SHAW ET AL. v. RENO, ATTORNEY GENERAL, ET AL.
No. 92-357
Supreme Court of the United States
Argued April 20, 1993—Decided June 28, 1993
509 U.S. 630
Robinson O. Everett argued the cause for appellants. With him on the briefs was Jeffrey B. Parsons.
H. Jefferson Powell argued the cause for state appellees. With him on the briefs were Michael F. Easley, Attorney General of North Carolina, Edwin M. Speas, Jr., Senior
JUSTICE O‘CONNOR delivered the opinion of the Court.
This case involves two of the most complex and sensitive issues this Court has faced in recent years: the meaning of the constitutional “right” to vote, and the propriety of race-based state legislation designed to benefit members of historically disadvantaged racial minority groups. As a result of the 1990 census, North Carolina became entitled to a 12th seat in the United States House of Representatives. The General Assembly enacted a reapportionment plan that included one majority-black congressional district. After the Attorney General of the United States objected to the plan pursuant to § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended,
I
The voting age population of North Carolina is approximately 78% white, 20% black, and 1% Native American; the remaining 1% is predominantly Asian. App. to Brief for Federal Appellees 16a. The black population is relatively dispersed; blacks constitute a majority of the general population in only 5 of the State‘s 100 counties. Brief for Appellants 57. Geographically, the State divides into three regions: the eastern Coastal Plain, the central Piedmont Plateau, and the western mountains. H. Lefler & A. Newsom, The History of a Southern State: North Carolina 18-22 (3d ed. 1973). The largest concentrations of black citizens live in the Coastal Plain, primarily in the northern part. O. Gade & H. Stillwell, North Carolina: People and Environments 65-68 (1986). The General Assembly‘s first redistricting plan contained one majority-black district centered in that area of the State.
Forty of North Carolina‘s one hundred counties are covered by § 5 of the Voting Rights Act of 1965,
Under § 5, the State remained free to seek a declaratory judgment from the District Court for the District of Columbia notwithstanding the Attorney General‘s objection. It did not do so. Instead, the General Assembly enacted a revised redistricting plan, 1991 N. C. Extra Sess. Laws, ch. 7, that included a second majority-black district. The General Assembly located the second district not in the south-central to southeastern part of the State, but in the north-central region along Interstate 85. See Appendix, infra.
The first of the two majority-black districts contained in the revised plan, District 1, is somewhat hook shaped. Centered in the northeast portion of the State, it moves southward until it tapers to a narrow band; then, with finger-like extensions, it reaches far into the southernmost part of the State near the South Carolina border. District 1 has been compared to a “Rorschach ink-blot test,” Shaw v. Barr, 808 F. Supp. 461, 476 (EDNC 1992) (Voorhees, C. J., concurring in part and dissenting in part), and a “bug splattered on a windshield,” Wall Street Journal, Feb. 4, 1992, p. A14.
The second majority-black district, District 12, is even more unusually shaped. It is approximately 160 miles long and, for much of its length, no wider than the I-85 corridor. It winds in snakelike fashion through tobacco country, financial centers, and manufacturing areas “until it gobbles in
The Attorney General did not object to the General Assembly‘s revised plan. But numerous North Carolinians did. The North Carolina Republican Party and individual voters brought suit in Federal District Court, alleging that the plan constituted an unconstitutional political gerrymander under Davis v. Bandemer, 478 U. S. 109 (1986). That claim was dismissed, see Pope v. Blue, 809 F. Supp. 392 (WDNC), and this Court summarily affirmed, 506 U. S. 801 (1992).
Shortly after the complaint in Pope v. Blue was filed, appellants instituted the present action in the United States District Court for the Eastern District of North Carolina. Appellants alleged not that the revised plan constituted a political gerrymander, nor that it violated the “one person, one vote” principle, see Reynolds v. Sims, 377 U. S. 533, 558 (1964), but that the State had created an unconstitutional racial gerrymander. Appellants are five residents of Dur-
Appellants contended that the General Assembly‘s revised reapportionment plan violated several provisions of the United States Constitution, including the Fourteenth Amendment. They alleged that the General Assembly deliberately “create[d] two Congressional Districts in which a majority of black voters was concentrated arbitrarily—without regard to any other considerations, such as compactness, contiguousness, geographical boundaries, or political subdivisions” with the purpose “to create Congressional Districts along racial lines” and to assure the election of two black representatives to Congress. App. to Juris. Statement 102a. Appellants sought declaratory and injunctive relief against the state appellees. They sought similar relief against the federal appellees, arguing, alternatively, that the federal appellees had misconstrued the Voting Rights Act or that the Act itself was unconstitutional.
The three-judge District Court granted the federal appellees’ motion to dismiss. 808 F. Supp. 461 (EDNC 1992). The court agreed unanimously that it lacked subject matter jurisdiction by reason of § 14(b) of the Voting Rights Act,
By a 2-to-1 vote, the District Court also dismissed the complaint against the state appellees. The majority found no support for appellants’ contentions that race-based districting is prohibited by Article I, § 4, or Article I, § 2, of the Constitution, or by the Privileges and Immunities Clause of the Fourteenth Amendment. It deemed appellants’ claim under the Fifteenth Amendment essentially subsumed within their related claim under the Equal Protection Clause. 808 F. Supp., at 468-469. That claim, the majority concluded, was barred by United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U. S. 144 (1977) (UJO).
