*1 TEXAS, VERA et al. OF v. al. BUSH, GOVERNOR et 13, 1996* June 1995 Decided December Argued 94-805. No. 94-988, al., No. Vera et al. et 94-806, Lawson No. *Together court. the same al., appeal et also v. Vera States United *4 an Court and delivered J., O’Connor, judgment announced Kennedy, J., O’Con- Rehnquist, J., joined. and C. in which opinion, Kennedy, 990. post, p. concurring opinion, nor, J., a separate filed also Thomas, J., opinion filed an p. 996. post, J., concurring opinion, filed a Ste- Scalia, J., p. 999. joined, post, in which judgment, in the concurring Ginsburg JJ., Breyer, and in which vens, J., dissenting opinion, filed a in which Souter, J., dissenting opinion, filed 1003. post, p. joined, Ginsburg JJ., 1045. Breyer, post, p. joined, and Attorney Aguilar, Special Assistant General of Javier appellants argued in No. 94-805. With the cause Texas, Attorney him Morales, General, were Dan on the briefs Attorney Jorge Vega, General, Richard E. First Assistant Roger Gray Moore. III, and argued
Deputy the cause for General Bender Solicitor With him on the briefs in No. 94-988. the United States Attorney Days, Assistant General were Solicitor General Irving Gornstein, and H. Rosenbaum. Patrick, L. Steven appel- argued the cause and filed briefs for D. Hair Penda her on the briefs were Elaine lants in 94-806. With No. Shaw, Chachkin, Norman J. Antonia Jones, Theodore M. R. Anthony Rumbaut, and Chavez, E. Hernandez, Carmen Lawrence Boz. appellees Troy argued in all the cause for cases. E.
Daniel Loy Hurd, Rein, Bert were Paul W. on the brief With him † E. Toner. and Michael judgment of the Court announced O’Connor Justice and opinion, in which an
and delivered Chief Justice join. Kennedy Justice involving appeals latest in a series
This is the redistricting challenges efforts gerrymandering to state p. ante, Hunt, See Shaw v. of the 1990census. the wake (1995); (Shaw II); Hays, Miller 515U. S. States v. United (1995); Reno, 509 U. S. Shaw v. Johnson, 515 U. S. I). (1993) (Shaw population in- census revealed That Verrilli, Jr., J. Gerald Hebert filed Smith, B. †Paul M. Donald as amici curiae Committee et al. National for the Democratic a brief reversal. urging Legal filed for the Pacific curiae affirmance were Briefs of amici urging Fetra; Deborah J. La for the T. Caso by Anthony Foundation A. Popeo Daniel J. and Richard by et al. Foundation
Washington Legal Samp. Institute for Justice of amicus curiae were filed for the Briefs *5 Bullock; Bolick, III, and Scott G. and for A. J. H. Mellor Clint William Owens, Jr. C. by William
Pate 957 entitled minority populations, that largely in urban crease, response, In congressional seats. additional three Texas to Voting Rights ofAct complying with a view and §1973 et C. 42 S. (VRA), amended, U. 437, 79 Stat. redistricting plan promulgated Legislature Texas seq., the 30, a new things, District created among other that, County; cre- in Dallas majority-African-American in and majority-Hispanic district new 29, a District ated reconfigured District County; and Harris in Houston around majority- it a 29, to make adjacent to District is 18, which pre- Department of Justice The district. African-American § in used it was VRA plan under cleared congressional elections. alleg- plan, challenged the voters, Texas plaintiffs, six The constitute congressional districts ing 24 of Texas’ Amend- of the Fourteenth in violation gerrymanders racial for the District Court three-judge States United ment. 30 un- 18, 29, Districts held Texas District of Southern (1994). Supp. 1304 Richards, 861 F. Vera constitutional. the United intervenors, and private Texas, The Governor intervenor) juris- (as probable appeal. notedWe now States (1995). Finding this that, under 515 U. S. diction. lines Miller, the district I and decisions in Shaw Court’s they scrutiny, are and that subject strict issue are interest, we compelling state narrowly serve tailored to affirm.
I appellants private matter, the State preliminary As a challenge standing these districts. plaintiffs’ contest 25, and congressional District Texas Chen resides Plaintiff personally showing he any specificfacts alleged has not our Under any classification. subjected has been supra, Hays, standing. See Hays, lacks he decision residents Powers plaintiffs Blum and But 744-745. of Dis- are residents and Vera plaintiffs Thomas We 30. of District resident plaintiff Orcutt 29, and trict *6 “[w]here Hays plaintiff racially stated in resides in a gerrymandered plaintiff district, . . . the has been denied legislature’s equal because of the reliance on racial treatment challenge standing legis- therefore has to criteria, and supra, Ibid.; accord, Miller, at 910-911. lature’s action.” standing challenge plaintiffs have to rule, this these Under and 30. 18, 29, Districts
II sub- those districts are determine whether We must now variety scrutiny. precedents have used a ject to Our strict application threshold for the to describe of formulations scrutiny applies scrutiny. where “redistrict- Strict of strict extremely irregular on its face that ing legislation is so ... segregate only rationally as an effort be viewed it can regard traditional voting, for purposes without races for supra, or where “race I, at districting principles,” Shaw districting principles, was the and not other sake, its own drawing controlling rationale legislature’s dominant legisla- 913, and “the Miller, S., 515 U. at lines,” its district districting princi- race-neutral traditional ture subordinated id., also considerations,” id., at 916. See ples to racial ... (strict scrutiny only ap- concurring) at 928 J., (O’Connor, in substantial dis- relied on race plies has where “the State districting practices”). customary regard traditional redistricting merely scrutiny apply because does not Strict supra, I, of race. See Shaw performed consciousness creation apply cases of intentional to all does at 646. Nor Wilson, 856 v. majority-minority See DeWitt districts. 1994)(strict (ED apply scrutiny did not Supp. 1409 Cal. F. district), majority-minority compact intentionally created an (1995); supra, I, summarily cf. Shaw 515 S. aff’d, U. district lines (reserving question). Electoral this searching inquiry is neces- “facially so a more neutral,” race applicable in redis- scrutiny sary can be found strict before explicitly based tricting of “classifications than cases cases Peña, Inc. 515 U. S. Constructors, Adarand on race.” See (1995); post, at 999-1000, cf. 1002-1003 (THOMAS, J., concurring judgment) (assimilating redistricting our cases Adarand). scrutiny apply, plaintiffs For strict legitimate districting prove principles other, must were By Miller, S., to race. 515 U. that, “subordinated” 916. predominant that race must be “the we mean factor motivat- *7 Ibid, [redistricting] ing legislature’s (emphasis the decision.” added). thus differ from Justice We who would Thomas, apparently hold that it suffices that racial considerations be drawing majority-minority for the of a a motivation district. post, at 1002. present appellants suit is a mixed motive suit. The The goals creating that one of Texas’ in the three dis- concede produce majority-minority districts, tricts at issue was to but they goals, particularly that other incum- also cite evidence bency protection (including protection of “functional incum- Legislature sitting e., i. members of the Texas who bents,” open congressional to run for had declared an intention seats), drawing played in the also a role lines. “ ” history ‘purely not reflect a race-based’ The record does supra, districting (emphasis Miller, at 918 revisions. Cf. added). necessary is, therefore, A careful review to deter- subject scrutiny. mine whether these districts are to strict findings primary fact But review of the District Court’s and the record convinces us that the District Court’s deter- “predominant that race was the factor” in the mination drawing of each of the districts must be sustained. findings begin general regarding with and evidence
We districting redistricting plan’s respect princi- for traditional legislators’ expressed ples, motivations, and the methods began redistricting process. in The District Court used appellants’ analysis by rejecting for the factual basis its challenged cannot be unconstitu- Texas’ “districts claim that shape tionally Texas does not have and bizarre in because redistricting principles such as traditional never has used contiguity, compactness, geographical boundaries, natural Supp., at 861 F. conformity subdivisions.” “generally, Texas has found court instead The 1333. districting criteria,” disregarded traditional intentionally in Texas congressional district only pre-1991 one noncompactness to irregularity and in its comparable was court also Id., at 1334. challenged districts. three ap- ‘eyeball’ by an measured “compactness as noted 1313, 9,n. at important,” id., much less proach was 1980Texas predecessor, the than its App. 144, plan, districts and that districting plan, id., congressional and Harris shape in Dallas irregular in especially were located, challenged see County where areas n. 9. Supp., F. instruc- of an the conclusions comport findings These compact- the relative attempted to determine study that tive terms. objective, numerical nationwide of districts ness roughly aver- plan districting study gave Texas’ That its district regularity compactness and age score *8 in among the plan the worst 1991 its shapes, ranked but Harms, “Bizarre Expressive Niemi, & Pildes See Nation. Evaluating Election-District Rights: Voting Districts,” and 483, 571- L. Rev. Reno, 92 Mich. After Shaw Appearances (1993). 18, 29, study Districts ranked same The 6 573,table congressional districts na- regular among least the 28 30 and gives own review 3. Our id., at table tionwide. that the Court disagree the District to no reason us traditional, integrity terms in no issue “have at districts Supp., at 1339. 861 F. criteria,” redistricting neutral evidence direct substantial found also Court The District submis- The State’s racial motivations. legislature’s preclearance under for Department of Justice to the sion legislature that the § within reports consensus VRA congressional districts new three “ way allow mem- as to configured such in ‘should to elect language minorities ethnic, and racial, bers of Accordingly, the three representatives. Congressional district black predominantly include districts new pre- 30] [District and County area Dallas in the drawn County area Harris in the districts dominantly Hispanic region. addition In Texas 29] in the South [District pro- minority districts, the new creating the three to plan redistricting increases Congressional posed (Harris current District strength voting black that the to assure population increasing the County) a candidate elect may to community continue black Voting (quoting Narrative Id., choice.’” its re- Districts, in Affected Rights Act Considerations 104-105). App. printed litigation the three this conceded also appellants
The enhancing purpose of for “were created at issue districts repre- minority elect minority voters opportunity testi- And Supp., 1337. F. Congress.” sentatives decision confirmed officials state of individual mony majority-minority challenged as now districts to create process never outset at the made was seriously questioned. redistricting deci- its make used Texas means The importance of race. of the evidence further provides
sions a com- was drawing lines district used tool primary permitted REDAPPL called “REDAPPL.” program puter maps, computer on lines district manipulate redistricters superim- were data socioeconomic other which lines configuration change in At each posed. composi- updated racial displayed drafted, REDAPPL being con- REDAPPL drawn. the district statistics tion *9 other level, whereas block-by-block at the data racial tained statistics, voting past and registration party as data, such districts tabulation voter of level only at available were availability The precincts). (which election approximate be- unprecedented; data was block-by-blockracial of use and beyond the down not broken were census, data fore uniquely By providing App. 123. level. tract census make to enabled districters data, REDAPPL detailed racial than on the of race basis on the refinements intricate more The District Court demographic information. of other basis fully of themselves availed districters that the found opportunity: race between the correlation instances, numerous
“In bor- nearly The perfect. . . . is boundaries and district to change block from 29, and 30 Districts ders other, tra- street to the one side from block, commercially devel- water, and streets, bodies verse real- arbitrary until one fashion seemingly oped in areas minority populations.” connect those corridors izes that Supp., at 1336. F. substantially neglected tra- findings the State These —that was that it compactness, as districting such criteria ditional majority-minority dis- creating to the outset committed exploit un- lines manipulated district it and that tricts, weigh in favor together detailed precedentedly data — any hold that scrutiny. We do not application of strict require independently sufficient is factors these one regular- not mandate does scrutiny. The Constitution strict 647, and S., U. .shape, I, 509 see ity of district necessary, merely is districting criteria neglect of traditional dis- apply, traditional scrutiny to For strict sufficient. Miller, race. be subordinated tricting must criteria the decision emphasized, is have we Nor, as S., at 916. U. objectionable majority-minority district to create not, is decision of that evidence The direct Jus- itself. key” our “the post, real suggests, Stevens tice ingredients. essential merely of several one it is decision; was merely because legislation state do we “condemn Nor 28. 1031, n. Post, at information.” on accurate based information technology detailed sophisticated use objec- no more majority-minority drawing of dis- majority-majority drawing it is than tionable *10 explained, as the District Court the direct evi- But, tricts. coupled considerations, fact the of racial with the dence significantly sophisticated program computer used was more respect demographic with respect race other than that it that led provides evidence was race data, substantial districting neglect criteria here. We to the of traditional played in what role factors consider other therefore must predominated. whether race to determine order were at work in the draw- than race factors other Several districting criteria were Traditional ing districts. integrity 18and 29 maintain entirely neglected: Districts districts takes its character county the three each lines; surrounding and city area; urban principal and from a widely dispersed Car- as North as of the districts none p. II, ante, 899. in Shaw held unconstitutional olina district (These in the however, unremarkable are, characteristics counties.) densely populated More urban large, context incumbency found that Court significantly, the District unprece- redistricting plan an protection influenced extent: dented protec- many incumbent
“[A]s Texas enacted redistricting prin- sabotaged traditional boundaries tion neigh- cities, routinely counties, they divided ciples as maintaining or regions. For sake borhoods, and Representatives, Con- the House winning seats groups Congressmen hostile shed gressmen or would-be fencing dis- by out of their them opponents potential obligingly out carved Legislature The tricts. suggested incumbents, supporters apparent appendages to connect then added incumbents, final result districts. to those their residences repre- people their select which not one in seems representatives have se- which but in sentatives, (citations Supp., at 1384 people.” F. lected omitted). footnotes *11 specific (describing evidence id., at. 1317-1318 See also statewide). finding re- This
incumbency protection efforts one of all but that the fact support from inferential ceives id., at See 1992 elections. won 27 incumbents Texas’ many that in point to evidence appellants And 1318. com- strongly manifestations with correlates race eases, print (for and broadcast example, shared munity of interest such infrastructure, and institutions transport public media, churches) are data that political and as schools possibility raising the efforts, protection incumbency vital district demographics racial between correlations motivations. of nonracial terms explicable may be lines lines that district court finding a district example, a For (other than evidence part the basis on drawn were might weaken data) existed of interest communities of where drawing of in the predominated race claim that plaintiff’s (rec- dissenting) 1049 post, at Cf. lines. J., district (Souter, in our interest of communities legitimate role ognizing the democracy). representative system of race-neutral, if appropriate scrutiny not would Strict ra over predominated districting considerations traditional gerrymandering political subjected not have ones. We cial 109, S. Bandemer, 478 U. v. scrutiny. Davis strict (“[UJnconstitutional opinion) (White, (1986) plurality J., system is ar the electoral only when occurs discrimination voter’s consistently degrade will manner ranged in a process influence voters’ group of aor judgment) concurring in J., whole”); id., at 147 (O’Connor, justicia- claims” gerrymandering (“[PJurely political incumbency protection, recognized ble). have And we in between “avoiding contests form limited in the least Dag v. Karcher goal. See cumbent[sj,” legitimate state aas 783, S. 412 U. (1983); Weiser, v.White 725, S. gett, 462 U. (1966); n. 16 73, 89, S. Richardson, U. (1973); Burns 751-754, and S. Cummings, 412 U. Gaffney v. cf. in order lines irregular (State district (1973) may draw 18 n. major political parties). proportionately to seats to allocate only not the factor that race was it is clear Because irregular lines, legislature to draw motivated challenged district to determine each scrutinize we must predomi- race Court’s conclusion whether including districting considerations, legitimate nated over incumbency, can be sustained.
A 50%African-American population District 30 is population is Fifty percent the district’s Hispanic. 17.1% *12 shaped, core in irregularly south compact, albeit in a located the remainder But African-American. is 69% Dallas, which bizarrely shaped ten- narrow and of consists district “segments” extending seven State identifies tacles—the — also App. see 335; west. See and primarily to north Politics American Ujifusa, Almanac & G. Barone M. district). (1995) dis- 98%of the Over (describing the p. 1277 County, App. but see within Dallas population is trict’s ex- northern county western and lines its two it crosses County grabs into Tarrant excursion Its western tremities. id., at African-American, community that is 61.9% small County occupies a Collin into excursion northern 331; its only area in exactly onto the shape mapping hook-like African- county a combined of that half southern population excess percentage Hispanic American description District Court’s 153. id., at 50%, repeating: whole as a bears district County, delib- throughout Dallas sprawls district “The neighborhoods wealthy white erately excludes fingers extends University Park and Park and Highland suburbs the outermost County, include which into Collin up a picks County, the district In Collin Dallas. ex- The district neighborhood. African-American small up border pick only small County Tarrant into tends It concentration. high African-American awith area reaches out to claim Hamilton an Park, also affluent neighborhood by African-American surrounded whites. along Trinity Part of the district runs River bottom, minority using dispersed population. it to connect Nu- [voter districts] split tabulation were in order merous required population mix for the achieve district. long.” “. . . It is at least 25 miles wide and 30 miles Supp., 861 F. at 1337-1338. (outline 30). Appendix opinion this of District also A to deny
Appellants do that District 30 shows substantial districting principles disregard of com- for the traditional pursued pactness regularity, that the redistricters or majority-African- objective creating unwaveringly shape they argue that its bizarre But American district. of interest in a explained to unite communities efforts protect especially, incumbents. single and, highlight has a con- Appellants the facts that the district sources sistently and has common media urban character major tentacles include several throughout, its city factors, of Dallas. These transportation lines into districting principles, corre- do implicate traditional which layout. But we see with the district’s to some extent late *13 con- displacing Court’s the record for basis in no particularly in them, predominated over race clusion that supporting data findings that State’s light court’s of the any organized fash- Legislature in to the “available were not Supp., 1338, created,” 861 F. was District 30 ion before surrounding the district from they “differentiate do not degree to district of correlation the same ibid., with areas,” reaching App. In 150. exhibit, see that racial data lines require fears, not, as conclusion, we do Stevens Justice comprehensive compile redistricting “a to engaged in States dissent- post, record,” (Stevens, J., administrative explicitly mentioned not facts ing), dismiss and we do not history “irrelevant,” as legislative redistricting plan’s may commonly happen, districting traditional If, ibid. as substantially principles followed without much conscious they thought, to have been “subordinated to cannot be said “predominant considering In whether race was the race.” legislature],” motivating is, however, eviden- factor redistricting, tially significant time of the that at the compiled for use in redistrict- detailed racial data had State attempt compile, apparent ing, and did not made no but regarding equivalent communities specifically data to, refer interest. present case for their claim Appellants a more substantial determining incumbency protection rivaled race principal Representative was the shape. Johnson district’s designed part to create which was of District architect early stage in the At an for her. Democratic seat a safe legisla- to the state redistricting process, submitted Johnson relatively compact County 44% plan for Dallas ture integrity not violate that did district African-American App. county or lines. See any voter tabulation found Supp., The District Court at 1338. 861 F. 139; object” id., at minority “[w]hile it, voters did was incumbents and opposition “[t]hat plan much drew “[F]ive other con- 22. 1321, n. quickly abandoned,” id., at than other thrown into districts gressmen been would have Ap- they currently represent.” Id., at 1330-1331. the ones testimony others to point from Johnson pellants also adjacent Democratic the incumbents effect that strong partly ef- successful and 24 exerted Districts 5 Democratic predominantly African-American to retain forts (There that 97% of evidence was districts. in their voters city of Dallas and around voters in African-American Democrat.) generally id., at 1321-1322. vote might incumbency protection ex- circumstances, In some decision than, race a State’s plain as, well or better districting principles, such as depart from other traditional *14 lines. And drawing district compactness, of bizarre in the being many the voters of happens, . . . “[a]s it that, the fact incumbents] neighboring Democratic [by the fought over of in and not, 1338, would id., at African-American,” were gerryman- racial into a gerrymander political itself, convert of corre- were redistricters conscious how no matter der, I, 509 See Shaw party affiliation. race and between lation race merely with correlate lines If at 646. S.,U. affiliation, political of basis on the they are drawn because classification is no racial race, there correlates which prosecu- level in the disproportions just as justify, racial they unobjectionable if may be crime particular for a tions that the commission disproportions in merely racial reflect (dis- dissenting) J., 30n. 1032, post, at crime, cf. (Stevens, Armstrong, ante, at 456. v. cussing States United ger political constitutional goal otherwise is If the State’s political data the kind to use is free rymandering, general election precinct which Stevens focuses— Justice voting pat primary precinct 1030, post, at patterns, voting post, at experience, legislators’ post, at terns, itsof awareness of its regardless goal that achieve 1026—to so it does that regardless of the fact implications and racial the extent To district. majority-minority of a the context contrary, it erred. suggested Court that proxy for a is used race extent to the But scrutiny requiring strict stereotype characteristics, a racial (1991) 499 U. S. Ohio, operation. Cf. Powers is in com juror or determining bias (“Race proxy for abe cannot post, at see dissenters, agree with cannot We petence”). (Sou 1051-1052, n. dissenting); post, at (Stevens, J., n. 4 924-925, ante, II, also Shaw dissenting); see J., ter, we stereotyping dissenting), J., (Stevens, can jury service context closely in the scrutinized have voting. If the context justification pass without our Nation Amendments, promise of Reconstruction up to be discrimination, is state-sponsored free to be forms the basic between choose pick and we cannot held, *15 political participation unjustified in our efforts to eliminate stereotyping by government racial actors. ample
Here, the District had Court bases which to con- racially gerrymandering clude both that motivated had a qualitatively greater drawing influence on the of district politically gerrymandering, po- than lines motivated and that gerrymandering accomplished large part by in litical was § proxy. of race as a The use State’s own VRA submission explains drawing rejection of District and the plan, exclusively compact more Johnson’s terms: “Throughout Congressional the course of redistrict- proposed ing process, the lines of the District 30 were attempt constantly reconfigured in an to maximize strength community voting black in Dallas for this agreement County legislature was in While the ... Dallas should be drawn safe black district composition, County dispute involved area, the real The commu- configuration quality that district. [a] nity black district be drawn ‘safe’ insisted population of at least 50%.. .. had a total black proposals [alternative] showed a Although some “. .. configuration, reached the compact none of them more population the commu- which total black threshold 50% ability its necessary its to elect nity to assure felt was having representative without Congressional own minority groups. .. . other form coalitions with only a district that would goal create was to “... community opportunity for the black maximize the in of its choice but Congressional candidate elect a major growth black some of the included also one that and economic continued electoral areas which will assure App. 106-107. opportunities the next decades.” over testimony of state officials in noted, As the District Court (in challenged litigation 30 was as a which District earlier testimony part political gerrymander) of their contradicted consideration primary was “race affirmed here, and 1338; Supp., at F. 30.” of District construction in a letter explained Johnson And id., at 1319-1321. also see the re- end at the written Department of Justice been had incumbency protection process that districting proxy: using race as achieved *16 “ re Congressional district- the of course ‘Throughout the reconfigured to continuously were lines ing process, the the in incumbents Democratic the protecting in assist the spreading by metroplex area Worth Dallas/Fort party index Democratic the increase population Black Exh. Plaintiff (quoting Id., at those areas.’” in 6E6). districters’ the of evidence direct say the that
This Jus- As considered. factor the be sole race to showed intent of- 23-24, state nn. 1024-1025, at post, notes, Stevens tice changed. have interests their changed as have claims ficials’ Depart- the and suit gerrymandering political prior In the In predominated. race that they asserted Justice, of ment considerations political testimony that was their suit, this be must statements inconsistent These predominated. ques- such But context. adversarial light their 'of in viewed Court, and District the credibility matters of tions reading of the in our dissenters the simply differ we reli- Court’s District the insupportable they find when record importance indicating the statements own the State’s ance (opinion 31 n. 23-24,1033, 1024-1025, nn. post, at race, see J.). Stevens, pro- evidence objective the significantly, most Finally, and suggests maps demographic and plans by the district vided the district- that Given race. predominance strongly the at only data racial provided State ing used software unlike District fact level, block-by-block districts tabulation splits voter original proposal, Johnson’s App. 150;861 see many places, streets individual and even predominated suggests criteria Supp., F. determining the districting district’s criteria other over strong correlation between despite And, boundaries. political maps reveal affiliation, the and race classification to racial subordinated were considerations bizarre and many most extreme drawing district, hook of example, the northernmost For lines. perfectly County, is tailored Collin into it ventures where (all and App. whole population, see minority maximize 30’s within tabulation voter parts African-American a combined County have hook Collin average an 50%, in excess population Hispanic id., 331, while 19.8%, population of African-American in all Hispanic population African-American combined parts other districts, surrounding tabulation voter 25%),whereas County than is less split districts, in Collin necessary to maximize shape would far from isit *17 (showing a id., at 196 area, see in that vote Democratic the seven voting patterns in on 1990 majority, based Republican partly wholly or tabulation eight 1990 voter the of County).* in 30 Collin District included 30, disagreement our District precedents our of application *In the In 1014-1031, factual. largely is dissent, at post, Stevens’ with Justice fact, ignore we cannot primary of findings Court’s District the reviewing and testimony of days heard several Court the District that reality the details factual with familiar more significantly became and argument dissent that the believe therefore We can be. this Court than this suit of witnesses’ of the assessment Court’s the District second-guessing errs tuning,” “fine mere dismissing 1025, 24, and in n. at testimony, post, see Court the District proxy as a race using 1030, practice at post, Richards, 861 see Vera evidence, pervasive, be ample found, on based 1994). (SD 1304, Tex. 1322 Supp F. factual every on the dissent to debate reason, we decline For same our, But Court’s, .view. and the District from diverges on which nuance First, response. merit 30 about District claims specific its two awith results precinct 1992 of the comparison “[a] asserts dissent reveals block in each census population of black proportion depiction of 30] [of District area greater cover far Democratic-leaning precincts factors us to The of these compels combination agree Dis- that “the contours Congressional the District Court in terms other than race.” trict are unexplainable not evince It true that 30 does at F. 1339. Supp., voters on effort consistent, “segregate” single-minded and J., at 1023 race, dissenting), the basis post, (Stevens, at post, does not “apartheid,” (Souter, represent used in that racial data were But the fact J., dissenting). does not mean and for multiple objectives, ways, complex other considerations. over not race did predominate use of both and race intensive pervasive discloses record added). Post, (emphasis at 1030 blocks.” census majority-black than results is true, on 1992 election dissent’s reliance may While that it drew legislature when were not before the Those results misplaced. campaign popularity well reflect may lines in the district political predispo- the party Johnson more than Representative success of (The the dissent’s error infects same residents. of the district’s sitions 1020-1021, hook, (relying n. County post, of the Collin discussion differ- results).) totals, than at the rather looking And 1992 election lines, is mis- district just outside just areas inside ence between because of district lines drawing in the may predominate Race leading: minority composition maximize the finely drawn those lines area, the Democratic overwhelmingly in an notwithstanding that district, minority population. its total far exceeds in the of Democrats total be- apply scrutiny should that strict Second, suggests the dissent population African-American higher has a compact core District 30’s cause so, Post, doing at 1021-1023. In tentacles. wayward its than percentage predominated whether race determining necessity it again ignores Once work with. they had to what light actions in in the redistricters’. away had been carved populations majority-minority adjacent various chances the electoral to enhance proxy as a of race byit the use *18 too small substantially was of District 30 incumbents, core the neighboring redistrict- by the faced question The principal entire district. form an remainder core out to add to therefore, territory the was, what ers African-American average has an area, which remainder of the Dallas answering In county average. 21% substantially below population witness, bear maps and explained Court District as the question, intricately bizarre, tentacles far-reaching created the redistricters African-American remaining available consistently maximize and population.
