The Leadership Conference on Civil and Human Rights

Volume 8 no. 3

TEXAS CASES

In the Texas cases, a three-judge panel of the U.S. District Court, Southern District of Texas, ruled on August 17, 1994 that majority-minority congressional districts 18, 29, and 30 were unconstitutional. The court held:

"[The districts] were conceived for the purpose of providing 'safe' seats in Congress for two African-American and an Hispanic representatives. They were scientifically designed to muster a minimum percentage of the favored minority or ethnic group; minority numbers are virtually all that mattered in the shape of those districts. Those districts consequently bear the odious imprint of racial apartheid, and districts that intermesh with them are necessarily racially tainted....

"We do not hold that the state may only draw Congressional boundaries with a blind eye toward race, a goal which would be impossible, nor that it is altogether prohibited from creating majority-minority districts. But when the State redraws the boun daries of Districts 18, 29, and 30 and contiguous districts, it can and must exhibit respect for neighborhoods, communities, and political subdivision lines. As the Supreme Court put it, appearances do matter. In appearance and in reality, these three districts were racially gerrymandered."

The Questions Presented

The Questions presented by the state appellants in Bush v. Vera, which the Court accepted, are:

Oral Argument

The Court allocated one hour and twenty minutes for the oral argument. Javier Aguilar, Special Assistant Attorney General of Texas, argued 20 minutes for the state appellants, Paul Bender, Deputy Solicitor General, Department of Justice, argued 10 minute s for the federal appellant, and Penda D. Hair of the NAACP Legal Defense Fund argued 10 minutes for the private appellants. Daniel E. Troy represented the appellees and had 40 minutes.

With the exception of Justice Clarence Thomas, the Justices were very spirited in their questioning and at times seemed to be debating one another rather than the attorneys and at other times they clarified the attorneys' arguments for the benefit of the other Justices or so it seemed.

Aguilar began his argument by stating: "The question before the court is the constitutionality of three congressional districts that the court below erroneously ruled were racially gerrymandered. The districts are number 18, a black opportunity dis trict created in 1970, district 29 a new hispanic opportunity district and district 30 a new black opportunity district."

Justice Scalia challenged the attorney's use of the words "opportunity district: Why not call them majority-minority districts, you are insulting my intelligence by trying to give the districts an unemotive term." Aguilar continued to outline what he contended were the lower court's errors and switched to the more common description of the challenged districts as majority-minority districts. He asserted that the court erred in holding that race was the predominant factor, and in not recognizi ng that the state's principal concerns in drawing the boundary lines were incumbency protection and equalizing the population in the districts.

This led to a series of questions about the factual findings of the lower court and whether incumbency protection should be treated as a traditional redistricting principle. Chief Justice Rehnquist said whether the predominant factor was incumbency prote ction or creating majority-minority districts was an issue of fact that was settled by the lower court. Aguilar agreed that it was a question of fact but asserted that the lower court failed to recognize incumbency protection as a traditional redistricti ng principle. The determination as to what qualifies as a traditional redistricting principle should be made by the state, Aguilar said. In Texas, he continued, the legislature was interested in not impairing the incumbents so as to preserve the seniori ty status of the state's congressional delegation.

Chief Justice Rehnquist repeated his contention that these facts were presented to the lower court and they were rejected. Justice O'Connor added that the district court's finding was that the districts were drawn in disregard of traditional principles a nd that race was the dominant factor. Aguilar repeated his argument that the lower court findings were tainted by the legal error of not recognizing Texas' longstanding protection of incumbency as a traditional redistricting principle.

Justice O'Connor then queried whether protection of incumbents was a compelling state interest. Aguilar responded in the negative and said "but it is a traditional redistricting principle." Justice Souter tried to summarize the state's argumen t: "Isn't your argument after Miller that the court should have considered incumbency as a traditional factor in determining whether race predominated in drawing the lines in disregard of traditional factors." Aguilar responded in the a ffirmative.

