Ruth O. SHAW, et al., Plaintiffs, v. Governor James B. HUNT, Jr., et al., Defendants.
No. 92-202-CIV-5-BR
United States District Court, E.D. North Carolina, Raleigh Division.
Aug. 22, 1994.
861 F. Supp. 408
The Government charges that the parents of plaintiffs fraudulently conveyed the land to plaintiffs, and that the transfers may be set aside. Whether a taxpayer has an interest in property to which a lien can attach is a matter of state law. See Aquilino v. United States, 363 U.S. 509, 80 S.Ct. 1277, 4 L.Ed.2d 1365 (1960); Wilkinson v. United States, 741 F.Supp. 577 (W.D.N.C.1990). The North Carolina statute governing fraudulent transfers,
Plaintiffs received their property by deed of gift, and so the transfer was for insufficient consideration. The Government need only show that the taxpayers were insolvent in order to void the conveyance, and thereby maintain a lien upon plaintiffs’ property. In the alternative, of course, the Government may also demonstrate that the lien attached prior to the transfer.
Plaintiffs have wholly failed to meet their burden to show that the Government cannot establish its claim. The exception to the Anti-Injunction Act does not apply to this matter, and this court lacks jurisdiction to hear plaintiffs’ motion for a temporary restraining order or plaintiffs’ claims for restraining orders. Therefore the Government‘s motion to dismiss must be granted and plaintiffs’ claims for restraining orders be dismissed.
In conclusion, the Government‘s motion to dismiss plaintiffs’ motion and claims for a restraining order is GRANTED. Plaintiffs’ motion for a temporary restraining order is DENIED. Plaintiffs claims to quiet title and to remove the clouds from plaintiff‘s title to the six parcels of land remain before the court.
R.A. Renfer, Asst. U.S. Atty., Raleigh, NC, for William P. Barr, John Dunne and amicus U.S.
Edwin M. Speas, Jr., Tiare Bowe Smiley, State Attorney General‘s Office, John R. McArthur, N.C. Dept. of Justice, Raleigh, NC, for James B. Hunt, Dennis A. Wicker, Daniel T. Blue, Jr., Rufus L. Edmisten, North Carolina State Bd. of Elections, Edward J. High, Jean H. Nelson, Larry Leake, Dorothy Presser, June K. Youngblood.
Geraldine Sumter, Anita Sue Hodgkiss, James E. Ferguson, II, Ferguson, Stein, Wallas, Adkins, Gresham & Sumter, P.A., Charlotte, NC, for Ralph Gingles, Virginia Newell, George Simkins, N.A. Smith, Ron Leeper, Alfred Smallwood, Dr. Oscar Blanks, Rev. David Moore, Robert L. Davis, C.R. Ward, Jerry B. Adams, Jan Valder, Bernard Offerman, Jennifer McGovern, Charles Lamberth, Ellen Emerson, Lavonia Allison, George Knight, Leto Copeley, Woody Connette, Roberta Waddle, William M. Hodges.
Thomas A. Farr, Maupin, Taylor, Ellis & Adams, Raleigh, NC, for James Arthur “Art” Pope, Betty S. Justice, Doris Lail, Joyce Lawing, Nat Swanson, Rick Woodruff, J. Ralph Hixon, Audrey McBane, Sim A. Delapp, Jr., Richard S. Sahlie, Jack Hawke.
Before PHILLIPS, Senior Circuit Judge, BRITT, District Judge*, and VOORHEES, Chief District Judge**.
AMENDED OPINION
PHILLIPS, Senior Circuit Judge:
This action, brought by several white citizens and registered voters of the State of North Carolina against various state and federal officials, challenges the constitutionality of the congressional redistricting1 plan (the Plan) adopted by the North Carolina General Assembly following the 1990 decennial census.2 Plaintiffs now claim principally that the General Assembly‘s redistricting plan violates their rights under the Equal Protection Clause of the Fourteenth Amendment, because it intentionally includes one or more congressional districts constructed along racial lines in order to assure the election of two African-American members of Congress, and is not narrowly tailored to further any compelling governmental interest. We ini
I. General Background and Procedural History
As a result of population increases reflected in the 1990 decennial census, North Carolina became entitled to an additional seat in the United States House of Representatives, bringing its total number of seats to twelve. In July of 1991, the North Carolina General Assembly therefore enacted legislation to redistrict the state into twelve congressional districts. 1991 N.C.Sess.Laws Ch. 601. This redistricting plan included one district, the First, in which African-Americans constituted majorities of both the registered voters and the voting age population of the district.3 This proposed majority-minority district was located in the northeastern part of the state.
Because 40 of North Carolina‘s 100 counties are covered by the provisions of § 5 of the Voting Rights Act of 1965,
Under § 5, the state could have challenged the Attorney General‘s objection to its original redistricting plan by filing a declaratory judgment action in the United States District Court for the District of Columbia. After debate, however, it elected not to do this, but instead to revise its original plan in order to meet the Attorney General‘s objection and secure his approval. In January of 1992, the General Assembly therefore convened in special session and enacted a revised redistricting plan. 1991 N.C.Extra Sess.Laws Ch. 7. This revised plan, which is the Plan under attack here, creates two districts in which African-Americans constitute majorities of both the registered voters and the voting age populations. One of these majority-minority districts, the First, is centered in the rural northeastern part of the state, where a large, dense concentration of African-Americans has long existed, but contains extensions that reach deep into the rural southeastern part of the state. The other, the Twelfth, is located not in the southern part of the state, as the Justice Department had suggested, but runs diagonally across the Piedmont in a jagged band that stretches some 160 miles from Durham to Gastonia, generally following the route of Interstate Highway 85, but with several extensions into the historic “black sections” of the Piedmont cities that lie along its course. The twelve districts created by the Plan are as equally populated as is mathematically possible,5 but their configurations are such that a number of pre-
The state submitted its revised Plan to the Attorney General under § 5, and the Attorney General precleared it on February 6, 1992. Almost immediately, the Republican Party of North Carolina and several individual voters associated with it filed suit in federal district court challenging the revised Plan under various provisions of the federal Constitution. Their primary claim was that the Plan violated their rights under the Equal Protection Clause of the Fourteenth Amendment, because its lines were deliberately drawn to favor Democratic incumbents at the expense of Republican political interests. On April 16, 1992, a three-judge district court dismissed that claim under
Shortly after the complaint in Pope v. Blue was filed, plaintiffs herein, five white residents of Durham County, North Carolina who are registered to vote in that county, filed this action challenging the constitutionality of the same congressional redistricting plan. Named as defendants in this action were the Governor, the Board of Elections, and various high-ranking officials of the state of North Carolina (the state defendants), as well as two federal officials who had participated in the § 5 preclearance process, the United States Attorney General and the Assistant Attorney General for the Civil Rights Division (the federal defendants).
Plaintiffs’ principal constitutional claim against the state defendants in this action was that the General Assembly‘s revised Plan violated their rights under the Equal Protection Clause. They based that claim on allegations that the Plan deliberately “creates two Congressional Districts in which a majority of African-American voters was concentrated arbitrarily—without regard to any other considerations, such as compactness, contiguousness, geographical boundaries, or political subdivisions,” with the purpose of “creat[ing] Congressional Districts along racial lines” and assuring the election of two African-American Representatives. Amended Complaint ¶ 36(A). Two theories of Equal Protection violation were advanced. First, that the deliberate drawing of district lines so as to create one or more districts in which a particular race has a majority, even if required by the Voting Rights Act, was per se unconstitutional under the Equal Protection Clause. Alternatively, that even if such race-based redistricting was not always unconstitutional, the specific redistricting plan at issue here was, because its lines did not observe such traditional districting considerations as geographic compactness, contiguity, and communities of interest, but were instead improperly “gerrymandered” to create two majority-minority districts and insure proportional representation of African-American citizens in North Carolina‘s congressional delegation.
In addition, plaintiffs alleged that the Plan violated rights secured to them by §§ 2 and 4 of Article I of the Constitution, the Privileges and Immunities Clause of the Fourteenth Amendment, and the Fifteenth Amendment. Finally, they made a two-pronged attack on the constitutionality of the federal defendants’ conduct in refusing to preclear a congressional redistricting plan for North Carolina that did not contain two majority-minority districts, arguing both that the federal defendants had misinterpreted amended § 2 of the Voting Rights Act and in consequence applied it unconstitutionally, and, in the alternative, that if amended § 2 in fact required the creation of two majority-minority districts in North Carolina, it was itself unconstitutional.
As relief, plaintiffs sought a declaration that the Plan was unconstitutional; preliminary and permanent injunctive relief against its use by the appropriate state defendants to conduct congressional elections; a declaration that the federal defendants had acted unconstitutionally in demanding that North Carolina adopt a congressional redistricting
Following designation of this three-judge court, both sets of defendants filed motions to dismiss. We dismissed the claims against the federal defendants, concluding that we lacked subject-matter jurisdiction over those claims.6 808 F.Supp. at 466-67 (majority op.); id. at 474 (Voorhees, C.J., concurring in relevant part).
By a divided vote, we dismissed the claims against the state defendants as well. We were in agreement that to the extent those claims were based on §§ 2 and 4 of Art. I and the Privileges and Immunities Clause of the Fourteenth Amendment, they failed to state a legally cognizable claim. We were also agreed that plaintiffs’ Fifteenth Amendment claim was essentially subsumed within their related claim under the Equal Protection Clause of the Fourteenth Amendment, and that to the extent plaintiffs’ Equal Protection claim alleged that race-based redistricting was always unconstitutional, even when it was required by the Voting Rights Act, it was foreclosed by United Jewish Organizations, Inc. v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977) (UJO). 808 F.Supp. at 470-72 (majority op.); id. at 473-74 (Voorhees, C.J., concurring in relevant part). We were divided as a court, however, on the proper disposition of plaintiffs’ alternative Equal Protection claim: that even if race-based redistricting was not always unconstitutional, the specific redistricting plan at issue here was, because its lines were drawn to create two majority-minority districts and assure the election of two African-American members of Congress, without regard to such traditional districting considerations as geographical compactness, contiguity, and communities of interest.
Two of us thought UJO disposed of this claim as well. Id. at 472-73 (majority op.). We read the various opinions in UJO to stand for the proposition that a redistricting scheme violates the Equal Protection rights of white voters only if it is “adopted with the purpose and effect of discriminating against white voters ... on account of their race.” Id. at 472, citing UJO, 430 U.S. at 165-68, 97 S.Ct. at 1009-11 (plurality opinion); id. at 179-80, 97 S.Ct. at 1016–17 (Stewart, J., concurring). We concluded that plaintiffs had not alleged the requisite discriminatory purpose, because they had not alleged that the Plan was intended to disadvantage white voters—that is, to deprive them of a fair opportunity, on a state-wide basis, to participate in the political process and to elect candidates of their choice—but only to give effect to African-American voting strength in order to comply with the Voting Rights Act. Id. at 472-73. We also concluded that plaintiffs had not, and could not, allege the requisite discriminatory effect, because they could not establish that the Plan unfairly diluted or canceled out white voting strength and led to proportional underrepresentation of white voters on a statewide basis. Id. at 473.
Judge Voorhees disagreed with this analysis. He read the plurality opinion in UJO to authorize the states to deliberately create majority-minority districts in order to comply with the Voting Rights Act only when they employ traditional districting principles such as compactness, contiguity, and communities of interest, id. at 475-77 (Voorhees, C.J., dissenting in relevant part), which he believed were “of constitutional dimension,” id. at 480. The Plan‘s alleged failure to respect these principles, in his view, “augur[ed] a constitutionally suspect, and potentially unlawful, intent” on the part of the General
Plaintiffs appealed our dismissal of their claims to the United States Supreme Court. In a 5-4 decision, the Court held that plaintiffs had stated a claim under the Equal Protection Clause by alleging that the General Assembly had adopted a redistricting plan that was “so irrational on its face that it can be understood only as an effort to segregate voters into separate voting districts because of their race, and that the separation lacks sufficient justification.” Shaw v. Reno, 509 U.S. 630, 658, 113 S.Ct. 2816, 2832, 125 L.Ed.2d 511 (1993). If this “allegation of racial gerrymandering remains uncontradicted,” the Court held, “the District Court further must determine whether the North Carolina plan is narrowly tailored to further a compelling governmental interest.” Id. at 658, 113 S.Ct. at 2832. The Court therefore reversed our dismissal of the plaintiffs’ Equal Protection claim and remanded that claim to this court for further consideration. Id. at 658, 113 S.Ct. at 2832. The Court expressly affirmed our dismissal of the claims against the federal defendants. Id. at 637, 113 S.Ct. at 2823. It expressed no view on the validity of plaintiffs’ claims against the state defendants under Art. I, § 2; Art. I, § 4, the Privileges and Immunities Clause of the Fourteenth Amendment, and the Fifteenth Amendment, id. at 658, 113 S.Ct. at 2832, leaving our dismissal of those claims undisturbed but, because unreviewed, still open for possible reconsideration by this court or, if not reconsidered, for possible later review by that Court. In this posture of the case, our consideration has been confined on remand to the one claim found legally viable by the Supreme Court: the claim of improper “racial gerrymandering” in violation of the Equal Protection Clause.
Following the remand of that claim for further consideration, the state defendants filed an answer to the amended complaint, in which they admitted that one of their purposes in enacting the Plan was to respond to the objections interposed by the Attorney General in the § 5 preclearance process by creating two majority-minority districts. Answer to Amended Complaint at ¶ 17; see id. at 6. But they contended that the Plan was not a “racial gerrymander” subject to strict scrutiny under Shaw, because it did not segregate voters into separate voting districts on the basis of race, but actually created integrated districts, and because its lines were the product of legitimate non-racial redistricting considerations, including compliance with constitutional “one person, one vote” requirements; the creation of communities of interest based on shared historical, social, and economic interests; and the protection of incumbents. Id. at 6. Alternatively, they asserted that even if the Plan was subject to strict scrutiny, it was nonetheless constitutional, because it was narrowly tailored to further the state‘s compelling interests in complying with the preclearance requirements of § 5 of the Voting Rights Act, avoiding a violation of § 2 of the Voting Rights Act, and eradicating the effects of past racial discrimination in the state. Id. at 7.
After the state defendants filed their answer, we permitted twenty-two persons registered to vote in North Carolina, both African-American and white, to intervene as defendants in support of the Plan (the defendant-intervenors). We also permitted eleven persons registered to vote as Republicans in North Carolina—including Art Pope, who had been the lead plaintiff in the earlier political gerrymandering challenge to the Plan—to intervene as plaintiffs (the plaintiff-intervenors), on the condition that they adopt as their own the amended complaint filed by the original plaintiffs.7 Finally, we permitted the United States, on its motion, to appear as amicus curiae by filing briefs in support of the legal positions of the state defendants.
After approximately four months of discovery, the plaintiff-intervenors filed motions, later joined by the original plaintiffs, for a preliminary injunction against further election proceedings under the existing congressional redistricting Plan and a temporary
Following a final pre-trial conference, trial to the three-judge court was held from March 28, 1994 through April 4, 1994, pursuant to a duly adopted pre-trial order. At trial, the parties presented, and the court received, extensive oral and documentary evidence.8 We deferred decision pending the parties’ submission of proposed findings of fact and conclusions of law, briefing, and concluding oral arguments of counsel, which we heard on April 18, 1994.
Having considered the evidence, the memoranda of law submitted by the parties, the stipulations of fact, the proposed findings and conclusions, and the oral arguments of counsel, we now make the following findings of fact and conclusions of law, pursuant to
II. General Legal Principles
We begin by setting out our understanding of the nature of the Equal Protection claim recognized by the Supreme Court in this case, to serve as a framework for our findings of fact and conclusions of law. In the process, we consider conflicting contentions of the parties respecting various aspects of the claim.
A. General Nature of the Claim
At the outset of this action, plaintiffs’ Equal Protection challenge to this congressional redistricting plan took two alternative forms. First, that any state redistricting plan that deliberately creates districts of a certain racial composition necessarily violates the Equal Protection Clause, regardless of its justification. Second, that even if such race-based redistricting is not unconstitution-al in all circumstances, this particular redistricting plan is, because its lines do not observe traditional districting considerations such as geographical compactness, contiguity, and communities of interest, but are improperly “gerrymandered” to create two majority-minority districts and insure proportional representation of African-American citizens in North Carolina‘s congressional delegation.
The Supreme Court found the first claim foreclosed by its prior precedents, at least when the legislature‘s purpose was to comply with the remedial requirements of the Voting Rights Act. See Shaw, 509 U.S. at 642, 113 S.Ct. at 2824 (reaffirming that race-conscious redistricting, like other forms of race-conscious state decisionmaking, is “not always unconstitutional“). The Court found legally viable, however, plaintiffs’ alternative Equal Protection claim, which it characterized as a claim that the state‘s redistricting plan, though facially race-neutral, was “so irrational on its face that it can be understood only as an effort to segregate voters into separate voting districts because of their race, and that the separation lacks sufficient justification.” Id. at 658, 113 S.Ct. at 2832. It is only that Equal Protection claim which plaintiffs and their supporting intervenors now press on remand.
As we understand it, the claim is a newly recognized one in voting rights jurisprudence. Until Shaw, the Supreme Court had recognized only two grounds on which a redistricting plan might be subject to challenge under the Equal Protection Clause. The first, based on the “one person one vote” principle, was that its districts were not equal in population, so that the votes cast by individual voters in some districts had less weight than those cast by voters in other districts. See Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). The second was that though its districts were of equal population, they were drawn with the purpose and had the effect of unfairly “diluting” or canceling out the voting
The Supreme Court‘s decision in Shaw has now recognized a third way, characterized by the Court as analytically distinct from the two earlier recognized, in which a state redistricting plan might offend the Equal Protection Clause. It is that the plan was designed “to separate voters into different districts on the basis of race,” without “sufficient justification.” Shaw, 509 U.S. at 649, 113 S.Ct. at 2828. Such race-based redistricting legislation, said the Court, presents the same dangers as any other state law that deliberately classifies citizens by race: it threatens “to stigmatize individuals by reason of their membership in a racial group,” “to incite racial hostilit[ies],” and “to stimulate our society‘s latent race-consciousness.” Id. at 643, 113 S.Ct. at 2824-25 (internal quotations omitted). It should therefore be subject to “the same close scrutiny that we give other state laws that classify citizens by race,” id. at 644, 113 S.Ct. at 2825; that is, be upheld only if “narrowly tailored to further a compelling governmental interest.” Id. at 658, 113 S.Ct. at 2832. The Court made clear that strict scrutiny must be applied even to those race-based redistricting schemes that purport to have been enacted with the “benign” purpose of giving effect to minority voting strength in order to comply with the Voting Rights Act, “because without
This states our understanding of the general nature of the Equal Protection claim recognized by the Court in this case and remanded to us for trial. It is, in effect, the same basic claim that the Court has recognized in other contexts in which race-based remedial measures, or “affirmative action,” undertaken by state actors have been challenged, typically by members of the majority race claiming “reverse discrimination.” See Regents of the Univ. of Calif. v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (admission to public institution of higher learning); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) (public employment); and City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (government contracting).11 That being its general nature, there remain significant problems concerning how the substantive elements and procedural incidents of such a claim are to be transposed to the unique voting rights context: specifically, the problems of standing; the nature of the showing required to trigger strict scrutiny; the allocation of the burden of proof at the strict scrutiny stage; the types of compelling state interests that might justify such race-based action; and the meaning of narrowly tailored in this context. On all of these matters, the parties are in flat disagreement. We now turn to them.
B. Standing
Defendant-intervenors contend that the action should be dismissed for lack of standing. They point out that the Supreme Court‘s decision in this case technically held only that, as a matter of substantive Equal Protection doctrine, plaintiffs could state a valid Equal Protection challenge to the Plan without alleging that it had the purpose and effect of diluting their group voting strength. They emphasize that the Court did not hold that plaintiffs had standing to assert such a claim, nor did it purport to relieve them from the obligation to satisfy the normal requirements for standing: a showing that they have personally suffered, or are in immediate danger of suffering, some actual “injury in fact” that is “fairly traceable” to the challenged conduct and “likely to be redressed” by the relief they seek. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). And they argue that plaintiffs have now failed to prove that the Plan has caused them the sort of “injury in fact” required to give them standing to challenge it. They concede that the clear implication, if not the actual holding, of the Supreme Court‘s decision is that plaintiffs need not show that the Plan has caused injury to their voting strength. But they read the Court‘s discussion of the other ways in which race-based districting legislation can injure voters, Shaw, 509 U.S. at 647-48, 113 S.Ct. at 2827-28, as implying that a voter has standing to challenge such legislation only if he can show that it has actually injured his political interests in one of two other ways: (i) by causing the representative elected from his district to represent only the interests of a particular racial group of which he is not a member; or (ii) by exacerbating existing patterns of racial bloc voting by a racial group of which he is not a member. While they concede that the Supreme Court‘s decision can be read to hold
Defendant-intervenors’ argument is not without some force. The federal courts are not a general forum for the airing of any and all complaints a citizen may have about the way in which his government conducts its business, Los Angeles v. Lyons, 461 U.S. 95, 112, 103 S.Ct. 1660, 1670-71, 75 L.Ed.2d 675 (1983), and they do not have “an unconditioned authority to determine the constitutionality of legislative or executive acts.” Valley Forge Christian College v. Americans United, 454 U.S. 464, 471, 102 S.Ct. 752, 757-58, 70 L.Ed.2d 700 (1982). An unbroken line of Supreme Court decisions establishes that a federal court may decide the merits of a constitutional challenge to a legislative act only when asked to do so by a party who has personally suffered, or is in immediate danger of suffering, some actual “injury in fact” that is “fairly traceable” to the challenged act and “likely to be redressed” by the relief he seeks. Lujan, 504 U.S. at 560-61, 112 S.Ct. at 2136; Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984); Valley Forge, 454 U.S. at 472, 102 S.Ct. at 758-59; Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976); Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2204-05, 45 L.Ed.2d 343 (1975); Flast v. Cohen, 392 U.S. 83, 97, 88 S.Ct. 1942, 1951, 20 L.Ed.2d 947 (1968). These three elements—injury in fact, causation, and redressability—are the “irreducible constitutional minimum” for standing, derived directly from the Article III case-or-controversy limitation on the federal judicial power. Northeastern Florida Contractors v. Jacksonville, 508 U.S. 656, 663-64, 113 S.Ct. 2297, 2301-02, 124 L.Ed.2d 586 (1993); Lujan, 504 U.S. at 560-61, 112 S.Ct. at 2136. As such, they are “an indispensable part of the plaintiff‘s case,” which he must prove at trial “with the [same] manner and degree of evidence as any other matter on which [he] bears the burden of proof,” id. at 561, 112 S.Ct. at 2136, before he is entitled to have the court rule on the merits of his claim. See Warth, 422 U.S. at 499, 95 S.Ct. at 2205; Allen, 468 U.S. at 750, 104 S.Ct. at 3324.