as a fortunes of incum- proxy protect adjacent bents, and for its own sake in maximizing minority popu- lation of District 30 of traditional regardless districting prin- District 30’s combination of a bizarre, ciples. noncompact evidence that that was essen- shape overwhelming shape dictated racial considerations of one form or another tially Texas exceptional; Congressional example, post, discusses in at 1019- detail, which Justice Stevens That combination 1020, has the former characteristic. only us to conclude that District 30 is sub- of characteristics leads to strict scrutiny. ject
B Houston, Dis- on the In Harris centered city County, in which “like a ... 18 and 29 interlock tricts jigsaw puzzle Barone & pieces apart.” impossible get might 1307-1308; see 1996, at American Politics Almanac of Ujifusa, (outlines of Districts this B and C to opinion also Appendixes districts 29). noted: “[T]hese the District Court As one cannot exact visualize their ‘crafted’ that so finely feet three least at map without looking boundaries to the leading at 1323. According 861 F. Supp., square.” and regular- district of relative compactness statistical study least of the three regular are two they ity, 565. Rev., at 92 Mich. L. Niemi, & See Pildes country. 15% African-American is 51% District 18’s population of the most irregular “has some 110. It App. Hispanic. in the countryt,]... congressional boundaries any Air- Intercontinental toward north boundaries squiggle south then spurt out radial highways, and northwest port other toward on the toward on one side port supra, Its “many at 1307. Barone & Astrodome.” Ujifusa, enclose out to . reach or . . corridors, fingers narrow wings, residents.” voters, nearby Hispanic while excluding black supra, at 556. Niemi, Pildes & African-American and 10% has a 61%
District 29 Hispanic It resembles 110. App. population.
“ running body Mayan bird, its eastward with ‘a sacred Houston until Ship from downtown along the Channel Spindly Baytown. legs reach tail terminates plumed rises Hobby Airport, while the head to south In the western almost to Intercontinental. northward appears be open extremity beak district, an of the there, Spring Here and searching Branch. for worms angles.’” Barone & jut at odd feathers out ruffled Ujifusa, supra, at 1335. they also bizarre; shapes only are the
Not precincts, city election disregard limits, local utter exhibit Supp., g., See, e. 861 F. lines. district tabulation and voter (60% live in 29 residents District at 1340 disruption of tradi- a severe split precincts). This caused seeking to activity. Campaigners forms tional identify carry map “had to their constituents visit from would borders move often the so lines, because district running candidates know the “did block”; not voters block to they know which they did because for office” voting requirement that light of Texas’ Ibid. In lived in. representing precinct each arranged by precinct, with represen- federal state, and local, community shares for local headaches administrative it also created tatives, officials: election [voter tabulation splitting dozens
“The effect electoral was an 18 and districts] Districts to create in- must County estimated nightmare. Harris ac- 1,225 precincts from its number crease Polling Congressional boundaries. new commodate employ- of election the number forms, places, ballot thrust were multiplied. Voters correspondingly ees with a few alignments, precinct unfamiliar new and into 1325. Id., at voters.” as 20 low populations as (letter setting forth official local App. 119-127 also districting local conflict problems administrative *20 limits); city traditions); showing splitting (map of id., 147 at (mapA illustrat- 6E1, Attachment Exh. id., 128, Plaintiffs’ voting precincts). ing splitting of in- that evidence appellants adduced District
As with determining the bizarre in played a role cumbency protection constraint that one found Court District The lines. two of its ambitions the rival 29 was shape of the District on in an its boundaries who distorted incumbents,” “functional legisla- existing state larger of their areas include effort District the Supp., at But 1340. 861 F. constituencies. tive influences that such amply demonstrate findings Court’s the districts’ of in the determination overwhelmed were racial to maximize efforts by the State’s shapes bizarre § explains submission VRA The State’s divisions. “result[s] in the 18 and Districts configuration of bizarre County, strength” in Harris minority voting maximization “[i]n finding that corroborating Court’s the District App. 110, redistricting process, Congressional stages of the earliest behind rallied Republican leaders and Democratic state County in Harris Hispanic safe seat creating newa idea District in seat African-American the safe preserving while “it testified officials State Supp., at 1324. F. 18.” districts] [voter tabulation necessary split particularly was Dis- for residents” Hispanic pockets capture order in that district— population Hispanic a 61% 29, trict 1340-1341. Id., upon. majority insisted a mere —was voting demographics and the racial evidence record The suggestion any County belies residents of Harris patterns dividing between lines explain the could politics party perfectly almost correlate lines The district districts: two similarly are districts both while 151-152, App. race, see more than And, even id., at 194. Democratic, see solidly His- separating drawn, intricacy lines 30, the block-by- voters on African-American panic voters block-by-block impact betrays critical basis, block Dis- program. REDAPPL available data racial “Because therefore, is, inescapable: conclusion trict Court’s tradi- for disregard formed utter 29 are 18 Districts are ulti- their because shapes criteria redistricting tional racial than the quotas other on grounds unexplainable mately [pre- districts, are product they those established gerrymandering.” racial sumptively] unconstitutional at 1341. F. Supp.,
Ill de- we must scrutiny applies, that strict concluded Having embodied in any classifications whether termine compel- further tailored narrowly the three *21 in- to three compelling point interest. Appellants state ling the “results” under liability avoiding in the interest terests: and pres- past in remedying interest 2(b), the § VRA test of princi- discrimination, “nonretrogression” ent racial them in consider We (for only). § 5 of VRA ple turn.
A of any the imposition 2(a) VRA prohibits Section or in a denial “results or procedure electoral practice account vote on to ... citizen of any the right of abridgement by the VRA amended 1982, Congress In color.” or race 2(b), pro- § which 2(a) adding §of the language changing §2(a). A violation violation for test a “results” vides if, exists it is shown circumstances, totality on
“based election or nomination leading processes the political open are not equally subdivision or political the State in citizens pro- class of a members by to participation mem- its in section (a) this subsection tected members other than less have opportunity bers process in to participate electorate 42 U. S. C. choice.” of their elect representatives 1973(b). §
Appellants creation of each of the three contend that justified by majority-minority at issue was Texas’ complying this test. compelling in with results state interest previous which in each of our cases in we have done As charges argument raised as a has been defense this deciding that assume gerrymandering, we without prece- interpreted by our test, as compliance with results (1993), 25, 37-42 g., Emison, 507 U. S. dents, see, e. Growe v. ante, at II, compelling interest. Shaw state can that the also reaffirm 920-921. We Miller, S., 515 U. 915; scrutiny tailoring” requirement of strict allows “narrow furthering leeway inter- such degree of a limited States “strong evidence,” basis has a If the State ests. omitted), (internal quotation marks S., at 656 I, 509 U. majority-minority district concluding of a creation districting § comply and the necessary reasonably § “substantially viola- race addresses that is based scrutiny. We strict 918, it satisfies ante, II, tion,” Shaw stringent, the District Court’s impossibly reject, as thus “a district tailoring requirement, that narrow view of the shape, irregularity possible amount of the least must have districting criteria.” making for traditional allowances *22 Ed., 476 Wygant Bd. v. Jackson Supp., Cf. at 1343. F. (1986) concurring part and J., 267, 291 U. S. (O’Connor, (state “trapped not be actors should concurring judgment) liability” by imposition competing hazards between strict rubric of under the requirements of unattainable scrutiny). regular, tak- reasonably compact and §2 is
A district districting principles such traditional ing account into bound- traditional of interest and maintaining communities having rival defeat scrutiny without may pass strict aries, experts in endless by plaintiffs’ designed compact districts they us when misread dissenters “beauty The contests.” this the facts disagreement about leap our from make the creating by suit to the conclusion that arewe a “stalemate” requiring “get things just right,” post, the States to at 1063 dissenting), precise compact or J., to draw “the dis (Souter, §2 impose challenge,” trict that a court would in a successful post, dissenting); J., II, see also Shaw (Stevens, dissenting). ante, J., Rather, at 949 we adhere to (Stevens, recognition importance longstanding our of the in our federal system sovereign implementing of each interest in its State’s redistricting plan. QuiLter, See Voinovich v. 507 U. S. (1993)(“[I]t States, the domain of the and not the fed is place”); apportionment in the first courts, eral to conduct (“It reapportion supra, is well settled that Miller, at 915 State”) duty responsibility primarily ment is omitted). (internal quotation cases, our marks Under §2 enforcing flexibility that federal courts retain a States may scrutiny they alto avoid strict insofar as lack, both princi districting gether respecting their own traditional fears to their reasonable ples, is due and insofar as deference § liability. And avoid, reasonable efforts and to their of, limiting “a say today should be read as nothing we districting principles,” apply traditional State’s discretion majority-minority, dissenting), post, J., at 1046 (Souter, only problem arises constitutional other, as in districts. principles to race. of those the subordination scrutiny nonetheless, strict. The State remains, Strict finding “strong in evidence” basis must have a § liability present: for 2 conditions threshold sufficiently large minority group] [the ‘that “first, majority in a compact to constitute geographically politically ‘that it is district’; second, single member majority votes the white ‘that third, cohesive’; usually to defeat . . sufficiently to enable . as a bloc supra, at Growe, minority’s preferred candidate.’” added) Thornburg Gingles, 478 (quoting (emphasis *23 (1986)). 30, U. S. 50-51 above, the district dráwn order have noted
And, as we districting princi- § traditional satisfy subordinate 2 must not “reasonably substantially neces- than is ples more to race §2 liability. 29, 30 fail to 18, sary” Districts to avoid requirements. meet these “strong deciding, that the State had assume, without
We finding threshold the second third for in evidence” basis § however, liability present. have, We to be for conditions shaped bizarrely are already all three districts found that pre- are compact, those characteristics and that from and far. racially gerrymandering that was dominantly attributable proxy. as a the use of race achieved and/or motivated example, out reaches supra. II, Part See minority communities apparently isolated grab small and possibly not presented, could evidence which, based on and does majority-minority district, compact part aof form minority populations to its closer up for to make so in order proxy as a suspect use of race further in a that it shed core supra, at interests. neighboring incumbents’ further to. 969-973. 965-966, any that the claim defeat characteristics
These avoiding interest the State’s narrowly to serve tailored require §2 a State not does liability §2, because under not that is lines, a district predominantly create, on Grandy, S. 512 U. De compact.” “reasonably See Johnson minor- (1994). dispersion of the because of If, majority-minority dis- compact reasonably ity population, majority- require §2 does created, cannot be trict can compact reasonably district if a minority district; a § creation requires race-based nothing created, compact. is far noncom- shaping and argue bizarre Appellants Appel- tailoring concerns. narrow raise pactness do not Miller, I under Shaw al. claim Lawson et lants improper motive.” only of an as evidence “[s]hapeis relevant *24 rely They on our 56. et al. Lawson Appellants Brief in Miller: statement neces- is a bizarreness because not
“Shape is relevant wrong a threshold or constitutional of the sary element persuasive may be because proof, but requirement of sake, and own for its race evidence circumstantial legislature’s was the districting principles, other not drawing its controlling rationale and dominant at 913. S.,U. lines.” accepting position, moderate more takes States United The must “consideration tailoring, narrow context in the by a drawn districts which extent given to redistricting customary from its depart substantially State asserting in- 36, but States United Brief for practices,” necessary to noncompactness are and bizarreness as sofar §2 compliancewith interest compelling State’s achieve redistrict- legitimate achieving other simultaneously “while nar- incumbency protection, as 37, such id., ing goals,” Similarly, Justice satisfied. is tailoring requirement rowly should “noncompact districts argues that dissent Stevens’ [§2J.” avoiding violations method permissible . . be a . 1034. Post, at us. before the districts save cannot arguments These shape is not misinterpret Miller: appellants Lawson discussion inquiry. Our tailoring narrow to the irrelevant constitu- the ultimate emphasize only to served Miller use caused harms involve at stake values tional that bizarreness and classifications, unjustified S.,U. Miller, 515 scrutiny. trigger strict necessary to district- traditional deviations Significant 912-913. noncompactness shape and bizarre as such ing principles, constitutional here, cause by the demonstrated iden- political message that convey the they insofar harm example, the For racial. predominantly be, tity should or is, pre- cutting across 18 Districts shaping of bizarre existing precinct lines other natural or traditional divi- evidentially significant; part merely it is sions, is not problem disrupts insofar as it nonracial bases constitutional identity emphasis intensifies on race. thus argument availing here. In de- is the Nor United States’ *25 agreed scrutiny applies termining here, we that strict shaping non- the bizarre and in fact the District Court that predominantly attrib- compactness were these manipulation. political, The United racial, to not utable post, argument, dissent, of the at 1033-1035 that and States’ dissenting), otherwise address the an case (Stevens, J., by misshapen pre- compact majority-minority district that is post, manipulation. dominantly also nonracial, dissenting) (raising possibility that “the 1068 (Souter, J., majority-minority district that does create a could State long Gingles shape as racial data so not with the coincide overused”). premise of disagree factual with the We are drawn were that these districts dissent, Stevens’ Justice reasonably way only de- in a using “racial considerations § post, The districts at 1035. violation, signed” a 2 to avoid manipulation that exceeds of racial us exhibit level before § justify. 2 could what
B
that
next contend
the State
and
States
The United
compelling
justified
State’s
are
at issue
lines
racially polarized vot-
“ameliorating
effects
in
interest
discrimination.”
present
past
ing
attributable
Bush et al.
Appellants
Brief
32;
States
Brief for United
long
they cite Texas’
contention,
support
that
In
24-25.
proc-
in electoral
against minorities
history of discrimination
times,
to modern
stretching
the Reconstruction
esses,
of the VRA.
Constitution
including violations
(ND Tex.
Supp. 1317
Dallas, 734 F.
g.,
v.
e. Williams
See,
(1973); Terry v.
1990);
Regester,
C ap- private by State offered contention final The justified (only)was creation is that pellants § We 5. VRA complying interest compelling state a “ ‘to goal: substantive § a limited has5 clear made have made changes would voting-procedure no insure retrogression position would lead to in the of racial minori- respect ties with to their effective exercise of the electoral ” (quoting Miller, 515 atS., franchise.’ U. Beer v. United (1976)). Appellants States, U. S. contend that “nonretrogression” principle implicated this because Har- County congressional had, ris for two decades, contained a in which African-American voters had succeeded in selecting representatives of their choice, all of whom were African-Americans. problem argument with the State’s is that it seeks to
justify augmentation, maintenance, but substantial population percentage African-American in District At 18. previous redistricting, population District 18’s p. was 40.8% African-American. Plaintiffs’ Exh. 13B, 55. Hispanic population As a result increases and African- emigration population district, American from the its had Hispanic reached 35.1%African-American and 42.2% at the time of the 1990 census. The State has shown no basis for concluding that the increase to 50.9% African-American necessary population nonretrogression. in 1991was to ensure Nonretrogression is not license for the State to do what- necessary ever it deems to ensure continued electoral suc- merely minority’s opportunity cess; that the mandates representatives directly elect of its choicenot be diminished, indirectly, by anticipated or actions. State’s We this problem reapportionment I, S., “A Shaw 509 U. 655: narrowly plan goal avoiding would not be tailored to the beyond retrogression reasonably if went what was State *27 necessary retrogression.” Applying principle, to avoid that narrowly it is clear that District 18 is not to the tailored § liability. avoidance of 5
IV arguments against The dissents make several further to- day’s specifics decision, none of which address the of this responded points previously. have case. We to these Jus- example, reiterates his contention from Souter, tice satisfy- with a view created I because that Shaw post, subjugation,” 1055, §2 at and “racial ing not involve do I, “‘benignly]’” motivated, Shaw may a sense scrutiny dissenting), strict should at 685 J., (Souter, S.,U. argument I, rejected Shaw that We apply to them. not id., at then, see explained we reject As it now. we and precisely scrutiny to strict subject classifications we necessary whether scrutiny determine that because hypothetical aof benign Stevens’ they are Justice —as sickle cell protect victims program to targeted outreach whether doubt, no be—or would, post, see anemia, stereo- divisive harmful and and they race foster misuse no need see justification. We compelling types without prior debates. our revisit I recognition of Shaw the that the contend
Both dissents the inde- respect for, public and threatens of action cause inserting the Judiciary by courts the Federal of, pendence the dis- process. We believe districting deep the into to rec- fail dangers involved, and exaggerate the both sents from suggested retreat their implications of ognize the I. Shaw entanglement, Justice Ste- judicial dangers of
As to stemming state dis- from of cases much makes vens’ dissent in which I, up before drawn originally plans tricting prior uncertainty law in the arisen have problems Miller, and I, in Shaw gradual clarification during its and dissent- J., post, at 1037-1038 (Stevens, today’s cases. States, by faced difficulties ing). are aware We confronting new constitutional courts, expres- the nature know also we precedents, complexity dealing, we are which harms sive bright-line rules such process, are districting which decisions, today’s believe we But available. of Shaw principles that offend defects illustrate both discretion the States’ importance of reemphasize the I and serve 978-979, will supra, see redistricting process, in the *28 have responsibilities. The States clarify the States’ districting sovereign preroga- guarded traditionally their they fulfill that confident can and we are jealously, tives customary and leaving courts to their requirement, backstop role. appropriate plenary con- after decisions has now rendered
This Court (Shaw applying I doctrine the Shaw in five cases sideration suit). The dissenters this II, and Hays, Miller, Shaw I, suggesting that precedents, those us abandon have would judicial are at relating role to the concerns fundamental dissent- J., 1038, 1041 post, at stake. See (Stevens, (Sou- 2,1052,1064,1074,1076-1077 post, 1047,and n. ing); 922-923, and 919-920, ante, at dissenting); II, Shaw TER, J., dissenting); ante, at 932-933 see but J., 3, 929 n. (Stevens, distinguishing race-based judicial task (noting from is far I cases in Shaw action non-race-based implicated agree those concerns we unique). While way. legitimacy other Our they point the we believe here, especially decisis, to stare adhere requires, all, we above par- present, where as the political contexts such sensitive courts Legislators controversy abounds. tisan rather, reem- practices their modified or, have nationwide — districting practices almost that were the traditional braced response the 1990 census—in universally followed before which ac- precedents, our practices and Those I. play statistics, mere than knowledge as more voters identity of the defining important role an jurispru- Amendment Fourteenth Our voter. American unnecessary to eliminate a commitment dence evinces ste- of racial use and reinforcement governmental excessive McCollum, 505 U. Georgia S. g., reotypes. See, e. challenge (“[T]he must (1992) peremptory exercise of stereo- juror the racial or race either based on v. Leesville Concrete party”); Edmonson types held (“If (1991) society con- tois our 614, 630-631 S. Co., 500 U. recog- democracy, it must progress as a multiracial tinue *29 stereotypes re- race invocation automatic that the nize injury”); hurt continued causes progress and tards (“We accept a defense may not S., at 499 U. Powers, con- stereotype the law very discrimination to racial (1990) 484, n. 2 S. Illinois, 493 U. demns”); v. Holland may pre- juror be that black (“[A] 'assumption prosecutor’s violates . . . is black’ he simply because partial sumed Kentucky, S. Clause”); U. Batson Equal Protection prohibits a (“[T]he Clause (1986) Equal Protection 79, 104 ra- inaccurate crude, based on any action taking from State that commit- retreat decline stereotypes”). We cial today. ment
[*] [*] [*] Court judgment of
Affirmed. O’CONNOR,J. OF A TO OPINION APPENDIX *30 DISTRICT TEXAS CONGRESSIONAL B O’CONNOR, APPENDIX TO OPINION OF J. *31 TEXAS CONGRESSIONAL DISTRICT O’CONNOR, OF J. OPINION APPENDIX C TO *32 29 DISTRICT TEXAS CONGRESSIONAL 990 O’Connor, concurring.
