S. 400, 410
(1991) ("Race cannot be a proxy for determining juror bias or
competence");
Palmore v.
Sidoti, 466 U.
S. 429, 432 (1984) ("Classifying persons according to their
race is more likely to reflect racial prejudice than legitimate
public concerns; the race, not the person, dictates the category").
They also cause society serious harm. As we concluded in
Shaw:
"Racial classifications with respect to voting carry particular
dangers. Racial 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. It is for
these reasons that race-based districting by our state legislatures
demands close judicial scrutiny." Shaw, supra, at 657.
Our observation in
Shaw of the consequences of racial
stereotyping was not meant to suggest that a district must be
bizarre on its face before there is a constitutional violation. Nor
was our conclusion in
Shaw that in certain instances a
district's appearance (or, to be more precise, its appearance in
combination with certain demographic evidence) can give rise to an
equal protection claim, 509 U. S., at 649, a holding that
bizarreness was a threshold showing, as appellants be-
913
lieve it to be. Our circumspect approach and narrow holding in
Shaw did not erect an artificial rule barring accepted equal
protection analysis in other redistricting cases. 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. The logical implication, as courts applying
Shaw have recognized, is that parties may rely on evidence
other than bizarreness to establish racebased districting. See
Shaw v.
Hunt, 861 F. Supp. 408, 431 (EDNC 1994);
Hays v.
Louisiana, 839 F. Supp. 1188, 1195 (WD La.
1993), vacated, 512 U. S. 1230 (1994); but see
De Witt
Our reasoning in
Shaw compels this conclusion. We
recognized in
Shaw that, outside the districting context,
statutes are subject to strict scrutiny under the Equal Protection
Clause not just when they contain express racial classifications,
but also when, though race neutral on their face, they are
motivated by a racial purpose or object. 509 U. S., at 644. In the
rare case, where the effect of government action is a pattern
"'unexplainable on grounds other than race,'"
ibid. (quoting
Arlington Heights, 429 U. S., at 266), "[t]he evidentiary
inquiry is ... relatively easy,"
Arlington Heights, supra,
at 266 (footnote omitted). As early as
Yick Wo v.
Hopkins, 118 U. S. 356 (1886), the Court
recognized that a laundry permit ordinance was administered in a
deliberate way to exclude all Chinese from the laundry business;
and in
Gomillion v.
Lightfoot, 364 U. S.
339 (1960), the Court concluded that the redrawing of Tuskegee,
Alabama's municipal boundaries left no doubt that the plan was
designed to exclude blacks. Even in those cases, however, it was
the presumed racial purpose of state action, not its stark
manifestation, that was the constitutional violation. Patterns of
discrimination as conspicuous as these are rare, and
914
are not a necessary predicate to a violation of the Equal
Protection Clause. Cf.
Arlington Heights, supra, at 266, n.
14. In the absence of a pattern as stark as those in
Yick Wo
or
Gomillion, "impact alone is not determinative, and the
Court must look to other evidence" of race-based decisionmaking.
Arlington Heights, supra, at 266 (footnotes omitted).
Shaw applied these same principles to redistricting. "In
some exceptional cases, 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."
Shaw, supra, at 646-647 (quoting
Gomillion, supra, at 341). In other cases, where the
district is not so bizarre on its face that it discloses a racial
design, the proof will be more "difficul[t]." 509 U. S., at 646.
Although it was not necessary in
Shaw to consider further
the proof required in these more difficult cases, the logical
import of our reasoning is that evidence other than a district's
bizarre shape can be used to support the claim.
Appellants and some of their
amici argue that the Equal
Protection Clause's general proscription on race-based
decisionmaking does not obtain in the districting context because
redistricting by definition involves racial considerations.
Underlying their argument are the very stereotypical assumptions
the Equal Protection Clause forbids. It is true that redistricting
in most cases will implicate a political calculus in which various
interests compete for recognition, but it does not follow from this
that individuals of the same race share a single political
interest. The view that they do is "based on 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, 497 U. S., at 636 (KENNEDY,
J., dissenting), the precise use of race as a proxy the
Constitution prohibits. Nor can the argument that districting cases
are excepted from standard equal protection precepts be
resuscitated by
United Jewish Organizations of Williamsburgh,
Inc. v.
Carey, 430 U. S.
915
144 (1977), where the Court addressed a claim that New York
violated the Constitution by splitting a Hasidic Jewish community
in order to include additional majority-minority districts. As we
explained in
Shaw, a majority of the Justices in
UJO
construed the complaint as stating a vote dilution claim, so their
analysis does not apply to a claim that the State has separated
voters on the basis of race. 509 U. S., at 652. To the extent any
of the opinions in that "highly fractured decision," id., at 651,
can be interpreted as suggesting that a State's assignment of
voters on the basis of race would be subject to anything but our
strictest scrutiny, those views ought not be deemed
controlling.
In sum, we make clear that parties alleging that a State has
assigned voters on the basis of race are neither confined in their
proof to evidence regarding the district's geometry and makeup nor
required to make a threshold showing of bizarreness. Today's
litigation requires us further to consider the requirements of the
proof necessary to sustain this equal protection challenge.
B
Federal-court review of districting legislation represents a
serious intrusion on the most vital of local functions. It is well
settled that "reapportionment is primarily the duty and
responsibility of the State."
Chapman v.
Meier, 420
U. S. 1, 27 (1975); see,
e. g., Voinovich v.
Quilter,
507 U. S. 146,156-157 (1993);
Growe v.
Emison, 507 U. S. 25,34 (1993). Electoral
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. Although race-based
decisionmaking is inherently suspect,
e. g., Adarand, ante,
at 218 (citing
Bakke, 438 U. S., at 291 (opinion of Powell,
J.)), until a claimant makes a showing sufficient to support that
allegation the good faith of a state legislature must be presumed,
see id., at 318-319 (opinion of Powell, J.). The courts, in
assessing the sufficiency of a challenge to a districting plan,
must be sensitive to the com-
916
plex interplay of forces that enter a legislature's
redistricting calculus. Redistricting legislatures will, for
example, almost always be aware of racial demographics; but it does
not follow that race predominates in the redistricting process.
Shaw, supra, at 646; see
Personnel Administrator of
Mass. v.
Feeney, 442 U. S. 256, 279
(1979) (" '[D]iscriminatory' purpose' ... implies more than intent
as volition or intent as awareness of consequences. It implies that
the decisionmaker ... selected or reaffirmed a particular course of
action at least in part 'because of,' not merely 'in spite of,' its
adverse effects") (footnotes and citation omitted). The distinction
between being aware of racial considerations and being motivated by
them may be difficult to make. This evidentiary difficulty,
together with the sensitive nature of redistricting and the
presumption of good faith that must be accorded legislative
enactments, requires courts to exercise extraordinary caution in
adjudicating claims that a State has drawn district lines on the
basis of race. The plaintiff's burden is to show, either through
circumstantial evidence of a district's shape and demographics or
more direct evidence going to legislative purpose, that race was
the predominant factor motivating the legislature's decision to
place a significant number of voters within or without a particular
district. To make this showing, a plaintiff must prove that the
legislature subordinated traditional race-neutral districting
principles, including but not limited to compactness, contiguity,
and respect for political subdivisions or communities defined by
actual shared interests, to racial considerations. Where these 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 gerrymandered on racial lines."
Shaw, supra, at 647. These principles inform the plaintiff's
burden of proof at trial. Of course, courts must also recognize
these principles, and the intrusive potential of judicial
intervention into the legislative realm, when assessing under the
Federal Rules of Civil
917
Procedure the adequacy of a plaintiff's showing at the various
stages of litigation and determining whether to permit discovery or
trial to proceed. See,
e. g., Fed. Rules Civ. Proc. 12(b)
and (e), 26(b)(2), 56; see also
Celotex Corp. v.
Catrett, 477 U. S. 317, 327 (1986).
