Lead Opinion
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, 42 U. S. C. § 1973c, the General Assembly passed new legislation creating a second majority-black district. Appellants allege that the revised plan, which contains district boundary lines of dramatically irregular shape, consti
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, 42 U. S. C. § 1973c, which prohibits a jurisdiction subject to its provisions from implementing changes in a “standard, practice, or procedure with respect to voting” without federal authorization, ibid. The jurisdiction must obtain either a judgment from the United States District Court for the District of Columbia declaring that the proposed change “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color” or administrative preclearance from the Attorney General. Ibid. Because the General Assembly’s reapportionment plan affected the covered counties, the parties agree that § 5 applied. Tr. of Oral Arg. 14, 27-29. The State chose to submit its plan to the Attorney General for preclearance.
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,
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 1-85 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,
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,
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 declaratoiX-and-i-njunctive -relief against the state^appellees. ¡Theysought similar relief against* t'he^ ''federaf 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.
By a 2-to-l 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.
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.”
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.
We noted probable jurisdiction.
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,
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,
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,
Ill
A
The Equal Protection Clause provides that “[n]o State shall... deny to any person within its jurisdiction the equal protection of the laws.” U. S. Const., Arndt. 14, § 1. Its central purpose is to prevent the States from purposefully discriminating between individuals on the basis of race. Washington v. Davis,
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,
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,
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.,
“A racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only*644 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,
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:
*645 “If these allegations upon a trial remained uncontradicted or unqualified, the conclusion would be irresistible, tantamount for all practical purposes to a mathematical demonstration, that the legislation is solely concerned with segregating white and colored voters by fencing Negro citizens out of town so as to deprive them of their pre-existing municipal vote.”364 U. S., at 341 .
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,
The Court extended the reasoning of Gomillion to congressional districting in Wright v. Rockefeller,
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,
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,
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*649 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,
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 Fourteenth Amendment.
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,
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 § 5. In that regard, it closely resembles the present case. But the cases are critically different in another way. The plaintiffs in UJO — members of a Hasidic community split between two districts under New York’s revised redistricting plan — did not allege that the plan, on its face, was so highly irregular that it rationally could be understood only as an effort to segregate voters by race. Indeed, the facts of the case would not have supported such a claim. Three Justices approved the New York statute, in part, precisely because it adhered to traditional districting principles:
“[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.”*652 430 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^] 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
Justice Souter contends that exacting scrutiny of racial gerrymanders under the Fourteenth Amendment is inappropriate because reapportionment “nearly always require[s] some consideration of race for legitimate reasons.” Post, at 680 (dissenting opinion). “As long as members of racial groups have [a] commonality of interest” and “racial bloc voting takes place,” he argues, “legislators will have to take race into account” in order to comply with the Voting Rights Act. Ibid. Justice Souter’s reasoning is flawed.
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 §2. See Growe v. Emison,
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 § 5 “nonretrogression” principle. Under that principle, a proposed voting change cannot be precleared if it will lead to “a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” Beer v. United States,
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
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 §2, as construed in Thornburg v. Gingles,
Appellants maintain that the General Assembly’s revised plan could not have been required by § 2. They contend that the State’s black population is too dispersed to support two geographically compact majority-black districts, as the bi
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,
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 § 5 preclearance requirement on 40 North Carolina counties, and the Gingles District Court’s findings of a long history of official racial discrimination in North Carolina’s political system and of pervasive racial bloc voting.
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 Fourteenth and Fifteenth Amendments embody, and to which the Nation continues to aspire. It is for these reasons that race-based districting by our state legislatures demands close judicial scrutiny.
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 Fourteenth Amendment. We also do not decide
It is so ordered.
[Appendix containing map of North Carolina Congressional Plan follows this page.]
Dissenting Opinion
with whom
The facts of this case mirror those presented in United Jewish Organizations of Williamsburgh, Inc. v. Carey,
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,
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
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,
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,
“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*664 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, swpra, 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,
1 summed up my views on this matter in the phibality opinion in Davis v. Bandemer,
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,
“It is true that New York deliberately increased the non white 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*667 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 §§ 4 and 5 of the Voting Rights Act. Cf. UJO, supra, at 148. In other words, North Carolina was found by Congress to have “‘resorted to the extraordinary stratagem of contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination in the face of adverse federal court decrees’ ” and therefore “would be likely to engage in ‘similar maneuvers in the future in order to evade the remedies for voting discrimination contained in the Act itself.’ ” McCain v. Lybrand,
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 burdening 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,
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 Fifteenth Amendment. See
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,
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 Fourteenth Amendment. To that end, however, there must be an allegation of discriminatory purpose and effect, for the constitutionality of a race-conscious redistricting plan
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,
Not so, apparently, when the districting “segregates” by drawing odd-shaped lines.
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,
“[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 .