At first blush, it would appear that plaintiffs have not even alleged, much less proved, the sort of “injury in fact” required by this line of decisions. The Supreme Court has emphasized that such a injury must be “concrete” in both a qualitative and a temporal sense, Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 1722-23, 109 L.Ed.2d 135 (1990), which means that it must be both “distinct and palpable” in nature, Warth, 422 U.S. at 501, 95 S.Ct. at 2206, as opposed to “[a]bstract,” O‘Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974), and “real and immediate,” as opposed to “conjectural” or “hypothetical,” Lyons, 461 U.S. at 101-02, 103 S.Ct. at 1664-65. See generally Whitmore, 495 U.S. at 155, 110 S.Ct. at 1722-23. It surely is arguable that the injuries plaintiffs allege the Plan has inflicted upon them do not satisfy these criteria. Their primary claim is that the Plan “injures” them—as well as all other citizens, residents, and registered voters of the State of North Carolina—because it threatens to perpetuate archaic racial stereotypes and to increase racial divisions in society. See Plaintiffs’ Responses to Defendant-Intervenors’ First Set of Interrogatories, Responses Nos. 1 and 2. In addition, the two plaintiffs who reside in districts in which African-Americans are a majority under the Plan—Shaw and Shimm—claim that it “injures” them in another way, by causing them to doubt the quality of their representation in Congress and making them feel “disenfranchised.” See Shimm testimony, Tr. pp. 1084-93. All of these expressly claimed harms could be thought abstract, theoretical, and merely speculative, not concrete and palpable; all have the marks of the sort of “injury
Nevertheless, as we now understand the nature of the claim, we believe the Supreme Court would hold that the plaintiffs have adequately established their standing to assert it. That claim, as indicated, is that the Plan violates the Equal Protection Clause simply because it “classifies” voters—that is, assigns them to particular voting districts—on the basis of their race, without sufficiently compelling justification. In other contexts, the Supreme Court has recognized that a state‘s use of racial classifications necessarily inflicts “stigmatic” injury, Allen, 468 U.S. at 755, 104 S.Ct. at 3326-27, which, though “abstract” in the sense that it cannot easily be quantified, is sufficient “injury in fact” to give any citizen who has been “personally denied equal treatment” by such a classification standing to challenge it under the Equal Protection Clause. See Bakke, 438 U.S. at 281 n. 14, 98 S.Ct. at 2743 n. 14 (opinion of Powell, J., joined by four other justices) (white male applicant to state medical school has standing to challenge admission program that sets aside a certain number of places in the class for minority applicants, even though he cannot show that he would have been admitted but for that set-aside program); Northeastern Florida Contractors, 508 U.S. at 666, 113 S.Ct. at 2303 (white contractors have standing to challenge municipal ordinance that sets aside a certain percentage of city contracts for minority-owned businesses, even though they cannot show that they would have been awarded a contract but for the set-aside program); see also Heckler v. Mathews, 465 U.S. 728, 739-40, 104 S.Ct. 1387, 1395-96, 79 L.Ed.2d 646 (1984) (applying same standing rule in action challenging federal government‘s use of gender-based classification under the equal protection component of the Due Process Clause of the Fifth Amendment). On remand, plaintiffs seem to have added a claim of such “stigmatic” injury to the list of harms that they claim the Plan has inflicted upon them. See Plaintiffs’ Post-Trial Brief at 4; Plaintiffs’ Responses to Defendant-Intervenors’ First Set of Interrogatories, Responses Nos. 1 and 2. Under the reasoning of Bakke and its progeny, this “stigmatic” injury would appear sufficient to give them standing to challenge the Plan, if they can show that they were “personally denied equal treatment” by it.
But difficulties remain, which in fairness must be recognized. It is not immediately obvious how this liberal rule of standing developed in Bakke and later cases challenging explicit racial classifications can be transposed to race-based districting. To date, all of the cases in which the dignitary injury resulting from a racial classification has been found sufficient to confer Article III standing have involved the use of race to disadvantage members of a particular racial group relative to other persons in the distribution of some governmental benefit. Bakke and Northeastern Florida Contractors, for example, involved explicit racial set-asides that prevented applicants of a certain race from being considered for a particular governmental benefit.12 In such cases, the classification clearly subjects the members of the disfavored group to “unequal treatment,” because it makes it more difficult for them to obtain the benefit in question than it is for other persons. As the Court explained, “the ‘injury in fact’ in an Equal Protection case of th[at] variety is the denial of equal treatment resulting from the imposition of the barrier” which denies members of one racial group the opportunity to compete for the benefit on an equal footing with members of other racial groups. Northeastern Florida Contractors, 508 U.S. at 666, 113 S.Ct. at 2303. But laws that assign voters to particular districts on the basis of their race, unlike racial set-asides, do not appear to subject members of any racial group to “unequal treatment” vis-a-vis any other. So long as all citizens may vote, all individual votes receive the same weight, and no racial group‘s voting strength is unduly diluted, all racial groups are by
Despite this possible awkwardness, we think the Shaw Court must have intended to transpose to race-based districting the expansive concept of standing to challenge racial classifications born in Bakke and brought to maturity in Northeastern Florida Contractors. The linchpin of the Court‘s analysis in Shaw was that race-based districting is no different than any other legislation that deliberately classifies citizens by race; it was on that basis that the Court held such legislation subject to strict scrutiny under the Equal Protection Clause. See Shaw, 509 U.S. at 644-45, 113 S.Ct. at 2824-25. Having equated race-based districting with legislation that explicitly classifies citizens on the basis of race for purposes of the underlying substantive law, it seems inconceivable that the Court would not also equate the two for purposes of standing, which serves merely to define the class of persons who have a sufficient personal stake in a particular substantive claim to litigate it in court. We therefore believe that the same expansive notion of standing developed in Bakke and other cases challenging explicit racial set-asides must also apply to cases challenging race-based districting; that is, that any person who can show that a redistricting plan has assigned him to vote in a particular district at least in part because of his race has standing to challenge it, even if he cannot show that it has caused any concrete injury to his political interests.13 In this context, the “injury in fact” presumably is the state‘s decision to deal with the voter as a member of a particular racial class, rather than as an individual, in assigning him to a voting district, which is an affront to his “personal dignity.” See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 153, 114 S.Ct. 1419, 1434, 128 L.Ed.2d 89 (1994) (Kennedy, J., concurring in the judgment); Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 602, 110 S.Ct. 2997, 3028-29, 111 L.Ed.2d 445 (1990) (O‘Connor, J., dissenting) (“At the heart of the Constitution‘s guarantee of equal protection lies the simple command that the Government must treat citizens as ‘individuals, not as simply components of a racial ... class‘“). That race-based redistricting necessarily visits this indignity equally upon all races would appear to be of no consequence in the standing analysis, for “racial classifications do not become legitimate [because] all persons suffer them in equal degree.” Powers, 499 U.S. at 410, 111 S.Ct. at 1370.
Such a broad standing principle concededly, and with all respect, has disquieting implications, which defendant-intervenors contend demonstrate its unacceptability. It would appear to mean that any person registered to vote in a jurisdiction with a districting plan that contains one or more districts which
Despite these difficulties, we understand Shaw necessarily to have implied a standing principle that accords standing to challenge a race-based redistricting plan to any voter who can show that it has assigned him to vote in a particular electoral district in part at least because of his race.
C. Proof Required to Trigger Strict Scrutiny
The threshold showing required by Shaw to establish that a particular districting plan is subject to strict scrutiny is not immediately clear, as the conflicting contentions of the parties illustrate.
Plaintiffs and their supporting intervenors contend that after Shaw, strict scrutiny applies to any districting plan in which consideration of race is shown to have played a “substantial” or “motivating” role in the line-drawing process, even if it was not the only factor that influenced that process. They note that it has long been established, outside the districting context, that strict scrutiny applies to any legislation in which a racially-discriminatory purpose is shown to have played a “substantial” or “motivating” role, even if it was not the “sole,” “dominant,” or even the “primary” purpose of the legislation. Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265-66, 97 S.Ct. 555, 563-64, 50 L.Ed.2d 450 (1977); see Hunter v. Underwood, 471 U.S. 222, 231, 105 S.Ct. 1916, 1921-22, 85 L.Ed.2d 222 (1985). They contend that Shaw simply transposed the Arlington Heights “substantial” or “motivating” role test to the districting context, and that in this context, it is necessarily satisfied by proof that the lines of a particular plan were deliberately drawn so as to create one or more districts in which a particular racial group has a majority, even if factors other than race also played a substantial role in the location and shape of those districts. As they point out, this is the interpretation of Shaw adopted by all three members of the court in Hays v. Louisiana, 839 F.Supp. 1188 (W.D.La.1993) (Hays I), vacated, 512 U.S. 1230, 114 S.Ct. 2731, 129 L.Ed.2d 853 (1994),15 the first three-judge
The state and its allies, by contrast, argue that mere proof that the legislature deliberately drew district lines in order to create one or more districts in which a particular racial group has a majority is not sufficient to trigger strict scrutiny under Shaw. Instead, they read Shaw as holding that strict scrutiny applies only to plans that are shown to (i) create districts with highly irregular shapes; (ii) in which citizens of particular racial groups are concentrated in numbers disproportionate to their representation in the state‘s population as a whole; and (iii) whose shape and location cannot rationally be explained by reference to any districting factor other than race. While they concede that proof of the first two factors may give rise to an inference that a plan is a “racial gerrymander” triggering strict scrutiny, they maintain that the state may rebut that inference by presenting evidence that the location15
and shape of the districts can rationally be explained by reference to some districting principle other than race, and that if the state does this, strict scrutiny does not apply and the plan must be judged instead under the lenient rational basis test. In their view, the Shaw Court was concerned not about all deliberate use of race in redistricting, but only about a narrow category of “exceptional cases” in which race-based redistricting produces majority-minority districts so peculiar-looking that they call attention to their racial purpose and thereby serve to exacerbate, rather than to alleviate, the existing racial divisions in society.
It is certainly possible to read the majority opinion in Shaw as holding no more than the state and its allies say it does. See DeWitt v. Wilson, 856 F.Supp. 1409 (E.D.Cal.1994) (adopting this reading of Shaw). As they point out, the plaintiffs’ reading of Shaw is hard to square with the nature of the Supreme Court‘s remand in this case. It was clear, on the record before the Court, that the desire to create two districts in which African-Americans were a majority of voting age population was indeed a substantial motivating factor behind the enactment of this particular plan. Our opinion below had indicated that the state had conceded this fact in the proceedings before us, 808 F.Supp. at 470, and several of the dissents in the Supreme Court called this concession to the majority‘s attention. See --- U.S. at ---, 113 S.Ct. at 2838 (White, J., dissenting); id. at ---, 113 S.Ct. at 2843 (Stevens, J., dis-
Despite its surface plausibility, however, we do not think the state‘s interpretation of Shaw can be correct. If Shaw meant no more than the state says it does, it would have precious little practical effect on race-based districting, for it would require states to defend the deliberate creation of majority-minority districts under strict scrutiny only when they could not come up with any rational explanation for the location and shape of those districts other than race. This would seldom be the case, given the wide variety of other districting principles that may be used to justify even the most peculiar-looking districts. The language and structure of the Court‘s opinion, if not its actual holding, strongly suggest that the Court intended to do much more than this. As we read the opinion, it was intended to place race-based redistricting legislation into the same category as all other forms of race-based state action after Croson, for purposes of analysis under the Equal Protection Clause: subject to strict scrutiny upon a showing that the state‘s use of race to distinguish among citizens was deliberate, whether or not it can be said to have had a “benign” or “remidial” purpose. There are admittedly some problems with this reading, though, which the state defendants and their allies properly point out. We therefore analyze the relevant portions of the Court‘s opinion in some detail.
The whole thrust of the Court‘s description of the remanded claim is to locate it within post-Croson “color-blind” Equal Protection jurisprudence, in which strict scrutiny is triggered simply by the fact that legislation “classifies” citizens by race---whatever its asserted purpose, however its presumed benefits and burdens are cast, and whether the racial classification is overt or implicit. The Court begins with a textbook exposition of the basic premises and precepts of that jurisprudence: The “central purpose” of the Equal Protection Clause is “to prevent the States from purposefully discriminating between individuals on the basis of [their] race.” U.S. at ---, 113 S.Ct. at 2824. Laws that deliberately distinguish between citizens on the basis of their race are “odious to a free people whose institutions are founded upon the doctrine of equality,” because they “threaten to stigmatize individuals by reason of their membership in a racial group and to incite racial hostility.” Id. at ---, 113 S.Ct. at 2824 (internal quotations omitted).16 They must therefore be subject to
the strictest judicial scrutiny, even when claimed to have a “benign” or “remedial” purpose, for “[a]bsent searching judicial inquiry ..., there is simply no way of determining wh[ich] [racial] classifications are ‘benign’ or ‘remedial’ and wh[ich] are in fact motivated by illegitimate notions of racial inferiority or simple racial politics.” Id. at ---, 113 S.Ct. at 2824 (quoting Croson, 488 U.S. at 493, 109 S.Ct. at 721-22 (plurality)). This strict scrutiny applies not only to legislation that is overtly race-based---that is, that draws “explicit racial distinctions” on its face, as did the minority set-aside policy in Croson---but also to legislation that employs a classification which, though facially race-neutral, is shown to be ” ‘an obvious pretext for racial discrimination.’ ” Id. at ---, 113 S.Ct. at 2825. And one way to prove that a facially race-neutral law is in fact a pretext for racial discrimination is to show that it draws distinctions that are “unexplainable on grounds other than race.” Id. at ---, 113 S.Ct. at 2825.
The Court then turns to a discussion of how these principles apply in the context of electoral districting. Id. at ---, 113 S.Ct. at 2825-28. It begins by stating that “district lines obviously drawn for the purpose of separating voters by race require careful scrutiny under the Equal Protection Clause, regardless of the motivations underlying their adoption.” Id. at ---, 113 S.Ct. at 2826. It observes that it is normally difficult to prove that a single-member districting plan “purposefully distinguishes between voters on the basis of race,” because such plans “typically do[] not classify persons at all,” but “tracts of land, or addresses,” and there are many legitimate non-racial reasons why a legislature might choose to construct districts in a way that concentrated members of a particular racial group in one or more of them. Id. at ---, 113 S.Ct. at 2826. But it says there are a handful of “exceptional cases” in which proving that a redistricting plan “purposefully distinguishes between voters on the basis of race,” hence is subject to strict scrutiny, “will not be difficult at all“: those in which the plan contains district lines “so highly irregular” that they “rationally cannot be understood as anything other than an effort to ‘segregat[e] ... voters’ on the basis of race.” Id. at ---, 113 S.Ct. at 2826. Two examples of plans that fall into this category are given: the actual plan in Gomillion, in which “a tortured municipal boundary line was drawn to exclude black voters,” and a hypothetical plan that “concentrate[s] a dispersed minority population in a single district by disregarding traditional districting principles such as compactness, contiguity, and respect for political subdivisions.” Id. at ---, 113 S.Ct. at 2826-27. In such cases, the Court explains, the irregular shape of the districts serves as powerful circumstantial evidence that the legislature was in fact motivated by a racial purpose when it drew them. See id. at ---, 113 S.Ct. at 2827 (the legislature‘s failure to observe “traditional districting principles” is “objective” evidence that the districts were “gerrymandered on racial lines“); id. at ---, 113 S.Ct. at 2827 (” ‘dramatically irregular shapes may have sufficient probative force to call for an explanation’ “) (quoting Karcher v. Daggett, 462 U.S. 725, 755, 103 S.Ct. 2653, 2672, 77 L.Ed.2d 133 (1983) (Stevens, J., concurring)).17
We think it readily apparent from the Court‘s analysis that what it finds potentially offensive about the Plan under challenge here---from a constitutional standpoint---is not that it is aesthetically “ugly,” but that its drafters may deliberately, and unjustifiably, have taken race into account in assigning voters to particular districts. See --- U.S. at ---, 113 S.Ct. at 2832 (“race-based districting by our state legislatures,” like “[r]acial classifications of any sort,” must be subject to “close judicial scrutiny,” because it “reinforce[s] the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin,” and threatens to “balkanize us into competing racial factions“). The peculiar, “bizarre,” or “ugly” shapes of its districts has some significance in the constitutional analysis at this stage, but only as circumstantial evidence that the disproportionate concentration of members of a particular race in certain districts was something the line-drawers deliberately set about to accomplish, as opposed to being simply an accidental consequence of a line-drawing process driven by other districting concerns. See id. at ---, 113 S.Ct. at 2827.
The necessary implication of this analysis is that strict scrutiny of an electoral redistricting plan is now triggered by proof---by any means, including state concession, bizarre shape, or some combination of the various factors typically used to prove the “intent” element of an Equal Protection claim under Arlington Heights---that racial considerations played a “substantial” or “motivating” role in the line-drawing process, even if they were not the only factor that influenced that process. See Hays I, 839 F.Supp. at 1202 & n. 46 (majority op.); id. at 1216 (Walter, J., concurring); Jeffers, 847 F.Supp., at 671-72 (Eisele, J., concurring). This “race-a-motivating-factor” triggering test is necessarily met by proof that the plan‘s lines were deliberately drawn so as to create one or more districts in which a particular racial group is a majority, even if factors other than race are shown to have played a significant role in the precise location and shape of those districts. If the line-drawing process is shown to have been infected by such a deliberate racial purpose, strict scrutiny cannot be avoided simply by demonstrating that the shape and location of the districts can rationally be explained by reference to some districting principle other than race, for the intentional classification of voters by race, though perhaps disguised, is still likely to reflect the “impermissible racial stereotypes,” Shaw, --- U.S. at ---, 113 S.Ct. at 2827, “illegitimate notions of racial inferiority” and “simple racial politics,” id. at ---, 113 S.Ct. at 2824, that strict scrutiny is designed to “smoke out.” Croson, 488 U.S. at 493, 109 S.Ct. at 721 (plurality).18 This is the obvious implication of the Shaw majority‘s effort to import post-Croson Equal Protection principles into the electoral districting context, see Aleinikoff & Isaacharoff, supra, at 664-43, and it is the reading of Shaw most consistent with the views on Equal Protection expressed by the members of the Shaw majority in their various opinions in Wygant, Croson, and Metro Broadcasting.19 See also Johnson v. De Grandy, --- U.S. ---, ---, 114 S.Ct. 2647, 2664-67, 129 L.Ed.2d 775 (1994) (Kennedy, J., concurring in part and concurring in the judgment) (reading Shaw as applying “to the drawing of electoral and political boundaries” the Croson principle that “the sorting of persons with an intent to divide by reason of race raises the most serious constitutional questions,” triggering strict scrutiny under the Equal Protection Clause regardless of the race of those burdened or benefited by it, and therefore admonishing “state and federal officials with responsibilities related to redistricting, as well as reviewing courts, to recognize that explicit race-based districting ... must comply with the overriding demands of the Equal Protection Clause“). But, the state defendants and their allies fairly ask, if the Court intended the deliberate creation of majority-minority districts, standing alone, to trigger strict scrutiny, why did it not rest its remand simply on that ground, as it easily could have done here, given the state‘s concession? Why did it deliberately reserve the question whether the deliberate creation of majority-minority districts, without more, will always give rise to an Equal Protection claim, and write an opinion that can be read to confine strict scrutiny to cases in which the lines cannot rationally be explained on any ground other than race?