In our view, the District Court applied the correct analysis,
and its finding that race was the predominant factor motivating the
drawing of the Eleventh District was not clearly erroneous. The
court found it was "exceedingly obvious" from the shape of the
Eleventh District, together with the relevant 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. 864 F. Supp., at 1375; see
id., at 13741376. Although by comparison with other districts the
geometric shape of the Eleventh District may not seem bizarre on
its face, when its shape is considered in conjunction with its
racial and population densities, the story of racial gerrymandering
seen by the District Court becomes much clearer. See Appendix B,
infra, following p. 928; see also App. 133. Although this
evidence is quite compelling, we need not determine whether it was,
standing alone, sufficient to establish a
Shaw claim that
the Eleventh District is unexplainable other than by race. The
District Court had before it considerable additional evidence
showing that the General Assembly was motivated by a predominant,
overriding desire to assign black populations to the Eleventh
District and thereby permit the creation of a third majority-black
district in the Second. 864 F. Supp., at 1372, 1378.
The court found that "it became obvious," both from the Justice
Department's objection letters and the three preclearance rounds in
general, "that [the Justice Department] would accept nothing less
than abject surrender to its maximization agenda."
Id., at
1366, n. 11; see
id., at 1360-1367; see also
Arlington
Heights, 429 U. S., at 267 ("historical
918
background of the decision is one evidentiary source"). It
further found that the General Assembly acquiesced and as a
consequence was driven by its overriding desire to comply with the
Department's maximization demands. The court supported its
conclusion not just with the testimony of Linda Meggers, the
operator of "Herschel," Georgia's reapportionment computer, and
"probably the most knowledgeable person available on the subject of
Georgian redistricting," 864 F. Supp., at 1361, 1363, n. 6, 1366,
but also with the State's own concessions. The State admitted that
it "'would not have added those portions of Effingham and Chatham
Counties that are now in the [far southeastern extension of the]
present Eleventh Congressional District but for the need to include
additional black population in that district to offset the loss of
black population caused by the shift of predominantly black
portions of Bibb County in the Second Congressional District which
occurred in response to the Department of Justice's March 20th,
1992, objection letter.'"
Id., at 1377. It conceded further
that "[t]o the extent that precincts in the Eleventh Congressional
District are split, a substantial reason for their being split was
the objective of increasing the black population of that district."
Ibid. And in its brief to this Court, the State concedes
that "[i]t is undisputed that Georgia's eleventh is the product of
a desire by the General Assembly to create a majority black
district." Brief for Miller Appellants 30. Hence the trial court
had little difficulty concluding that the Justice Department "spent
months demanding purely race-based revisions to Georgia's
redistricting plans, and that Georgia spent months attempting to
comply." 864 F. Supp., at 1377. On this record, we fail to see how
the District Court could have reached any conclusion other than
that race was the predominant factor in drawing Georgia's Eleventh
District; and in any event we conclude the court's finding is not
clearly erroneous. Cf.
Wright v.
Rockefeller,
376 U. S. 52, 56-57 (1964) (evidence presented
"conflicting inferences" and therefore "failed to
919
prove that the New York Legislature was either motivated by
racial considerations or in fact drew the districts on
raciallines").
In light of its well-supported finding, the District Court was
justified in rejecting the various alternative explanations offered
for the district. Although a legislature's compliance with
"traditional districting principles such as compactness,
contiguity, and respect for political subdivisions" may well
suffice to refute a claim of racial gerrymandering,
Shaw,
509 U. S., at 647, appellants cannot make such a refutation where,
as here, those factors were subordinated to racial objectives.
Georgia's Attorney General objected to the Justice Department's
demand for three majority-black districts on the ground that to do
so the State would have to "violate all reasonable standards of
compactness and contiguity." App. 118. This statement from a state
official is powerful evidence that the legislature subordinated
traditional districting principles to race when it ultimately
enacted a plan creating three majority-black districts, and
justified the District Court's finding that "every [objective
districting] factor that could realistically be subordinated to
racial tinkering in fact suffered that fate." 864 F. Supp., at
1384; see id., at 1364, n. 8; id., at 1375 ("While the boundaries
of the Eleventh do indeed follow many precinct lines, this is
because Ms. Meggers designed the Eleventh District along racial
lines, and race data was most accessible to her at the precinct
level").
Nor can the State's districting legislation be rescued by mere
recitation of purported communities of interest. The evidence was
compelling "that there are no tangible 'communities of interest'
spanning the hundreds of miles of the Eleventh District."
Id., at 1389-1390. A comprehensive report demonstrated the
fractured political, social, and economic interests within the
Eleventh District's black population. See Plaintiff's Exh. No. 85,
pp. 10-27 (report of Timothy G. O'Rourke, Ph.D.). It is apparent
that it was not alleged
920
shared interests but rather the object of maximizing the
district's black population and obtaining Justice Department
approval that in fact explained the General Assembly's actions. 864
F. Supp., at 1366, 1378, 1380. A State is free to recognize
communities that have a particular racial makeup, provided its
action is directed toward some common thread of relevant interests.
"[W]hen members of a racial group live together in one community, a
reapportionment plan that concentrates members of the group in one
district and excludes them from others may reflect wholly
legitimate purposes."
Shaw, 509 U. S., at 646. But where the
State assumes from a group of voters' race that they "think alike,
share the same political interests, and will prefer the same
candidates at the polls," it engages in racial stereotyping at odds
with equal protection mandates.
Id., at 647; cf.
Powers v. Ohio,
499 U. S. 400, 410 (1991)
("We may not accept as a defense to racial discrimination the very
stereotype the law condemns").
Race was, as the District Court found, the predominant,
overriding factor explaining the General Assembly's decision to
attach to the Eleventh District various appendages containing dense
majority-black populations. 864 F. Supp., at 1372, 1378. As a
result, Georgia's congressional redistricting plan cannot be upheld
unless it satisfies strict scrutiny, our most rigorous and exacting
standard of constitutional review.
III
To satisfy strict scrutiny, the State must demonstrate that its
districting legislation is narrowly tailored to achieve a
compelling interest.
Shaw, supra, at 653-657; see also
Croson, 488 U. S., at 494 (plurality opinion);
Wygant, 476 U. S., at 274,280, and n. 6 (plurality opinion);
cf.
Adarand, ante, at 227. There is a "significant state
interest in eradicating the effects of past racial discrimination."
Shaw, supra, at 656. The State does not argue, however, that
it created the Eleventh District to remedy past discrimination, and
with good
921
reason: There is little doubt that the State's true interest in
designing the Eleventh District was creating a third majority-black
district to satisfy the Justice Department's preclearance demands.
864 F. Supp., at 1378 ("[T]he only interest the General Assembly
had in mind when drafting the current congressional plan was
satisfying [the Justice Department's] preclearance requirements");
id., at 1366; compare
Wygant, supra, at 277 (plurality
opinion) (under strict scrutiny, State must have convincing
evidence that remedial action is necessary before implementing
affirmative action), with
Heller v.
Doe, 509 U. S. 312, 320 (1993) (under rationalbasis review,
legislature need not "'actually articulate at any time the purpose
or rationale supporting its classification''') (quoting
Nordlinger v.
Hahn, 505 U. S. 1, 15
(1992)). Whether or not in some cases compliance with the Act,
standing alone, can provide a compelling interest independent of
any interest in remedying past discrimination, it cannot do so
here. As we suggested in
Shaw, compliance with federal
antidiscrimination laws cannot justify race-based districting where
the challenged district was not reasonably necessary under a
constitutional reading and application of those laws. See 509 U.
S., at 653-655. The congressional plan challenged here was not
required by the Act under a correct reading of the statute.
The Justice Department refused to preclear both of Georgia's
first two submitted redistricting plans. The District Court found
that the Justice Department had adopted a "black-maximization"
policy under § 5, and that it was clear from its objection letters
that the Department would not grant preclearance until the State
made the "Macon! Savannah trade" and created a third majority-black
district. 864 F. Supp., at 1366, 1380. It is, therefore, safe to
say that the congressional plan enacted in the end was required in
order to obtain preclearance. It does not follow, however, that the
plan was required by the substantive provisions of the Act.
922
We do not accept the contention that the State has a compelling
interest in complying with whatever preclearance mandates the
Justice Department issues. When a state governmental entity seeks
to justify race-based remedies to cure the effects of past
discrimination, we do not accept the government's mere assertion
that the remedial action is required. Rather, we insist on a strong
basis in evidence of the harm being remedied. See,
e. g., Shaw,
supra, at 656;
Croson, supra, at 500-501;
Wygant,
supra, at 276-277 (plurality opinion). "The history of racial
classifications in this country suggests that blind judicial
deference to legislative or executive pronouncements of necessity
has no place in equal protection analysis."