The Justices asked a series of questions about whether using racial data to accomplish the goal of incumbency protection was constitutional. Justice Kennedy asked: "If incumbency protection is the motive but the means used to protect incumbents is racial gerrymandering is that constitutional? Does that comply with Miller?" After going back and forth with Justice Kennedy on this issue, Aguilar seemed to say that Justice Kennedy's hypothetical would be constitutional as long as race was not the predominant motive.

Justice O'Connor asked whether evidence was presented that showed that the majority-minority districts could have been drawn more compactly and could also have protected incumbents; and she also asked if this went to the issue of "narrowly tailored. " Aguilar responded positively to the first question but said that "narrowly tailored" went to the issue of whether the districts necessary to allow minorities to elect representatives of choice were drawn. Chief Justice Rehnquist queried what would be broad tailoring.

There were more questions about whether the shape of the districts was attributable to the creation of majority-minority districts or to incumbency protection. Justice Breyer said: "Under Miller we said that race could be a factor. The quest ion is, is it okay to depart from compact shape if that departure has nothing to do with race, i.e., in this case incumbency. Do we need to remand this case to determine whether incumbency was the major factor." Aguilar replied that a remand was no t necessary,that there were enough legal errors to reverse the lower court.

Justice Ginsburg sought to clarify the attorney's response to Justice O'Connor's question: "I thought you said that the state legislature could have drawn more compact districts. Maybe you should finish that argument." Aguilar responded that m ore compact majority-minority districts could have been drawn but they would have endangered incumbents.

Justice Stevens inquired: "Isn't it true that in this case incumbency protection had nothing to do with the number of majority-minority districts, but it did affect the shape [of the districts.]" Aguilar said that was correct.

Paul Bender began his argument for the U.S. by saying that even if strict scrutiny is applicable in the case, the lower court decision must be reversed because Texas has a compelling state interest to protect the voting rights of its minority voters. Justice Souter questioned whether there is a point at which the line is crossed between protecting incumbents and the rights of minority voters by for example packing minorities into a district. Bender responded in the affirmative.

Justice Scalia interjected that a Michigan Law Review article rated districts for irregularity and Texas' 18th and 29th are tied for number one with one other district. Bender said that some of the most irregular districts exist because of the state's in terest in protecting incumbents. "That is a very strong motivation in Texas." Justice O'Connor asserted that the interest was no greater than in other states and questioned whether incumbency protection overrode the need to draw boundaries bas ed on race.

Bender said the state had a compelling interest to create majority-minority districts and an interest in protecting incumbents and it did not want to have to choose between the two. Justice O'Connor asserted that there is a constitutional requirement not to draw lines predominantly on the basis of race. Bender asserted that there is not an absolute prohibition on the use of race in drawing the boundaries, but that there must be a c ompelling state interest. He continued that in drawing the lines the incumbents were looking for Democratic voters and that correlated with race. "Selecting black voters just because they were black is unconstitutional but it is okay to select Demo cratic voters."

Justice Scalia asked if Bender were saying that race can be a surrogate for something else. Justice Souter interjected: "But if race is a real surrogate-then you don't have to look for race, you can just look for Democrats." Bender ended his a rgument by saying that the state can consider race as one of a number of factors.

Penda Hair, counsel for the private appellants began by contending that race was used as a surrogate in this case to protect the seats of Representatives Frost and Bryant. "The lower court made a legal error," she said, "protection of incu mbency is a traditional redistricting factor." Justice Ginsburg asked: "if one accepts that incumbency is a legitimate traditional factor does that...[allow for] protecting incumbency by using race?"

Hair said that in this case, race was used to decide whether a majority-minority district could be created and it was determined that in South Dallas, a 69 percent majority-minority oval shaped district could be created. But then, Hair asserted, Democra tic Representatives Frost and Bryant pulled off voters from that compact district to protect their seats and the shape changed. She continued that while there is no federal requirement of compactness, she thought that if the majority-minority districts w ere compact the court would have upheld them. "To single out majority-minority districts and say they must be compact violates the voting rights of the minorities," Hair argued.

Justice O'Connor asked Hair to reverse the situation and assume that white majority districts were created to protect whites. "Is that constitutional," she queried. Hair responded that it would not be because in that case race would predominat e and that race did not predominate in this case. "Integrated districts were created," she added. Hair repeated that the district court made a legal error-that it confused counting Democratic voters with counting voters by race.