The question is by no means easily answered, but we think there must be an answer that does not undercut our previously-stated understanding of Shaw. Several can be ventured. First, a broad holding that strict scrutiny applies to any plan that deliberately creates majority-minority districts, even when those districts are not highly irregular, would have required the Court to overrule its earlier decision in UJO. By confining its discussion to bizarre-looking districts, the Court was able to distinguish UJO as involving a majority-minority district of relatively normal shape. See --- U.S. at ---, 113 S.Ct. at 2829. Second, the Court may have thought it unfair to hold the State of North Carolina, which had not yet even filed an answer in this action, to a concession it made in response to a Rule 12(b)(6) motion at a time when it had fair reason to believe that UJO, under which the concession would have made no difference, was still the controlling authority. Finally, the Court may have viewed the concession made by the state here as an aberration that was unlikely to occur in the vast majority of cases, and ignored it in order to announce a rule that would permit plaintiffs making comparable claims to prove the “intentional” use of race necessary to trigger strict scrutiny inferentially, when the state did not concede it. In any event, we have no need to identify the exact reason for this action by the Court; it suffices here simply to demonstrate that the
Before leaving this point, we also need, in fairness, to consider one other objection that the state and its allies raise to the reading of Shaw suggested by plaintiffs and their supporting intervenors: that it will require virtually all redistricting plans to be defended under strict scrutiny, since it is almost always possible to show that a legislature was aware to some degree of the racial impact of the lines it was drawing, particularly now that all redistricting is done with computers into which racial data is loaded. See Shaw, --- U.S. at ---, 113 S.Ct. at 2826 (“redistricting differs from other kinds of state decisionmaking in that the legislature always is aware of race when it draws district lines, just as it is aware of age, economic status, religious and political persuasion, and a variety of other demographic factors“) (emphasis in original).
We do not believe any such drastic consequence will result from our reading of Shaw. The Supreme Court‘s Equal Protection cases have long recognized that there is a critical distinction between “race-conscious” action and “race-based” action, and that the “intentional” use of race required to trigger strict scrutiny of legislative action cannot be established simply by showing that the legislature adopted a particular course of action with knowledge that it was likely to have a particular racial impact. See Personnel Adm‘r of Mass. v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 (1979) (the sort of strict scrutiny of a facially-neutral statute “implies more than intent as volition or intent as awareness of consequences“; it requires a showing “that the decisionmaker selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group“). The Shaw majority specifically stated that the “intentional” or “deliberate” use of race required to trigger strict scrutiny in the redistricting context, as elsewhere, means not just taking action with knowledge or awareness that it is likely to have a particular racial impact, but taking it with the specific intent to bring about such an impact. See Shaw, --- U.S. at ---, 113 S.Ct. at 2826 (noting that “the legislature always is aware of race when it draws district lines,” but that “[t]hat sort of race consciousness does not lead inevitably to impermissible race discrimination“) (emphasis in original). Properly applied, this distinction between “race-conscious” and “race-based” districting should prevent legislatures from having to defend all districting plans under the strict scrutiny standard.20
Nor will our reading of Shaw condemn to constitutional invalidity all majority-minority districts drawn to give effect to minority voting strength in order to comply with the requirements of the Voting Rights Act. As the cases involving affirmative action in higher education and public employment demonstrate, although strict scrutiny places significant limitations on the ability of state actors
With that in mind, we turn now to the problems of how, under Shaw, strict scrutiny is to be applied in the redistricting context.
D. Application of The Strict Scrutiny Standard in the Redistricting Context
Shaw holds that any deliberately race-based state redistricting plan is subject to “strict scrutiny” under the Equal Protection Clause, and that it can survive that scrutiny only if its use of race is both justified by a “compelling governmental interest” and “narrowly tailored” to further that interest. --- U.S. at ---, 113 S.Ct. at 2832. But while Shaw offers some brief suggestions about what this standard might require in the redistricting context, see id. at ---, 113 S.Ct. at 2830-32, it does not actually apply it to this particular redistricting plan. Nor has any other decision of the Supreme Court ever applied strict scrutiny under the Equal Protection Clause to specific electoral redistricting legislation. In seeking to understand how that is to be done here, we must look for guidance primarily to the Court‘s decisions applying the strict scrutiny standard to race-based remedial measures voluntarily undertaken by state actors in other contexts: higher education, employment, and government contracting. See Regents of the Univ. of Calif. v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986), and City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989).21
Here again, we confront the problem of transposing to the redistricting context a legal standard developed in very different factual contexts. There are difficulties---again emphasized by the parties’ conflicting contentions---arising from the fact that race-based electoral redistricting differs, in several critical respects, from the race-based remedial measures which the Court has previously analyzed under the strict scrutiny standard. First, and most critically, unlike the use of racial preferences in educational admissions, employment, and government contracting, the drawing of district lines so as to give effect to minority voting strength is specifically mandated by a federal statute enacted by Congress under its broad constitutional authority to remedy the effects of past discrimination.22 Second, unlike dis-
crimination in education, employment, and government contracting, the specific type of discrimination that race-based redistricting is designed to redress---denial of fair and effective representation---threatens the very legitimacy of our nation‘s political system. Third, unlike most other types of affirmative action, race-based redistricting is a remedy whose benefits inure, in large part, to individuals who have themselves been victims of the discriminatory practices that it is designed to dismantle. See Grofman, Would Vince Lombardi Have Been Right If He Said: “When It Comes to Redistricting, Race Isn‘t Everything, It‘s the Only Thing?“, 14 Cardozo L.Rev. 1237, 1246 & n. 40 (1993). Finally, as noted in our standing discussion, unlike the use of racial preferences in making admissions to medical school, deciding which employees to lay off, and awarding government contracts, the drawing of district lines so as to give effect to minority voting strength does not necessarily disadvantage members of other racial groups. So long as all citizens may vote, all individual votes receive the same weight, and no racial group‘s voting strength is unduly diluted by the resulting districting scheme, there is no unequal treatment as between affected groups. See Shaw, --- U.S. at ---, 113 S.Ct. at 2846 (Souter, J., dissenting); Bakke, 438 U.S. at 305, 98 S.Ct. at 2756 (Powell, J.) (noting that deliberate creation of majority-minority districts in order to give effect to existing minority voting strength “improve[s] the previously disadvantaged group‘s ability to participate without excluding individuals belonging to any other group from enjoyment of the relevant opportunity---meaningful participation in the electoral process“). As discussed more fully below, these differences give rise to several specific difficulties in transposing developed strict scrutiny principles to the context of remedial redistricting.
1. Burden of proof
The parties disagree at the outset about the allocation of the burden of proof at the strict scrutiny stage of the Equal Protection analysis. Although plaintiffs and their supporting intervenors concede that they have the burden of proving the Plan is a “racial gerrymander” subject to strict scrutiny, they
We think the state has the better of this argument. The Supreme Court repeatedly has emphasized that when members of a racial minority bring an Equal Protection challenge to a state law or policy, they bear the ultimate burden of persuasion throughout the proceeding. See, e.g., Batson v. Kentucky, 476 U.S. 79, 93-94 & n. 18, 106 S.Ct. 1712, 1721-22 & n. 18, 90 L.Ed.2d 69 (1986). The rule is no different for Equal Protection challenges to state laws or policies brought by members of the majority race. Cf. Croson, 488 U.S. at 494, 109 S.Ct. at 722 (plurality) (“the guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color“). In such a reverse-discrimination case, as in any other Equal Protection case, “[t]he ultimate burden remains with the [plaintiff] to demonstrate the unconstitutionality of [the] affirmative-action program.” Wygant, 476 U.S. at 277-78, 106 S.Ct. at 1848-49 (plurality); id. at 292, 106 S.Ct. at 1856-57 (O‘Connor, J., concurring in part and concurring in the judgment) (“in ‘reverse discrimination’ suits, as in any other suit, it is the plaintiffs who must bear the burden of demonstrating that their rights have been violated“). Proof that the challenged law or policy is race-based gives rise to a presumption that it is unconstitutional and shifts to the state the burden of “demonstrating” that its use of race was justified by a compelling governmental interest. Croson, 488 U.S. at 505, 109 S.Ct. at 728 (majority). But the burden thus shifted is one of production only, not persuasion: plaintiffs still “bear the ultimate burden of persuading the court that the [state‘s] evidence did not support an inference of prior discrimination and thus a remedial purpose, or that the [remedial action] instituted on the basis of this evidence was not sufficiently ‘narrowly tailored,’ ” and they can “establish a violation of their constitutional rights,” and thus prevail on their Equal Protection claim, “[o]nly by meeting this burden.” Wygant, 476 U.S. at 293, 106 S.Ct. at 1857 (O‘Connor, J., concurring).
Nothing in Shaw purports to alter these well-settled principles of Equal Protection jurisprudence. Nor do we read the passage in Hays I upon which plaintiffs and their supporting intervenors rely as holding that the state bears the burden of persuasion with respect to either prong of the strict scrutiny inquiry. While the Hays I court did remark that there was a rough “parallelism” between “the State‘s burden here of establishing the affirmative justification of a compelling state interest” and a “criminal defendant‘s burden---at common law---of establishing an affirmative defense,” 839 F.Supp. at 1206 (emphasis in original), it was very careful to point out that it was not using this analogy to make any point about the location of the burden of persuasion with respect to the presence or absence of such justification. Id. at 1206 n. 59. We therefore conclude that in a Shaw-like challenge to a race-based redistricting plan, as in any other sort of Equal Protection case, the state‘s burden at the strict scrutiny stage is producing evidence that the plan‘s use of race is narrowly tailored to further a compelling state interest, and that plaintiffs retain the ultimate burden of persuading the court either that the proffered justification is not compelling or that the Plan is not narrowly tailored to further it. See Wygant, 476 U.S. at 292-93, 106 S.Ct. at 1856-57 (O‘Connor, J., concurring).
2. Compelling State Interest
We next consider the circumstances in which a state might have a “compelling interest” in engaging in race-based redistricting to give effect to minority voting strength.
a. Compliance with the Voting Rights Act
We agree that a state may have a “compelling” interest in engaging in race-based redistricting in order to comply with the substantive requirements of the Voting Rights Act. The Supreme Court has long recognized that a state‘s interest in eradicating the effects of its own past or present racial discrimination is sufficiently “compelling” to support its undertaking of race-based remedial action. See Shaw, --- U.S. at ---, 113 S.Ct. at 2831; Croson, 488 U.S. at 491-93, 509-10, 109 S.Ct. at 720-22, 730 (plurality); id. at 518, 109 S.Ct. at 734-35 (Kennedy, J., concurring in part and concurring in the judgment); Wygant, 476 U.S. at 280-82, 106 S.Ct. at 1850-51 (plurality); id. at 286, 106 S.Ct. at 1853 (O‘Connor, J., concurring); Bakke, 438 U.S. at 307, 98 S.Ct. at 2757 (opinion of Powell, J.). The Court also has recognized that this interest extends to remedying past or present violations of federal statutes that are designed to eradicate such discrimination in particular aspects of life. See Croson, 488 U.S. at 500, 109 S.Ct. at 725 (majority) (“constitutional or statutory violation[s]“); Wygant, 476 U.S. at 274-75, 106 S.Ct. at 1847-48 (plurality) (Title VII); id. at 289, 106 S.Ct. at 1854-55 (O‘Connor, J., concurring) (“violation[s] of federal statutory or constitutional requirements“); Bakke, 438 U.S. at 307-09, 98 S.Ct. at 2757-58 (opinion of Powell, J.) (“constitutional or statutory violations“). Finally, the Court has made clear that a state need not await a judicial finding that it is guilty of past or present discrimination before embarking on a voluntary program of remedial action designed to eradicate that discrimination, so long as it has a “strong basis in evidence” for concluding that such remedial action is “necessary.” Croson, 488 U.S. at 500, 109 S.Ct. at 725 (majority); Wygant, 476 U.S. at 277, 106 S.Ct. at 1848-49 (plurality); id. at 286, 106 S.Ct. at 1853 (O‘Connor, J., concurring) (“a firm basis for believing that remedial action is required“).23 Indeed, the political branches of state government have an affirmative constitutional duty to take voluntary remedial action in the face of such evidence. See Wygant, 476 U.S. at 277, 106 S.Ct. at 1848-49 (plurality); id. at 291, 106 S.Ct. at 1856 (O‘Connor, J., concurring); Croson, 488 U.S. at 519, 109 S.Ct. at 735 (Kennedy, J., concurring).
Under these principles, we think it clear that a state has a “compelling” interest in engaging in race-based redistricting to give effect to minority voting strength whenever it has a “strong basis in evidence” for concluding that such action is “necessary” to prevent its electoral districting scheme from violating the Voting Rights Act. If a state‘s interest in remedying a violation of the anti-
Nothing in Shaw suggests that a state‘s interest in complying with the Voting Rights Act is not sufficiently “compelling” to justify its engaging in race-based redistricting. Indeed, the Shaw majority specifically confirms that the states “have a very strong interest in complying with [the Voting Rights Act],” at least to the extent it is “constitutionally valid as interpreted and as applied.” --- U.S. at ---, 113 S.Ct. at 2830. We do not believe any of the provisions of the Voting Rights Act to be constitutionally infirm, at least when they are applied in accordance with the Supreme Court‘s established interpretation of them. The Court has specifically upheld the § 5 preclearance requirement as a legitimate exercise of Congress’ power to enforce the Fifteenth Amendment, South Carolina v. Katzenbach, 383 U.S. 301, 334-35, 86 S.Ct. 803, 821-22, 15 L.Ed.2d 769 (1966); see City of Rome v. United States, 446 U.S. 156, 180-82, 100 S.Ct. 1548, 1563-64, 64 L.Ed.2d 119 (1980) (finding 1975 extension of § 5 constitutional on same ground), and it has rejected a claim that the “effect” prong of § 5 exceeds Congress’ power under the Fifteenth Amendment because it reaches conduct which may not itself have violated the Fifteenth Amendment. Id. at 185-87, 100 S.Ct. at 1565-67. The constitutionality of the “purpose” prongs of § 5 and § 2 cannot be doubted, since they merely reiterate the substantive standards imposed upon the states by the Fourteenth and Fifteenth Amendments themselves. See Chisom v. Roemer, 501 U.S. 380, 392-93, 111 S.Ct. 2354, 2362, 115 L.Ed.2d 348 (1991). And we think it clear that the “results” prong of amended § 2, as interpreted in Thornburg v. Gingles, is constitutional under the test set forth in South Carolina v. Katzenbach and City of Rome. See 446 U.S. at 177, 100 S.Ct. at 1561-62 (“under section 2 of the Fifteenth Amendment, Congress may prohibit practices that in and of themselves do not violate § 1 of the Amendment, so long as the prohibitions attacking racial discrimination in voting are ‘appropriate,’ as that term is defined in McCulloch v. Maryland [17 U.S. 316, 4 L.Ed. 579 (1819)] and Ex parte Virginia [100 U.S. 339, 25 L.Ed. 676 (1879)]“); see also Croson, 488 U.S. at 490, 109 S.Ct. at 720 (opinion of O‘Connor, J., joined by Rehnquist, C.J., and White, J) (“Congress ... has a specific constitutional mandate to enforce the dictates of the Fourteenth Amendment,” which “may at times also include the power to define situations which Congress determines threaten principles of equality and to adopt prophylactic rules to deal with those situations“) (emphasis in original).24 We therefore hold that a
state necessarily has a “compelling” interest in engaging in race-based redistricting whenever it has a firm basis for concluding that such action is necessary to bring its electoral districting scheme into compliance with the Voting Rights Act. Accord Hays I, 839 F.Supp. at 1217 (Walter, J., concurring).
As in other affirmative action contexts, a state need not await a judicial finding that its existing districting scheme (or a proposed revision thereof) actually violates the Voting Rights Act before it enacts a race-based redistricting plan designed to give effect to minority voting strength, so long as it has a “strong basis in evidence” for concluding that such action is “necessary” to avoid a violation of the Act. See Croson, 488 U.S. at 500, 109 S.Ct. at 725 (majority); Wygant, 476 U.S. at 277, 106 S.Ct. at 1848-49 (plurality); id. at 286, 106 S.Ct. at 1853 (O‘Connor, J., concurring). Nor must the state legislature make an explicit finding that the state‘s existing districting plan (or a proposed revision thereof) violates the Act before it draws one that deliberately gives greater effect to minority voting strength. See id. at 277-78, 10 S.Ct. at 1848-49 (plurality); id. at 289-90, 106 S.Ct. at 1854-55 (O‘Connor, J., concurring). Such a specific contemporaneous finding of discrimination is of course useful to a court, because it provides “a means by which it can be made absolutely certain that the governmental actor truly is attempting to remedy its own unlawful conduct when it adopts an affirmative action plan, rather than attempting to alleviate the wrongs suffered through general societal discrimination.” Id. at 289, 106 S.Ct. at 1854. But it is not essential; all that is required is evidence that the legislature “act[ed] on the basis of information which g[ave] [it] a sufficient basis for concluding that [such] remedial action [was] necessary.” Id. at 291, 106 S.Ct. at 1856.25 As Justice O‘Connor has explained, a rule that a state actor must make an explicit finding that it is guilty of illegal discrimination before it can take voluntary steps to remedy that discrimination “would severely undermine [the state‘s] incentive to meet voluntarily [its] civil rights obligations,” which would “clearly be at odds with [the] Court‘s and Congress’ consistent emphasis on the value of ... voluntary compliance” with the federal discrimination laws. Id. at 290, 106 S.Ct. at 1855 (internal citations omitted).
A state has a “strong basis in evidence” for concluding that it must engage in race-based redistricting in order to comply with the Voting Rights Act when it has information sufficient to support a prima facie showing that its failure to do so would violate the Act. See Croson, 488 U.S. at 500, 109 S.Ct. at 725 (majority) (evidence “approaching a prima facie case of a constitutional or statutory violation“); Wygant, 476 U.S. at 292, 106 S.Ct. at 1856-57 (O‘Connor, J., concurring) (“demonstrable evidence ... sufficient to support a prima facie Title VII claim by [the] minority“); see also Johnson v. Transportation Agency, 480 U.S. 616, 650-52, 107 S.Ct. 1442, 1461-63, 94 L.Ed.2d 615 (1987) (O‘Connor, J., concurring in the judgment) (evidence sufficient for a “Title VII prima facie case” by the relevant minority).26
There are at least two situations in which this might be the case, both of which are suggested by the state and its allies here.
The first is when the state has before it information sufficient to support a prima facie § 2 challenge to the existing districting plan by members of the relevant minority group. To make out a prima facie § 2 challenge to a single-member districting scheme, members of a protected racial minority must show three things: (i) that their population is “sufficiently large and geographically compact to constitute a majority” in more single-member districts than the number in which they have a majority under the challenged scheme; (ii) that they are “politically cohesive,” and (iii) that “the white majority votes sufficiently as a bloc to enable it ... usually to defeat the minority‘s preferred candidate” in districts that are not majority-minority. See Growe v. Emison, --- U.S. ---, ---, 113 S.Ct. 1075, 1084, 122 L.Ed.2d 388 (1993) (internal quotations omitted); Voinovich v. Quilter, --- U.S. ---, ---, 113 S.Ct. 1149, 1157, 122 L.Ed.2d 500 (1993).27 When a state legislature has before it information sufficient to permit it to conclude that the relevant minority group could make out such a prima facie § 2 challenge to the existing plan, then it has a “strong basis in evidence” for concluding that it needs to engage in race-based redistricting to comply with § 2, and it has necessarily established a compelling interest in doing so.28 See Hays
I, 839 F.Supp. at 1217 (Walter, J., concurring); see also Shaw, --- U.S. at ---, 113 S.Ct. at 2831 (evidence “approaching a prima facie case of a constitutional or statutory violation“); Wygant, 476 U.S. at 292, 106 S.Ct. at 1856-57 (O‘Connor, J., concurring) (evidence “sufficient to support a prima facie Title VII ... claim by [the] minority“); Johnson v. Transportation Agency, 480 U.S. 616, 650-52, 107 S.Ct. 1442, 1461-63, 94 L.Ed.2d 615 (1987) (O‘Connor, J., concurring in the judgment) (evidence sufficient for a “Title VII prima facie case” by the relevant minority).29
The second, which is a possibility only in jurisdictions subject to the preclearance requirements of § 5, is that a plan previously proposed by the state for the same round of redistricting has been denied preclearance on the ground that it fails to give sufficient effect to minority voting strength to satisfy § 5. Section 5 forbids a covered jurisdiction to put a redistricting plan into effect unless it proves, to the satisfaction of either the United States District Court for the District of Columbia or its surrogate, the United States Department of Justice, that the proposed plan had neither the “purpose ... [nor] the effect of denying or abridging the right to vote on account of race or color.”
