Volume 8 no. 5-6SUPREME COUNT CONTINUES TO STRIKE DOWN MAJORITY MINORITY CONGRESSIONAL DISTRICTS
On June 13, 1996, the Supreme Court in redistricting cases from Texas and North Carolina ruled that four majority-minority districts were unconstitutional racial gerrymanders. In its 5-4 decisions, the Court affirmed its earlier decisions in redistrictin g cases that strict scrutiny is triggered (as in Shaw v. Reno (Shaw I)) when the shape of the district is "so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races without regard for tradit ional redistricting principles" or (as in Miller v. )when race is the "dominant and controlling rationale subordinating traditional race-neutral principles." Applying the standard of strict scrutiny in these Texas and North Carolina cases, the Court found that the districts were not narrowly tailored to serve a compelling state interest and thus violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.
Bush v. Vera, No. 94-805
Following the 1990 Census and reapportionment, Texas gained three additional congressional districts largely because of the growth of minority populations in Houston and Dallas. The state legislature, in its efforts to comply with the Voting Rights Act, redrew the congressional district lines in a manner that created three majority-minority districts in Texas: District 30, a new majority-African-American district in Dallas County which elected Rep. Eddie Bernice Johnson, a Democrat who is African-Americ an; District 29, a new majority-Hispanic district in the Houston metropolitan area that elected Rep. Gene Green, a Democrat who is not Hispanic; and District 18, a reconfigured majority-African-American district adjacent to District 29 that is now represe nted by Sheila Jackson Lee, a Democrat who is African-American. The legislature's plan was precleared by the Department of Justice and the 1992 congressional elections were held under the plan, with the indicated results.
Subsequently, the plan was challenged in federal court by six Texas voters who resided, with one exception, in Districts 18, 29 or 30. They alleged that 24 of Texas' 30 congressional districts were racial gerrymanders and thus violated the Fourteenth Am endment to the Constitution. 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 "in appearance and in reality...racially gerrymandered" a nd thus unconstitutional. The Governor of Texas, private intervenors, and the U.S. as intervenor appealed the case to the Supreme Court, and oral argument was held on December 5, 1996.
Opinions: (Bush v. Vera)
There was no majority opinion in the case. Justice O'Connor announced the judgment of the Court and wrote a plurality opinion joined by Chief Justice Rehnquist and Justice Kennedy. She also filed a separate concurring opinion as did Justice Kennedy. Ju stice Thomas filed an opinion concurring in the judgment, which Justice Scalia joined. Justices Stevens and Souter filed separate dissenting opinions both of which were joined by Justices Ginsburg and Breyer.
Justice O'Connor's plurality opinion begins with a discussion of standing and states that all but one of the plaintiffs have standing as they live in Districts 18, 29 or 30. She then turns to a discussion of whether the districts are subject to strict sc rutiny, beginning with a statement that strict scrutiny does not apply merely because the districts were created "with consciousness of race," nor does it apply to all instances of "intentional creation of majority-minority districts." The standard is tr iggered, she asserts, as the Court said in Shaw I, when the shape of the districts is "so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races without regard for traditional redistricting principles" or as outlined in Miller, when race was the "dominant and controlling rationale subordinating traditional race-neutral districting principles."
In this case, while recognizing that incumbency protection was a major consideration in drawing the districts, the Court concludes, as had the district court, that race was the predominant factor thus triggering strict scrutiny. Justice O'Connor then tur ns to the question of whether the districts meet the strict scrutiny test, i.e., are narrowly tailored to meet a compelling state interest, and answers in the negative. She begins with a discussion of the three compelling reasons put forth by the appell ants:
- to avoid liability under the "results" test of section 2 of the Voting Rights Act
- to remedy past and present racial discrimination
- to comply with the nonretrogression principle of section 5 of the Voting Rights Act (in the creation of District 18 only)
As to asserted reason one, Justice O'Connor "assumes without deciding that compliance with the results test, as interpreted by our precedents, can be a compelling state interest." She wrote:
"Under our cases, the States retain a flexibility that federal courts enforcing section 2 lack, both insofar as they may avoid strict scrutiny altogether by respecting their own traditional districting principles, and insofar as deference is due to their reasonable fears of, and to their reasonable efforts to avoid section 2 liability. And nothing that we say today should be read as limiting 'a State's discretion to apply traditional districting principles,'...in majority-minority, as in other, districts . The constitutional problem arises only from the subordination of those principles to race."