Justice Souter asked: "If the Court finds that the lower court's basis for rejecting the districts was ambiguous should the Court remand the case." Hair responded that the appellants thought the case was clear but if the Court found it ambiguo us then yes, they should remand the case.

Attorney Troy representing the plaintiffs-appellees began by arguing that the district court found that the state had segregated the population by race to protect incumbency and to create majority-minority districts. "The evidence was overwhelming t hat race was the predominant factor," he asserted.

There followed a series of questions about the relevancy of the shape of the districts. Justice Breyer asked why anyone should care about the irregular shape of majority-minority districts if the districts could have been compact but for consideration of incumbency. Troy responded because race was the tool used to create the districts. Justice Breyer repeated his question and Justice Ginsburg interjected to ask "if you created a compact district that was majority-minority and race was the major co nsideration-is that unconstitutional?" Troy questioned Justice Ginsburg's use of a hypothetical and said that a compact district would necessarily take into consideration factors other than race.

Justice Kennedy continued the line of questioning, asking: "Is it okay to [create districts] for racial reasons if you do it consistent with normal and traditional redistricting principles." Troy replied that a state can take race into consider ation but that race cannot be the predominant factor.

Justice Kennedy asked how one determines whether race is predominant-"Is it determined by whether the district is compact or not.?" Justice Ginsburg added: "If race is the major reason for creating the districts-Texas says we want three ma jority-minority districts but we are going to achieve them consistent with compactness, is that okay?" Troy said it would not be okay because race would be the major factor.

Justice Souter suggested that Troy was changing the Miller definition. "Didn't Miller ask whether race subordinated traditional districting factors? Race is going to be used, sometimes it is good and sometimes not, the question is wha t is the trigger and Miller said race must be shown to have subordinated the other factors, and if it can be shown that the shape of the districts resulted from incumbency protection then it cannot follow that race was the predominant factor," Justice Souter asserted.

Justice Scalia jumped in to ask: "Isn't the response that incumbency protection is okay if you count by Democrats but not okay if you count by race." Justice Souter in response to Justice Scalia's comment asked the attorney if that was his answ er and added "it's a good answer." [Laughter] Justice Souter continued his line of questioning by asking: "if incumbency protection is achieved by knowing who the Democrats are and drawing lines by neighborhoods that are Democratic and th ey happen to be black and you end up with...appendages-is that okay under Miller?"

Troy said it would be okay if race was not the tool used to find out who was Democratic. Justice Souter said, so maybe we should send the case back for the lower court to tell us whether the line drawing was based on political data that happened to discl ose race or was based purely on racial data. Troy responded that the court had already made that determination, that the computer program that was used provided racial data.

Justice O'Connor said: "So race became a surrogate for incumbency protection." Troy said race was used as a proxy for incumbency protection and that the state should not be allowed to use race for mere administrative convenience to determine w ho is a Democrat. Justice Breyer queried whether the computer program had registration data that identified party affiliation. Troy responded in the negative and repeated that race was the tool used to draw the lines, and that the precinct level was the lowest breakdown of party affiliation.

Justice Breyer then asked a variation of a question previously asked by Justice Souter: "If the legislature created a majority-minority district to comply with the VRA [and accomplished that goal] with the creation of a compact district and then to p rotect incumbents the district became more oddly shaped, is that okay?" Troy said that it was, but insisted that that was not what happened in this case.

Justice Souter said: "Let's assume that political data about prior voting was the basis for drawing the lines to accomplish incumbency protection, and that it is traditional to put the French and Irish in their own districts and you now [can create] Black and Hispanic districts and black-white districts and you have the choice to integrate them or keep them separate, is that okay." Troy responded in the negative, and Justice Souter said: "So you can do it for the French and Irish but not f or blacks or Hispanics?"

Justice Breyer raised a similar hypothetical but used religion, questioning whether Catholics could be separated out to protect an incumbent because they usually vote Democratic. Troy responded: "If the tool is race and the predominant goal is separ ation then it is wrong-race or religion."