Court has previously upheld the denial of preclearance to redistricting plans which, though non-retrogressive, have not been shown to be free from such a racially discriminatory purpose. See, e.g., Busbee v. Smith, 549 F.Supp. 494, 516 (D.D.C.1982) (three-judge court), aff‘d, 459 U.S. 1166, 103 S.Ct. 809, 74 L.Ed.2d 1010 (1983); see also City of Richmond, 422 U.S. at 372, 378-79, 95 S.Ct. at 2304-05, 2307-08.32
When an earlier version of a state‘s redistricting plan is denied preclearance by the United States District Court for the District of Columbia on the ground that it fails to satisfy either the “purpose” or “effect” prong of the § 5 test, the state obviously has a “strong basis in evidence” for concluding that the Voting Rights Act requires it to engage in race-based redistricting in order to remedy that problem. See Bakke, 438 U.S. at 307, 98 S.Ct. at 2757 (opinion of Powell, J.) (judicial finding of statutory violation sufficient to give state a compelling interest in taking race-based remedial action). The same is normally true when preclearance is denied by the Justice Department, which Congress has authorized to serve as a surrogate for the District Court in reviewing § 5 submissions. See id. at 305, 98 S.Ct. at 2756 (opinion of Powell, J.) (§ 5 objection by Justice Department is properly viewed as “an administrative finding of discrimination,” which is sufficient to give the state a compelling interest in taking race-based remedial action). Contrary to plaintiffs’ suggestion, the Equal Protection Clause does not require a state to challenge a Justice Department denial of preclearance in the United States District Court for the District of Columbia, and lose, before it may safely conclude that it has a compelling interest in adopting a new plan to address the concerns upon which the Department‘s denial of preclearance was based. Such a rule would indicate disrespect for the judgment of the Attorney General, who has been authorized by Congress to serve as a surrogate for the District Court in reviewing § 5 submissions. It would also be inconsistent with the general federal policy of encouraging the states to comply voluntarily with their obligations under the federal civil rights laws. See Wygant, 476 U.S. at 290-91, 106 S.Ct. at 1855-56 (O‘Connor, J., concurring). Finally, it would encourage needless litigation, which would undermine the central purpose of the § 5 preclearance requirement: to prevent jurisdictions whose electoral systems have been infected with official racial discrimination in the recent past33 from avoiding their consti-
Notes
As for racial appeals in political campaigns, another consideration under Gingles, the State asserted that “aside from the racial appeals attributed to Jesse Helms in 1990, the ACLU shows no evidence of them in the past decade since Gingles.” Id. at —. The State further disputed the ACLU‘s allegations concerning continued polarized voting in North Carolina, pointing to recent black electoral successes in “Wake, Durham, Cumberland, Guilford, Forsyth, Orange, etc.” counties, leading to a “dramatic” increase in the number of black elected officials between 1980 and 1990. Id. at —.
The State also rejected the contention that a second reasonably compact majority-minority district was feasible. In its Memorandum the State noted that ”Gingles requires that a district be geographically compact in order to satisfy one of the prongs of the initial test.” Id. at —. Citing Dillard v. Baldwin County Bd. of Educ., 686 F.Supp. 1459, 1466 (M.D.Ala.1988), the State argued that a district is not compact if it is so spread out or convoluted that there is no sense of community, or that its representatives and members could not efficiently stay in touch with each other or easily tell who lived in the district. Id. The State further asserted that a district is likewise not compact if it is “materially stranger in shape than some of the districts contained in the enacted plan.” Id. at — (quoting Jeffers v. Clinton, 730 F.Supp. 196, 207 (E.D.Ark.1989), aff‘d, 498 U.S. 1019, 111 S.Ct. 662, 112 L.Ed.2d 656 (1991)).
The State therefore asserted that all of the ACLU‘s proposals for a second majority-minority district failed the “compactness tests” described in Gingles, Dillard, and Jeffers. Id. The State also claimed that the creation of an additional majority-minority district would require “stitch[ing] together dozens of disconnected black concentrations,” and “snaking all over everywhere at the [census] block level.” Id. at —. The State specifically criticized a second majority-minority district proposed by Republican House Member David Balmer as “meander[ing] over 200 miles“; “so sprawling
I‘m not going to try to speak as a lawyer versed in congressional or any other kind of redistricting. Because I haven‘t even read the Gingles case and I don‘t know much about it.Stip.Ex. 200 at 924 (excerpt of Senate floor debates) (emphasis added). Another Senator echoed this sentiment:
. . . . . .
And I‘ll say this, also, that I want the black people of this State of have [sic] two congressmen in the United States Congress. I think they deserve it.
So, I just want to say I support this bill because I think so far as the blacks are concerned that yes, they deserve two black districts. After going through a 1990 race, they can see we still need to make some improvements in how our relationships are between our people. So I say to you, let‘s see how this works.Id. at 932 (emphasis added).
According to the rule adopted in Gingles, plaintiffs must show simply that members of a racial group tend to prefer the same candidates. There is no set standard defining how strong the correlation must be, and an inquiry into the cause for the correlation (to determine, for example, whether it might be the product of similar socioeconomic interests rather than some other factor related to race) is unnecessary.... As a result, Gingles’ requirement of proof of political cohesiveness, as practically applied, has proved little different from a working assumption that racial groups can be conceived of largely as political interest groups.
On remand, the district court permitted the Hays plaintiffs to amend their complaint to challenge the constitutionality of the revised plan, and then ruled that it too was unconstitutional under Shaw. Hays v. Louisiana, 862 F.Supp. 119 (W.D.La.1994) (Hays II). The court‘s brief opinion explaining this ruling stated that it continued to adhere to the interpretation of Shaw set forth in its Hays I opinion, notwithstanding the uncertainty about the validity of that interpretation after the Supreme Court‘s action, and that it was adopting by reference the constitutional analysis set forth in that earlier opinion. Id. at 121. Because Hays II does not reiterate that analysis in any detail, but simply incorporates by reference the discussion in Hays I, we continue to cite to Hays I here.
The majority‘s contention that majority-minority districts that guarantee only the opportunity for minority electoral success do not violateThat meeting—I could not figure out the purpose of that meeting once we got into it, because it was very obvious to me—that was the first time I met John Dunne, or whatever his name is. And it was very obvious to me that Mr. Dunne had already made his mind up, and why he dragged us to Washington I don‘t know.Deposition of Senator Dennis Winner at 17-19.
They talked about the Senate and the House plan—you know, out of an hour or two hour meeting maybe we spent five minutes on the legislative plans. Most of it had to do with the congressional plan. And Mr. Dunne did most of the talking—there was a little talking from the other staff, but he did most of the talking, and most of it got down to sort of that we ought to have a quota system with respect to minority seats. You had 22 percent blacks in this state. Therefore, you ought to have as close to that as you could have of congressional districts. That is really all I remember about it. . . . I think his substance was really that you had—if you had 22 percent blacks in North Carolina, then you ought to have 22 percent minority congressional seats. Whatever shape didn‘t matter.
In its most extreme form, a “racial gerrymander” may result in districts that actually “segregate” or “separate” the races for voting purposes---the sort of redistricting plan that the Shaw majority characterizes as “political apartheid.” Shaw, --- U.S. at ---, 113 S.Ct. at 2827. But it need not be this extreme to trigger strict scrutiny; neither Gomillion nor Wright---upon which the Shaw majority relies in reaching its conclusion that race-based redistricting plans are subject to strict scrutiny, and from which it draws the language about “segregating” voters by race---involved plans that completely separated the races for purposes of voting. See Gomillion, 364 U.S. at 341, 81 S.Ct. at 127 (redistricting plan removed from particular electoral district all but “four or five” out of 400 voters of a particular racial minority); Wright, 376 U.S. at 59, 84 S.Ct. at 606-07 (Douglas, J., dissenting) (redistricting plan resulted in “substantial, though not complete, segregation [of voters] by race“). The critical feature of a racial gerrymander is not that it completely separates the races for purposes of voting, but that it reflects the deliberate manipulation of district lines so as to accomplish a particular racial result. See Shaw, --- U.S. at ---, 113 S.Ct. at 2823 (describing a “racial gerrymander” as “the deliberate and arbitrary distortion of district boundaries ... for [racial] purposes“) (internal citations omitted).
As a three-judge panel in Maryland recently noted, political scientists and voting law scholars have proved that any group of voters—regardless of where they live—can be fit into one contiguous district. Marylanders for Fair Representation, Inc. v. Schaefer, 849 F.Supp. 1022, 1052 n. 38 (1994) (“‘If every name in the Manhattan phone book is randomly associated with one of ten districts, a map can be constructed that will place every voter in a literally contiguous district no matter which combination of names and districts are chosen. The resulting redistricting map would certainly look odd—in places, districts might be stretched thin as telephone wires—but it can be done, regardless of where the voters live‘“). The panel went on to conclude, rightly so, that “[o]n this view, Justice Brennan‘s requirement in Gingles that a minority group be compact enough to be placed in a contiguous remedial district would actually be no requirement at all.” Id.In all other situations, proof of the requisite intent will be difficult indeed, since redistricting legislation is almost always facially race-neutral and proving the intent of a collective body like a legislature, which is notoriously difficult in the best of circumstances, is even more difficult when it is engaged in the highly political “horse-trading” that marks the redistricting process. See Shaw, --- U.S. ---, 113 S.Ct. at 2826; see also Wright, 376 U.S. at 53-58, 84 S.Ct. at 603-06 (finding that plaintiffs failed to prove that legislature was motivated by racial considerations when it drew congressional redistricting plan in which members of particular racial and ethnic minorities were concentrated in a single district in numbers disproportionate to their representation in the population as a whole, where that concentration could be explained by reference to existing patterns of residential segregation).
The majority observes in a footnote that coverage underWe disagree. Even if Metro Broadcasting‘s holding that race-based affirmative action programs mandated by Congress are not subject to strict scrutiny survives the retirement of Justices Brennan and Marshall, we do not think it can properly be applied in this context. The racial preference policies at issue in Metro Broadcasting had been specifically approved, indeed mandated, by Congress, in their exact form: though the FCC had developed them on its own, Congress had thereafter specifically directed the FCC to maintain them. See 497 U.S. at 560, 563, 110 S.Ct. at 3006, 3008. We do not think a race-based redistricting plan enacted by a state can be said to carry the same imprimatur of congressional approval, even when it is done with the purpose of complying with the Voting Rights Act or the Justice Department‘s interpretation thereof. The Voting Rights Act itself does not command a state to adopt a particular redistricting plan; instead, it simply forbids it to adopt plans that have the purpose or effect of diluting the voting strength of certain protected minority groups. Nor does the Justice Department have statutory authority to order a state to adopt a particular redistricting plan. Of course, the Justice Department may, and frequently does, tell a state, in the course of the § 5 preclearance process, that it believes its redistricting plan must contain a certain number of majority-minority districts in order to comply with the Act. But such a statement cannot fairly be considered a mandate from Congress to enact a plan with that number of majority-minority districts, since Congress has specifically given the state the right to challenge the Justice Department‘s interpretation of the Act in the United States District Court for the District of Columbia. For these reasons, we believe that the Metro Broadcasting principle cannot be used to justify application of something less than strict scrutiny here.
This is not to say, however, that the fact that this particular race-based redistricting plan was enacted in response to a § 5 objection from the Justice Department has no relevance in the Equal Protection analysis. To the contrary, we think it has considerable relevance, in deciding whether the state has a compelling interest in creating majority-minority districts. See infra at 441-443.
The majority notes that Congress expressly authorized the Department of Justice to act as a “surrogate” for the United States District Court for the District of Columbia in approving redistricting legislation. See ante at 442. Such approval of course does not render redistricting legislation immune from subsequent judicial scrutiny, including invalidation. Section 5 of theJeffers v. Clinton, 847 F.Supp. 655, 662 (E.D. Ark. 1994).The peculiar shape of [plaintiff‘s proposed districts] is precisely due to the lack of the compact minority population required by Gingles.... The bottom line is that the black population in this area is simply too widely dispersed for us to hold that the Board [of Apportionment] has violated § 2 by refusing to draw the additional... districts which the plaintiffs have requested.
In any event, the majority‘s argument that the
The interpretation of § 5 suggested by plaintiffs, which would allow jurisdictions whose existing districting schemes were already unconstitutionally diluting minority voting strength to obtain preclearance of plans that deliberately perpetuated that constitutional wrong, so long as they did not make it worse, would undermine the central purpose of § 5, which was to break the cycle of “unremitting and ingenious defiance” of the constitutional guarantees of nondiscrimination in voting by covered states. See Katzenbach, 383 U.S. at 309, 86 S.Ct. at 808-09.
Of course, it is true that these values in isolation can be sacrificed by a legislature today with little fear of judicial intervention. But under Shaw, racial harmony is one value that may not be compromised free of strict (not scant) judicial scrutiny.b. Eradicating Effects of Past or Present Discrimination In North Carolina‘s Political Processes
The state and its allies also argue that a state may have a “compelling” interest in engaging in race-based redistricting to eradicate the effects of past or present racial discrimination in its political processes, even when it has no basis for believing that the Voting Rights Act requires it to do so. We agree.
The Supreme Court has recognized repeatedly that a state has a compelling interest in taking race-based affirmative action where it has a firm basis for concluding that such action is necessary to eradicate the effects of past or present racial discrimination within its own jurisdiction, even when it has no federal statutory mandate to do so. See, e.g., Croson, 488 U.S. at 491-93, 109 S.Ct. at 720-21 (opinion of O‘Connor, J., joined by Rehnquist, C.J., and White, J.); id. at 509, 109 S.Ct. at 730 (plurality); id. at 518, 109 S.Ct. at 734-35 (Kennedy, J., concurring); Wygant, 476 U.S. at 280-82, 106 S.Ct. at 1850-51 (plurality); id. at 286, 106 S.Ct. at 1853 (O‘Connor, J., concurring). Of course, generalized evidence that past “societal discrimination” has continuing effects within the state is not sufficient to trigger this compelling interest. See Croson, 488 U.S. at 504-06, 109 S.Ct. at 727-28 (majority); Wygant, 476 U.S. at 276, 106 S.Ct. at 1848 (plurality) (“Societal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy“); Bakke, 438 U.S. at 308-09, 98 S.Ct. at 2757-58 (Powell, J., concurring). Instead, the state must demonstrate that it had a “strong basis in evidence” for believing that race-based remedial action was “necessary” to remedy specific instances of racial discrimination, either public or private, within its own jurisdiction. Croson, 488 U.S.
Under these principles, we think it clear that a state may have a compelling interest in engaging in race-based redistricting to give effect to minority voting strength, even when it has no reason to believe that the Voting Rights Act requires it to do so, where it has a substantial basis in evidence for concluding that such action is necessary to eradicate the effects of identified past or present racial discrimination in its own political processes.35 Accord Hays I, 839 F.Supp. at 1215 (Walter, J., concurring). As a practical matter, a state defending a race-based redistricting plan against a Shaw-like challenge will seldom need to rely very heavily on this particular justification, for the evidence required to establish the existence of this compelling interest will normally be sufficient to demonstrate that the State had a firm basis for believing that race-based redistricting was required to avoid a potential § 2 violation, and thus that it had a compelling interest in taking such action to comply with the Voting Rights Act. But there may be cases in which a state will have a compelling interest in engaging in race-based redistricting to remedy identified instances of discrim-
ination in its own political processes, even when it has no firm basis for concluding that § 2 requires it to do so: for example, when it has a history of official racial discrimination in its electoral system, which has resulted in the virtual exclusion of members of a particular racial minority from participation in its political processes, but it knows that the creation of majority-minority districts is not required by the “effects” prong of § 5, because it has never had such districts before, and that the relevant minority group cannot show that § 2 requires the creation of any majority-minority districts, because it is too widely dispersed to constitute a majority in a single-member district that is “geographically compact” under Gingles. For that reason, we think it important to recognize this as an independent compelling interest that may justify race-based redistricting.
3. Narrowly Tailored
We turn, finally, to the question of how to determine whether a particular race-based redistricting plan, if supported by a compelling state interest, is “narrowly tailored” to the achievement of that interest. Shaw itself has very little to say about this aspect of the strict scrutiny analysis, except to indicate that a plan which deliberately creates majority-minority districts in order to comply with the Voting Rights Act would not be “narrowly tailored” to that goal if it “went beyond what was reasonably necessary to avoid” a violation of the Act. --- U.S. at ---, 113 S.Ct. at 2831. We therefore seek guidance in the Court‘s decisions applying the “narrowly tailored” standard to other types of race-based remedial measures.
The first factor requires the court to decide whether the state could have accomplished its compelling purpose just as well by some alternative means that was either completely race-neutral or made less extensive use of racial classifications. See Wygant, 476 U.S. at 280 n. 6 (plurality) (” ‘whether a nonracial approach or a more narrowly-tailored racial classification could promote the [compelling] interest about as well and at tolerable administrative expense’ “); Croson, 488 U.S. at 507, 109 S.Ct. at 729 (majority); see also Sheet Metal Workers, 478 U.S. at 486-87, 106 S.Ct. at 3055-56 (Powell, J., concurring); Paradise, 480 U.S. at 171-77, 107 S.Ct. at 1066-69 (plurality); id. at 188, 107 S.Ct. at 1075 (Powell, J., concurring); id. at 199-201, 107 S.Ct. at 1081-82 (O‘Connor, J., dissenting). A state that has a compelling interest in engaging in race-based redistricting to comply with the Voting Rights Act obviously has no completely race-neutral alternative means of accomplishing that end.37
Compare Croson, 488 U.S. at 510, 109 S.Ct. at 730-31 (plurality). In such a case, the primary inquiry with respect to this factor will therefore be whether the state could have complied with the Act by enacting a redistricting plan which, though race-based, made less extensive use of racial classifications than the one it chose.38 Because the “racial classification” at issue here is the use of race to assign voters to districts, we agree with the three-judge court in Hays I that inquiry here is properly confined to two questions: whether the plan creates more majority-minority districts than is reasonably necessary to comply with the Act, and whether the majority-minority districts it creates contain substantially larger concentrations of minority voters than is reasonably necessary to give minority voters a realistic opportunity to elect representatives of their choice in those districts. See Hays I, 839 F.Supp. at 1206-08 (majority); id. at 1218 (Walter, J., concurring).39
The second factor requires a court to determine whether the challenged plan imposes a “strict racial quota” designed “to achieve and maintain racial balance,” or simply a “flexible goal” to be used as a “benchmark” for gauging the success of the state‘s efforts to eliminate the particular discrimination in question. Sheet Metal Workers, 478 U.S. at 477-78, 106 S.Ct. at 3050-51 (plurality); see id. at 487-88 & n. 4, 106 S.Ct. at 3056-57 & n. 4 (Powell, J., concurring). As Justice O‘Connor has explained repeatedly, a rigid racial quota is constitutionally impermissible, even to further a compelling interest in remedying identified discrimination, because it rests upon the ” ‘completely unrealistic’ assumption” that members of various racial groups would be represented in particular positions “in lockstep proportion to their proportion in the [general] population,” were it not for unlawful discrimination. Croson, 488 U.S. at 507, 109 S.Ct. at 729 (majority); see Paradise, 480 U.S. at 197, 107 S.Ct. at 1080 (O‘Connor, J., dissenting). But race-based redistricting plans will seldom be invalid on this ground, for they do not impose the sort of “rigid racial quota” that the Court has previously found constitutionally infirm. Unlike the racial set-aside provisions invalidated in Bakke and Croson, a redistricting plan which creates a certain number of electoral districts in which members of a racial minority constitute a majority of the voting age population (or even of registered voters) does not guarantee members of that race a fixed percentage of the benefit ultimately at stake (here, membership in the relevant legislative body), for it does not prevent nonminority candidates for running for office in such districts, nor does it guarantee that they will not be elected from them.40 See De Grandy, --- U.S. at ---, 114 S.Ct. at 2665 (Kennedy, J., concurring in part and concurring in the judgment) (“The assumption that
The third factor asks whether the challenged affirmative action plan is a temporary measure with some built-in mechanism to prevent it from lasting longer than is reasonably necessary to eliminate the effects of the particular discrimination it is designed to redress. See Fullilove, 448 U.S. at 513, 100 S.Ct. at 2792-93 (Powell, J., concurring) (a “temporary” measure that “will not last longer than the discriminatory effects it is designed to eliminate“); Sheet Metal Workers, 478 U.S. at 479, 106 S.Ct. at 3051-52 (plurality) (a “temporary tool for remedying [identified] discrimination” that “will end as soon as it is no longer needed to remedy [that] discrimination“); id. at 487, 106 S.Ct. at 3056 (Powell, J., concurring) (“of limited duration“); Paradise, 480 U.S. at 178, 107 S.Ct. at 1070 (“temporary in application,” with a term “contingent upon the [state‘s] own conduct“); see also Croson, 488 U.S. at 498, 109 S.Ct. at 724 (plurality) (not “timeless in its ability to affect the future“). A race-based redistricting plan governing elections to the United States Congress or a state legislature will almost always satisfy this requirement: such plans are inherently temporary in nature, because the states are, as a practical matter, required to redraw them after each decennial census, in order to even out irregularities in district population caused by intervening demographic changes. See Karcher v. Daggett, 462 U.S. 725, 731, 103 S.Ct. 2653, 2658-59, 77 L.Ed.2d 133 (1983) (congressional redistricting); Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973) (districting for state legislature). When the state legislature undertakes this redistricting process after each census, it will of course be forced, by considerations of suits like this one, to re-evaluate the continued need for race-based redistricting in light of the electoral experiences under the prior plan. Compare Ravitch, supra, at *7 (provision in city charter that required appointments to city commission to be made on basis of race was not “narrowly tailored” to its compelling purpose in remedying past discrimination, because it “made no provision whatsoever for its termination” but was of “indefinite” duration).41
The fourth factor asks whether there is a reasonable relationship between the challenged plan‘s goal for minority repre-
sentation in the pool of individuals ultimately selected to receive the benefit in question (be it a government contract, a place in a medical school class, or a job) and the percentage of minorities in the relevant pool of eligible candidates. See Paradise, 480 U.S. at 187, 107 S.Ct. at 1074-75 (Powell, J., concurring) (such a goal must be directly related to “the percentage of minority group members in the relevant population or work force“); id. at 198-99, 107 S.Ct. at 1080-81 (O‘Connor, J., dissenting) (“of vital importance” that such a goal “not substantially exceed the percentage of [eligible] minority group members in the relevant population or work force“). In the redistricting context, we think this factor is satisfied so long as the percentage of majority-minority districts created by the plan—which, as indicated earlier, is best seen as a flexible goal for minority representation in the pool of individuals selected to receive the ultimate benefit of membership in the relevant legislative body—does not substantially exceed the percentage of minority voters in the jurisdiction as a whole. Cf. De Grandy, — U.S. at —, 114 S.Ct. at 2658 & n. 11 (endorsing this notion of “proportionality” between the number of majority-minority voting districts and the number of minorities in the relevant population group as a rough proxy for the equality of political and electoral opportunity that the Voting Rights Act guarantees); id. at —, 114 S.Ct. at 2664 (O‘Connor, J., concurring) (same).