She, however, dismisses section 2 compliance as a compelling interest in this case, stating:
"If, because of the dispersion of the minority population, a reasonably compact majority-minority district cannot be created, section 2 does not require a majority-minority district; if a reasonably compact district can be created, nothing in section 2 re quires the race-based creation of a district that is far from compact.
In reviewing asserted reason 2, the state's interest in remedying discrimination, the Justice argues that "specific identified discrimination" is required and there must be a strong basis in evidence that remedial action is necessary. In this case, she a sserts the only current problem cited is "alleged vote dilution" and as with the section 2 claim, that such claims "will not justify race-based districting unless 'the state employs sound districting principles, and...the affected racial group's residenti al patterns afford the opportunity of creating districts in which they will be in the majority.'"
The state's argument that the reconfiguring of district 18 was justified by the need to comply with section 5 of the Voting Rights Act is dismissed by Justice O'Connor with the assertion that the goal of section 5 is to prevent retrogression of the positi on of minorities in the electoral process, while district 18 provides for "substantial augmentation" of the African-American population in the district and thus their political influence.
Justice O'Connor also wrote a separate concurring opinion to say that compliance with the results test of section 2 of the Voting Rights Act is a compelling state interest in fact, not just arguendo as she stated in the plurality opinion, and "that test c an co-exist in principle and in practice with...[Shaw I] and its progeny, as elaborated in today's opinion." She continues that it would be irresponsible for states to disregard the section 2 results test, given the history of Supreme Court cases interpr eting and enforcing the obligations of section 2 and "assuming but never directly addressing its constitutionality."
She then provides a framework for complying with section 2 and eliminating "unnecessary race-based state action."
- Strict scrutiny is not triggered unless race subordinates traditional redistricting criteria for its own sake or as a proxy;
- section 2 may require the creation of majority-minority districts when the three Gingles principles are present [ ];
- a state's interest in avoiding liability under section 2 is a compelling state interest;
- a district that "substantially addresses" the potential section 2 liability and "does not deviate substantially from a hypothetical court-drawn section 2 district for predominantly racial reasons" will be deemed narrowly tailored; and
- bizarrely-shaped and non-compact districts "that otherwise neglect traditional districting principles and deviate substantially from the hypothetical court-drawn district for predominantly racial reasons, are unconstitutional.
"As the disagreement among Members of this Court...shows, the application of the principles that I have outlined sometimes requires difficult exercises of judgment. That difficulty is inevitable. The Voting Rights Act requires the States and the courts to take action to remedy the reality of racial inequality in our political system, sometimes necessitating race-based action, while the Fourteenth Amendment requires us to look with suspicion on the excessive use of racial considerations by the government . But I believe that the States, playing a primary role, and the courts, in their secondary role, are capable of distinguishing the appropriate and reasonably necessary uses of race from its unjustified and excessive uses."
Justice Kennedy in a separate concurring opinion says he joins the plurality opinion but writes separately to comment on "statements in Part II of the opinion that strict scrutiny would not apply to all cases of intentional creation of majority-minority d istricts." He says:
"Those statements are unnecessary to our decision, for strict scrutiny applies here. I do not consider these dicta to commit me to any position on the question whether race is predominant whenever a State, in redistricting, foreordains that one race be t he majority in a certain number of districts or in a certain part of the State. In my view, we would no doubt apply strict scrutiny if a State decreed that certain districts had to be at least 50 percent white, and our analysis should be no different if the State so favors minority races."
Justice Thomas, who concurred in what herefore became the Court's judgment but not in its reasoning, wrote a separate opinion joined by Justice Scalia, asserting that the application of strict scrutiny is never a close question as it applies to all gover nmental racial classifications:
"I am content to reaffirm our holding in Adarand that all racial classifications by government must be strictly scrutinized and, even in the sensitive area of state legislative redistricting, I would make no exception."
There are two dissenting opinions: one by Justice Stevens and a second by Justice Souter. Justices Ginsburg and Breyer joined both dissents.
Justice Stevens begins by stating that the entire map is a political gerrymander, not a racial one, and that the Court's decision focuses exclusively on race and ignores the political and geographic factors considered in drawing the districts. He conclud es that even if strict scrutiny applies to the districts they should be held constitutional because race was used "only to the extent necessary to comply with the state's responsibilities under the Voting Rights Act while achieving other race-neutral poli cies and geographical requirements." He states:
"[T]he Court has with its 'analytically distinct' jurisprudence of racial gerrymandering [shaw I] struck out into a jurisprudential wilderness that lacks a definable constitutional core and threatens to create harms more significant than any suffered by t he individual plaintiffs challenging these districts."
