OCTOBER TERM, 1995
Syllabus
SHAW ET AL.
v. HUNT, GOVERNOR OF NORTH CAROLINA, ET
AL.
APPEAL FROM THE DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH
CAROLINA
No. 94-923. Argued December 5, 1995-Decided June 13, 1996*
Earlier in this suit, in
Shaw v.
Reno, 509 U. S. 630, this Court
held that appellants, whose complaint alleged that North Carolina
had deliberately segregated voters by race when it created two
bizarre-looking majority-black congressional districts, Districts 1
and 12, had stated a claim for relief under the Equal Protection
Clause of the Fourteenth Amendment. The Court remanded for further
consideration by the District Court, which held that, although the
North Carolina redistricting plan did classify voters by race, the
classification survived strict scrutiny, and therefore was
constitutional, because it was narrowly tailored to further the
State's compelling interests in complying with §§ 2 and 5 of the
Voting Rights Act of 1965.
Held:
1. Only the two appellants who live in District 12 have standing
to continue this lawsuit, and only with respect to that district.
The remaining appellants, who do not reside in either of the
challenged districts and have not provided specific evidence that
they personally were assigned to their voting districts on the
basis of race, lack standing. See
United States v.
Hays, 515 U.
S. 737. P. 904.
2. The North Carolina plan violates the Equal Protection Clause
because the State's reapportionment scheme is not narrowly tailored
to serve a compelling state interest. Pp. 904-918.
(a) Strict scrutiny applies when race is the "predominant"
consideration in drawing district lines such that "the legislature
subordinates race-neutral districting principles ... to racial
considerations."
Miller v.
Johnson, 515 U. S. 900, 916. The
District Court's finding that the North Carolina General Assembly
"deliberately drew" District 12 so that it would have an effective
voting majority of black citizens, when read in the light of the
evidence as to the district's shape and demographics and the
legislature's objective, comports with the
Miller standard.
In order to justify its redistricting plan, therefore, the State
must show not only that the plan was in pursuit of a compel-
*Together with No. 94-924,
Pope et al. v.
Hunt,
Governor of North Carolina, et al., also on appeal from the
same court.
900
Syllabus
ling state interest, but also that it was narrowly tailored to
achieve that interest.
Id., at 920. Pp. 904-908.
(b) None of the three separate "compelling interests" to which
appellees point suffices to sustain District 12. First, the
District Court found that the State's claimed interest in
eradicating the effects of past discrimination did not actually
precipitate the use of race in the redistricting plan, and the
record does not establish that that finding was clearly erroneous.
Second, the asserted interest in complying with § 5 of the Voting
Rights Act did not justify redistricting here, since creating an
additional majority-black district, as urged by the Justice
Department before it granted preclearance, was not required under a
correct reading of § 5. See
Miller, 515 U. S., at 921. This
Court again rejects the Department's expansive reading of § 5 and
of its own authority thereunder as requiring States to maximize the
number of majorityminority districts wherever possible. See,
e. g., id., at 925. Third, District 12, as drawn, is
not a remedy narrowly tailored to the State's professed interest in
avoiding liability under § 2 of the Act, which,
inter alia,
prohibits dilution of the voting strength of members of a minority
group. District 12 could not remedy any potential § 2 violation,
since the minority group must be shown to be "geographically
compact" to establish §2 liability, see,
e. g., Thornburg v.
Gingles, 478 U.
S. 30, 50, and it cannot reasonably be suggested that District
12 contains a "geographically compact" population of any race.
Appellees are singularly unpersuasive when they argue that a
majority-minority district may be drawn anywhere if there is a
strong basis in evidence for concluding that a § 2 violation exists
somewhere in the State. A district so drawn could not avoid § 2
liability, which targets vote-dilution injury to individuals in a
particular area, not to the minority as a group. Just as in
Miller, this Court does not here reach the question whether
compliance with the Act, on its own, can be a compelling state
interest under the proper circumstances. pp. 908-918.
861 F. Supp. 408, reversed.
REHNQUIST, C. J., delivered the opinion of the Court, in which
O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. STEVENS, J.,
filed a dissenting opinion, in which GINSBURG and BREYER, JJ.,
joined as to Parts II, III, IV, and V,
post, p. 918. SOUTER,
J., filed a dissenting statement, in which GINSBURG and BREYER,
JJ., joined,
post, p. 951.
Robinson O.
Everett argued the cause and filed
briefs for appellants in No. 94-923.
901
Thomas A. Farr argued the cause and filed briefs for
appellants in No. 94-924. With him on the briefs were
Thomas F.
Ellis, James C.
Dever III, and
Craig D.
Mills.
Edwin M. Speas, Jr., Senior Deputy Attorney General of
North Carolina, argued the cause for appellees Hunt et al. in both
cases. With him on the brief for state appellees were
Michael F.
Easley, Attorney General, and
Tiare B. Smiley, Special
Deputy Attorney General.
Julius L. Chambers argued the cause
for appellees Gingles et al. in both cases. With him on the brief
were
Anita S.
Hodgkiss, Adam Stein, James E. Ferguson II,
Elaine R. Jones, Theodore M. Shaw, Norman J.
Chachkin, and
Jacqueline A. Berrien.
Deputy Solicitor General Bender argued the cause for the United
States as amicus curiae urging affirmance. With him on the brief
were Solicitor General Days, Assistant Attorney General Patrick,
Beth S. Brinkmann, Steven H. Rosenbaum, and Miriam R. Eisenstein.
t
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
This suit is here for a second time. In
Shaw v.
Reno,
509 U. S. 630 (1993)
(Shaw 1), we held that plaintiffs
whose complaint alleged that the deliberate segregation of voters
into separate and bizarre-looking districts on the basis of race
stated a claim for relief under the Equal Protection Clause of the
Fourteenth Amendment. We remanded the case for further
consideration by the District Court. That court held that the North
Carolina redistricting plan did classify
t
Anthony T. Caso and
Deborah J. La
Fetra filed a brief for the Pacific Legal Foundation urging
reversal.
Briefs of amicus curiae urging affirmance were filed for the
American Civil Liberties Union et al. by Laughlin McDonald, Neil
Bradley, Steven R. Shapiro, Paul C. Saunders, Herbert
J.
Hansell, Barbara R. Arnwine, Thomas
J. Henderson, and Brenda
Wright; and for the North Carolina Legislative Black Caucus et al.
by Pamela S. Karlan and Eben Moglen.
A. Leon Higginbotham, Jr., filed a brief for the
Congressional Black Caucus as
amicus curiae.
902
voters by race, but that the classification survived strict
scrutiny and therefore did not offend the Constitution. We now hold
that the North Carolina plan does violate the Equal Protection
Clause because the State's reapportionment scheme is not narrowly
tailored to serve a compelling state interest.
The facts are set out in detail in our prior opinion, and we
shall only summarize them here. After the 1990 census, North
Carolina's congressional delegation increased from 11 to 12
members. The State General Assembly adopted a reapportionment plan,
Chapter 601, that included one majority-black district, District 1,
located in the northeastern region of the State. 1991 N. C. Sess.
Laws, ch. 60l. The legislature then submitted the plan to the
Attorney General of the United States for preclearance under § 5 of
the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U. S.
C. § 1973c (1988 ed.). The Assistant Attorney General for Civil
Rights, acting on the Attorney General's behalf, objected to the
proposed plan because it failed "to give effect to black and Native
American voting strength" in "the south-central to southeastern
part of the state" and opined that the State's reasons for not
creating a second majorityminority district appeared "to be
pretextual." App. 151153. Duly chastened, the legislature revised
its districting scheme to include a second majority-black district.
1991 N. C. Extra Sess. Laws, ch. 7. The new plan, Chapter 7,
located the minority district, District 12, in the north-central or
Piedmont region, not in the south-central or southeastern region
identified in the Justice Department's objection letter. The
Attorney General nonetheless precleared the revised plan.
By anyone's measure, the boundary lines of Districts 1 and 12
are unconventional. A map portrays the districts' deviance far
better than words, see the Appendix to the opinion of the Court in
Shaw I, supra, but our prior opinion describes them as
follows:
903
"The first of the two majority-black districts ... is somewhat
hook shaped. Centered in the northeast portion of the State, it
moves southward until it tapers to a narrow band; then, with
finger-like extensions, it reaches far into the southern-most part
of the State near the South Carolina border ....
"The second majority-black district, District 12, is even more
unusually shaped. It is approximately 160 miles long and, for much
of its length, no wider than the [Interstate]-85 corridor. It winds
in snakelike fashion through tobacco country, financial centers,
and manufacturing areas 'until it gobbles in enough enclaves of
black neighborhoods.'" Shaw I, supra, at 635-636 (citation
omitted).
Five North Carolinians commenced the present action in the
United States District Court for the Eastern District of North
Carolina against various state officials.1 Following our reversal
of the District Court's dismissal of their complaint in
Shaw
I, the District Court allowed a number of individuals to
intervene, 11 on behalf of the plaintiffs and 22 for the
defendants. After a 6-day trial, the District Court unanimously
found "that the Plan's lines were deliberately drawn to produce one
or more districts of a certain racial composition." 861 F. Supp.
408, 417, 473-474 (1994). A majority of the court held that the
plan was constitutional, nonetheless, because it was narrowly
tailored to further the State's compelling interests in complying
with §§ 2 and 5 of the Voting Rights Act, 42 U. S. C. §§ 1973,
1973c. 861 F. Supp., at 474. The dissenting judge disagreed with
that portion of the judgment. We noted probable jurisdiction. 515
U. S. 1172 (1995).
1 The complaint also named the Attorney General of the United
States and the Assistant Attorney General for the Civil Rights
Division as defendants. The District Court granted the federal
officials' motion to dismiss,
Shaw v.
Barr, 808 F.
Supp. 461 (EDNC 1992).
904
As a preliminary matter, appellees challenge appellants'
standing to continue this lawsuit. In
United States v.
Hays, 515 U.
S. 737 (1995), we recognized that a plaintiff who resides in a
district which is the subject of a racialgerrymander claim has
standing to challenge the legislation which created that district,
but that a plaintiff from outside that district lacks standing
absent specific evidence that he personally has been subjected to a
racial classification. Two appellants, Ruth Shaw and Melvin Shimm,
live in District 12 and thus have standing to challenge that part
of Chapter 7 which defines District 12. See
Miller v.
Johnson, 515
U. S. 900, 909 (1995). The remaining appellants do not reside
in District 1, however, and they have not provided specific
evidence that they personally were assigned to their voting
districts on the basis of race. Therefore, we conclude that only
Shaw and Shimm have standing and only with respect to District
12.2
We explained in
Miller v.
Johnson that a racially
gerrymandered districting scheme, like all laws that classify
citizens on the basis of race, is constitutionally suspect.
Id., at 904-905; see also
Shaw I, 509 U. S., at 657;
Adarand Constructors, Inc. v.
Pena, 515 U. S. 200 (1995).
This is true whether or not the reason for the racial
classification is be-
2JUSTICE STEVENS would dismiss the complaint for a lack of
standing.
Post, at 921-923. Here, as in other places in his
dissent, JUSTICE STEVENS' disagreement is more with the Court's
prior decisions in
Shaw I, 509 U. S. 630 (1993),
United States v.
Hays, 515 U. S. 737 (1995), and
Miller v.
Johnson, 515 U. S. 900 (1995),
than with this decision. JUSTICE STEVENS challenged the Court's
standing analysis and its finding of cognizable injury in both
Hays, supra, at 751 (STEVENS, J., concurring in judgment),
and
Miller, supra, at 929-931 (STEVENS, J., dissenting), and
both Justice White and JUSTICE SOUTER advanced many of the same
arguments in
Shaw I. See
Shaw I, 509 U. S., at
659-674 (White, J., dissenting);
id., at 680-687, and n. 9
(SOUTER, J., dissenting). Their position has been repeatedly
rejected by the Court. See
id., at 644-652;
Miller,
supra, at 909; and
Hays, supra, at 744-745.