The majority first took judicial notice of a fact omitted from appellants’ complaint: that appellants are white. It rejected the argument that race-conscious redistricting to benefit minority voters is per se unconstitutional. The majority also rejected appellants’ claim that North Carolina‘s reapportionment plan was impermissible. The majority read UJO to stand for the proposition that a redistricting scheme violates white voters’ rights only if it is “adopted with the purpose and effect of discriminating against white voters ... on account of their race.” 808 F. Supp., at 472. The purposes of favoring minority voters and complying with the Voting Rights Act are not discriminatory in the constitutional sense, the court reasoned, and majority-minority districts have an impermissibly discriminatory effect only when they unfairly dilute or cancel out white voting strength. Because the State‘s purpose here was to comply with the Voting Rights Act, and because the General Assembly‘s plan did not lead to proportional underrepresentation of white voters state-
Chief Judge Voorhees agreed that race-conscious redistricting is not per se unconstitutional but dissented from the rest of the majority‘s equal protection analysis. He read JUSTICE WHITE‘s opinion in UJO to authorize race-based reapportionment only when the State employs traditional districting principles such as compactness and contiguity. 808 F. Supp., at 475-477 (opinion concurring in part and dissenting in part). North Carolina‘s failure to respect these principles, in Judge Voorhees’ view, “augur[ed] a constitutionally suspect, and potentially unlawful, intent” sufficient to defeat the state appellees’ motion to dismiss. Id., at 477.
We noted probable jurisdiction. 506 U. S. 1019 (1992).
II
A
“The right to vote freely for the candidate of one‘s choice is of the essence of a democratic society....” Reynolds v. Sims, 377 U. S., at 555. For much of our Nation‘s history, that right sadly has been denied to many because of race. The Fifteenth Amendment, ratified in 1870 after a bloody Civil War, promised unequivocally that “[t]he right of citizens of the United States to vote” no longer would be “denied or abridged ... by any State on account of race, color, or previous condition of servitude.”
But “[a] number of states ... refused to take no for an answer and continued to circumvent the fifteenth amendment‘s prohibition through the use of both subtle and blunt instruments, perpetuating ugly patterns of pervasive racial discrimination.” Blumstein, Defining and Proving Race Discrimination: Perspectives on the Purpose Vs. Results Approach from the Voting Rights Act, 69 Va. L. Rev. 633, 637 (1983). Ostensibly race-neutral devices such as literacy tests with “grandfather” clauses and “good character” provisos were devised to deprive black voters of the franchise.
Alabama‘s exercise in geometry was but one example of the racial discrimination in voting that persisted in parts of this country nearly a century after ratification of the Fifteenth Amendment. See South Carolina v. Katzenbach, 383 U. S. 301, 309-313 (1966). In some States, registration of eligible black voters ran 50% behind that of whites. Id., at 313. Congress enacted the Voting Rights Act of 1965 as a dramatic and severe response to the situation. The Act proved immediately successful in ensuring racial minorities access to the voting booth; by the early 1970‘s, the spread between black and white registration in several of the targeted Southern States had fallen to well below 10%. A. Thernstrom, Whose Votes Count? Affirmative Action and Minority Voting Rights 44 (1987).
But it soon became apparent that guaranteeing equal access to the polls would not suffice to root out other racially discriminatory voting practices. Drawing on the “one person, one vote” principle, this Court recognized that “[t]he right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot.”
B
It is against this background that we confront the questions presented here. In our view, the District Court properly dismissed appellants’ claims against the federal appellees. Our focus is on appellants’ claim that the State engaged in unconstitutional racial gerrymandering. That argument strikes a powerful historical chord: It is unsettling how closely the North Carolina plan resembles the most egregious racial gerrymanders of the past.
An understanding of the nature of appellants’ claim is critical to our resolution of the case. In their complaint, appellants did not claim that the General Assembly‘s reapportionment plan unconstitutionally “diluted” white voting strength. They did not even claim to be white. Rather, appellants’ complaint alleged that the deliberate segregation of voters into separate districts on the basis of race violated their constitutional right to participate in a “color-blind”
Despite their invocation of the ideal of a “color-blind” Constitution, see Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (Harlan, J., dissenting), appellants appear to concede that race-conscious redistricting is not always unconstitutional. See Tr. of Oral Arg. 16-19. That concession is wise: This Court never has held that race-conscious state decisionmaking is impermissible in all circumstances. What appellants object to is redistricting legislation that is so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races for purposes of voting, without regard for traditional districting principles and without sufficiently compelling justification. For the reasons that follow, we conclude that appellants have stated a claim upon which relief can be granted under the Equal Protection Clause. See
III
A
The Equal Protection Clause provides that “[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.”
No inquiry into legislative purpose is necessary when the racial classification appears on the face of the statute. See Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 272 (1979). Accord, Washington v. Seattle School Dist. No. 1, 458 U. S. 457, 485 (1982). Express racial classifications are immediately suspect because, “[a]bsent searching judicial inquiry ..., there is simply no way of determining what classifications are ‘benign’ or ‘remedial’ and what classi-
Classifications of citizens solely on the basis of race “are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Hirabayashi v. United States, 320 U. S. 81, 100 (1943). Accord, Loving v. Virginia, 388 U. S. 1, 11 (1967). They threaten to stigmatize individuals by reason of their membership in a racial group and to incite racial hostility. Croson, supra, at 493 (plurality opinion); UJO, supra, at 173 (Brennan, J., concurring in part) (“[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“). Accordingly, we have held that the Fourteenth Amendment requires state legislation that expressly distinguishes among citizens because of their race to be narrowly tailored to further a compelling governmental interest. See, e. g., Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 277-278 (1986) (plurality opinion); id., at 285 (O‘CONNOR, J., concurring in part and concurring in judgment).
These principles apply not only to legislation that contains explicit racial distinctions, but also to those “rare” statutes that, although race neutral, are, on their face, “unexplainable on grounds other than race.” Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 266 (1977). As we explained in Feeney:
“A racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only
upon an extraordinary justification. Brown v. Board of Education, 347 U. S. 483; McLaughlin v. Florida, 379 U. S. 184. This rule applies as well to a classification that is ostensibly neutral but is an obvious pretext for racial discrimination. Yick Wo v. Hopkins, 118 U. S. 356; Guinn v. United States, 238 U. S. 347; cf. Lane v. Wilson, 307 U. S. 268; Gomillion v. Lightfoot, 364 U. S. 339.” 442 U. S., at 272.
