Lead Opinion
delivered the opinion of the Court.
The constitutionality of Georgia’s congressional redistriet-ing plan is at issue here. In Shaw v. Reno,
I
A
The Equal Protection Clause of the Fourteenth Amendment provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” U. S. Const., Amdt. 14, § 1. Its central mandate is racial neutrality in governmental decisionmaking. See, e. g., Loving v. Virginia,
This litigation requires us to apply the principles articulated in Shaw to the most recent congressional redistricting plan enacted by the State of Georgia.
B
In 1965, the Attorney General designated Georgia a covered jurisdiction under § 4(b) of the Voting Rights Act (Act), 79 Stat. 438, as amended, 42 U. S. C. § 1973b(b). 30 Fed.Reg. 9897 (1965); see 28 CFR pt. 51, App.; see also City of Rome v. United States,
Between 1980 and 1990, one of Georgia’s 10 congressional districts was a majority-black district, that is, a majority of the district’s voters were black. The 1990 Decennial Census indicated that Georgia’s population of 6,478,216 persons, 27% of whom are black, entitled it to an additional eleventh congressional seat, App. 9, prompting Georgia’s General Assembly to redraw the State’s congressional districts. Both the House and the Senate adopted redistricting guidelines which, among other things, required single-member districts of equal population, contiguous geography, nondilution of minority voting strength, fidelity to precinct lines where possible, and compliance with §§ 2 and 5 of the Act, 42 U. S. C. §§ 1973, 1973c. See App. 11-12. Only after these requirements were met did the guidelines permit drafters to consider other ends, such as maintaining the integrity of political subdivisions, preserving the core of existing districts, and avoiding contests between incumbents. Id., at 12.
A special session opened in August 1991, and the General Assembly submitted a congressional redistricting plan to the Attorney General for preclearance on October 1, 1991. The legislature’s plan contained two majority-minority districts, the Fifth and Eleventh, and an additional district, the Second, in which blacks comprised just over 35% of the voting age population. Despite the plan’s increase in the number of majority-black districts from one to two and the absence of any evidence of an intent to discriminate against minority voters,
The General Assembly returned to the drawing board. A new plan was enacted and submitted for preclearance. This second attempt assigned the black population in Central Georgia’s Baldwin County to the Eleventh District and increased the black populations in the Eleventh, Fifth, and Second Districts. The Justice Department refused preclearance again, relying on alternative plans proposing three majority-minority districts. Id., at 120-126. One of the alternative schemes relied on by the Department was the so-called “max-black” plan,
Twice spurned, the General Assembly set out to create three majority-minority districts to gain preclearance. Id., at 1366. Using the ACLU’s “max-black” plan as its benchmark, id., at 1366-1367, the General Assembly enacted a plan that
“bore all the signs of [the Justice Department’s] involvement: The black population of Meriwether County was gouged out of the Third District and attached to the Second District by the narrowest of land bridges; Ef-fingham and Chatham Counties were split to make way for the Savannah extension, which itself split, the City of Savannah; and the plan as a whole split 26 counties, 23 more than the existing congressional districts.” Id., at 1367.
See Appendix A, infra, following p. 928. The new plan also enacted the Macon/Savannah swap necessary to create a third majority-black district. The Eleventh District lost the black population of Macon, but picked up Savannah, thereby connecting the black neighborhoods of metropolitan Atlanta and the poor black populace of coastal Chatham County, though 260 miles apart in distance and worlds apart in culture. In short, the social, political, and economic makeup of the Eleventh District tells a tale of disparity, not community. See
“[t]he populations of the Eleventh are centered around four discrete, widely spaced urban centers that have absolutely nothing to do with each other, and stretch the district hundreds of miles across rural counties and narrow swamp corridors.”864 F. Supp., at 1389 (footnote omitted).
“The dense population centers of the approved Eleventh District were all majority-black, all at the periphery of the district, and in the case of Atlanta, Augusta and Savannah, all tied to a sparsely populated rural core by even less populated land bridges. Extending from Atlanta to the Atlantic, the Eleventh covered 6,784.2 square miles, splitting eight counties and five municipalities along the way.” Id., at 1367 (footnote omitted).