Justice points. my express on two view separately to I write §2 Voting of the test of compliance results with the First, (VRA) Second, compelling interest. state Rights is a Act practice principle with Shaw and can coexist that test (1993), progeny, as elaborated its and 630 Reno, 509 U. S. v. opinions. today’s
I
opinion, ante, at 977
plurality
in the
As stated
(O’Connor,
J.), this Court
and
by Rehnquist,
J.,C.
joined
J.,
Kennedy,
deciding
compliance with
that
without
far assumed
has thus
2(b)
§
compelling state interest.
is a
test of VRA
the results
(Shaw II);
Johnson,
Miller v.
ante,
Hunt,
at 915
v.
(1995).
assumption
Although
920-921
515 U. S.
today, I believe
decisions
of the Court’s
not determinative
to more definite
are entitled
lower courts
that States
Four-
they
the twin demands
guidance
toil with
VRA.
Amendment
teenth
if,
test is violated
The results
totality
circumstances, it is shown
on the
“based
leading
nomination or election
political processes
open
equally
are not
political subdivision
in the
or
State
minority
[e.g.,
a racial
participation members
opportunity than
have less
group] in
its members
participate in the
the electorate
members of
other
representatives of their
political process
to elect
1973(b).
§
42 U. S. C.
choice.”
§2(b), we have
years
the enactment
14
since
In the
places
obligations
interpreted
and enforced
directly
assuming but never
cases,
succession of
in a
States
Grandy,
constitutionality.
Dev.
addressing
See Johnson
its
(1994);
(1994);
Hall,
991
supra,
J.,
at 418
that a consti
dissenting) (noting
(Kennedy,
Court).
the statute
tutional
to
was not before the
challenge
Meanwhile,
lower
have
courts
affirmed its
unanimously
Marengo County
See United States v.
constitutionality.
Comm’n, 731
1546, 1556-1563 (CA11),
F. 2d
cert. denied, 469
Lubbock,
Jones v.
976
727
(1984);
364,
U. S.
F. 2d
372-375
Hunt, 861
Shaw v.
(CA5
(EDNC
1984);
408,
F.
438
Supp.
II, ante,
Bd.,
Prosser v. Elections
aff’d,
1994),
899;
p.
Wesley
Collins,
(WD
859,
1992);
793 F.
869
Wis.
v.
605
Supp.
(MD
(CA6
802,
1985), aff’d,
808
Tenn.
II §2’s agree Although I with the dissenters about role as part equality, of our national commitment to racial I differ my from them belief that that commitment can must complementary with the be reconciled commitment of our jurisprudence Fourteenth Amendment to eliminate the un- stereotypes. justified use of racial At the same time that symptoms polarization politics, of racial we combat we unnecessary must strive to eliminate race-based state action appears to endorse the disease. conjunction recognition Today’s decisions, in with the compliance reason- compelling state interest in with the present requirements ably perceived §2, workable goals. twin I would the achievement of these framework governing the and the rules framework, summarize districting process, as in the of race consideration States’ *35 follows. traditional dis- long they not subordinate as do so
First, or as race for its own sake tricting the use of criteria to majority-minority intentionally may create proxy, States a consideration, into may take race otherwise and districts, scrutiny. ante, at 958-959 coming See under strict without 8, and n. 1025 post, 1008-1011, at (plurality opinion); (Ste- J., dissenting); 1065, 1073 post, at J., (Souter, vens, districting ne- criteria are Only dissenting). if traditional misuse predominantly due to the neglect is glected and that 964, 978 scrutiny apply. Ante, at strict of race does opinion). (plurality §2 prohibits racially polarized, voting is
Second, where districting have that would adopting schemes from States opportunity than minority less voters “have effect that representatives to . .. elect the electorate members of other §2(b). may require a principle State That their choice.” three where the majority-minority district a to create (i) minority group “is present—viz., Gingles factors are sufficiently large geographically compact a to constitute and
994 (ii) is district,” “it politically ain single-member majority votes (iii) sufficiently white “the majority cohesive,” and preferred the minority’s to defeat usually it... to enable bloc Gingles, Thornburg S., 50-51. 478 at U. candidate,” under VRA liability in avoiding interest the state Third, post, at (Ste- supra, at 990-992; 1033 §2 compelling. is post, at (Souter, J., dissenting). vens, J., dissenting); that for concluding in evidence basis a strong has If State a majority- it create Gingles factors may are present, Its findings. awaiting judicial without minority form, take any particular need not in evidence” basis “strong assumptions rely generalized cannot it simply although voting. bloc of racial about prevalence cre- interest that compelling a State Fourth, pursues if the potential addresses” “substantially a district ating substan- not deviate ante, II, does 918, and at liability, for pre- §2 district court-drawn from hypothetical tially ante, at opinion) (plurality reasons, cf. racial dominantly criteria), its these to satisfy fails how (explaining ante, Cf. tailored. narrowly deemed bewill districting plan this possibility); (acknowledging opinion) 981 (plurality at post, 1033- (same); J., dissenting) post, (Souter, applica- (contending J., dissenting) (Stevens, here). ble shaped bizarrely however, Finally, district- traditional neglect otherwise noncompact, hypotheti- substantially deviate ing principles reasons, predominantly district, cal court-drawn *36 ante, opinion). at 979 (plurality are unconstitutional. these principles. the application illustrates 30 District voting. racially polarized history has County Dallas (1973); 765-767 Regester, 412 755, U. S. g., White See, e. v. 1975), (ND Tex. 785-786 Wise, 399 782, F. Lipscomb Supp. (1978). 535 S. rev’d, 437 U. 1977), (CA5 2d 1043 F. 551 rev’d, a District here, at issue redistricting before One year election Council Dallas City 2 the § under invalidated Court finding polarization pre- and scheme, racial that candidates by consistently ferred African-American voters were de- Supp. Dallas, 734 1317, feated. See Williams v. F. 1387- (ND 1990). testimony litigation Expert in this Tex. racially polarized voting confirmed the existence also County. App. 187; Dallas Tr. see also 227. and around compactness, respect geographical the record con- With possible designs quite 30, for District two different tains original id., Plan, and Plan, at the Owens-Pate Johnson reasonably compact respec- include, and id., populations. This tively, African-American 44% and 45.6% strong provided basis for Texas’ belief that evidence appropriate. majority-minority district was of a creation drawing of District race to dominate the Texas allowed But districting nonracial con- exclusion of to the almost total ultimately produced that, a district because siderations, and legitimate proxy in addition misuse of race as of the bizarrely shaped com- far from satisfy and §2, is efforts to opin- (plurality 969-973, and n. ante, 965-966, pact. See dissenting). ion); J., compare post, at 1014-1032 (Stevens, scrutiny tai- failed the narrow and strict came under It thus loring test. over among this Court disagreement Members
As the I principles that application shows, judg- exercises requires difficult sometimes have outlined requires the The VRA difficulty is inevitable. That ment. reality remedy action to take the courts States necessi- system, sometimes inequality in our racial Amendment the Fourteenth while tating action, race-based use excessive suspicion on the requires to look with us IBut believe government. considerations in their courts, and the primary role, playing a States, appropriate distinguishing the capable of secondary role, are unjustified its necessary race from reasonably uses of uses. excessive *37 996 Kennedy, concurring.
Justice Part II the statements in but the opinion, I plurality join all cases not would apply scrutiny strict the opinion ante, districts, at of majority-minority creation intentional are un- statements Those comment. 962-963, 958, require I here. scrutiny applies for strict decision, to our necessary tome any commit position these dicta not consider do State, whenever is race whether predominant the question the in majority race that one foreordains in redistricting, State. a certain part or in of districts number a certain if a strict scrutiny doubt apply would no view, we In my 50 be at least per- had to districts certain State decreed if the different be no should and our white, analysis cent races. minority favors so State is here, ample for there this question need not answer
We the predominance demonstrates that otherwise evidence ante, shows, at as the plurality redistricting, in Texas’ race DeWitt v. in not issue was And this question 958-976. aff’d in 1994), (ED summarily Wilson, 856 F. Supp. Cal. 1409 (I note that (1995). S. 515 U. in and dism’d part, part DeWitt no for proposition stands affirmance summary our constitu were there reviewed the districts than other court reasoning endorse do not We tional. Man of the judgment. affirmance summary order we when curiam); Edel (per Bradley, (1977) del S. 432 U. v. (1974).) Jordan, 415 U. S. 651, 671 man issue, I agree narrow-tailoring On the serve necessary reasonably were here challenged § 2 of in complying interest state compelling assumed As § 1973. S. U. C. Act of Rights the Voting ante, compli- for order 978, in indicates, opinion plurality have must State interest, § 2 to be compelling ance with three of that all believing evidence basis a strong met: claim are § for a conditions threshold large sufficiently minority group] “[F]irst, [the ‘that a majority constitute compact and geographically *38 single-member politically district’; second, a ‘that it is majority third, and ‘that the white votes suf- cohesive’; ficiently usually to as a bloc to enable it. . . defeat the minority’s preferred Emison, candidate.’” Growe v. (1993), Thornburg quoting Gingles, 25, 40 v. 507 U. S. (1986). 30, 50-51 478 U. S. compactness Gingles condition refers to the
The first compactness minority population, not to the of the contested plurality “If, because of the dis- As the observes: district. reasonably compact minority population, a persion of the §2 does not re- majority-minority created, cannot be district Ante, at 979. We majority-minority district. .. .” quire a expressly, plurality ibid., that there may does as the assume, polarization the sec- to fulfill of racial evidence was sufficient may assume, as Gingles conditions, and we third ond and question, narrow-tailoring to reach be done must Harris Hispanic populations in the African-American population in Dallas County African-American majority enough a to form County each concentrated were meeting thereby the first compact reasonably district, in a Gingles condition. avoiding compelling interest the assumed has
If State narrowly §2 to serve tailor its districts liability, must it still [must] districting on race “[T]he that is based that interest. §2 Ante, at 977 addres[s] ‘substantially violation.’” (Shaw II)). The State ante, at 918 Hunt, (quoting except reason- districting as on race may engage based not may § anticipated violation, nor necessary ably to cure the Ante, 979. interests. proxy other to serve use race as a example the fact that of the former gives plurality as an apparently grab small out to reaches “District 30 . . . evidence on the minority which, based communities isolated compact part of a possibly form presented, could Ibid, (referring to tentacles majority-minority district.” outlying African-American that coil around District 30 ante, at 965- Counties, Tarrant in Collin and communities portion itsof 966). in a holds plurality further And, as to the narrow- central analysis is predominant-factor illicit use of involved the also inquiry, tailoring of African- blocs legislators shifted proxy when race as Democrats incumbent voters American ante, at 968-970. partisan interests. promote order 29 well. 18 and in Districts tailoring is absent Narrow majority- either drawn have could Although State in Harris majority-Hispanic or African-American rea- two no evidence difficulty, there County without *39 been have could districts majority-minority compact sonably plans considered major alternative theOf there. drawn majority-African- plan drew only the Owens-Pate below, County, in Harris districts majority-Hispanic American compact. Section not were districts those App. 142, but noncompact two create to require the State not does compact district a just because districts majority-minority ante, independently. minority either for be drawn could predomi- (“§2 create, to require a State does not at 'reasonably com- is not that lines, a district nantly racial (1994) 997, Grandy, S. 512 U. ”); De pact’ Johnson Court dilution, finding no vote (affirming, upon a § African-Americans to both give 2 remedies not to decision remedies overlap made population Hispanies because districting exclusive). that race-based The mutually not 30 was 29, drawing Districts performed in State interest, compelling any by § other indeed 2, or justified defeat to suffices That itself assumed. or real either narrowly tai- were three districts those claim State’s (In respect, dis- I this 915-918. II, ante, lored. in Justice suggestion apparent agree with O’Connor’s a second conduct should a court separate concurrence deciding a district whether inquiry in predominant-factor nothing in There 994. ante,, at narrowly see tailored, was plurality opinion any opinion support or the Court to simple question proposition. is whether the race- reasonably districting necessary was a based serve com- interest.) pelling §2 require noncompact majority-minority does not
While provided it, neither does it forbid that the rationale district, creating proper in the first for it is instance. Districts not impermissible according impermissi- reasons or drawn shape, may any even a bizarre one. ble criteria take States taking prevented into account race-neutral fac- majority-minority drawing permissible If, districts. tors shape of the district is attributable to however, the bizarre unjustified by compelling districting interest race-based (e. districting g., gratuitous race-based or use of race as interests), may proxy such districts “cause constitu- for other they convey message tional harm insofar as identity predominantly racial,” ante, at 980. is, be, or should scrutiny having “may pass strict without districts While designed by plaintiffs’ experts compact rival defeat ” ‘beauty ante, the District Court contests,’ in endless unjusti- egregious, right unconstitutional was declare *40 districting that occurred here. fied race-based Scalia Justice Thomas, with whom joins, Justice in the judgment. concurring scrutiny in this suit my application of strict view,
In agree question. cannot I never a close was Justice by scrutiny is not invoked that strict assertion O’Connor’s majority-minority districts. See creation of intentional (1993) Though 630, 649 Reno, 509 U. S. Shaw v. ante, at 958. (Shaw I), effectively question, we expressly that reserved Only subsequent in Ada- Term, cases. last it in resolved (1995),we Peña, 200, 227 Constructors, Inc. v. 515 U. S. rand governmental racial classifica- vigorously that all asserted 1000 v. John in Miller And strictly scrutinized.1 must be
tions inten (1995), that it Georgia’s concession 900 son, U. S. to sufficient was majority-minority tionally created motivating factor its predominant, was a race that show Id., at 918-919. redistricting. classifications governmental applies to all scrutiny
Strict based, there is held that expressly we have race, and redistricting. Id., 913-915; at exception race-based no recognized the we have While supra, 643-647. at I, Shaw redistricting plan is, proving that a difficulty evidentiary supra, 916-917; at Miller, gerrymander, see a racial fact, suggested that have never 646-647, we S., at I, 509 U. anything than strict subject less gerrymander is a racial (“The proof, course, difficulty scrutiny. id., at 646 established, once gerrymander, a racial that not mean does Equal Protection scrutiny under less receive should by classifying citizens legislation state other than Clause race”). gerrymander racial proving a that I, we noted
In Shaw suggested ibid., and all,” difficult not be will “sometimes disregard for shape or irregular highly aof evidence that suffice could districting principles race-neutral traditional plaintiff in Miller scrutiny. clarified We strict invoke said evidence direct rely circumstantial may on both subordinated legislature prove “must plaintiff racial ... districting principles race-neutral traditional Georgia’s shape of 916. S., at U. considerations.” evidence compelling” “quite was itself Eleventh FCC, U. S. Inc. v. Broadcasting, Adarand, Metro overruled we In by classifications scrutiny applies strict (1990), held that quite For States. by the to those as well Government the Federal classifica race-based held consistently however, have we time, some Richmond g., e. See, scrutinized. strictly must the States tions id., (1989) opinion); (plurality 469, 493-494 Co., S. 488 U. A. Croson J *41 Ed., v. Jackson Bd. Wygant in of J., concurring judgment); (Scalia, 520 (O’Connor, J., id., at 285 (1986) opinion); (plurality 267, 273 U. S. judgment). in concurring in concurring part evidence that there was other but gerrymander, a racial “predomi- a legislature was motivated that showed majority-black dis- a third overriding to create desire” nant, that concession own State’s was the evidence trict. That majority- intentionally an additional created had legislature record, we that On 918-919. id., at See district. black any “reached not have could Court that the found predominant factor was the race other than conclusion Id., at 918. District.” Georgia’s drawing Eleventh do classifications racial impermissible said haveWe of awareness legislature’s mere inevitably a from follow not supra, 646. I, 916; Shaw id., at demographics. See racial majority-minority district aof creation the intentional But application mere awareness than certainly more means districting principles will result race-neutral traditional, majority the dis- in which a district in the creation minority group. particular of a members are residents trict’s Feeney, 442 U. S. v. Mass. Administrator Personnel See discriminatory intent (1979) (distinguishing conse- awareness as “intent or volition” as “intent legislature af- that the means my view, it In quences”). majority-minority create firmatively undertakes of racial express use but have existed not would dis- majority-minority words, that other classifications—in spite of,” merely “in of,” “because is created trict occurs, tra- When that ibid. demographics. necessarily districting principles race-neutral ditional necessarily predominates), (and race subordinated race. basis persons on has classified legislature a racial viewed redistricting must resulting gerrymander. Supp. F. Wilson, 856 DeWitt summary affirmance Our dism’d part and 1994),summarily (ED aff’d Cal. inten- exempting (1995), justify cannot 515 U. S. part, well-established our redistricting from race-based tional summarily we “When standard. Amendment Fourteenth *42 three-judge judgment dis- of a opinion, the affirm, without necessarily the judgment but affirm the court we trict unexplicated sum- An by it reached. reasoning which was parties, and is not for the the issues mary settles affirmance pre- by of doctrines this Court as a renunciation read to be argument.” full opinions after in our viously announced (1975) (Burger, 379, 391-392 Steinberg, 419 U. S. Fusari omitted). (footnote our not read I would concurring) J.,C. explicit eviscerate to summary of DeWitt affirmance of our discus- the force undermine or holding Adaraná to in Miller. Georgia’s concessions sion intentionally readily it that admits Texas suit, this In those districts and that majority-minority created use of its affirmative but existed not have would in its brief: concedes theAs State demographics. [District] 18 an intentionally maintained “Texas intentionally opportunity district African-American- minority opportunity dis- [Districts] and 30 as created reasonable voluntarily its comply to in order tricts required was that it strong evidence, upon belief, based it desired Rights Act, and because Voting by do so to historically ex- been have who minorities that to insure had reason- process in Texas the electoral cluded from choice.” of their candidates elect opportunity to able 25. Appellants Brief for State (reciting con- similar 959-961, 969-970 ante, also See application Texas). enough require to is by That cessions to reaffirm I am content scrutiny suit.2 in this of strict racial classifications all that holding Adarand our and, even in strictly scrutinized government must challenged of each contours in detail parse unnecessary is It evidence geographic ante, agree I at 965-976. district. directly con State once the sfcrutiny, but invoke strict sufficient itself majority- to create racial classifications intentionally used ceded evidence. on circumstantial rely districts, no need there was minority redistricting, I make legislative would area of state sensitive exceptions. no deciding has the State willing without
I am assume assump- compelling interest. Given state asserted *43 redistricting attempts not were agree I that the State’s tion, I concur its asserted interest. narrowly to achieve tailored judgment. in the Ginsburg and whom Justice Stevens, with
Justice Breyer dissenting. join, Justice population had Texas’ that revealed census
The 1990 pop- fast as the twice as past almost decade, grown, the over was result, Texas country As a a whole. the ulation of Representatives to the additional elect three entitled delegation enlarging its Congress, States United in south growth was concentrated Texas’ Because to 30. legisla- Houston, the state and of Dallas cities the Texas and should congressional districts new the that ture concluded con- areas. in those existing districts out carved map produced new that political battle sequences of congressional districts oddly shaped the most are some States. the United majority- Texas’ three of down
Today, strikes the Court odd that their alia, concluding, inter minority districts, predom- relied impermissibly State shapes that the reveal did. as it the districts it drew when inantly reasons striking errs in the Court I believe that reasons, two For districts. down those tests its own misapplied has the Court that I believe
First, scrutiny by applying strict both gerrymandering, for racial concluding then districts, of these to all three scru- asking strict whether scrutiny. In meet can none ignores “com- improperly apply, Court tiny should considerations geographical interplay” of plex dis- congressional new of Texas’ into creation went (1995),and 900, 915-916 S. Johnson, 515 U. tricts, Miller played exclusively State’s on the role race focuses quick shape A com- adjust of its districts. decisions majority-minority districts parison the unconstitutional compare majority-Anglo districts, equally bizarre with three Appendixes A-C, Appendixes A-C, with infra, ante, at necessarily predominant was not that race demonstrates the fair contorting lines. I would follow the district factor findings,1 conclude implications Court’s gerryman- political, racial, map is a entire that Texas’ IV, Part der.2 See infra. scrutiny applies, I find these would strict Even if only to the nec- extent considers race constitutional, for each responsibilities under comply essary the State’s politi- achieving race-neutral Voting Rights Act while other finding plurality’s requirements. The geographical cal and *44 ability unnecessarily of States contrary restricts to Voting Rights while Act behavior to conform their goals. simultaneously complying race-neutral with other V, See Part infra. an failed these districts that Iif concluded Second, even appro- still-developing law application of this appropriate Court uphold the District would not facts, I priately read merely rein- today serve issued decisions decision. 1 the over erroneously ignored, but recognized, Court The District considerations political demonstrating of evidence weight whelming See Vera v. districts. congressional Texas’ shaping dominated (SD 1994); infra, 1331, Tex. 1304, Richards, 1334-1336 Supp. F. 861 1027-1029. 2 objectionable are more gerrymanders political I believe Because cases, recent in the Court by perceived gerrymanders” “racial than the (1983) (Stevens, J., concurring); 725, 748 U. S. Daggett, Karcher v. see (1986) (Powell, J., concur Bandemer, 109,161-162, 166 S. 478 U. Davis v. entirely unsympathetic I am not part), in and dissenting ring part gerry however, the evils of believe, I holding. Court’s race- through than directly, rather be confronted should mandering See also years. in recent has Court taken specific approach at 1038-1040. infra, my “analytically
force conviction that the has, Court its jurisprudence gerrymandering, distinct” of racial Shaw (1993) (Shaw I), Reno, 509 S. 630, U. struck out into a jurisprudential wilderness that a definable lacks constitu- significant core tional and threatens to create harms more any plaintiffs challenging than suffered individual Parts VT-VII, Hunt, these districts. See Shaw v. infra; (Shaw II) dissenting). Though ante, at 918-919 J., (Stevens, passing I decision, we travel ever farther from it with each path return to the well-traveled that we left in I. would I redistricting clearly motivating plan are The factors Texas’ Both revealed in the results of the 1992 before elections. Party immediately census, after the 1990 the Democratic Legislature. the new in control the Texas Under was map in more of the Districts—includ- than two-thirds though ing Democrats, even each of the new ones—elected likely Republican arguably more to vote Texas voters just parties were Incumbents both than Democrat.3 while reelected, were successful: 26 of the incumbents legislator a state who districts elected each of the three new proc- districting essentially in the an incumbent acted as had giving a 97% success rate. “incumbents” ess,4 two only has elected Democrat since the State In elections United for the races, only two of six races gubernatorial of four Ameri Contemporary 21: A Handbook America Votes States Senate. *45 1995). (R. MeGillivray eds. A.& 417 Scammon can Election Statistics 550,000 total of 1994, received a Furthermore, candidates Republican in United 30 races for the in Texas’ candidates Democratic more votes than id., 1992, House Democratic in at while Representatives, States House of winning 147,000 (despite votes by only outpolled Republicans candidates districts). Contemporary 20: A Handbook Votes 27 America of 30 (R. eds. MeGillivray & Scammon A. 474 Statistics American Election 1993). 4 Johnson, chair Dallas, who was Eddie Bernice Then-State Senator Districts, to maneuvered Congressional on Subcommittee of the Senate 861 her election. that would ensure 30 in a manner District construct 1006 while achieve these easy for the to results was not State