905
nign or the purpose remedial.
Shaw I, supra, at 642-643,
653; Adarand, supra, at 228-229. Applying traditional equal
protection principles in the voting-rights context is "a most
delicate task,"
Miller, supra, at 905, however, because a
legislature may be conscious of the voters' races without using
race as a basis for assigning voters to districts.
Shaw I,
supra, at 645-646;
Miller, 515 U. S., at 916. The
constitutional wrong occurs when race becomes the "dominant and
controlling" consideration.
Id., at 911, 915-916.
The plaintiff bears the burden of proving the race-based motive
and may do so either through "circumstantial evidence of a
district's shape and demographics" or through "more direct evidence
going to legislative purpose."
Id., at 916. After a detailed
account of the process that led to enactment of the challenged
plan, the District Court found that the General Assembly of North
Carolina "deliberately drew" District 12 so that it would have an
effective voting majority of black citizens. 861 F. Supp., at
473.
Appellees urge upon us their view that this finding is not
phrased in the same language that we used in our opinion in
Miller v.
Johnson, supra, where we said that a
plaintiff must show "that race was the predominant factor
motivating the legislature's decision to place a significant number
of voters within or without a particular district."
Id., at
916.
The District Court, of course, did not have the benefit of our
opinion in
Miller at the time it wrote its opinion. While it
would have been preferable for the court to have analyzed the case
in terms of the standard laid down in
Miller, that was not
possible. This circumstance has no consequence here because we
think that the District Court's findings, read in the light of the
evidence that it had before it, comport with the
Miller
standard.
First, the District Court had evidence of the district's shape
and demographics. The court observed "the obvious fact" that the
district's shape is "highly irregular and geo-
906
graphically non-compact by any objective standard that can be
conceived." 861 F. Supp., at 469. In fact, the serpentine district
has been dubbed the least geographically compact district in the
Nation. App. 332.
The District Court also had direct evidence of the legislature's
objective. The State's submission for preclearance expressly
acknowledged that Chapter 7's
"overriding purpose was to
comply with the dictates of the Attorney General's December 18,
1991 letter and to create two congressional districts with
effective black voting majorities." App. 162 (emphasis added). This
admission was confirmed by Gerry Cohen, the plan's principal
draftsman, who testified that creating two majority-black districts
was the "principal reason" for Districts 1 and 12.
Id., at
675; Tr. 514. Indeed, appellees in their first appearance before
the District Court "formally concede[d] that the state legislature
deliberately created the two districts in a way to assure
black-voter majorities,"
Shaw v.
Barr, 808 F. Supp.
461, 470 (EDNC 1992), and that concession again was credited by the
District Court on remand, 861 F. Supp., at 473-474. See also
Shaw I, supra, at 666 (White, J., dissenting) ("The State
has made no mystery of its intent, which was to respond to the
Attorney General's objections by improving the minority group's
prospects of electing a candidate of its choice" (citation
omitted)). Here, as in
Miller, "we fail to see how the
District Court could have reached any conclusion other than that
race was the predominant factor in drawing [the challenged
district]."
Miller, supra, at 918.
In his dissent, JUSTICE STEVENS argues that strict scrutiny does
not apply where a State "respects" or "compl[ies] with traditional
districting principles."
Post, at 931932 ("[R]ace-based
districting which respects traditional districting principles does
not give rise to constitutional suspicion"),
post, at 932
("Miller demonstrates that although States may avoid strict
scrutiny by complying with traditional districting principles ...
"). That, however, is not the
907
standard announced and applied in
Miller,3 where we held
that strict scrutiny applies when race is the "predominant"
consideration in drawing the district lines such that "the
legislature subordinate[s] traditional race-neutral districting
principles ... to racial considerations."
Miller, supra, at
916. (JUSTICE STEVENS articulates the correct standard in his
dissent,
post, at 930, but he fails to properly apply it.)
The
Miller standard is quite different from the one that
JusTICE STEVENS advances, as an examination of the dissent's
reasoning demonstrates. The dissent explains that "two
race-neutral, traditional districting criteria" were at work in
determining the shape and placement of District 12, and from this
suggests that strict scrutiny should not apply.
Post, at
936-939. We do not quarrel with the dissent's claims that, in
shaping District 12, the State effectuated its interest in creating
one rural and one urban district, and that partisan politicking was
actively at work in the districting process. That the legislature
addressed these interests does not in any way refute the fact that
race was the legislature's predominant consideration. Race was the
criterion that, in the State's view, could not be compromised;
respecting communities of interest and protecting Democratic
incumbents came into play only after the race-based decision had
been made.
Racial classifications are antithetical to the Fourteenth
Amendment, whose "central purpose" was "to eliminate racial
discrimination emanating from official sources in the States."
McLaughlin v.
Florida, 379 U. S. 184, 192
(1964);
3JUSTICE STEVENS in dissent incorrectly reads
Miller as
demonstrating that "although States may avoid strict scrutiny by
complying with traditional districting principles, they may not do
so by proffering pretextual, race-neutral explanations."
Post, at 932.
Miller plainly states that although
"compliance with 'traditional districting principles such as
compactness, contiguity, and respect for political subdivisions'
may well suffice to refute a claim of racial gerrymandering," a
State cannot make such a refutation where "those factors
were
subordinated to racial objectives." Miller, 515 U. S., at 919
(citation omitted) (emphasis added).
908
Richmond v.
J. A. Croson Co., 488 U. S. 469, 491 (1989)
(opinion of O'CONNOR, J.) ("[T]he Framers of the Fourteenth
Amendment ... desired to place clear limits on the States' use of
race as a criterion for legislative action, and to have the federal
courts enforce those limitations"). While appreciating that a
racial classification causes "fundamental injury" to the
"individual rights of a person,"
Goodman v.
Lukens Steel
Co., 482 U. S.
656, 661 (1987), we have recognized that, under certain
circumstances, drawing racial distinctions is permissible where a
governmental body is pursuing a "compelling state interest." A
State, however, is constrained in how it may pursue that end:
"[T]he means chosen to accomplish the State's asserted purpose must
be specifically and narrowly framed to accomplish that purpose."
Wygant v.
Jackson Bd. of Ed., 476 U. S. 267, 280 (1986)
(opinion of Powell, J.). North Carolina, therefore, must show not
only that its redistricting plan was in pursuit of a compelling
state interest, but also that "its districting legislation is
narrowly tailored to achieve [that] compelling interest."
Miller, 515 U. S., at 920.
Appellees point to three separate compelling interests to
sustain District 12: to eradicate the effects of past and present
discrimination; to comply with § 5 of the Voting Rights Act; and to
comply with § 2 of that Act. We address each in turn.4
4JUSTICE STEVENS in dissent discerns three reasons that he
believes "may have motivated" the legislators to favor the creation
of the two minority districts and that he believes together amount
to a compelling state interest.
Post, at 941. As we explain
below, a racial classification cannot withstand strict scrutiny
based upon speculation about what "may have motivated" the
legislature. To be a compelling interest, the State must show that
the alleged objective was the legislature's "actual purpose" for
the discriminatory classification, see
Mississippi Univ. for
Women v.
Hogan, 458 U. S. 718, 730, and
n. 16 (1982), and the legislature must have had a strong basis in
evidence to support that justification before it implements the
classification. See
infra, at 910. Even if the proper
factual basis existed, we believe that the three reasons JUSTICE
STEVENS prof-
909
A State's interest in remedying the effects of past or present
racial discrimination may in the proper case justify a government's
use of racial distinctions.
Croson, 488 U. S., at 498-506.
For that interest to rise to the level of a compelling state
interest, it must satisfy two conditions. First, the discrimination
must be "'identified discrimination.'"
Id., at 499, 500,
505, 507, 509. "While the States and their subdivisions may take
remedial action when they possess evidence" of past or present
discrimination, "they must identify that discrimination, public or
private, with some specificity before they may use race-conscious
relief."
Id., at 504. A generalized assertion of past
discrimination in a particular industry or region is not adequate
because it "provides no guidance for a legislative body to
determine the precise scope of the injury it seeks to remedy."
Id., at 498 (opinion of O'CONNOR, J.). Accordingly, an
effort to alleviate the
fers, separately or combined, would not amount to a compelling
interest. First, the dissent seems to acknowledge that its initial
reason-the "sorry history of race relations in North Carolina,"
post, at 941-did not itself drive the decision to create the
minority districts, presumably for the reasons we discuss
infra, at 910. The dissent contends next that an "acceptable
reason for creating a second majority-minority district" was the
"State's interest in avoiding the litigation that would have been
necessary to overcome the Attorney General's objection" under § 5.
Post, at 942. If this were true, however,
Miller v.
Johnson would have been wrongly decided because there the
Court rejected the contention that complying with the Justice
Department's preclearance objection could be a compelling interest.
Miller, supra, at 921-922. It necessarily follows that
avoiding the litigation required to overcome the Department's
objection could not be a compelling interest. The dissent's final
reason-"the interest in avoiding the expense and unpleasantness of
[§ 2] litigation" "regardless of the possible outcome of [that]
litigation,"
post, at 943-sweeps too broadly. We assume,
arguendo, that a State may have a compelling interest in
complying with the properly interpreted Voting Rights Act.
Infra, at 915. But a State must also have a "strong basis in
evidence," see
Shaw I, 509 U. S., at 656 (quoting
Richmond v.
J. A. Croson Co., 488 U. S. 469, 500
(1989)), for believing that it is violating the Act. It has no such
interest in avoiding meritless lawsuits.
910
effects of societal discrimination is not a compelling interest.
Wygant, supra, at 274-275, 276, 288.5 Second, the
institution that makes the racial distinction must have had a
"strong basis in evidence" to conclude that remedial action was
necessary,
"before it embarks on an affirmative-action
program," 476 U. S., at 277 (plurality opinion) (emphasis
added).
In this suit, the District Court found that an interest in
ameliorating past discrimination did not actually precipitate the
use of race in the redistricting plan. While some legislators
invoked the State's history of discrimination as an argument for
creating a second majority-black district, the court found that
these members did not have enough voting power to have caused the
creation of the second district on that basis alone. 861 F. Supp.,
at 471.
Appellees, to support their claim that the plan was drawn to
remedy past discrimination, rely on passages from two reports
prepared for this litigation by a historian and a social scientist.
Brief for Appellees Gingles et al. 40-44, citing H. Watson, Race
and Politics in North Carolina, 1865-1994, App. 610-624 (excerpts),
and J. Kousser, After 120 Years:
Redistricting and Racial Discrimination in North Carolina,
id., at 602-609 (excerpts). Obviously these reports, both
dated March 1994, were not before the General Assembly when it
enacted Chapter 7. And there is little to suggest that the
legislature considered the historical events and social-science
data that the reports recount, beyond what individual members may
have recalled from personal experience. We certainly cannot say on
the basis of these reports that the District Court's findings on
this point were clearly erroneous.
5For examples of this limitation in application see
Wygant, 476 U. S., at 274-276 (where a plurality of the
Court concluded that remedying societal discrimination and
promoting role models for students was not a compelling interest);
Richmond v.
J. A. Croson Co., supra, at
498-506.
911
Appellees devote most of their efforts to arguing that the
race-based redistricting was constitutionally justified by the
State's duty to comply with the Voting Rights Act. The District
Court agreed and held that compliance with §§ 2 and 5 of the Act
could be, and in this suit was, a compelling state interest. 861 F.
Supp., at 437. In
Miller, we expressly left open the
question whether under the proper circumstances compliance with the
Voting Rights Act, on its own, could be a compelling interest.