Justice Ginsburg referred back to a previous response by Troy, saying: "As I understand your argument if race is used alone and nothing else and the district is compact and incumbency is not a factor you say that is okay...and your argument is that o nce incumbency came into play and created the odd shape that is not okay." Justice O'Connor asked Troy if he had conceded that, and added "I thought you said that strict scrutiny would apply."

Justice Stevens interjected that Troy had said: "If the district is compact and nicely shaped but the motive was race-didn't you say that was okay." Troy said he didn't say that and if he did he had misspoken. Justice Stevens said well then yo u misspoke. Justice Scalia observed that the Constitution says that race cannot be a surrogate, and the VRA does not say that in order to provide minorities voting opportunities you need to herd minority voters together.

Justice Breyer asked whether compliance with the VRA is a compelling state interest, and Troy answered affirmatively. Chief Justice Rehnquist jumped in and asked: "Why do you concede that, the Court has never held that compliance with the VRA is a c ompelling state interest." Troy said that the VRA prohibits packing and cracking and that compliance can be a compelling state interest.

Justices Souter and Scalia then asked a series of question related to the Court's decision in Miller. Justice Souter said: "the Miller definition says that if the motive to create majority minority districts is compliance with the Voti ng Rights Act and the district's shape is consistent with the shape [of districts] when traditional districting principles are followed then race did not subordinate those principles, [and strict scrutiny is not triggered]." Troy responded that if y ou want to comply with the Voting Rights Act, then by definition, you will trigger strict scrutiny.

Justice Souter asserted that Troy was changing the holding in Miller that the use of race is only wrong when it subordinates traditional principles. "Your answer requires an expansion of Miller," he said. Justice Scalia interject ed that it depends on what Miller means by subordinate. "If you are starting out to create majority-minority districts then everything is subordinated," Justice Scalia said. Justice Souter insisted that was not what Miller held a nd asked: "If compact districts that recognized traditional principles are created, is strict scrutiny triggered or not?" Troy responded in the affirmative, and Justice Souter repeated that the attorney was asking the Court to recognize a cause of action that is broader than Miller.

Justice O'Connor interjected that that is not the issue in this case: "the finding is that these districts did not follow traditional principles." Troy said: "absolutely not."

Justice Breyer asked if African-Americans were fenced out to protect incumbency, the question is were they fenced out because they are African-American or because they would likely vote Democratic. Troy said that neither race nor religion can be used as a surrogate for political affiliation, and that in this case race was used as a tool for incumbency protection only secondarily-"the motive was to comply with the DOJ's maximization principle."

Justice Stevens asked: "If three districts were created that are compact and contiguous and race was one of the factors, and they were then redrawn with appendages to get more Democrats, is that okay, is it okay to protect Democrats? Does a politica l motivation justify non-compactness?" Troy said yes if the political motivations are non-racial.

NORTH CAROLINA CASES

The North Carolina cases are the latest appeals in a case that was initially decided by the Supreme Court in June 1993, Shaw v. Reno. The Court concluded that "a plaintiff challenging a reapportionment statute under the Equal Protectio n 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 the separation lacks suffi cient justification." On remand from the Supreme Court, the three-judge panel of the U.S. District Court for the Eastern District of North Carolina ruled 2-1 that the two challenged majority-African-American congressional districts (the 1st and 12th ) "did not violate any rights of the plaintiffs or their supporting intervenors." The panel reasoned that the North Carolina plan met a compelling state interest because it was developed in compliance with the Voting Rights Act, and that apart from the Voting Rights Act, its purpose was to eradicate the effects of past and present racial discrimination in North Carolina's political process. The panel further found that the plan was narrowly tailored to achieve that goal. That decision is now back before the Supreme Court. (For a thorough discussion of this case, see CIVIL RIGHTS MONITOR, vol. 7, nos. 3, 4, and 6.)