Justice Stevens also makes a distinction between the plan a court may put in place and one a state legislature may adopt:
"The fact that non-compact districts may be unacceptable judicial remedies does not speak to the question whether they may be acceptable when adopted by a state legislature. Because these districts satisfy the State's compelling interest and do so in a m anner that uses racial considerations only in a way reasonably designed to ensure such a satisfaction, I conclude that the Districts are narrowly tailored."
In conclusion, Justice Stevens wrote:
"The history of race relations in Texas and throughout the South demonstrates overt evidence of discriminatory voting practices lasting through the 1970's.... Even in recent years, Texans have elected only two black candidates to statewide office; majorit y-white Texas districts have never elected a minority to either the State Senate or the United States Congress.... One recent study suggests that majority-white districts throughout the South remain suspiciously unlikely to elect black representatives.... And nationwide, fewer than 15 of the hundreds of legislators that have passed through Congress since 1950 have been black legislators elected from majority-minority districts....while only three were elected from majority-white districts.
Perhaps the state of race relations in Texas and, for that matter, the Nation, is more optimistic than might be expected in light of these facts. If so, it may be that the plurality's exercise in redistricting will be successful. Perhaps minority candid ates, forced to run in majority-white districts, will be able to overcome the long history of stereotyping and discrimination that has heretofore led the vast majority of majority-white districts to reject minority candidacies. Perhaps not. I am certain only that bodies of elected federal and state officials are in a far better position than anyone on this Court to assess whether the Nation's long history of discrimination has been overcome, and that nothing in the Constitution requires this unnecessary intrusion into the ability of States to negotiate solutions to political differences while providing long-excluded groups the opportunity to participate effectively in the democratic process. I respectfully dissent."
Justice Souter in his dissent questions, as he has since Shaw I, just what this cause of action requires in districting cases. He wrote that the Court has created confusion in statehouses and courthouses by not identifying "an injury distinguishable from the consequences of concededly constitutional conduct" and not describing "the elements necessary and sufficient to make out such a claim."
"States seeking to comply in good faith with the requirements of federal civil rights laws 'now find themselves walking a tight-rope: if they draw majority black districts they face lawsuits under the equal protection clause; if they do not, they face bot h objections under section 5 of the Voting Rights Act and lawsuits under section 2'.... The States, in short have been told to get things just right, no dilution and no predominant consideration of race short of dilution, without being told how to do it. The tendency of these conflicting incentives is toward stalemate, and neither the moral force of the Constitution nor the mercenary threat of liability can operate effectively in this obscurity."
Justice Souter, as did Justice Stevens in his dissent, also argues that it is desirable for the States to continue to have greater flexibility than federal courts have in enforcing section 2, and asserts that by repairing Shaw I through adopting specific requirements as to district shape "the Court would be reducing the discretion of a State seeking to avoid or correct dilution to the scope of a federal court's discretion when devising a remedy for dilution...." He continues:
"While there is good reason to limit a federal court's discretion to interfere in a State's political process when it employs its remedial power in dilution cases...there is no apparent reason to impose the same limitations upon the discretion accorded to a State subject to an independent constitutional duty to make apportionment decisions.... The principles of federalism that we have tried to follow strongly counsel against imposing any such limitations."
In concluding his criticism of Shaw I and its progeny, and calling for their abandonment, Justice Souter wrote:
"It is difficult to see how the consideration of race that Shaw condemns (but cannot avoid) is essentially different from the consideration of ethnicity that entered American politics from the moment that immigration began to temper regional homogeneity. Recognition of the ethnic character of neighborhoods and incumbents, through the application of just those districting principles we now view as traditional, allowed ethnically identified voters and their preferred candidates to enter the mainstream of A merican politics...and to attain a level of political power in American democracy. The result has been not a state regime of ethnic apartheid, but ethnic participation and even a moderation of ethnicity's divisive effect in political practice. For altho ugh consciousness of ethnicity has not disappeared from the American electorate, its talismanic force does appear to have cooled over time....
