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The Supreme Court's June 13, 1996, ruling striking down congressional districts in North Carolina. The Court held that race should not be the sole factor for creating odd-shaped districts that string together pockets of minority voters.
SUPREME COURT OF THE UNITED STATES
Syllabus
SHAW ET AL.
v.
HUNT, GOVERNOR OF NORTH CAROLINA, ET AL.
APPEAL FROM THE DISTRICT COURT FOR THE EASTERN
DISTRICT OF NORTH CAROLINA
No. 94-923. Argued December 5, 1995-Decided June 13, 1996*
Earlier in this case, in Shaw v. Reno, 509 U. S. ___, this Court held
that appellants, whose complaint alleged that North Carolina had
deliberately segregated voters by race when it created two bizarre-
looking majority-black congressional districts, Districts 1 and 12,
had stated a claim for relief under the Equal Protection Clause of the
Fourteenth Amendment. The Court remanded for further
consideration by the District Court, which held that, although the
North Carolina redistricting plan did classify voters by race, the
classification survived strict scrutiny, and therefore was
constitutional, because it was narrowly tailored to further the State's
compelling interests in complying with Sections 2 and 5 of the
Voting Rights Act of 1965. Held:
1. Only the two appellants who live in District 12 have standing to
continue this lawsuit, and only with respect to that district. The
remaining appellants, who do not reside in either of the challenged
districts and have not provided specific evidence that they personally
were assigned to their voting districts on the basis of race, lack
standing. See United States v. Hays, 515 U. S. ___. Pp. 3-4.
2. The North Carolina plan violates the Equal Protection Clause
because the State's reapportionment scheme is not narrowly tailored
to serve a compelling state interest. Pp. 4-19.
(a) Strict scrutiny applies when race is the "predominant"
consideration in drawing district lines such that "the legislature
subordinates race-neutral districting principles . . . to racial
considerations." Miller v. Johnson, 515 U. S. ___, ___. The
District Court's finding that the North Carolina General Assembly
"deliberately drew" District 12 so that it would have an effective
voting majority of black citizens, when read in the light of the
evidence as to the district's shape and demographics and the
legislature's objective, comports with the Miller standard. In order to
justify its redistricting plan, therefore, the State must show not only
that the plan was in pursuit of a compelling state interest, but also that
it was narrowly tailored to achieve that interest. Id., at ___. Pp. 4-
8.
(b) None of the three separate ``compelling interests'' to which
appellees point suffices to sustain District 12. First, the District
Court found that the State's claimed interest in eradicating the effects
of past discrimination did not actually precipitate the use of race in the
redistricting plan, and the record does not establish that that finding
was clearly erroneous. Second, the asserted interest in complying
with Section 5 of the Voting Rights Act did not justify redistricting
here, since creating an additional majority-black district, as urged by
the Justice Department before it granted preclearance, was not
required under a correct reading of Section 5. See Miller, 515 U. S.,
at ___ - ___. This Court again rejects the Department's expansive
reading of Section 5 and of its own authority thereunder as requiring
States to maximize the number of majority-minority districts
wherever possible. See, e.g., id., at ___. Third, District 12, as
drawn, is not a remedy narrowly tailored to the State's professed
interest in avoiding liability under Section 2 of the Act, which, inter
alia, prohibits dilution of the voting strength of members of a
minority group. District 12 could not remedy any potential Section 2
violation, since the minority group must be shown to be
"geographically compact" to establish Section 2 liability, see, e.g.,
Thornburg v. Gingles, 478 U. S. 30, 50, and it cannot reasonably be
suggested that District 12 contains a "geographically compact"
population of any race. Appellees are singularly unpersuasive when
they argue that a majority-minority district may be drawn anywhere if
there is a strong basis in evidence for concluding that a Section 2
violation exists somewhere in the State. A district so drawn could
not avoid Section 2 liability, which targets vote-dilution injury to
individuals in a particular area, not to the minority as a group. Just
as in Miller, this Court does not here reach the question whether
compliance with the Act, on its own, can be a compelling state
interest under the proper circumstances. Pp. 8-19. 861 F. Supp.
408, reversed.