Since the initial decision in the North Carolina case, the Court has ruled in another redistricting case out of Georgia (Miller v. Johnson, No. 94-631) that since race was the "predominant, overriding factor" explaining the creation of th e challenged Georgia district, the 11th which is majority-minority, and the "legislature subordinated traditional race-neutral districting principles, including...compactness, contiguity, respect for political subdivisions or communities defined by a ctual shared interests, to racial considerations," Georgia's redistricting plan could not be upheld unless it satisfies strict scrutiny, i.e., is narrowly tailored to meet a compelling state interest (for a thorough discussion, see CIVIL RIGHTS MONIT OR, vol. 8, no. 2).

Questions Presented

The questions presented by the appellants in Shaw v. Hunt, which the Court accepted, are:

The Oral Argument

The Court allocated one hour and twenty minutes for the oral argument. Robinson O. Everett, himself a plaintiff-appellant as well as a law professor, argued 30 minutes for the Shaw appellants, and Thomas A. Farr, ten minutes for the Pope ap pellants. Edwin M. Speas, Jr., Senior Deputy Attorney General of North Carolina, argued 20 minutes for the Hunt appellees, Julius L. Chambers, former Director-Counsel of the NAACP Legal Defense Fund, argued ten minutes for the private appellees, a nd Paul Bender argued ten minutes for the United States as amicus curiae supporting the appellees.

As with the Texas argument, the Justices, with the exemption of Justice Clarence Thomas asked many questions and at times seemed to be debating one another.

Robinson O. Everett began his argument by stating that North Carolina has two of the "least regularly shaped districts" and that "this is not a case of narrow-tailoring or broad-tailoring but of no tailoring." He then compared the cre ation of majority-minority districts to water fountains designated for African-Americans or whites and said "no one would approve such racial classifications." He asserted that the state's redistricting plan involves that type of racial classif ication.

Justice Stevens took issue with Everett's analogy and said the difference was that all voters in North Carolina can vote as they please. Everett rejoined that the districts carry a message similar to signs designated for whites and blacks and that "the signs on these districts should be removed." He then turned to the issue of standing and said that the plaintiffs and the plaintiff intervenors all had standing in this case becaus e they are all registered to vote in North Carolina, they were assigned to vote in particular districts because of race, and the "racial assignment" resulted in the creation of two black majority opportunity districts.

Chief Justice Rehnquist contested Everett's assertion that all the plaintiffs had standing given that some of them did not reside in the challenged districts. Everett responded: "We maintain that there is a ripple effect in that all voters are aff ected and thus voters in all districts have standing. Chief Justice Rehnquist followed-up: "But what if we don't hold to the ripple effect given our decision in Hays [Court ruled 9-0 that the plaintiffs did not have standing to challenge a ma jority-minority district because they did not reside in the district.]

Everett side-stepped the question and said the state's plan is a seamless web and the 12th district is essential to the plan. "The question is whether this plan is a violation of the equal protection clause," he asserted. Justice Scalia asked: "Are you saying that if a voter lives in one district, he has the right to challenge the entire plan?" Everett responded in the affirmative saying that everything in the middle and eastern part of North Carolina is so "tied together."

Everett continued: "Since this case was originally argued before this Court two and a half years ago...it has not changed. The North Carolina General Assembly created two majority-minority districts to comply with section 5 and gain preclearance by the Department of Justice. There is no dispute over what was the State's purpose: the determining factor was section 5 preclearance. The policy of the DOJ resulted in the [state's] creation of this monstrosity to get preclearance. This map almost speak s for itself as to racial gerrymandering, race was the overriding factor. Now we hear that race was not the motivating factor, that it is now not just a question of section 5, but also of section 2 and the need to remedy discrimination. Section 2 of the Voting Rights Act may require the creation of majority-minority districts but not in this case. Their [the defendants and intervenors] arguments have gotten very creative."

Justice Souter asked Everett to consider the following facts: a court rules that a plan is unconstitutional and orders the development of a new plan, and the state retains the old plan but now argues that the plan is necessary to comply with section 2. He then asked: "May a three judge district court consider that defense? This goes to proof, may they consider that defense, is it relevant as a defense?" Everett said no.