The fifth and final factor asks whether the challenged plan “impose[s] an unacceptable burden on innocent third parties.” Paradise, 480 U.S. at 182, 107 S.Ct. at 1072 (plurality); see Fullilove, 448 U.S. at 514-15, 100 S.Ct. at 2793-94 (Powell, J., concurring). The Court has invalidated the use of racial preferences in selecting employees for layoff on this ground, because it “imposes the entire burden of achieving racial equality” on innocent individuals and causes “serious disruption” to their lives and “settled expectations.” Wygant, 476 U.S. at 283, 106 S.Ct. at 1851-52 (plurality). But the Court has held that an affirmative action plan may be “narrowly tailored” to its goal of remedying identified discrimination even though it requires innocent third parties to bear some of the burden of eradicating the effects of that discrimination. See Wygant, 476 U.S. at 280-81, 106 S.Ct. at 1850-51 (plurality) (“As part of this Nation‘s dedication to eradicating racial discrimination, innocent persons may be called upon to bear some of the burden of the remedy“); id. at 287, 106 S.Ct. at 1853-54 (O‘Connor, J., concurring) (an affirmative action program designed “to further a legitimate remedial purpose” is not constitutionally invalid because it forces “innocent individuals” to bear some of the burden of the remedy, so long as it “do[es] not impose disproportionate harm on the interests, or unnecessarily trammel the rights, of innocent individuals directly and adversely affected by [its] racial preference“); Fullilove, 448 U.S. at 484, 100 S.Ct. at 2777-78 (opinion of Burger, C.J.) (“such a sharing of the burden [of remedying the effects of past discrimination] by innocent parties is not impermissible“); id. at 514-15, 100 S.Ct. at 2793-94 (Powell, J., concurring); see also Croson, 488 U.S. at 509, 109 S.Ct. at 730 (plurality); id. at 518-19, 109 S.Ct. at 734-75 (Kennedy, J., concurring). The Court has specifically found affirmative action plans which burdened innocent individuals to some degree to be “narrowly tailored” to a compelling interest in remedying the effects of past discrimination, where those burdens were “relatively light” and “diffuse” ones that “foreclos[ed] only one of several opportunities” and did not result in “serious disruption” of their lives or “settled expectations.” See Fullilove, 448 U.S. at 484, 100 S.Ct. at 2777-78 (opinion of Burger, J.) (racial set-aside in government contracting); id. at 515, 100 S.Ct. at 2793-94 (Powell, J., concurring); Sheet Metal Workers, 478 U.S. at 479, 106 S.Ct. at 3051-52 (plurality) (racial goals in union membership); id at 488, 106 S.Ct. at 3056 (Powell, J., concurring); Paradise, 480 U.S. at 182-83, 107 S.Ct. at 1072-73 (plurality) (racial hiring and promotion goals in public employment); id. at 188-89, 107 S.Ct. at 1075-76 (Powell, J., concurring). See generally Wygant, 476 U.S. at 283, 106 S.Ct. at 1851-52 (plurality). In such cases, the “marginal unfairness” to innocent third parties is “outweigh[ed]” by the compelling interest in eradicating the effects of past or present discrimination. Id.; see Fullilove, 448 U.S. at 515, 100 S.Ct. at 2793-94 (Powell, J., concurring).
We agree with the district court in Hays I that a race-based redistricting plan imposes an unacceptable burden upon third parties, hence is not sufficiently “narrowly tailored” to survive constitutional muster, if it fails to comply with redistricting principles that are themselves constitutionally-mandated, like the “one person, one vote” standard and the prohibition against undue dilution of the voting strength of any identifiable group of voters. A plan which causes concrete and material harm to the voting rights of an identified group of persons in one of these two ways certainly imposes the sort of “unacceptable burden” on third party interests which cannot survive strict scrutiny, even when supported by a compelling state interest. But we cannot agree that a race-based redistricting plan imposes an unacceptable burden upon third parties simply because it deviates from traditional notions of geographical compactness, contiguity, and respect for the integrity of political subdivisions, which are not themselves constitutionally-mandated districting principles, to a greater degree than a federal court may think was necessary to accomplish the state‘s compelling purpose.
As the Supreme Court has emphasized time and again, there is no general constitutional requirement that the states design their redistricting plans to produce districts that are compact and contiguous and that maintain the integrity of political subdivisions. See, e.g., Gaffney v. Cummings, 412 U.S. 735, 752 n. 18, 93 S.Ct. at 2331 n. 18 (1973); White v. Weiser, 412 U.S. 783, 793-97, 93 S.Ct. at 2348, 2353-56 (1973); see also Cline v. Robb, 548 F.Supp. 128, 132-33 (E.D.Va.1982) (three-judge court); Cook v. Luckett, 735 F.2d 912, 920 (5th Cir.1984). Compactness, contiguity, and respect for political subdivisions are of course rational districting principles which the states may take into account in designing redistricting plans. See Reynolds v. Sims, 377 U.S. 533, 578, 84 S.Ct. at 1390 (1964); Mahan v. Howell, 410 U.S. 315, 320-30, 93 S.Ct. at 979, 983-88 (1973). But they are not constitutional imperatives, see Gaffney, 412 U.S. at 752 n. 18, 93 S.Ct. at 2331 n. 18 (“compactness or attractiveness has never been held to constitute an independent federal constitutional requirement” for state redistricting schemes), and the Court has repeatedly rejected claims that a state redistricting plan violates the Equal Protection Clause because it sacrifices these considerations in order to achieve other legitimate redistricting objectives, such as protecting incumbents, preserving the integrity of established neighborhoods, and recognizing the voting strength of various political parties.42
Nor do we believe that the Supreme Court will ultimately adopt a definition of “narrow tailoring” in the redistricting context that requires consideration of whether the challenged plan deviates from traditional notions of compactness, contiguity, and respect for political subdivisions to a greater degree than is necessary to accomplish the state‘s compelling purpose. As one set of commentators has suggested, such a rule would “confuse the purpose of Shaw‘s strict scrutiny standard,” which is not to ensure that the state creates wise or aesthetically-pleasing districts, but to ensure that it “is not covertly pursuing forbidden ends” when it draws district lines. Pildes & Niemi, supra, at 584-85. It would also make little sense from a practical standpoint, for several reasons.
In the first place, compactness, contiguity, and respect for political subdivisions have little inherent value in the districting process. The ultimate purpose of legislative apportionment and redistricting is to ensure ” fair and effective representation for all citizens.” Gaffney, 412 U.S. at 748, 93 S.Ct. at 2329 (quoting Reynolds, 377 U.S. at 565-66, 84 S.Ct. at 1383-84). Districts that are compact, contiguous, and respect existing political subdivisions have traditionally been thought to facilitate the realization of that goal, because they link together citizens who are likely to share common needs and interests, reduce the cost of campaigning, and make it easier for legislators to maintain close contact with their constituents. See Prosser v. Elections Bd., 793 F.Supp. 859, 863 (W.D.Wis.1992) (three-judge court). But, as plaintiffs’ own experts have testified, there is no consensus, nor even any empirical evidence, that adherence to these criteria is necessary to ensure fair and effective representation. See O‘Rourke testimony, Tr. pp. 274-75; Hofeller testimony, Tr. pp. 139-42; Niemi Dep. at 83; O‘Rourke Dep. at 89-93. As the Court explained in Reynolds, arguments that “geographic considerations” should receive primary emphasis in redistricting, while perhaps valid at one point in our history, are “unconvincing” today, because “[m]odern developments and improvements in transportation and communications” mean that small and compact legislative districts are no longer necessary to ensure that all citizens have access to their representatives. 377 U.S. at 580, 84 S.Ct. at 1391.45
Second, even if compactness, contiguity, and respect for political subdivisions had some inherent value, there is no “relatively simple and judicially manageable” standard, Davis v. Bandemer, 478 U.S. 109, 149, 106 S.Ct. 2797, 2819 (1986) (O‘Connor, J., concurring in the judgment), for determining whether a particular redistricting plan deviates from these principles to a greater extent than is necessary to accomplish the state‘s compelling interest.46 While it is easy enough to determine whether a district is technically “contiguous” or not, there is no principled means of determining whether a district which satisfies this threshold requirement is still less contiguous than it needs to be. Nor is there any principled means of determining whether a congressional redistricting plan, which must deviate from the boundaries of established political subdivisions to some extent in order to comply with the constitutional command that it create districts which are as nearly equal in population as is mathematically possible, see Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969); Karcher v. Daggett, 462 U.S. 725, 103 S.Ct. 2653, 77 L.Ed.2d 133 (1983), nonetheless fails adequately to respect the integrity of those political subdivisions. Finally, there is no generally-accepted definition of what it means for a district to be “compact.” See Pildes & Niemi, supra, at 540-59. While plaintiffs’ experts and others have suggested a number of different ways in which district compactness can be measured mathematically, see Hofeller testimony, Tr. pp. 118-20; O‘Rourke testimony, Tr. pp. 212-14; see also Karcher, 462 U.S. at 756-57 n. 19, 103 S.Ct. at 2673-74 n. 19 (Stevens, J., concurring); R. Niemi, B. Grofman, C. Carlucci, & T. Hofeller, Measuring Compactness and the Role of a Compactness Standard in a Test for Partisan and Racial Gerrymandering, 52 J. Pol. 1155 (1990); Pildes & Niemi, supra, at 553-59, there is admittedly no consensus as to which of these is most valid. See B. Grofman, Criteria for Districting: A Social Science Perspective, 33 UCLA L.Rev. 77, 85 (1985) (“There are many different ways of applying a compactness requirement but
Finally, and most critically, the “narrowly tailored” inquiry suggested by plaintiffs would result in undue interference by the federal judiciary in matters that have long been thought to be the primary province of the state legislatures. From its earliest ventures into the “political thicket” of legislative reapportionment, Colegrove v. Green, 328 U.S. 549, 556, 66 S.Ct. 1198, 1201, 90 L.Ed. 1432 (1946) (opinion of Frankfurter, J.), the Supreme Court has hewed fast to the view that the task of redistricting is fundamentally a political one for the state legislatures, see Reynolds v. Sims, 377 U.S. at 586, 84 S.Ct. at 1394; Burns v. Richardson, 384 U.S. 73, 84-85, 92, 86 S.Ct. 1286, 1292-93, 1296-97, 16 L.Ed.2d 376 (1966); Gaffney v. Cummings, 412 U.S. at 749, 93 S.Ct. at 2329-30; Mahan v. Howell, 410 U.S. at 327, 93 S.Ct. at 986; White v. Weiser, 412 U.S. at 794-95, 93 S.Ct. at 2354-55; Wise v. Lipscomb, 437 U.S. 535, 539-40, 98 S.Ct. 2493, 2496-97 (1978), into which the unelected federal judiciary should not intrude any more than is absolutely necessary to protect constitutional rights. White, 412 U.S. at 795, 93 S.Ct. at 2354-55. This “hands off” approach is not some accident of history, but a deliberate recognition of the fact that the process of redistricting “is fundamentally a political affair,” Bandemer, 478 U.S. at 145, 106 S.Ct. at 2817 (O‘Connor, J., concurring), and that the state legislatures, as the very “fountainhead of representative government in this country,” Reynolds, 377 U.S. at 564, 84 S.Ct. at 1384, are the organs of government best situated to identify and strike an appropriate balance between the many different—and often conflicting—considerations that are at stake in it. Connor v. Finch, 431 U.S. 407, 414-15, 97 S.Ct. 1828, 1833-34, 52 L.Ed.2d 465 (1977); see Growe v. Emison, — U.S. at —, 113 S.Ct. at 1081 (“[R]eapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court“) (internal quotations omitted); Voinovich v. Quilter, — U.S. at —, 113 S.Ct. at 1157 (“Because the States do not derive their reapportionment authority from the Voting Rights Act, but rather from independent provisions of state and federal law, the federal courts are bound to respect the States’ apportionment choices unless those choices contravene federal requirements.“) (internal quotations omitted).48 The “narrowly tailored” analysis suggested by plaintiffs, which would force the federal courts “to attempt to recreate the complex process of legislative apportionment
It is one thing to tell the states that the Voting Rights Act does not give them license to engage in race-based redistricting, even with the “benign” purpose of giving effect to minority voting strength, unless they have a substantial basis for believing that such remedial action is required to comply with the Act; and that they must take care, even then, not to take race into account in drawing district lines any more than is reasonably necessary to provide minority voters the “equal political opportunity,” De Grandy, — U.S. at —, 114 S.Ct. at 2658 that the Voting Rights Act requires. That is the fundamental point of Shaw, and it is a point well worth making, if this nation is ever to attain the goal that the Voting Rights Act itself was designed to bring about—that is, to overcome its long history of racial discrimination in electoral politics and transform its political system into one in which the color of an individual‘s skin has no bearing on his ability to participate effectively in the political process. But it is another thing entirely to tell a state which does have a substantial basis for concluding that it must engage in race-based redistricting to comply with the Voting Rights Act that it can do so only if it draws districts whose lines are sufficiently “regular” or “pleasing” in their appearance to satisfy the aesthetic sensibilities of a handful of unelected federal judges. Shaw itself holds no such thing, and we do not believe its reasoning compels us to do so here.
For all these reasons, we cannot agree with the Hays I court that a race-based redistricting plan enacted to further a compelling state interest in complying with the Voting Rights Act imposes an unacceptable burden upon innocent third parties, hence is not sufficiently “narrowly tailored” to survive constitutional muster, simply because it deviates from traditional notions of geographical compactness, contiguity, and respect for the integrity of political subdivisions to a greater degree than a federal court later concludes was necessary to accomplish the state‘s compelling purpose. Instead, we believe that such a plan imposes an undue burden on innocent third parties only if it fails to give equal weight to the votes of all individuals, see Reynolds, unconstitutionally dilutes the voting strength of any identified group of voters, see Whitcomb, Bandemer, or is not grounded in rational districting principles which ensure that all citizens receive “fair and effective representation,” see Reynolds, 377 U.S. at 568, 84 S.Ct. at 1385. So long as the plan stays within these basic constitutional boundaries, it “unsettles no legitimate, firmly-rooted expectation” on the part of any voter, Johnson v. Transportation Agency, 480 U.S. 616, 638, 107 S.Ct. 1442, 1455, 94 L.Ed.2d 615 (1987), including the nonminority voters it places in majority-minority districts, for no voter has a legitimate right to expect that he will be placed in a district in which he is part of the majority or that his preferred candidate will win, see Whitcomb, 403 U.S. at 149, 154, 91 S.Ct. at 1872, 1875-76; UJO, 430 U.S. at 166, 97 S.Ct. at 1010, nor does he have a legitimate right to expect that his district will have a certain shape, see infra n. 60.50
III. Findings of Fact51
A. General Background
The Legislative Setting
As the General Assembly of North Carolina went about the task of congressional redistricting required by the 1990 decennial
First off, population growth had produced a new seat to work into the ultimate plan, hence a need to divide the state geographically into twelve districts rather than the former eleven. Stip. 19. The legislature could not, therefore, start with the then-existing congressional districts and adjust them only as required by the one-person-one-vote principle coupled with the eternal problems of incumbency protection and raw partisan politics.52 As plaintiff-intervenor‘s expert witness testified, gaining a new (or losing an existing) seat always creates its own “turbulence” in the redistricting process. Hofeller testimony, Tr. pp. 135-36.
Next, new developments in the way that census data was organized geographically, both by the U.S. Bureau of Census and by state legislative staff, coupled with new computer technology for processing and using that data in redistricting, had created new capabilities for rapid, accurate consideration and adjustments of proposed plans, and for line-drawing not so bound, as formerly, to existing political boundaries.
Without attempting a full description of these interrelated technical developments, the dramatic new capabilities they provided for the redistricting process can be summarized. In the first place, the critical redistricting data—total population, voting age population by race or national origin, voter registration by party and race—was now made available by the Census Bureau and state legislative staff not only at traditional governmental levels down to townships and precincts, but even further down to the level of the “census block,” a geographical unit usually smaller than precincts. Incorporated into a newly acquired computer software program along with digital map files, these allowed the rapid call-up and visual display on computer terminals of critical demographic and statistical data down to the census block level, along with geographic features—highways, streets, rivers, railroads—and political boundaries, including the 1980‘s congressional district lines, throughout the state. And, in a further refinement developed by legislative staff, precinct election results in a number of recent statewide elections were included in the computer database, making available at the precinct level partisan voting patterns that might affect particular candidacies in potential districts. The capability thus provided to call up demographic and statistical data and on its basis to make district line adjustments at this geographic level had therefore significantly increased the flexibility of the redistricting process, freeing up the planners from their former confinement to existing political boundaries in attempting to “get the numbers right,” whether for basic one-person-one-vote purposes, incumbency protection, or for other purposes. Around 229,000 of these census blocks, with their associated demographic and statistical data, were now newly available for use as basic building blocks in the redistricting process. This not only made possible a new degree of refinement in getting the numbers right (including the rather incredible achievement of mathematically perfect equal population districts), it also encouraged the drawing of boundary lines with more obvious irregularities and facial oddities than typically occurred under the less sophisticated methodology formerly available. For the new capability made it more possible than formerly it had been for the planners to yield to specific importunings for special treatment of narrowly confined local situations (such as incumbent residency) or to shift quite small numbers of desired types of voters (whether by party affiliation or race) in drawing district lines. And because the census block boundaries were either visible physical features or existing governmental unit lines, it was now possible to use them as boundary-defining portions of a district and thereby to split governmental units down to the precinct level between districts when the demands of numbers, or incumbency protection, or partisan political advantage were thought to require it. Stip. 29-33; Cohen testimony, Tr. pp. 283-86, 289-98, 412-13; Cohen Dep. 96-
A third factor heavily influencing the redistricting process was a recently developed perception by the Republican Party of North Carolina and members of that Party in the General Assembly, freely conceded in this litigation, that it and they could derive partisan political advantage from the creation of as many majority-minority districts as arguably could be justified by the requirements of federal voting rights law. Pope testimony, Tr. pp. 1046; Hawke Dep. pp. 15, 18-19; Farr closing arg. Tr. p. 15. This perception, and Republican legislator action upon it, gave rise to powerful political cross-currents and unusual political alignments that figured critically in the redistricting process and that in turn bear significantly upon the issues in this case.
The bicameral state legislature that developed and enacted the challenged plan was heavily white by race, Democratic by party. In the Senate there were 36 Democrats, 14 Republicans; in the House, 81 Democrats, 39 Republicans. By race, the Senate had 45 white members, 5 African-American members; the House, 105 white members, 14 African-American members and one Native American member. Stips. 10-16. Congressional redistricting (unlike that for state legislative seats) was carried out as a shared responsibility of both houses. Bipartisan and bi-racial congressional redistricting committees were appointed for both Senate and House, that in the Senate being a sub-committee of a general redistricting committee chaired by Senator Dennis J. Winner. Senator Russell G. Walker was chairman of the Senate sub-committee, and Representatives Milton “Toby” Fitch, R. Samuel Hunt, III and Edward C. Bowen were co-chairmen of the House Committee. All of these but Fitch, an African-American, were white, and all were Democrats. Stips. 24-27. They, together with House Speaker Dan Blue, an African-American, and Senator Dennis Winner, who was white, constituted what came to be the generally recognized “Democratic leadership” in devising the congressional redistricting plan now challenged. Cohen testimony, Tr. pp. 308; Fitch testimony, Tr. pp. 661-663.
This “Democratic leadership” group, acting through the Senate and House redistricting committees, effectively directed the process that led ultimately to enactment of the challenged plan. Their decisions from time to time as the plan evolved were implemented at the mechanical, “line-drawing” level by the Director of the Bill Drafting Division of the General Assembly, Gerry Cohen, to whom that responsibility had been delegated. Using the computer resources above described, Cohen took his instructions from this group and translated them into district configurations that were then submitted for consideration to the redistricting committees and ultimately to the floors of the House and Senate for vote.53 Cohen testimony, Tr. pp. 359, 379-80.
Basic Geographic and Demographic Features Affecting the Statewide Congressional Redistricting Process
Certain basic geographic and demographic features of the State—knowledge of whose essentials by the General Assembly we must assume—provided essential background for the statewide congressional redistricting process.