It simultaneously each enclosed the guaranteeing that same number incumbent, contained the of its residence districting and state complied federal people, and with other example, for Houston, and requirements. of Dallas Much by cre- Congress Democrats, and already represented in was city ensuring while ating each Democratic districts new required sig- sitting Representatives politically safe seats by was gerrymandering. This task aided political nificant that allowed advances technological informational thereby guar- city blocks, adjust the scale lines on State essentially been would have anteeing turns that twists and “[T]he redistricting.5 result of any impossible earlier concluded, “awas Court Legislature’s efforts,” District (1993) 1536 Congress The 103rd 1313; 1994: in America at Politics F. Supp., drew”). of the Vice chair Johnson (“This Eddie Bernice is the District [Dis- a district to draw “attempted committee, Tejeda, Frank also same at F. Supp., 861 candidacy.” potential his facilitate that would 28] trict Roman Representative and State Green Gene State And Senator 1326. competed Congress, designs with officials Martinez, both Houston-area own their guarantee would way in a 29 design in an effort congres- (Martinez of the out dropped later Id., 1324,n. 27. election. Senate.) legisla- that these the role Because for State to run race sional played to that identical largely was redistricting process in the tors played in the “incumbents” role to the incumbents, my references sitting well. individuals to these refer generally redistricting process post- shapes of its of the States, track kept Texas other many didAs cen loaded districting program computer with a 1990 districts from state ranging at scales information geographic sus information Hunt, Supp. 861 F. v. See city generally block. that of a wide Supp., F861 1994) (EDNC computer programs); (describing 408, 457 after bizarrely shaped increase in The dramatic 1318-1319. legisla allowed computers fact traced, part, at least can more manner in a far geographically goals their to achieve tors Harms, Niemi, Expressive Pildes & possible. than heretofore precise Ap Election-District Districts,” Evaluating Voting Rights: “Bizarre (1993); Note, 483, 574 Reno, L. Rev. Mich. After Shaw pearances L. Rev. 74 Texas Gerrymander, Incumbent The Illegitimacy (1996). *46 1007 “the bore little resemblance of districts” that crazy-quilt Richards, Vera representatives.” work public-spirited (SD see, e.g., Appen- 1994); 1304, 1309 Tex. 861 F. Supp. A-D. dixes in Texas’ also role redistrict- that race
It is clear played Census, con- Texas to the 1990 decisions. According ing 22.5% were of Hispanic residents, whom 16,986,510 tained 861 African-American. were and 11.6% non-Hispanic origin, scheme, districting Under pre-1990 F. 1311. Supp., four included Hispanics Texas’ 27-member delegation a concentrated In Harris County, one African-American. several majority- was divided among community Hispanic 18. District as the as well majority-minority districts Anglo in South community the majority-black In Dallas County, majority- between two the middle down was Dallas split aware, after well was The legislature districts. Anglo in each county communities census, minority 1990 in for the popu- growth responsible were disproportionately State. three representatives lation gained Act, §2 of the Voting Rights the omnipresence Given communities, two 1973, § the demographics U. S. C. communities of the minority from leaders and the pressure not certainly cities, it was unreasonable —and in those to accede sort —for State of any invidious discrimination in districts creation of majority-minority for the to calls cities.6 both (a in south district majority-Hispanie District 28 The State added Houston), District (a district
Texas), majority-Hispanie District Dallas). addition, reconfig the State In (a majority-black elected African-American district had 18. That District Houston’s ured remained 1970’s and early since the Congress Representatives was its population plurality although majority-minority shape altered legislature create To Hispanic. then neighboring into that Hispanic population itsof parts District 18 move population. majority-black retaining district while on race relied of these the precise shape extent To the less somewhat was factors, that racial gerrymandering than other rather *47 and of other political with multitude While complying three new created majority- Texas then, legal requirements, reconfig- and districts significantly minority congressional con- District Court district. one ured pre-existing race over emphasized the- State impermissibly cluded two these new it drew of when factors nonracial Houston) the and 29 in District in Dallas (District 30 whether determine 18 in Houston. To reconfigured as does decision, I begin, affirms correctly the Court should be scrutiny” “strict whether asking plurality, of in creation of race consideration to the State’s applied districts. these majority-minority
I I ac- state scrutiny strict traditionally applied We have I, to Shaw Prior of race. the basis on that discriminates tion that discrimination in which in cases so however, did only we their of because individuals of or set individual an harmed I in Shaw its identified the harm contrast, In race. ante, at 921- II, Shaw diffuse. more much is progeny of Racial J., gerrymandering dissenting). (Stevens, only “discrimination” cases is in these addressed being sort in race, not on based drawn lines are sense account on persons specific harm imposed sense that J., Ante, at 923-924 dissenting). their race. (Stevens, has en- of this Court distinction, a majority this Aware of Texas’ con- evaluation ato crucial proper a position dorsed nor Clause Protection the Equal Neither districts: gressional merely was offended Constitution other provision any deliberately when race considered the legislature because 29, created been: District had gerrymandering than effective State Senator former district, Anglo, an elected majority-Hispanic aas 21, 437. America Votes in 1994. 1992, him Green, and reelected his meet electoral the district crafting role his substantial Given incumbency power suggests success supra, needs, Green’s n. see race. over districts.7 The three plurality’s
created majority-minority “does to all cases that strict [not] scrutiny apply statement ante, districts,” creation majority-minority intentional discussions, line stretching merely long caps have both II, I to which expressly implicitly Shaw that conclusion.8 set forth precisely Nonetheless, to these cases. the Court’s approach 7I do not agree gerryman in its conclusion that racial seems settled that the Court given *48 proposition. I this may be endorse pursued, such as dering claims these 8 I, in Shaw we noted there that the issue reserving expressly Though not redistricting is “race-conscious that while wisely conceded appellants unconstitutional_This that race-conscious has never Court held always S.,U. at in all circumstances.” 509 decisionmaking impermissible is state of strict application test for the The threshold in original). (emphasis Johnson, (1995), implicitly 515 U. S. forth Miller as set in scrutiny race not when scrutiny true, applies strict concluding that this accepts legislature “the only but when districting process, the merely influences ... to racial districting principles race-neutral subordinated traditional id., added); at 928-929 Id., see also (emphasis at 916 considerations.” ma (test the vast doubt not “throw into does (O’Connor, J., concurring) may race though ... even congressional Nation’s 435 jority of II simi Shaw process”). redistricting in the considered been well have Although scrutiny: strict trigger does not that intent recognizes larly in district “deliberately drew” that State concluded Court citizens, of African-American majority a included to ensure that question II, ante, reviews the Court at 473; Shaw, at F. Supp., see the district demographics findings regarding Court’s the District See applied. appropriately scrutiny was strict whether the determine judgment) (Thomas, J., concurring ante, ante, 905-906; cf. at district, application majority-minority (where create intends to State question”). “close not a scrutiny even strict matter, a that arguing this view on strong a Thomas takes Justice it is when only scrutiny strict escape district should majority-minority Ante, population. of,” race of its of,” “because not spite “in created definition, popu- are, minorities by minorities But because at 1001. a district across to stumble for a State indeed lation, be rare it will enough segregated enough and large is both minority population which the a “mere most created with be districts to majority-minority to allow See such district. create of the will lines the placement awareness” Nation; entire exists in district Indeed, any such I doubt ibid. gen- will compact majority-minority even the most the creation districting should not race-conscious conclusion recognizes merely scrutiny subject always to strict mislead us can sometimes jurisprudence protection equal our suspect levels classes and rigid characterization its protection equal noted, all previously scrutiny. As I have basis rational as a form of might be described jurisprudence scrutiny” describe more to apply “strict scrutiny; we test to be of the the character than success likelihood Living Center, Inc., 473 v. Cleburne applied. Cleburne (1985) concurring). Be- J., 432, 452-453 U. S. (Stevens, classi- state legitimate basis for rarely been race has cause and invidious irrational typically an more fications, and “virtually invalidation automatic discrimination, ground for result the natural been has classifications” of racial Id., at jurisprudence. protection equal of our application ac- the state however, when circumstances, In certain 453. any par- harming (i) effect nor the intent has neither tion (ii) to irrational give designed to effect group, is ticular down, and them to break but citizens its held prejudices “relevant” race (iii) because as a classification race uses *49 need not we id., 454, at classification, the benign goal of the skepticism we that typically fatal the with the action view of state forms pernicious most down strike used have to S. Ed., 476 U. Bd. Wygant v. Jackson behavior. See of ensure so” to “just lines its to draw decision a conscious require erally appears, It population. district in the minority is a group that include to order so” in “just placed is a district when however, even that community in with correlate race does in which community a traditional is centered 15, which New York (consider, example, for terests the same with district review would Thomas Justice Harlem), Gomil in district we viewed which invidiousness of presumption (Gins S., Miller, 944 515 U. (1960). Cf. 339 U. S. 364 Lightfoot, lion v. together” people tie can “ethnicity itself burg, J., dissenting) (noting that district of such interest). the creation Because of in communities believe, against harms nor, any I of Go-million the harms neither threatens ac I cannot to protect, intended was Amendment the Fourteenth which conclusion. his cept (1986) dissenting); Regents Univ. J.,
316-317 (Stevens, (1978). While Court Bakke, S. U. v. Cal. injure this sort I racial classifications insisted Shaw necessarily any particular group) in (though not the Nation redistricting that ways, 647-648, S., 509 U. myriad see simply not is I outline above complies factors with the three taken in practice that has been despicable the sort process. See the electoral past minorities exclude dissenting); I, Shaw J., ante, at 931-933 II, (Stevens, g., dissenting); cf., e. Gomil J., S., at 682-685 509U. (Souter, (1960);Terry Adams, 345 Lightfoot, U. S. lion v. may (1953). risk any classification While S. 461 U. this “discrimination” true stereotyping, the risk of some purpose light of the remedial extremely tenuous case is history long achieve and intended the classification political in the a full voice giving minorities resistance strong and balancing subtle harms process. Given process, not to the balancing left best remedies—a plu jurisprudence rigid well-developed but own to our —the redistricting race-conscious reasonably rality concludes we should to which “discrimination” always form of is not eye. skeptical most our direct
III point, can, to a race agreed that has the Court While suggests lines, it nonetheless drawing govern much,” “too race uses State point, when certain that at con- overrun stereotypes threaten illegitimate racial In process. redistricting legitimate an otherwise taminate reached point was this concluded the Court Miller, districting princi- not other sake, its own “race when behind controlling rationale” ples, the . .. dominant was *50 scru- For strict S., at 913. 515 U. shape district. of the demonstrate plaintiff must apply, therefore, tiny to dis- race-neutral traditional legislature subordinated “the compactness, including limited but tricting principles, 1012 subdivisions ... respect [and] for
contiguity, id., also at 928 916; see Id., at considerations.” (strict applied scrutiny (O’Connor, concurring) should be J., disregard” emphasized “substantial only race if State (opinion of principles); ante, at 962 districting for traditional J.). O’Connor, “predominant” motive of the determining the course,
Of (citing Miller, S., 515 U. at 959 Legislature, ante, Texas body of that 916), The members simple matter.9 not a is 9 identify seeks eases of this kind approach the Court’s Because out, as we pointing it is worth legislature, motive “predominant” impossible or occasions, often “difficult it is many prior have on so behind motivation or ‘dominant’ the ‘sole’ to determine any court 403 S. Thompson, v. U. Palmer legislators.” group choices of the members (1971). body, each legislative every other As 225 particularly agenda or her his own has Legislature Texas’ interests — “in every decision in which redistricting, “complicated process” in the Weiser, 783, 795- 412 U. S. v.White impact.” sharp political evitably has a legisla be said that circumstances, can it (1973). “[rjarely In these solely motivated made a decision broad mandate operating under ture ... was the ‘dominant’ purpose concern, even that particular or single aby con are properly ... fact, legislators it is because In or one. ‘primary’ courts considerations competing numerous balancing with cerned decisions, showing absent a their merits reviewing the refrain Hous v. Metropolitan Heights Arlington irrationality.” or arbitrariness (footnote omitted); (1977) see 252, 265 S. 429 U. Corp., ing Development (1987) J., (Scalia, dis 578, 636-639 U. v. S. Aguillard, also Edwards (Stevens, J., dissenting). II, ante, at 940 senting); “broad under a is operating a legislature in which is this a only case Not First, well. as in favor of deference mandate,” weigh factors but other core of much at the is redistrieting as process inherently political which we Second, the “motive” other. any sovereignty state (For is reason, litigation this impermissible. is not se per concerned (1989),and U. S. 228 Hopkins, v. Waterhouse different from Price very U. S. Corp., Development Housing Metropolitan Arlington Heights was defendant’s action that the (1977), alleged plaintiffs which mem- of their status as because harm individuals an intent to motivated discriminatory that a “proof there Where group. particular bers of a defer- decision,” “judicial in the motivating factor has been a purpose Id., at 265- justified. longer is no process the legislative ence” due to
1013 faced when pressures many unrelenting they negotiated creation of the contested districts. had to ensure that They no deviation in from there was district to dis- population believed that had to trict.10 create they They reasonably that would Act. districts comply Voting Rights supra, at 1007. If was to redistricting See legislation had to secure the of incumbent enacted, Con- they support of both districts would by drawing parties gressmen these desires had to be their election. And all of ensure time a district. Every achieved within contiguous single another, one to each of line was shifted from district place additional, was compen- these considerations implicated, ensure that all were competing shifts necessary sating In a con- such accomplished. were simultaneously goals be one “dominant environment, there will rarely strained is this better illustrated Nowhere influence. controlling” 266.) discriminatory injured by allegedly those that are Finally, Those process: the democratic injury through their districts can alleviate of their racial part who is not a a representative in the district could elect that refused legislature at could elect population large while group, In such cir- drawing of districts. on racial considerations rely legislature’s questioning care in take particular we should cumstances appropri- has acted doubt, legislature and, presume if in motives J., dissenting). post, (Soutek, at 1058-1062 ately. district from populations, ensure that legislatures We state require with de reasonably possible,” district, mathematically equal are “as White instances. in “unavoidable” only minimis permissible exceptions Karcher, S., Popu 462 U. at 734-735. Weiser, S., 790; see also 412 U. v. “ necessarily ‘if result they even permissible are not lation variances by drawing subdivisions political fragmenting to avoid attempt a State’s bound . .. subdivision existing along lines congressional ” Preisler, U. S. White, (citing Kirkpatrick S., 412 U. at 791 aries.’ therefore, felt com (1969)). understandably legislature, 526, 533-534 concerns. of other regardless equality mathematical achieve pelled to Every one of Texas’ to do so: were able they surprisingly, Rather course, 566,217 Of persons. precisely contains congressional breaking apart without accomplished not have been could this precision voting precincts. counties, cities, pre-existing and even neighborhoods, very is clear least, it where, than in Dallas’ overriding factor. an not such was that race
IV which, when considerations several plurality lists and no race, that to conclude lead combination, taken influencing District factor predominant cause, was other Second, shape itself. is the First, there configuration. 30’s intentionally drawn were that is evidence there comply with an race effort consciousness race- two plurality dismisses Third, Rights Voting Act. (communities incum- and interest considerations neutral as race-neutral appellants advanced protection) bency that Fi- shape districts. of the the odd led to that considerations impermissibly that race was nally, plurality concludes during the course affiliation proxy for used as reading of appropriate an my opinion, redistricting. In sin- factors—either of these none that demonstrates record considerations suggests that gly inor combination— I discuss districting principles. race-neutral “subordinated” turn. each in Shape
Bizarre Legislature con- Texas’ 6, and n. supra, 1003, noted, As County that to Dallas district a new add it would cluded minority communities growing rapidly incorporate the would have would district new so, the To do Dallas. in South redistricting, most Before existing districts: fit into (including African-American County Dallas southern Dallas) Districts between was divided in South communities Bryant Representatives by Democratic represented 24, and section northern of the middle respectively. The Frost, both Districts county between divided was Republicans. represented redistricting proc- began the Johnson Senator
Then-State majority-minority Democratic, compact, by proposing a ess 139; 861 Dallas. See all of South App. district encompassing Frost Bryant 22. Representatives n. F. Supp., included district because however, proposed objected, homes, located their own residence, but Johnson’s not only sides of the on other opposite of each 10 miles within only transferred many Johnson’s Furthermore, plan city. into supporters reliable Democratic most Frost and Bryant’s to the creation than acquiesce Rather district. the proposed Frost district, and Bryant majority-minority of this compact homes their own avoid both the new insisted them. had been loyal of the communities and many Ibid. abandoned.” therefore, was, “quickly plan Johnson’s re- desires, the incumbents’ To accommodate effects had telling adjustments geographical quired *53 resi- the avoiding carefully notches First, two its shape. and Frost Bryant surrounding of and neighborhoods dences D, 30’s side. See Appendix District out of carved were several retained and Furthermore, Bryant Frost infra.11 and southern the majority-black along many — communities — 861 district. See generally of the proposed sides eastern 1321-1322.12 F. Supp., 11 the County: Throughout to Dallas unique not This phenomenon lines.” along district just fall repeatedly State, “incumbent residences 10B and 10A Exhs. see State’s examples); (giving at 1318 Supp., F.
861 from a instance, changed residences). 6, for District (showing incumbent suburban to a more of Dallas to the southeast far stretching district rural however, district so, the it did As Worth. Fort around wrapping district Barton, whose Joe Representative incumbent the home around pivoted in stretching end of district southeastern at the extreme sits residence D, Appendix See Worth. Fort around loop 100-mile-long infra. 12 District shed were communities that these suggests plurality The incumbents’ neighboring to further as a proxy race use of “suspect in a 971-972, thought, In. had ante, at Ante, 979; also see interests.” “resemblance was the cases these concern however, the Court’s districts. majority-minority creation in the involved apartheid” to include decision (1993). how the not see I do I, S. U. any bears majority-white neighboring in a minority communities any rele- matter, it has how or, “apartheid” to such resemblance 30, been retained communities these
Had compact. By giving up these much more have been would Bryant, District 30 was forced however, to Frost voters population and Democratic voters elsewhere. out to seek way to the south its had blocked incumbents Democratic west) only (and, was extent, to a lesser east; north go.13 way it could Democratic helped prospects of a have would
It plowed simply di- 30 had it the new District candidate Immediately population. up pick additional rectly north to in- Cities,” which “Park city of Dallas north of Republican strongly has voted population that clude 9B 9A and Exhs. State’s throughout elections. recent 1990 and political affiliation index (depicting one (and elections). vote Democratic dilute the than Rather incumbents) manner, District in this Republican threaten then curved west, and on the communities these 30 skirted region’s either side up communities picking east, freeways.14 major interstate out of extracting voters Democratic process of
theAs progressed, Dallas in North Republican core of Republican voters Democratic between distinction (the at which level smallest precinct level from the moved re- immediately in the available was data political affiliation minority those from which of a district of the creation validity to the vance *54 infra, at 1030-1032. See also been excluded. have communities 13 “[A]ny time Sharman: Christopher of (testimony 187 g., e. See, 3 Tr. or usually squeeze end, you would one away on a district of part took you the case, the time end; most in this and on another out district the push north”). to the get pushed would these aware of was herself opinion Court the District author of not did Johnson (Jones, J., noting that id., See at realities. political “[djidn’t com want because she Park Cities with do the anything to want to is difficult Perot”). recognition, of this In light from Ross petition avoid efforts to 30’s District described District Court the why understand bi race-based allegedly to the factor contributing as a community 1337; ante, 967. at F. at Supp., See 861 district borders. zarreness to smaller census block level down the districting programs) socioeconomic (the level which and demographic smallest available).15 which effort to further In an identify data was in- their were the candidacy, blocks support census likely data, but own census their long expe- used not cumbents only well as as the local experiences representatives rience as (de- 177-179, 181-182 3 Tr. and staffers supporters. as methods, driving through such simply neighbor- scribing candidates for office used staff hoods, that members the likely politi- information regarding develop block-specific voters).16 cal affiliation affiliation about information addition, political
In although level computer the block through available at not was were able get relatively and staffers legislators program, through sys- about voter preferences information precise candi- that allowed Party, the Democratic tem, developed by voters had partic- in which party primary determine dates to information, Id., this examining By 179-180. ipated. to in- lines fine-tune district further were able legislators who would prob- those and exclude clude likely supporters than in in urban closely packed are more boundaries Because always will almost boundaries on such areas, based drawing lines rural in rural districts. urban districts than turns in twists require tighter the District Court down struck three districts Significantly, over densities population with State entire districts only three Commerce, Bureau Dept, S. See U. mile. square 2,000 per persons Congressional Characteristics Housing Census, Population 1993). (Feb. empty enough If Texas 40-44 Congress: the 103d Districts of sparse densities they matched to these added land were by the upheld which was (such District of rural districts without space, open and the sharp, so appear Court), turns would their of the districts’ deepest could smooth implications, demographic its notches. identified, had to be connected they were communities As Democratic statutory or has no state Texas Although district. core each effect, agreed legislators state to that requirement constitutional candidate, any contiguous, permitting entirely should of the 30 districts it. leaving without in her district hand, every residence to visit inmap
1018 Cummings, Gaffney Cf. their opponents. ably support over- (“[W]hen are] (1973) profiles [political 735, 753 S. 412 U. to recog- no special genius it requires map, laid on census line a district of drawing consequences nize another”).17 than rather street one along Texas Leg- conducted by careful gerrymandering was her staff of Johnson the watchful eye under islature (Johnson was level a districtwide on not only a success 1994), both 1992 and vote in over 70% with elected in the precincts While pre-1990 level. but on precinct for a reason little Dallas gave North heavily Republican see State’s for much support, to hope incumbent Democratic elec- with 1990 Collin Counties of Dallas 9B Exh. (maps Democrat-leaning pre- a few only showing results tion index occurred Dallas), gerrymandering in North cincts indications, all that, by precincts smaller resulted 1991 into voters of Democratic concentrations gathered in sur- voters of Republican concentrations while leaving 30 9A (maps Exh. See State’s and 26. 3 Districts rounding results index election 1992 Counties and Collin Dallas in the North precincts Democrat-leaning more showing many 30). of District sections Dallas that “a reap- J’s statement on
Presumably relying face, its that, on irregular so highly bemay plan portionment an than other as anything understood cannot rationally 509 race,” basis voters’ . . . effort ‘segregat[e] Dis Both ways. in other of districts shape influenced Incumbents portions instance, to include detoured 29, for and District trict 30 legisla by the state represented being were districts legislative state (showing Exh. 31 See, g., e. State’s Congress. run for hoped who tors part been had in District included County Tarrant that portion cases, drew district). legislators some In Senate State Johnson’s Tr. 192- See 3 challengers. primary potential residences to avoid they communities to include sought also id., Incumbents 193; at 46. interest this supporters; active knew) (or particularly contain expected a particular ensure desire any trumped often voters in “active” 1320. 40-41; at id., Supp., F. id., 190; See 3 makeup.