Elections were held under the new congressional redistricting plan on November 4, 1992, and black candidates were elected to Congress from all three majority-black districts. Id., at 1369. On January 13, 1994, appellees, five white voters from the Eleventh District, filed this action against various state officials (Miller Appellants) in the United States District Court for the Southern District of Georgia. Id., at 1369, 1370. As residents of the challenged Eleventh District, all appellees had standing. See United States v. Hays, ante, at 744-745. Their suit alleged that Georgia’s Eleventh District was a racial gerrymander and so a violation of the Equal Protection Clause as interpreted in Shaw v. Reno. A three-judge court was convened pursuant to 28 U. S. C. § 2284, and the United States and a number of Georgia residents intervened in support of the defendant-state officials.
A majority of the District Court panel agreed that the Eleventh District was invalid under Shaw, with one judge dissenting.
Appellants filed notices of appeal and requested a stay of the District Court’s judgment, which we granted pending the filing and disposition of the appeals in this litigation, Miller v. Johnson,
II
A
Finding that the “evidence of the General Assembly’s intent to racially gerrymander the Eleventh District is overwhelming, and practically stipulated by the parties involved,” the District Court held that race was the predominant, overriding factor in drawing the Eleventh District.
Shaw recognized a claim “analytically distinct” from a vote dilution claim.
“Racial classifications with respect to voting carry particular dangers. Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer matters— a goal that the Fourteenth and Fifteenth Amendments embody, and to which the Nation continues to aspire. It is for these reasons that race-based districting by our state legislatures demands close judicial scrutiny.” Shaw, supra, at 667.
Our observation in Shaw of the consequences of racial stereotyping was not meant to suggest that a district must be bizarre on its face before there is a constitutional violation. Nor was our conclusion in Shaw that in certain instances a district’s appearance (or, to be more precise, its appearance in combination with certain demographic evidence) can give rise to an equal protection claim,
Our reasoning in Shaw compels this conclusion. We recognized in Shaw that, outside the districting context, statutes are subject to strict scrutiny under the Equal Protection Clause not just when they contain express racial classifications, but also when, though race neutral on their face, they are motivated by a racial purpose or object.
Shaw applied these same principles to redistricting. “In some exceptional cases, a reapportionment plan may be so highly irregular that, on its face, it rationally cannot be understood as anything other than an effort to ‘segregate] . . . voters’ on the basis of race.” Shaw, supra, at 646-647 (quoting Gomillion, supra, at 341). In other cases, where the district is not so bizarre on its face that it discloses a racial design, the proof will be more “difficul[t].”
Appellants and some of their amici argue that the Equal Protection Clause’s general proscription on race-based deci-sionmaking does not obtain in the districting context because redistricting by definition involves racial considerations. Underlying their argument are the very stereotypical assumptions the Equal Protection Clause forbids. It is true that redistricting in most cases will implicate a political calculus in which various interests compete for recognition, but it does not follow from this that individuals of the same race share a single political interest. The view that they do is “based on the demeaning notion that members of the defined racial groups ascribe to certain ‘minority views’ that must be different from those of other citizens,” Metro Broadcasting,
In sum, we make clear that parties alleging that a State has assigned voters on the basis of race are neither confined in their proof to evidence regarding the district’s geometry and makeup nor required to make a threshold showing of bizarreness. Today’s litigation requires us further to consider the requirements of the proof necessary to sustain this equal protection challenge.
B
Federal-court review of districting legislation represents a serious intrusion on the most vital of local functions. It is well settled that “reapportionment is primarily the duty and responsibility of the State.” Chapman v. Meier,
In our view, the District Court applied the correct analysis, and its finding that race was the predominant factor motivating the drawing of the Eleventh District was not clearly erroneous. The court found it was “exceedingly obvious” from the shape of the Eleventh District, together with the relevant racial demographics, that the drawing of narrow land bridges to incorporate within the district outlying appendages containing nearly 80% of the district’s total black population was a deliberate attempt to bring black populations into the district.