Croson, supra,
at 501. Our presumptive skepticism of all racial classifications,
see
Adarand, ante, at 223-224, prohibits us as well from
accepting on its face the Justice Department's conclusion that
racial districting is necessary under the Act. Where a State relies
on the Department's determination that race-based districting is
necessary to comply with the Act, the judiciary retains an
independent obligation in adjudicating consequent equal protection
challenges to ensure that the State's actions are narrowly tailored
to achieve a compelling interest. See
Shaw, supra, at 654.
Were we to accept the Justice Department's objection itself as a
compelling interest adequate to insulate racial districting from
constitutional review, we would be surrendering to the Executive
Branch our role in enforcing the constitutional limits on
race-based official action. We may not do so. See,
e. g., United
States v.
Nixon, 418 U. S. 683, 704
(1974) (judicial power cannot be shared with Executive Branch);
Marbury v.
Madison, 1 Cranch 137, 177 (1803) ("It is
emphatically the province and duty of the judicial department to
say what the law is"); cf.
Baker v.
Carr, 369 U. S. 186, 211 (1962) (Supreme Court is "ultimate
interpreter of the Constitution");
Cooper v.
Aaron,
358 U. S. 1, 18 (1958) ("permanent and
indispensable feature of our constitutional system" is that "the
federal
923
judiciary is supreme in the exposition of the law of the
Constitution").
For the same reasons, we think it inappropriate for a court
engaged in constitutional scrutiny to accord deference to the
Justice Department's interpretation of the Act. Although we have
deferred to the Department's interpretation in certain statutory
cases, see,
e. g., Presley v.
Etowah County Comm'n,
502 U. S. 491, 508-509 (1992), and cases cited
therein, we have rejected agency interpretations to which we would
otherwise defer where they raise serious constitutional questions.
Edward J.
DeBartolo Corp. v.
Florida Gulf Coast
Building &
Constr. Trades Council, 485
U. S. 568, 574-575 (1988). When the Justice Department's
interpretation of the Act compels race-based districting, it by
definition raises a serious constitutional question, see,
e.
g.,
Bakke, 438 U. S., at 291 (opinion of Powell, J.)
("Racial and ethnic distinctions of any sort are inherently supect"
under the Equal Protection Clause), and should not receive
deference.
Georgia's drawing of the Eleventh District was not required
under the Act because there was no reasonable basis to believe that
Georgia's earlier enacted plans violated § 5. Wherever a plan is
"ameliorative," a term we have used to describe plans increasing
the number of majority-minority districts, it "cannot violate § 5
unless the new apportionment itself so discriminates on the basis
of race or color as to violate the Constitution."
Beer, 425
U. S., at 141. Georgia's first and second proposed plans increased
the number of majority-black districts from lout of 10 (10%) to 2
out of 11 (18.18%). These plans were "ameliorative" and could not
have violated § 5's nonretrogression principle.
Ibid.
Acknowledging as much, see Brief for United States 29; 864 F.
Supp., at 1384-1385, the United States now relies on the fact that
the Justice Department may object to a state proposal either on the
ground that it has a prohibited purpose or a prohibited effect,
see,
e. g., Pleasant Grove v.
United
924
States, 479 U. S. 462, 469 (1987). The
Government justifies its preclearance objections on the ground that
the submitted plans violated § 5's purpose element. The key to the
Government's position, which is plain from its objection letters if
not from its briefs to this Court, compare App. 105-106, 124-125
with Brief for United States 31-33, is and always has been that
Georgia failed to proffer a nondiscriminatory purpose for its
refusal in the first two submissions to take the steps necessary to
create a third majority-minority district.
The Government's position is insupportable. "[A]meliorative
changes, even if they fall short of what might be accomplished in
terms of increasing minority representation, cannot be found to
violate section 5 unless they so discriminate on the basis of race
or color as to violate the Constitution." Days, Section 5 and the
Role of the Justice Department, in B. Grofman & C. Davidson,
Controversies in Minority Voting 56 (1992). Although it is true we
have held that the State has the burden to prove a
nondiscriminatory purpose under § 5,
e. g., Pleasant Grove,
supra, at 469, Georgia's Attorney General provided a detailed
explanation for the State's initial decision not to enact the
max-black plan, see App. 117-119. The District Court accepted this
explanation, 864 F. Supp., at 1365, and found an absence of any
discriminatory intent, id., at 1363, and n. 7. The State's policy
of adhering to other districting principles instead of creating as
many majorityminority districts as possible does not support an
inference that the plan "so discriminates on the basis of race or
color as to violate the Constitution,"
Beer, supra, at 141;
see
Mobile v.
Bolden, 446 U. S. 55
(1980) (plurality opinion), and thus cannot provide any basis under
§ 5 for the Justice Department's objection.
Instead of grounding its objections on evidence of a
discriminatory purpose, it would appear the Government was driven
by its policy of maximizing majority-black districts. Although the
Government now disavows having had that
925
policy, see Brief for United States 35, and seems to concede its
impropriety, see Tr. of Oral Arg. 32-33, the District Court's
well-documented factual finding was that the Department did adopt a
maximization policy and followed it in objecting to Georgia's first
two plans. * One of the two Department of Justice line attorneys
overseeing the Georgia preclearance process himself disclosed that
"'what we did and what I did specifically was to take a ... map of
the State of Georgia shaded for race, shaded by minority
concentration, and overlay the districts that were drawn by the
State of Georgia and see how well those lines adequately reflected
black voting strength.'" 864 F. Supp., at 1362, n. 4. In utilizing
§ 5 to require States to create majority-minority districts
wherever possible, the Department of Justice expanded its authority
under the statute beyond what Congress intended and we have
upheld.
Section 5 was directed at preventing a particular set of
invidious practices that had the effect of "undo[ing] or
defeat[ing] the rights recently won by nonwhite voters."
*See 864 F. Supp. 1354, 1361 (SD Ga. 1994) (quoting Rep. Tyrone
Brooks, who recalled on the Assembly Floor that" 'the Attorney
General ... specifically told the states covered by the Act that
wherever possible, you must draw majority black districts, wherever
possible' "); id., at 1362-1363, and n. 4 (citing 3 Tr. 23-24:
Assistant Attorney General answering "Yes" to question whether "the
Justice Department did take the position in a number of these
cases, that if alternative plans demonstrated that more minority
districts could be drawn than the state was proposing to draw ...
that did, in fact, violate Section 2 of the Voting Rights Act?");
864 F. Supp., at 1365-1366; id., at 1366, n. 11 ("It became obvious
that [the Justice Department] would accept nothing less than abject
surrender to its maximization agenda"); id., at 1368 ("It
apparently did not occur to [the Justice Department] that increased
'recognition' of minority voting strength, while perhaps admirable,
is properly tempered with other districting considerations"); id.,
at 1382-1383 (expressing doubts as to the constitutionality of [the
Justice Department's] "'maximization' policy"); id., at 1383, n. 35
(citing other courts that have "criticize[d] [the Justice
Department's] maximization propensities").
926
H. R. Rep. No. 91-397, p. 8 (1969). As we explained in
Beer v.
United States,
"'Section 5 was a response to a common practice in some
jurisdictions of staying one step ahead of the federal courts by
passing new discriminatory voting laws as soon as the old ones had
been struck down. That practice had been possible because each new
law remained in effect until the Justice Department or private
plaintiffs were able to sustain the burden of proving that the new
law, too, was discriminatory .... Congress therefore decided, as
the Supreme Court held it could, "to shift the advantage of time
and inertia from the perpetrators of the evil to its victim," by
"freezing election procedures in the covered areas unless the
changes can be shown to be nondiscriminatory."'" 425 U. S., at 140
(quoting H. R. Rep. No. 94-196, pp. 57-58 (1975) (footnotes
omitted)).
Based on this historical understanding, we recognized in
Beer that "the purpose of § 5 has always been to insure that
no voting-procedure changes would be made that would lead to a
retrogression in the position of racial minorities with respect to
their effective exercise of the electoral franchise." 425 U. S., at
141. The Justice Department's maximization policy seems quite far
removed from this purpose. We are especially reluctant to conclude
that § 5 justifies that policy given the serious constitutional
concerns it raises. In
South Carolina v.