1019 offers mathematical 646-647, proof the at S., plurality U. Nation, the districts in the bizarre of most 30 is one District florid de- the ante, 960, now-obligatory and relates see 965-966; see also ante, at the district’s of shape, scription 29). theAs ap- District maps ante, 973-974 (describing nor neither District demonstrate, this opinion pended of these on either a districts have monopoly Houston the districts Three other majority-white characteristics. districts among the majority-minority ranked along Niemi, & Expressive Pildes Nation. oddest the the Evaluating Districts,” and Voting Rights: “Bizarre Harms, Reno, 92 Mich. After Shaw Appearances Election-District the clearest (1993). example 483, Perhaps L. Rev. context majority- outside the gerrymandering partisan district rep- is District majority-Anglo districts minority a Republican.18 resented by districts Texas majority-Anglo noncompaet extremely two While all) means 25) (though by no blame (Districts part able to might 3 and districts, majority-minority with the their contiguity
their contortions on District 30 a border with it shares Although excuse. 6 has little District in either straightest the is one of distance, that stretch short county through line entirely along districts, almost running D, Appendix Airport. See International Worth Dallas-Fort infra. far less of an 6 has description: District florid obligatory for the As struck down majority-minority of the any core than identifiable prob- it is anywhere, “begins” To the extent District Court. by the Ennis, almost 40 located Rep. Barton of incumbent home near the ably there, the district winds Dallas. From downtown southwest of miles finally crossing into County, of Ellis rural sections predominantly across arms Joe across two skips It Worth. home of Fort County, Tarrant through then travels County, Dallas way into Lake, noses its Pool the central Nearing Fort Worth. suburbs Republican predominantly around area, to curl then retreat into downtown the borders dart city, north suburbs growing airport up picking edge, northern city’s corner northwestern the far into its travels Worn from of town. Ennis), lines flies, (almost miles, as the crow county waterline for Lake, traveling along Eagle into Mountain south plunge along homes that have built collect voters detours to miles, with occasional rural Parker its roots in Refreshed, rediscovers the district its shores. atrocity by District every geographic committed
For split pre- District 30 and more. commits its own District 6 Republican gerrymander voters out of Democratic cincts to (Tar- 9B the same. See State’s Exh. precincts; District 6 did cuts). County, showing District 30 travels District 6 rant boundaries of a 6 follows the lake. riverbed; District down of inter- unrelated communities 30 combines various rural, District 6 combines suburbs; and its est within Dallas *57 District 30 sends tenta- communities. and suburban urban, tentacle, District 6 is a nearly core; from its 20 miles out cles (as walks), and it has long candidate the hundreds of miles no core. majority-white Dis- equally the bizarre existence of
The District 30’s odd plurality’s discussion of the trict 6 makes anything, be- largely the similarities shape irrelevant. If likely suggest than that it is more 6 and 30 tween Districts the muta- incumbency that led to considerations the not that that forced considerations the same District 6 were tion of way through Dallas.19 its North and turn 30 to twist District for an- Worth from the southwest toward Fort then flows back County, so, city. As it does the heart of that voters near Republican other bite field in more than a football to not much places narrows in the district county— fifth rural of its regions into the it heads back Finally, width. but origin, miles from its only itself finally exhausts Johnson —where Miller, in culture.” apart in distance and worlds apart of “miles hundreds district). rural/urban S., a combined (describing at 908 similar 515 U. a hay por much over makes plurality the examples, Seeking specific north of Dallas. county the line just over County of Collin located tion ante, There, precinct of a 965, portion District 30 excludes 971. in “exactly only onto the area and maps in that voted Democratic [minority] percentage population county th[e] the southern half Ante, at 965. of 50%.” excess however, minority refers, the groups the plurality The to which map district by the are defined precincts and since by precinct, percentage “exactly” pre- onto maps district boundaries, that the surprise it is no (One 30 maps that “District similarly argue might 153. App. cinct. See black,” but that is 50% of north Texas area in all exactly only onto the spe- demographics underlying little about the reveals such a statement nature of District 30’s racial, political, rather than by comparing starkly highlighted more gerrymander is even II and Miller. down in Shaw struck it with the far con- population instance, for more is, 30’sblack District minority population in North Carolina’s than centrated it clear made Miller, the Court And 12. District Georgia’s District was result shape Eleventh odd minority popula- proportion of its effort to increase conscious “ ‘exceedingly obvious’ found, was, Court It tions: together with the District, Eleventh shape of the bridges drawing land of narrow demographics, that the outlying appendages contain- incorporate within district population was a total black the district’s ing nearly 80% the dis- bring populations into black attempt to deliberate (emphasis citation added; at 917 S.,U. Miller, 515 trict.” omitted). the dis- demographic converse precise is the
District example, has a in Miller. down trict struck 50% which contains Dallas compact core South total nearly of the district’s 70% population and appendages to Geor- Unlike population. Cf. ibid. *58 black stretching west north and the tentacles gia’s 11, District block district.) are the census maps telling The more of the sections cifie 30 of District County section Collin the that which demonstrate maps, minority 25% population of less than blocks more census many contains Exhs. See State’s minority. than 50% are that more blocks than it does if D, Even infra). (Exh. in as part, Appendix 45 is reproduced, 46 45 and they were relatively populations, small blocks have majority-white those district was the creation included, that suggesting nonetheless Court and the District the race as Court focused single-mindedly assume. over- leaned precinct new the fact is the significant Even more pre- the election, the of portion while in Democratic whelmingly Republi- overwhelmingly voted District not included in that was cinct portion (Collin the excluded While County). 9B Exh. State’s can. See with help comply part, in dropped, been may have precinct the 1990 Act, involved a also successful Rights Voting under goals State’s votes. avoiding Republican while votes Democratic effort to maximize less in the 30 add progressively way popula- of this more
tion, and, they purposes inquiry, important in share minorities reduce the actually proportional Exh. 33. district. See State’s offender, in the trained The worst
For eye example: arm of the district Court, be the northern may and then into Collin around the Park Cities County. winds up 22% of the is contains arm, only But that which population, to the identical black, 21% ibid. —a essentially proportion in as a Dallas of African-Americans County proportion whole.20 out is correct
The certainly pointing plurality some communities District 30’s reaches encompass outlying It is concentrations of minorities.21 implausible high (black is County in Dallas population 861 F. at 1312 Supp., Census, Unit Counts 185 362, 130); Population Housing Bureau of (Oct. 1993) (total 1,852,810). County of Dallas population worth specific examples responses plurality’s Several relies on the fact that County, plurality however. In Collin making, the Collin Hispanic” population the “combined African-American to District 30 is excess County extremity appendage of the northern Ante, eye 30 was created with an to a of 50%. at 971. But District population, so population, majority-minority rather majority-6Zacfc than (i) up only African-Americans make 19.8% the more relevant facts are that (ii) African-Americans App. Collin those County appendage, district, in the only population two-tenths of 1% of the entire consist ibid., (iii) majority-white blocks contains more census appendage this blocks, census see State’s Exh. 45. majority-minority than it does of one of the tenta- portion also out that a small plurality points an County one west into Tarrant cles—the that extends —contains Ante, implausible It at 965. would majority. African-American claim, however, reason that this commu- “predominant” race was the First, community part had been in District 30. nity was included second, supra; district, it also see n. Senator Johnson’s state legislative *59 the total population third, blocks; majority-white includes census 2,000 Finally, 331. people. App. less than of the district is portion (at the western tentacle of the entire population and more the important, black, 29% see community) only County of which is the Tarrant tip core of of minorities in the proportion half the State’s Exh. 33—less than the district. “segregate” voters effort to an however, that suggest,
to all, populations. After those 30 to collect District drove voters that African-American noted District Court even the in- were of District 30 the core immediately adjacent to excluded, protect to “in the district order tentionally added). (emphasis Supp., at 1339 F. incumbents.” votes, territory Democratic to collect Republican into Forced minority up commu- intentionally picked some the district communities). majority-white If (though more far nities majority-black would creating district goal not, had (the very sort incumbency protection to sacrificed have been that the race-neutral factors race over “predominance” discredits). Georgia’s 11 and District unlike But plurality was that the district 12, the reason District Carolina’s North minority commu- place collect was in the first there It Democrats. population preferably to collect but nities, — the “several to assert therefore, be fanciful would, obvious,” for the were “drawn District 30 appendages” to popu- putting black “purpose of predominant, let alone 910.22 Miller, S., at 515 U. the district.” into lations like shape of District analysis of the sum, a fair In its notion shape District belies equally bizarre by considerations. racial shape determined was neighboring into reaching District 30 Indeed, “appendages” if the resulting in the African-Americans off, the proportion cut were counties consti As presently 331. See App. actually increase. would district 50.02%) (or 283,225 566, 217 of which people, tuted, 30 includes County portions Collin County and If the Tarrant African-American. 557,218 peo would have resulting district removed, the were the district 50.36%) While (or be African-American. would 280,620 of which ple, necessary under deviation” the “zero include would not resulting district 10, supra, n. (1964), see progeny, and its Sims, S. U. Reynolds census majority-black acquired easily could missing population in edge, thereby eastern southern District 30’s adjacent blocks al Because the further. still population of black creasing proportion effectively more be achieved could the district goals leged how comprehend do not simply I more compact, district making majority-minority create that the effort conclude can plurality other, goals. race-neutral over “predominated”
Intent districts that noncompact congressional conscious
Perhaps Texas, than the plurality rule rather exception are the ante, that real is the 960-961, 969-970, key suggests, § form of in the Texas’ evidence, Voting direct particularly of then-State Senator and the person Act submissions Rights an intent to create these that the State Johnson, expressed of the favored “minimum percentage given Even if it were at 1309. appro- 861 F. Supp., minority.” on an examination of this test dominance to rest priate or on individual motivation of legislators,23 the subjective relevant, hardly dispositive but evidence is by individuals Testimony be true that the most supra. may It See n. motivations. of collective Johnson, of the Sen the Chairman Senator motivating concern important Congressional the first Committee, her desire to create was Districting ate were in African-Americans which of the State history in the testified, however, considerations that racial never majority. Johnson of the dis shapes to the changes motivating the sole concern were (certain commu minority areas were See, e. g., App. 454-456 tricts. power), of incumbent because incumbents Anglo were assigned nities territory regardless (“[J]ust friendly for id., looking 30 went at 459 regard as well territory friendly for color, looking went incumbents] [the §2 to the color”). only was not irrelevant testimony this Since less of racial considera there her claim harmful to arguably but proceedings particularly are account, these admissions into been taken tions had telling. relevant, legislators of individual testimony the extent To many confirm the Texas House floor of from the following statements racial, gerrymanders: not political, districts as these viewed legislators protect incumbents.... was plan “This drawn an incum- congressman Dallas an incumbent protect order to “[I]n bound- urban respected, not were county lines congressman, Houston bent Id., respected.” were not boundaries precinct respected, aries were (statement Ogden). Rep. 374-375 Congressmen Republican have 8 will you of this plan, adoption “With Republican less provides regression facto de of 30. That’s out D. C. Washington, representation appears in what surgically split throughout State “Communities election if look at you But pattern[s]. and erratic illogical, irrational very logi- lines are State, that these you’ll find throughout result data in a proceeding designed prove given legal testimony does little more than conclusion,24this information conflicting *61 to believed it with necessary that the State comply confirm its Act. Given reasonable understanding the Voting Rights 1007, see at the supra, its legislature of responsibilities, legal dis- its of to ensure that creating majority-black acted goal not the undermined by changes Dallas was trict County other, dis- 30 to race-neutral District made to accommodate ante, 958, at admits, the see As plurality tricting principles. districts does not to create majority-minority the intent these admissions prove nothing strict scrutiny; itself trigger ante, at 930-932 II, (Ste- that. See also than more J., dissenting). vens, Community Factors:
Nonracial odd for the definitive explanation effort to In an provide factors: two the district, emphasized the State shape drawn, communities dissecting have been The lines very rational. cal and Democratic and maximize Republicans pack to creatively in order very Gusendorf). (statement Id., at 376 Rep. representation.” ger- (statement illustrating the of Rep. Gusendorf id., at 377-380 also See 6, majority-minority not a District to by reference process rymandering district). do nothing to It has happen. have to “d[o] not gerrymanders These because minority representation with do nothing to It has fairness. have we would minority representation, about really concerned were if we and considered were minorities the that way in such map this drawn Hill). (statement Id., Rep. at 384 Democrats.” to elect simply to District Court and plurality the for unfair slightly and ironic It is testimony Johnson’s Congresswoman §5 submission State’s use the them against as evidence congressional the challenge §2 to in a ante, 1338-1339; 1319-1321, Supp., F. at g., e. See, cases. in these the assure to the State required proceedings of those Both 969-970. at had the State that court, respectively, a federal General Attorney 1991 redis voters in minority interests considered adequately that circumstances, surprising at it is not all such Under process. tricting the role comments his or her would limit declarant relevant were other considerations redistricting process, in the played race contrary notwith to the opinion Court’s (the District irrelevant largely 1339). at Supp., F. see 861 standing, popu- together tying interest presence of communities incumbency protection. role of district, lations improperly dismissed plurality and the Court The District shape ultimately irrelevant to as considerations these the districts. testimony presented appellants
First, interest, communities certain align with were drawn transportation demographics, and family use, as land such Although the Supp., 1322-1328. 861 F. corridors. community characteris- recognized that these Court id., descriptions of District accurate amounted tics districting proc- irrelevant them it dismissed Legisla- “the evidence was no concluding there ess, in mind of interest’ ‘communities particular these ture had *62 The Ibid. 30.” District drawing the boundaries when to dis- present no reason appellants that concludes plurality 966-967. Ante, at place conclusion. evidence require such why should we not understand
I do legislature to for the entirely reasonable It is exist. ever to particu- drawing when members experience of its rely “evidence” clearly identifiable than on rather lar boundaries ofMost political scientists. demographers and by presented communi- of their members been have representatives these state in to interfere intends the Court years. Unless ties for already expressed it has than more even processes require to not intend does presume I do, an intent in record administrative comprehensive create States legislators process. State redistricting their support of only pre- experience, not rely own on their be able should obvious presence of that the the extent reports. To pared explic- a district among members of interest communities it amounts shape of guided the implicitly itly or consideration.25 legitimate nonracial entirely to an itself Miller, “ethnicity Ginsbueg in dissent in her noted Justice As S., 944; see U. of interest. in communities together” people can tie J., (Stevens, dissenting) (1982) 613, 651 U. S. Lodge, Rogers also Incumbency Factors: Nonracial “present appellants a . . . plurality that the admits
The incumbency protection for claim case their substantial shape.” Ante, at determining the district’s in race rivaled redistricting participated in the who Every individual 967. fac- incumbency protection was critical process knew points plurality and, as the lines producing bizarre tor recognized that the District Court even 963-964, ante, at out, districts of “safe” creation on the nearly focus exclusive this shape intimately bizarre related was incumbents throughout the State. lines many protection incumbent “[I]n Texas in redistricting principles sabotaged traditional boundaries neighborhoods, cities, routinely counties, they divided winning maintaining or sake regions. For Congressmen or Representatives, House seats in poten- groups and hostile Congressmen shed would-be districts. of their fencing out them opponents tial appar- out obligingly carved Legislature ap- added then . . and incumbents, . supporters ent districts. to those residences their to connect pendages people select in which one result seems The final representatives which but representatives, their will they disadvantaged, society are our (“Whenever groups identifiable *63 ”). Further- as a ‘bloc’ to vote and tend interests common share to prerequisite a voting, racial bloc fact very the more, be that may it (1986) (and, under 30, 51 U. S. 478 Gingles, Thornburg liability, §2 see of a voluntary formation the jurisprudence, recent Court’s the minority com- aof presence district), demonstrates majority-minority skeptical a more may merit race based on communities While munity. ties the stereotyping, mere bond, than a rather that ensure review community such 1338, recognition Supp., F. 861 community, see circumstances, serve could, certain in certainly district an electoral in shapes. odd district for particularly explanation race-neutral legitimate erred. District Court that I believe contrary, By suggesting (Souter, J., dissenting). ibid,.; at 1060-1061 post, See (cita- Supp., at people.” F. have selected omitted). tions and footnotes overwhelming Despite this evi- id., n. 43. also motivating incumbency was the critical protection dence that districts, the Dis- Texas the bizarre the creation of in factor stunning that because conclusion reached trict Court “generalized, degree” in from the process so “different was seniority protection” and goal incumbent legitimate, recognized, not serve it could previously has this Court that the bizarre boundaries explanation for legitimate aas dismissing In 1334-1335. Id., at congressional districts. Court all, the District incumbency protection once for interest state protection is a valid “[i]ncumbent stated pretext for unconstitutional not a is only to the extent Id., at 1336. gerrymandering.” racial misper- begin to attack where to know is difficult It plurality’s conclusions,26and in these ceptions reflected the relative its evaluation seriously taints so to do failure of Dis- in the creation considerations importance nonracial that under the course, is problem, of initial 30. The trict must con- Miller, one in forth set test as threshold Court’s determining incumbency protection the role sider before gerrymander.” an “unconstitutional is there whether gerrymandering these focus in the ultimate because And and control- the “dominant was that race the claim cases S., at U. [the] lines,” drawing in ling rationale a State’s test, consider applying must, a court the cre- controlled rationale given race-neutral that a claim (“Where [compactness, at 916 id., lines. See those ation are considerations contiguity,] other race-neutral or subordinated legislation, redistricting basis has been a district a claim can ‘defeat race, State be part flawed probably was analysis legal Court’s The District opinion its announced this before Court was issued its decision cause Miller. *64 ”). Although gerrymandered may on racial lines’ a court explanation, ignoring that is no excuse for like the State’s it. prevented independent bar the use of If some that race- might posi- then the District be in criterion, neutral Court object have, however, to the State’s use of it. We tion incumbency protec- affirmed that a State has an interest J.); g., (opinion ante, at tion, see, e. 964-965 O’Connor, (1973), Weiser, 783, 791, 412 U. and also as- White v. S. require compact- does not Constitution sured States contiguity, respect political borders, I, see or for ness, egregious political gerrymandering at 647. While S., 509 U. particularly praiseworthy, see at 1038- may not be infra, explana- may provide race-neutral nonetheless scrutiny necessary of the dis- to avoid strict for a State tion gerrymandering is the “dominant and lines where trict shapes.27 explanation the odd district controlling” apparently dispositive had an error The District Court’s scrutiny should whether strict assessment of on its effect plu- dispute Although aspects with of our apply at all. they arise not 971, n., “largely ante, at rality factual,” credibility disagreement the District Court’s out of our conclusion court’s erroneous out of that assessments, but factor overwhelming on this race-neutral reliance the State’s factors evaluation to its illegitimate irrelevant was fair evalua- A shifting lines. this district’s in the involved legal stand- appropriate light made the record tion of the District very from different requires a conclusion ards misdi- its down following Court By Court’s. astray. goes plurality itself path, the rected case is “dif in this gerrymandering that the may While it 1334,1 F. at Supp., recognized, previously from that degree” ferent in to “traditional” I and Miller in Shaw the reference not believe that do Miller, S., 642; U. I, S., 509 U. see Shaw districting principles, policies or process changing a State prohibit was intended to redistricting. is modern negotiating process underlying complex *65 Proxy
Race as a politics, race, that was the all this evidence Faced plurality shaping lines, the predominant factor appellants’ asser- to contradict ultimately little effort makes important in far more incumbency protection was tions that ante, at lines than race. See placement District 30’s position an adopts fallback based a Instead, 967-969. “analytically distinct” argument far even removed plural- In it, at 652. I, S., 509 U. set forth claim for the bi- predominant reason suggests even if the ity that was incum- majority-minority districts features zarre as a impermissibly used race bency protection, the State likely political of blocks affiliation determining the proxy for J.). (opinion O’Connor, ante, at 968-971 voters. See relatively likelihood, was process, all of this effect compari- A shape of the district. to the overall unimportant pro- depiction of the precinct results with the 1992 son of that block reveals population in each census portion black greater area than a far Democratic-leaning precincts cover Compare 9A Exh. State’s majority-black blocks. census opposite effect expect would 45. One Exh. with State’s drawing was the districts goal single-minded of those if the the At political affiliation. than composition rather racial drawing of boundaries suggest maps very least, the complex than far more demographic calculus involves stereotyping. simple racial proxy aas race served the extent
Furthermore, to tuning” borders of “fine merely as a means so all, it did primarily particular already locations were is, through of race use tuning” This “fine reasons. tuning could kind of fine from the little different course, compact edges aof around legitimately occurred have why a no reason perceive I district.28 majority-minority computer the use concern over particular plurality expresses 28The data, block-by-block availability of particularly programs, voters for legitimate inclusion process choosing minority — in a district —should become once majority-minority suspect nonracial considerations force district lines from its away core. I note that in most contexts racial classifications
Finally, are invidious because are irrational. For it is they example, is not irrational to assume that to vote or person qualified to serve as a because she has brown hair or juror simply *66 nor irrational, invidious, however, brown skin. It is neither assume that a black resident of a is particular community if reliable statistical evidence discloses that 97% a Democrat in that vote in Democratic of the blacks community primary reason, that Brief for United States 44. For elections. See of the Texas sometimes the fact that the architects ap- plan data as a to have used racial proxy making political pear ante, at to me to be no more seems “unjustified,” judgments have no more constitu- J.), and to 969 (opinion O’Connor, that subur- than an tional assumption wealthy significance, are more to be white, black or banites, likely Repub- whether data,” ante, at detailed racial “compilfe] that the State’s effort argues in the computer-dominated role of race controlling evidence of the is ante, 961-962; at 1318-1319. Supp., at 861 F. redistricting. process “effort” to however, made no particular that the State It worth noting, is infor- included, similarly detailed data; along it was these gather levels, provided in set sex, the data and income age, mation about redistricting into the State’s wholesale imported Bureau and the Census Furthermore, if the Shaw, even 457. Supp., F. Cf. computers. minority that lines to ensure fine tune the was used to computer (rather re- than individualized in District were included communities data, the basis of block-level on their staffers from candidates and quests the than little more 1017-1018), amounts to technique a such supra, see that ensuring accurate means efficient particularly use of a incumbency protec- not undermined district was nature intended can the end suggest I do not district. compact out of a tion forced it invidious than no more means, means are if those but always justify analysis. should affect itself, why their use I not understand the end do on was based merely because it legislation state I would not condemn information. accurate ignore Requiring State Communists.29
licans than would be party affiliation race between association be to harmful, as would potentially as logical, and no more targeting African- Health Service prohibit the Public to increase awareness an effort communities American anemia.30 regarding sickle-cell plurality District and the by the efforts
Despite all the not, in race was demonstrates the evidence then, Court, leading creation to the goal “predominant” likelihood, the all interpretation of the reasonable The most 30. District political consider- demonstrates instead evidence record against inter- presumption accord with In ations were. complex legislature’s consideration awith ference conclude supra, I would see n. competing factors, scrutiny. require strict not 30 does configuration of more necessarily racial characteristic on a “A based prediction Nor, characteristic. group some other based prediction than reliable is political prediction making purpose ultimate legislator’s since prediction than benign invidious or necessarily more character, is it *67 racial, line-drawing process, the In characteristics. on group other based political species all are ethnic, gerrymanders economic religious, Bolden, (1980) (Stevens, J., Mobile v. U. S. gerrymanders.” omitted). (footnote in judgment) concurring incorrect, the is on race based prediction that a the extent To irrationality is such that to ensure way entirely obvious an have voters legislator A party. different for a Vote future: in the upon not relied will learn election his or her ensure demographics relying based was reliance that which upon presumptions if the a swift lesson incorrect. race use of the considers Court that ironic it particularly 30 1find basis on the recently, just Court context, while benign this verboten in sentenced persons alia, 90% than inter that, “[m]ore of evidence hand the out of black,” dismissed were trafficking cocaine 1994 for crack all types commit of all races “people that assumption Circuit’s Ninth Circuit’s ante, Ninth The at 469. Armstrong, States United crimes.” decision- of race-neutral the sort me, is model conclusion, seems decision- of constitutional part be a should insists Court this making that making processes.