The court found that “it became obvious,” both from the Justice Department’s objection letters and the three pre-clearance rounds in general, “that [the Justice Department] would accept nothing less than abject surrender to its maximization agenda.” Id., at 1366, n. 11; see id., at 1360-1367; see also Arlington Heights,
In light of its well-supported finding, the District Court was justified in rejecting the various alternative explanations offered for the district. Although a legislature’s compliance with “traditional districting principles such as. compactness, contiguity, and respect for political subdivisions” may well suffice to refute a claim of racial gerrymandering, Shaw,
Nor can the State’s districting legislation be rescued by mere recitation of purported communities of interest. The evidence was compelling “that there are no tangible ‘communities of interest’ spanning the hundreds of miles of the Eleventh District.” Id., at 1389-1390. A comprehensive report demonstrated the fractured political, social, and economic interests within the Eleventh District’s black population. See Plaintiff’s Exh. No. 85, pp. 10-27 (report of Timothy G. O’Rourke, Ph.D.). It is apparent that it was not alleged
Race was, as the District Court found, the predominant, overriding factor explaining the General Assembly’s decision to attach to the Eleventh District various appendages containing dense majority-black populations.
Ill
To satisfy strict scrutiny, the State must demonstrate that its districting legislation is narrowly tailored to achieve a compelling interest. Shaw, supra, at 653-657; see also Croson,
The Justice Department refused to preclear both of Georgia’s first two submitted redistricting plans. The District Court found that the Justice Department had adopted a “black-maximization” policy under §5, and that it was clear from its objection letters that the Department would not grant preclearance until the State made the “Macon/ Savannah trade” and created a third majority-black district.
For the same reasons, we think it inappropriate for a court engaged in constitutional scrutiny to accord deference to the Justice Department’s interpretation of the Act. Although we have deferred to the Department’s interpretation in certain statutory cases, see, e. g., Presley v. Etowah County Comm’n,
Georgia’s drawing of the Eleventh District was not required under the Act because there was no reasonable basis to believe that Georgia’s earlier enacted plans violated §5. Wherever a plan is “ameliorative,” a term we have used to describe plans increasing the number of majority-minority districts, it “cannot violate § 5 unless the new apportionment itself so discriminates on the basis of race or color as to violate the Constitution.” Beer,
The Government’s position is insupportable. “[Ajmeliora-tive changes, even if they fall short of what might be accomplished in terms of increasing minority representation, cannot be found to violate section 5 unless they so discriminate on the basis of race or color as to violate the Constitution.” Days, Section 5 and the Role of the Justice Department, in B. Grofman & C. Davidson, Controversies in Minority Voting 56 (1992). Although it is true we have held that the State has the burden to prove a nondiscriminatory purpose under § 5, e. g., Pleasant Grove, supra, at 469, Georgia’s Attorney General provided a detailed explanation for the State’s initial decision not to enact the max-black plan, see App. 117-119. The District Court accepted this explanation,
Instead of grounding its objections on evidence of a discriminatory purpose, it would appear the Government was driven by its policy of maximizing majority-black districts. Although the Government now disavows having had that
Section 5 was directed at preventing a particular set of invidious practices that had the effect of “undo[ing] or defeating] the rights recently won by non white voters.”
‘“Section 5 was a response to a common practice in some jurisdictions of staying one step ahead of the federal courts by passing new discriminatory voting laws as soon as the old ones had been struck down. That practice had been possible because each new law remained in effect until the Justice Department or private plaintiffs were able to sustain the burden of proving that the new law, too, was discriminatory.... Congress therefore decided, as the Supreme Court held it could, “to shift the advantage of time and inertia from the perpetrators of the evil to its victim,” by “freezing election procedures in the covered areas unless the changes can be shown to be nondiscriminatory.” ’ ”425 U. S., at 140 (quoting H. R. Rep. No. 94-196, pp. 57-58 (1975) (footnotes omitted)).
Based on this historical understanding, we recognized in Beer that “the purpose of § 5 has always been to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.”