B
Appellants contend that redistricting legislation that is so bizarre on its face that it is “unexplainable on grounds other than race,” Arlington Heights, supra, at 266, demands the same close scrutiny that we give other state laws that classify citizens by race. Our voting rights precedents support that conclusion.
In Guinn v. United States, 238 U. S. 347 (1915), the Court invalidated under the Fifteenth Amendment a statute that imposed a literacy requirement on voters but contained a “grandfather clause” applicable to individuals and their lineal descendants entitled to vote “on [or prior to] January 1, 1866.” Id., at 357 (internal quotation marks omitted). The determinative consideration for the Court was that the law, though ostensibly race neutral, on its face “embod[ied] no exercise of judgment and rest[ed] upon no discernible reason” other than to circumvent the prohibitions of the Fifteenth Amendment. Id., at 363. In other words, the statute was invalid because, on its face, it could not be explained on grounds other than race.
The Court applied the same reasoning to the “uncouth twenty-eight-sided” municipal boundary line at issue in Gomillion. Although the statute that redrew the city limits of Tuskegee was race neutral on its face, plaintiffs alleged that its effect was impermissibly to remove from the city virtually all black voters and no white voters. The Court reasoned:
The majority resolved the case under the Fifteenth Amendment. Id., at 342-348. Justice Whittaker, however, concluded that the “unlawful segregation of races of citizens” into different voting districts was cognizable under the Equal Protection Clause. Id., at 349 (concurring opinion). This Court‘s subsequent reliance on Gomillion in other Fourteenth Amendment cases suggests the correctness of Justice Whittaker‘s view. See, e. g., Feeney, supra, at 272; Whitcomb v. Chavis, 403 U. S. 124, 149 (1971); see also Mobile v. Bolden, 446 U. S. 55, 86 (1980) (STEVENS, J., concurring in judgment) (Gomillion‘s holding “is compelled by the Equal Protection Clause“). Gomillion thus supports appellants’ contention 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.
The Court extended the reasoning of Gomillion to congressional districting in Wright v. Rockefeller, 376 U. S. 52 (1964). At issue in Wright were four districts contained in a New York apportionment statute. The plaintiffs alleged that the statute excluded nonwhites from one district and concentrated them in the other three. Id., at 53-54. Every Member of the Court assumed that the plaintiffs’ allegation that the statute “segregate[d] eligible voters by race and place of origin” stated a constitutional claim. Id., at 56 (internal quotation marks omitted); id., at 58 (Harlan, J., concurring); id., at 59-62 (Douglas, J., dissenting). The Justices disagreed only as to whether the plaintiffs had carried their burden of proof at trial. The dissenters thought the unusual
Wright illustrates the difficulty of determining from the face of a single-member districting plan that it purposefully distinguishes between voters on the basis of race. A reapportionment statute typically does not classify persons at all; it classifies tracts of land, or addresses. Moreover, 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. That sort of race consciousness does not lead inevitably to impermissible race discrimination. As Wright demonstrates, when members of a racial group live together in one community, a reapportionment plan that concentrates members of the group in one district and excludes them from others may reflect wholly legitimate purposes. The district lines may be drawn, for example, to provide for compact districts of contiguous territory, or to maintain the integrity of political subdivisions. See Reynolds, 377 U. S., at 578 (recognizing these as legitimate state interests).
The difficulty of proof, of course, does not mean that a racial gerrymander, once established, should receive less scrutiny under the Equal Protection Clause than other state legislation classifying citizens by race. Moreover, it seems clear to us that proof sometimes will not be difficult at all. In some exceptional cases, a reapportionment plan may be so highly irregular that, on its face, it rationally cannot be
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. See, e. g., Holland v. Illinois, 493 U. S. 474, 484, n. 2 (1990) (“[A] prosecutor‘s assumption that a black juror may be presumed to be partial simply because he is black ... violates the Equal Protection
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. As Justice Douglas explained in his dissent in Wright v. Rockefeller nearly 30 years ago:
“Here the individual is important, not his race, his creed, or his color. The principle of equality is at war with the notion that District A must be represented by a Negro, as it is with the notion that District B must be represented by a Caucasian, District C by a Jew, District D by a Catholic, and so on.... That system, by whatever name it is called, is a divisive force in a community, emphasizing differences between candidates and voters that are irrelevant in the constitutional sense....
...
“When racial or religious lines are drawn by the State, the multiracial, multireligious communities that our Constitution seeks to weld together as one become separatist; antagonisms that relate to race or to religion rather than to political issues are generated; communities seek not the best representative but the best racial or religious partisan. Since that system is at war with
the democratic ideal, it should find no footing here.” 376 U. S., at 66-67.
For these reasons, we conclude that a plaintiff challenging a reapportionment statute under the Equal Protection Clause may state a claim by alleging that the legislation, though race neutral on its face, rationally cannot be understood as anything other than an effort to separate voters into different districts on the basis of race, and that the separation lacks sufficient justification. It is unnecessary for us to decide whether or how a reapportionment plan that, on its face, can be explained in nonracial terms successfully could be challenged. Thus, we express no view as to whether “the intentional creation of majority-minority districts, without more,” always gives rise to an equal protection claim. Post, at 668 (WHITE, J., dissenting). We hold only that, on the facts of this case, appellants have stated a claim sufficient to defeat the state appellees’ motion to dismiss.