REHNQUIST, C. J., delivered the opinion of the Court, in which
O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined.
STEVENS, J., filed a dissenting opinion, in which GINSBURG and
BREYER, JJ., joined as to Parts II, III, IV, and V. SOUTER, J.,
filed a dissenting opinion, in which GINSBURG and BREYER, JJ.,
joined.
*Together with No. 94-924, Pope et al. v. Hunt, Governor of North
Carolina, et al., also on appeal from the same court.
NOTICE: This opinion is subject to formal revision before
publication in the preliminary print of the United States Reports.
Readers are requested to notify the Reporter of Decisions, Supreme
Court of the United States, Wash-ington, D.C. 20543, of any
typographical or other formal errors, in order that corrections may be
made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
Nos. 94-923 AND 94-924
RUTH O. SHAW, ET AL., APPELLANTS
94-923 v.
JAMES B. HUNT, JR., GOVERNOR OF NORTH CAROLINA,
ET AL.
JAMES ARTHUR POPE, ET AL., APPELLANTS
94-924 v.
JAMES B. HUNT, JR., GOVERNOR OF NORTH CAROLINA,
ET AL.
ON APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
[June 13, 1996]
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
This case is here for a second time. In Shaw v. Reno, 509 U. S.
___ (1993) (Shaw I), we held that plaintiffs whose complaint alleged
that the deliberate segregation of voters into separate and bizarre-
looking districts on the basis of race stated a claim for relief under the
Equal Protection Clause of the Fourteenth Amendment. We
remanded the case for further consideration by the District Court.
That court held that the North Carolina redistricting plan did classify
voters by race, but that the classification survived strict scrutiny and
therefore did not offend the Constitution. We now hold that the
North Carolina plan does violate the Equal Protection Clause because
the State's reapportionment scheme is not narrowly tailored to serve a
compelling state interest.
The facts are set out in detail in our prior opinion, and we shall only
summarize them here. After the 1990 census, North Carolina's
congressional delegation increased from 11 to 12 members. The
State General Assembly adopted a reapportionment plan, Chapter
601, that included one majority-black district, District 1, located in
the northeastern region of the State. 1991 N. C. Sess. Laws, ch.
601. The legislature then submitted the plan to the Attorney General
of the United States for preclearance under Section 5 of the Voting
Rights Act of 1965, 79 Stat. 439, as amended, 42 U. S. C. Section
1973c (1988 ed.). The Assistant Attorney General for Civil Rights,
acting on the Attorney General's behalf, objected to the proposed
plan because it failed "to give effect to black and Native American
voting strength" in "the south-central to southeastern part of the state"
and opined that the State's reasons for not creating a second majority-
minority district appeared "to be pretextual." App. 151-153. Duly
chastened, the legislature revised its districting scheme to include a
second majority-black district. 1991 N. C. Extra Sess. Laws, ch. 7.
The new plan, Chapter 7, located the minority district, District 12, in
the north-central or Piedmont region, not in the south-central or
south-eastern region identified in the Justice Department's objection
letter. The Attorney General nonetheless precleared the revised plan.
By anyone's measure, the boundary lines of Districts 1 and 12 are
unconventional. A map portrays the districts' deviance far better than
words, see the Appendix to the opinion of the Court in Shaw I,
supra, but our prior opinion describes them as follows:
"The first of the two majority-black districts . . . 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 southern-most part of the State near
the South Carolina border. . . .
"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 [Interstate]-85 corridor. It winds in
snake-like fashion through tobacco country, financial centers, and
manufacturing areas `until it gobbles in enough enclaves of black
neighborhoods.'" Shaw I, supra, at ___ (slip op., at 3) (citation
omitted).
Five North Carolinians commenced the present action in the United
States District Court for the Eastern District of North Carolina against
various state officials.1 Following our reversal of the District Court's
dismissal of their complaint in Shaw I, the District Court allowed a
number of individuals to intervene, 11 on behalf of the plaintiffs and
22 for the defendants. After a 6-day trial, the District Court
unanimously found "that the Plan's lines were deliberately drawn to
produce one or more districts of a certain racial composition." 861
F. Supp. 408, 417, 473-474 (1994). A majority of the court held
that the plan was constitutional, nonetheless, because it was narrowly
tailored to further the State's compelling interests in complying with
Sections 2 and 5 of the Voting Rights Act, 42 U. S. C. Sections
1973, 1973c. 861 F. Supp., at 474. The dissenting judge disagreed
with that portion of the judgment. We noted probable jurisdiction.
