The Leadership Conference on Civil and Human Rights

Volume 8 no. 1

In both cases, three judge federal panels ruled that the state plans were unconstitutional. In Louisiana the district court ruled that District 4, represented by Cleo Fields (D), was unconstitutional because the specific intent of the legislature was to draw a majority African-American district and the "bizarre and irregular shape" of District 4 "can only be explained credibly as the product of race-conscious decision making," and thus the plan must be judged by the strict scrutiny st andard, which the court found the plan failed to meet. Strict scrutiny requires that official actions of a race-conscious nature be narrowly tailored to address a compelling state interest.

In Georgia, in a 2-1 decision, the federal panel ruled that Georgia's 11th district represented by Democrat Cynthia McKinney was racially gerrymandered and thus unconstitutional. The majority interpreted Shaw to mean that race-based redistricting is subject to strict scrutiny when race is "the overriding predominant force determining the lines of the district" and found that the bizarre shape of the district and evidence presented in the case established that race was the predominant mo tive. The dissenting judge found that a Shaw claim had not been proven because the 11th Circuit was not bizarre in shape when compared to other Georgia districts which "have no tradition of being neat, geometric shapes."

Louisiana Argument

Justices Kennedy and Souter then asked a series of questions on whether considering race in drawing the lines was "perpetuating" or "entrenching" racial voting. Ieyoub said the message the state was sending in drawing the majority-min ority district was that race is one factor that will be considered in redistricting, that the 4th district, which is 55 percent black, provides a fair opportunity for blacks to elect a representative of choice and that the message is not one of separation but one of inclusion.

Ieyoub argued that the District Court had misread Shaw in applying the strict scrutiny test to the 4th district, which the state asserts is not bizarre in shape when compared to other Louisiana districts and the state's history of redistricting. I n response to a question from Justice O' Connor, the Louisiana Attorney General said that the 4th was the most compact majority-minority district that could be drawn and that it followed a number of the boundaries of the old District 8 [which was not draw n with the intent of electing a minority candidate].

This led to a discussion about whether the shape of the old District 8 was the result of political gerrymandering. The Attorney General said that political considerations had been a factor. In response to questions about how to evaluate the shape of dis tricts in regard to "bizarreness", Ieyoub stated that the Court should consider the state's history of drawing districts of various shapes and look for "compactness" that doesn't depart too much from what the state has done in the past .

Justice Souter then questioned whether Ieyoub was saying that since by the state's standard the district was not bizarre, strict scrutiny should not be applied, and that Shaw required a bizarre shape to trigger strict scrutiny. Ieyoub replied in t he affirmative. Justice Souter said: "but under your calculation if the district is not bizarre enough to apply strict scrutiny, we won't examine for other violations such as packing." [Packing occurs when minority populations are overconcentrated in a single district, generally at the 80 percent level and above, in excess of the percentage needed for minority voters to elect candidates of their choice.] Ieyoub asserted that the other issues could be raised separate from an examination of the shape of the dis trict.

Solicitor General Drew Days, appearing for the U.S. in support of the Louisiana plan, began by arguing that to trigger strict scrutiny there must be a showing of bizarreness. Justice O'Connor interjected that the "evidence shows clearly that the pre dominant purpose of drawing... [the 4th district was to] achieve a certain racial goal regardless of appearance." This led to a series of questions about whether under Shaw, the standard to trigger strict scrutiny was "purely a visual te st." Days maintained that the Court's precedent was that strict scrutiny was triggered by irregular shape. Days also observed that this legal claim does not preclude others and that for example it is always possible to raise a packing claim and sho w vote dilution.

Justice O'Connor then raised the question whether the plaintiffs had standing to challenge the district since they don't live in the 4th District. Days responded that the U.S. did not raise the issue of standing but that it is problematic. "How far do you take it," Days questioned, "can anyone in the state challenge [the 4th District]?"

Edward Warren, attorney for the plaintiffs, who challenged the district, began by discussing the configuration of the 4th District and said its boundaries split 12 parishes [local political jurisdictions like counties] and that no previous redistricting p lan had ever split more than 7 parishes in total. Justice O'Connor asked in which district the plaintiffs reside and how they were harmed. Warren said they reside in the 5th District which is contiguous to the 4th and they were harmed by being classifie d by race for the purpose of redistricting. Justice Ginsburg said that since the plaintiffs are of different races-black, white, Native American-each race has been treated equally. She asked how their equal treatment could be considered racial discrimination. Warren argued that they had a right n ot to be classified by race for purposes of voting. In response to a series of questions about who had standing to challenge the drawing of district 4, Warren seemed to say first that anyone residing in a district contiguous to District 4 could do so, an d then to expand his response to include anyone residing in the state.