C
The dissenters consider the circumstances of this case “functionally indistinguishable” from multimember districting and at-large voting systems, which are loosely described as “other varieties of gerrymandering.” Post, at 671 (WHITE, J., dissenting); see also post, at 684 (SOUTER, J., dissenting). We have considered the constitutionality of these practices in other Fourteenth Amendment cases and have required plaintiffs to demonstrate that the challenged practice has the purpose and effect of diluting a racial group‘s voting strength. See, e. g., Rogers v. Lodge, 458 U. S. 613 (1982) (at-large system); Mobile v. Bolden, 446 U. S. 55 (1980) (same); White v. Regester, 412 U. S. 755 (1973) (multimember districts); Whitcomb v. Chavis, 403 U. S. 124 (1971) (same); see also supra, at 640-641. At-large and multimember schemes, however, do not classify voters on the basis of race. Classifying citizens by race, as we have said, threatens spe-
cial harms that are not present in our vote-dilution cases. It therefore warrants different analysis.
JUSTICE SOUTER apparently believes that racial gerrymandering is harmless unless it dilutes a racial group‘s voting strength. See post, at 684 (dissenting opinion). 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. See supra, at 647-649. JUSTICE SOUTER does not adequately explain why these harms are not cognizable under the
The dissenters make two other arguments that cannot be reconciled with our precedents. First, they suggest that a racial gerrymander of the sort alleged here is functionally equivalent to gerrymanders for nonracial purposes, such as political gerrymanders. See post, at 679 (opinion of STEVENS, J.); see also post, at 662-663 (opinion of WHITE, J.). This Court has held political gerrymanders to be justiciable under the Equal Protection Clause. See Davis v. Bandemer, 478 U. S. 109, 118-127 (1986). But nothing in our case law compels the conclusion that racial and political gerrymanders are subject to precisely the same constitutional scrutiny. In fact, our country‘s long and persistent history of racial discrimination in voting—as well as our
Second, JUSTICE STEVENS argues that racial gerrymandering poses no constitutional difficulties when district lines are drawn to favor the minority, rather than the majority. See post, at 678 (dissenting opinion). We have made clear, however, that equal protection analysis “is not dependent
Finally, nothing in the Court‘s highly fractured decision in UJO—on which the District Court almost exclusively relied, and which the dissenters evidently believe controls, see post, at 664-667 (opinion of WHITE, J.); post, at 684, and n. 6 (opinion of SOUTER, J.)—forecloses the claim we recognize today. UJO concerned New York‘s revision of a reapportionment plan to include additional majority-minority districts in response to the Attorney General‘s denial of administrative preclearance under
“[W]e think it . . . permissible for a State, employing sound districting principles such as compactness and population equality, to attempt to prevent racial minorities from being repeatedly outvoted by creating districts that will afford fair representation to the members of those racial groups who are sufficiently numerous and whose residential patterns afford the opportunity of creating districts in which they will be in the majority.”
430 U. S., at 168 (opinion of WHITE, J., joined by STEVENS and REHNQUIST, JJ.) (emphasis added).
As a majority of the Justices construed the complaint, the UJO plaintiffs made a different claim: that the New York plan impermissibly “diluted” their voting strength. Five of the eight Justices who participated in the decision resolved the case under the framework the Court previously had adopted for vote-dilution cases. Three Justices rejected the plaintiffs’ claim on the grounds that the New York statute “represented no racial slur or stigma with respect to whites or any other race” and left white voters with better than proportional representation. Id., at 165-166. Two others concluded that the statute did not minimize or cancel out a minority group‘s voting strength and that the State‘s intent to comply with the Voting Rights Act, as interpreted by the Department of Justice, “foreclose[d] any finding that [the State] acted with the invidious purpose of discriminating against white voters.” Id., at 180 (Stewart, J., joined by Powell, J., concurring in judgment).
The District Court below relied on these portions of UJO to reject appellants’ claim. See 808 F. Supp., at 472-473. In our view, the court used the wrong analysis. UJO‘s framework simply does not apply where, as here, a reapportionment plan is alleged to be so irrational on its face that it immediately offends principles of racial equality. UJO set forth a standard under which white voters can establish unconstitutional vote dilution. But it did not purport to overrule Gomillion or Wright. Nothing in the decision precludes white voters (or voters of any other race) from bringing the analytically distinct claim that a reapportionment plan rationally cannot be understood as anything other than an effort to segregate citizens into separate voting districts on the basis of race without sufficient justification. Because appellants here stated such a claim, the District Court erred in dismissing their complaint.
JUSTICE SOUTER contends that exacting scrutiny of racial gerrymanders under the
Earlier this Term, we unanimously reaffirmed that racial bloc voting and minority-group political cohesion never can be assumed, but specifically must be proved in each case in order to establish that a redistricting plan dilutes minority voting strength in violation of
The state appellees suggest that a covered jurisdiction may have a compelling interest in creating majority-minority
For example, on remand North Carolina might claim that it adopted the revised plan in order to comply with the
Although the Court concluded that the redistricting scheme at issue in Beer was nonretrogressive, it did not hold that the plan, for that reason, was immune from constitutional challenge. The Court expressly declined to reach that question. See 425 U. S., at 142, n. 14. Indeed, the
Before us, the state appellees contend that the General Assembly‘s revised plan was necessary not to prevent retrogression, but to avoid dilution of black voting strength in violation of
Appellants maintain that the General Assembly‘s revised plan could not have been required by
The state appellees alternatively argue that the General Assembly‘s plan advanced a compelling interest entirely distinct from the Voting Rights Act. We previously have recognized a significant state interest in eradicating the effects of past racial discrimination. See, e. g., Croson, 488 U. S., at 491-493 (opinion of O‘CONNOR, J., joined by REHNQUIST, C. J., and WHITE, J.); id., at 518 (KENNEDY, J., concurring in part and concurring in judgment); Wygant, 476 U. S., at 280-282 (plurality opinion); id., at 286 (O‘CONNOR, J., concurring in part and concurring in judgment). But the State must have a ” ‘strong basis in evidence for [concluding] that remedial action [is] necessary.’ ” Croson, supra, at 500 (quoting Wygant, supra, at 277 (plurality opinion)).