515 U. S. ___ (1995).
As a preliminary matter, appellees challenge appellants' standing to
continue this lawsuit. In United States v. Hays, 515 U. S. ___
(1995), we recognized that a plaintiff who resides in a district which
is the subject of a racial-gerrymander claim has standing to challenge
the legislation which created that district, but that a plaintiff from
outside that district lacks standing absent specific evidence that he
personally has been subjected to a racial classification. Two
appellants, Ruth Shaw and Melvin Shimm, live in District 12 and
thus have standing to challenge that part of Chapter 7 which defines
District 12. See Miller v. Johnson, 515 U. S. ___, ___ (1995) (slip
op., at 7). The remaining appellants do not reside in District 1,
however, and they have not provided specific evidence that they
personally were assigned to their voting districts on the basis of race.
Therefore, we conclude that only Shaw and Shimm have standing
and only with respect to District 12.2
We explained in Miller v. Johnson that a racially gerrymandered
districting scheme, like all laws that classify citizens on the basis of
race, is constitutionally suspect. Id., at ____ (slip op., at 2-3); see
also Shaw I, 509 U. S., at ___ (slip op., at 26); Adarand
Constructors, Inc. v. Pea, 515 U. S. ___ (1995). This is true
whether or not the reason for the racial classification is benign or the
purpose remedial. Shaw I, supra, at ___ (slip op., at 11, 22);
Adarand, supra, at ___ (slip op., at 24-25). Applying traditional
equal protection principles in the voting-rights context is "a most
delicate task," Miller, supra, at ___ (slip op., at 3), however,
because a legislature may be conscious of the voters' races without
using race as a basis for assigning voters to districts. Shaw I, supra,
at ____ (slip op., at 14-15); Miller, 515 U. S., at ___ (slip op., at
14). The constitutional wrong occurs when race becomes the
"dominant and controlling" consideration. Id., at ___ (slip op., at
11, 14-15).
The plaintiff bears the burden of proving the race-based motive and
may do so either through "circumstantial evidence of a district's
shape and demographics" or through "more direct evidence going to
legislative purpose." Miller, supra, at ___ (slip op., at 15). After a
detailed account of the process that led to enactment of the challenged
plan, the District Court found that the General Assembly of North
Carolina "deliberately drew" District 12 so that it would have an
effective voting majority of black citizens. 861 F. Supp., at 473.
Appellees urge upon us their view that this finding is not phrased in
the same language that we used in our opinion in Miller v. Johnson,
supra, where we said that a plaintiff must show "that race was the
predominant factor motivating the legislature's decision to place a
significant number of voters within or without a particular district."
Id., at ___ (slip op., at 15).
The District Court, of course, did not have the benefit of our opinion
in Miller at the time it wrote its opinion. While it would have been
preferable for the court to have analyzed the case in terms of the
standard laid down in Miller, that was not possible. This
circumstance has no consequence here because we think that the
District Court's findings, read in the light of the evidence that it had
before it, comport with the Miller standard.
First, the District Court had evidence of the district's shape and
demographics. The court observed "the obvious fact" that the
district's shape is "highly irregular and geographically non-compact
by any objective standard that can be conceived." 861 F. Supp., at
469. In fact, the serpentine district has been dubbed the least
geographically compact district in the Nation. App. 332.
The District Court also had direct evidence of the legislature's
objective. The State's submission for preclearance expressly
acknowledged that the Chapter 7's "overriding purpose was to
comply with the dictates of the Attorney General's December 18,
1991 letter and to create two congressional districts with effective
black voting majorities." App. 162 (emphasis added). This
admission was confirmed by Gerry Cohen, the plan's principal
draftsman, who testified that creating two majority-black districts
was the "principal reason" for Districts 1 and 12. Id., at 675; Tr.