Ill
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 Voting Rights Act clearly constitutes a compelling interest. Cf. UJO,
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 § 5’s nonretrogression principle in that it will abridge a racial minority’s right to vote, does “narrow tailoring” mean that the most the State can do is preserve the status quo? Or can it maintain that change, while attempting to enhance minority voting power in some other manner? This small sample only begins to scratch the surface of the problems raised by the majority’s test. But it suffices to illustrate the unworkability of a standard that is divorced from any measure of constitutional harm. In that, state efforts to remedy minority vote dilution are wholly unlike what typically has been labeled “affirmative action.” To the extent that no other racial group is injured, remedying a Voting Rights Act violation does not involve preferential treatment. Cf. Wygant, supra, at 295 (White, J., concurring in judgment). It involves, instead, an attempt to equalize treatment, and to provide minority voters with an effective voice in the political process. The Equal Protection Clause of the Constitution, surely, does not stand in the way.
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.
Notes
It has been argued that the required showing of discriminatory effect should be lessened once a plaintiff successfully demonstrates intentional discrimination. See Garza v. County of Los Angeles,
It should be noted that §2 of the Voting Rights Act forbids any State to impose specified devices or procedures that result in a denial or abridgment of the right to vote on account of race or color. Section 2 also provides that a violation of that prohibition “is established if, based oh the totality of circumstances, it is shown that the political processes leading to nomination or election . . . are not equally open to participation by members of a [protected] class ... 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.” 42 U. S. C. § 1973(b).
Although Davis involved political groups, the principles were expressly drawn from the Court’s racial gerrymandering cases. See
Although disagreeing with the Court’s holding in Davis that claims of political gerrymandering are justiciable, see id., at 144 (O’Connor, J., concurring in judgment), the author of today’s opinion expressed views on racial gerrymandering quite similar to my own:
“[W]here a racial minority group is characterized by ‘the traditional indicia of suspectness’ and is vulnerable to exclusion from the political process . . . individual voters who belong to that group enjoy some measure of protection against intentional dilution of their group voting strength by means of racial gerrymandering. . . . Even so, the individual’s right is infringed only if the racial minority can prove that it has ‘essentially been shut out of the political process.’ ” Id., at 151-152 (emphasis added). As explained below, that position cannot be squared with the one taken by the majority in this case.
In Thornburg v. Gingles,
This is not to say that a group that has been afforded roughly proportional representation never can make out a claim of unconstitutional discrimination. Such districting might have both the intent and effect of “packing” members of the group so as to deprive them of any influence in other districts. Again, however, the equal protection inquiry should look at the group’s overall influence over, and treatment by, elected representatives and the political process as a whole.
I borrow the term “segregate” from the majority, but, given its historical connotation, believe that its use is ill advised. Nor is it a particularly accurate description of what has occurred. The majority-minority district that is at the center of the controversy is, according to the State, 54.71% African-American. Brief for State Appellees 5, n. 6. Even if racial distribution was a factor, no racial group can be said to have been “segregated” — i. e., “set apart” or “isolate[dj.” Webster’s Collegiate Dictionary 1063 (9th ed. 1983).
The black plaintiffs in Gomillion v. Lightfoot,
As has been remarked, “[d]ragons, bacon strips, dumbbells and other strained shapes are not always reliable signs that partisan (or racial or ethnic or factional) interests are being served, while the most regularly drawn district may turn out to have been skillfully constructed with an intent to aid one party.” Sickels, Dragons, Bacon Strips, and Dumbbells — Who’s Afraid of Reapportionment?, 75 Yale L. J. 1300 (1966).
This appears to be what has occurred in this instance. In providing the reasons for the objection, the Attorney General noted that “[f]or the south-central to southeast area, there were several plans drawn providing for a second majority-minority congressional district” and that such a district would have been no more irregular than others in the State’s plan. See App. to Brief for Federal Appellees 10a. North Carolina’s decision to create a majority-minority district can be explained as an attempt to meet this objection. Its decision not to create the more compact southern majority-minority district that was suggested, on the other hand, was more likely a result of partisan considerations. Indeed, in a suit brought prior to this one, different plaintiffs charged that District 12 was “grossly contorted” and had “no logical explanation other than incumbency protection and the enhancement of Democratic partisan interests. . . . The plan ... ignores the directive of the [Department of Justice] to create a minority district in the southeastern portion of North Carolina since any such district would jeopardize the reelection of... the Democratic incumbent.” App. to Juris. Statement, O. T. 1991, No. 91-2038, p. 43a (Complaint in Pope v. Blue, No. 3:92CV71-P (WDNC)). With respect to this incident, one writer has observed that “understanding why the configurations are shaped as they are requires us to know at least as much about the interests of incumbent Democratic politicians, as it does knowledge of the Voting Rights Act.” Grofman, Would Vince Lombardi Have Been Right If He Had Said: “When It Comes to Redistricting, Race Isn’t Everything, It’s the Only Thing”?, 14 Cardozo L. Rev. 1237, 1258 (1993). The District Court in Pope dismissed appellants’ claim, reasoning in part that “plaintiffs do not allege, nor can they, that the state’s redistricting plan has caused them to be ‘shut out of the political process.’” Pope v. Blue,
Dissenting Opinion
dissenting.