V The Houston a closer on the districts present question ap- of strict There is evidence that scrutiny. many plication same race-neutral factors of Dis- motivating zigzags (or recreation) at the creation of Dis- trict 30 were present 30, however, In to District there tricts 29 and 18. contrast is of the Houston dis- evidence that the interlocking shapes also the result of and almost an tricts were exclusively, specifically, communities, both create, out of integrated effort largely district. For and a pur- majority-Hispanic a majority-black arguendo, I am then, this willing accept, opinion, poses that the Houston districts should conclusion the plurality’s Even so, plurality strict scrutiny.31 examined with that fail test. these districts would that concluding errs by obvious assump- with perfectly The begins plurality interest complying has compelling that State tions had a Texas Act and that strong §2 of the Voting Rights with that Act in have it would violated that for believing basis dis- three new majority-minority if it did create however, conclude, on to goes tricts.32 plurality not coextensive these districts the final shape because §2 of a viola- core would form the community tailored” to not be “narrowly would tion, these Ante, I respectfully 979. state interest. further disagree. the State insinuation nor suggests evidence
Neither reason race any considered the redistricting process of the record interpretation no reasonable I conclude that Although 30,1 believe for to District scrutiny strict application require would if it scrutiny were strict it, too, survive would that follow that reasons *68 of review. that level subject to to be State’s conclusions the supporting evidence I believe that the fWhile or Justice plurality suggested that than regard stronger is in this Kennedy assume, argmndo, simply will I concurring opinion, in his under liability of fear does, had a reasonable State that the plurality supra, §2. also 1007. See compelling inter- accomplishing its of as means a other than with the accord in districts majority-minority creating of est accounts, achieved, by all goal was, Rights Act. The Voting § liability under of certainly avoid would districts for these to es- continue that reasons For Voting Rights Act.33 the lack that simply insists plurality however, the cape me, being prevents them districts in the compactness interests. State’s “narrowly solutions tailored” its conclusion to reach premises two uses plurality The tailoring” the “narrow required meet compactness a unless §2 violated (i) been have not would requirement: have could district majority-minority compact reasonably § (ii) creation of requires the nothing in created; been propo- either quarrel with no I have noncompact district. a mandating conclusion short far falls each sition, but liable can be a State While from it. plurality draws compact dis- a drawn only § it have if could violation a 2 for creating such follow not it does so, do failed trict gener- § 2 violation. a way only to avoid is the dissenting). J., 946-950 ante, at II, ally Shaw (Stevens, degree limited “a retains that State admits plurality The § 2 liabil- fears to alleviate drawing a district leeway” in independent constitutional no there is if 977, but ity, ante, at place, and first in the compact districts duty create noncompact why reason is no there suggests none, plurality avoiding vio- method permissible not be should ju- unacceptable they might be The fact law. lations they question whether speak to the does not remedies dicial Caroli th that Noi asserting correct II is Court if the Even under liability to avoid State allowed have 12 would na's District made could be 916-918, argument plausible ante, no such §2, see than half more instance, contains of District core these cases. pre district, coincides in the population the African-American of all reasonably State community compact that.the the heart cisely majority- in a not placed § were 2 violation to a rise give would believes Houston to the respect true with facts The same district. minority districts.
may acceptable adopted by be legislature. when a state Be- satisfy compelling cause these districts the State’s interest in only and do so a manner that uses racial considerations in way reasonably designed to ensure such a I satisfaction, narrowly conclude that the districts are tailored.
<1 profess developing juris- I cannot how the know Court s prudence gerrymandering political of racial will alter the although landscape certainly in this it will Nation— landscape. alter that As the Court’s law in this area has developed, apparent it has become ever more to me that the perverse approach to these cases creates certain Court’s (I unanticipated presume) incentives and effects serve essentially territory highlight unknown into which political strides. Because I believe the social risks required by by the decisions are not the Con- created Court’s preceding my choice would be to avoid the stitution, first analysis altogether, leave these considerations to the our branches of Government. reasoning legal unintended outcome of
The first very decisions result that those II and this case is Shaw districting predominance race in the seek to avoid: the importance. principles process, Given over all other recognize role that race-neutral unwillingness Court’s bizarrely played in the creation of the districting principles II, it now seems shaped this case and districts both can both create only way that a State clear gerrymander is a racial and avoid majority-minority district thought,” ante, at 967 drawing, conscious by much “without degree the “limited (opinion J.), and within O’Connor, precise ante, com- leeway” granted Court, §2 impose in a successful would pact that a court dissenting). challenge. post, 1066-1067 J., (Souter, today, minority voters therefore, decisions After the Court’s only compact majority districts, whether up can make can voters accidentally drawn, while white intentionally or the State desires. as bizarre placed into *70 by requiring the State is that irony, course, great The place particular in a district majority-minority place the to may out as stand shape, district the particular awith and majority-white oddly shaped sea of in a placid island stark, Years: Hazy All These After Karlan, Still neighbors. See L. Rev. Era, Cumberland the Post-Stew Voting Rights in §2- sanctity of the (1995-1996). inviolable The 287, 309 than blatant more signal in manner will eligible districts “a mi- that gerrymanders racial these egregious most the not.” it with Interfere community here: sits nority will shape limiting the Court-imposed barriers minority to ability voters directly the with more interfere oddly shaped the did process than political in the participate cases. in recent down struck has Court the districts majority-white jurisprudence, by new the Unaffected districting in participate able bewill communities dis- certain into placed they be requesting that process rep- to maximize an effort districts between divided tricts, communities distant more with grouped or resentation, than commu- better interests their match might nonetheless maneu- political this none contrast, By door. next nities districts, majority-minority for permissible vering be will effec- more far balkanizing them and segregating thereby they were which here, in issue at tively than voters. easily as white process as in manipulated a “discrimination” me, involves result, seems This so shapes odd did than manner concrete far more II, Miller, Shaw sensibilities Court’s offended cases. these impor- extolling the work recent Court’s light of this In Semi- scheme, cf. federal in our sovereignty of state tance ex- have p. I would ante, Florida, Fla. v. Tribe nole more rather a course steer sensibilities the Court’s pected its it charts one than the States to the deferential “[electoral previously today. noted, As we have decisions legislatures, subject so districting is a most difficult political judg- must have discretion exercise the States competing Miller, necessary to interests.” ment balance (Souter, post, J., dis- also at 1047-1048 S., 915; see U. “complex senting). The in these cases evidences record legislature’s redistricting interplay of forces that enter failure to 915-916, Court’s calculus,” S., 515 U. respect even for the respect demonstrates less those forces expected process have after legislative I would than Miller. decision in inconsequential. After Miller and to
The results are not extremely may difficult to avoid day’s find it decisions, States redistricting. *71 hand, flowing On one litigation decennial from they Voting Rights fail violating Act if the will risk States they If create those majority-minority districts. to create liability they may open to themselves districts, however, Miller, S., at 949 progeny. 515 U. and its See under Shaw simply Perhaps dissenting). will States J., (Ginsburg, voluntary compliance abandoning with by problem the avoid altogether. §2 I, 509 Rights Voting See Shaw Act of the (White, dissenting); post, 1063-1064 J., at S., U. at 672 (Sou necessarily not dissenting).34 This result would J., ter, guarantee redistricting, is no that bring peace for there to §2 comply will be by with court order districts created Illinois, Shaw; in both Florida attack immune from under schizophrenic second-guessing very of that sort instance, Elections, King already Bd. v. State has occurred. of 34 legal require competing between these balancing of difficulty (and courts) to of by ability litigants the only be exacerbated ments will context or actors one the State its defense proffered use evidence supra. While there See n. against in another. evidence the State (to the extent inconsistent statements wrong using prior nothing unwilling more inconsistent), will be all the States really are they subject will be certainty they all the given into the at process enter for the will be fodder in one as defense offered in which evidence suits in another. plaintiffs 1996); (ND Ill., Mar. WL 95-C-827, 1996 No. 1996). (ND Given Fla. Supp. 1460 F. Mortham, v.
Johnson responsi legal competing reconciling these difficulty of the redistricting, cost the realities political the bilities, step of the simply may out litigation, States some ongoing or citing frustration altogether, either redistricting business defini issues the resolve court a federal getting hopes of Miller, g., e. Johnson See, single proceeding. tively ain (after 1995) (SD remand Ga. Supp. 1556, 1559 F. redistricting re its Legislature abdicated Georgia Miller, (Sou Court); post, to Federal sponsibilities responsibil likely “vacuum (noting dissenting) the J., ter, level). ity” the state States, Court the by the taken route Regardless a hand—and have will courts federal guaranteed has drawing dis- task “abrasive only hand—in perhaps the (1969) 542, 553 S. 394 U. v. Rockefeller, Wells lines.” trict nature uniquely dissenting). (White, Given J., role new impact this fear process, I redistricting impartiality perception public’s will have cau- Court’s only reiterate Judiciary. I can Federal “[i]n ago, decades two over admonition, issued tionary among choosing plan or reapportionment fashioning legislative pre-empt should court plans, a neces- than any more policy upon state 'intrude nor task *72 (citing Whitcomb S., at 795 412 U. Weiser, v. sary.’” White (1971)). 160 124, U. S. Chavis, 403 v. the decisions impression that the leave towish I do entirely focusing present the I to from Court has the Court that merely believe I problems. nonexistent flows harm of the nature misapprehended entirely attach than Rather gerrymandering. sort this from polit- share majority by the a decision blameworthiness discriminatory practices, past victims power with ical significant more should concern real Court’s no “serve decisions legislative from flow harms
1039 segment racial, favor one purpose other than to —whether may religious, occupy or a economic, ethnic, —that particular point strength time, or to position at a community.” segment disadvantage politically of the weak (1988) Daggett, J., U. S. Karcher (Stevens, good of such concurring). are as an illustration These cases legislators any part as self-serving on the behavior —but prob- gerrymandering. respect The real to racial not with gerrymandering that oc- politically motivated is the lem Many the oddest twists and turns Texas. curred legisla- created if the never have been districts would Texas protecting party and incum- intent on had not been so ture J., dis- II, ante, at 937-938 also Shaw bents. See (Stevens, shape (noting behind the bizarre senting) the same influences 12). of North Carolina’s political motives
By minimizing critical role that I fear that the Court districts, of these played in the creation objectionable encourage use inadvertently this more may Legislatures redistricting process.35 power in the responsibility to behave representatives have elected legitimacy and way incorporates “elements of performance of always neutrality characterize that must impartially.” Cleburne, duty govern sovereign’s discharged responsibility when is not That S., at 452. U. encourage incumbents to use legislatures permit even protect public themselves and positions servants their their constituents. parties the interests of rather than their Daggett, S., Karcher v. (Stevens, J., 462 U. straightening, concurring). any Texas are worth If lines in role Perhaps burgeoning of course. possible, is also contrary with their relative isolation along process, in this of federal courts lines, will legislatures to bend district that motivate pressures the political districts. gerrymandered actually politically be fewer there will mean that prevalent are more or less political gerrymanders of whether Regardless its hierar The Court has my is the same: today, point after our decisions down. chy upside of values *73 not those altered exclude, twisted that were
it is those to include.36
VII throughout the in Texas and history relations of race The discriminatory voting evidence of overt South demonstrates Richards, Brischetto, through 1970’s. lasting practices in the in Revolution Texas, Grofman, Quiet Davidson, & Voting Rights Act, 1965-1990, Impact of the South: 1994). (C. in Even eds. B.& Grofman pp. Davidson 233-248 only black candidates two elected years, Texans have recent have majority-white Texas districts office; to statewide or minority Senate to either State a elected never 94- Appellants No. Congress. Brief for States United majority-white study suggests that p. recent 53. One 806, unlikely suspiciously throughout remain the South unconstitutionally by gerrymandering may act that a State My view is consistent process on the political a group the influence of to minimize of dis drawing error in the no constitutional that there is with the belief noted Powell As Justice considerations. racial benign lines based on trict Bandemer, S., sharp there is at 478 U. in Davis v. opinion his e., the draw {i. sense” in the ‘loose’ “gerrymandering between distinction “ger goals), social political and general lines to advance ing (i, e., the discrimination” unconstitutional that amounts rymandering “ ‘occupying] position purpose the sole lines for drawing of district seg weak politically time, disadvantage or to at a strength particular ” Kareher, S., at 748 462 U. id., 164 (citing at community,’ ment of (“[A] S., n. 9 preference 478 U. (Stevens, J., See also concurring)). merely recog . . . gerrymanders opposed partisan for nonpartisan guaranteeing are aimed fact nonpartisan gerrymanders nizes that IWhile believe representation”). fair group infringing rather than rise give if should impact, proved, discriminatory intent allegations alle Miller, all involve Shaw, these cases violation, to a constitutional allega diffuse than the are far more and intent impact both gations of review. rigorous most directed our traditionally we have tions to which J., Gomillion (Stevens, cf. ante, dissenting); II, at 921-923 See Shaw (1960). gerry ban the constitutional Limiting S. 339 364 U. Lightfoot, (as every opposed group a specific alleging to those claims mandering prior precedent far more consistent harmed would been group) has gerrymandering. jurisprudence still-developing than the Court’s
1041 Grofman, & representatives. Davidson black to elect Represen- Black Municipal Structure on Election Effect Revolution in Eight States, in Quiet in Southern tation than 15 of the nationwide, fewer at 344. And South, Congress through passed legislators have hundreds majority- legislators from elected 1950have been black since example, of the Nation’s 39 for 36 In districts.37 white majority-minority Representatives elected from were black majority-white only 3 elected while were districts, dissenting). post, J., at 1050-1051 districts.38 (Souter, for that and, in Texas Perhaps race relations the state of might optimistic than be ex- more Nation, matter, may so, be that light If pected facts. these Per- redistricting will successful. plurality’s exercise in majority-white minority forced to run candidates, haps history long of stereo- be able to overcome districts, will the vast heretofore led that has typing and discrimination minority reject can- majority-white districts majority of only bodies of Perhaps I am certain not. didacies. position in far better and state officials federal elected the Nation’s whether anyone to assess on this Court than overcome, and that history been long has of discrimination unnecessary in- requires this nothing in the Constitution negotiate solutions ability of States into the trusion groups long-excluded providing political differences while effectively in the democratic participate opportunity to respectfully process. I dissent. page.] this J., follow opinion
[Appendixes to Stevens, 37 (list (1993) African- 10 Quarterly Congressional Compare 1992) through the end Congress have who served Americans 1994) (Nov. mi (listing Quarterly Congressional to 52 Supplement of The Almanac publications biyearly Congress) in the 104th norities 1975-present). (published American Politics Studies, Affrican and Economic Bositis, for Political D. Joint Center 1995). (rev. candi Fifteen black May 1994 Midterms & the -Americans Ibid. districts. majority-white ran office in dates STEVENS, J. A OF TO OPINION
APPENDIX *75 DISTRICT TEXAS CONGRESSIONAL STEVENS, OF J. B TO OPINION APPENDIX *76 DISTRICT CONGRESSIONAL TEXAS STEVENS, J. OF TO OPINION C APPENDIX *77 DISTRICT TEXAS CONGRESSIONAL *80 Ginsburg Justice Souter, with whom Justice Breyer Justice join, dissenting.
When the Court a devises new cause of action to enforce provision, ought identify injury constitutional an dis- tinguishable consequences concededly from the constitu- conduct, tional necessary and it should describe the elements and sufficient Nothing to make out such a claim. less can give may give notice to liability those whose conduct rise to provide charged or enforcing standards for courts principles justification, Constitution. Those notice, fair guidance have never been satisfied in the instance of the ago action announced three Terms Reno, Shaw v. 509 U. S. (1993) (Shaw I), majority awhen of this Court decided Equal that a State violates Fourteenth Amendment’s Protection Clause excessive consideration of race in draw- ing voting the boundaries districts, even when the result- ing plan voting strength any does not dilute the voters give liability and so would not otherwise rise to under Voting Fourteenth or Amendments, Fifteenth or under the Rights Act. any injury addressing
Far from to members of a class sub- jected presupposition treatment, to differential the standard equal protection putative violation, of an I Shaw addressed a subject complaint by any objecting harm voter to an unto- political process. ward consideration of race in the Al- though repeatedly any the Court has disclaimed intent to go as far as to outlaw all conscious consideration of race in districting, appellate litigation seeking after three rounds of to describe the elements and define the contours of the Shaw helpful action, cause of statement of a Shaw claim still go eludes this This is so for reasons that to the Court. conceptual bone. provide practical
The result of this failure to standard distinguishing for between the lawful and unlawful use of only race has been inevitable confusion statehouses consequent responsibility courthouses, but a shift *81 legislatures, which the state from setting boundaries by the Con- authority I of Article front-line with invested is left Court, which truly to this courts, and the stitution, to legislative district every drawing of superintend land. puzzles or return solve Shaw’s opinions little Today’s do say is not To this the States. districting responsibility to position importance of denigrate the O’Connor’s Justice compliance with that 990-992, ante, at opinion, separate her interest; her compellingstate Voting Rights § isAct 2 of the alleviating step toward very significant takes statement Voting Rights with the odds Shaw apprehension plurality, combined however, that true, still It is Act. law ultimately leave opinions do minority, and Court man- more or clearer appreciably claim dealing a Shaw with that some And to extent did. I itself Shaw ageable than may consid- knowledge race from the clarity follows Voting to the necessary to conform reasonably ered when osten- this specter that opinions raise today’s Rights Act, price. heavy constitutional may with come progress sible practical be the may out to turn indeed, I, price of Shaw dis- apply traditional discretion aof State’s elimination without accepted in States widely tricting principles, confronting them. in States well as districting issues placed burdens as the and persist, I of Shaw flaws the As larger loom litigation by Shaw courts and the States of redis- round a new and census a new approach problems that Shaw’s recognize has to tricting, the Court between relation misconception about a basic result amount no mistake principles, a districting race and no therefore, is, There tinkering eliminate. can case-by-case bring eventually will the Court confidence reason /, created the confusion out order much respectfully yet, I so any done case, not, in it has because dissent.