There followed a series of question about whether the goal of creating a majority-minority district could ever be constitutional. Justice Ginsburg asked whether, if the purpose is to create a majority-minority district, no matter how compact, is it uncon stitutional? Everett said yes, that such a goal was a violation of the equal protection clause. Justice Ginsburg responded: "There are many districts where people said we want a majority-minority district, thus your reasoning is that many district s are unconstitutional." Everett said that for the districts created in the last round of redistricting that was the case-"it is as simple as the labeling of water fountains."

Justice O'Connor asked if he would take that position if the goal was the creation of majority-minority districts but the lines were drawn on the basis of party affiliation. Everett said that if the goal is race then it is impermissible. Justice O'Conno r asked the question again, saying that the goal was a majority-minority district but the lines were drawn with non-racial data. Everett again said the goal was impermissible, that any racial classification is wrong.

Justice Breyer asked if the drawing of lines based on race, religion, ethnic background, or sex should be treated the same-were they all impermissible? Everett said that classifications based on race were impermissible as race has a special significance. Chief Justice Rehnquist interjected that classifications based on gender are not subject to strict scrutiny.

Justice Stevens asked Everett if there was any way for the two majority-minority districts to survive, and if so what would be the set of facts-the factors. Everett said you would need to look at the totality of circumstances. Justice Scalia chastised E verett for his answer and said "the motivation cannot be racial, that's the end of it, isn't that your argument?" Everett responded affirmatively.

Justice O'Connor said: "so strict scrutiny is fatal in fact, nothing survives." Everett said that was right-"nothing survives." [In Adarand v. Pena, a minority business case, Justice O'Connor asserts in the majority opinion th at "strict scrutiny is strict in theory, but not fatal in fact."] Justice O'Connor said: "But we have said that plans can survive if they serve a compelling state interest and are narrowly tailored. You are asking for something more.&quo t; She then asked: "Is compliance with section 2 a compelling state interest?"

Everett said the Court did not have to address the question of section 2 compliance to decide the case in the plaintiffs' favor. "The state's section 2 position is tainted," he asserted. "The district court misconstrued the numerical fact s... and section 2 was an afterthought [in the state's defense]."

Thomas Farr, Counsel for the Pope appellants, began by saying that the constitutionality of the Voting Rights Act is not at issue in this case. "We believe there is no question that compliance with section 2 is a compelling state interest, bu t that is not the issue in this case" he said. Chief Justice Rehnquist asked why. Farr responded that there can be no question of remedying a section 2 violation here because there is no evidence of such a violation, i.e., that the district met the Gingles requirements [(1) that the minority group be sufficiently large and geographically compact to constitute a majority in a single-member district, (2) that the group be politically cohesive, and (3) that the white majority votes sufficiently as a bloc to enable it usually to defeat the minority's preferred candidate] and no one in the state legislature thought they were remedying a section 2 violation when they drew this map.

Justice Stevens asked why that mattered. Farr said that a "section 2" remedial district would need to be located in the area where the vote dilution violation occurred and that had not happened in this case. Justice Scalia said: "but if y ou buy the racial entitlement theory, that the race as a whole must be made whole, then wouldn't it follow that it didn't have to be any particular district."

Farr said that the right under the Voting Rights Act is a right to be free from vote dilution and it is district specific. He continued that it was possible to create a rather compact majority-minority district but that was not done because of incumbency protection.

Justice Breyer asked if in remedying a section 2 violation it is okay to create two districts in areas other than where the violations occurred in order to protect incumbents-the location being due to incumbency protection not the section 2 violation. Fa rr said there was no evidence to support the idea that blacks were entitled to two districts to remedy a section 2 violation, and that locating the districts in areas other than where the violations occurred failed the narrow tailoring requirement of stri ct scrutiny.

Justice Souter said the relevant consideration under Miller is to determine whether race predominates in the legislative determination; the question is, did race subordinate traditional principles and one of those is incumbency protection. Farr as serted that the remedy must go to the people injured. Justice Souter said, you are asking the Court to depart from Miller. He continued that if Farr was saying that incumbency is not a traditional districting principle in North Carolina, he was a sking for a change from Miller.