The state appellees submit that two pieces of evidence gave the General Assembly a strong basis for believing that remedial action was warranted here: the Attorney General‘s imposition of the
V
Racial classifications of any sort pose the risk of lasting harm to our society. They reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin. 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
In this case, the Attorney General suggested that North Carolina could have created a reasonably compact second majority-minority district in the south-central to southeastern part of the State. We express no view as to whether appellants successfully could have challenged such a district under the
It is so ordered.
[Appendix containing map of North Carolina Congressional Plan follows this page.]
JUSTICE WHITE, with whom JUSTICE BLACKMUN and JUSTICE STEVENS join, dissenting.
The facts of this case mirror those presented in United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U. S. 144 (1977) (UJO), where the Court rejected a claim that creation of a majority-minority district violated the Constitution, either as a per se matter or in light of the circumstances leading to the creation of such a district. Of particular relevance, five of the Justices reasoned that members of the white majority could not plausibly argue that their influence over the political process had been unfairly canceled, see id., at 165-168 (opinion of WHITE, J., joined by REHNQUIST and STEVENS, JJ.), or that such had been the State‘s intent, see id., at 179-180 (Stewart, J., joined by Powell, J., concurring in judgment). Accordingly, they held that plaintiffs were not entitled to relief under the Constitution‘s
The Court today chooses not to overrule, but rather to sidestep, UJO. It does so by glossing over the striking similarities, focusing on surface differences, most notably the (admittedly unusual) shape of the newly created district, and imagining an entirely new cause of action. Because the holding is limited to such anomalous circumstances, ante, at 649, it perhaps will not substantially hamper a State‘s legitimate efforts to redistrict in favor of racial minorities. Nonetheless, the notion that North Carolina‘s plan, under which whites remain a voting majority in a disproportionate number of congressional districts, and pursuant to which the State has sent its first black representatives since Reconstruction to the United States Congress, might have violated appellants’ constitutional rights is both a fiction and a departure from settled equal protection principles. Seeing no good reason to engage in either, I dissent.
I
A
The grounds for my disagreement with the majority are simply stated: Appellants have not presented a cognizable claim, because they have not alleged a cognizable injury. To date, we have held that only two types of state voting practices could give rise to a constitutional claim. The first involves direct and outright deprivation of the right to vote, for example by means of a poll tax or literacy test. See, e. g., Guinn v. United States, 238 U. S. 347 (1915). Plainly, this variety is not implicated by appellants’ allegations and need not detain us further. The second type of unconstitutional practice is that which “affects the political strength of various groups,” Mobile v. Bolden, 446 U. S. 55, 83 (1980) (STEVENS, J., concurring in judgment), in violation of the Equal Protection Clause. As for this latter category, we
The central explanation has to do with the nature of the redistricting process. As the majority recognizes, “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.” Ante, at 646 (emphasis in original). “Being aware,” in this context, is shorthand for “taking into account,” and it hardly can be doubted that legislators routinely engage in the business of making electoral predictions based on group characteristics—racial, ethnic, and the like.
“[L]ike bloc-voting by race, [the racial composition of geographic area] too is a fact of life, well known to those responsible for drawing electoral district lines. These lawmakers are quite aware that the districts they create will have a white or a black majority; and with each new district comes the unavoidable choice as to the racial composition of the district.” Beer v. United States, 425 U. S. 130, 144 (1976) (WHITE, J., dissenting).
As we have said, “it requires no special genius to recognize the political consequences of drawing a district line along one street rather than another.” Gaffney v. Cummings, 412 U. S. 735, 753 (1973); see also Mobile v. Bolden, supra, at 86-87 (STEVENS, J., concurring in judgment). Because extirpating such considerations from the redistricting process is unrealistic, the Court has not invalidated all plans that consciously use race, but rather has looked at their impact.
Redistricting plans also reflect group interests and inevitably are conceived with partisan aims in mind. To allow judicial interference whenever this occurs would be to invite constant and unmanageable intrusion. Moreover, a group‘s power to affect the political process does not automatically dissipate by virtue of an electoral loss. Accordingly, we have asked that an identifiable group demonstrate more than mere lack of success at the polls to make out a successful gerrymandering claim. See, e. g., White v. Regester, 412 U. S. 755, 765-766 (1973); Whitcomb v. Chavis, 403 U. S. 124, 153-155 (1971).
With these considerations in mind, we have limited such claims by insisting upon a showing that “the political processes . . . were not equally open to participation by the group in question—that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice.” White v. Regester, supra, at 766. Indeed, as a brief survey of decisions illustrates, the Court‘s gerrymandering cases all carry this theme—that it is not mere suffering at the polls but discrimination in the polity with which the Constitution is concerned.
In Whitcomb v. Chavis, 403 U. S., at 149, we searched in vain for evidence that black voters “had less opportunity than did other . . . residents to participate in the political processes and to elect legislators of their choice.” More generally, we remarked:
“The mere fact that one interest group or another concerned with the outcome of [the district‘s] elections has found itself outvoted and without legislative seats of its
own provides no basis for invoking constitutional remedies where . . . there is no indication that this segment of the population is being denied access to the political system.” Id., at 154-155.