>
The Act, and its grant of authority to the federal courts to uncover official efforts to abridge minorities’ right to vote, has been of vital importance in eradicating invidious discrimination from the electoral process and enhancing the legitimacy of our political institutions. Only if our political system and our society cleanse themselves of that discrimination will all members of the polity share an equal opportunity to gain public office regardless of race. As a Nation we share both the obligation and the aspiration of working toward this end. The end is neither assured nor well served, however, by carving electorates into racial blocs. “If our society is to continue to progress as a multiracial democracy, it must recognize that the automatic invocation of race stereotypes retards that progress and causes continued hurt and injury.” Edmondson v. Leesville Concrete Co.,
* * *
The judgment of the District Court is affirmed, and the cases are remanded for further proceedings consistent with this decision.
It is so ordered.
[Appendices A and B, containing a map of Georgia congressional districts and a population density map of the 11th Congressional District of Georgia, follow this page.]
Concurrence Opinion
concurring.
I understand the threshold standard the Court adopts— that “the legislature subordinated traditional race-neutral districting principles ... to racial considerations,” ante, at 916 — to be a demanding one. To invoke strict scrutiny, a plaintiff must show that the State has relied on race in substantial disregard of customary and traditional districting practices. Those practices provide a crucial frame of reference and therefore constitute a significant governing principle in cases of this kind. The standard would be no different if a legislature had drawn the boundaries to favor some other ethnic group; certainly the standard does not treat efforts to create majority-minority districts less favorably than similar efforts on behalf of other groups. Indeed, the driving force behind the adoption of the Fourteenth Amendment was the desire to end legal discrimination against blacks.
Application of the Court’s standard does not throw into doubt the vast majority of the Nation’s 435 congressional districts, where presumably the States have drawn the boundaries in accordance with their customary districting principles. That is so even though race may well have been
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Dissenting Opinion
dissenting.
Justice Ginsburg has explained why the District Court’s opinion on the merits was erroneous and why this Court’s law-changing decision will breed unproductive litigation. I join her excellent opinion without reservation. I add these comments because I believe the appellees in these cases, like the appellees in United States v. Hays, ante, p. 737, have not suffered any legally cognizable injury.
In Shaw v. Reno,
Even assuming the validity of Shaw, I cannot see how appellees in these cases could assert the injury the Court attributes to them. Appellees, plaintiffs below, are white
In particular instances, of course, members of one race may vote by an overwhelming margin for one candidate, and in some cases that candidate will be of the same race. “Racially polarized voting” is one of the circumstances plaintiffs must prove to advance a vote dilution claim. Thornburg v. Gingles,
The Court attempts an explanation in these cases by equating the injury it imagines appellees have suffered with the injuries African-Americans suffered under segregation. The heart of appellees’ claim, by the Court’s account, is that “a State’s assignment of voters on the basis of race,” ante, at 915, violates the Equal Protection Clause for the same reason a State may not “segregate citizens on the basis of race in its public parks, New Orleans City Park Improvement Assn. v. Detiege,
The Court’s equation of Shaw claims with our desegregation decisions is inappropriate for another reason. In each of those cases, legal segregation frustrated the public interest in diversity and tolerance by barring African-Americans
Equally distressing is the Court’s equation of traditional gerrymanders, designed to maintain or enhance a dominant group’s power, with a dominant group’s decision to share its power with a previously underrepresented group. In my view, districting plans violate the Equal Protection Clause when they “serve no purpose other than to favor one segment — whether racial, ethnic, religious, economic, or political — that may occupy a position of strength at a particular point in time, or to disadvantage a politically weak segment of the community.” Karcher v. Daggett,
“[N]either we nor the district courts have a constitutional warrant to invalidate a state plan, otherwisewithin tolerable population limits, because it undertakes, not to minimize or eliminate the political strength of any group or party, but to recognize it and, through districting, provide a rough sort of proportional representation in the legislative halls of the State.” Id., at 754.
The Court’s refusal to distinguish an enactment that helps a minority group from enactments that cause it harm is especially unfortunate at the intersection of race and. voting, given that African-Americans and other disadvantaged groups have struggled so long and so hard for inclusion in that most central exercise of our democracy. See post, at 936-938 (Ginsburg, J., dissenting). I have long believed that treating racial groups differently from other identifiable groups of voters, as the Court does today, is itself an invidious racial classification. Racial minorities should receive neither more nor less protection than other groups against gerrymanders.