514. Indeed, appellees in their first appearance before the District
Court "formally concede[d] that the state legislature deliberately
created the two districts in a way to assure black-vote majorities,"
Shaw v. Barr, 808 F. Supp. 461, 470 (EDNC 1992), and that
concession again was credited by the District Court on remand, 861
F. Supp., at 473-474. See also Shaw I, supra, at ___ (slip op., at 9)
(White, J., dissenting) ("The State has made no mystery of its intent,
which was to respond to the Attorney General's objections by
improving the minority group's prospects of electing a candidate of
its choice" (citation omitted)). Here, as in Miller, "we fail to see how
the District Court could have reached any conclusion other than that
race was the predominant factor in drawing [the challenged district]."
Miller, supra, at ___ (slip op., at 17).
In his dissent, JUSTICE STEVENS argues that strict scrutiny does
not apply where a State "respects" or "compl[ies] with traditional
districting principles." Post, at 15 ("race-based districting which
respects traditional districting principles does not give rise to
constitutional suspicion"), 16 ("Miller demonstrates that although
States may avoid strict scrutiny by complying with traditional
districting principles . . . "). That, however, is not the standard
announced and applied in Miller,3 where we held that strict scrutiny
applies when race is the "predominant" consideration in drawing the
district lines such that "the legislature subordinate[s] race-neutral
districting principles . . . to racial considerations." Miller, supra, at
___ (slip op., at 15). (JUSTICE STEVENS articulates the correct
standard in his dissent, post, at 14, but he fails to properly apply it.)
The Miller standard is quite different from the one that JUSTICE
STEVENS advances, as an examination of the dissent's reasoning
demonstrates. The dissent explains that "two race-neutral, traditional
districting criteria" were at work in determining the shape and
placement of District 12, and from this suggests that strict scrutiny
should not apply. Post, at 20-24. We do not quarrel with the
dissent's claims that, in shaping District 12, the State effectuated its
interest in creating one rural and one urban district, and that partisan
politicking was actively at work in the districting process. That the
legislature addressed these interests does not in any way refute the
fact that race was the legislature's predominant consideration. Race
was the criterion that, in the State's view, could not be compromised;
respecting communities of interest and protecting Democratic
incumbents came into play only after the race-based decision had
been made.
Racial classifications are antithetical to the Fourteenth Amendment,
whose "central purpose" was "to eliminate racial discrimination
emanating from official sources in the States." McLaughlin v.
Florida, 379 U. S. 184, 192 (1964); Richmond v. J. A. Croson Co.,
488 U. S. 469, 491 (1989) (opinion of O'CONNOR, J.) ("[T]he
Framers of the Fourteenth Amendment . . . desired to place clear
limits on the States' use of race as a criterion for legislative action,
and to have the federal courts enforce those limitations"). While
appreciating that a racial classification causes "fundamental injury" to
the "individual rights of a person," Goodman v. Lukens Steel Co.,
482 U. S. 656, 661 (1987), we have recognized that, under certain
circumstances, drawing racial distinctions is permissible where a
governmental body is pursuing a "compelling state interest." A
State, however, is constrained in how it may pursue that end: "[T]he
means chosen to accomplish the State's asserted purpose must be
specifically and narrowly framed to accomplish that purpose."
Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 280 (1986) (opinion
of Powell, J.). North Carolina, therefore, must show not only that
its redistricting plan was in pursuit of a compelling state interest, but
also that "its districting legislation is narrowly tailored to achieve
[that] compelling interest." Miller, 515 U. S., at ___ (slip op., at
19).
Appellees point to three separate compelling interests to sustain
District 12: to eradicate the effects of past and present discrimination;
to comply with Section 5 of the Voting Rights Act; and to comply
with Section 2 of that Act. We address each in turn.4
A State's interest in remedying the effects of past or present racial
discrimination may in the proper case justify a government's use of
racial distinctions. Croson, 488 U. S., at 498-506. For that interest
to rise to the level of a compelling state interest, it must satisfy two
conditions. First, the discrimination must be "`identified
discrimination.'" Id., at 499, 500, 505, 507, 509. "While the States
and their subdivisions may take remedial action when they possess
evidence" of past or present discrimination, "they must identify that
discrimination, public or private, with some specificity before they
may use race-conscious relief." Id., at 504. A generalized assertion
of past discrimination in a particular industry or region is not
adequate because it "provides no guidance for a legislative body to
determine the precise scope of the injury it seeks to remedy." Id., at
498 (opinion of O'CONNOR, J.). Accordingly, an effort to alleviate
the effects of societal discrimination is not a compelling interest.