Again, in White v. Regester, supra, the same criteria were used to uphold the District Court‘s finding that a redistricting plan was unconstitutional. The “historic and present condition” of the Mexican-American community, id., at 767, a status of cultural and economic marginality, id., at 768, as well as the legislature‘s unresponsiveness to the group‘s interests, id., at 768-769, justified the conclusion that Mexican-Americans were “effectively removed from the political processes,” and “invidiously excluded . . . from effective participation in political life,” id., at 769. Other decisions of this Court adhere to the same standards. See Rogers v. Lodge, 458 U. S. 613, 624-626 (1982); Chapman v. Meier, 420 U. S. 1, 17 (1975) (requiring proof that “the group has been denied access to the political process equal to the access of other groups“).2
I summed up my views on this matter in the plurality opinion in Davis v. Bandemer, 478 U. S. 109 (1986).3 Because districting inevitably is the expression of interest group politics, and because “the power to influence the political process is not limited to winning elections,” id., at 132,
To distinguish a claim that alleges that the redistricting scheme has discriminatory intent and effect from one that does not has nothing to do with dividing racial classifications between the “benign” and the malicious—an enterprise which, as the majority notes, the Court has treated with skepticism. See ante, at 642-643. Rather, the issue is whether the classification based on race discriminates
B
The most compelling evidence of the Court‘s position prior to this day, for it is most directly on point, is UJO, 430 U. S. 144 (1977). The Court characterizes the decision as “highly fractured,” ante, at 651, but that should not detract attention from the rejection by a majority in UJO of the claim that the State‘s intentional creation of majority-minority districts transgressed constitutional norms. As stated above, five Justices were of the view that, absent any contention that the proposed plan was adopted with the intent, or had the effect, of unduly minimizing the white majority‘s voting strength, the
“It is true that New York deliberately increased the nonwhite majorities in certain districts in order to enhance the opportunity for election of nonwhite representatives from those districts. Nevertheless, there was no fencing out of the white population from participation in the political processes of the county, and the
plan did not minimize or unfairly cancel out white voting strength.” 430 U. S., at 165.
In a similar vein, Justice Stewart was joined by Justice Powell in stating:
“The petitioners have made no showing that a racial criterion was used as a basis for denying them their right to vote, in contravention of the
Fifteenth Amendment . See Gomillion v. Lightfoot, 364 U. S. 339. They have made no showing that the redistricting scheme was employed as part of a ‘contrivance to segregate‘; to minimize or cancel out the voting strength of a minority class or interest; or otherwise to impair or burden the opportunity of affected persons to participate in the political process.” Id., at 179 (opinion concurring in judgment) (some citations omitted).
Under either formulation, it is irrefutable that appellants in this proceeding likewise have failed to state a claim. As was the case in New York, a number of North Carolina‘s political subdivisions have interfered with black citizens’ meaningful exercise of the franchise and are therefore subject to
the Attorney General‘s satisfaction that its proposed redistricting had neither the purpose nor the effect of abridging the right to vote on account of race or color. Cf. UJO, supra, at 150. The Attorney General‘s interposition of a
In light of this background, it strains credulity to suggest that North Carolina‘s purpose in creating a second majority-minority district was to discriminate against members of the majority group by “impair[ing] or burden[ing their] opportunity . . . to participate in the political process.” Id., at 179 (Stewart, J., concurring in judgment). The State has made no mystery of its intent, which was to respond to the Attorney General‘s objections, see Brief for State Appellees 13-14, by improving the minority group‘s prospects of electing a candidate of its choice. I doubt that this constitutes a discriminatory purpose as defined in the Court‘s equal protection cases—i. e., an intent to aggravate “the unequal distribution of electoral power.” Post, at 678 (STEVENS, J., dissenting). But even assuming that it does, there is no question that appellants have not alleged the requisite discriminatory effects. Whites constitute roughly 76% of the total population and 79% of the voting age population in North Carolina. Yet, under the State‘s plan, they still constitute a voting majority in 10 (or 83%) of the 12 congressional districts. Though they might be dissatisfied at the prospect of casting a vote for a losing candidate—a lot shared by many, including a disproportionate number of minor
II
The majority attempts to distinguish UJO by imagining a heretofore unknown type of constitutional claim. In its words, ”UJO set forth a standard under which white voters can establish unconstitutional vote dilution. . . . Nothing in the decision precludes white voters (or voters of any other race) from bringing the analytically distinct claim that a reapportionment plan rationally cannot be understood as anything other than an effort to segregate citizens into separate voting districts on the basis of race without sufficient justification.” Ante, at 652. There is no support for this distinction in UJO, and no authority in the cases relied on by the Court either. More importantly, the majority‘s submission does not withstand analysis. The logic of its 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. The distinction is without foundation.
A
The essence of the majority‘s argument is that UJO dealt with a claim of vote dilution—which required a specific showing of harm—and that cases such as Gomillion v. Lightfoot, 364 U. S. 339 (1960), and Wright v. Rockefeller, 376 U. S. 52 (1964), dealt with claims of racial segregation—which did not. I read these decisions quite differently. Petitioners’
claim in UJO was that the State had violated the
Gomillion is consistent with this view. To begin, the Court‘s reliance on that case as the font of its novel type of claim is curious. Justice Frankfurter characterized the complaint as alleging a deprivation of the right to vote in violation of the
The only other case invoked by the majority is Wright v. Rockefeller, supra. Wright involved a challenge to a legislative plan that created four districts. In the 17th, 19th, and 20th Districts, whites constituted respectively 94.9%, 71.5%, and 72.5% of the population. 86.3% of the population in the 18th District was classified as nonwhite or Puerto Rican. See Wright v. Rockefeller, 211 F. Supp. 460, 472 (SDNY 1962) (Murphy, J., dissenting); 376 U. S., at 54. The plaintiffs alleged that the plan was drawn with the intent to segregate voters on the basis of race, in violation of the
Wright is relevant only to the extent that it illustrates a proposition with which I have no problem: that a complaint stating that a plan has carved out districts on the basis of race can, under certain circumstances, state a claim under the
B
Lacking support in any of the Court‘s precedents, the majority‘s novel type of claim also makes no sense. As I understand the theory that is put forth, a redistricting plan that uses race to segregate voters by drawing uncouth lines is harmful in a way that a plan that uses race to distribute voters differently is not, for the former bears an uncomfortable resemblance to political apartheid. See ante, at 647. The distinction is untenable.