Miller, 515 U. S., at 921 ("[w]hether or not in some cases
compliance with the Voting Rights Act, standing alone, can provide
a compelling interest independent of any interest in remedying past
discrimination ... "). Here once again we do not reach that
question because we find that creating an additional majority-black
district was not required under a correct reading of § 5 and that
District 12, as drawn, is not a remedy narrowly tailored to the
State's professed interest in avoiding § 2 liability.
With respect to § 5 of the Voting Rights Act, we believe our
decision in
Miller forecloses the argument, adopted by the
District Court, that failure to engage in the race-based
districting would have violated that section. In
Miller, we
considered an equal protection challenge to Georgia's Eleventh
Congressional District. As appellees do here, Georgia contended
that its redistricting plan was necessary to meet the Justice
Department's preclearance demands. The Justice Department had
interposed an objection to a prior plan that created only two
majority-minority districts. We held that the challenged
congressional plan was not required by a correct reading of § 5 and
therefore compliance with that law could not justify race-based
districting.
Id., at 921 ("[C]ompliance 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").
912
We believe the same conclusion must be drawn here.
North Carolina's first plan, Chapter 601, indisputably was
ameliorative, having created the first majority-black district in
recent history. Thus, that plan, "'even if [it] fall[s] short of
what might be accomplished in terms of increasing minority
representation,'" "'cannot violate § 5 unless the new apportionment
itself so discriminates on the basis of race or color as to violate
the Constitution.'"
Id., at 924, quoting Days, Section 5 and
the Role of the Justice Department, in B. Grofman & C.
Davidson, Controversies in Minority Voting 56 (1992), and
Beer v.
United States, 425 U. S. 130, 141
(1976).
As in
Miller, the United States relies on the purpose
prong of § 5 to explain the Department's preclearance objections,
alleging that North Carolina, for pretextual reasons, did not
create a second majority-minority district. Brief for United States
as
Amicus Curiae 24. We again find the Government's position
"insupportable."
Miller, supra, at 924. The General
Assembly, in its submission filed with Chapter 601, explained why
it did not create a second minority district; among its goals were
"to keep precincts whole, to avoid dividing counties into more than
two districts, and to give black voters a fair amount of influence
by creating at least one district that was majority black in voter
registration and by creating a substantial number of other
districts in which black voters would exercise a significant
influence over the choice of congressmen." App.142. The submission
also explained in detail the disadvantages of other proposed plans.
See,
e. g., id., at 139, 140, 143 (Balmer Congress
6.2 Plan's "[s]econd 'minority' district did not have effective
minority voting majority" because it "depended on the cohesion of
black and Native American voters, and no such pattern was evident"
and "this plan dramatically decreased black influence" in four
other districts). A memorandum, sent to the Department of Justice
on behalf of the legislators in charge of the redistricting
process, provided still further reasons for the State's decision
not to draw two minority districts as
913
urged by various interested parties. App. 94-138; 861 F. Supp.,
at 480-481, n. 9 (Voorhees, C. J., dissenting). We have recognized
that a "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,' and
thus cannot provide any basis under § 5 for the Justice
Department's objection."
Miller, supra, at 924 (citations
omitted).
It appears that the Justice Department was pursuing in North
Carolina the same policy of maximizing the number of majority-black
districts that it pursued in Georgia. See
Miller, supra, at
924-925, and n. The two States underwent the preclearance processes
during the same time period and the objection letters they received
from the Civil Rights Division were substantially alike. App. in
Miller v.
Johnson, O. T. 1994, No. 94-631, pp.
99-107. A North Carolina legislator recalled being told by the
Assistant Attorney General that "you have twenty-two percent black
people in this State, you must have as close to twenty-two percent
black Congressmen, or black Congressional Districts in this State."
App. 201. See also Deposition of Senator Dennis Winner,
id.,
at 698. We explained in
Miller that this maximization policy
is not properly grounded in § 5 and the Department's authority
thereunder. 515 U. S., at 925 ("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"). We again reject
the Department's expansive interpretation of § 5.
Id., at
926927. Cf.
Johnson v.
De Grandy, 512 U. S. 997, 1017
(1994) ("Failure to maximize cannot be the measure of § 2").6
6 The United States attempts to distinguish this suit from
Miller by relying on the District Court's finding that North
Carolina conducted "its own independent reassessment" of Chapter
601 and found "the Department's objection was legally and factually
supportable." Brief for
914
With respect to § 2, appellees contend, and the District Court
found, that failure to enact a plan with a second majority-black
district would have left the State vulnerable to a lawsuit under
this section. Our precedent establishes that a plaintiff may allege
a § 2 violation in a single-member district if the manipulation of
districting lines fragments politically cohesive minority voters
among several districts or packs them into one district or a small
number of districts, and thereby dilutes the voting strength of
members of the minority population.
Id., at 1007. To prevail
on such a claim, a plaintiff must prove that the minority group "is
sufficiently large and geographically compact to constitute a
majority in a single-member district"; that the minority group "is
politically cohesive"; and that "the white majority votes
sufficiently as a bloc to enable it ... usually to defeat the
minority's preferred candidate."
Thornburg v.
Gingles,
478 U. S. 30, 50-51 (1986);
Growe v.
Emison,
507 U. S. 25
(1993) (recognizing that the three
Gingles preconditions
would apply to a § 2 challenge to a single-member district). A
court must also consider all other relevant circumstances and must
ultimately find based on the totality of those circumstances that
members of a protected class "have less opportunity than other
members of the electorate to participate in the political process
and to elect representatives of their choice." 42 U. S. C. §
1973(b). See
De Grandy, supra, at 1010-1012.
United States as
Amicus Curiae 25; 861 F. Supp. 408, 474
(1994) (case below). The "reassessment" was the legislature's
determination that it may be susceptible to a §2 challenge.
Id., at 464-465. Even if the General Assembly properly
reached that conclusion, we doubt that a showing of discriminatory
effect under § 2, alone, could support a claim of discriminatory
purpose under § 5. Even if discriminatory purpose could be shown,
the means of avoiding such a violation could be race neutral, and
so we also doubt that the prospect of violating the purpose prong
of § 5 could justify a race-based redistricting plan such as the
one implemented by North Carolina.
915
We assume,
arguendo, for the purpose of resolving this
suit, that compliance with § 2 could be a compelling interest, and
we likewise assume,
arguendo, that the General Assembly
believed a second majority-minority district was needed in order
not to violate § 2, and that the legislature at the time it acted
had a strong basis in evidence to support that conclusion. We hold
that even with the benefit of these assumptions, the North Carolina
plan does not survive strict scrutiny because the remedy-the
creation of District 12is not narrowly tailored to the asserted
end.
Although we have not always provided precise guidance on how
closely the means (the racial classification) must serve the end
(the justification or compelling interest), we have always expected
that the legislative action would substantially address, if not
achieve, the avowed purpose. See
Miller, supra, at 922
("[T]he judiciary retains an independent obligation ... to ensure
that the State's actions are narrowly tailored to achieve a
compelling interest");
Wygant, 476 U. S., at 280 (opinion of
Powell, J.) ("[T]he means chosen to accomplish the State's asserted
purpose must be specifically and narrowly framed to accomplish that
purpose")
id., at 278, n. 5 (opinion of Powell, J.)
(race-based state action must be remedial);
Shaw I, 509 U.
S., at 655 ("A reapportionment plan would not be narrowly tailored
to the goal of avoiding retrogression if the State went beyond what
was reasonably necessary to avoid retrogression"). Cf.
Missouri v.
Jenkins, 515 U. S. 70, 88 (1995)
(With regard to the remedial authority of a federal court: "'The
remedy must ... be related to "the
condition alleged to
offend the Constitution .... "'" and must be
"'remedial in
nature, that is, it must be designed as nearly as possible "to
restore the victims of discriminatory conduct to the position they
would have occupied in the absence of such conduct"''') (quoting
Milliken v.
Bradley, 433 U. S. 267, 280-281
(1977), in turn quoting
Milliken v.
Bradley, 418 U. S. 717, 738, 746
(1974)). Where, as
916
here, we assume avoidance of § 2 liability to be a compelling
state interest, we think that the racial classification would have
to realize that goal; the legislative action must, at a minimum,
remedy the anticipated violation or achieve compliance to be
narrowly tailored.7
District 12 could not remedy any potential § 2 violation.
As discussed above, a plaintiff must show that the minority
group is "geographically compact" to establish § 2 liability. No
one looking at District 12 could reasonably suggest that the
district contains a "geographically compact" population of any
race. See 861 F. Supp., at 469. Therefore where that district sits,
"there neither has been a wrong nor can be a remedy."
Growe,
supra, at 41 (footnote omitted).8
Appellees do not defend District 12 by arguing that the district
is geographically compact, however. Rather they contend, and a
majority of the District Court agreed, 861 F. Supp., at 454-455, n.
50, that once a legislature has a strong basis in evidence for
concluding that a § 2 violation exists in the State, it may draw a
majority-minority district anywhere, even if the district is in no
way coincident with
7We do not suggest that where the governmental interest is
eradicating the effects of past discrimination the race-based
action necessarily would have to achieve fully its task to be
narrowly tailored.
8JUSTICE STEVENS in dissent argues that it does not matter that
District 12 could not possibly remedy a § 2 violation because he
believes the State's plan would avoid §2liability.
Post, at
946-947. As support, JusTICE STEVENS relies on our decision in
Johnson v.
De Grandy, 512 U. S. 997 (1994),
which he reads to say that "a plaintiff cannot make out a prima
facie case of vote dilution under § 2 unless he can demonstrate
that his proposed plan contains
more majority-minority
districts than the State's."
Post, at 946 (citing
De
Grandy, supra, at 1008). The dissent's reading is flawed by its
omission. In
De Grandy, we presumed that the minority
districts drawn in the State's plan were lawfully drawn and,
indeed, we expressly stated that a vote-dilution claim under § 2
"requires the possibility of creating more
than the existing
number of reasonably compact districts with a sufficiently
large minority population to elect candidates of its choice."
De
Grandy, supra, at 1008 (emphasis added).
917
the compact
Gingles district, as long as racially
polarized voting exists where the district is ultimately drawn. Tr.
of Oral Arg. 50-51, 54-56.
We find this position singularly unpersuasive. We do not see how
a district so drawn would avoid § 2 liability. If a § 2 violation
is proved for a particular area, it flows from the fact that
individuals in this area "have less opportunity than other members
of the electorate to participate in the political process and to
elect representatives of their choice." 42 U. S. C. § 1973(b). The
vote-dilution injuries suffered by these persons are not remedied
by creating a safe majorityblack district somewhere else in the
State. For example, if a geographically compact, cohesive minority
population lives in south-central to southeastern North Carolina,
as the Justice Department's objection letter suggested, District 12
that spans the Piedmont Crescent would not address that § 2
violation. The black voters of the south-central to southeastern
region would still be suffering precisely the same injury that they
suffered before District 12 was drawn. District 12 would not
address the professed interest of relieving the vote dilution, much
less be narrowly tailored to accomplish the goal.
Arguing, as appellees do and the District Court did, that the
State may draw the district anywhere derives from a misconception
of the vote-dilution claim. To accept that the district may be
placed anywhere implies that the claim, and hence the coordinate
right to an undiluted vote (to cast a ballot equal among voters),
belongs to the minority as a group and not to its individual
members. It does not. See § 1973 ("the right of any citizen").9
9 This does not mean that a § 2 plaintiff has the right to be
placed in a majority-minority district once a violation of the
statute is shown. States retain broad discretion in drawing
districts to comply with the mandate of §2.
Voinovich v.
Quilter, 507
U. S. 146, 156-157 (1993);
Growe v.