North Carolina has three distinctive geographic regions, each with its equally distinctive history, culture, and economy: the Mountain region, the Piedmont region, and the Coastal Plain region.
The Coastal Plain, extending inland from the Atlantic coast roughly to the geologic fall line, historically has been and remains essentially rural and agricultural. It has no city with a population of 100,000 or more, and though it has a number of smaller cities such as Rocky Mount, Wilson, Goldsboro, Kinston, New Bern, Fayetteville and Wilmington, it is not as a region heavily populated. The Mountain region, running generally westward from the front range of the Appalachians to the Tennessee line, is also predominantly rural and sparsely populated, with only one city, Asheville, of any size.
The Piedmont, the foothill region lying between the fall line and the front range of the mountains, is by far the most heavily populated of the three regions. As of 1990, it contained 54.7% of the state‘s population, all five of the State‘s cities with populations greater than 100,000, and 47 of its 84 smaller cities and towns with populations greater than 5,000. Stuart Rpt., Fig. 1; id. pp. 15, 23-24. Within the Piedmont region, the “Piedmont Urban Crescent” constitutes a long-recognized distinctive subregion. Stip. Exs. 44-47. Extending through eleven counties in a general arc from Wake County at its eastern end southwestwardly to Gaston County at its western, it includes the State‘s five largest cities, Raleigh, Durham, Greensboro, Winston-Salem and Charlotte. Stip. Ex. 47. Substantially industrialized, predominantly urban, and containing most of the State‘s institutions of higher learning (including its three largest), it is rightly described as “the urban, economic and cultural heart and soul of the State.” Goldfield Dep.Ex. 1, p. 2.
Of great significance to the issues in this case is the location within the state of the 22% of its population that is African-American. While African-American citizens reside in every region of the State, they are by no means evenly dispersed throughout any, nor throughout the whole state. Instead, there are major, discrete concentrations of African-American population throughout the state, the most significant ones of which, reflecting historical forces dating from slavery, are in the Coastal Plain and the Piedmont. Within the Coastal Plain, there remains a large, dense concentration (50% or above of census tract total populations), long in place, in the heavily rural, agricultural northeast; and smaller dense concentrations, also long in place, in other rural areas further south in the region and in the historic “black sections” of the country towns that are scattered across this agricultural region. Within the Piedmont, there are dense concentrations in the historic “black sections” of the state‘s five largest cities and of the other smaller cities—Burlington, High Point, Thomasville, Lexington, Salisbury, Statesville, and Gastonia—that are scattered across the Piedmont Urban Crescent, with no significant concentration in the rural areas between those cities. D.Ex. 415; Goldfield Dep.Ex. 1, pp. 8-11.
B. The Legislative Redistricting Process as Revealing of Legislative Intent and Purpose54
Before developing any specific redistricting proposals, the House and Senate redistrict-
In mid-April, 1991, the committees jointly adopted written standards to guide the congressional redistricting process. These included compliance with one-person-one-vote requirements, the federal Voting Rights Act, the Fourteenth and Fifteenth Amendments, and
As these adopted criteria indicate, the committees were well aware that one of their principal considerations must be compliance with provisions of the Voting Rights Act and the federal constitution that protect racial minorities in matters of redistricting. To give special guidance in this area, the General Assembly had, in fact, employed special legal counsel experienced in voting rights litigation, who worked closely throughout with those directing the redistricting process. L. Winner Dep. pp. 38-39.
In the early stages of their deliberations, there was division within the councils of the Democratic leadership as to whether any majority-minority congressional districts need, and should, be drawn. There was sentiment within the Senate leadership group that none should be drawn, in the main because it would benefit the Republican Party. D. Winner Dep. pp. 13-15; Fitch testimony, Tr. pp. 665. There was opposing sentiment in the House committee that two could, and must under the Voting Rights Act, be drawn. And on the Republican side, there was a concerted move to encourage the drawing of two. Stips. 49, 54, 61; Cohen testimony, Tr. p. 461.
In the end, the Democratic leadership group came to the conclusion, presumably driven in part by the advice of legal counsel, that at least one such district must be included in the plan. Fitch testimony, Tr. pp. 665, 670-671. To this end, the redistricting committee chairmen then prepared a number of “base plans” which, beginning in May 1991, were presented to these committees, at a public hearing, and finally on the House and Senate floors. All included one majority-minority district centered on the large rural area of proportionately dense African-American population in the northeastern portion of the Coastal Plain, with an arm extending westwardly to include an African-American population concentration in the inner-city of Durham, on the eastern end of the “Piedmont Urban Crescent,” and another arm extending southwardly into the center of the Coastal Plain. Stip.Ex. 10, pp. 44-49. At the same time that these committee base plans were being considered, several Republican-sponsored alternative plans with two majority-minority districts were also being considered. In each of these plans, one of those majority-minority districts was located in the same area as the one included in all the committee-proposed base plans—in the northeastern and central portion of the Coastal Plain. Location of the second such district varied among the Republican plans, but the one receiving most support was that in the “Balmer Congressional 6.2” plan, which ran from downtown Charlotte at the western end of the Piedmont Urban Crescent southeastwardly approximately 200 miles through all or portions of a number of rural
In any event, all of the Republican-sponsored two-majority-minority-district plans which went to floor vote were rejected on party-line votes, with all the African-American legislators voting against them. The plan eventually enacted, in mid-summer 1991, as Chapter 601 of the 1991 Session Laws, was a conference committee modification of the redistricting committees’ several base plans which included the single majority-minority district centered in the rural northeast and central portions of the Coastal Plain with an arm extending westward into the inner-city precincts of Durham. Stip.Ex. 10, pp. 44-49. This plan was supported by an overwhelming majority of the Democratic legislators, including all the African-American legislators. Stips. 55-60, 62-63. Stip. Exs. 17-18.
In submitting Chapter 601‘s redistricting plan for preclearance by the Attorney General under
Following up on the State‘s written submission, members of the Democratic leadership group, Speaker Dan Blue, Senator Dennis Winner and Representative Toby Fitch, met with U.S. Department of Justice officials on two occasions, in September and December, 1991, to press for preclearance. Stips. 70, 71. All members of this delegation urged that preclearance was warranted under
On December 18, 1991, the Attorney General objected to and refused to preclear the congressional redistricting plan enacted as Chapter 601 (as well as the State‘s House and Senate redistricting plans), finding that the state had not met its burden, under
The Attorney General‘s contemporaneous objection to and refusal to preclear the State‘s House and Senate redistricting plans also emphasized a belief that the legislature intentionally had acted to protect white incumbent interests by improperly minimizing minority voting strength in a number of identified instances. Stip. 72; Stip.Ex. 27.
The Attorney General‘s refusal to preclear the congressional redistricting plan in Chapter 601 presented the legislature with a difficult decision. It could yield to the official objection and enact a new plan with two majority-minority districts, or it could seek a declaratory judgment from the United States District Court for the District of Columbia preclearing Chapter 601. Stip.Ex. 21. On this difficult issue, powerful conflicting views were brought to bear both from within the legislature and from without. From outside, several of the incumbent Democratic Congressmen who feared any revisions of their present districts encouraged the State to litigate, Stip.Ex. 20, while the Republican congressional delegation, which welcomed the prospect of such revisions, actively discouraged it. Stip. 73; Stip.Ex. 200, pp. 594-596. Within legislative ranks, there were comparable conflicting views, from a variety of motives. The Democratic leadership was not as one on the matter. While its members had come together, despite some private misgivings, to support preclearance of the Chapter 601 single majority-minority district plan, those misgivings now led them to be of different minds about the proper course of action now that preclearance had been denied. Some, believing that the Justice Department itself was simply trying to further partisan Republican interests by requiring two remedial districts, favored litigating the issue. Cohen testimony, Tr. pp. 321-322. Others, who had favored two districts all along as simply the right thing to do, but had been willing to compromise on one to achieve party consensus, now urged yielding to the Attorney General‘s objection. Fitch testimony, Tr. pp. 674-675.
In the end, the decision was made not to challenge by litigation the Attorney General‘s refusal to preclear. Various factors, reflecting various viewpoints shared by different groups of legislators, dictated the decision. A principal one was the sheer expense and uncertainty of seeking preclearance by litigation, carrying as it would the unavoidable twin risks that the State‘s declaratory judgment action might fail, and that even if it succeeded, it might only result in the State‘s then being faced with further litigation in the form of an action by minority voters challenging the now-precleared Plan under
Inevitably, a variety of individual and group views and motives lay behind the General Assembly‘s decision to forego declaratory judgment litigation and proceed to enact a congressional redistricting plan that deliberately would include two majority-minority districts. There was some patently honest sentiment, among both white and African-
Beyond any question, however, the dominant concern driving the decision not to challenge the denial of preclearance in court was a perception that—contrary to the position taken by the Democratic leadership at the time the Chapter 601 plan was enacted (and the position advanced by the state in its efforts to obtain preclearance for it)—the Chapter 601 plan, and any other congressional redistricting plan which did not contain at least two majority-minority districts, would in fact violate the Voting Rights Act (or be so likely to violate the Act that in prudence it must be assumed to do so). The General Assembly that decided to abandon Chapter 601 and enact Chapter 7 in its stead was without doubt aware of the circumstances under which a congressional redistricting plan could be found to violate the Voting Rights Act. This was, after all, a General Assembly with powerful, recent institutional and individual memories of the Act‘s rigor in redistricting matters. Well over half the members of the 1991 General Assembly had been members of the 1986 General Assembly, which had been required by a federal court in the Gingles litigation to create 8 State House and Senate majority-minority districts in order to remedy violations of amended
The General Assembly that enacted Chapter 7 was also specifically aware—from evidence presented to it by the Republican Party, the ACLU, and others; from advice received from the Justice Department and its own redistricting experts; and from its members’ own personal knowledge of North Carolina politics—that conditions in North Carolina were such that the African-American minority could very likely make out a prima facie
The validity of this general perception by the legislature (or at least its leadership) that the African-American minority could make out a prima facie
In addition, the General Assembly that enacted Chapter 7 was obviously specifically aware that the Justice Department had denied preclearance to its predecessor, the Chapter 601 plan, on the express ground that it failed to satisfy the “purpose” prong of
A final factor may well have tipped the decision of the Democratic leadership to accept the Attorney General‘s refusal to preclear the Chapter 601 plan and enact an alternative plan that would address the Attorney General‘s concerns by creating two majority-minority districts. It concerned the location of the additional remedial district that would have to be provided in such a plan. All the Republican-sponsored two majority-minority district plans that had been formally proposed during the 1991 Session and were again being proposed located that second district in areas decidedly unfavorable to Democratic interests. Particularly unfavorable was the one specifically suggested by the Attorney General, the Charlotte-to Wilmington district of the “Balmer Congressional 6.2” plan. Such a district would take critical areas of the then Seventh District of Democratic Congressman Rose and the Eighth District of Democratic Congressman Hefner and threaten their seats. Stip.Ex. 10, pp. 27-37. Furthermore, it was disfavored by African-American legislators who believed—with good reason—that the African-American and Native-American voting populations whose aggregation was required to yield an effective voting majority in the proposed district were not in fact politically cohesive. Cohen testimony, Tr. pp. 380-81, 385-86. Concern about the location of the additional district therefore was a significant factor in the Democratic leadership‘s debate over whether to yield to the Attorney General‘s refusal to preclear their single remedial district plan.
During the critical period of this debate, an alternative location that favored rather than disfavored partisan Democratic interests surfaced. Ironically, it had been first suggested in a plan proposed by Republican Representative Balmer to the House Redistricting Committee co-chairmen back during the 1991 regular session. Never formally considered at that time, but made a part of the legislative record by Balmer as “Balmer Congress 8.1,” it located a second remedial district in a narrow band running through the Piedmont
This idea of locating the second remedial district entirely within the Piedmont Crescent was picked up at some point during the interval by Democratic Representative Hardaway. He included a slight variant of the Balmer 8.1 districts along with a variant of the Chapter 601 First District in a plan, “Optimum Congressional II-Zero,” which he submitted for committee consideration in its ongoing debate. Stip.Ex. 10, p. 60-65. Once revealed, the basic design of the Hardaway plan attracted immediate support among the Democratic leadership group, incumbent Democratic congressmen threatened by the Charlotte-to-Wilmington district, and civil rights organizations. A modified version containing variants of both districts in the plan quickly emerged as the result of consultations among aides to incumbent congressmen and members of the redistricting committees. Endorsed by the National Committee for an Effective Congress and the North Carolina NAACP, this modified plan, now popularly referred to as the “Merritt Plan” (for John Merritt, a political ally of Congressman Rose who had worked extensively on it) or the “Peeler Plan” (for Mary Peeler, Executive Director of the North Carolina NAACP), it was formally proposed by Ms. Peeler at a public hearing conducted by the redistricting committee on January 8, 1992. Stip. 85, Cohen testimony, Tr. pp. 324-29; Stip.Ex. 10, pp. 60-65.
For the Democratic leadership, this Merritt/Peeler Plan had two great virtues which figured significantly in the decision to enact a plan with two remedial districts rather than challenge the denial of preclearance in court.
First, this plan perfectly trumped the Republican-favored plan with its Charlotte-to-Wilmington district which would effectively have packed the bulk of the state‘s heavily Democratic African-American vote into two Congressional districts located in already Democratic-leaning areas. In direct contrast, locating one of the remedial districts in the Republican-leaning Piedmont Crescent would insure that its traditionally African-American vote, now a potential majority, would no longer be diffused (or “submerged,” in Representative Balmer‘s characterization) in a Republican (hence, under present circumstances, white) majority voting population. Fitch testimony, Tr. pp. 675-78; Cohen testimony, Tr. pp. 330, 396.
Second, it would permit the creation of two remedial districts having the distinctive and different urban and rural characteristics and communities of interest which historical forces had shaped for the state‘s African-American population. This would accommodate suggestions of citizens at public hearings, and of legislators in floor debate, that the observance of distinctive urban and rural communities of interest should be a prime consideration in the general redistricting process. Stip.Ex. 200, pp. 2, 3 (public notice inviting comments), 198 (Walker statement), 212 (Mills statement), 245 (Tillman statement), 600 (Hunter statement), 603 (Kimbrough statement), 820 (Sen. D. Winner), 1003 (Rep. Hasty). And it would accommodate an expressed desire of African-American legislators and citizens from the rural Coastal Plain area that the remedial district centered in that area should not include urban African-American populations in the easternmost Piedmont Crescent cities of Durham and Raleigh. These were thought not to share the predominantly rural, agricultural interests of the region, but likely to dominate such a district politically because of their much stronger political traditions. Fitch testimony, Tr. pp. 670-75.
For all these reasons, the Democratic leadership adopted the Merritt/Peeler Plan as its first base plan, “92 Congress I,” for implementing its decision to enact a congressional redistricting plan with two majority-minority districts. Stip.Ex. 10, pp. 66-72. It was that
To implement the basic decision to create a distinctively rural majority-minority district in the Coastal Plain region, the redistricting committees adopted the convention that at least 80% of its population must be located outside cities having populations greater than 20,000. This convention was observed by Cohen, using “places reports” detailing the exact location of persons within particular areas, to verify adherence. Cohen testimony, Tr. pp. 333, 356-58. It had been assumed from the outset, starting with Representative Hardaway‘s plan, that the rural district should be centered, as was the single remedial district in the Chapter 601 plan, on the large, proportionately dense African-American population in the northern part of the Coastal Plain. Stip.Ex. 10, p. 62. But if the other, urban district was to include the African-American population of inner-city Durham, and the rural-urban distinction between the two districts was to be observed, the First District must be extended still further southward in the Coastal Plain to compensate for loss of the urban Durham population. Cohen testimony, Tr. pp. 355-56; Fitch testimony, Tr. pp. 676-78.
Extending it southward presented both difficulties and advantages for the overall design. Its difficulties lay in the need to avoid extensive destruction of the cores of the districts of incumbent Democratic Congressmen Valentine (Second), Lancaster (Third), and Rose (Seventh), all of which lay to the south. This difficulty already had been encountered in constructing Chapter 601‘s single remedial district. Even with that district‘s inclusion of the African-American population in Durham, southward extensions from its core into portions of the existing Second and Third Districts had required substantial realignment of those districts. Stip.Ex. 10, p. 45 (Chapter 601 plan); Stip. Ex. 61 (1982 Congressional Districts). The need for still further extensions in that general direction posed the threat of still further realignments of those two districts and, depending upon its exact configuration, even of Congressman Rose‘s Seventh District in the southeastern corner of the Coastal Plain. Id. It was in part at least because of that threat of even further realignments of their districts if Chapter 601‘s plan were not precleared that these three Congressmen had urged the state to seeks its preclearance by litigation. Stip.Ex. 20. With that possibility now gone, these same Congressmen now sought by renewed consultations with the redistricting committee members and staff to protect their interests against unfavorable realignments in the drawing of the new Coastal Plain remedial district. Cohen testimony, Tr. pp. 358, 360, 388-92; D.Ex. 425, 426, 429, 430.
A compensating advantage of extending the First District even further southward was that by this means the Attorney General‘s objection that the African-American population in the south-central and southeastern portions of the state were not sufficiently taken into account in the Chapter 601 plan might be met. Cohen testimony, Tr. pp. 365-66; D.Ex. 441.
It was the interaction of these problems of protecting incumbents while meeting the equal population requirements, achieving effective African-American voting majorities, attending to the Attorney General‘s objections to the rejected plan, and observing the committees’ contiguity criterion that produced the sprawling, peculiarly-shaped First District in the challenged Plan. Its overall sprawl—its sheer volume—resulted mainly from the need to include in it 552,386 persons out of a generally sparsely-populated rural region of the state, coupled with the decision to find at least 80% of them outside cities with populations in excess of 20,000. Its sprawls in detail—and it has many—resulted from a variety of reasons: to include historic “black sections” in various of the towns and
small cities—including Fayetteville and Wilmington—scattered across the essentially rural, agricultural Coastal Plain; to preserve politically-critical core areas in the districts of three politically-affected incumbent Congressmen and to avoid pairing any of them in realigned districts; and in the process to maintain the territorial contiguity required by the committee criteria. Cohen testimony, Tr. pp. 329-400, passim.
Many oddities of shape resulted. A great number can be laid most directly to incumbent protection. Several examples suffice to illustrate.
Though the home precincts of both Congressman Valentine in Nash County in the existing Second District and of Congressman Lancaster in Goldsboro in the Third were heavily (45%) African-American and were geographically situated for ready inclusion in the First District, they were retained, as were their entire counties, in their existing districts. To compensate, the First District had to be extended much further southward to include rural portions of Columbus and Bladen Counties with comparable African-American populations. Cohen testimony, Tr. p. 364.
The highly irregular shape of the southeast portion of the district, with its two narrow extensions into historic “black sections” of Fayetteville and Wilmington, resulted directly from the effort to preserve the core of Congressman Rose‘s Seventh District. These extensions represent the minimum possible territorial intrusions into two key counties, Cumberland and New Hanover, which formerly had been entirely in his district, that were thought needed to achieve the requisite African-American population for the district.
Perhaps the most striking illustration of the effects of incumbent protection upon the final irregularity of the First District‘s shape was the use of a “double cross-over“—a point of contiguity that allows two districts essentially to cross over each other—to allow in this case the southern extension of the First District to cut across Congressman Lancaster‘s existing Third District in Duplin County without destroying the technical contiguity of either district. Stip.Ex. 42; P-I Ex. Map 1; D.Ex. 419. Its purpose, as explained by Cohen, was to retain critical portions of Sampson County lying to the west of this cross-over in Lancaster‘s Third District, as part of a larger purpose to avoid pairing in the same district any of the incumbent Democratic Congressmen who could be affected by the First District‘s final configuration: Valentine (Second), Lancaster (Third), Rose (Seventh), and Hefner (Eighth). Cohen testimony, Tr. pp. 348-49. Other examples of irregularities of shape driven largely by concerns for incumbent protection abound in the record.
The evolution of the Twelfth District, from its earliest precursor in Representative Balmer‘s 1991 “Congress 8.1” plan, through Representative Hardaway‘s “Optimum Congressional II-Zero” plan and the “92 Congress I/Peeler” plan, into its final form in the challenged Plan, followed the same general pattern as did the First District‘s. The same combination of factors—though with varying degrees of influence—determined this district‘s eventual location and shape. Again, though the process was complicated, its essentials for purposes of this case are largely undisputed and can be summarized.