Racial gerrymanders come in various shades: At-large voting schemes, see, e. g., White v. Regester, 412 U. S. 755 (1973); the fragmentation of a minority group among various districts so that it is a majority in none, Voinovich v. Quilter, 507 U. S. 146, 153 (1993), otherwise known as cracking, cf. Connor v. Finch, 431 U.S. 407, 422 (1977); the stacking of a large minority population concentration . . . with a larger white population, Parker, Racial Gerrymandering and Legislative Reapportionment, in Minority Vote Dilution 85, 92 (C. Davidson ed. 1984); and, finally, the concentration of [minority voters] into districts where they constitute an excessive majority, Thornburg v. Gingles, 478 U. S. 30, 46, n. 11 (1986), also called packing, Voinovich, supra, at 153. In each instance, race is consciously utilized by the legislature for electoral purposes; in each instance, we have put the plaintiff challenging the district lines to the
Not so, apparently, when the districting segregates by drawing odd-shaped lines.7 In that case, we are told, such proof no longer is needed. Instead, it is the State that must rebut the allegation that race was taken into account, a fact that, together with the legislators’ consideration of ethnic, religious, and other group characteristics, I had thought we practically took for granted, see supra, at 660. Part of the explanation for the majority‘s approach has to do, perhaps, with the emotions stirred by words such as segregation and political apartheid. But their loose and imprecise use by today‘s majority has, I fear, led it astray. See n. 7, supra. The consideration of race in segregation cases is no different than in other race-conscious districting; from the standpoint of the affected groups, moreover, the line-drawings all act in similar fashion.8 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.
The other part of the majority‘s explanation of its holding is related to its simultaneous discomfort and fascination with irregularly shaped districts. Lack of compactness or contiguity, like uncouth district lines, certainly is a helpful
But while district irregularities may provide strong indicia of a potential gerrymander, they do no more than that. In particular, they have no bearing on whether the plan ultimately is found to violate the Constitution. Given two districts drawn on similar, race-based grounds, the one does not become more injurious than the other simply by virtue of being snakelike, at least so far as the Constitution is concerned and absent any evidence of differential racial impact. The majority‘s contrary view is perplexing in light of its concession that compactness or attractiveness has never been held to constitute an independent federal constitutional requirement for state legislative districts. Gaffney, 412 U. S., at 752, n. 18; see ante, at 647. It is shortsighted as well, for a regularly shaped district can just as effectively effectuate racially discriminatory gerrymandering as an odd-shaped one.9 By focusing on looks rather than impact, the majority immediately casts attention in the wrong direction—toward superficialities of shape and size, rather than toward the political realities of district composition. R. Dixon, Democratic Representation: Reapportionment in Law and Politics 459 (1968).
[C]ourts have [no] constitutional warrant to invalidate a state plan, otherwise within tolerable population limits, because it undertakes, not to minimize or eliminate the political strength of any group or party, but to recognize it and, through districting, provide a rough sort of proportional representation in the legislative halls of the State. 412 U. S., at 754.
III
Although I disagree with the holding that appellants’ claim is cognizable, the Court‘s discussion of the level of scrutiny it requires warrants a few comments. I have no doubt that a State‘s compliance with the
The Court, while seemingly agreeing with this position, warns that the State‘s redistricting effort must be narrowly tailored to further its interest in complying with the law. Ante, at 658. It is evident to me, however, that what North Carolina did was precisely tailored to meet the objection of the Attorney General to its prior plan. Hence, I see no need
Furthermore, how it intends to manage this standard, I do not know. Is it more narrowly tailored to create an irregular majority-minority district as opposed to one that is compact but harms other state interests such as incumbency protection or the representation of rural interests? Of the following two options—creation of two minority influence districts or of a single majority-minority district—is one narrowly tailored and the other not? Once the Attorney General has found that a proposed redistricting change violates
IV
Since I do not agree that appellants alleged an equal protection violation and because the Court of Appeals faithfully followed the Court‘s prior cases, I dissent and would affirm the judgment below.
I join JUSTICE WHITE‘S dissenting opinion. I did not join Part IV of his opinion in United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U. S. 144 (1977), because I felt that its additional argument, id., at 165, was not necessary to decide that case. I nevertheless agree that the conscious use of race in redistricting does not violate the
JUSTICE STEVENS, dissenting.
For the reasons stated by JUSTICE WHITE, the decision of the District Court should be affirmed. I add these comments to emphasize that the two critical facts in this case are undisputed: First, the shape of District 12 is so bizarre that it must have been drawn for the purpose of either advantaging or disadvantaging a cognizable group of voters; and, second, regardless of that shape, it was drawn for the purpose of facilitating the election of a second black representative from North Carolina.
These unarguable facts, which the Court devotes most of its opinion to proving, give rise to three constitutional questions: Does the Constitution impose a requirement of contiguity or compactness on how the States may draw their electoral districts? Does the
The first question is easy. There is no independent constitutional requirement of compactness or contiguity, and the Court‘s opinion (despite its many references to the shape of District 12, see ante, at 635-636, 641, 642, 644-648) does not suggest otherwise. The existence of bizarre and uncouth district boundaries is powerful evidence of an ulterior purpose behind the shaping of those boundaries—usually a purpose to advantage the political party in control of the districting process. Such evidence will always be useful in cases that lack other evidence of invidious intent. In this case, however, we know what the legislators’ purpose was: The North Carolina Legislature drew District 12 to include a majority of African-American voters. See ante, at 634-635. Evidence of the district‘s shape is therefore convincing, but it is also cumulative, and, for our purposes, irrelevant.