Wygant, supra, at 274-275, 276, 288.5 Second, the institution that
makes the racial distinction must have had a "strong basis in
evidence" to conclude that remedial action was necessary, "before it
embarks on an affirmative-action program," 476 U. S., at 277
(plurality opinion) (emphasis added).
In this case, the District Court found that an interest in ameliorating
past discrimination did not actually precipitate the use of race in the
redistricting plan. While some legislators invoked the State's history
of discrimination as an argument for creating a second majority-black
district, the court found that these members did not have enough
voting power to have caused the creation of the second district on that
basis alone. 861 F. Supp., at 471.
Appellees, to support their claim that the plan was drawn to remedy
past discrimination, rely on passages from two reports prepared for
this litigation by an historian and a social scientist. Brief for
Appellees Gingles et al. 40-44, citing H. Watson, Race and Politics
in North Carolina, 1865-1994, App. 610-624 (excerpts) and J.
Kousser, After 120 Years: Redistricting and Racial Discrimination in
North Carolina, id., at 602-609 (excerpts). Obviously these reports,
both dated March 1994, were not before the General Assembly when
it enacted Chapter 7. And there is little to suggest that the legislature
considered the historical events and social-science data that the
reports recount, beyond what individual members may have recalled
from personal experience. We certainly cannot say on the basis of
these reports that the District Court's findings on this point were
clearly erroneous.
Appellees devote most of their efforts to arguing that the race-based
redistricting was constitutionally justified by the State's duty to
comply with the Voting Rights Act. The District Court agreed and
held that compliance with Sections 2 and 5 of the Act could be, and
in this case was, a compelling state interest. 861 F. Supp., at 437.
In Miller, we expressly left open the question whether under the
proper circumstances compliance with the Voting Rights Act, on its
own, could be a compelling interest. Miller, 515 U. S., at ___ (slip
op., at 20) ("Whether or not in some cases compliance with the
Voting Rights Act, standing alone, can provide a compelling interest
independent of any interest in remedying past discrimination . . . ").
Here once again we do not reach that question because we find that
creating an additional majority-black district was not required under a
correct 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.
With respect to Section 5 of the Voting Rights Act, we believe our
decision in Miller forecloses the argument, adopted by the District
Court, that failure to engage in the race-based districting would have
violated that section. In Miller, we considered an equal protection
challenge to Georgia's Eleventh Congressional District. As appellees
do here, Georgia contended that its redistricting plan was necessary
to meet the Justice Department's preclearance demands. The Justice
Department had interposed an objection to a prior plan that created
only two majority-minority districts. We held that the challenged
congressional plan was not required by a correct reading of Section 5
and therefore compliance with that law could not justify race-based
districting. Miller, supra, at ___ (slip op., at 20) ("[C]ompliance
with federal antidiscrimination laws cannot justify race-based
districting where the challenged district was not reasonably necessary
under a constitutional reading and application of those laws").
We believe the same conclusion must be drawn here. North
Carolina's first plan, Chapter 601, indisputably was ameliorative,
having created the first majority-black district in recent history.
Thus, that plan, "`even if [it] fall[s] 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.'" Miller, supra, at ___ (slip op., at 23, 22), quoting
Days, Section 5 and the Role of the Justice Department, in B.
Grofman & C. Davidson, Controversies in Minority Voting 56
(1992), and Beer v. United States, 425 U. S. 130, 141 (1976).
As in Miller, the United States relies on the purpose prong of Section
5 to explain the Department's preclearance objections, alleging that
North Carolina, for pretextual reasons, did not create a second
majority-minority district. Brief for United States as Amicus Curiae
24. We again find the Government's position "insupportable."
Miller, supra, at ___ (slip op., at 23). The General Assembly, in its
submission filed with Chapter 601, explained why it did not create a
second minority district; among its goals were "to keep precincts
whole, to avoid dividing counties into more than two districts, and to
give black voters a fair amount of influence by creating at least one
district that was majority black in voter registration and by creating a
substantial number of other districts in which black voters would
exercise a significant influence over the choice of congressmen."