I respectfully dissent.
White voters obviously lack standing to complain of the other injury the Court has recognized under Shaw: the stigma blacks supposedly suffer when assigned to a district because of their race. See Hays, ante, at 744; cf. Adarand Constructors, Inc. v. Peña, ante, at 247-248, n. 5 (Stevens, J., dissenting).
“In my opinion an interpretation of the Constitution which afforded one kind of political protection to blacks and another kind to members of other identifiable groups would itself be invidious. Respect for the citizenry in the black community compels acceptance of the fact that in the long run there is no more certainty that these individuals will vote alike than will individual members of any other ethnic, economic, or social group. The probability of parallel voting fluctuates as the blend of political issues affecting the outcome of an election changes from time to time to emphasize one issue, or a few, rather than others, as dominant. The facts that a political group has its own history, has suffered its own special injustices, and has its own congeries of special political interests, do not make one such group different from any other in the eyes of the law. The members of each go to the polls with equal dignity and with an equal right to be protected from invidious discrimination.” Cousins v. City Council of Chicago,
Dissenting Opinion
dissenting.
. Legislative districting is highly political business. This Court has generally respected the competence of state legislatures to attend to the task. When race is the issue, however, we have recognized the need for judicial intervention to prevent dilution of minority voting strength. Generations of rank discrimination against African-Americans, as citizens and voters, account for that surveillance.
Two Terms ago, in Shaw v. Reno,
Today the Court expands the judicial role, announcing that federal courts are to undertake searching review of any district with contours “predominantly] motivat[ed]” by race: “[S]trict scrutiny” will be triggered not only when traditional districting practices are abandoned, but also when those practices are “subordinated to” — given less weight than — race. See ante, at 916. Applying this new “race-as-predominant-factor” standard, the Court invalidates Georgia’s districting plan even though Georgia’s Eleventh District, the focus of today’s dispute, bears the imprint of familiar districting practices. Because I do not endorse the Court’s new standard and would not upset Georgia’s plan, I dissent.
I
At the outset, it may be useful to note points on which the Court does not divide. First, we agree that federalism and the slim judicial competence to draw district lines weigh
Therefore, the fact that the Georgia General Assembly took account of race in drawing district lines — a fact not in dispute — does not render the State’s plan invalid. To offend the Equal Protection Clause, all agree, the legislature had to do more than consider race. How much more, is the issue that divides the Court today.
“We say once again what has been said on many occasions: reapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court.” Chapman v. Meier,
“Districting inevitably has sharp political impact and inevitably political decisions must be made by those charged with the task.” White v. Weiser,
B
Federal courts have ventured into the political thicket of apportionment when necessary to secure to members of racial minorities equal voting rights — rights denied in many States, including Georgia, until not long ago.
The Fifteenth Amendment, ratified in 1870, declares that the right to vote “shall not be denied ... by any State on account of race.” That declaration, for generations, was often honored in the breach; it was greeted by a near century of “unremitting and ingenious defiance” in several States, including Georgia. South Carolina v. Katzenbach,
In 1890, the Georgia General Assembly authorized “white primaries”; keeping blacks out of the Democratic primary effectively excluded them from Georgia’s political life, for victory in the Democratic primary was tantamount to election. McDonald, Binford, & Johnson, supra, at 68-69. Early in this century, Georgia Governor Hoke Smith persuaded the legislature to pass the “Disenfranchisement Act of 1908”; true to its title, this measure added various property, “good character,” and literacy requirements that, as administered, served to keep blacks from voting. Id., at 69; see also Katzenbach,
Faced with a political situation scarcely open to self-correction — disenfranchised blacks had no electoral influence, hence no muscle to lobby the legislature for change— the Court intervened. It invalidated white primaries, see Smith v. Allwright,
It was against this backdrop that the Court, construing the Equal Protection Clause, undertook to ensure that ap
These Court decisions and congressional directions significantly reduced voting discrimination against minorities. In the 1972 election, Georgia gained its first black Member of Congress since Reconstruction, and the 1981 apportionment created the State’s first majority-minority district.
a
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Before Shaw v. Reno,
In Shaw, the Court recognized a third basis for an equal protection challenge to a State’s apportionment plan. The Court wrote cautiously, emphasizing that judicial intervention is exceptional: Strict judicial scrutiny is in order, the Court declared, if a district is “so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races for purposes of voting.”