"There is, then, some reason to hope that if vote dilution is attacked at the same time that race is given the recognition that ethnicity has historically received in American politics, the force of race in politics will also moderate in time.... This pos sibility that racial politics, too, may grow wiser so long as minority votes are rescued from submergence should be considered in determining how far the Fourteenth and Fifteenth Amendments require us to devise constitutional common law to supplant the de mocratic process with litigation in federal courts. It counsels against accepting the profession that Shaw has yet evolved into a manageable constitutional standard, and from that case's invocation again today I respectfully dissent."
Shaw v. Hunt (Shaw II) No. 94-923
As the result of reapportionment after the 1990 Census, North Carolina gained one congressional seat for a total of twelve. The state legislature adopted a congressional redistricting plan in late 1991 that created one majority African-American congressi onal district in the northeast portion of the state (District 1). Pursuant to section 5 of the Voting Rights Act, the Department of Justice rejected the plan stating that the state legislature could have drawn a second majority African-American district in the southcentral to southeast portion of the state. Subsequently, the state legislature drew a second majority African-American district in the northcentral portion of the state along Interstate 85 (District 12), and the revised map was precleared by DOJ.
Districts 1 and 12 have roughly the same proportion African-American population, 57 percent of the total population and 53 percent of the voting-age population. The 1st district is represented by Democrat Eva Clayton and the 12th by Democrat Melvin Watt, both of whom are African-American.
This is the second time a challenge to North Carolina's 12th congressional district has been before the Supreme Court. In 1993, the Court ruled in Shaw v. Reno (Shaw I) that plaintiffs challenging the creation of the majority-African-Ameri can district had "stated a claim for relief under the Equal Protection Clause of the Fourteenth Amendment" and remanded the case back to the lower court. After a six day trial, the district court on August 1, 1994, ruled that the state's plan survived st rict scrutiny as it was narrowly tailored to serve the compelling state interest of compliance with the Voting Rights Act. The Supreme Court reversed the district court decision.
Chief Justice Rehnquist wrote the opinion of the Court which was joined by Justices O'Connor, Scalia, Kennedy and Thomas. The Court held that the state's redistricting plan was a violation of the Equal Protection Clause as it was not narrowly tailored t o serve a compelling state interest. The opinion examines the appellees assertion that three separate compelling state interests should sustain District 12:
- eradication of the effects of past and present discrimination
- compliance with section 5 of the Voting Rights Act
- compliance with section 2 of the Voting Rights Act
In discussing point 1, Justice Rehnquist argues that to meet the compelling state interest prong, the discrimination must be specific and identifiable and that "a generalized assertion of past discrimination in a particular industry or region is not adequ ate because it 'provides no guidance for a legislative body to determine the precise scope of the injury it seeks to remedy.'" The Chief Justice writes that there was little evidence to suggest that in drawing the lines the legislature considered evidenc e of discrimination "beyond what individual members may have recalled from personal experience."
The majority found it not necessary to decide the question of whether compliance with the VRA is a compelling state interest, which the District Court had held, asserting that "creating an additional majority-black district was not required under a corre ct reading of section 5 and that District 12, as drawn, is not a remedy narrowly tailored to the State's professed interest in avoiding section 2 liability." As to section 5, the majority concludes:
"North Carolina's first plan...indisputably was ameliorative, having created the first majority-black district in recent history. Thus, that plan even if it falls short of what might be accomplished in terms of increasing minority representation, cannot violate section 5 unless the new apportionment itself so discriminates on the basis of race or color as to violate the Constitution."
As to section 2 liability, the Court assumes for purposes of argument that avoiding such liability is a compelling state interest and that the state legislature "had a strong basis in evidence" to conclude that creation of a second African-American distr ict was necessary to avoid the liability, but concludes that:
"District 12 could not remedy any potential section 2 violation...a plaintiff must show that the minority group is 'geographically compact' to establish section 2 liability. No one looking at District 12 could reasonably suggest that the district contai ns a 'geographically compact' population of any race...Therefore where that district sits 'there neither has been a wrong nor can be a remedy.'"
As to the argument raised by the appellees and accepted by the District Court that a State may in its efforts to avoid section 2 liability draw a majority-minority district anywhere in the state, the majority says:
"We find this position singularly unpersuasive. We do not see how a district so drawn would avoid section 2 liability. If a section 2 violation is proven for a particular area, it flows from the fact that individuals in this area 'have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice'.... The vote dilution injuries suffered by these persons are not remedied by creating a safe majority-black district somewhere else in the State.... To accept that the district may be placed anywhere implies that the claim, and hence the coordinate right to an undiluted vote (to cast a ballot equal among voters), belongs to the minority as a group and not to its individual members. It does not."