Farr asserted that his clients were not asking for a change in Miller, and that there is a distinction between incumbency protection and other districting principles that a state might follow-incumbency protection is far more subjective. He contin ued that drawing majority-minority districts may be a compelling state interest, that a section 2 remedy must address the people injured, and that incumbency protection is not a compelling state interest.

Edwin Speas, counsel for the state, said there is evidence that the legislators intended to draw district 12 as a urban district-the Piedmont Urban Crescent-linked together by accessible highways. The district court said this is fair and effective repres entation. Justice Scalia asked whether the courts were to determine what is fair and effective representation? Who would want to be against it, but is this the kind of thing lawyers and judges are good at, he asked.

Chief Justice Rehnquist asked whether that was how all the districts should be judged? Speas said no, but that if race were the predominant factor that would not be fair and effective representation. Justice O'Connor asserted that the Court had remanded this case to have strict scrutiny applied, so how is that relevant. Speas said we believe this case meets strict scrutiny.

Justice Kennedy asked what was the compelling state interest? Speas said it was compliance with sections 2 and 5. He said that there was racially polarized voting in the state. Justice Kennedy said, but you have to find compactness and cohesiveness too under Gingles.

Justice Scalia asked if there was any evidence that two compact black districts could have been created-"Your opponent said no, that one black and one minority district could have been created but not two black districts. Can you cite anything to re fute that?" Speas indicated that the state legislators believed that two could be created. Justice Scalia asked where was the evidence to support that? "The legislators have to be right," Justice Scalia said.

Justice Souter asked whether the state takes the position that if a majority-minority district can be drawn subject to Gingles principles, the state legislature can move it anywhere to meet its other principles. Speas said yes, it was within the s tate's discretion once it had determined there was a section 2 violation.

Justice Kennedy asserted that Speas' position was the polar opposite of narrow tailoring which says that once there is a wrong, the remedy should be closely drawn to remedy that wrong. Speas said there are limitations and harm to innocent third parties should be minimized, but that in this case there was racially polarized voting throughout the state.

Justice Ginsburg commented that Speas was saying that despite Shaw I, the district court did not have to go to strict scrutiny because race did not predominate. Why is that so, she asked. Speas said the district was not subject to strict scrutiny because the test is whether race was one of several factors, that here race was used in combination with 50 other factors and Miller says that race must predominate to trigger strict scrutiny.

Julius Chambers, arguing for the private appellees, said that the state's redistricting plan does not exclude anyone from participating in the political process. He continued: "Everyone has an opportunity for the first time in 90 years to have an ef fective vote. Blacks will now have an opportunity to have a voice. This case needs to be examined within the context of the history of voting in North Carolina. Redistricting is not happening within a vacuum but within a history of purposeful exclusion . Now we have a remedy, the creation of majority- minority districts which gives black people a voice in deciding who their representative should be. Districts have been created that give blacks a real voice."

Justice Scalia said: "With all due respect there are some who say that blacks have a greater voice when they are a substantial minority or close to a majority [in a district]. It is in the political interest of some to put them all in one district b ut that may not give them the greatest voice. I am in agreement with the goal, but the net effect may be to reduce their political power. I don't know the answer, but I can't agree that this is the only answer."

Chambers said that North Carolina had the experience of a district that was 41 percent black and blacks were still not able to elect a representative of choice because of racial bloc voting. Justice Scalia said that doesn't mean that their interests were not represented.

Justice O'Connor asked, if the facts are that the Gingles standards are met to establish a section 2 violation, and a compact district can be drawn, can the remedy be a district in a different part of the state-is that a narrowly tailored remedy? Chambers said the state should have the discretion to decide where the district should be located because all the people in the state suffer from the dilution. He contended that the state legislature can look at the way the state has developed and the co mmunities of interest and decide where to draw the lines.

Justice Kennedy said, this will lead to proportional representation and that is the last thing you should argue for, it is divisive and dangerous. Chambers said he was not arguing for proportional representation and it would not exist in North Carolina e ven if this decision is upheld. "This is a chance for the first time for blacks to have a voice," he asserted.