App. 142. The submission also explained in detail the disadvantages
of other proposed plans. See, e.g. id., at 139, 140, 143 (Balmer
Congress 6.2 Plan's "[s]econd `minority' district did not have
effective minority voting majority" because it "depended on the
cohesion of black and Native American voters, and no such pattern
was evident" and "this plan dramatically decreased black influence"
in four other districts). A memorandum, sent to the Department of
Justice on behalf of the legislators in charge of the redistricting
process, provided still further reasons for the State's decision not to
draw two minority districts as urged by various interested parties.
App. 94-138; 861 F. Supp., at 480-481, n. 9 (Voorhees, C. J.,
dissenting). We have recognized that a "State's policy of adhering to
other districting principles instead of creating as many majority-
minority districts as possible does not support an inference that the
plan `so discriminates on the basis of race or color as to violate the
Constitution,' and thus cannot provide any basis under Section 5 for
the Justice Department's objection." Miller, supra, at ___ (slip op.,
at 23) (citations omitted).
It appears that the Justice Department was pursuing in North Carolina
the same policy of maximizing the number of majority-black districts
that it pursued in Georgia. See Miller, supra, at ___, and n. (slip
op., at 23-24, and n.). The two States underwent the preclearance
processes during the same time period and the objection letters they
received from the Civil Rights Division were substantially alike.
App. in Miller v. Johnson, O. T. 1994, No. 94-631, pp. 99-107. A
North Carolina legislator recalled being told by the Assistant Attorney
General that "you have twenty-two percent black people in this State,
you must have as close to twenty-two percent black Congressmen, or
black Congressional Districts in this State." App. 201. See also
Deposition of Senator Dennis Winner, id., at 698. We explained in
Miller that this maximization policy is not properly grounded in
Section 5 and the Department's authority thereunder. Miller, 515 U.
S., at ___ (slip op., at 24) ("In utilizing Section 5 to require States to
create majority-minority districts wherever possible, the Department
of Justice expanded its authority under the statute beyond what
Congress intended and we have upheld"). We again reject the
Department's expansive interpretation of Section 5. Id., at ___ (slip
op., at 24). Cf. Johnson v. De Grandy, 512 U. S. ___ (1994) (slip
op., at 20) ("Failure to maximize cannot be the measure of Section
2").6
With respect to Section 2, appellees contend, and the District Court
found, that failure to enact a plan with a second majority-black
district would have left the State vulner-able to a lawsuit under this
section. Our precedent establishes that a plaintiff may allege a
Section 2 violation in a single-member district if the manipulation of
districting lines fragments politically cohesive minority voters among
several districts or packs them into one district or a small number of
districts, and thereby dilutes the voting strength of members of the
minority population. De Grandy, supra, at ___ (slip op., at 9). To
prevail on such a claim, a plaintiff must prove that the minority group
"is sufficiently large and geographically compact to constitute a
majority in a single-member district"; that the minority group "is
politically cohesive"; and that "the white majority votes sufficiently as
a bloc to enable it . . . usually to defeat the minority's preferred
candidate." Thornburg v. Gingles, 478 U. S. 30, 50-51 (1986);
Growe v. Emison, 507 U. S. 25 (1993) (recognizing that the three
Gingles preconditions would apply to a Section 2 challenge to a
single-member district). A court must also consider all other relevant
circumstances and must ultimately find based on the totality of those
circumstances that members of a protected class "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. Section 1973(b). See De Grandy, supra, at ___ (slip op., at
15-17).
We assume, arguendo, for the purpose of resolving this case, that
compliance with Section 2 could be a compelling interest, and we
likewise assume, arguendo, that the General Assembly believed a
second majority-minority district was needed in order not to violate
Section 2, and that the legislature at the time it acted had a strong
basis in evidence to support that conclusion. We hold that even with
the benefit of these assumptions, the North Carolina plan does not
survive strict scrutiny because the remedy--the creation of District 12-
-is not narrowly tailored to the asserted end.