“[E]xtrem[e] irregular[ity]” was evident in Shaw, the Court explained, setting out this description of the North Carolina voting district under examination:
“It is approximately 160 miles long and, for much of its length, no wider than the I-85 corridor. It winds in snakelike fashion through tobacco country, financial centers, and manufacturing areas until it gobbles in enough enclaves of black neighborhoods. Northbound and southbound drivers on I-85 sometimes find themselves in separate districts in one county, only to ‘trade’ districts when they enter the next county. Of the 10 counties through which District 12 passes, 5 are cut into 3 different districts; even towns are divided. At one point the district remains contiguous only because it intersects at a single point with two other districts before crossing over them. One state legislator has remarked that ‘ “[i]f you drove down the interstate with both cardoors open, you’d kill most of the people in the district.” ’ Washington Post, Apr. 20, 1993, p. A4. The district even has inspired poetry: Ask not for whom the line is drawn; it is drawn to avoid thee.’ Grofman, Would Vince Lombardi Have Been Right If He Had Said: 'When It Comes to Redistricting, Race Isn’t Everything, It’s the Only Thing’?, 14 Cardozo L. Rev. 1237, 1261, n. 96 (1993) (internal quotation marks omitted).” Id., at 635-636 (some citations and internal quotation marks omitted).
The problem in Shaw was not the plan architects’ consideration of race as relevant in redistricting. Rather, in the Court’s estimation, it was the virtual exclusion of other factors from the calculus. Traditional districting practices were cast aside, the Court concluded, with race alone steering placement of district lines.
B
The record before us does not show that race similarly overwhelmed traditional districting practices in Georgia. Although the Georgia General Assembly prominently considered race in shaping the Eleventh District, race did not crowd out all other factors, as the Court found it did in North Carolina’s delineation of the Shaw district.
In contrast to the snake-like North Carolina district inspected in Shaw, Georgia’s Eleventh District is hardly “bizarre,” “extremely irregular,” or “irrational on its face.” Id., at 642, 644,658. Instead, the Eleventh District’s design reflects significant consideration of “traditional districting factors (such as keeping political subdivisions intact) and the usual political process of compromise and trades for a variety of nonracial reasons.”
Nor does the Eleventh District disrespect the boundaries of political subdivisions. Of the 22 counties in the district, 14 are intact and 8 are divided. See Joint Exh. 17. That puts the Eleventh District at about the state average in divided counties. By contrast, of the Sixth District’s five counties, none are intact, ibid., and of the Fourth District’s four counties, just one is intact. Ibid.
Evidence at trial similarly shows that considerations other than race went into determining the Eleventh District’s boundaries. For a “political reason” — to accommodate the request of an incumbent State Senator regarding the placement of the precinct in which his son lived — the DeKalb County portion of the Eleventh District was drawn to include a particular (largely white) precinct. 2 Tr. 187, 202. The corridor through Effingham County was substantially narrowed at the request of a (white) State Representative. 2 Tr. 189-190, 212-214. In Chatham County, the district was trimmed to exclude a heavily black community in Garden City because a State Representative wanted to keep the city intact inside the neighboring First District. 2 Tr. 218-219. The Savannah extension was configured by “the narrowest means possible” to avoid splitting the city of Port Wentworth. 4 Tr. 172-174, 175-178, 181-183.
C
The Court suggests that it was not Georgia’s Legislature, but the U. S. Department of Justice, that effectively drew the lines, and that Department officers did so with nothing but race in mind. Yet the “Max-Black” plan advanced by the Attorney General was not the plan passed by the Georgia General Assembly.