Katzenbach,
383 U. S. 301 (1966), we upheld § 5 as a necessary
and constitutional response to some States' "extraordinary
stratagem[sJ of contriving new rules of various kinds for the sole
purpose of perpetuating voting discrimination in the face of
adverse federal court decrees."
Id., at 335 (footnote
omitted); see also
City of Rome v.
United States, 446
U. S., at 173-183. But our belief in
Katzenbach that the
federalism costs exacted by § 5 preclearance could be justified by
those extraordinary circumstances does not
927
mean they can be justified in the circumstances of this
litigation. And the Justice Department's implicit command that
States engage in presumptively unconstitutional race-based
districting brings the Act, once upheld as a proper exercise of
Congress' authority under § 2 of the Fifteenth Amendment,
Katzenbach, supra, at 327, 337, into tension with the
Fourteenth Amendment. As we recalled in
Katzenbach itself,
Congress' exercise of its Fifteenth Amendment authority even when
otherwise proper still must" 'consist with the letter and spirit of
the constitution.'" 383 U. S., at 326 (quoting
McCulloch v.
Maryland, 4 Wheat. 316, 421 (1819)). We need not, however,
resolve these troubling and difficult constitutional questions
today. There is no indication Congress intended such a far-reaching
application of § 5, so we reject the Justice Department's
interpretation of the statute and avoid the constitutional problems
that interpretation raises. See,
e. g., DeBartolo Corp. v.
Florida Gulf Coast Trades Council, 485 U. S., at 575.
IV
The Act, and its grant of authority to the federal courts to
uncover official efforts to abridge minorities' right to vote, has
been of vital importance in eradicating invidious discrimination
from the electoral process and enhancing the legitimacy of our
political institutions. Only if our political system and our
society cleanse themselves of that discrimination will all members
of the polity share an equal opportunity to gain public office
regardless of race. As a Nation we share both the obligation and
the aspiration of working toward this end. The end is neither
assured nor well served, however, by carving electorates into
racial blocs. "If our society is to continue to progress as a
multiracial democracy, it must recognize that the automatic
invocation of race stereotypes retards that progress and causes
continued hurt and injury."
Edmondson v.
Leesville
Concrete Co., 500 U. S. 614, 630-631 (1991). It
takes a shortsighted and
928
unauthorized view of the Voting Rights Act to invoke that
statute, which has played a decisive role in redressing some of our
worst forms of discrimination, to demand the very racial
stereotyping the Fourteenth Amendment forbids.
***
The judgment of the District Court is affirmed, and the cases
are remanded for further proceedings consistent with this
decision.
It is so ordered.
[Appendices A and B, containing a map of Georgia congressional
districts and a population density map of the 11th Congressional
District of Georgia, follow this page.]
JUSTICE O'CONNOR, concurring.
I understand the threshold standard the Court adoptsthat "the
legislature subordinated traditional race-neutral districting
principles ... to racial considerations,"
ante, at 916-to be
a demanding one. To invoke strict scrutiny, a plaintiff must show
that the State has relied on race in substantial disregard of
customary and traditional districting practices. Those practices
provide a crucial frame of reference and therefore constitute a
significant governing principle in cases of this kind. The standard
would be no different if a legislature had drawn the boundaries to
favor some other ethnic group; certainly the standard does not
treat efforts to create majority-minority districts
less
favorably than similar efforts on behalf of other groups. Indeed,
the driving force behind the adoption of the Fourteenth Amendment
was the desire to end legal discrimination against blacks.
Application of the Court's standard does not throw into doubt
the vast majority of the Nation's 435 congressional districts,
where presumably the States have drawn the boundaries in accordance
with their customary districting principles. That is so even though
race may well have been
929
Georgia Congressional Districts (1992)
930
People Per Square Mile D Oto 10
D 10to 100
100 to 1,000
1,000 to 10,000
• 10,000 to 100,000
100,000 to 1,000,000
Population Density Map
11th Congressional District of Georgia
APPENDIX B
931
considered in the redistricting process. See
Shaw v.
Reno, 509 U. S. 630, 646 (1993);
ante, at 916. But application of the Court's standard helps
achieve
Shaw's basic objective of making extreme instances
of gerrymandering subject to meaningful judicial review. I
therefore join the Court's opinion.
JUSTICE STEVENS, dissenting.
JUSTICE GINSBURG has explained why the District Court's opinion
on the merits was erroneous and why this Court's law-changing
decision will breed unproductive litigation. I join her excellent
opinion without reservation. I add these comments because I believe
the appellees in these cases, like the appellees in
United
States v.
Hays, ante, p. 737, have not suffered any
legally cognizable injury.
In
Shaw v.
Reno, 509 U. S. 630
(1993), the Court crafted a new cause of action with two novel,
troubling features. First, the Court misapplied the term
"gerrymander," previously used to describe grotesque line-drawing
by a dominant group to maintain or enhance its political power at a
minority's expense, to condemn the efforts of a majority (whites)
to share its power with a minority (AfricanAmericans). Second, the
Court dispensed with its previous insistence in vote dilution cases
on a showing of injury to an identifiable group of voters, but it
failed to explain adequately what showing a plaintiff must make to
establish standing to litigate the newly minted
Shaw claim.
Neither in
Shaw itself nor in the cases decided today has
the Court coherently articulated what injury this cause of action
is designed to redress. Because appellees have alleged no legally
cognizable injury, they lack standing, and these cases should be
dismissed. See
Hays, ante, at 750-751 (STEVENS, J.,
concurring in judgment).
Even assuming the validity of
Shaw, I cannot see how
appellees in these cases could assert the injury the Court
attributes to them. Appellees, plaintiffs below, are white
932
voters in Georgia's Eleventh Congressional District. The Court's
conclusion that they have standing to maintain a
Shaw claim
appears to rest on a theory that their placement in the Eleventh
District caused them "'representational harms.'"
Hays, ante,
at 744, cited
ante, at 909. The
Shaw Court explained
the concept of "representational harms" as follows: "When a
district obviously is created solely to effectuate the perceived
common interests of one racial group, elected officials are more
likely to believe that their primary obligation is to represent
only the members of that group, rather than their constituency as a
whole."
Shaw, 509 U. S., at 648. Although the
Shaw
Court attributed representational harms solely to a message sent by
the legislature's action, those harms can only come about if the
message is received-that is, first, if all or most black voters
support the same candidate, and, second, if the successful
candidate ignores the interests of her white constituents.
Appellees' standing, in other words, ultimately depends on the very
premise the Court purports to abhor: that voters of a particular
race "'think alike, share the same political interests, and will
prefer the same candidates at the polls.'"
Ante, at 912
(quoting
Shaw, 509 U. S., at 647). This generalization, as
the Court recognizes, is "offensive and demeaning."
Ante, at
912.
In particular instances, of course, members of one race may vote
by an overwhelming margin for one candidate, and in some cases that
candidate will be of the same race. "Racially polarized voting" is
one of the circumstances plaintiffs must prove to advance a vote
dilution claim.
Thornburg v.
Gingles, 478
U. S. 30, 56-58 (1986). Such a claim allows voters to allege
that gerrymandered district lines have impaired their ability to
elect a candidate of their own race. The Court emphasizes, however,
that a so-called
Shaw claim is "'analytically distinct' from
a vote dilution claim,"
ante, at 911 (quoting
Shaw,
509 U. S., at 652). Neither in
Shaw, nor in
Hays, nor
in the instant cases has the Court answered the
933
question its analytic distinction raises: If the
Shaw
injury does not flow from an increased probability that white
candidates will lose, then how can the increased probability that
black candidates will win cause white voters, such as appellees,
cognizable harm? 1
The Court attempts an explanation in these cases by equating the
injury it imagines appellees have suffered with the injuries
African-Americans suffered under segregation. The heart of
appellees' claim, by the Court's account, is that "a State's
assignment of voters on the basis of race,"
ante, at 915,
violates the Equal Protection Clause for the same reason a State
may not "segregate citizens on the basis of race in its public
parks,
New Orleans City Park Improvement Assn. v.
Detiege, 358 U. S. 54 (1958)
(per
curiam), buses,
Gayle v.
Browder, 352 U. S. 903
(1956)
(per curiam), golf courses,
Holmes v.