Although we have not always provided precise guidance on how
closely the means (the racial classification) must serve the end (the
justification or compelling interest), we have always expected that the
legislative action would substantially address, if not achieve, the
avowed purpose. See Miller, supra, at ___ (slip op., at 21) ("[T]he
judiciary retains an independent obligation . . . to ensure that the
State's actions are narrowly tailored to achieve a compelling
interest"); Wygant, 476 U. S., at 280 (opinion of Powell, J.) ("[T]he
means chosen to accomplish the State's asserted purpose must be
specifically and narrowly framed to accomplish that purpose") id., at
278, n. 5 (opinion of Powell, J.) (race-based state action must be
remedial); Shaw I, 509 U. S., at ___ (slip op., at 23) ("A
reapportionment plan would not be narrowly tailored to the goal of
avoiding retrogression if the State went beyond what was reasonably
necessary to avoid retrogression"). Cf. Missouri v. Jenkins, 515 U.
S. ___, ___ (1995) (slip op., at 16) (With regard to the remedial
authority of a federal court: "the remedy must . . . be related to `the
condition alleged to offend the Constitution . . . .'" and must be
"remedial in nature, that is, it must be designed as nearly as possible
`to restore the victims of discriminatory conduct to the position they
would have occupied in the absence of such conduct'"). Where, as
here, we assume avoidance of Section 2 liability to be a compelling
state interest, we think that the racial classification would have to
realize that goal; the legislative action must, at a minimum, remedy
the anticipated violation or achieve compliance to be narrowly
tailored.7
District 12 could not remedy any potential Section 2 violation. As
discussed above, 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
contains a "geographically compact" population of any race. See 861
F. Supp., at 469. Therefore where that district sits, "there neither
has been a wrong nor can be a remedy." Growe, supra, at 41.8
Appellees do not defend District 12 by arguing that the district is
geographically compact, however. Rather they contend, and a
majority of the District Court agreed, 861 F. Supp., at 454-454, n.
50, that once a legislature has a strong basis in evidence for
concluding that a Section 2 violation exists in the State, it may draw a
majority-minority district anywhere, even if the district is in no way
coincident with the compact Gingles district, as long as racially
polarized voting exists where the district is ultimately drawn. Tr. of
Oral Arg. 50-51, 54-56.
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." 42 U. S. C. Section 1973(b). The
vote dilution injuries suffered by these persons are not remedied by
creating a safe majority-black district somewhere else in the State.
For example, if a geographically compact, cohesive minority
population lives in south-central to southeastern North Carolina, as
the Justice Department's objection letter suggested, District 12 which
spans the Piedmont Crescent would not address that Section 2
violation. The black voters of the south-central to southeastern
region would still be suffering precisely the same injury that they
suffered before District 12 was drawn. District 12 would not address
the professed interest of relieving the vote dilution, much less be
narrowly tailored to accomplish the goal.
Arguing, as appellees do and the District Court did, that the State
may draw the district anywhere derives from a misconception of the
vote-dilution claim. 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.
See 42 U. S. C. Section 1973 ("the right of any citizen").9
The United States submits that District 12 does, in fact, incorporate a
"substantial portio[n]" of the concentration of minority voters that
would have given rise to a Section 2 claim. Brief for United States
as Amicus Curiae 27. Specifically, the Government claims that
"District 12 . . . contains the heavy concentration of African
Americans in Mecklenburg County, the same urban component
included in the second minority opportunity district in some of the
alternative plans." Ibid. The portion of District 12 that lies in
Mecklenburg County covers not more than 20% of the district. See
Exhibit 301 of Plaintiff-Intervenors, Map A, Map 9B. We do not
think that this degree of incorporation could mean that District 12
substantially addresses the Section 2 violation. We hold, therefore,
that District 12 is not narrowly tailored to the State's asserted interest
in complying with Section 2 of the Voting Rights Act.
For the foregoing reasons, the judgment of the District Court is
Reversed.