Emison,
507 U. S. 25,
32-37 (1993).
918
The United States submits that District 12 does, in fact,
incorporate a "substantial portio[n]" of the concentration of
minority voters that would have given rise to a § 2 claim. Brief
for United States as
Amicus Curiae 27. Specifically, the
Government claims that "District 12 ... contains the heavy
concentration of African Americans in Mecklenburg County, the same
urban component included in the second minority opportunity
district in some of the alternative plans."
Ibid. The
portion of District 12 that lies in Mecklenburg County covers not
more than 20% of the district. See Exhibit 301 of
Plaintiff-Intervenors, Map A, Map 9B. We do not think that this
degree of incorporation could mean that District 12 substantially
addresses the § 2 violation. We hold, therefore, that District 12
is not narrowly tailored to the State's asserted interest in
complying with § 2 of the Voting Rights Act.
For the foregoing reasons, the judgment of the District Court
is
Reversed.
JUSTICE STEVENS, with whom JUSTICE GINSBURG and JUSTICE BREYER
join as to Parts II-V, dissenting.
As I have explained on prior occasions, I am convinced that the
Court's aggressive supervision of state action designed to
accommodate the political concerns of historically disadvantaged
minority groups is seriously misguided. A majority's attempt to
enable the minority to participate more effectively in the process
of democratic government should not be viewed with the same
hostility that is appropriate for oppressive and exclusionary
abuses of political power. See,
e. g., Adarand Constructors,
Inc. v.
Pena, 515 U. S. 200, 243249
(1995) (STEVENS, J., dissenting);
Miller v.
Johnson,
515 U. S. 900,
931-933 (1995) (STEVENS, J., dissenting);
Shaw v.
Reno, 509 U.
S. 630, 634-635 (1993)
(Shaw 1) (STEVENS, J.,
dissenting);
Wygant v.
Jackson Bd. of Ed., 476 U. S. 267, 316317
(1986) (STEVENS, J., dissenting);
Cousins v.
City
Council
919
of Chicago, 466 F.2d
830, 852 (CA7 1972) (Stevens, J., dissenting). But even if we
accept the Court's refusal to recognize any distinction between two
vastly different kinds of situations, we should affirm the judgment
of the District Court in this case.
As the Court analyzes the case, it raises three distinct
questions: (1) Should North Carolina's decision to create two
congressional districts in which a majority of the voters are
African-American be subject to strict constitutional scrutiny?; (2)
If so, did North Carolina have a compelling interest in creating
such districts?; and (3) If so, was the creation of those districts
"narrowly tailored" to further the asserted compelling interest?
The Court inadequately explains its answer to the first question,
and it avoids answering the second because it concludes that its
answer to the third disposes of the case. In my estimation, the
Court's disposition of all three questions is most
unsatisfactory.
After commenting on the majority's treatment of the threshold
jurisdictional issue, I shall discuss separately the three
questions outlined above. In doing so, I do not mean to imply that
I endorse the majority's effort to apply in rigid fashion the
strict scrutiny analysis developed for cases of a far different
type. I mean only to show that, even on its own terms, the
majority's analysis fails to convince.
I
I have explained previously why I believe that the Court has
failed to supply a coherent theory of standing to justify its
emerging and misguided race-based districting jurisprudence. See
Miller v.
Johnson, 515 U. S., at 929-931 (STEVENS,
J., dissenting);
United States v.
Hays, 515 U. S. 737, 750-751
(1995) (STEVENS, J., concurring in judgment). The Court's analysis
of the standing question in this case is similarly unsatisfactory,
and, in my view, reflects the fact that the so-called
Shaw
claim seeks to employ the federal courts to impose a particular
form of electoral process,
920
rather than to redress any racially discriminatory treatment
that the electoral process has imposed. In this instance,
therefore, I shall consider the standing question in light of the
majority's assertions about the nature of the underlying
constitutional challenge.
I begin by noting that this case reveals the
Shaw claim
to be useful less as a tool for protecting against racial
discrimination than as a means by which state residents may
secondguess legislative districting in federal court for partisan
ends. The plaintiff-intervenors in this case are Republicans. It is
apparent from the record that their real grievance is that they are
represented in Congress by Democrats when they would prefer to be
represented by members of their own party. They do not suggest that
the racial identity of their representatives is a matter of
concern, but it is obvious that their political identity is
critical. See
Pope v.
Blue, 809 F. Supp. 392 (WDNC
1992).
Significantly, from the outset of the legislative deliberations,
the Republican Party did not oppose the creation of more than one
majority-minority district. Indeed, several plans proposed by the
Republicans in the state legislature provided two such districts.
861 F. Supp. 408, 460 (EDNC 1994). However, now that the State has
created a district that is designed to preserve Democratic
incumbents, and now that the plaintiff-intervenors' partisan
gerrymandering suit has been dismissed for failure to state a
claim, these intervenors have joined this racial gerrymandering
challenge.
It is plain that these intervenors are using their allegations
of impermissibly race-based districting to achieve the same
substantive result that their previous, less emotionally charged
partisan gerrymandering challenge failed to secure. In light of the
amorphous nature of the race discrimination claim recognized in
Shaw I, it is inevitable that allegations of racial
gerrymandering will become a standard means by which unsuccessful
majority-race candidates, and their par-
921
ties, will seek to obtain judicially what they could not obtain
electorally.
Even if the other plaintiffs to this litigation do object to the
use of race in the districting process for reasons other than
partisan political advantage, the majority fails to explain
adequately the nature of their constitutional challenge, or why it
should be cognizable under the Equal Protection Clause. Not
surprisingly, therefore, the majority's explanation of why these
plaintiffs have standing to bring this challenge is
unconvincing.
It is important to point out what these plaintiffs do not claim.
Counsel for appellees put the matter succinctly when he stated that
this case is not
Gomillion v.
Lightfoot, 364 U. S.
339 (1960).1 There, the plaintiffs had been prohibited from voting
in municipal elections; here, all voters remain free to select
representatives to Congress. Thus, while the plaintiffs purport to
be challenging an unconstitutional racial gerrymander, they do not
claim that they have been shut out of the electoral process on
account of race, or that their voting power has been diluted as a
consequence of race-based districting.
Shaw I, 509 U.
S., at 641.
What then is the wrong that these plaintiffs have suffered that
entitles them to call upon a federal court for redress? In
Shaw I, the majority construed the plaintiffs' claim
to be that the Equal Protection Clause forbids race-based
districting designed solely to "separate" voters by race, and that
North Carolina's districting process violated the prohibition.
Ibid. Even if that were the claim before us, these
plaintiffs should not have standing to bring it. The record shows
that North Carolina's districting plan served to require these
plaintiffs to
share a district with voters of a different
race. Thus, the injury that these plaintiffs have suffered, to the
extent that there has been injury at all, stems
1 Tr. of Oral Arg. 58.
922
from the integrative rather than the segregative effects of the
State's redistricting plan.
Perhaps cognizant of this incongruity, counsel for plaintiffs
asserted a rather more abstract objection to race-based districting
at oral argument. He suggested that the plaintiffs objected to the
use of race in the districting process not because of any adverse
consequence that these plaintiffs, on account of their race, had
suffered more than other persons, but rather because the State's
failure to obey a constitutional command to legislate in a
color-blind manner conveyed a message to voters across the State
that "there are two black districts and ten white districts." 2 Tr.
of Oral Arg. 5.
Such a challenge calls to mind Justice Frankfurter's memorable
characterization of the suit brought in
Colegrove v.
Green, 328 U.
S. 549, 552 (1946). "This is not an action to recover for
damage because of the discriminatory exclusion of a plaintiff from
rights enjoyed by other citizens," he explained. "The basis for the
suit is not a private wrong, but a wrong suffered by Illinois as a
polity."
Ibid. Suits of this type necessarily press the
boundaries of federal-court jurisdiction, if they do not surpass
it. When a federal court is called upon, as it is here, to parse
among varying legislative choices about the political structure of
a State, and when the litigant's claim ultimately rests on "a
difference of opinion as to the function of representative
government" rather than a claim of discriminatory exclusion,
Baker v.
Carr, 369 U. S. 186, 333 (1962)
(Harlan, J., dissenting), there is reason for
2 Counsel went so far as to liken the State's districting plan
to staterun water fountains that are available to citizens of all
races but are nevertheless labeled "Black" and "White." He argued
that the State's racebased redistricting map constituted an
unlawful racial classification in the same way that the signs above
the fountains would. Although neither racial classification would
deprive any person of a tangible benefit-water from both fountains
and effective political representation would remain equally
available to persons of all races-each would be unconstitutional
because of the very fact that the State had espoused a racial
classification publicly.
Id., at 5-6.
923
pause. Cf. Lujan v. Defenders of Wildlife,
504 U. S. 555, 573-574
(1992).3
Even if an objection to a State's decision to forgo colorblind
districting is cognizable under some constitutional provision, I do
not understand why that provision should be the Equal Protection
Clause. In
Reynolds v.
Sims, 377 U. S. 533, 561
(1964), we were careful to point out that "[a] predominant
consideration in determining whether a State's legislative
apportionment scheme constitutes an invidious discrimination
violative of rights asserted under the Equal Protection Clause is
that the rights allegedly impaired are individual and personal in
nature." In addition, in
Palmer v.
Thompson, 403 U. S. 217, 225
(1971), we explained that racially motivated legislation violates
the Equal Protection Clause only when the challenged legislation
"affect[s] blacks differently from whites."
To be sure, as some commentators have noted, we have permitted
generalized claims of harm resulting from statesponsored messages
to secure standing under the Establishment Clause. Pildes &
Niemi, Expressive Harms, "Bizarre Districts," and Voting Rights:
Evaluating Election-District Appearances After
Shaw v. Reno,
92 Mich. L. Rev. 483, 499524 (1993). It would be quite strange,
however, to confer similarly broad standing under the Equal
Protection Clause because that Clause protects against wrongs which
by definition burden some persons but not others.
Here, of course, it appears that no individual has been burdened
more than any other. The supposedly insidious messages that
Shaw
I contends will follow from extremely irreg-
3 There, a majority of the Court stated that "[w]e have
consistently held that a plaintiff raising only a generally
available grievance about government-claiming only harm to his and
every citizen's interest in proper application of the Constitution
and laws, and seeking relief that no more directly and tangibly
benefits him than it does the public at large-does not state an
Article III case or controversy."
Lujan v.
Defenders of
Wildlife, 504 U. S., at 573-574.
924
ular race-based districting will presumably be received in equal
measure by
all state residents. For that reason, the claimed
violation of a shared right to a color-blind districting process
would not seem to implicate the Equal Protection Clause at all
precisely because it rests neither on a challenge to the State's
decision to distribute burdens and benefits unequally, nor on a
claim that the State's formally equal treatment of its citizens in
fact stamps persons of one race with a badge of inferiority. See
Bush v.
Vera, post, at 1052-1054 (SOUTER, J.,
dissenting).
Indeed, to the extent that any person has been burdened more
than any other by the State's districting plan, geography rather
than race would seem to be to blame. The State has not chosen to
subject only persons of a particular race to race-based
districting. Rather, the State has selected certain geographical
regions in which all voters-both white and black-have been assigned
to race-based districts. Thus, what distinguishes those residents
who have received a "color-blind" districting process from those
who have not is geography rather than racial identity. Not
surprisingly, therefore,
Shaw I emphasizes that the race of
the members of the plaintiff class is irrelevant.
Shaw I,
509 U. S., at 641.
Given the absence of any showing, or, indeed, any allegation,
that any person has been harmed more than any other
on account
of race, the Court's decision to entertain the claim of these
plaintiffs would seem to emanate less from the Equal Protection
Clause's bar against racial discrimination than from the Court's
unarticulated recognition of a new substantive due process right to
"color-blind" districting itself. See
id., at 641-642.4
Revealed for what it is, the constitu-
4 The Court's decisions in
Powers v.