Justice Stevens begins his dissent, which is joined in part by Justices Ginsburg and Breyer, by stating:
"As I have explained on prior occasions, I am convinced that the Court's aggressive supervision of state action designed to accommodate the political concerns of historically disadvantaged minority groups is seriously misguided. A majority's attempt to e nable the minority to participate more effectively in the process of democratic government should not be viewed with the same hostility that is appropriate for oppressive and exclusionary abuses of political power."
Justice Stevens' opinion then discusses in some detail his view that the Court "has failed to supply a coherent theory of standing to justify its emerging and misguided race-based districting jurisprudence." This part of his opinion is not joined by Jus tices Ginsburg and Breyer. He asserts that the plaintiffs "have surely failed to prove the existence of such injuries to the degree that we normally require at this stage of the litigation." He concludes his discussion of standing by stating:
"Thus, so long as the Court insists on treating this type of suit as a traditional Equal Protection claim, it must either mean to take a broader view of the power of federal courts to entertain challenges to race-based governmental action than it has her etofore adopted...or to create a special exception to general jurisdictional limitations for plaintiffs such as those before us here. Suffice it to say, I charitably assume the former to be the case, and proceed to consider the merits on the assumption t hat Shaw I was correctly decided."
Justice Stevens argues that the facts of this case would not trigger strict scrutiny review as established in Miller (race must be the predominant factor overriding traditional districting principles). He continues that the Court's holding that race was the predominant factor is based on (1) the state's admission that its "overriding" purpose was to create two majority African-American districts and (2) the non-compact shape of district 12. As to point 1, he says that the state's intention does not she d any light on whether traditional districting principles were subordinated nor does the shape of the district since there is no federal requirement, nor in North Carolina a state requirement, that districts be compact.
Further, he asserts that the North Carolina legislature could have simply adopted the map recommended by the DOJ, but chose instead to draw district 12 to protect incumbents and to maintain the rural and urban communities of interest in the state. He th en cites the plurality opinion in Bush v. Vera that "an otherwise compact majority-minority district that is misshapen by nonracial, political manipulation" should pose no constitutional problem, and asserts that district 12 fits this description a nd thus should be upheld.
The opinion continues that the history of discrimination (present and past) in North Carolina politics, the desire to avoid litigation to overcome the DOJ's objection, and to avoid section 2 liability are all compelling state interests. As to the majori ty opinion's reasoning that even if the state met the compelling interest prong, the district was not narrowly tailored because district 12 was not located in the section of the state that could have given rise to section 2 liability, Justice Stevens argu es that "if a state's new plan successfully avoids the potential litigation entirely, there is no reason why it must also take the form of a 'remedy' for an unproven violation." He reasons:
"[T]he narrow tailoring requirement that the Court has fashioned is a pure judicial invention that unfairly deprives the legislature of a sovereign state of its traditional discretion in determining the boundaries of its electoral districts. The Court's analysis gives rise to the unfortunate suggestion that a State which fears a section 2 lawsuit must draw the precise district that it believes a federal court would have the power to impose. Such a proposition confounds basic principles of federalism, a nd forces States to imagine the legally 'correct' outcome of a lawsuit that has not even been filed."
In conclusion, Justice Stevens writes:
"It is, of course, irrelevant whether we, as judges, deem it wise policy to create majority-minority districts as a means of assuring fair and effective representation to minority voters. We have a duty to respect Congress' considered judgment that such a policy may serve to effectuate the ends of the constitutional Amendment that it is charged with enforcing. We should also respect North Carolina's conscientious effort to conform to that congressional determination. Absent some demonstration that vot ers are being denied fair and effective representation as a result of their race, I find no basis for this Court's intervention into a process by which federal and state actors, both black and white, are jointly attempting to resolve difficult questions o f politics and race that have long plagued North Carolina. Nor do I see how our constitutional tradition can countenance the suggestion that a State may draw unsightly lines to favor farmers or city dwellers, but not to create districts that benefit the very group whose history inspired the Amendment that the Voting Rights Act was designed to implement.
"Because I have no hesitation in concluding that North Carolina's decision to adopt a plan in which white voters were in the majority in only 10 of the State's 12 districts did not violate the Equal Protection Clause, I respectfully dissent."
Justice Souter, joined by Justices Ginsburg and Breyer filed a one sentence dissent stating: "My views on this case are substantially expressed in my dissent to Bush v. Vera.