As for the second question, I believe that the
Finally, we must ask whether otherwise permissible redistricting to benefit an underrepresented minority group becomes impermissible when the minority group is defined by its race. The Court today answers this question in the affirmative, and its answer is wrong. If it is permissible to draw boundaries to provide adequate representation for rural voters, for union members, for Hasidic Jews, for Polish Americans, or for Republicans, it necessarily follows that it is permissible to do the same thing for members of the very minority group whose history in the United States gave birth to the
Accordingly, I respectfully dissent.
JUSTICE SOUTER, dissenting.
Today, the Court recognizes a new cause of action under which a State‘s electoral redistricting plan that includes a configuration so bizarre, ante, at 644, that it rationally cannot be understood as anything other than an effort to separate voters into different districts on the basis of race [without] sufficient justification, ante, at 649, will be subjected to strict scrutiny. In my view there is no justification for the
I
Until today, the Court has analyzed equal protection claims involving race in electoral districting differently from equal protection claims involving other forms of governmental conduct, and before turning to the different regimes of analysis it will be useful to set out the relevant respects in which such districting differs from the characteristic circumstances in which a State might otherwise consciously consider race. Unlike other contexts in which we have addressed the State‘s conscious use of race, see, e. g., Richmond v. J. A. Croson Co., 488 U. S. 469 (1989) (city contracting); Wygant v. Jackson Bd. of Ed., 476 U. S. 267 (1986) (teacher layoffs), electoral districting calls for decisions that nearly always require some consideration of race for legitimate reasons where there is a racially mixed population. As long as members of racial groups have the commonality of interest implicit in our ability to talk about concepts like minority voting strength, and dilution of minority votes, cf. Thornburg v. Gingles, 478 U. S. 30, 46-51 (1986), and as long as racial bloc voting takes place,1 legislators will have to take race into account in order to avoid dilution of minority voting strength in the districting plans they adopt.2 One need look
A second distinction between districting and most other governmental decisions in which race has figured is that those other decisions using racial criteria characteristically occur in circumstances in which the use of race to the advantage of one person is necessarily at the obvious expense of a member of a different race. Thus, for example, awarding government contracts on a racial basis excludes certain firms from competition on racial grounds. See Richmond v. J. A. Croson Co., supra, at 493; see also Fullilove v. Klutznick, 448 U. S. 448, 484 (1980) (opinion of Burger, C. J.). And when race is used to supplant seniority in layoffs, someone is laid off who would not be otherwise. Wygant v. Jackson Bd. of Ed., supra, at 282-283 (plurality opinion). The same principle pertains in nondistricting aspects of voting law, where race-based discrimination places the disfavored voters at the disadvantage of exclusion from the franchise without any alternative benefit. See, e. g., Gomillion v. Lightfoot, 364 U. S. 339, 341 (1960) (voters alleged to have been excluded from voting in the municipality).
In districting, by contrast, the mere placement of an individual in one district instead of another denies no one a right
II
Our different approaches to equal protection in electoral districting and nondistricting cases reflect these differences. There is a characteristic coincidence of disadvantageous effect and illegitimate purpose associated with the State‘s use of race in those situations in which it has immediately trig
A consequence of this categorical approach is the absence of any need for further searching scrutiny once it has been shown that a given districting decision has a purpose and effect falling within one of those categories. If a cognizable harm like dilution or the abridgment of the right to participate in the electoral process is shown, the districting plan violates the
There is thus no theoretical inconsistency in having two distinct approaches to equal protection analysis, one for
III
The Court appears to accept this, and it does not purport to disturb the law of vote dilution in any way. See ante, at 652 (acknowledging that UJO set forth a standard under which white voters can establish unconstitutional vote dilution). Instead, the Court creates a new analytically distinct, ibid., cause of action, the principal element of which is that a districting plan be so bizarre on its face, ante, at 644, or irrational on its face, ante, at 652, or extremely irregular on its face, ante, at 642, that it rationally cannot be understood as anything other than an effort to segregate citizens into separate voting districts on the basis of race without sufficient justification, ante, at 652. Pleading such an element, the Court holds, suffices without a further allegation of harm, to state a claim upon which relief can be granted under the
It may be that the terms for pleading this cause of action will be met so rarely that this case will wind up an aberra
Nonetheless, in those cases where this cause of action is sufficiently pleaded, the State will have to justify its decision to consider race as being required by a compelling state interest, and its use of race as narrowly tailored to that interest. Meanwhile, in other districting cases, specific consequential harm will still need to be pleaded and proven, in the absence of which the use of race may be invalidated only if it is shown to serve no legitimate state purpose. Cf. Bolling v. Sharpe, 347 U. S. 497, 500 (1954).
The Court offers no adequate justification for treating the narrow category of bizarrely shaped district claims differently from other districting claims.9 The only justification I
Notes
Briefs of amici curiae urging affirmance were filed for the Democratic National Committee et al. by Wayne R. Arden and Jeffrey M. Wice; for the Lawyers’ Committee for Civil Rights under Law et al. by Herbert Wachtell, William H. Brown III, Thomas J. Henderson, Frank R. Parker, Brenda Wright, Nicholas DeB. Katzenbach, Michael R. Cole, Alan E. Kraus, Laughlin McDonald, Kathy Wilde, E. Richard Larson, and Dennis Courtland Hayes; for the NAACP Legal Defense and Educational Fund, Inc., by Elaine R. Jones, Charles Stephen Ralston, and Dayna L. Cunningham; and for Bolley Johnson et al. by Donald B. Verrilli, Jr., Scott A. Sinder, Kevin X. Crowley, and James A. Peters.