Ohio,
499 U. S. 400
(1991), and
Batson v.
Kentucky, 476 U. S. 79 (1986), are
not to the contrary. There, we have held that defendants have
third-party standing, no matter what their race, to assert the
rights of jurors, who have been deprived because of their race of a
benefit available to all others. No voter in this litigation
925
tional claim before us ultimately depends for its success on
little more than speculative judicial suppositions about the
societal message that is to be gleaned from race-based districting.
I know of no workable constitutional principle, however, that can
discern whether the message conveyed is a distressing endorsement
of racial separatism, or an inspiring call to integrate the
political process. As a result, I know of no basis for recognizing
the right to color-blind districting that has been asserted
here.
Even if there were some merit to the constitutional claim, it is
at least clear that it requires the recognition of a new
constitutional right. For that very reason, the Court's suggestion
that
pre-Shaw, race discrimination precedent somehow compels
the application of strict scrutiny is disingenuous. The fact that
our equal protection jurisprudence requires strict scrutiny of a
claim that the State has used race as a criterion for imposing
burdens on some persons but not others does not mean that the
Constitution demands that a similar level of review obtain for a
claim that the State has used race to impose equal burdens on the
polity as a whole, or upon some nonracially defined portion
thereof. As to the latter claim, the State may well deserve more
deference when it determines that racial considerations are
legitimate in a context that results in no race-based, unequal
treatment.
To take but one example, I do not believe that it would make
sense to apply strict scrutiny to the Federal Government's decision
to require citizens to identify their race on census forms, even
though that requirement would force citizens to classify themselves
racially, and even though such a requirement would arguably convey
an insidious message about the Government's continuing belief that
race remains relevant to the formulation of public policy. Of
course, if the Federal Government required only those persons
residing in
has shown either that he has uniquely been denied an otherwise
generally available benefit on account of race, or that anyone else
has.
926
the Midwest to identify their race on the census form, I do not
doubt that only persons living in States in that region who filled
out the forms would have standing to bring the constitutional
challenge. I do doubt, however, whether our equal protection
jurisprudence would require a federal court to evaluate the claim
itself under strict scrutiny. In such a case, the only unequal
treatment would have resulted from the State's decision to
discriminate on the basis of geography, a race-neutral selection
criterion that has not generally been thought to necessitate close
judicial review.
The majority ignores these concerns and simply applies the
standing test set forth in
United States v.
Hays,
515 U. S. 737
(1995), on the apparent assumption that this test adequately
identifies those who have been personally denied "equal treatment"
on account of race.
Id., at 745. In
Hays, the Court
held that a plaintiff has standing to challenge a State's use of
race in districting for
Shaw claims if he (1) lives in a
district that allegedly constitutes a racial gerrymander or (2)
shows that, although he resides outside such a district, he has
been personally subject to a racial classification.
Ante, at
904. On this basis, the Court concludes that none of the plaintiffs
in this action has standing to challenge District 1, but that two
of them have standing to challenge District 12.
Ibid.
As I understand it, the distinction drawn in
Hays between
those who live within a district, and those who do not, is thought
to be relevant because voters who live in the "gerrymandered"
district will have suffered the "personal" injuries inflicted by
race-based districting more than other state residents.5 Those
injuries are said to be "representational" harms in the sense that
race-based districting may cause officeholders to represent only
those of the majority race in
5 As I have explained, even if the
Hays test showed that
much, it would still only demonstrate that the State had used
geography, rather than race, to select the citizens who would be
deprived of a color-blind districting process.
927
their district, or "stigmatic" harms, in the sense that the
race-based line-drawing may promote racial hostility.
United
States v.
Hays, 515 U. S., at 744-745;
Shaw I,
509 U. S., at 646-649.
Even if I were to accept the flawed assumption that the
Hays test serves to identify any voter who has been burdened
more than any other as a consequence of his race, I would still
find it a most puzzling inquiry. What the Court fails to explain,
as it failed to explain in
Hays, is why evidence showing
either that one lives in an allegedly racially gerrymandered
district or that one's district assignment directly resulted from a
racial classification should suffice to distinguish those who have
suffered the representational and stigmatic harms that supposedly
follow from race-based districting from those who have not.
If representational injuries are what one must show to secure
standing under
Hays, then a demonstration that a voter's
race led to his assignment to a particular district would perhaps
be relevant to the jurisdictional inquiry, but surely not
sufficient to satisfy it. There is no
necessary correlation
between race-based districting assignments and inadequate
representation. See
Davis v.
Bandemer, 478 U. S. 109,
132 (1986) (opinion of White, J.). Indeed, any assumption that such
a correlation exists could only be based on a stereotypical
assumption about the kind of representation that politicians
elected by minority voters are capable of providing. See
Miller v.
Johnson, 515 U. S., at 930 (STEVENS, J.,
dissenting).
To prove the representational harms that
Hays holds are
needed to establish standing to assert a
Shaw claim, one
would think that plaintiffs should be required to put forth
evidence that demonstrates that their political representatives are
actually unlikely to provide effective representation to those
voters whose interests are not aligned with those of the majority
race in their district. Here, as the record reveals, no plaintiff
has made such a showing. See
928
861 F. Supp., at 424-425, 471, n. 59. Given our general
reluctance to hear claims founded on speculative assertions of
injury, I do not understand why the majority concludes that the
speculative possibility that race-based districting "may" cause
these plaintiffs to receive less than complete representation
suffices to create a cognizable case or controversy.
United
States v.
Hays, 515 U. S., at 745.
If under
Hays the so-called "stigmatic" harms which
result from extreme race-based districting suffice to secure
standing, then I fail to see why it matters whether the litigants
live within the "gerrymandered" district or were placed in a
district as a result of their race. As I have pointed out, all
voters in North Carolina would seem to be equally affected by the
messages of "balkanization" or "racial apartheid" that racially
gerrymandered maps supposedly convey, cf.
Davis, 478 U. S.,
at 153 (O'CONNOR, J., concurring in judgment).
Even if race-based districting could be said to impose more
personal harms than the so-called "stigmatic" harms that
Hays itself identified, I do not understand why any voter's
reputation or dignity should be
presumed to have been harmed
simply because he resides in a highly integrated, majority-minority
voting district that the legislature has deliberately created.
Certainly the background social facts are not such that we should
presume that the "stigmatic harm" described in
Hays and
Shaw I amounts to that found cognizable under the Equal
Protection Clause in
Brown v.
Board of Education,
347 U. S. 483,
495 (1954), where statesponsored school segregation caused some
students, but not others, to be stamped with a badge of inferiority
on account of their race. See
Shaw I, 509 U. S., at
682, n. 4 (SOUTER, J., dissenting).
In sum, even if it could be assumed that the plaintiffs in this
case asserted the personalized injuries recognized in
Hays
at the time of
Shaw I by virtue of their bare allegations of
racial gerrymandering, they have surely failed to prove
929
the existence of such injuries to the degree that we normally
require at this stage of the litigation. See
Lujan v.
Defenders of Wildlife, 504 U. S. 555 (1992).
Thus, so long as the Court insists on treating this type of suit as
a traditional equal protection claim, it must either mean to take a
broader view of the power of federal courts to entertain challenges
to race-based governmental action than it has heretofore adopted,
see
Allen v.
Wright, 468 U. S. 737 (1984); cf.
Palmer, 403 U. S., at 224-225, or to create a special
exception to general jurisdictional limitations for plaintiffs such
as those before us here. Suffice it to say, I charitably assume the
former to be the case, and proceed to consider the merits on the
assumption that
Shaw I was correctly decided.
II
The District Court concluded that
Shaw I required the
application of strict scrutiny in any case containing proof that
"racial considerations played a 'substantial' or 'motivating' role
in the line-drawing process, even if they were not the only factor
that influenced that process." 861 F. Supp., at 431. The court
acknowledged that under this standard
any deliberate effort
to draw majority-minority districts in conformity with the Voting
Rights Act would attract the strictest constitutional review,
regardless of whether raceneutral districting criteria were also
considered.
Id., at 429. As a consequence, it applied strict
scrutiny in this case solely on the basis of North Carolina's
concession that it sought to draw two majority-minority districts
in order to comply with the Voting Rights Act, and without
performing any inquiry into whether North Carolina had considered
race-neutral districting criteria in drawing District 12's
boundaries.
As the majority concludes, the District Court's test for
triggering strict scrutiny set too low a threshold for subjecting a
State's districting effort to rigorous, if not fatal,
constitutional review.
Ante, at 905. In my view, therefore,
the Court should at the very least remand the case to allow
930
the District Court, which possesses an obvious familiarity with
the record and a superior understanding of local dynamics,6 to make
the fact-intensive inquiry into legislative purpose that the proper
test for triggering strict scrutiny requires. Although I do not
share the majority's willingness to divine on my own the degree to
which race determined the precise contours of District 12, if
forced to decide the matter on this record, I would reject the
majority's conclusion that a fair application of precedent dictates
that North Carolina's redistricting effort should be subject to
strict scrutiny.
Subsequent to the District Court's decision, we handed down
Miller v.
Johnson, 515 U. S. 900 (1995), and
issued our summary affirmance in
De Witt v.
Wilson,
515 U. S. 1170 (1995). As I understand the
Miller test, and
as it was applied in
De Witt, state legislatures may take
racial and ethnic characteristics of voters into account when they
are drawing district boundaries without triggering strict scrutiny
so long as race is not the "predominant" consideration guiding
their deliberations.
Miller v.
Johnson, 515 U. S., at
916. To show that race has been "predominant," a plaintiff must
show that "the legislature subordinated traditional race-neutral
districting principles ... to racial considerations" in drawing
that district.
Ibid.; see also
id., at 928 (O'CONNOR,
J., concurring) ("To invoke strict scrutiny, a plaintiff must show
that the State has relied on race in substantial disregard of
customary and traditional districting practices");
DeWitt v.
Wilson, 856 F. Supp. 1409, 1412 (ED Cal. 1994), aff'd in
part, dism'd in part, 515 U. S. 1170 (1995) (declining to apply
strict scrutiny because State complied with traditional districting
principles).
6 That is particularly true here because the author of the
District Court opinion was also the author of the District Court
opinion in
Gingles v.
Edmisten, 590 F. Supp. 345
(EDNC 1984), aff'd in part, rev'd in part,
Thornburg v.
Gingles, 478 U.
S. 30 (1986).
931
Indeed, the principal opinion in
Bush v.
Vera,
post, p. 952, issued this same day, makes clear that the
deliberate consideration of race in drawing district lines does not
in and of itself invite constitutional suspicion. As the opinion
there explains, our precedents do not require the application of
strict scrutiny "to all cases of intentional creation of
majority-minority districts."
Bush, post, at 958. Rather,
strict scrutiny should apply only upon a demonstration that "'race
for its own sake, and not other districting principles, was the
legislature's dominant and controlling rationale in drawing its
district lines.'"
Ibid. (quoting
Miller, 515 U. S.,
at 913).
Because "the legitimate consideration of race in a districting
decision is usually inevitable under the Voting Rights Act when
communities are racially mixed,"
Shaw I, 509 U. S., at 683
(SOUTER, J., dissenting), our decisions in
Miller, DeWitt,
and
Bush have quite properly declined to deem all race-based
districting subject to strict scrutiny. Unlike many situations in
which the consideration of race itself necessarily gives rise to
constitutional suspicion, see,
e. g., Batson v.
Kentucky, 476
U. S. 79 (1986);
Adarand Constructors, Inc. v.
Pena, 515 U.