Atlanta, 350 U. S. 879 (1955)
(per curiam), beaches,
Mayor of Baltimore v.
Dawson, 350 U. S. 877 (1955)
(per curiam), and schools,
Brown v.
Board of
Education, 347 U. S. 483 (1954)."
Ante,
at 911. This equation, however, fails to elucidate the elusive
Shaw injury. Our desegregation cases redressed the
exclusion of black citizens from public facilities reserved
for whites. In these cases, in contrast, any voter, black or white,
may live in the Eleventh District. What appellees contest is the
inclusion of too many black voters in the district as drawn.
In my view, if appellees allege no vote dilution, that inclusion
can cause them no conceivable injury.
The Court's equation of
Shaw claims with our
desegregation decisions is inappropriate for another reason. In
each of those cases, legal segregation frustrated the public
interest in diversity and tolerance by barring
African-Americans
1 White voters obviously lack standing to complain of the other
injury the Court has recognized under
Shaw: the stigma
blacks supposedly suffer when assigned to a district because of
their race. See
Hays, ante, at 744; cf.
Adarand
Constrnctors, Inc. v.
Pena, ante, at 247-248, n. 5
(STEVENS, J., dissenting).
934
from joining whites in the activities at issue. The districting
plan here, in contrast, serves the interest in diversity and
tolerance by increasing the likelihood that a meaningful number of
black representatives will add their voices to legislative debates.
See
post, at 947-948 (GINSBURG, J., dissenting). "There is
no moral or constitutional equivalence between a policy that is
designed to perpetuate a caste system and one that seeks to
eradicate racial subordination."
Adarand Constructors, Inc.
v.
Pena, ante, at 243 (STEVENS, J., dissenting); see also
Adarand, ante, at 247-248, n. 5 (STEVENS, J., dissenting).
That racial integration of the sort attempted by Georgia now
appears more vulnerable to judicial challenge than some policies
alleged to perpetuate racial bias, cf.
Allen v.
Wright, 468 U. S. 737 (1984), is anomalous,
to say the least.
Equally distressing is the Court's equation of traditional
gerrymanders, designed to maintain or enhance a dominant group's
power, with a dominant group's decision to share its power with a
previously underrepresented group. In my view, districting plans
violate the Equal Protection Clause when they "serve no 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). In contrast, I do not see how a districting plan that
favors a politically weak group can violate equal protection. The
Constitution does not mandate any form of proportional
representation, but it certainly permits a State to adopt a policy
that promotes fair representation of different groups. Indeed, this
Court squarely so held in
Gaffney v.
Cummings,
412 U. S. 735 (1973):
"[N]either we nor the district courts have a constitutional
warrant to invalidate a state plan, otherwise
935
within tolerable population limits, because it undertakes, not
to minimize or eliminate the political strength of any group or
party, but to recognize it and, through districting, provide a
rough sort of proportional representation in the legislative halls
of the State." Id., at 754.
The Court's refusal to distinguish an enactment that helps a
minority group from enactments that cause it harm is especially
unfortunate at the intersection of race and voting, given that
African-Americans and other disadvantaged groups have struggled so
long and so hard for inclusion in that most central exercise of our
democracy. See
post, at 936-938 (GINSBURG, J., dissenting).
I have long believed that treating racial groups differently from
other identifiable groups of voters, as the Court does today, is
itself an invidious racial classification. Racial minorities should
receive neither more nor less protection than other groups against
gerrymanders.2
A fortiori, racial minorities should not be
less eligible than other groups to benefit from districting plans
the majority designs to aid them.
I respectfully dissent.
2 "In my opinion an interpretation of the Constitution which
afforded one kind of political protection to blacks and another
kind to members of other identifiable groups would itself be
invidious. Respect for the citizenry in the black community compels
acceptance of the fact that in the long run there is no more
certainty that these individuals will vote alike than will
individual members of any other ethnic, economic, or social group.
The probability of parallel voting fluctuates as the blend of
political issues affecting the outcome of an election changes from
time to time to emphasize one issue, or a few, rather than others,
as dominant. The facts that a political group has its own history,
has suffered its own special injustices, and has its own congeries
of special political interests, do not make one such group
different from any other in the eyes of the law. The members of
each go to the polls with equal dignity and with an equal right to
be protected from invidious discrimination."
Cousins v.
City Council of Chicago, 466 F.2d
830, 852
(CA7 1972) (Stevens, J., dissenting).
936
JUSTICE GINSBURG, with whom JUSTICE STEVENS and JUSTICE BREYER
join, and with whom JUSTICE SOUTER joins except as to Part III -B,
dissenting.
Legislative districting is highly political business. This Court
has generally respected the competence of state legislatures to
attend to the task. When race is the issue, however, we have
recognized the need for judicial intervention to prevent dilution
of minority voting strength. Generations of rank discrimination
against African-Americans, as citizens and voters, account for that
surveillance.
Two Terms ago, in
Shaw v.
Reno, 509 U.
S. 630 (1993), this Court took up a claim "analytically
distinct" from a vote dilution claim.
Id., at 652.
Shaw authorized judicial intervention in "extremely
irregular" apportionments, id., at 642, in which the legislature
cast aside traditional districting practices to consider race
alone-in the
Shaw case, to create a district in North
Carolina in which African-Americans would compose a majority of the
voters.
Today the Court expands the judicial role, announcing that
federal courts are to undertake searching review of any district
with contours "predominant[ly] motivat[ed]" by race: "[S]trict
scrutiny" will be triggered not only when traditional districting
practices are abandoned, but also when those practices are
"subordinated to"-given less weight than-race. See
ante, at
916. Applying this new "raceas-predominant-factor" standard, the
Court invalidates Georgia's districting plan even though Georgia's
Eleventh District, the focus of today's dispute, bears the imprint
of familiar districting practices. Because I do not endorse the
Court's new standard and would not upset Georgia's plan, I
dissent.
I
At the outset, it may be useful to note points on which the
Court does not divide. First, we agree that federalism and the slim
judicial competence to draw district lines weigh
937
heavily against judicial intervention in apportionment
decisions; as a rule, the task should remain within the domain of
state legislatures. See
ante, at 915;
Reynolds v.
Sims, 377 U. S. 533, 586 (1964) ("[L]egislative
reapportionment is primarily a matter for legislative consideration
and determination .... "). Second, for most of our Nation's
history, the franchise has not been enjoyed equally by black
citizens and white voters. To redress past wrongs and to avert any
recurrence of exclusion of blacks from political processes, federal
courts now respond to Equal Protection Clause and Voting Rights Act
complaints of state action that dilutes minority voting strength.
See,
e. g., Thornburg v.
Gingles, 478 U.
S. 30 (1986);
White v.
Regester, 412
U. S. 755 (1973). Third, to meet statutory requirements, state
legislatures must sometimes consider race as a factor highly
relevant to the drawing of district lines. See Pildes & Niemi,
Expressive Harms, "Bizarre Districts," and Voting Rights:
Evaluating Election-District Appearances After
Shaw v.
Reno, 92 Mich. L. Rev. 483, 496 (1993) ("compliance with the
[Voting Rights Act] and
Gingles necessarily requires
race-conscious districting"). Finally, state legislatures may
recognize communities that have a particular racial or ethnic
makeup, even in the absence of any compulsion to do so, in order to
account for interests common to or shared by the persons grouped
together. See
Shaw, 509 U. S., at 646 ("[W]hen members of a
racial group live together in one community, a reapportionment plan
that concentrates members of the group in one district and excludes
them from others may reflect wholly legitimate purposes.").
Therefore, the fact that the Georgia General Assembly took
account of race in drawing district lines-a fact not in
dispute-does not render the State's plan invalid. To offend the
Equal Protection Clause, all agree, the legislature had to do more
than consider race. How much more, is the issue that divides the
Court today.
938
A
"We say once again what has been said on many occasions:
reapportionment is primarily the duty and responsibility of the
State through its legislature or other body, rather than of a
federal court."
Chapman v.
Meier, 420 U.
S. 1, 27 (1975); see also
ante, at 915. The Constitution
itself allocates this responsibility to States. U. S. Const., Art.
I, § 2;
Growe v.
Emison, 507 U. S.
25, 34 (1993).
"Districting inevitably has sharp political impact and
inevitably political decisions must be made by those charged with
the task."
White v.