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,
Dissenting Opinion
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 Equal Protection Clause prevent a State from drawing district boundaries for the purpose of
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 Equal Protection Clause is violated when the State creates the kind of uncouth district boundaries seen in Karcher v. Daggett,
Accordingly, I respectfully dissent.
See Cousins v. City Council of Chicago,
See Karcher,
The majority does not acknowledge that we require such a showing from plaintiffs who bring a vote dilution claim under §2 of the Voting Rights Act. Under the three-part test established by Thornburg v. Gingles,
The Court’s opinion suggests that African-Americans may now be the only group to which it is unconstitutional to offer specific benefits from redistricting. Not very long ago, of course, it was argued that minority groups defined by race were the only groups the Equal Protection Clause protected in this context. See Mobile v. Bolden,
Dissenting Opinion
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.,
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,
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 Fourteenth Amendment. If not, it does not. Under this approach, in the absence of an allegation of such cognizable harm, there is no need for further scrutiny because a gerrymandering claim cannot be proven without the element of harm. Nor if dilution is proven is there any need for further constitutional scrutiny; there has never been a suggestion that such use of race could be justified under any type of scrutiny, since the dilution of the right to vote can not be said to serve any legitimate governmental purpose.
There is thus no theoretical inconsistency in having two distinct approaches to equal protection analysis, one for
Ill
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 Fourteenth Amendment. See ante, at 649.
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,
The Court offers no adequate justification for treating the narrow category of bizarrely shaped district claims differently from other districting claims.
“Bloc racial voting is an unfortunate phenomenon, but we are repeatedly faced with the findings of knowledgeable district courts that it is a fact of life. Where it exists, most often the result is that neither white nor black can be elected from a district in which his race is in the minority.” Beer v. United States,
Recognition of actual commonality of interest and racially polarized bloc voting cannot be equated with the “ ‘invocation of race stereotypes’ ” described by the Court, ante, at 648 (quoting Edmonson v. Leesville Concrete Co.,
Section 5 of the Voting Rights Act requires a covered jurisdiction to demonstrate either to the Attorney General or to the District Court that each new districting plan “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race[,] color, or [membership in a language minority.]” 42 U. S. C. § 1973c; see also § 1973b(f)(2). Section 2 of the Voting Rights Act forbids districting plans that will have a discriminatory effect on minority groups. § 1973.
The majority’s use of “segregation” to describe the effect of districting here may suggest that it carries effects comparable to school segregation making it subject to like scrutiny. But a principal consequence of school segregation was inequality in educational opportunity provided, whereas use of race (or any other group characteristic) in districting does not, without more, deny equality of political participation. Brown v. Board of Education,
See Richmond v. J. A. Croson Co.,
In this regard, I agree with Justice White’s assessment of the difficulty the white plaintiffs would have here in showing that their opportunity to participate equally in North Carolina’s electoral process has been unconstitutionally diminished. See ante, at 666-667, and n. 6 (dissenting opinion).
The Court accuses me of treating the use of race in electoral redistricting as a “benign” form of discrimination. Ante, at 653. What I am saying is that in electoral districting there frequently are permissible uses of race, such as its use to comply with the Voting Rights Act, as well as impermissible ones. In determining whether a use of race is permissible in cases in which there is a bizarrely shaped district, we can readily look to its effects, just as we would in evaluating any other electoral districting scheme.
While the Court “expressfes] no view as to whether ‘the intentional creation of majority-minority districts, without more,’ always gives rise to an equal protection claim,” ante, at 649 (quoting ante, at 668 (White, J., dissenting)), it repeatedly emphasizes that there is some reason to believe that a configuration devised with reference to traditional districting principles would present a case falling outside the cause of action recognized today. See ante, at 642, 649, 652, 657-658.
The Court says its new cause of action is justified by what I understand to be some ingredients of stigmatic harm, see ante, at 647-648, and by a “threa[t] to . . . our system of representative democracy,” ante, at 650, both caused by the mere adoption of a districting plan with the elements I have described in the text, supra, at 685. To begin with, the complaint nowhere alleges any type of stigmatic harm. See App. to Juris. Statement 67a-100a (Complaint and Motion for Preliminary Injunction and For Temporary Restraining Order). Putting that to one side, it seems utterly implausible to me to presume, as the Court does, that North Carolina’s creation of this strangely shaped majority-minority district “generates” within the white plaintiffs here anything comparable to “a feeling of inferí