Carrying through the idea of a predominantly urban district counterpart to the predominantly rural First District, the redistricting committees adopted a mirror-image convention to guide the Twelfth District‘s urban design: at least 80% of its total population must be drawn from cities with populations of 20,000 or more. Cohen testimony, Tr. pp. 333-35, 430-33, 536; D.Exs. 405, 406, 407. In the course of the district‘s evolution, this convention dictated the removal from the “92 Congress I/Peeler” base plan of large portions of four basically rural counties—Caswell, Person, Granville, and Vance—along the Virginia border, and the addition of historic “black neighborhoods” in the inner cities of Gastonia and Winston-Salem, the only Piedmont Crescent cities meeting the 20,000 criterion that were not included in the district in the original base plan. Cohen testimony, Tr. pp. 334, 341-42, 350-51. In the end, the design that resulted carried through a simple notion: to link the significant concentrations of African-Americans in the his-
The General Assembly enacted the challenged Plan, with its majority-minority districts in their final forms, as Chapter 7 of the 1991 Extra Session Laws, on January 24, 1992. The vote was along partisan political lines. The overwhelming majority of Democratic legislators, including all the African-Americans, voted in favor of the Plan. Stips. 94-95; Stip.Ex. 36. Chapter 7 was precleared under
The two remedial districts that resulted from this legislative process have several significant characteristics. First off, there is the obvious fact—in many ways the central fact of this litigation—that the shapes of both are highly irregular and geographically non-compact. Laying aside the litigation-spawned pejoratives—“bizarre,” “grotesque,” “ugly,” etc.—they are highly irregular and geographically non-compact by any objective standard that can be conceived, including the shapes of all earlier North Carolina congressional districts running back to 1790, Stip.Ex. 53; the shapes of all other districts in the challenged Plan (even including those most directly affected by shared irregularities of boundary), D.Ex. 419; and virtually all mathematical measures of geographical compactness devised by social scientists, which reveal them to be among the least geographically compact of all recent congressional districts in the country. Hofeller testimony, Tr. pp. 122. And, they are not the two most geographically compact remedial districts that could have been drawn if no other interests were considered. Hofeller Testimony, Tr. pp. 123-125; P-I Ex. 301 Tabs 1-3 (“Shaw II” and “Shaw III” plans).
But the districts also plainly possess the distinctively rural (First) and urban (Twelfth) characteristics intended, as contemporaneously asserted, by the legislature. Stip.Ex. 38 (
That they are distinctively “rural” and “urban” in character is a fact so much within the common knowledge of intelligent inhabitants of the state that it probably is subject to judicial notice. McCormick on Evidence, (4th ed. 1992), at § 329. But if it be needed, there is ample evidence to demonstrate the fact. We summarize its core.
The First District is wholly within a predominantly agricultural region. Of the state‘s four counties that have agriculture as their principal source of income, all are in the First District. The counties included in whole or in part within the District had 64% of the state‘s harvested cropland in 1992. Stuart Rpt. p. 23. Five of the top ten tobacco-producing counties in the state, seven of the top ten sweet potato-producing counties, all of the top ten peanut-producing counties, seven of the top ten in hog production, eight of the top ten in cotton production, eight of the top ten in farm cash receipts, and seven of the top ten in corn for grain production are partly or wholly within the First District. Stip. 123. The district is without question predominantly rural in character.
Correspondingly, the Twelfth District is wholly within a predominantly urban, industrialized area of the state—the most heavily industrialized of its regions. Of its citizens, 86.3% reside in urban areas as defined by the Census Bureau. D.Ex. 401, p. 35, table 19. This measure of urbanness applies to African-American and white residents alike: at least two-thirds of the district‘s white residents and three-fourths of its African-American residents live in urban areas as so defined. Lichtman testimony, Tr. pp. 791-93; D.Ex. 440. The Twelfth District is without question predominantly urban in character.
Reflecting their distinctive rural and urban natures, the more important fact for our purposes is that the two districts, as intended by the legislature, have correspondingly different and distinctive communities of interest. And, even more important, there are within each of the districts substantial, relatively high degrees of homogeneity of shared socio-economic—hence political—interests and needs among its citizens. Belying any intuitive assumption that the very bi-racial make-up and the irregularity of shape and geographical non-compactness of these districts would reflect great diversity and conflicts of interest among their citizens, both anecdotal and expert opinion evidence demonstrates the contrary. Inhabitants of both districts, drawing on their specific life experiences in the areas, are able to bear witness to the homogeneity of the material conditions and interests of the citizens of each; respected scholars of the regions concur. Stuart Rpt. pp. 23, 25, 29 (First District); Goldfield Rpt. p. 2 (Twelfth District); Institute for Research in Social Science, Univ. of No. Car., Stip.Ex. 49, pp. 1, 2 (Twelfth District); D-I Wit.Sts. Nos. 2 (Alvarez), at pp. 2-5; 3 (Albright); 4 (Rash) at pp. 4-8; 9 (Davis), at pp. 4-5; 12 (Burts) at pp. 4-5; 25 (Emerson) at pp. 2-5; 26 (Lambeth); 27 (McGovern).
These individual observations are validated on a larger scale by expert opinion concerning the homogeneity of basic interests in each of the districts. Based upon reliable analyses using accepted political-social science methodology, the two districts are among the most, rather than the least, homogeneous of the current twelve, in terms of the material conditions and political opinions of their citizens, whether only its white citizens, or only its African-American, or both together are considered. D.Ex. 401, pp. 11-25, Tables 3, 4, and 8.58
This distinctiveness of shared interests as between the two districts, and the homogeneity of those interests within each, are not accidental occurrences. They directly resulted from the legislature‘s contemporaneously-expressed purpose, in designing a plan to comply with the
There is no convincing evidence in the record that the irregularities and lack of geographical compactness of these two districts have had or are having any significant adverse effect upon their citizens’ interests in fair and effective representation in matters either of voting or access to their elected representatives. Indeed, such evidence as there is on the matter preponderates in the other direction.
Plaintiffs point to evidence of extremely low (6%) name recognition of Twelfth District Representative Watt in a post-election sample survey of his constituents. O‘Rourke testimony, Tr. p. 232. One of the plaintiffs, a Duke University Law Professor testified that though he was not confused as to his residence within the Twelfth District by its odd shape, a Duke History Professor neighbor of his reported being so. Shimm testimony, Tr. pp. 1086-87. A High Point businessman reported being surprised to find when he went to vote, that he was in the Twelfth District. Froelich Aff. p. 2. Beyond this, there was only opinion evidence that as a general proposition geographical non-compactness tends to make both campaigning, voting, and effective representation more difficult, O‘Rourke testimony, Tr. pp. 209, 232, and some anecdotal evidence of instances of supposed inattentiveness of the two recently elected representatives to particular events or localities in their districts. E.g. Shimm testimony, Tr. pp. 1090-92.
On the other hand, voter participation in the 1992 congressional elections in North Carolina—with its quite recently created, peculiarly-shaped, non-compact districts—was higher than the national average that year. It was also higher than that in any neighboring state—all of which had relatively more compact congressional districts overall. And it was higher than that in the 1988 congressional elections in North Carolina, when the state‘s districts overall were more geographically compact. Lichtman testimony, Tr. pp. 819-22; D.Ex. 440, pp. 61, 62, 64, Tables 40, 41, 42. Nor did the irregularities resulting from the splitting of some counties between two or even three congressional districts have any demonstrable negative effect on voter participation in the 1992 congressional elections. In fact, according to data assembled by plaintiff-intervenors’ own expert, Dr. O‘Rourke, of the ten counties in the state where voter “roll-off” between the 1992 presidential and congressional elections was greatest, six were not divided, and of the ten where there was either no roll-off or even greater participation in the congressional elections, six were divided into two districts and one into three. O‘Rourke testimony, Tr. pp. 263-66.
Though the parties offered some evidence, largely anecdotal, about the extent to which the districts’ configurations might affect the degree of accessibility to and responsiveness of the two districts’ representatives,59 we
Aside from their irregularities of shape and lack of geographical compactness, their urban and rural natures, and the resulting homogeneity of interests within them, the districts have two other characteristics of relevance to the legal issues.
First, they are generally located in areas of the state where violations of the
Second, the two districts have but narrow African-American voting majorities: in the First District, 50.5% of the registered voters; in the Twelfth District, 53.5% of the registered voters. Though African-American candidates were elected to represent both districts in the first elections held under the Plan, it is demonstrably the case in North Carolina that such narrow voting majorities do not assure election of minority candidates. Of the eight majority-minority House and Senate districts created to comply with
- In enacting the challenged congressional redistricting plan, the General Assembly of North Carolina deliberately created two districts, the First and the Twelfth, that would have narrow, but effective voting majorities of African-American citizens, specifically intending thereby to give the African-American citizens of those districts a reasonable opportunity to elect representatives of their choice.
- The General Assembly did this in order to comply with
§§ 2 and5 of the Voting Rights Act , on the basis of the well-founded belief of a sufficient majority of its membership that failure to do so would, or might well, violate one or both of those provisions. - Though there was some sentiment in the General Assembly that doing so was warranted simply as remedy for the state‘s long and continuing history of race-discrimination in matters of voting, that sentiment was not sufficient in voting power to have caused the legislative action independent of the perceived compulsion of the
Voting Rights Act . - The two districts are highly irregular in their shapes and extreme in their lack of geographical compactness as compared to other districts in the plan or to other districts nationally. They are not the two most geographically compact majority-minority districts that could have been created were no factors other than equal population requirements and effective minority-race voting majorities taken into account.
- The exact locations and highly irregular shapes of the two districts result from a combination of factors that influenced legislative choices: the equal-population requirements in relation to the population dispersions in the areas of their locations; the need for effective African-American voting majorities; the legislative intention to create one predominantly rural (First) and one predominantly urban (Twelfth) district, and, concomitantly, two districts with distinctive and internally homogeneous communities of interest; incumbent protection; and the maintenance of technical territorial contiguity. After the equal population and majority-minority imperatives, the most important factor for the legislature was the creation of districts with distinctive and internally homogeneous communities of interest. In according primacy to these redistricting principles, the legislature necessarily had to subordinate geographical compactness and respect for the integrity of political subdivisions, and did so.
- The irregularities of shape and lack of geographical compactness of the two districts have not demonstrably affected adversely the fair and effective representation of their citizens. The present representatives, both African-Americans, are able effectively to maintain their accessibility to constituents by the standard devices of mailings, local offices, and personal visits to their districts.
IV. Conclusions of Law
- This three-judge district court has jurisdiction under
28 U.S.C. §§ 1331 ,1343 , and2284 . - The substantive nature of the Equal Protection claim remanded to this court by the Supreme Court is as defined and discussed in Part II-A of this Opinion. See supra at 421-423.
- The plaintiffs and their supporting intervenors have standing to maintain the Equal Protection claim remanded to this court by the Supreme Court, because they have established that they are registered to vote in North Carolina‘s congressional elections and that the challenged redistricting plan assigns them to vote in particular electoral districts at least in part because of their race. See supra at 423-427.
- The state defendants’ concession that, in designing the challenged congressional redistricting plan, the General Assembly of North Carolina deliberately drew two districts—the First and the Twelfth—so that African-American citizens had a
voting majority in each, established prima facie that the Plan was a “racial gerrymander” that violated the Equal Protection Clause. See supra at 427-434. This had the effect of subjecting the Plan to judicial strict scrutiny to determine whether its use of race could yet be justified as a “narrowly tailored” means of furthering a “compelling state interest.” Id. - In this strict scrutiny inquiry, the initial burden has been upon the state to come forward with evidence that the Plan‘s use of race was so justified. See supra at 435-437. But the burden of persuasion has remained throughout upon the plaintiffs to prove the Plan unconstitutional, and that burden extends to disproving any justification adequately advanced by the state. Id.
- As explained more fully in Conclusions of Law 7 and 8 below, the state has produced sufficient evidence that the challenged Plan‘s use of race is narrowly tailored to further one or more compelling state interests to carry its burden of production under strict scrutiny analysis.
- The state has adequately established that it had a “compelling interest” in enacting a race-based congressional redistricting plan, by demonstrating that it had a “strong basis in evidence” for concluding that such action was necessary to bring its existing congressional redistricting scheme into compliance with
§§ 2 and5 of the Voting Rights Act . See supra at 437-443.
The General Assembly had a “strong basis in evidence” for concluding that enactment of a race-based redistricting plan was necessary to avoid a violation of
The General Assembly also had a “strong basis in evidence” for concluding that enactment of a race-based congressional redistricting plan was necessary to comply with
That the General Assembly did not make specific legislative findings that the Chapter 601 plan would violate the
- The state has adequately established that the Plan creating the two remedial districts was “narrowly tailored” to serve the compelling interests discussed above. First, the state has demonstrated that the Plan does not create more majority-minority districts than is reasonably necessary to comply with the
Voting Rights Act , and that the African-American voting majorities in each of those districts (50.5% and 53.5%, respectively) are no greater than is reasonably necessary to give African-Americans a reasonable opportunity to elect representatives of their choice in them. See supra at 445-446. Compare Hays I, 839 F.Supp. at 1207-08 (race-based redistricting plan not “narrowly tailored” where it “packed” minority voters into majority-minority districts in percentages much greater than reasonably necessary to give them a fair opportunity to elect representatives of their choice in those districts). Second, the state has demonstrated that the Plan does not impose a rigid quota for African-American representation in North Carolina‘s Congressional delegation, but only a flexible goal, see supra at 446-447, and that that goal (2 out of 12 seats, or 16.7%) bears a reasonable relation to the percentage of African-American voters in the state‘s population as a whole (22%), see supra at 447-448. Third, the state has demonstrated that the Plan is a remedial measure of limited duration, which will automatically expire at the end of the ten-year redistricting cycle, and thus will last no longer than is reasonably necessary to eliminate the effects of the particular discrimination it is designed to redress. See supra at 447-448. Finally, the state has demonstrated that the Plan does not impose an undue burden on the rights of innocent third parties (such as plaintiffs in this case), because it complies with constitutional “one person, one vote” requirements, does not unconstitutionally dilute the voting strength of any identifiable group of voters, and creates districts which, though highly irregular in shape and relatively non-compact geographically, are nonetheless based on rational districting principles that ensure fair and effective representation to all citizens covered by them, since they are deliberately designed to be and are in fact highly homogeneous in terms of their citizens’ material conditions and interests, and do not significantly inhibit access to and responsiveness of their elected representatives. See supra at 448-457. - The plaintiffs have not carried their burden of proving that the justification the state has advanced for the challenged Plan‘s use of race is untenable, either because the interest identified was not a “compelling” one or because the means used were not “narrowly tailored” to its achievement. Their only challenges to the two bases of justification advanced have been legal ones which are without merit, as is necessarily implied in our conclusions of law 7 and 8.
- The challenged congressional redistricting plan does not violate any rights of the plaintiffs or their supporting intervenors under the Equal Protection Clause. Judgment accordingly will be entered for the state defendants dismissing this action on the merits.
The question in the end is whether a deliberately race-based districting plan enacted by an overwhelmingly white legislature in one of the former Confederate states in order to comply with its understanding of the commands of national law enacted to enforce the guarantees of the
Pointing essentially to the odd shapes of the two districts resulting in part—though by no means entirely—from the legislature‘s racial design, the plaintiffs, through counsel, have characterized the plan as a “constitutional crime.” We have concluded instead that, under controlling law, it is a justifiable invocation of a concededly drastic, historically conditioned remedy in order to continue the laborious struggle to break free of a legacy of official discrimination and racial bloc voting in North Carolina‘s electoral processes that has played a significant part in the ability of any African-American citizen of North Carolina, despite repeated responsible efforts, to be elected to Congress in a century. We decline in this case to put a halt to the effort by declaring the plan unconstitutional.
RICHARD L. VOORHEES, Chief Judge, concurring in part, and dissenting in part:
I concur in the majority‘s findings here that the Plaintiffs have sufficient standing to bring suit under the Equal Protection Clause
I. Nature of the Constitutional Wrong
I agree that the evidence presented at trial wholly supports the finding here of a racial gerrymander, and that as such North Carolina‘s redistricting plan must survive strict scrutiny before it can be said to pass constitutional muster. Indeed, one glance at the map suffices to demonstrate to even the most casual observer the existence of at the very least a suspect intent on the part of the North Carolina General Assembly, a suspect intent that in itself demands explanation and justification.1 But I would go one step further than the majority in assessing the significance of the shapes of the districts currently before us, consistent with my reading of the Supreme Court‘s opinion in Shaw v. Reno.
The majority‘s opinion explicitly limits the relevance of the districts’ odd shapes to circumstantial evidence of the State‘s alleged discriminatory intent. See ante at 430-431, 449. Where the legislature has conceded such an unlawful intent, as its witnesses have explicitly done here, the majority would dismiss any evidence of district shape as essentially duplicative.2 This approach, however, ignores the special breed of harms recently recognized by the Supreme Court in Shaw, a breed of harms “analytically distinct” from any associated with the mere intent to discriminate. Shaw, — U.S. at —, 113 S.Ct.
Put differently, we believe that reapportionment is one area in which appearances do matter. A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid. It reinforces the perception that members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike, share the same political interests, and will prefer the same candidates at the polls. We have rejected such perceptions elsewhere as impermissible racial stereotypes. By perpetuating such notions, a racial gerrymander may exacerbate the very patterns of racial bloc voting that majority-minority districting is sometimes said to counteract.
The message that such districting sends to elected representatives is equally pernicious. When a district obviously is created solely to effectuate the perceived common interests of one racial group, elected officials are more likely to believe that their primary obligation is to represent only the members of that group, rather than their constituency as a whole. This is altogether antithetical to our system of representative democracy.
Justice Souter apparently believes that racial gerrymandering is harmless unless it dilutes a racial group‘s voting strength. As we have explained, however, reapportionment legislation that cannot be understood as anything other than an effort to classify and separate voters by race injures voters in other ways. It reinforces racial stereotypes and threatens to undermine our system of representative democracy by signaling to elected officials that they represent a particular racial group rather than their constituency as a whole. Justice Souter does not adequately explain why these harms are not cognizable under the
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 andFifteenth Amendments embody, and to which the Nation continues to aspire.
Id. at —, 113 S.Ct. at 2827-32 (citations omitted) (emphasis added). In short, race-based districting creates racially conscious districts and foments racial polarization within them.
As observed by Justice White in his dissent in Shaw, “[t]he logic of [the majority‘s] theory appears to be that race-conscious redistricting that ‘segregates’ by drawing odd-shaped lines is qualitatively different from race-conscious redistricting that affects groups in some other way.” Id. at —, 113 S.Ct. at 2838 (White, J., dissenting). Indeed, Justice White‘s observation is consistent with my reading of Shaw v. Reno as well. The majority here, however, fails even to acknowledge this significant distinction, instead implicitly subscribing to Justice White‘s argument that “[t]he consideration of race in ‘segregation’ cases is no different than in other race-conscious districting.... A plan that ‘segregates’ being functionally indistinguishable from any of the other varieties of gerrymandering, we should be consistent in what we require from a claimant: Proof of discriminatory purpose and effect.” Id. at
Not long ago, in Davis v. Bandemer, 478 U.S. 109, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986), a plurality of the Supreme Court observed that “the valid or invalid configuration of the [politically gerrymandered] districts was an issue we did not need to consider,” id. at 142, 106 S.Ct. at 2815, since the Court expressly determined that “aside from election results, none of the facts found by the district court were relevant to the question of discriminatory effects.” Id. at 142 n. 20, 106 S.Ct. at 2815 n. 20 (opinion by White, J.). Significantly, the Court in Shaw found that at least in the context of racial gerrymanders the configuration of districts is indeed relevant to the question of “discriminatory effects.” In that regard, it seems clear from the cited language in Shaw, and from notions of logic and common sense, that a racially gerrymandered district of the tortuous nature presented here inflicts a harm qualitatively distinct from that imposed by an intentionally created majority-minority district whose contours are geographically compact and contiguous, a harm that the Supreme Court has found to be cognizable under the
In order to prevail the State should therefore be required to offer a compelling justification for the means employed as well as the ends served. The evidence adduced simply does not support a finding of such justification. Put another way, I would find the districts created here to be inherently defective, by characterization not sufficiently “narrowly tailored” to survive strict scrutiny. To dismiss the relevance of district shape from our inquiry otherwise is to ignore the Supreme Court‘s mandate in this particular case.7
II. Lack of Justification
The primary justification proffered by the State for its redistricting plan, on which the majority here entirely relies, is its statutory duty to comply with the
A. Compliance With Section 2 of the Voting Rights Act
The State first asserts that it had a compelling interest in complying with
The Supreme Court in Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), set out the threshold requirements for a vote dilution claim under
It is significant to note as a preliminary matter that there is absolutely no evidence whatsoever in the legislative history of Chapter 7 regarding violations of the
The majority holds that contemporaneous findings need not be made by a legislature prior to taking remedial action, see ante at 437-439, 474-475, a proposition with which I generally agree. But in holding contemporaneous legislative findings of past discrimination unnecessary, it is unlikely that the Supreme Court contemplated rendering them irrelevant altogether. Such a result would necessarily prompt the same concerns, albeit to a lesser degree, expressed by Justice O‘Connor regarding a state‘s voluntary efforts to eradicate the effects of past discrimination:
That Congress may identify and redress the effects of society-wide discrimination does not mean that, a fortiori, the States and their political subdivisions are free to decide that such remedies are appropriate. Section 1 of the
Fourteenth Amendment is an explicit constraint on state power, and the States must undertake any remedial efforts in accordance with that provision. To hold otherwise would be to cede control over the content of the Equal Protection Clause to the 50 state legislatures and their myriad political subdivisions. The mere recitation of a benign or compensatory purpose for the use of a racial classification would essentially entitle the States to exercise the full power of Congress under§ 5 of the Fourteenth Amendment and insulate any racial classification from judicial scrutiny under § 1. We believe that such a result would be contrary to the intentions of the Framers of theFourteenth Amendment , who desired to place clear limits on the States’ use of race as acriterion for legislative action, and to have the federal courts enforce those limitations.