S. 200 (1995), our precedents have sensibly recognized that in
the context of redistricting a plaintiff must demonstrate that race
had been used in a particularly determinative manner before strict
constitutional scrutiny should obtain. Cf.
Regents of Univ. of
Cal. v.
Bakke, 438 U. S. 265 (1978).
This higher threshold for triggering strict scrutiny comports with
the fact that the shared representational and stigmatic harms that
Shaw purports to guard against are likely to occur only when
the State subordinates race-neutral districting principles to a
racial goal. See
Shaw I, 509 U. S., at 646-649; 861 F.
Supp., at 476-478 (Voorhees, C. J., dissenting); Pildes &
Niemi, 92 Mich. L. Rev., at 499-524.
Shaw I is entirely consistent with our holdings that
racebased districting which respects traditional districting
prin-
932
ciples does not give rise to constitutional suspicion. As the
District Court noted,
Shaw I expressly reserved the question
whether" 'the intentional creation of majority-minority districts,
without more,' always gives rise to an equal protection claim." 861
F. Supp., at 429 (quoting
Shaw I, 509 U. S., at 649).
Shaw I held only that an equal protection claim could lie as
a result of allegations suggesting that the State's districting was
"so extremely irregular on its face that it rationally can be
viewed only as an effort to segregate the races for purposes of
voting,
without regard for traditional districting principles."
Id., at 642 (emphasis added).
Moreover,
Miller belies the conclusion that strict
scrutiny must apply to all deliberate attempts to draw
majorityminority districts if the Equal Protection Clause is to
provide any practical limitation on a State's power to engage in
race-based districting. Although Georgia argued that it had
complied with traditional districting principles, the
Miller
majority had little difficulty concluding that the State's
raceneutral explanations were implausible.
Miller v.
Johnson, 515
U. S. 900 (1995).7 Thus,
Miller demonstrates that
although States may avoid strict scrutiny by complying with
traditional districting principles, they may not do so by
proffering pretextual, race-neutral explanations for their
maps.
The notion that conscientious federal judges will be able to
distinguish race-neutral explanations from pretextual ones is
hardly foreign to our race discrimination jurisprudence. In a
variety of contexts, from employment to juror selection, we have
required plaintiffs to demonstrate not only that a
7For example, the State argued that it drew the
majority-minority district under review so that it would follow
precinct lines, but the Court found that precinct lines had been
relied on only because they happened to facilitate the State's
effort to achieve a particular racial makeup. Similarly, the State
argued that District 11 was drawn in order to ensure that
communities of interest would be kept within a single district, but
the Court found that no such communities could be found within the
district's boundaries. See
Miller v.
Johnson, 515 U.
S., at 918-920.
933
defendant's action could be understood as impermissibly race
based, but also that the defendant's assertedly raceneutral
explanation for that action was in fact a pretext for racial
discrimination.
Purkett v.
Elem, 514 U. S. 765, 767768
(1995);
St. Mary's Honor Center v.
Hicks, 509 U. S. 502, 518-519
(1993). Similarly, I understand
Shaw I, Miller, DeWitt, and
Bush to require plaintiffs to prove that the State did not
respect traditional districting principles in drawing
majority-minority districts. See
Bush, post, at 958.
In holding that the present record shows race to have been the
"predominant" consideration in the creation of District 12, the
Court relies on two pieces of evidence: the State's admission that
its "overriding" purpose was to "'create two congressional
districts with effective black voting majorities,'"
ante, at
906; and the" 'geographically non-compact'" shape of District 12,
ibid. In my view, this evidence does not suffice to trigger
strict scrutiny under the "demanding" test that
Miller
establishes.
Miller v.
Johnson, 515 U. S., at 928
(O'CONNOR, J., concurring).8
North Carolina's admission reveals that it intended to create a
second majority-minority district.9 That says noth-
8 It is unclear whether the majority believes that it is the
combination of these two pieces of evidence that satisfies
Miller, or whether either one would suffice.
9 Citing to trial and deposition testimony, the majority also
relies on a statement by North Carolina's chief mapmaker, Gerry
Cohen, that the creation of a majority-minority district was the
"'principal reason'" for the configurations of District 1 and
District 12.
Ante, at 906. Mr. Cohen's more complete
explanation of the "'principal reason' " was to create "two
majority black districts that had communities of interest within
each one." Tr. 514. What Mr. Cohen admitted, therefore, was only
that the State intentionally drew a majority-minority district that
would respect traditional districting principles. Moreover, Mr.
Cohen's "admission" in his deposition only pertained to District 1.
App. 675. Finally, he explained in his deposition that "other
reasons" also explained that district's configuration.
Ibid.
Absent a showing that those "other reasons" were race based, Mr.
Cohen's admission does not show that North Carolina
934
ing about whether it subordinated traditional districting
principles in drawing District 12. States that conclude that
federal law requires majority-minority districts have little choice
but to give "overriding" weight to that concern. Indeed, in
Voinovich v.
Quilter, 507 U. S. 146, 159
(1993), we explained that evidence that showed that Ohio's chief
mapmaker preferred "federal over state law when he believed the two
in conflict does not raise an inference of intentional
discrimination; it demonstrates obedience to the Supremacy Clause
of the United States Constitution." For that reason, we have not
previously held that concessions such as North Carolina's suffice
to trigger strict scrutiny. Cf.
Bush, post, at 958, 962.10
Thus, the State's concession is of little significance.
District 12's noncompact appearance also fails to show that
North Carolina engaged in suspect race-based districting. There is
no federal statutory or constitutional requirement that state
electoral boundaries conform to any particular ideal of geographic
compactness. In addition, although the North Carolina Constitution
requires electoral districts for state elective office to be
contiguous, it does not require them to be geographically
compact.ll N. C. Const., Art. II,
subordinated race-neutral districting criteria in drawing
District 1; it shows only that the need to comply with federal law
was critical.
10 In
De Witt v.
Wilson, 856 F. Supp. 1409 (ED
Cal. 1994), for example, the State conceded that compliance with §
5 of the Voting Rights Act constituted the one unavoidable
limitation on its redistricting process.
Id., at 1410.
Nevertheless, we affirmed the District Court's conclusion that
strict scrutiny did not apply because the State gave significant
weight to several race-neutral considerations in meeting that goal.
Id., at 1415. Moreover, in
Miller v.
Johnson,
515 U. S. 900
(1995), the Court applied strict scrutiny only after it concluded
that the State considered only race in adding African-American
voters to District 11; it did not hold that Georgia's general
admissions about its desire to comply with federal law themselves
sufficed.
Id., at 917-919.
11 The State Constitution sets forth no limitation on
districting for federal offices. Moreover, the state-prepared 1991
Legislator's Guide to North Carolina Legislative and Congressional
Redistricting points out
935
§§ 2, 5 (1984). Given that numerous States have written
geographical compactness requirements into their State
Constitutions, North Carolina's omission on this score is
noteworthy. See Grofman, Criteria for Districting: A Social Science
Perspective, 33 UCLA L. Rev. 77, 84 (1985). It reveals that North
Carolina's creation of a geographically noncompact district does
not itself mark a deviation from any prevailing state districting
principle.12 Thus, while the serpentine character of District 12
may give rise to an
inference that traditional districting
principles were subordinated to race in determining its boundaries,
it cannot fairly be said to
prove that conclusion in light
of the clear evidence demonstrating race-neutral explanations for
the district's tortured shape. See
infra, at 936-937.
There is a more fundamental flaw in the majority's conclusion
that racial concerns predominantly explain the creation of District
12. The evidence of shape and intent relied on by the majority
cannot overcome the basic fact that North Carolina did not have to
draw Districts 1 and 12 in order to comply with the Justice
Department's finding that federal law required the creation of two
majority-minority districts. That goal could have been more
straightfor-
that the state-law prohibition against dividing counties in
formulating state electoral districts was eliminated in the 1980's.
See Legislator's Guide to North Carolina Legislative and
Congressional Redistricting 12 (Feb. 1991).
12 Indeed, the State's guide to redistricting specifically
informed state legislators that compactness was of little legal
significance. "Neither the State nor federal constitution requires
districts to be compact. Critics often refer to the lack of
compactness of a particular district or group of districts as a
sign of gerrymandering, but no court has ever struck down a plan
merely on the basis that it did not appear to be compact. Although
there are geometric methods for measuring the compactness of an
area, these methods have not been recognized as judicial standards
for evaluating the compactness of districts.
"The recent decision in
Davis v.
Bandemer ...
mentions irregularlyshaped districts as a possible sign of
gerrymandering but makes clear that irregular shapes alone do not
invalidate a redistricting plan."
Ibid.
936
wardly accomplished by simply adopting the Attorney General's
recommendation to draw a geographically compact district in the
southeastern portion of the State in addition to the
majority-minority district that had already been drawn in the
northeastern and Piedmont regions. See
Shaw I, 509 U. S., at
634-635; 861 F. Supp., at 460, 461-462, 464.
That the legislature chose to draw Districts 1 and 12 instead
surely suggests that something more than the desire to create a
majority-minority district took precedence. For that reason, this
case would seem to present a version of the very hypothetical that
the principal opinion in
Bush suggests should pose no
constitutional problem-"an otherwise compact majority-minority
district that is misshapen by predominantly nonracial, political
manipulation."
Bush, post, at 981.
Here, no evidence suggests that race played any role in the
legislature's decision to choose the winding contours of District
12 over the more cartographically pleasant boundaries proposed by
the Attorney General.13 Rather, the rec-
13 The State's decision to give little weight to how the
district would look on a map is entirely justifiable. Although a
voter clearly has an interest in being in a district whose members
share similar interests and concerns, that interest need not, and
often is not, vindicated by drawing districts with attractive
shapes. "[The Districts'] perceived 'ugliness'their extreme
irregularity of shape-is entirely a function of an artificial
perspective unrelated to the common goings and comings of the
citizenvoter. From the mapmaker's wholly imaginary vertical
perspective at 1:25,000 or so range, a citizen may well find his
district's one-dimensional, featureless shape aesthetically
'bizarre,' 'grotesque,' or 'ugly.' But back down at ground or
eye-level, viewing things from his normal closely-bound horizontal
perspective, the irregularity of outline or exact volume of the
district in which he resides surely is not a matter of any great
practical consequence to his conduct as a citizen-voter." 861 F.
Supp. 408,472, n. 60 (EDNC 1994).
In the same vein, I doubt that residents of hook-shaped
Massachusetts receive less effective representation than their
counterparts in perfectly rectangular Wyoming, or that the voting
power of residents of Hawaii
937
ord reveals that two race-neutral, traditional districting
criteria determined District 12's shape: the interest in ensuring
that incumbents would remain residents of the districts they have
previously represented; and the interest in placing predominantly
rural voters in one district and predominantly urban voters in
another. 861 F. Supp., at 466-472; see also
Miller v.
Johnson, 515
U. S. 900 (1995) (considering whether communities of interest
were preserved);
White v.
Weiser, 412 U. S. 783, 793-797
(1973) (establishing incumbency protection as a legitimate
districting principle).
Unlike most States, North Carolina has not given its chief
executive any power to veto enactments of its legislature. Thus,
even though the voters had elected a Republican Governor, the
Democratic majority in the legislature was in control of the
districting process. It was the Democrats who first decided to
adopt the ll-white-district plan that arguably would have violated
§ 2 of the Voting Rights Act and gave rise to the Attorney
General's objection under § 5. It was also the Democrats who
rejected Republican Party maps that contained two majority-minority
districts because they created too many districts in which a
majority of the residents were registered Republicans. 861 F.
Supp., at 460.