I As its text indicates our cases have necessarily Article I of the Constitution *82 repeatedly recognized,1 places for districts on the States in drawing voting responsibility (“The 2,§ the first instance. See Art. 1 I, cl. House of Rep- shall be of Members resentatives chosen composed every of the States, second Year the several and the by People have Electors each State shall the Qualifications requisite the most numerous Branch of for Electors of the State Legis- (“The I, § cl. 1 Places and lature”); 4, Times, Art. Manner for and shall be Elections Senators holding Representatives, thereof; in each the but the State by Legislature prescribed time Law make or alter such by Regu- Congress may any lations”). limits on The has nonetheless Court recognized it could discern a when state autonomy strong districting definite standard and reasonably constitutional justification numerical so, as, for announcing for example, doing Reynolds Sims, vote, one see v. of one person, requirement (1964).2 has But the never 533 Court ignored 377 U. S. 1 (1993) (“[T]he Emison, 25, 34 Constitution See, v. 507 U. S. g., e. Growe for their responsibility apportionment primary with the States leaves districts”) Const., (citing U. S. legislative and state congressional federal (1993); Quilter, v. §2); Reynolds S. 156 I, v. 507 U. Art. Voinovich (1964). Sims, 377 U. S. of the one- one-person, instance in the no controversial longer Even to rule, subject sharp and standard was justification adequacy vote minds hesita expressed principled the Court’s best and some of dispute, thicket, see political called the far into what has been go tion to even this (“The J., of its new id., (Harlan, Court’s elaboration dissenting) at 615 unwisely—it has far—and how indicates how doctrine ‘constitutional’ consequence authority. of its bounds strayed appropriate al may handful of States which that in all but the decision is today’s or, be, may local District Court requirements new ready satisfy the courts, duty the constitutional authority blanket and given the state to Legislatures. State It is difficult of the supervise apportionment to judici interference and inappropriate a more intolerable imagine States”); Carr, Baker legislatures ary independent with the responsibility to the districting commitment Constitution’s accordingly assumed has of the States branches political widely districting principles years that traditional over informal baseline an represented among accepted States accorded thus have practices. We districting acceptable (as those, principles traditional respect to such substantial neighborhood integrity of preserve the example, meant existing politi incumbents, to follow protect communities, and to interest, communities recognize boundaries, cal these seen contiguity); have we compactness and achieve Fourteenth entirely consistent as objectives (“A g., id., See, e. demands. Amendments’ Fifteenth integrity of maintain desire legitimately may State provide possible, subdivisions, insofar various designing a territory in contiguous *83 of compact districts 412 scheme”); Weiser, v. White apportionment legislative suggest (“[T]he not (1973) did Court 797 783, U. S. pre districting to so as policy of legislative the hold or un was incumbents congressional of constituencies the serve undesirable”); Quilter, v. Voinovich even or constitutional their (“Because derive (1993) ... the States 146, 156 U. S. 507 provisions independent authority from . . . reapportionment re to bound courts federal law, the federal and state of choices those unless choices apportionment the States’ spect (internal marks quotation requirements”) federal contravene omitted). citation omitted; constitu- these underlying most tenet fundamental communities (respect for principles unobjectionable tionally than voting is more say) is neighborhoods, or interest authority— (“The Court's J., dissenting) (Frankfurter, (1962) 186, 267 S. U. sus ultimately rests nor purse sword — neither possessed be nour must feeling Such sanction. moral in its confidence public tained from appearance, and in detachment, in fact complete the Court’s by ished into itself injecting abstention entanglements political settlements”). political forces political clash it is law of Consti- exercise.3 Although atomistic an or places represent people, that representatives tution 562, the interests, Reynolds, supra, or particular things federalist within democracy notion representative vot- individual that States may group framework presumes them choose a will let represen- in a way ers together to individuals but ready repre- not only acceptable tative & within a Aleinikoff district. shared interests sent widely Constitutional Issacharoff, Redistricting: Drawing Race (1993) L. Reno, 92 Mich. Rev. After Shaw Lines of the same (“It political collective prefer- as partisans only or race is defined by party ence —whether preference assert their voters can right measure —that other or any Hence, in the process”). meaningful participation own, tra- of their the States’ implementation in respecting has criteria, the Court recognized ditional districting in a repre- character voting rights associational basically democracy. sentative acknowledged notes, eases our vote-dilution Issacharoff As Professor simply more than implied ballot to cast an effective right
that “the must effective, a voter’s ballot To be all votes .... equal weighting those of like- aggregation of effective chance meaningful stand reason, For results. this of electoral share just claim a voters to minded participation meaningful electoral right genuinely sophisticated any Issacharoff, . . . .” right a group and measured must be evaluated (1995); also see Vote, L. Emory J. Right Groups *84 Racial Affecting Law Voting in Rights Davidson, The Recent Revolution The of Impact the South: in Minorities, in Revolution Quiet Language (C. B. eds. 1965-1990, & Grofman 23 Act, p. Davidson Rights the Voting voters, majority of when 1994)(“Ethnic place takes racial vote or dilution elections, systematically in a series of for its candidates voting bloc by can preferred all of its most or electing minority from ethnic an prevents voters of the minority deprive can only not Vote dilution .... didates mem by preferred being represented of achievement symbolic important in advocate them a committed of deprive it can group, own of bers their govern benefits of the substantial . . government. [and] of councils .”). ment bestows..
1050
A I, the Court before evidence required Accordingly, of voters to to an identifiable harm group substantial of these district- traditional displacement any judicial justify Reynolds Sims, existed v. evidence Such ing principles. un- supra, was held of votes weighting when disparate rec- when the Court was and it constitutional, again present dilution, of vote consequences the unconstitutional ognized White v. Chavis, 403 U. S. (1971); see Whitcomb Regester, (1973). harm case, In the one 412 U. S. the arithmetic identifiable; other, mathematically was evidence of the circumstantial impossibil- powerful provided of a racial chosen for the candidate success ity racial-bloc in an area pervasive and numerical minority from an were cases, easily In complainants both voting. vote- in cases of racial voters; even identified group difficult more which were claims, conceptually dilution vote, there were one of one person, than the state principle In- the harm in question. examples recognized readily would be that voters when one deed, acknowledged even race and of their own served representative winner, see no right pick the Constitution guaranteed supra, mere Whitcomb, to see it was 153-155, impossible American voting-age pop- in the facts that happenstance assembled black, but the Congress ulation was 10.5% no out of 435 and 17 black representatives 1981 had only States, of the United Abstract Statistical black senator. 1982) (Table Americans: (103d 802); Black ed. 1982-83, p. (Table 1995) (L. Hornor ed. Sourcebook A Statistical The Parker, Consequences Damaging see also 4.02); Versus to Color-Blindness Commitment Court’s Rehnquist (observ- (1996) 763, 770-771 L. Justice, 45 Am. U. Rev. Racial after the round of redistricting the latest that “[pjrior ing the nation’s 11.1% [bjlacks, who constitute Census,... members of 4.9% the made only up voting age population, that what we was conclusion inescapable Congress”).
1051 know of as intentional vote dilution accounted for this aston- fact,4 as it is that remedies ishing just equally inescapable (and for vote dilution its in the hedges against reappearance) account for form of the fact that majority-minority the 104th showed an increase of 39 black Members Congress Minorities in over 1981 total. 52 Congress, Q., Cong. (Nov. 12,1994); Parker, to No. see also Supplement p. supra, “a increase in the number (noting fifty percent of black members of Congress”).5 (1995) Pildes, Race, The Polities of 108 Harv. L. Rev. See in Quiet Impact Revolution the South: of the (reviewing Voting Rights (C. 1994))
Act, Davidson & B. Grofman eds. (noting 1965-1990 studies that, States demonstrate as a result of racial-bloc “the voting, of Southern representative a Black was less than 1% probability electing of a district’s income, family median its percentage high of a district’s regardless urban, who elderly, its of residents were graduates; proportion school of the state for five or who had been residents more than foreign-born, located”); id., in the district country or the which was years; region nationwide). is, course, There reason at 1375 similar results (finding infra, (discussing hope improving. that conditions in voting minority in crossover favors incumbents and elections which outcome). in significant have not role As played which racial issues IV, I infra, improvements I in in Part believe these discuss detail Act, Voting Rights in to the effect of the may large part be attributed in districting to allow race-conscious certain willingness thus to our situations. course, imposed prohibitions that elsewhere we have recognize,
5I race, crucial in how we determining the consideration of but contexts are peremptory jury Consider our decisions on “equal opportunity.” define There, may one race not have had a fair shake politics, challenges. jury decisionmaking between from the other. But the differences believe, are, ones. Politics includes important I decisionmaking values, may ultimately social choices that between different sets of choices through to enforce its demands ability group of a particular turn on the is defined as a neutral Jury decisionmaking process, ballot box. discovered facts. To objectively of law to a set of impartial application redefining jury’s selection would risk jury racial balance require race, imperfect as an denying possibility especially role. Without (and, in jury decisionmaking makes a difference proxy experience, cases, so), me that the better course is to it seems to legitimately some
1052 judicial interfer- only thus limited I, notwe Shaw
Before
readily demon-
districting
to cases of
efforts
state
ence with
voters,
we also
of
but
class
an identifiable
harm to
strable
districting
in which we
cases
to
with
our concern
confined
manageable
courts
standard for
providing
capable
of
were
years of
Within two
legislators to follow.
apply and for
to
(1962), malappor-
186
Carr, 369 U. S.
holding in Baker v.
recognized that
“the
justiciable issue,
Court
awas
tionment
jurisprudence was insufficient
equal protection
general
its
simple
increasingly rigid,
to
an
announced
task and
Karlan,
equipopulousity.”
of
voting-specific mandate
apply,
Voting Rights
Post-
in the
Hazy
All These Years:
After
Still
(herein-
(1996)
287, 299
Rev.
L.
26
Era,
Cumberland
Shaw
Era).
although it is
Likewise,
Karlan, Post-S/iaw
after
vote-dilution
a racial
definition
the common
quite true that
political
(“less
participate in the
opportunity ...
injury
U. S. C.
,”
. .
representatives .
elect
process and to
description,
has
1973(b))
the Court
§
of concrete
nois model
evidence
readily comprehensible
categories of
identified
including
injury,
facts
an
of such
bearing
the likelihood
quantifiable indications
minority population,
size
about
patterns voting, historical
and bloc
political cohesiveness
race-based
to make
right
side
by denying each
fair
shake
ensure
It is an en-
too
simply
great.
is
of the alternative
The cost
selections.
like all
recognize however,
groups,
matter,
tirely different
decisionmaking.
role in
legitimate
real and
play a
groups,
other
our
reality
of the
acknowledgment
an
more than
nothing
It involves
allegiances
interest,
personal
geography,
of common
concepts
theory
for a
room
deny
some
race
up
too bound
with
many
simply
places
con-
racially
for the consideration
allowing
democracy
of representative
principle
disagreed
Court has
never
majority
interests. A
ceived
(1993)
I,
(noting
U.
See,
S.
g.,
e.
Shaw
position.
with this
Miller
unconstitutional);
v.
always
not
redistricting is
that race-conscious
(consid-
(1995) (O’Connor, J., concurring)
Johnson,
928-929
U. S.
always violate
does
redistricting process
of race
eration
J.)
O’Connor,
strict
Constitution); ante,
(noting
(opinion
at 958
redistricting
performed
merely because
apply
does “not
scrutiny
race”).
consciousness
g.,
candidates,
or failure of favored
and so
e.
See,
success
on.
(1986);
Thornburg Gingles,
Regester,
Just *88 rhetoric injury, Court’s concept so the of with Shaw’s at odds con- the describe inapposite to injury racially motivated of Although the unreasonable. it thinks race of sideration refer as if to apartheid” “political metaphor of the used Court its asso- minority group to eliminate aof segregation to the I, integration, Shaw opposed majority a ciation not on separation is of racial sort this talk of 647, supra, at “political term that the jure segregation The de point here. 6 be a can injury a catholic such whether question the Leaving aside race use of be a might Clause, still there Protection Equal the of violation degree. to an unreasonable it is used because voters all district that harms Separa United v. Americans College Christian Forge Valley But see (1982). Court 464, Inc., But State, 489 U. S. Church tion of much, adopted having is too how much identifying in succeeded has never repudiation a practical amounts test purpose” “predominant I-C, See Part standard. a workable devising infra. hope any brings apartheid” to mind is unconstitutional because it em- inferiority phatically implies the of one race. Brown v. (1954)(“To separate Education, Board 347 U. S. children] age [minority qualifica- from others similar solely generates feeling their race inferi- tions because of community”). ority inI, as to their status Shaw con- complaint objected of a white voter vindicated who trast, particular segregation proportions but racial not to Separatism? Voting Rights Karlan, Our the district. See Policy, Legal an American U. Chi. as Nationalities (hereinafter (noting Separatism) Karlan, Our Forum irony using “apartheid” the term to describe what “among integrated country”). most districts in the may symbolized, this district have it was not Whatever proportion “apartheid.” of its racial mixture Nor did subjugation, ques- any purpose of the district in reflect racial give minority having been created in an effort to tion opportunity political power a measure of the same achieve general, and white voters and members of eth- that voters enjoyed particular, have a matter of nic minorities in light majority-minority purpose district’s In of a course. previously submerged members of racial minorities allow plau- political process, this use of race cannot into the active any group any sibly individual or sense be said to affect jure segregation. injury comparable inflicted de It to the obviously message inferiority conveys or out- no about majority of members of the white excluded sider status by creating the condition addressed a district. And because plan implies numbers, is a function of such a district minority capacity nothing to which about the or value gives of electoral success. the chance protection equal idea of to the anomalies of /’s Added *89 descriptions, injury there is a further and the rhetoric of its injury it conceptual inadequacy I. Whereas defines in Shaw that members of a racial of the notion as the reinforcement polls, at the the imme- group prefer candidates will same prohibition against the in- object of the constitutional diate protect minority voting strength is to of dilution tentional preference just minority make right to such of voters by example, be no vote dilution would, for There effective. minority voting voters of a racial racial-bloc unless of virtue voting given together in for a stick tend to would themselves necessarily, though race, of own (perhaps, their not candidate well). race no correlation between Indeed, if there were say no that preference, would make sense and candidate opportunity than to elect minority others had less voters part they of the they be mainstream would; would whom voting is choices. When own would be their winners polarization just racially polarized, because this it is thus only practical provide the majority-minority districts injury remedying avoiding the dilution dilution or means placed already. I has thus those occurred that has harm long-recognized constitutional to avoid who choose legitimacy casting by on the doubt at risk of vote dilution majority-minority dis- remedy; the creation its classic be- there is a correlation the notion trict “reinforces” very condi- voting, is the correlation for that tween race remedy the court-ordered the success tion on which injury is so definition of the Court’s depends. it is that So pre- constitutionally necessary efforts to to cover broad as Fifteenth Fourteenth remedy of the a violation or vent § Voting Rights Act. and of Amendments concept way temper overreach of Court’s One difficulty that there (though not avoid injury it would discussed injury sense, usual protection in the equal is no 1050) simply exclude supra, would above, see districting injury use of race I from Shaw definition remedy dilution; necessary or avoid reasonably at 1066- see direction, infra, in this at least move Court’s (despite continuing recognition its one, as is sound 1069,is a harm) every cre- intentional definition its broad scrutiny. requires strict majority-minority ation of a *90 concurring); ante, ante, at J., See cf. 958; (O’Connor, concurring). Miller, S., J., at But (O’Connor, 515 U. qualification suggested eliminating would fall short of difficulty by existing definition, caused for the uses of remedy past hedge against to to race dilution or future dilu- only legitimate tion are not the uses race that are covered, by injury. threatened, the overbreadth of the Shaw examining This will become clear in the Court’s efforts to problems by relying upon degree solve its definitional to defining injury which race is used in it discerns.
C concept The Court’s failure to devise Shaw harm that injured distinguishes those who are from those who are not, remedy, by or differentiate violation from is matched its any manageable distinguish inability provide standard to districting application forbidden conduct from of tradi- plans they districting principles state and the tional regrettable, produce. failure, This while need not have spoke in I of a district occurred, for when the Court Shaw shape unequivocal “bizarre” as to be an indication that so districting an influenced the decision to unreason- race had pointing degree, I could have been some work- able Shaw shape objective into standards. criterion of translatable able inadequacies Leaving aside, theoretical would have Shaw’s possible of action that rested on the to devise a cause been shape, expressive district’s and created a safe character of a compact objectively quanti- the notion of a harborin population. dispersion, perimeter, and fied in terms of at 553-575. Had the Rev., Pildes 92 Mich. L. Niemi, & grotesque whose course, the districts Court followed this sharpest shapes provoke reaction would have been elimi- racially have known how States, mixed which would nated judicial thus, federal intrusion. and, to avoid Shaw violations incongruity, but not would have been left a doctrinal Shaw unmanageable an one. Term opportunity last rejected this however, Court, to contain it declined supra, when Johnson,
in Miller guide sufficiently quantifiable any standard *91 review limit and to inform or legislators of state decisions rejected The Court by the courts. districting decisions of viola- finding a Shaw for condition sufficient shape a also See S., at 915. necessary 515 U. one. even tion, or Poli- and of Race Contours Issacharoff, The Constitutional (hereinafter Issacharoff, Consti- 56 45, Ct. Rev. tics, 1995S. categorical in refusal Contours) (“Miller its. is rather tutional to bi- protection clause equal the of application the to limit cause alone”)- the it recharacterized Instead, zarre addressing essen- cases in other devised terms action of of the consideration by proscribing problems, tially different legis- motivating the factor “predominant isit the when race “in is race of the use 916, or when atS.,U. lature],” 515 districting customary traditional and disregard of substantial concurring). id., at practices,” J., (O’Connor, 928 politics, untidy world of addressed a standard As in disregard” “substantial nor factor” “predominant neither rests the law that course of true hope.7 It is spires much feasibility untan of on the liability decisions other certain manage do the juries and courts motives, and gling mixed Doyle, v. City Ed. Healthy Bd. e.g., Mt. See, untangling. of that (1977) to show (employee’s burden 287 274, 429 U. S. factor” a “substantial conduct constitutionally protected 387, 7 Ed., 391 Supp. F. 917 Bd. State North Carolina Cannon v. of predicting of the law” area 1996) “difficult (describing this (EDNC imminent decision of an by reason definition better “gain that it will Briffault, II]”)', Race [in Shaw States the United of Court Supreme Johnson, Forum Legal Chi. U. 1995 v. Miller After Representation ‘predominant’ adjectives work (“[I]t what (1995) is unclear 23, 50 test”); Karlan, Post-Shaw Era Court’s Supreme do ‘overriding’ 7); roadmap” of unclear already (Miller “further unsettled (“[T]he reliance facile Court’s Contours Issacharoff, Constitutional nothing does tort law reminiscent vaguely causation standards conduct”). standards acceptable hard issue confronting defer to show him; burden to rehire employer’s not decision in the “even absence same decision made it would have Underwood, 471 U. S. Hunter v. conduct”); the protected been to have is shown (“Once discrimination (1985) the enactment behind or factor ‘motivating’ a ‘substantial’ to demon- law’s defenders to the burden shifts law, the this without enacted have been the law would strate Housing Metropolitan Heights Arlington see factor”); but it (1977) can Corp., Development (“Rarely S. 429 U. operating body or administrative legislature said solely by decision motivated made a mandate a broad under was purpose concern, particular or even a single then, one”). may At first glance, or ‘primary’ ‘dominant’ out sort courts to question out seem entirely *92 comfort this cool even in But cases. strands be misplaced. would in that confidence to some entitled be a may court
While to able, distinguish for example, it will be cases most em- an dissatisfaction of an employer’s strength relative a work- over his from displeasure performance job ployee’s Man- Transportation NLRB see membership, union er’s such confidence Corp., (1983), agement 403-405 462 U. S. It is not context. districting in the be unwarranted would makes decisions nature districting the very merely ra- consideration, particular whether any to identify difficult motive,” though otherwise, “predominant was or cial true: certainly is of compro- bundles are integrated
“Districting plans reason about To ask deals and mises, principles. is typi- district one any particular the design behind of purposes the entire pattern to implicate cally whole. Search- as a plan a districting behind trade-offs behind reason’ dominant or ‘the ‘the reason’ for ing one why asking is often like shape district’s particular than another. one level rather is at budget federal year’s for spe- a coherent explanation to Moreover, require impose model is shape one of even ciñe process political decisionmaking the one legalistic Niemi, Pildes & model.” resembles least omitted). (footnote swpra, at 585-586 standard motive predominant that use reason more fail is bound districting decision reviewing a in which political environment in the that: than fundamental traditional many of these results, election can affect race taking race applied without be cannot districting principles inseparable matter, practical aas thus, account into considerations. racial illegitimate supposedly from the (“[R]ace frequently correlates supra, at Niemi, & Pildes oddly evaluating In factors. socioeconomic with other at- require courts will correlation districts, this shaped from interest legitimate communities untangle tempt to cannot as blacks If blacks race. one of now-illegitimate resi- but urban district, irregular’ ‘highly grouped into con- distinguish these courts will poor can, how or dents standard?”); Issacharoff, mixed-motive what under texts, and (“Given palpability Contours Constitutional standard [Miller’s causation arena, political in the concerns power attempts to distribute could] all either doom a basis provide . fail or . . communities multi-ethnic improper considerations proper distinguishing redistricting”). *93 lines may district draw legislature example, a If, for leaving it intact community, given integrity of a the
preserve representative, by one are served members of its all so communi- preserving inseparable objective is this characterized, or community is identity when ty’s who those majority of race of by the self-defined, even recognized having been truth, an old is This there. live Italian or Irish an produced process political every time ward. Polish or volumes as itself can tie together, people
“[Ejthnicity have documented —even peo- literature social science reason, this interests. For economic with divergent ple life.... force political significant ethnicity ethnic districts reflecting The creation “. . . or viewed as offensive is not ordinarily felt identity in the delineation.” included to those demeaning Johnson, J., Miller at 944-945 S., 515 U. (Ginsburg, dissenting). of providing protection traditional principle
Or take that incum to assume seems for incumbents. plurality on the basis lines drawing by be always protected bents may ante, 967-968, 970-971. Cf. about parties. of data political drawn largely has support incumbent if the But what was elected if the incumbent indeed, What, racial reasons? dilu vote created remedy in a majority-minority would It voting? from racial-bloc resulted tion in these of race that consideration to assume sheer fantasy from application is somehow separable circumstances and sheer of incumbency protection, traditional principle of race consideration think that incoherence to Fif Fourteenth and to remedy is constitutionally required unconsti becomes somehow dilution vote Amendment teenth next the incumbent aimed at when protecting tutional redistricting. the census requires time to untan- as in practice theory Thus, it is impossible traditional from the application racial consideration gle vot- racial-bloc in a society plagued districting principles significance, a racial minority population ing8 itAnd it. for achieving unrealized least the potential ator voting, application no there is racial-bloc where in areas Even consider a legitimate involve may districting principles traditional certain race. ation of *94 turning on a test reason just this fundamental