City of Richmond v. J.A. Croson Co., 488 U.S. 469, 490-91, 109 S.Ct. 706, 720, 102 L.Ed.2d 854 (1989) (opinion by O‘Connor, J.) (citations omitted) (emphasis in original). See also id. at 510, 109 S.Ct. at 731 (“Absent such findings, there is a danger that a racial classification is merely the product of unthinking stereotypes or a form of racial politics“). While contemporaneous findings may not be required per se, certainly evidence to precisely the opposite effect would militate against a finding of compelling interest to justify the State‘s actions. At the very least such evidence raises serious concerns about the State‘s underlying motives here and the degree to which its interests can be genuinely characterized as “compelling,” consequently casting doubt on the majority‘s conclusions in this regard.11
Of course, even assuming that the State‘s findings, such as they were, proved sufficient to warrant remedial action, and further assuming that the State has made sufficient showings of political cohesiveness and racial bloc voting under Gingles to support a finding of vote dilution under
In this respect, the Supreme Court‘s distinction between “what the law permits, and what it requires” is particularly relevant. Shaw, — U.S. at —, 113 S.Ct. at 2830. That the
Such a result is untenable and unconstitutional. Where a minority population is relatively dispersed geographically, as is the black population in most parts of North Carolina, and the only means therefore of achieving a majority-minority district is to disfigure the voting districts, the result amounts to a racial quota in pursuit of proportional representation.16 Consequently, as in Wygant, supra, there is “no logical stopping point” to the majority‘s theory in this case. Wygant, 476 U.S. at 275, 106 S.Ct. at 1847-48 (plurality opinion) (finding that there was “no logical stopping point” to the District Court‘s role model theory, which allowed the Board of Education to engage in discriminatory hiring and layoff practices “long past the point required by any legitimate remedial purpose“); see also Croson, 488 U.S. at 498, 109 S.Ct. at 724 (“Relief for such an ill-defined wrong could extend until the percentage of public contracts awarded to MBE‘s [minority business enterprises] in Richmond mirrored the percentage of minorities in the population as a whole“); Davis, 478 U.S. at 130-31, 106 S.Ct. at 2809-10 (plurality opinion) (“To draw district lines to maximize the representation of each major party would require creating as many safe seats for each party as the demographic and predicted political characteristics of the State would permit“). If North Carolina‘s District 12 were in fact required by the
In the alternative, even assuming that the State could have made a proper showing as to all of the relevant factors under Gingles, thereby supporting a finding of liability under
I would make one final general observation here before moving on with the analysis. By its plain language, the
A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered....
Since there are no allegations here that blacks in North Carolina are currently prevented from participating per se in the political process, from registering and exercising their right to vote, then the only salient evidence presented by the Defendants and Defendant-Intervenors here regarding a violation of
But in assessing vote dilution, it is not at all clear why the Court should not take into account political influence as well—after all,
In sum, then, I dissent from the majority‘s finding here that, under the circumstances presented, North Carolina had a compelling interest in complying with
B. Compliance With Section 5 of the Voting Rights Act
North Carolina‘s next argument in support of its redistricting plan derives from its statutory duty to comply with
Blind deference to the administrative findings of the United States Attorney General cannot render the State‘s conduct here immune from constitutional scrutiny, however. Since the General Assembly had the option of subsequently seeking preclearance in the United States District Court for the District of Columbia, see
In my opinion, then, the analysis here is subsumed within the analysis described above for vote dilution under
Here, of course, the State chose not to enact the particular district plan proposed by the Department of Justice, which included a majority-minority district in the south-central to southeastern part of the state. While the State obviously was not required to adopt the Department of Justice‘s proposal, its failure to do so or even to address the Department of Justice‘s concerns certainly casts some doubts on the merits of the Attorney General‘s objections and the compelling nature of the State‘s interest in complying therewith.
- The state has demonstrated that the Plan is a remedial measure of limited duration, which will automatically expire at the end of the ten-year redistricting cycle, and thus will last no longer than is reasonably necessary to eliminate the effects of the particular discrimination it is designed to redress. See supra at 447-448. Finally, the state has demonstrated that the Plan does not impose an undue burden on the rights of innocent third parties (such as plaintiffs in this case), because it complies with constitutional “one person, one vote” requirements, does not unconstitutionally dilute the voting strength of any identifiable group of voters, and creates districts which, though highly irregular in shape and relatively non-compact geographically, are nonetheless based on rational districting principles that ensure fair and effective representation to all citizens covered by them, since they are deliberately designed to be and are in fact highly homogeneous in terms of their citizens’ material conditions and interests, and do not significantly inhibit access to and responsiveness of their elected representatives. See supra at 448-457.
- The plaintiffs have not carried their burden of proving that the justification the state has advanced for the challenged Plan‘s use of race is untenable, either because the interest identified was not a “compelling” one or because the means used were not “narrowly tailored” to its achievement. Their only challenges to the two bases of justification advanced have been legal ones which are without merit, as is necessarily implied in our conclusions of law 7 and 8.
- The challenged congressional redistricting plan does not violate any rights of the plaintiffs or their supporting intervenors under the Equal Protection Clause. Judgment accordingly will be entered for the state defendants dismissing this action on the merits.
Finally, it is interesting to note that of North Carolina‘s 100 counties, only 40 of those were subject to
C. Remedy Past Discrimination
The final justification offered by the State for its racially gerrymandered districts is its interest in eradicating the effects of past racial discrimination. A state‘s voluntary efforts to remedy discrete and particular instances of discrimination is indeed a laudable endeavor and should not be discouraged. See Wygant, 476 U.S. at 289-91, 106 S.Ct. at 1855-56 (O‘Connor, J., concurring in part and concurring in the judgment). Of course, a general showing of societal discrimination alone is not sufficient to justify a racial classification, see id. at 274-75, 106 S.Ct. at 1847-48 (opinion by Powell, J.), and the State must have had a “strong basis in evidence for its conclusion that remedial action was necessary.” Id. at 277, 106 S.Ct. at 1848-49. I concur in the majority‘s finding here that the State has failed to demonstrate any basis in evidence for a conclusion that such remedial action was necessary, especially since the State has clearly demonstrated that it would not have enacted Chapter 7 but for the Attorney General‘s rejection of Chapter 601.25
The rationale behind the Court‘s apparent skepticism in Shaw, supra in this regard should be obvious. It is by now a fundamental tenet in our equal protection jurisprudence that any effort by a state to remedy past discrimination must be carefully tailored, gauged to the specific past harm being alleviated. Croson, 488 U.S. at 507-08, 109 S.Ct. at 729 (majority opinion); Wygant, 476 U.S. at 274, 106 S.Ct. at 1847 (plurality opinion). Where the past harm is as undefined as it is here, described in relatively abstract terms of vote “dilution” rather than outright “denial,” however, there is the very real danger that the remedy imposed may actually become part of the problem, especially in light of the distinctive harms associated with racially gerrymandered districts generally. See Shaw, 509 U.S. at 644-52, 113 S.Ct. at 2827-32; see also Croson, 488 U.S. at 493, 109 S.Ct. at 721-22 (opinion by O‘Connor, J.) (“Classifications based on race carry a danger of stigmatic harm“); Regents of University of California v. Bakke, 438 U.S. 265, 298, 98 S.Ct. 2733, 2752, 57 L.Ed.2d 750 (1978) (opinion by Powell, J.) (“preferential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor bearing no relationship to individual worth“). Accordingly, given the pitfalls necessarily inherent in any voluntary remedial undertaking concerning minority voting practices, I would find that the State has no compelling interest to address past discrimination in voting practices beyond that required by the
III. Not Narrowly Tailored
Assuming that the district lines employed by the State of North Carolina here are not inherently unconstitutional, and further assuming that the State had a compelling interest for its otherwise unconstitutional conduct, the next question is whether the redistricting plan at issue here is narrowly tailored to further that interest. I find that the districts here, while keenly tailored, are by no means “narrowly tailored” as that term is employed in Equal Protection law.
To what extent North Carolina‘s redistricting plan is narrowly tailored of course depends upon what compelling interest is advanced to justify the plan. After all, “[r]acial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.” Wygant, 476 U.S. at 280, 106 S.Ct. at 1850 (plurality opinion) (quoting Fullilove v. Klutznick, 448 U.S. 448, 537, 100 S.Ct. 2758, 2805, 65 L.Ed.2d 902 (1980) (Stevens, J., dissenting)). The majority again inexplicably claims that district shape is irrelevant beyond its significance as an indication of discriminatory intent, thereby unwarrantedly delimiting the scope of the Court‘s opinion in Shaw. See ante at 449. But while such traditional districting principles as compact
North Carolina‘s alleged interests in complying with
To evaluate the District Court‘s determination that it was necessary to order the promotion of eight whites and eight blacks to the rank of corporal at the time of the motion to enforce, we must examine the purposes the order was intended to serve.
Id. (emphasis in original). Likewise, we must evaluate the State‘s asserted purposes here in order to determine whether the districts at issue are necessary in connection therewith.
As discussed supra, one of the threshold requirements of a
The majority here identifies five other factors relevant to determining whether the State‘s remedial scheme is sufficiently tailored to survive strict scrutiny. With respect to the first factor, I agree with the majority that a state that has a compelling interest in complying with the
With respect to the second factor, the majority here finds North Carolina‘s redistricting plan more analogous to a “flexible goal” than a “strict quota.” See ante at 446-447. While the “remedial” device employed by the State here is distinguishable from more traditional numerical quotas, Chapter 7 in many ways resembles the strict quota device struck down in Croson, supra. A redistricting plan that gerrymanders a given population in order to achieve a certain electoral result is closely analogous to hiring or promotion quotas designed to achieve a certain racial profile in the work force.27 Given the absence of
The majority‘s analysis of the final factor, the impact of the enacted districts on the rights of third parties, likewise gives cause for concern. See Paradise, 480 U.S. at 171, 107 S.Ct. at 1066-67 (opinion by Brennan, J.); Fullilove, 448 U.S. at 514, 100 S.Ct. at 2793 (Powell, J., concurring). Given the unique breed of harms caused by these racially gerrymandered districts as identified so forcefully in the Supreme Court‘s opinion in Shaw, harms suffered by racially gerrymandered district residents and non-gerrymandered district residents alike, I simply cannot subscribe to the view that such districts are “narrowly tailored” where in fact more compact alternative districts were feasible.
Here, the burden is not placed on innocent non-minorities (in terms of any denial of privileges, benefits, etc.) so much as it is placed on the very minorities that these districts were presumably created to empower. See Croson, 488 U.S. at 516-17, 109 S.Ct. at 733-34 (Stevens, J., concurring in part and concurring in the judgment); cf. Wygant, 476 U.S. at 283-84, 106 S.Ct. at 1851-52 (plurality opinion). The stigma associated with such districts is real and tangible and cognizable under the
Moreover, the majority‘s opinion, without justification, arbitrarily limits the criteria for evaluating North Carolina‘s redistricting plan to “constitutionally-mandated” redistricting principles, rendering all other considerations de minimis. See ante at 448-449. But it is not at all clear why redistricting principles which are not constitutionally-mandated per se should not be at least relevant and even significant in assessing a plan‘s constitutionality, especially where the constitutional relevance of such redistricting principles as compactness and contiguity has so recently been declared by the Supreme Court.29 If we as a Court are to give any force at all to the mandate issued by the Supreme Court in this case, as I believe we must, then we must find in light of the cited language in Shaw that these districts are not “the most exact connection between justification and classification” as required in Wygant, supra. More compact variations were possible, and the State‘s redistricting plan is not sufficiently “narrowly tailored” to survive strict scrutiny.30
The majority also makes three arguments as to why, for practical reasons, courts should not consider notions of compactness and contiguity in assessing the constitutionality of voting districts. First, the majority asserts that such traditional districting principles have “little inherent value” in the districting process since they are no longer necessary to ensure fair and effective representation. See ante at 451. The majority‘s conclusion in this regard, however, is misplaced. The evidence at trial amply demonstrated that the combination of modern computer technology and voter-specific census data, readily available today and used by the legislature in creating Chapter 7, permits the creation of districts of unreasonable length and complexity. See generally testimony of Gerry Cohen, Tr. pp. 281-652. Indeed, notwithstanding the potentially self-serving testimonies of those congresspersons elected to
The majority‘s second and third arguments, regarding the absence of manageable judicial standards and the prospect of undue interference by the federal judiciary, respectively, are likewise unpersuasive.34 Even under the majority opinion‘s narrow interpretation of Shaw, determining whether or not a given district successfully incorporates a “geographically compact” minority population, and therefore sufficiently addresses any potential
Although assessing the merits of future gerrymandering cases may prove to be difficult at times, that is not sufficient reason in itself to abdicate our responsibility to do so here. An assessment of “geographical compactness” can be no more problematic or standardless here than under the vote dilution test articulated by the Supreme Court in Gingles, supra, and in fact courts have already embarked on such endeavors since the Supreme Court‘s decision in Shaw. See, e.g., Marylanders for Fair Representation, 849 F.Supp. at 1052-56 (finding that district at issue “is not only compact in its shape and appearance, but moreover reflects the reasonable balancing of numerous legitimate redistricting principles“). Indeed, the majority‘s opinion here successfully accounts for the stigmatic harms associated with gerrymandered districts in its analysis of standing, but it inexplicably fails to address such harms in weighing the ultimate constitutionality of Chapter 7. Thus, the majority would find that while residents of a racially gerrymandered voting district would always enjoy standing to bring suit, such standing would be of no avail so long as said district complied with certain “constitutionally-mandated” districting principles, regardless of its shape and the stigmatic harms associated therewith. The plain language of the
I therefore reiterate my earlier observation in this case, Shaw v. Barr, 808 F.Supp. 461, 480-81 (E.D.N.C. 1992) (Voorhees, C.J., dissenting), that it falls upon the courts to set forth constitutionally valid standards by which race-conscious redistricting may be implemented, and that it is not enough to leave these standards to the vicissitudes of “politics.” Id. As the majority here recognizes, Congress has presumably balanced the need for “affirmative action” in the voting context against the potential harms thereof, resulting in the enactment and subsequent extension of the
It is often remarked that the vote is one of the most critical features of a representative democracy and therefore one of our most fundamental rights. Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1381-82, 12 L.Ed.2d 506 (1964) (describing the right to exercise the franchise in a free and unimpaired manner as “preservative of other basic civil and political rights“). It is also true that, by definition, a racially gerrymandered congressional district is a highly visible feature of the political landscape, visible to the American public in a way that many remedial programs are not. Indeed, it is just this kind
IV. Conclusion
[E]ven in the pursuit of remedial objectives, an explicit policy of assignment by race may serve to stimulate our society‘s latent race consciousness, suggesting the utility and propriety of basing decisions on a factor that ideally bears no relationship to an individual‘s worth or needs....
United Jewish Organizations, 430 U.S. at 173, 97 S.Ct. at 1014 (Brennan, J., concurring in part). That our society‘s race consciousness persists, latent or otherwise, is indeed a regrettable phenomenon. The question of whether the achievement of a “color-blind” society is imminent or remote at this stage in our collective history has been the subject of considerable debate. The power of this Court, however, is more limited in that regard than some might hope, and our task consequently more mundane: to insure that the law as applied affords equal protection to every citizen.
The evidence presented in this case overwhelmingly supports the conclusion that the controlling officials in the General Assembly adopted the admitted racial gerrymander to create two minority-majority congressional districts in satisfaction of a numerical quota consistent with an intent to maximize the incumbency of all congresspersons affiliated with the controlling political party. The efforts of the Defendants to justify their actions in that respect since this litigation began, with talk of homogenous communities of interest and a perceived (but not hitherto expressed) need to correct past inequities, are lame attempts to reconstruct that truth. Why, then, does the majority lend credence to the sparse evidence supporting the State‘s position?
Aside from the misreading of Shaw embodied in its apparent adherence to Justice White‘s dissenting opinion, see supra at 477-478, at times the majority seems influenced by the notion that this case is merely a rehash of Pope v. Blue, where the instant gerrymander was held to reside in the political thicket, there to remain untouched by the judicial hand. That would explain the majority‘s indulgence towards the latest public position of a legislature which changes its assertions regarding the underlying facts as readily as it does its legal positions advanced in their support. But the Shaw decision requires that this Court address the underlying issues with greater seriousness of purpose than did the legislature. An admitted exercise in the nitty gritty of politics and power the majority opinion would elevate to heights of sensitivity and high purpose that the legislature simply never reached. The majority‘s findings of fact in these matters are decidedly contrary to the weight of the
I conclude with an acute observation by Justice Kennedy in a recent case involving distinct but analogous issues: “I regret that after a century of judicial opinions we interpret the Constitution to do no more than move us from ‘separate but equal’ to ‘unequal but benign.‘” Metro Broadcasting, 497 U.S. at 637-38, 110 S.Ct. at 3047 (Kennedy, J., dissenting). Under the majority opinion, one fears, North Carolinians must live for an indefinite period of time with congressional districts in which the races are intentionally made “separate but equal” without sufficient justification. For all the foregoing reasons, I respectfully dissent.
The majority in my opinion drastically underestimates the degree of voter confusion that can result from gerrymandered voting districts and the significance of such confusion to the political process, while overlooking the significance of citizens’ perceptions of fair and effective representation as well. A citizenry‘s perceptions of its political process can be as critical in a democracy as the process itself, and factors that can adversely affect such perceptions should not be dismissed. Thus, the majority‘s conclusion that certain facts outside the normal, “earth-bound, horizontal workaday world” of the citizen-voter, such as the irregularity of the district in which he or she resides, are not a matter of any great practical consequence, see ante at 472 n. 60, seriously underestimates the intellectual grasp of those voters. These people serve on juries in intricate cases, and they know when race is energizing the affairs of state.tutional duty to remedy the effects of that discrimination by engaging in protracted litigation over the nature of that obligation. See McCain, 465 U.S. at 244-46, 104 S.Ct. at 1043-44; see also South Carolina v. Katzenbach, 383 U.S. at 335, 86 S.Ct. at 822. Instead, we believe that a state has a “strong basis in evidence” for concluding that it must engage in race-based redistricting to comply with § 5 whenever the Justice Department has refused to preclear a plan it has proposed for the same round of redistricting on the ground that it fails to satisfy the § 5 standard, and the state reasonably concludes, after conducting its own independent reassessment of the rejected plan in light of the concerns identified by the Justice Department, that the Justice Department‘s conclusion is legally and factually supportable. But we need not decide here whether § 5 coverage, standing alone, is sufficient to give a state a “strong basis in evidence” for concluding that it must engage in race-based redistricting to comply with the Voting Rights Act, for in this case, the state‘s conclusion that it had to engage in race-based redistricting to comply with § 5 was based not merely on the fact that it was subject to § 5, but on an explicit finding by the Justice Department that its proposed plan did not satisfy § 5.
Regarding the political nature of the court‘s role in vote dilution cases generally, I find Justice Thomas’ concurrence in Holder, supra, to have considerable merit. Justice Thomas, joined by Justice Scalia, notes that:Holder, 512 U.S. at 891-92, 114 S.Ct. at 2591-92. Accordingly, “[t]he matters the Court has set out to resolve in vote dilution cases are questions of political philosophy, not questions of law. As such, they are not readily subjected to any judicially manageable standards that can guide courts in attempting to select between competing theories.” Id. at 901, 114 S.Ct. at 2596 (footnote omitted). Determining issues of district compactness and shape no more involves courts in standardless policy-making than does each and every judicial endeavor under theby construing the [
Voting Rights Act ] to cover potentially dilutive electoral mechanisms, we have immersed the federal courts in a hopeless project of weighing questions of political theory.... [F]or it is only a resort to political theory that can enable a court to determine which electoral systems provide the “fairest” levels of representation or the most “effective” or “undiluted” votes to minorities.
Paradise and Sheet Metal Workers involved Equal protection challenges to affirmative actions plans that were judicially-imposed; Wygant and Fullilove challenges to ones that were voluntarily adopted. But the distinction is of no consequence at this stage of the analysis, for the Court has applied the same “narrowly tailored” analysis---derived essentially from Justice Powell‘s plurality opinion in Wygant and his earlier concurrence in Fullilove---to both types of plans. Compare Paradise, 480 U.S. at 171-85, 107 S.Ct. at 1066-73 (plurality); id. at 186-89, 107 S.Ct. at 1074-76 (Powell, J., concurring) and Sheet Metal Workers, 478 U.S. at 479-81, 106 S.Ct. at 3051-53 (plurality); id. at 485-89, 106 S.Ct. at 3054-57 (Powell, J., concurring) with Wygant, 476 U.S. at 279-84, 106 S.Ct. at 1849-52 (plurality); and Fullilove, 448 U.S. at 510-15, 100 S.Ct. at 2791-94 (Powell, J., concurring).
Though amended § 2 has no expiration date, it too has a built-in mechanism which ensures that its race-based remedies will not be available any longer than is reasonably necessary to eliminate the effects of the particular discrimination which they are designed to redress. That mechanism is § 2‘s substantive requirement that the relevant minority prove the continued existence of racial bloc voting in order to obtain race-based relief under it. In application, this requirement means that § 2 can be used to compel race-based remedial redistricting only so long as its elections continue to be characterized by significant racial bloc voting---the most lasting effect of the official discrimination which § 2 is designed to remedy.