If race rather than incumbency protection had been the dominant
consideration, it seems highly unlikely that the Democrats would
have drawn this bizarre district rather than accepting more compact
options that were clearly available. If race, rather than politics,
had been the "predominant" consideration for the Democrats, they
could have accepted the Republican Plan, thereby satisfying the
Attorney General and avoiding any significant risk of liability as
well as the attack mounted by the plaintiffs in this case. Instead,
as the detailed findings of the District Court demonstrate, the
legislature deliberately crafted a districting plan that
is in any way impaired by virtue of the fact that their State is
not even contiguous.
938
would accommodate the needs of Democratic incumbents.
Id., at 466-467.14
If the Democrats remain in control of the districting process
after the remand in this case, it will be interesting to see
whether they will be willing to sacrifice one or more
Democratic-majority districts in order to create at least two
districts with effective minority voting majorities. My review of
the history revealed in the findings of the District Court
persuades me that political considerations will probably take
priority over racial considerations in the immediate future, just
as they surely did during the process of rejecting the Republican
Plan and ultimately adopting the plan challenged in this
case.15
A deliberate effort to consolidate urban voters in one district
and rural voters in another also explains District 12's highly
irregular shape. Before District 12 had been drawn, members of the
public as well as legislators had urged that "the observance of
distinctive urban and rural communities of interest should be a
prime consideration in the general redistricting process."
Id., at 466. As a result, the legislature was naturally
attracted to a plan that, although less than esthetically pleasing,
included both District 12, which links the State's major urban
centers, and District 1, which has a population that predominantly
lives in cities with populations of less than 20,000.
Id.,
at 467.
14 It is ironic that despite the clear indications that party
politics explain the district's odd shape, the Court affirmed the
District Court's dismissal of the plaintiffs' partisan
gerrymandering claim. See
Pope v.
Blue, 506
15 Interestingly, the Justice Department concluded that it was
the State's impermissible desire to favor white incumbents over
African-American voters that explained North Carolina's refusal to
create a second district and thus gave rise to a violation of the
purpose prong of § 5 of the Voting Rights Act. See
Shaw I,
509 U. S. 630,
635 (1993). Of course, the white plaintiffs before us here have no
standing to object to District 12 on similar grounds.
939
Moreover, the record reveals that District 12's lines were drawn
in order to unite an African-American community whose political
tradition was quite distinct from the one that defines
African-American voters in the Coastal Plain, which District 1
surrounds.
Ibid. Indeed, two other majorityminority-district
plans with less torturous boundaries were thought unsatisfactory
precisely because they did not unite communities of interest. 861
F. Supp., at 465-466; Tr. 481. Significantly, the irregular
contours of District 12 track the State's main interstate highway
and are located entirely within the culturally distinct Piedmont
Crescent region. 861 F. Supp., at 466. Clearly, then, District 12
was drawn around a community "defined by actual shared interests"
rather than racial demography.
Miller v.
Johnson, 515
U. S., at 916; see also
Shaw I, 509 U. S., at 647-648;
DeWitt v.
Wilson, 856 F. Supp., at 1412, 1413-1414
(recognizing that districts were "functionally" compact because
they surrounded "communit[ies] of interest").
In light of the majority's decision not to remand for proper
application of the
Miller test, I do not understand how it
can condemn the drawing of District 12 given these two raceneutral
justifications for its shape. To be sure, in choosing a district
that snakes rather than sits, North Carolina did not put a premium
on geographical compactness. But I do not understand why that
should matter in light of the evidence that shows that other
race-neutral districting considerations were determinative.16
16 Although the majority asserts that North Carolina
"subordinated" traditional districting principles to racial
concerns because "[r]ace was the criterion that, in the State's
view, could not be compromised,"
ante, at 907, no evidence
suggests that North Carolina would have sacrificed traditional
districting principles in order to draw a second majorityminority
district. Rather, the record reveals that the State chose District
12 over other options so that its plan would remain faithful to
traditional, race-neutral districting criteria. If strict scrutiny
applies even when a State draws a majority-minority district that
respects traditional district-
940
III
As the foregoing discussion illustrates, legislative decisions
are often the product of compromise and mixed motives. For that
reason, I have always been skeptical about the value of
motivational analysis as a basis for constitutional adjudication.
See,
e. g., Washington v.
Davis, 426 U. S. 229, 253-254
(1976) (STEVENS, J., concurring). I am particularly skeptical of
such an inquiry in a case of this type, as mixed motivations would
seem to be endemic to the endeavor of political districting. See,
e. g, Bush, post, at 959 ("The present suit is a mixed
motive case").
The majority's analysis of the "compelling interest" issue
nicely demonstrates the problem with parsing legislative motive in
this context. The majority posits that the legislature's compelling
interest in drawing District 12 was its desire to avoid liability
under § 2 of the Voting Rights Act. Yet it addresses the question
whether North Carolina had a compelling interest only because it
first concludes that a racial purpose dominated the State's
districting effort.
It seems to me that if the State's true purpose were to serve
its compelling interest in staving off costly litigation by
complying with federal law, then it cannot be correct to say that a
racially discriminatory purpose
controlled its line-drawing.
A more accurate conclusion would be that the State took race into
account only to the extent necessary to meet the requirements of a
carefully thought out federal statute. See
Voinovich v.
Quilter, 507 U. S., at 159. The majority's implicit equation
of the intentional consideration
ing principles, then I do not see how a State can ever create a
majorityminority district in order to fulfill its obligations under
the Voting Rights Act without inviting constitutional suspicion. I
had thought that the "demanding" standard
Miller
established,
Miller v.
Johnson, 515 U. S., at 928
(O'CONNOR, J., concurring), as well as our summary affirmance in
De Witt, reflected our determination that States should not
be so constrained.
941
of race in order to comply with the Voting Rights Act with
intentional racial discrimination reveals the inadequacy of the
framework it adopts for considering the constitutionality of
race-based districting.
However, even if I were to assume that strict scrutiny applies,
and thus that it makes sense to consider the question, I would not
share the majority's hesitancy in concluding that North Carolina
had a "compelling interest" in drawing District 12. In my view, the
record identifies not merely one, but at least three acceptable
reasons that may have motivated legislators to favor the creation
of two such districts. Those three reasons easily satisfy the
judicially created requirement that the state legislature's
decision be supported by a "compelling state interest,"
particularly in a case in which the alleged injury to the
disadvantaged class-i.
e., the majority of voters who are
white-is so tenuous.
First, some legislators felt that the sorry history of race
relations in North Carolina in past decades was a sufficient reason
for making it easier for more black leaders to participate in the
legislative process and to represent the State in the Congress of
the United States. 861 F. Supp., at 462-463. Even if that history
does not provide the kind of precise guidance that will justify
certain specific affirmative-action programs in particular
industries, see
ante, at 909-910, it surely provides an
adequate basis for a decision to facilitate the election of
representatives of the previously disadvantaged minority.
As a class, state legislators are far more likely to be familiar
with the role that race plays in electoral politics than they are
with the role that it plays in hiring decisions within discrete
industries. Moreover, given the North Carolina Legislature's own
recent experience with voting rights litigation, see
Thornburg v.
Gingles, 478 U. S. 30 (1986), as
well as the fact that 40 of the State's districts are so-called
covered jurisdictions which the Attorney General directly moni-
942
tors as a result of prior discriminatory practices, see 42 U. S.
C. § 1973c (1988 ed.), there is less reason to assume that the
state legislative judgments under review here are based on
unwarranted generalizations than may be true in other contexts.
Thus, even if a desire to correct past discrimination did not
itself drive the legislative decision to draw two majority-minority
districts, it plainly constituted a legitimate and significant
additional factor supporting the decision to do so. 861 F. Supp.,
at 472-473.
Second, regardless of whether § 5 of the Act was actually
violated, I believe the State's interest in avoiding the litigation
that would have been necessary to overcome the Attorney General's
objection to the original plan provides an acceptable reason for
creating a second majority-minority district. It is entirely proper
for a State whose past practices have subjected it to the
preclearance obligation set forth in § 5 to presume that the
Attorney General's construction of the Act is correct, and to take
corrective action rather than challenging him 17 in Court.
Moreover, even if the State's interest in avoiding a court
challenge that might have succeeded does not constitute a
sufficient justification for its decision to draw a
majorityminority district, the State plainly had an interest in
complying with a finding by the Attorney General that it reasonably
believed could not have been successfully challenged in court. The
majority disagrees, relying on our analysis in
Miller v.
Johnson, 515 U. S., at 920-925. That reliance is
misplaced.
In
Miller, the Court concluded that Georgia had simply
acceded to the Attorney General's unreasonable construction of § 5
without performing any independent assessment of its validity.
Ibid. By contrast, the District Court here found as a
factual matter that the legislature's independent assess-
17 Although Attorney General Reno has endorsed the position
taken by the Republican administration in 1991, it was her male
predecessor who refused to preclear the State's original plan.
943
ment of the reasons for the Attorney General's denial of
preclearance led it to the reasonable conclusion that its 11-white
district plan would violate the purpose prong of § 5. 861 F. Supp.,
at 474. As a result, I do not accept the Court's conclusion that it
was unreasonable for the State to believe that its decision to draw
1 majority-minority district out of 12 would have been subject to a
successful attack under the purpose prong of § 5.
Ante, at
911-913.
I acknowledge that when North Carolina sought preclearance it
asserted nondiscriminatory reasons for deciding not to draw a
second majority-minority district. See 861 F. Supp., at 480, n. 9
(Vorhees, C. J., dissenting). On careful reflection, however, the
legislature concluded that those reasons would not likely suffice
in a federal action to challenge the Attorney General's ruling. The
District Court found that conclusion to be reasonable.
Id.,
at 474. I am mystified as to why this finding does not deserve our
acceptance. Nor do I understand the Court's willingness to credit
the State's declarations of nondiscriminatory purpose in this
context,
ante, at 912-913, in light of its unwillingness to
accept any of North Carolina's race-neutral explanations for its
decision to draw District 12,
ante, at 905-906.
Third, regardless of the possible outcome of litigation alleging
that § 2 of the Voting Rights Act would be violated by a plan that
ensured the election of white legislators in 11 of the State's 12
congressional districts, the interest in avoiding the expense and
unpleasantness of such litigation was certainly legitimate and
substantial. That the legislature reasonably feared the possibility
of a successful § 2 challenge cannot be credibly denied.18
18 While the majority is surely correct in stating that the
threat of a lawsuit, however unlikely to succeed, does not
constitute a compelling interest,
ante, at 908-909, n. 4, it
does not follow that a State has no compelling interest in avoiding
litigation over a substantial challenge. Here, of course, the
District Court found that North Carolina premised its decision to
draw a second majority-minority district on its reasonable
conclusion
944
In the course of the redistricting debate, numerous maps had
been presented showing that blacks could constitute more than 50
percent of the population in two districts. 861 F. Supp., at
460-461, 474. The District Court found that these plans had
demonstrated that "the state's AfricanAmerican population was
sufficiently large and geographically compact to constitute a
majority in two congressional districts."
Id., at 464.
Moreover, the Attorney General denied preclearance on the ground
that North Carolina could have created a second majority-minority
district that
was, under any reasonable standard,
geographically compact.
Id., at 461-462;
Shaw
I, 509 U. S., at 635. Maps prepared by the
plaintiffintervenors for this litigation conclusively demonstrate
that two compact, majority-minority districts could indeed have
been drawn. 861 F. Supp., at 464-465; Plaintiff-Intervenors' Exh.
301, A2-A3.
Even if many of the maps proposing two majorityAfrican-American
districts were not particularly compact, the legislature reasonably
concluded that a federal court might have determined that some of
them could have provided the basis for a viable vote dilution suit
pursuant to
Thornburg v.
Gingles, 478 U. S., at
50-51. 861 F. Supp., at 474. That conclusion is particularly
reasonable in light of the fact that
Gingles was a case
fresh in the minds of many of North Carolina's state legislators,
id., at 463. There, the State challenged the plaintiffs' § 2
claim by pointing to the oddly configured lines that defined their
proposed majorityminority districts. See
Gingles v.