Weiser, 412 U. S.
783, 795-796 (1973). District lines are drawn to accommodate a
myriad of factors-geographic, economic, historical, and
political-and state legislatures, as arenas of compromise and
electoral accountability, are best positioned to mediate competing
claims; courts, with a mandate to adjudicate, are ill equipped for
the task.
B
Federal courts have ventured into the political thicket of
apportionment when necessary to secure to members of racial
minorities equal voting rights-rights denied in many States,
including Georgia, until not long ago.
The Fifteenth Amendment, ratified in 1870, declares that the
right to vote "shall not be denied ... by any State on account of
race." That declaration, for generations, was often honored in the
breach; it was greeted by a near century of "unremitting and
ingenious defiance" in several States, including Georgia.
South
Carolina v.
Katzenbach, 383 U. S. 301,
309 (1966). After a brief interlude of black suffrage enforced by
federal troops but accompanied by rampant violence against blacks,
Georgia held a constitutional convention in 1877. Its purpose,
according to the convention's leader, was to "'fix it so that the
people shall rule and the Negro shall never be heard from.'"
McDonald, Binford, & Johnson, Georgia, in Quiet Revolution in
the South 68 (C. David-
939
son & B. Grofman eds. 1994) (quoting Robert Toombs). In
pursuit of this objective, Georgia enacted a cumulative poll tax,
requiring voters to show they had paid past as well as current poll
taxes; one historian described this tax as the "most effective bar
to Negro suffrage ever devised." A. Stone, Studies in the American
Race Problem 354-355 (1908).
In 1890, the Georgia General Assembly authorized "white
primaries"; keeping blacks out of the Democratic primary
effectively excluded them from Georgia's political life, for
victory in the Democratic primary was tantamount to election.
McDonald, Binford, & Johnson,
supra, at 68-69. Early in
this century, Georgia Governor Hoke Smith persuaded the legislature
to pass the "Disenfranchisement Act of 1908"; true to its title,
this measure added various property, "good character," and literacy
requirements that, as administered, served to keep blacks from
voting.
Id., at 69; see also
Katzenbach, 383 U. S.,
at 310 (tests of this order were "specifically designed to prevent
Negroes from voting"). The result, as one commentator observed 25
years later, was an "'almost absolute exclusion of the Negro voice
in state and federal elections.'" McDonald, Binford, & Johnson,
supra, at 70 (quoting R. Wardlaw, Negro Suffrage in Georgia,
1867-1930, p. 69 (unpublished 1932)).
Faced with a political situation scarcely open to
selfcorrection-disenfranchised blacks had no electoral influence,
hence no muscle to lobby the legislature for changethe Court
intervened. It invalidated white primaries, see
Smith v.
Allwright, 321 U. S. 649 (1944), and other
burdens on minority voting. See,
e. g., Schnell v.
Davis, 336 U. S. 933 (1949)
(per curiam)
(discriminatory application of voting tests);
Lane v.
Wilson, 307 U. S. 268 (1939) (procedural
hurdles);
Guinn v.
United States, 238 U.
S. 347 (1915) (grandfather clauses).
It was against this backdrop that the Court, construing the
Equal Protection Clause, undertook to ensure that ap-
940
portionment plans do not dilute minority voting strength. See,
e. g., Rogers v.
Lodge, 458 U. S.
613, 617 (1982);
Regester, 412 U. S., at 765;
Wright v.
Rockefeller, 376 U. S. 52,
57 (1964). By enacting the Voting Rights Act of 1965, Congress
heightened federal judicial involvement in apportionment, and also
fashioned a role for the Attorney General. Section 2 creates a
federal right of action to challenge vote dilution. Section 5
requires States with a history of discrimination to preclear any
changes in voting practices with either a federal court (a
three-judge United States District Court for the District of
Columbia) or the Attorney General.
These Court decisions and congressional directions significantly
reduced voting discrimination against minorities. In the 1972
election, Georgia gained its first black Member of Congress since
Reconstruction, and the 1981 apportionment created the State's
first majority-minority district.1 This voting district, however,
was not gained easily. Georgia created it only after the United
States District Court for the District of Columbia refused to
preclear a predecessor apportionment plan that included no such
district-an omission due in part to the influence of Joe Mack
Wilson, then Chairman of the Georgia House Reapportionment
Committee. As Wilson put it only 14 years ago, "'I don't want to
draw nigger districts.'"
Busbee v.
Smith, 549 F.
Supp. 494, 501 (DC 1982).
II A
Before
Shaw v.
Reno, 509 U. S. 630
(1993), this Court invoked the Equal Protection Clause to justify
intervention in the quintessentially political task of legislative
districting in two circumstances: to enforce the
one-person-one-vote requirement, see
Reynolds v.
Sims, 377 U. S. 533 (1964); and
1 Georgia's population is approximately 27 percent black. 864 F.
Supp. 1354, 1385 (SD Ga. 1994).
941
to prevent dilution of a minority group's voting strength, see
Regester, 412 U. S., at 765;
Wright, 376 U. S., at
57.2
In
Shaw, the Court recognized a third basis for an equal
protection challenge to a State's apportionment plan. The Court
wrote cautiously, emphasizing that judicial intervention is
exceptional: Strict judicial scrutiny is in order, the Court
declared, if a district 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." 509 U. S., at 642.
"[E]xtrem[e] irregular[ity]" was evident in
Shaw, the
Court explained, setting out this description of the North Carolina
voting district under examination:
"It is approximately 160 miles long and, for much of its length,
no wider than the 1-85 corridor. It winds in snakelike fashion
through tobacco country, financial centers, and manufacturing areas
until it gobbles in enough enclaves of black neighborhoods.
Northbound and southbound drivers on 1-85 sometimes find themselves
in separate districts in one county, only to 'trade' districts when
they enter the next county. Of the 10 counties through which
District 12 passes, 5 are cut into 3 different districts; even
towns are divided. At one point the district remains contiguous
only because it intersects at a single point with two other
districts before crossing over them. One state legislator has
remarked that' "[i]f you drove down the interstate with both
car
2 In the vote dilution category,
Gomillion v.
Lightfoot, 364 U. S. 339 (1960), was a
pathmarker. There, the city of Tuskegee redrew its boundaries to
exclude black voters. This apportionment was unconstitutional not
simply because it was motivated by race, but notably because it had
a dilutive effect: It disenfranchised Tuskegee's black community.
See id., at 341 ("The essential inevitable effect of this
redefinition of Tuskegee's boundaries is to remove from the city
all save only four or five of its 400 Negro voters while not
removing a single white voter or resident. The result of the Act is
to deprive the Negro petitioners discriminatorily of the benefits
of residence in Tuskegee, including,
inter alia, the right
to vote in municipal elections.").
942
doors open, you'd kill most of the people in the district.'"
Washington Post, Apr. 20, 1993, p. A4. The district even has
inspired poetry: 'Ask not for whom the line is drawn; it is drawn
to avoid thee.' Grofman, Would Vince Lombardi Have Been Right If He
Had Said: 'When It Comes to Redistricting, Race Isn't Everything,
It's the Only Thing'?, 14 Cardozo L. Rev. 1237, 1261, n. 96 (1993)
(internal quotation marks omitted)." Id., at 635-636 (some
citations and internal quotation marks omitted).
The problem in
Shaw was not the plan architects'
consideration of race as relevant in redistricting. Rather, in the
Court's estimation, it was the virtual exclusion of other factors
from the calculus. Traditional districting practices were cast
aside, the Court concluded, with race alone steering placement of
district lines.
B
The record before us does not show that race similarly
overwhelmed traditional districting practices in Georgia. Although
the Georgia General Assembly prominently considered race in shaping
the Eleventh District, race did not crowd out all other factors, as
the Court found it did in North Carolina's delineation of the
Shaw district.
In contrast to the snake-like North Carolina district inspected
in
Shaw, Georgia's Eleventh District is hardly "bizarre,"
"extremely irregular," or "irrational on its face."