Bender, arguing for the U.S. as amicus curiae supporting the appellees, said it was not the Department of Justice's position that in complying with section 2 the state can draw districts anywhere and the state did not do that in this case. He continued t hat both Charlotte and Durham are in the 12th district and both cities were in the compact district that could have been drawn pursuant to the Gingles standards. There is substantial overlap between the districts. [ ] The lines must be drawn so that a majority in the district has been victim of vote dilution. The facts demonstrate that that is the case. Justice Breyer asked if the requirement of compactness applied only to the majority-black districts and not to the white districts. Bender said that was exactly right: the state could decide to create a district that was majority farmers, that would be l egitimate and it could be non-compact. "I can't believe that under the obligation to comply with section 2 the state has less discretion in creating non-compact districts," he said.

Justice O'Connor said the problem is that the 14th amendment says you cannot act on race alone in bestowing public benefits such as redistricting. Bender said, but you can act on the basis of race to counter discrimination and to counter the legacy of po larized voting. Justice Scalia asked if two majority-black compact districts could have been created at the same time. Bender said that there could not have been two at the same time, but that there was an obligation under Gingles to create major ity opportunity districts.

Justice Scalia said it was not necessary to create two districts to comply with section 2. Bender said, but the state choose to create two, and there was almost no cohesiveness between the populations in what would have been a compact majority-minority d istrict.

Justice Scalia questioned what cohesiveness there was here. Bender responded that one district was urban and one was rural. He continued: "These districts give blacks a fair opportunity to participate in the political process. What the percentage should be depends on the extent of racial polarization. North Carolina has done that, the courts cannot force North Carolina to give up traditional voting principles and incumbency [protection]."

Justice Scalia asked whether, to be considered, redistricting principles must be traditional? Bender said that if the principles used are traditionally used, it is evidence that they were not used in this instance for racial reasons. He added that the r edistricting principles do not have to be long-standing.

A decision in this case and the Texas case is expected by late June.

UPDATE ON GEORGIA AND LOUISIANA CASES

In the Miller v. Johnson case, on remand from the Supreme Court, the Georgia legislature failed to agree on a revised plan and adjourned a special session called by Governor Zel Miller for the purpose of redrawing the congressional plan. The task of redrawing the map then went to the three-judge federal district panel. On December 13, 1995, the panel released a revised redistricting plan that eliminated two of Georgia's three majority-African-American districts. The African-American voting popu lation in the 11th district represented by Cynthia McKinney (D) dropped from 60.4 to 10.8 percent and in the 2nd district represented by Democrat Sanford Bishop, the population dropped from 52.3 to 35.1 percent. Under the plan, the sole remaining majorit y-African-American district-the Atlanta based 5th district represented by Democrat John Lewis-retained its African-American voting age population of 57 percent. The African-American population in the remaining 8 districts ranges from 6.2 to 34.5 percent .

There were indications that at least some parties in the case would appeal the case back to the Supreme Court. Laughlin McDonald, Southern Regional Director of the ACLU, said that the plan would be appealed because it is "retrogressive" and because "instead of curing the constitutional defects of the old plan, the judges started from scratch and completely redrew the map." He asserted that was not the role of the courts, i.e., "acting as a super legislature."

In U.S. v. Hays, a case in which the Supreme Court ruled 9-0 that the plaintiffs lacked standing to challenge a Louisiana majority-minority district because they did not live in the district, a revised challenge was filed with new plaintiffs who reside in the challenged district. On January 5, 1996, the three judge federal panel for the third time struck down Louisiana's redistricting plan ruling that the plan violated the Constitution's equal protection clause because race was the predominant factor in drawing the 4th district represented by Cleo Fields (D). The panel imposed their own plan which retains only the New Orleans based 2nd district, represented by William Jefferson (D) as a majority African-American district.

The Louisiana legislative black caucus has indicated that they plan to appeal the decision, and Rep. Cleo Fields has indicated he will do likewise if the Governor's office decides not to appeal which is likely. Since the last appeal to the Supreme Cou rt, Mike Foster, a conservation Republican, has won election to the governorship.