is for any answer producing incapable purpose is predominant applied in the districting principles traditional when brought. actions are I which Shaw political environment I I districting even of race misuse recognition of a Vs upon basic defi- two thus rests results dilution no vote when concept of provide coherent the failure first, ciencies: injured separably being no injury, there protection equal a con- not condemn that would harm concept of and no class as well past dilution remedy for stitutionally required seeking is the Court districting practices many of the test provide a coherent failure second, the preserve; from racial consideration “predominant” distinguishing a society principles in a districting traditional application significant and where politically is mixture whose necessary consequence of The voting exists. racial-bloc impossible to distin- arbitrariness; it is shortcomings is these how far decide or to not, what is valid guish what sort may engage “in same racial minorities members every of voters other bloc politics that pluralist electoral Indeed, if one Separatism 103. Karlan, Our enjoys.” go no need arbitrariness, one this proof of further needed case. in this dissent than Stevens’s further Justice not has effectively that Justice concedes Stevens plurality cause governing the Shaw principles unfairly applied the application “[i]n (noting 971,n. ante, action, cf. disagreement with Jus- our precedents to our largely fac- 1014-1031,is [ante], at dissent, Stevens’ tice princi- applied faithfully those tual”); judgment he has my yet the And plurality. spirit intended ples in the precisely applying reach after sides the two conclusions different. be more could same test
1063 unpredictability Along has come the this endemic any for the States with sub clear incentive destruction minority populations to avoid vote take action to stantial recognized politicians Shaw, state who Before dilution. likely to occur or was minority occurred, had vote dilution only not redistricting preventing it, could aimed without right thing the Four under colleagues do the to urge their losing them in terrorem counsel Amendment, but teenth 42 liability under bring for counsel fees would case a dilution 19732(e). § 1988(b) Issacharoff, § See C. or U. S. 42 C. U. S. could (“Minority political actors 48 Contours Constitutional power the enforcement but only leverage their Rights Act, the Voting and 5 of Section provisions of against adverse of the Act Section under of suit threat Bd. decisions”); State v. Illinois Hastert cf. districting 1993) (CA7 (awarding 1430, 1444 Commr’s, F. 3d Election state which case in parties in a prevailing fees to districts, over congressional draw to legislature failed in the “no interest it objection had of Elections’s Board an outcome” there be except that outcome eventual argument is this original). But (emphasis in implement) to risk of practice, in perhaps eliminated now, blunted comply seeking States I action. in a Shaw fees counsel rights civil federal requirements of with the good faith they draw if walking tightrope: themselves find “now laws equal they under lawsuits face majority-black districts objections they both face they not, do clause; if protection under lawsuits Rights Voting Act of the section under ante, Era 289. Karlan, Bost-Shaw 2.” section (“On vio risk will States hand, dissenting) one J., (Stevens, majority- they create fail to Act if Voting Rights lating however, districts, they those create If minority districts. and its liability under may open themselves they get told been short, have States, progeny”). consider- predominant no right, dilution no things just being do told how dilution, without short of race ation is toward conflicting incentives tendency these it. The Constitution force of the moral neither stalemate, effectively operate liability can mercenary threat nor the obscurity. in this districting comprehensible once consequence, where aAs governors legislators and obligations confronted any State responsibility vacuum of now a States, there *96 come. We suits Shaw which from population mixed the with States such that assurance old say the with longer can no in requirements district- federal comply with duty to a have hardly be blamed can individual, an State, like ing, since ex- never been has obligation that an failing fulfill to for may conse- suffer a State that course, true, of It is plained. different a result on decides arbiter the ultimate quences if bad luck place, but that put in has State the the one from to be said be cannot State that a fact change the not does Be- revealed. been has not that apply a standard obliged to to only said can result for the responsibility the cause responsibility over practical the arbiter, final with rest of political branches simply shifted districting has to this courts, and populations mixed with the States itself set apparently has Court “The particular. in Court one challenged districts reviewing . . . upon a course idiosyncratically depend so that issuing opinions one and real they provide no that case each unique facts Karlan, legislatures.” or courts lower to either guidance shift tragedy this in 288. The Era Post-Shaw occurrence of its fact only not lies responsibility persuasive or coherent absence instance, but in this causing to occur. it for justifications
H-i H-1 i—I the uncertainties not address do today’s cases Although they aimdo incoherence, underlying from Shaw’s that stem specific rules. inscrutability some with mitigate its A today’s expressly cases, In the Court assumes each of qualifies Voting Rights avoiding Act as a a violation satisfy sufficiently compelling government interest to the re (“As scrutiny. ante, at 977 we have quirements of strict previous , we assume of our cases three done each [of deciding compliance the results test with without compelling § Act] Rights state Voting . . . can be 2 of the (“We arguendo, interest”); assume, II, ante, at 915 § compliance resolving case, this purpose of interest”). decision compelling While Court’s be a could holding, arguendo, point, is no see important this to assume Florida, ante, at 125 Fla. v. Tribe Seminole J., (Souter, encouraging assumption itself is because dissenting), the majority- creation intentional view that the confirms necessarily I, of Shaw violation minority is not (strict “apply all cases of scrutiny does not ante, at 958 districts”), and it majority-minority creation intentional bring the Shaw intend the Court does indicates *97 cruelly point ironic be the would to what cause of action amended) (as a Rights Voting Act of finding in the of equal protection Amendment’s the Fourteenth of violation at Rev., L. 92 Mich. Niemi, Pildes & guarantee. Cf. serious there were “[i]f believed (observing the Court of structure the fundamental questions with constitutional permit to avoid means numerous had the Court scheme, this assume legislature to composed unconstitutionally ting an question in Voino of seeing this reservation power,” and majority that a 157,as “evidence S., 507 U. Quitter, vich on race- general ban find to a prepared not is the Court of Constitution”). districting in O’Con- conscious Justice of each bears on 990-992, opinion, ante, at separate nor’s com her view that emphatically,for more all the points these in compelling (not state a arguendo) § just 2 is pliance with virtually insulate position statement her terest such. Shaw as jeopardy under Rights Act from Voting 66
B today’s cases out to come point of reference second The map-drawing efforts begins its if a State rule that is the Gingles, required majority-minority district compact adjust- heavily racial data rely on may too not State districting principles. traditional serve to ing that district guidance to state provide useful may indeed this rule While what was is clear weakness legislatures, its inherent theory in fact im- it is supra, at 1060-1062: above, said districting principles” in areas apply “traditional possible to considering minority populations without with substantial ban on sure, the principles, be to to some those As race. significance; much may have racial data overuse in other be identified can racially communities identified minority protecting a today. But be, after ways and will assume, cannot we matter, since may be another incumbent about information reliance does, that plurality minority incumbent, protect a will serve “party affiliation” go too far on data will of racial use tell when we cannot may well It therefore ante, 962-963. plurality’s view, incumbency minority protect capacity of the loss be If data. limiting of racial use States’ price rule point whole result, when the exceedingly odd be so, it will an towas majority-minority district creating yesterday’s election permitting the thus remedy prior dilution, declare) (the now seems Court minority who incumbent be. any could other incumbent protected as cannot C today’s cases point attributable of reference third suggestion in the discussions only possibility; yet is as *98 seeking violat- avoid tailoring that States test narrow may district that § draw Voting Rights Act ing 2 of the alone. See compels, this district Voting Rights Act Dis- (rejecting North Carolina’s ante, at 915-918 II, Shaw sufficiently with the coincide not it does 12 because trict district); Gingles ante, J., at 1035 dis- assumed (Stevens, (“[I]t only way a senting) that State now seems clear that ra- a majority-minority district and avoid a both create can de- by drawing . . within ‘limited gerrymander is . cial compact precise by leeway’ granted gree Court... §2 chal- in a successful impose court that a would district say a drawn to district were to lenge”). the Court If in some respond threat to the dilution must dilution avoid 916, n. II, ante, way, see Shaw exact but geographically flexibility complying may have (suggesting that States Act); § ante, at 1037 Voting Rights 2 of the (Stevens, enjoyed traditionally have (noting that dissenting) States J., lines), pre- drawing then district discretion a broader could fashion in a race-conscious sumably drawn a district hy- Gingles district compact as the only if it was survive claim, and stating a vote-dilution purposes of pothesized for would district be. hypothetical where positioned conclusion, a ultimately to reach such were the Court If I step toward back taking a respect be in one would might play an im- shape a district’s suggestion that its establishing cause of a role if determinative portant, not than much more however, do step would, a Such action. compact district suggested that I, which to Shaw return hypothesized the district not that haven, but a safe be would I, g., See, e. Shaw only haven. Gingles was the under example, (“The may drawn, for lines at 646 S.,U. territory, or to contiguous compact provide subdivisions”). integrity of maintain deliberately. The “possibility” step as to this refer I to this beyond intimation an go II does in Shaw Court go so would the Court doubt raises and Bush effect, argument made (rejecting the 977-978 ante, at far. (“[T]he re- States ante, also see Stevens); Justice § enforcing 2 lack .... courts flexibility federal tain limiting be read as today should say that we nothing And districting princi- apply traditional discretion ‘a State’s *99 (“[I]f concurring) ”); J., ante, at pies’ but see (O’Connor, by creating a dis- compelling interest pursues that a State liability, and potential ‘substantially addresses’ trict that hypothetical substantially court- a from not deviate does dis- reasons, its §2 racial predominantly district for drawn (citations narrowly tailored” tricting plan be deemed will (“We also reaffirm omitted)); ante, at see also but scrutiny allows tailoring’ requirement of strict the ‘narrow furthering in- leeway in such degree of a limited the States stringent, Dis- impossibly reject, as We thus ... terests. requirement, that tailoring the narrow view trict Court’s irregularity possible amount least have the must ‘a district districting crite- making for traditional shape, allowances in ” omitted)). pos- open (citation Bush leaves Indeed, ria’ majority-minority district a sibility could create a that State long shape Gingles so with not coincide that does does 962, 981, and it ante, at overused, are not data solely premised on could suggest claim that Shaw not Gingles district. from deviation try to were if the Court say now it to Suffice any by imposing such limitations definite more render clarity would measure placement, the added shape and on price an exorbitant would come or it be elusive either Rights Voting Act comply seeking with States elu- It would be Fifteenth Amendments. Fourteenth be considered race could meant if the Court sive any applying traditional alleviating but racial dilution in- already that race seen districting principle: we have prin- districting common extricably intertwined some supra, at society. applied in a multiracial ciples when price, because exorbitant at an would come Or it 1060-1062. to affect be allowed districting principle would other no pur- required for would be placement that or compactness cutting back thus be would Gingles. The Court poses of application through its shape vary power a State’s pre- supposed to districting principles that are very importance over racial consideration. That dominate reducing would be the discretion of a State is, the Court *100 scope seeking correct dilution to the of a fed to avoid or devising remedy a for dilution. court’s discretion when eral justification taking any such no for could, course, There good a court’s step. is reason to limit federal there While political process when it in a State’s to interfere, discretion power cf. Voinovich v. employs cases, in dilution its remedial (“Federal are barred from courts S., Quilter, U. a viola intervening apportionment in the absence of in state precisely it is the domain law because tion of federal apparent no apportionment”), there is to conduct States ... upon the discretion impose limitations the same reason to independent subject constitutional to an to a accorded State (“Because see ibid. duty apportionment decisions, make to authority reapportionment . . . their . . . derive the States law,... federal provisions of state and independent from apportion respect to the States’ bound courts are federal require contravene federal choices choicesunless those ment ments”) omitted). (internal principles quotation The marks strongly counsel tried to follow we have of federalism any imposing limitations. against such
D today a toward steps takes the Court sum, the three In objec- fail to answer either cause of action more definite Recogni- objections prompt of their own. to I or tions Shaw Rights Voting complying with interest tion of State’s impossibility will courts practical Act does not address distin- race, as identifying predominant use encounter it, consideration reasonable lesser, guished some districting principles. customary applies its when State unlikely to make use of limitation on the data minority in- jeopardize except practice much difference possibility that the Court cumbency protection. And (or substantially close require Gingles districts will Act 2§ of the them) Voting Rights when compliance a State’s districting would render of districting is an object its ability eliminating more definite only obligation considered traditionally districting principles the very apply baseline a theoretical furnish to be enough important practices. reasonable districting
H-1 > Shaw s of curing fall short If developments today’s addressing be said options it must unworkability, overruled to be that is not Assuming few. them are from two select the Court may a flawed experiment, concern its whether weightier alternatives, depending *101 to cure or districting principles traditional tois preserve purpose” Miller’s “predominant created by the anomalies criterion. in some Shaw is to choice preserve first
If the Court’s effect on districting prin- revolutionary the least guise to prin- could the Court primacy give and practice, ciples for of limits tolerance define and of compactness ciple limita- a measurable imposing district shape by unorthodox his- to reference chosen by bizarre, tion on presumably of influence any to eliminate (adjusted torical practice cf. caused in the have past, may dilution that very practice (discuss- 573-574, n. 246 Rev., at Niemi, 92 L. Mich. Pildes & century)) of the 19th racial gerrymanders egregious ing perime- a district’s dispersion, on the of basis and calculated This alternative id., at 553-575. and ter, population. be can that a I in maintaining to Shaw point be true would be- race consideration of lawful reached initially when the ex- as in identifying appearance and comes unreasonable Mill- it would eliminate consideration; and of undue pression considerations racial er’ impossible s obligation untangle (such according as objectives “race-neutral” from so-called of seats and protecting community integrity respect incumbents) composition of a district the racial when separating them. any of practical chance bar behavior voter injury consid- concept when incongruities of Shaw’s The analysis, protection our customary equal light of our ered district- respect for state practice, and traditional remedial if were persist, but course, would, of ing discretion shape as the forbidden identified measures that defined emphasis, we would of unreasonable manifestation missing from guidance that are notice provide the least today. the law of action retaining cause a Shaw for alternative other
The that, in the kind accept the fact be guise would in some ac- generate Shaw that will societies polarized multiracial in- racial considerations understood, presently as tions objectives, mak- districting many traditional separable from predominating. of race as speak impossible ing it consider- some reality if is that facing this consequence of supposedly unreasonable be forbidden is to of race ation implicate districting principles the use degree, then dis- traditional is, That forbidden. race must the use would, a result Such eliminated. must be tricting practices injury as concept I’s with Shaw consistent course, be Forge Valley cf. But race. of whatever affecting voters Separation United College Americans Christian (fact (1982) U. S. Inc., 454 State, Church *102 III satisfy Article insufficient expressive harms some of those for relaxation allow not requirements does standing colorblind- be would short, result, in The requirements). choosing representatives, of manner determining the in ness entirely, or districting of practice eliminating the by either random- of principle districting some it with by replacing way. any in race for account not that would ness Miller Shaw which in the direction is such While course any following such objections point, the together price irony the is the The first insurmountable. seem name of the in the principle colorblindness of imposing a submerging votes of the be would Amendment Fourteenth Amendments and Fifteenth Fourteenth the those whom problem that necessi- the precisely protect, adopted to were vio- as a constitutional , vote dilution recognition of our tated the name Eliminating districting in place. first in the lation submersion; random total produce would of colorblindness by districting (or result packing) would submersion Thus, randomness. process of colorblind computerized some voting were produce racial-bloc attitudes the unless dilu- districting principles, along traditional with eliminated dilution While norm. the again become once would tion eliminated be violation would constitutional intentional an nicety system, theoretical this randomly districted by a reality that by concrete overshadowed be would inevitably a so- be almost would a decision of such result something like Congress with “representative” called In-any event,, 1050. supra, at members. black non- even prohibition violate submergence would Rights Act. Voting §2 found dilution intentional to declare would conflict this way only to avoid The hardly har- prospect unconstitutional, a Rights Voting Act today com- to assume readiness mony the Court’s compelling qualifies as Rights Voting Act pliance with claim. litigating a Shaw purposes interest state may be Whatever equally clear. objection is second failings, the Shaw’s called have I of what implications way no Shaw was plain that repeatedly made has Court eliminating traditional revolution effect intended I, colorblindness. sake districting practice for the ideal invocation (“Despite their S., U. U. S. Ferguson, 163 Plessy v. see Constitution, a ‘color-blind’ appear appellants dissenting), (1896) (Harlan, J., always districting race-conscious to concede This Court is wise: concession That . . . unconstitutional. *103 decisionmaking is state that race-conscious has held never circumstances”); v. A. cf. Richmond J. impermissible in all (1989) J., concur- 520-521 Co., 488 S.U. Croson (Scalia, majority rejecting (criticizing a judgment) ring in colorblindness). very fear Indeed, the principle of strict was that cause of action of the Shaw creation led districting heavy taking toll on a too were concerns racial po- through years over had evolved practices that S., at 644-649. I, 509 U. process. Shaw Justice litical has that race obvious moreover, has made O’Connor, (“[R]ace- districting, id., at 642 place in legitimate a unconstitutional”); always redistricting is not conscious concurring); J., 928-929 S., at Miller, 515 U. (O’Connor, concurring), that the intentional J., ante, (O’Connor, by not forbidden is majority-minority districts creation (dis- concurring) J., supra, at 928 Miller, Shaw, (O’Connor, may well have though race “even may permissible tricts ante, at 990- process”); redistricting in the considered been aimed Shaw was concurring), J., (O’Connor, (“Ap- at 928-929 S., 515 U. district, exceptional only the doubt throw into does standard Court’s plication of the congressional dis- majority the Nation’s vast only Justices majority, tricts”). present Court the Of any concluding that record are on Thomas Scalia for- ais majority-minority creation of intentional con- J., at 1001 Ante, (Thomas, gerrymander. bidden curring judgment). selection of the transformation radical Since question, out colorblindness name
process in the unworkability dealing with Shaw’s options for Court’s action cause only to confine these: in truth cause to eliminate or shape test quantifiable adopting a would truncated even entirely. Because action and the described, I have foundation untenable on the rest unlikely remedy is seeks harm Shaw expressive supposed, *104 Shaw would disruption even a modified that justify the to good the Court’s reason that presently no there is invite, of the law presently untenable state from withdrawal of the commands stare complete. I take While not should prog- and its problems with seriously, very decisis un- has been very The Court serious. eny are themselves uncertainty standards, the chronic provide workable able persist- of reliance, and the costs begotten no discernible has re- state and of state discretion the limits ing about doubt high. sponsibility are failure to admit Shaw’s an reason indeed, added is,
There manageable standard constitutional providing a process process. That political in the faith for some allow districting principles very only traditional evolved not applied them preserve, but has pledged to has the Court way should influ- ethnicity ain past deal in the It is difficult prospects for race. thinking about ence our condemns that Shaw of race consideration how to see avoid) (but the consider- essentially from different is cannot politics ethnicity entered American ation homoge- temper regional began immigration moment neighborhoods character ethnic neity. Recognition just dis- those application of through the incumbents, allowed ethni- traditional, view tricting principles we now to enter preferred candidates their cally voters and identified supra, Miller, politics, see of American mainstream .the The Politics dissenting); Judd, D. J., 944-945 (Ginsburg, (3d Policy 70 ed. Public Power Private Cities: American End: Irish-Americans 1988); Rainbow’s generally Erie, S. see Politics, 1840-1985 Machine of Urban and the Dilemmas power in American political (1988), a level attain and to regime of ethnic state not a has been democracy. result moderation participation and even a apartheid, ethnic but although practice. For ethnicity’s effect divisive disappeared from ethnicity has not consciousness American electorate, its talismanic force does to have appear cooled over time.9 It took Boston Irish voters, for example, to elect Thomas Menino in 1993.10 mayor
9 Karst, Paths to Belonging: The Constitution and Cultural Identity, (1986) (“[T]he 303, 347, 64 N. C. L. Rev. path surest to assimilation is in the participation larger society’s activities and institutions. Voting just expression an political preferences; is an assertion of belong *105 political community....” to a “When ing legislative districts are defined in that ways possibility significant exclude the minority representation, potential minority voters see that their are votes not worth casting. Yet electoral mobilization is vital... to the group perceptions members’ that Walzer, to the in they belong community”); Pluralism Political Perspective, (S. 1, Thernstrom, Orlov, in The Politics of 18 Ethnicity A. & O. Handlin 1982) (“[Political in principle open, eds. life is and this openness has served to diffuse the most radical forms of ethnic Kanto- competition”); wicz, Parties, in The Politics of Voting Ethnicity, supra, at 45 (noting political recognition that successes and made members of an ethnic . belonged society brought] [and “feel that it in the wider . . them group Mintz, system”); Ethnicity Leadership: inside the An After (J. 1978) (conclud word, in America Leadership Higham in Ethnic 198 ed. reviewing after several studies of ethnic that “we ing politics ignore which processes by being our the need to understand those short peril standard”); any ... can become motto or battle changed politically group’s (“two Karlan, 102 of communist Separatism generations suppres cf. Our tension in did little ensure religious Yugoslavia sion and ethnic and to tolerance, or stability, integration”). 10See, Nolan, Eth Mayoral e. Boston Race Could Break Dominance of g., (“When 9,1993, Globe, Apr. p. choosing Boston 40 Boston finishes nicity, discover that after centuries of mayor, city may immigration, new Black, in ethnicity politics”); is no the dominant factor its Once- longer Boston, Globe, 1, 1993, Blocks are in Boston Nov. Voting Splitting Solid Italian descent “little more p. (commenting that voters consider Menino’s observing voting a historical footnote” and that “ethnic has faded ... than economic and social mainstream groups various enter the American [a]s DTnnocenzo, Gulotta gain [political] power”); ... some semblance of [and] 19,1993, that Newsday, p. (noting “[t]he on Oct. Ethnicity, Can’t Count matter in this may year’s the end of Tom Gulotta’s name vowel at “Italian-Americans in election as it once did” because county executive with more than ethnic favor go polls Nassau are County likely mind”; to the ethnicity-based voting in attributing itism in the decline hope if vote dilution is that reason then, some is, There recognition given is race time same at the attacked politics, historically in American received ethnicity has time. in moderate politics will also race the force vindicated, even hope may be signs that such even There yet. U. S. necessarily tentative evidence if the Voting Rights Ten Years Act: Rights, The Civil on Comm’n 1975)(“In (Jan. many great increase areas p. 155 After, voting passage since registration and minority politicians can no has meant Rights Act Voting brought has This minority voters. ignore longer afford appeals candidates in racial decline significant about responsive to more candidates incumbents made and has Race Effects needs”); Carsey, The Contextual minority City Mayoral York New Behavior: Voter White (1995) (reporting, in 221, 228 Politics Election, 57 J. so different may not be of race effects contextual “the eth- partisanship, factors like effects contextual believed”); Sigelman, might have as we nicity, class or social *106 Voters: White Candidates, Black Nitz, Walkosz, & Sigelman, Am. Perceptions, 39 in Political Understanding Bias Racial (“Over (1995) years, white 243, Science J. of Political willingness for to vote increasing expressed have Americans City Hall, Baltimore candidates”); inAir Fresh Peirce, black victory (“In contest, contest after p. 7A 1993, Sun, Nov. race”); talk who eschew mayoral candidates gone to has voting (noting that crossover at 56 S., 478 U. Gingles, also see minor- when is more common minority candidates in favor reelection); Norfolk, Collins stand ity incumbents 1989) (same). (CA4 possibility This 2dF. minority long votes so may grow wiser politics, too, deter- considered submergence should be are rescued Amendments Fifteenth Fourteenth mining far the how supplant law common constitutional require us to devise ethnic as an marginali[zed] less feel Italian-Americans fact that “Nassau group”). litigation It process in federal courts.
the democratic yet profession has against accepting that Shaw counsels and from manageable standard, constitutional into a evolved respectfully today dissent. again I invocation case’s