Id., at
642, 644, 658. Instead, the Eleventh District's design reflects
significant consideration of "traditional districting factors (such
as keeping political subdivisions intact) and the usual political
process of compromise and trades for a variety of nonracial
reasons." 864 F. Supp. 1354, 1397, n. 5 (SD Ga. 1994) (Edmondson,
J., dissenting); cf.
ante, at 917 ("geometric shape of the
Eleventh District may not seem bizarre on its face"). The district
covers a core area in central and east-
943
ern Georgia, and its total land area of 6,780 square miles is
about average for the State. Defendant's Exh. 177, p. 4.3 The
border of the Eleventh District runs 1,184 miles, in line with
Georgia's Second District, which has a 1,243-mile border, and the
State's Eighth District, with a border running 1,155 miles. See 864
F. Supp., at 1396 (Edmondson, J., dissenting).4
Nor does the Eleventh District disrespect the boundaries of
political subdivisions. Of the 22 counties in the district, 14 are
intact and 8 are divided. See Joint Exh. 17. That puts the Eleventh
District at about the state average in divided counties. By
contrast, of the Sixth District's five counties, none are intact,
ibid., and of the Fourth District's four counties, just one
is intact.
Ibid.5 Seventy-one percent of the Eleventh
District's boundaries track the borders of political subdivisions.
See 864 F. Supp., at 1396 (Edmondson, J., dissenting). Of the
State's 11 districts, 5 score worse than the Eleventh District on
this criterion, and 5 score bet-
3 Georgia's First, Second, and Eighth Districts each have a
total area of over 10,100 square miles. 864 F. Supp., at 1396
(Edmondson, J., dissenting).
4 Although the Eleventh District comes within 58 miles of
crossing the entire State, this is not unusual in Georgia: The
Ninth District spans the State's entire northern border, and the
First, Second, and Eighth Districts begin at the Florida border and
stretch north to almost the middle of the State. See ibid.
(Edmondson, J., dissenting). In the 1980's, Georgia's Eighth
District extended even farther, in an irregular pattern from the
southeast border with Florida to nearly the Atlanta suburbs. See
App.80.
5 The First District has 20 intact counties and parts of 2
others. The Second District has 23 intact counties and parts of 12
others. The Third District has 8 intact counties and parts of 8
others. The Fifth District is composed of parts of 4 counties. The
Seventh District has 10 intact counties and part of 1 county. The
Eighth District has 22 intact counties and parts of 10 others. The
Ninth District has 19 intact counties and part of 1 other. The
Tenth District has 16 intact counties and parts of 3 others. See
Joint Exh. 17.
944
ter. See Defendant's Exh. 177, p. 4.6 Eighty-three percent of
the Eleventh District's geographic area is composed of intact
counties, above average for the State's congressional districts.
864 F. Supp., at 1396 (Edmondson, J., dissenting).7 And notably,
the Eleventh District's boundaries largely follow precinct
lines.8
Evidence at trial similarly shows that considerations other than
race went into determining the Eleventh District's boundaries. For
a "political reason"-to accommodate the request of an incumbent
State Senator regarding the placement of the precinct in which his
son lived-the DeKalb County portion of the Eleventh District was
drawn to include a particular (largely white) precinct. 2 Tr. 187,
202. The corridor through Effingham County was substantially
narrowed at the request of a (white) State Representative. 2 Tr.
189-190, 212-214. In Chatham County, the district was trimmed to
exclude a heavily black community in Garden City because a State
Representative wanted to keep the city intact inside the
neighboring First District. 2 Tr. 218219. The Savannah extension
was configured by "the narrowest means possible" to avoid splitting
the city of Port Wentworth. 4 Tr. 172-174, 175-178, 181-183.
6 The Sixth District scores lowest, with just 45 percent of its
boundaries following political subdivision lines. The Ninth
District rates highest, with 91 percent. Defendant's Exh. 177, p.
3.
7 On this measure, only three districts-the First, Seventh, and
Ninthrate higher than the Eleventh District. Excluding the Fifth
and Sixth Districts, which contain no intact counties, the scores
range from about 30 percent for the Fourth District to 97 percent
for the Seventh District.
Id., at 4.
8 The Court turns the significance of this fact on its head by
stating: "'While the boundaries of the Eleventh do indeed follow
many precinct lines, this is because Ms. Meggers designed the
Eleventh District along racial lines, and race data was most
accessible to her at the precinct level.' "
Ante, at 919
(quoting 864 F. Supp., at 1384). To this curious comment, one can
only demur. Yes, Georgia's plan considered race, but by following
precinct lines, it did so in an altogether proper way, i.
e., without disregarding traditional districting
practices.
945
Georgia's Eleventh District, in sum, is not an outlier district
shaped without reference to familiar districting techniques.
Tellingly, the district that the Court's decision today unsettles
is not among those on a statistically calculated list of the 28
most bizarre districts in the United States, a study prepared in
the wake of our decision in
Shaw. See Pildes & Niemi, 92
Mich. L. Rev., at 565.
C
The Court suggests that it was not Georgia's Legislature, but
the U. S. Department of Justice, that effectively drew the lines,
and that Department officers did so with nothing but race in mind.
Yet the "Max-Black" plan advanced by the Attorney General was not
the plan passed by the Georgia General Assembly.9 See 864 F. Supp.,
at 1396-1397, n. 5 (Edmondson, J., dissenting) ("The Max-Black plan
did influence to some degree the shape of the ultimate Eleventh
District .... [But] the actual Eleventh is not identical to the
Max-Black plan. The Eleventh, to my eye, is significantly different
in shape in many ways. These differences show ... consideration of
other matters beyond race .... ").10
And although the Attorney General refused preclearance to the
first two plans approved by Georgia's Legislature, the State was
not thereby disarmed; Georgia could have demanded relief from the
Department's objections by instituting a civil action in the United
States District Court for the District of Columbia, with ultimate
review in this Court. Instead of pursuing that avenue, the State
chose to adopt the plan here in controversy-a plan the State
forcefully defends
9 Appendixes A, B, and C to this opinion depict, respectively,
the proposed Eleventh District under the "Max-Black" plan,
Georgia's current congressional districts, and the district in
controversy in
Shaw.
10 Indeed, a "key" feature,
ante, at 907, of the
"Max-Black" plan-placing parts of Savannah in the Eleventh
District-first figured in a proposal adopted by Georgia's Senate
even before the Attorney General suggested this course. 864 F.
Supp., at 1394, n. 1 (Edmondson, J., dissenting).
946
before us. We should respect Georgia's choice by taking its
position on brief as genuine.
D
Along with attention to size, shape, and political subdivisions,
the Court recognizes as an appropriate districting principle,
"respect for ... communities defined by actual shared interests."
Ante, at 916. The Court finds no community here, however,
because a report in the record showed "fractured political, social,
and economic interests within the Eleventh District's black
population."
Ante, at 919.
But ethnicity 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. As stated in a classic study
of ethnicity in one city of immigrants:
"[M]any elements-history, family and feeling, interest, formal
organizationallife-operate to keep much of New York life channeled
within the bounds of the ethnic group ... . " ... The political
realm ... is least willing to consider [ethnicity] a purely private
affair ....
"[P]olitical life itself emphasizes the ethnic character of the
city, with its balanced tickets and its special appeals .... " N.
Glazer & D. Moynihan, Beyond the Melting Pot 19-20 (1963).
See also,
e. g., E. Litt, Beyond Pluralism: Ethnic
Politics in America 2 (1970) ("[E]thnic forces playa surprisingly
persistent role in our politics."); Ethnic Group Politics, Preface
ix (H. Bailey & E. Katz eds. 1969) ("[E]thnic identifications
do exist and ... one cannot really understand the American
political process without giving special attention to racial,
religious and national minorities.").
To accommodate the reality of ethnic bonds, legislatures have
long drawn voting districts along ethnic lines. Our
947
Nation's cities are full of districts identified by their ethnic
character-Chinese, Irish, Italian, Jewish, Polish, Russian, for
example. See,
e. g., S. Erie, Rainbow's End: IrishAmericans
and the Dilemmas of Urban Machine Politics, 1840-1985, p. 91 (1988)
(describing Jersey City's "Horseshoe district" as "lumping most of
the city's Irish together"); Coveted Landmarks Add a Twist to
Redistricting Task, Los Angeles Times, Sept. 10, 1991, pp. Ai, A24
("In San Francisco in 1961, ... an Irish Catholic [State Assembly
member] 'wanted his district drawn following [Catholic] parish
lines so all the parishes where he went to baptisms, weddings and
funerals would be in his district' .... "); Stone, Goode:
Bad and Indifferent, Washington Monthly, July-Aug. 1986, pp. 27,
28 (discussing "The Law of Ethnic Loyalty- ... a universal law of
politics," and identifying "predominantly Italian wards of South
Philadelphia," a "Jewish Los Angeles district," and a "Polish
district in Chicago"). The creation of ethnic districts reflecting
felt identity is not ordinarily viewed as offensive or demeaning to
those included in the delineation.