And although the Attorney General refused preclearance to the first two plans approved by Georgia’s Legislature, the State was not thereby disarmed; Georgia could have demanded relief from the Department’s objections by instituting a civil action in the United States District Court for the District of Columbia, with ultimate review in this Court. Instead of pursuing that avenue, the State chose to adopt the plan here in controversy — a plan the State forcefully defends
D
Along with attention to size, shape, and political subdivisions, the Court recognizes as an appropriate districting principle, “respect for . . . communities defined by actual shared interests.” Ante, at 916. The Court finds no community here, however, because a report in the record showed “fractured political, social, and economic interests within the Eleventh District’s black population.” Ante, at 919.
But ethnicity itself can tie people together, as volumes of social science literature have documented — even people with divergent economic interests. For this reason, ethnicity is a significant force in political life. As stated in a classic study of ethnicity in one city of immigrants:
“[M]any elements — history, family and feeling, interest, formal organizational life — operate to keep much of New York life channeled within the bounds of the ethnic group. . ..
“... The political realm ... is least willing to consider [ethnicity] a purely private affair. . . .
“[Political life itself emphasizes the ethnic character of the city, with its balanced tickets and its special appeals . . . .” N. Glazer & D. Moynihan, Beyond the Melting Pot 19-20 (1963).
See also, e.g., E. Litt, Beyond Pluralism: Ethnic Politics in America 2 (1970) (“[E]thnic forces play a surprisingly persistent role in our politics.”); Ethnic Group Politics, Preface ix (H. Bailey & E. Katz eds. 1969) (“[EJthnic identifications do exist and . . . one cannot really understand the American political process without giving special attention to racial, religious and national minorities.”).
To accommodate the reality of ethnic bonds, legislatures have long drawn voting districts along ethnic lines. Our
Ill
To separate permissible and impermissible use of race in legislative apportionment, the Court orders strict scrutiny for districting plans “predominantly motivated” by race. No longer can a State avoid judicial oversight by giving — as in this case — genuine and measurable consideration to traditional districting practices. Instead, a federal case can be mounted whenever plaintiffs plausibly allege that other factors carried less weight than race. This invitation to litigate against the State seems to me neither necessary nor proper.
A
The Court derives its test from diverse opinions on the relevance of race in contexts distinctly unlike apportionment.
That ethnicity defines some of these groups is a political reality. Until now, no constitutional infirmity has been seen in districting Irish or Italian voters together, for example, so long as the delineation does not abandon familiar apportionment practices. See supra, at 944-945. If Chinese-Americans and Russian-Americans may seek and secure group recognition in the delineation of voting districts, then African-Americans should not be dissimilarly treated. Otherwise, in the name of equal protection, we would shut out “the very minority group whose history in the United States gave birth to the Equal Protection Clause.” See Shaw,
B
Under the Court’s approach, judicial review of the same intensity, i. e., strict scrutiny, is in order once it is determined that an apportionment is predominantly motivated by race. It matters not at all, in this new regime, whether the apportionment dilutes or enhances minority voting strength. As very recently observed, however, “[t]here is no moral or
Special circumstances justify vigilant judicial inspection to protect minority voters — circumstances that do not apply to majority voters. A history of exclusion from state politics left racial minorities without clout to extract provisions for fair representation in the lawmaking forum. See supra, at 936-938. The equal protection rights of minority voters thus could have remained unrealized absent the Judiciary’s close surveillance. Cf. United States v. Carolene Products Co.,
State legislatures like Georgia’s today operate under federal constraints imposed by the Voting Rights Act — constraints justified by history and designed by Congress to make once-subordinated people free and equal citizens. But these federal constraints do not leave majority voters in need of extraordinary judicial solicitude. The Attorney General, who administers the Voting Rights Act’s preclearance requirements, is herself a political actor. She has a duty to enforce the law Congress passed, and she is no doubt aware of the political cost of venturing too far to the detriment of majority voters. Majority voters, furthermore, can press the State to seek judicial review if the Attorney General refuses to preclear a plan that the voters favor. Finally, the Act is itself a political measure, subject to modification in the political process.