Edmisten, 590 F. Supp. 345, 373 (EDNC 1984). As we know,
North Carolina's defense to § 2 liability proved unsuccessful in
that instance, even though the District Court acknowledged that the
"single-member district specifically suggested by the plain-
that it would otherwise be subject to a
successful § 2
challenge, not a "meritless" one.
Ibid.
945
tiffs as a viable one is obviously not a model of aesthetic
tidiness."
Id., at 374.19
Finally, even if the record shows that African-American voters
would not have composed more than 50 percent of the population in
any plan containing two compact, majorityminority districts, the
record reveals that it would have been possible to have drawn a map
containing one compact district in which African-Americans would
have composed more than 50 percent of the population and another
compact district in which African-Americans, by reason of the large
presence of Native Americans, would have by far constituted the
largest racial group. Plaintiff-Intervenors' Exh. 301, A2A3. Given
our recent emphasis on considering the totality of the
circumstances in § 2 cases, we are in no position to rebuke a State
for concluding that a 40-plus percent AfricanAmerican district
could provide a defense to a viable
Gingles challenge as
surely as could one with a 50.1 percent AfricanAmerican population.
See
Johnson v.
De Grandy, 512 U. S. 997, 1009-1012
(1994);
Voinovich v.
Quilter, 507 U. S. 146 (1993);
Rural West Tennessee African-American Affairs Council, Inc. v.
McWherter, 877 F. Supp. 1096 (WD Tenn.), aff'd, 516 U. S.
801 (1995).20
19 Interestingly, although this Court in
Thornburg v.
Gingles held that § 2 plaintiffs must demonstrate that they
live in "compact" majorityminority districts, we affirmed the
District Court which had found that the plaintiffs' proposed
districts were contiguous but not compact. 478 U. S., at 38.
Arguably, therefore, the State could have reasonably concluded that
the maps proposing District 12 would have themselves provided the
foundation for a viable § 2 suit. For a discussion of how compact
"compact" districts must be, see Karlan, Maps and Misreadings: The
Role of Geographic Compactness in Racial Vote Dilution Litigation,
24 Harv. Civ. Rights-Civ. Lib. L. Rev. 173, 199-213 (1989). See
also
Dillard v.
Baldwin County Bd. of Ed., 686 F.
Supp. 1459, 1465-1466 (MD Ala. 1988);
Houston v.
Lafayette County, Miss., 56 F.3d
606, 611
(CA5 1995).
20 Moreover, Mr. Cohen, the State's chief mapmaker, testified at
trial that in statewide elections, Native Americans and
Mrican-Americans in the southeastern portion of North Carolina had
voted for the same candidates. Tr. 411-412.
946
IV
Although the Court assumes that North Carolina had a compelling
interest in avoiding liability under § 2,
ante, at 916, it
avoids conclusively resolving that question because it holds that
District 12 was not a "narrowly tailored" means of achieving that
end. The majority reaches this conclusion by determining that
District 12 did not "remedy" any potential violation of § 2 that
may have occurred.
Ibid.
In my judgment, if a State's new plan successfully avoids the
potential litigation entirely, there is no reason why it must also
take the form of a "remedy" for an unproven violation. Thus, the
fact that no § 2 violation has been proved in the territory that
constitutes District 12 does not show that the district fails to
serve a compelling state interest. It shows only that a federal
court, which is constrained by Article III, would not have had the
power to
require North Carolina to draw that district. It is
axiomatic that a State should have more authority to institute a
districting plan than would a federal court.
Voinovich v.
Quilter, 507 U. S., at 156-157.
That District 12 will protect North Carolina from liability
seems clear. The record gives no indication that any of the
potential § 2 claimants is interested in challenging the plan that
contains District 12. Moreover, as a legal matter, North Carolina
is in a stronger position to defend against a § 2 lawsuit with
District 12 than without it.
Johnson v.
De Grandy expressly states that, at
least in the context of single-member districting plans, a
plaintiff cannot make out a prima facie case of vote dilution under
§ 2 unless he can demonstrate that his proposed map contains
more majority-minority districts than the State's. 512 U.
S., at 1008. By creating a plan with two majority-minority dis-
947
tricts here, the State would seem to have precluded potential
litigants from satisfying that precondition.21
In addition, satisfaction of the so-called
Gingles
preconditions does not entitle an individual minority voter to
inclusion in a majority-minority district. A court may conclude
that a State must create such a district only after it considers
the totality of the circumstances. A court would be remiss if it
failed to take into account that the State had drawn
majority-minority districts proportional to its minority population
which include portions of the very minority community in which an
individual minority plaintiff resides. Indeed, our recent decisions
compel courts to perform just such a calculus. See
Johnson
v.
De Grandy, 512 U. S., at 1012
1016; Voinovich v.
Quilter, 507
U. S. 146 (1993); see also
African American Voting Rights
Legal Defense Fund, Inc. v.
Villa, 54
F.3d 1345, 1355-1357 (CAS 1995).
21 The majority's assertion that
De Grandy only requires
a plaintiff to show that more "reasonably compact"
majority-minority districts could have been drawn would seem to
expand dramatically a State's potential liability under § 2.
Ante, at 916, n. 8. I would have thought that a State that
had drawn
three majority-minority districts, one of which
was "reasonably compact" and two of which straggled in order to
preserve certain distinctive communities of interest, would at the
very least be immune to a challenge by a single African-American
plaintiff bearing a map proposing to draw but
two compact
majority-minority districts. The Court's expansive notion of § 2
liability, combined with its apparent eagerness to subject all
legislative attempts to comply with that Act to strict scrutiny,
will place many States in the untenable position of facing
substantiallitigation no matter how they draw their maps. See
Miller v.
Johnson, 515
Of course, a State that unfairly "packs" African-American voters
into a limited number of districts may be subject to a § 2
challenge on the ground that it failed to create so-called
"influence" districts, and perhaps the majority means to endorse
that proposition as well. I note here, however, that there is no
indication that such a challenge could be successfully brought
against North Carolina's two majority-minority district plan, which
creates districts with only bare Mrican-American majorities.
948
Finally, North Carolina's chosen means of avoiding liability
will impose none of the burdens on third parties that have made the
Court wary of voluntary, race-based state action in the past. No
white employees or applicants stand to lose jobs on account of
their race as a result of North Carolina's actions. In fact, no
white voters risk having their votes unlawfully diluted. At most,
North Carolina's chosen means will require that some people of both
races will be placed in districts other than those to which they
would have otherwise been assigned. Even assuming that "burden" is
more onerous when it results from racial considerations, it does
not rise to a level of injury that justifies a federal court
intruding on the State's discretion to formulate a plan that
complies with the Voting Rights Act.
In fact, to the extent that plaintiffs in these cases premise
their standing on the "representational" harms that they suffer,
see
supra, at 927-928, a State's decision to locate a
majority-minority district outside the area that suffers from
acute, racial bloc voting would seem to diminish the likelihood
that representatives in majority-minority districts will serve only
the interests of minority voters. After all, a representative of a
majority-minority district that does not suffer from racial bloc
voting cannot safely ignore the interests of voters of either race.
In this respect, the majority's narrow tailoring requirement, by
forcing States to remedy perceived § 2 violations only by drawing
the district around the area in which the
Gingles
preconditions have been satisfied, has the perverse consequence of
requiring States to inflict the very harm that supposedly renders
racial gerrymandering challenges constitutionally cognizable.22
22 The Court's strict analysis in this case is in some tension
with the more reasonable approach endorsed by JUSTICE O'CONNOR this
same day. On her view, state legislatures seeking to comply with
the Voting Rights Act clearly possess more freedom to draw
majority-minority districts than do federal courts attempting to
enforce it.
Bush v.
Vera, post, at 994 (O'CONNOR, J.,
concurring).
949
Although I do not believe a judicial inquiry into "narrow
tailoring" is either necessary or appropriate in these cases, the
foregoing discussion reveals that the "narrow tailoring"
requirement that the Court has fashioned is a pure judicial
invention that unfairly deprives the legislature of a sovereign
State of its traditional discretion in determining the boundaries
of its electoral districts.23 The Court's analysis gives rise to
the unfortunate suggestion that a State that fears a § 2 lawsuit
must draw the precise district that it believes a federal court
would have the power to impose. Such a proposition confounds basic
principles of federalism, and forces States to imagine the legally
"correct" outcome of a lawsuit that has not even been filed.
The proposition is also at odds with the course of the
litigation that led to
Gingles itself. In that case, the
plaintiffs proposed a number of oddly configured majority-minority
districts to prove their vote dilution claim. In implementing a
remedy for the § 2 violation, the federal court wisely permitted
North Carolina to propose its own remedial districts, many of which
were highly irregular in dimension. Indeed, so peculiar were some
of the shapes concocted by the State that the
Gingles
plaintiffs challenged them on the grounds that they constituted
racial gerrymanders which failed to remedy the very violations that
had given rise to the need for their creation, and that they
reflected only grudging responses designed to protect incumbent
officeholders.
Gingles v.
Edmisten, 590 F. Supp., at
381.
Although the District Court in
Gingles acknowledged that
the State's plan was not the one that it would have implemented, it
nonetheless concluded that the plan constituted a reasonable
exercise of state legislative judgment. "[A] state legislature's
primary jurisdiction for legislative apportion-
23 That judicial creativity rather than constitutional principle
defines the narrowing tailoring requirement in this area of our law
is clear from
Bush's quite different analysis of the same
question. See
Bush, post, at 977.
950
ment and redistricting must include the right, free of judicial
rejection, to implement state policies that may fail to remedy to
the fullest extent possible the voting rights violations originally
found."
Id., at 382.
In dramatic contrast, the Court today rejects North Carolina's
plan because it does not provide the precise remedy that might have
been ordered by a federal court, even though it satisfies potential
plaintiffs, furthers such raceneutral legislative ends as
incumbency protection and the preservation of distinct communities
of interest, and essentially serves to insulate the State from a
successful statutory challenge. There is no small irony in the fact
that the Court's decision to intrude into the State's districting
process comes in response to a lawsuit brought on behalf of white
voters who have suffered no history of exclusion from North
Carolina's political process, and whose only claims of harm are at
best rooted in speculative and stereotypical assumptions about the
kind of representation they are likely to receive from the
candidates that their neighbors have chosen.
v
It is, of course, irrelevant whether we, as judges, deem it wise
policy to create majority-minority districts as a means of assuring
fair and effective representation to minority voters. We have a
duty to respect Congress' considered judgment that such a policy
may serve to effectuate the ends of the constitutional Amendment
that it is charged with enforcing. We should also respect North
Carolina's conscientious effort to conform to that congressional
determination. Absent some demonstration that voters are being
denied fair and effective representation as a result of their race,
I find no basis for this Court's intervention into a process by
which federal and state actors, both black and white, are jointly
attempting to resolve difficult questions of politics and race that
have long plagued North Carolina. Nor do I see how our
constitutional tradition can
951
countenance the suggestion that a State may draw unsightly lines
to favor farmers or city dwellers, but not to create districts that
benefit the very group whose history inspired the Amendment that
the Voting Rights Act was designed to implement.
Because I have no hesitation in concluding that North Carolina's
decision to adopt a plan in which white voters were in the majority
in only 10 of the State's 12 districts did not violate the Equal
Protection Clause, I respectfully dissent.
JUSTICE SOUTER, with whom JUSTICE GINSBURG and JUSTICE BREYER
join, dissenting.
My views on this case are substantially expressed in my dissent
to
Bush v.
Vera, post, p. 952.
Comments
Be the first to comment
Leave a Comment