III
To separate permissible and impermissible use of race in
legislative apportionment, the Court orders strict scrutiny for
districting plans "predominantly motivated" by race. No longer can
a State avoid judicial oversight by giving-as in this case-genuine
and measurable consideration to traditional districting practices.
Instead, a federal case can be mounted whenever plaintiffs
plausibly allege that other factors carried less weight than race.
This invitation to litigate against the State seems to me neither
necessary nor proper.
A
The Court derives its test from diverse opinions on the
relevance of race in contexts distinctly unlike apportionment.
948
See
ante, at
911-912.11 The controlling idea, the
Court says, is "'the simple command [at the heart of the
Constitution's guarantee of equal protection] that the Government
must treat citizens as individuals, not as simply components of a
racial, religious, sexual or national class.' " See
ante, at
911 (quoting
Metro Broadcasting, Inc. v.
FCC,
497 U. S. 547, 602 (1990) (O'CONNOR, J.,
dissenting)) (some internal quotation marks omitted). But cf.
Strauder v.
West Virginia, 100 U. S.
303, 307 (1880) (pervading purpose of post-Civil War Amendments
was to bar discrimination against once-enslaved race).
11 I would follow precedent directly on point. In
United
Jewish Organizations of Williams burgh, Inc. v.
Carey,
430 U. S. 144 (1977)
(UJO), even though the
State "deliberately used race in a purposeful manner" to create
majority-minority districts, id., at 165 (opinion of White, J.,
joined by REHNQUIST and STEVENS, JJ.), seven of eight Justices
participating voted to uphold the State's plan without subjecting
it to strict scrutiny. Five Justices specifically agreed that the
intentional creation of majorityminority districts does not give
rise to an equal protection claim, absent proof that the
districting diluted the majority's voting strength. See
ibid. (opinion of White, J., joined by REHNQUIST and
STEVENS, JJ.); id., at 179180 (Stewart, J., concurring in judgment,
joined by Powell, J.).
Nor is
UJO best understood as a vote dilution case.
Petitioners' claim in
UJO was that the State had "violated
the Fourteenth and Fifteenth Amendments by
deliberately revising
its reapportionment plan along raciallines." Id., at 155
(opinion of White, J., joined by Brennan, Blackmun, and STEVENS,
JJ.) (emphasis added). Petitioners themselves stated: "'Our
argument is ... that the history of the area demonstrates that
there could be-and in fact was-no
reason other than race to
divide the community at this time.'''
Id., at 154, n. 14
(quoting Brief for Petitioners, O. T. 1976, No. 75-104, p. 6, n. 6)
(emphasis in Brief for Petitioners).
Though much like the claim in
Shaw, the
UJO claim
failed because the
U JO district adhered to traditional
districting practices. See 430 U. S., at 168 (opinion of White, J.,
joined by REHNQUIST and STEVENS, JJ.) ("[W]e think it ...
permissible for a State,
employing sound districting principles
such as compactness and population equality, ... [to] creat[e]
districts that will afford fair representation to the members of
those racial groups who are sufficiently numerous
and whose
residential patterns afford the opportunity of creating
districts in which they will be in the majority.") (emphasis
added).
949
In adopting districting plans, however, States do not treat
people as individuals. Apportionment schemes, by their very nature,
assemble people in groups. States do not assign voters to districts
based on merit or achievement, standards States might use in hiring
employees or engaging contractors. Rather, legislators classify
voters in groupsby economic, geographical, political, or social
characteristics-and then "reconcile the competing claims of [these]
groups."
Davis v.
Bandemer, 478 U. S.
109, 147 (1986) (O'CONNOR, J., concurring in judgment).
That ethnicity defines some of these groups is a political
reality. Until now, no constitutional infirmity has been seen in
districting Irish or Italian voters together, for example, so long
as the delineation does not abandon familiar apportionment
practices. See
supra, at 944-945. If Chinese-Americans and
Russian-Americans may seek and secure group recognition in the
delineation of voting districts, then African-Americans should not
be dissimilarly treated. Otherwise, in the name of equal
protection, we would shut out "the very minority group whose
history in the United States gave birth to the Equal Protection
Clause." See
Shaw, 509 U. S., at 679 (STEVENS, J.,
dissenting).12
B
Under the Court's approach, judicial review of the same
intensity, i.
e., strict scrutiny, is in order once it is
determined that an apportionment is predominantly motivated by
race. It matters not at all, in this new regime, whether the
apportionment dilutes or enhances minority voting strength. As very
recently observed, however, "[t]here is no moral or
12 Race-conscious practices a State may elect to pursue, of
course, are not as limited as those it may be required to pursue.
See
Voinovich v.
Quilter, 507 U. S.
146, 156 (1993) ("[F]ederal courts may not order the creation
of majority-minority districts unless necessary to remedy a
violation of federal law. But that does not mean that the State's
powers are similarly limited. Quite the opposite is true .... ")
(citation omitted).
950
constitutional equivalence between a policy that is designed to
perpetuate a caste system and one that seeks to eradicate racial
subordination."
Adarand Constructors, Inc. v.
Pena,
ante, at 243 (STEVENS, J., dissenting).
Special circumstances justify vigilant judicial inspection to
protect minority voters-circumstances that do not apply to majority
voters. A history of exclusion from state politics left racial
minorities without clout to extract provisions for fair
representation in the lawmaking forum. See
supra, at
936-938. The equal protection rights of minority voters thus could
have remained unrealized absent the Judiciary's close surveillance.
Cf.
United States v.
Carolene Products Co., 304 U. S. 144, 153, n. 4 (1938) (referring to the "more
searching judicial inquiry" that may properly attend
classifications adversely affecting "discrete and insular
minorities"). The majority, by definition, encounters no such
blockage. White voters in Georgia do not lack means to exert strong
pressure on their state legislators. The force of their numbers is
itself a powerful determiner of what the legislature will do that
does not coincide with perceived majority interests.
State legislatures like Georgia's today operate under federal
constraints imposed by the Voting Rights Act-constraints justified
by history and designed by Congress to make once-subordinated
people free and equal citizens. But these federal constraints do
not leave majority voters in need of extraordinary judicial
solicitude. The Attorney General, who administers the Voting Rights
Act's preclearance requirements, is herself a political actor. She
has a duty to enforce the law Congress passed, and she is no doubt
aware of the political cost of venturing too far to the detriment
of majority voters. Majority voters, furthermore, can press the
State to seek judicial review if the Attorney General refuses to
preclear a plan that the voters favor. Finally, the Act is itself a
political measure, subject to modification in the political
process.
951
C
The Court's disposition renders redistricting perilous work for
state legislatures. Statutory mandates and political realities may
require States to consider race when drawing district lines. See
supra, at 935. But today's decision is a counterforce; it
opens the way for federal litigation if "traditional ...
districting principles" arguably were accorded less weight than
race. See
ante, at 916. Genuine attention to traditional
districting practices and avoidance of bizarre configurations
seemed, under
Shaw, to provide a safe harbor. See 509 U. S.,
at 647 ("[T]raditional districting principles such as compactness,
contiguity, and respect for political subdivisions ... are
objective factors that may serve to defeat a claim that a district
has been gerrymandered on racial lines."). In view of today's
decision, that is no longer the case.
Only after litigation-under either the Voting Rights Act, the
Court's new
Miller standard, or both-will States now be
assured that plans conscious of race are safe. Federal judges in
large numbers may be drawn into the fray. This enlargement of the
judicial role is unwarranted. The reapportionment plan that
resulted from Georgia's political process merited this Court's
approbation, not its condemnation. Accordingly, I dissent.
[Appendixes A and B, containing maps of Georgia's proposed and
current Eleventh Districts, and Appendix C, containing a map of the
Shaw v.
Reno District, follow this page.]
952
Georgia
APPENDIX B
Current Congressional Districts
Georgia
953
North Carolina
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