The Court’s disposition renders redistricting perilous work for state legislatures. Statutory mandates and political realities may require States to consider race when drawing district lines. See supra, at 935. But today’s decision is a counterforce; it opens the way for federal litigation if “traditional ... districting principles” arguably were accorded less weight than race. See ante, at 916. Genuine attention to traditional districting practices and avoidance of bizarre configurations seemed, under Shaw, to provide a safe harbor. See
Only after litigation — under either the Voting Rights Act, the Court’s new Miller standard, or both — will States now be assured that plans conscious of race are safe. Federal judges in large numbers may be drawn into the fray. This enlargement of the judicial role is unwarranted. The reapportionment plan that resulted from Georgia’s political process merited this Court’s approbation, not its condemnation. Accordingly, I dissent.
[Appendixes A and B, containing maps of Georgia’s proposed and current Eleventh Districts, and Appendix C, containing a map of the Shaw v. Reno District, follow this page.]
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Georgia’s population is approximately 27 percent black.
In the vote dilution category, Gomillion v. Lightfoot,
Georgia’s First, Second, and Eighth Districts each have a total area of over 10,100 square miles.
Although the Eleventh District comes within 58 miles of crossing the entire State, this is not unusual in Georgia: The Ninth District spans the State’s entire northern border, and the First, Second, and Eighth Districts begin at the Florida border and stretch north to almost the middle of the State. See ibid. (Edmondson, J., dissenting). In the 1980’s, Georgia’s Eighth District extended even farther, in an irregular pattern from the southeast border with Florida to nearly the Atlanta suburbs. See App. 80.
The First District has 20 intact counties and parts of 2 others. The Second District has 23 intact counties and parts of 12 others. The Third District has 8 intact counties and parts of 8 others. The Fifth District is composed of parts of 4 counties. The Seventh District has 10 intact counties and part of 1 county. The Eighth District has 22 intact counties and parts of 10 others. The Ninth District has 19 intact counties and part of 1 other. The Tenth District has 16 intact counties and parts of 3 others. See Joint Exh. 17.
The Sixth District scores lowest, with just 45 percent of its boundaries following political subdivision lines. The Ninth District rates highest, with 91 percent. Defendant’s Exh. 177, p. 3.
On this measure, only three districts — the First, Seventh, and Ninth— rate higher than the Eleventh District. Excluding the Fifth and Sixth Districts, which contain no intact counties, the scores range from about 30 percent for the Fourth District to 97 percent for the Seventh District. Id,., at 4.
The Court turns the significance of this fact on its head by stating: ‘“While the boundaries of the Eleventh do indeed follow many precinct lines, this is because Ms. Meggers designed the Eleventh District along racial lines, and race data was most accessible to her at the precinct level.’ ” Ante, at 919 (quoting
Appendixes A, B, and C to this opinion depict, respectively, the proposed Eleventh District under the “Max-Black” plan, Georgia’s current congressional districts, and the district in controversy in Shaw.
Indeed, a “key” feature, ante, at 907, of the “Max-Black” plan — placing parts of Savannah in the Eleventh District — first figured in a proposal adopted by Georgia’s Senate even before the Attorney General suggested this course.
I would follow precedent directly on point. In United Jewish Organizations of Williamsburgh, Inc. v. Carey,
Nor is UJO best understood as a vote dilution case. Petitioners’ claim in UJO was that the State had “violated the Fourteenth and Fifteenth Amendments by deliberately revising its reapportionment plan along racial lines. ” Id., at 155 (opinion of White, J., joined by Brennan, Blackmun, and Stevens, JJ.) (emphasis added). Petitioners themselves stated: ‘“Our argument is . . . that the history of the area demonstrates that there could be — and in fact was — no reason other than race to divide the community at this time.’ ” Id., at 154, n. 14 (quoting Brief for Petitioners, O. T. 1976, No. 75-104, p. 6, n. 6) (emphasis in Brief for Petitioners).
Though much like the claim in Shaw, the UJO claim failed because the UJO district adhered to traditional districting practices. See
Race-conscious practices a State may elect to pursue, of course, are not as limited as those it may be required to pursue. See Voinovich v. Quitter,