Justice Scalia asked if race had to be the predominant factor for the plan to be unconstitutional. Warren responded in the affirmative. He said that race can be one of many factors that are considered but not the predominant factor. Justice Breyer then asked: "When have you gone too far, what is the standard, the workable principle?" Warren said that the starting point of the examination should be what are the facts, what factors "drove" the drawing of the district. Justice Breyer said but since 1789 race has been a factor in creating many districts, "when is it appropriate"? Warren said that in Shaw the Supreme Court said that "race can help us define the boundaries, the problem is when race takes over and [districts] are drawn on the racial stereotype that the races vote differently...."

Justice Scalia said to Warren the plaintiffs' position is not that race must be predominant but simply a motivating factor. Warren responded that these may be semantic differences. Justice Stevens said the state made the decision that race was an import ant factor and asked "why isn't that acceptable?" Warren said the district court determined that it was "self-evident" that the district was drawn on the basis of race-"this is not a hard case." Justice Ginsburg said Sha w v. Reno has opened the door to all kinds of challenges-"how can you contain it?" Warren insisted that it was not hard to contain because most districts are drawn on the basis of where a community of interest resides. Georgia Argument In the Georgia case, David Walbert, arguing for the state, said it was futile to try to determine whether race was a predominant factor and conceded that the Georgia legislature wanted to draw a majority-minority district. He continued that the Court's r ulings in this area and the evidence in this case clearly establish that reapportionment is the most complex issue to come before a state legislature and the issue should be decided by the state legislature. "This case should not be in the courts,&q uot; he said.

Justice Scalia asked if he would say the case should not be before the courts if the issue was the drawing of district lines to exclude blacks. Walbert responded that in such cases there was clear harm, but that there was no harm in this case. Justice S calia insisted that the harm was that someone who should have been in the district is not, and that the question is the same whether blacks are included or excluded.

Walbert urged the Court to stay away from an examination of the shape of the district and asserted that in this case the lines were drawn along geographical markers. Justice Souter responded that while it was clear that the district lines follow geograph ic boundaries, it was also clear that the only motivation in drawing the lines was the creation of a majority-minority district.

Solicitor General Drew Days III, again supporting the State, began by saying that an examination of whether race is the predominant or motivating factor is not the proper analysis: "The analysis is whether blacks are being given different treatment from that given whites, and if so, strict scrutiny is triggered. If not, strict scrutiny is not the standard." Days said that blacks did not receive special or different treatment, and that the court did not look at the extent to which the majority -minority district was drawn in a manner similar to that which had produced other districts. "The court ignored the fact that Georgia was doing what it had historically done in the past," he argued.

Justice Ginsburg then reminded that the state legislature initially drew two plans, both with two majority-minority districts, and drew the present plan with a third majority-minority district only after DOJ rejected the first two. Days interjected that the plans were rejected because they fragmented black populations and moved blacks out of districts. Justice O'Connor asked if the DOJ's policy was to insist on the maximization of the number of majority-minority districts since it was not unlawfully &qu ot;retrogressive" for the State to develop a plan with two majority-minority districts. Days responded in the negative and said that DOJ was doing what Congress had told it to do and what the Court has established as precedent in this area, and that DOJ had also considered the State's prior constitutional violations.

A. Lee Parks, attorney for the plaintiffs who challenged the 11th district, began by stating that this is a case of intentional racial gerrymandering that is at odds with the Constitution, and asserted that the DOJ required that the State's plan maximize the number of black districts. Justice Thomas asked if there were anything wrong with the Georgia legislature, out of a desire to maintain as many Democratic districts as possible, deciding that the best way to do this would be to create majority black d istricts because blacks traditionally vote Democratic. Parks said the problem with the Justice's hypothetical was that the legislature still employed racial classifications and the "desires of the Democratic Party do not rise to a compelling state i nterest to allow that type of district to succeed."

Justice Breyer commented that in reapportionment decisions, race, religion, national origin have often been taken into account, and referring to Shaw's caution that the use of race may go too far, asked, "how do we measure too far?" Par ks answered that one must look at the shape, at the boundaries, but also at what drove the proportionality.

This led to a series of questions about whether "goes too far" could be defined as race becoming the predominant factor, with Justice Souter asserting that the predominant factor standard raised greater claims than the bizarre claim. Parks disa greed and asserted that the predominant standard was workable.

Justice Souter picked up on Justice Thomas' question and asked what if rather than looking at race, the legislature looked at voting returns by precincts and drew lines to maximize Democratic voters and ended up with an odd shaped district that was 60 per cent minority. Parks said there would be no violation because race was not a predominant factor.

Parks said that during the redistricting process, the State had lambasted DOJ and said the Department was insisting on a dangerous plan that would cause racial polarization, breed extremism and diminish minority political effectiveness. Justice O'Connor interjected that the State was here today to defend the plan.

Justice Stevens asked if it would be unconstitutional to divide a city into three council districts, one Irish, one Swedish and one Jewish. Parks responded that hypothetically it would not be but that ethnicity is a subcategory of race and thus he " would want the State to have to go through hoops" and prove that these were communities of interest.

A decision in the two cases is expected by early July.