==============================================
==========
SUPREME COURT OF THE UNITED STATES
Nos. 94-923 AND 94-924
RUTH O. SHAW, ET AL., APPELLANTS
94-923 v.
JAMES B. HUNT, JR., GOVERNOR OF NORTH CAROLINA,
ET AL.
JAMES ARTHUR POPE, ET AL., APPELLANTS
94-924 v.
JAMES B. HUNT, JR., GOVERNOR OF NORTH CAROLINA,
ET AL.
ON APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
[June 13, 1996]
JUSTICE STEVENS, with whom JUSTICE GINSBURG and
JUSTICE BREYER join as to Parts II-V, dissenting.
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
enable 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. See, e.g., Adarand Constructors, Inc. v. Pea, 515 U. S.
___, ___-___ (1995) (slip op., at 2-9) (STEVENS, J., dissenting);
Miller v. Johnson, 515 U. S. ___, ___-___ (1995) (slip op., at 4-6)
(STEVENS, J., dissenting); Shaw v. Reno 509 U. S. 630, 634-635
(1993) (Shaw I) (STEVENS, J., dissenting); Wygant v. Jackson
Bd. of Ed., 476 U. S. 267, 316-317 (1986) (STEVENS, J.,
dissenting); Cousins v. City Council of Chicago, 466 F. 2d 830, 852
(CA7 1972) (Stevens, J., dissenting). But even if we accept the
Court's refusal to recognize any distinction between two vastly
different kinds of situations, we should affirm the judgment of the
District Court in this case.
As the Court analyzes the case, it raises three distinct questions: (1)
Should North Carolina's decision to create two congressional
districts in which a majority of the voters are African-American be
subject to strict constitutional scrutiny?; (2) If so, did North Carolina
have a compelling interest in creating such districts?; and (3) If so,
was the creation of those districts "narrowly tailored" to further the
asserted compelling interest? The Court inadequately explains its
answer to the first question, and it avoids answering the second
because it concludes that its answer to the third disposes of the case.
In my estimation, the Court's disposition of all three questions is
most unsatisfactory.
After commenting on the majority's treatment of the threshold
jurisdictional issue, I shall discuss separately the three questions
outlined above. In doing so, I do not mean to imply that I endorse
the majority's effort to apply in rigid fashion the strict scrutiny
analysis developed for cases of a far different type. I mean only to
show that, even on its own terms, the majority's analysis fails to
convince.
I have explained previously why I believe that the Court has failed to
supply a coherent theory of standing to justify its emerging and
misguided race-based districting jurisprudence. See Miller v.
Johnson, 515 U. S., at ___-___ (slip op., at 2-4) (STEVENS, J.,
dissenting); United States v. Hays, 515 U. S. ___, ___-___ (1995)
(slip op., at 1-3) (STEVENS, J., concurring in judgment). The
Court's analysis of the standing question in this case is similarly
unsatisfactory, and, in my view, reflects the fact that the so-called
Shaw claim seeks to employ the federal courts to impose a particular
form of electoral process, rather than to redress any racially
discriminatory treatment that the electoral process has imposed. In
this instance, therefore, I shall consider the standing question in light
of the majority's assertions about the nature of the underlying
constitutional challenge.
I begin by noting that this case reveals the Shaw claim to be useful
less as a tool for protecting against racial discrimination than as a
means by which state residents may second-guess legislative
districting in federal court for partisan ends. The plaintiff-intervenors
in this case are Republicans. It is apparent from the record that their
real grievance is that they are represented in Congress by Democrats
when they would prefer to be represented by members of their own
party. They do not suggest that the racial identity of their
representatives is a matter of concern, but it is obvious that their
political identity is critical. See Pope v. Blue, 809 F. Supp. 392
(WDNC 1992).
Significantly, from the outset of the legislative deliberations, the
Republican Party did not oppose the creation of more than one
majority-minority district. Indeed, several plans proposed by the
Republicans in the state legislature provided two such districts. 861
F. Supp. 408, 460 (EDNC 1994). However, now that the State has
created a district that is designed to preserve Democratic incumbents,
and now that the plaintiff-intervenors' partisan gerrymandering suit
has been dismissed for failure to state a claim, these intervenors have
joined this racial gerrymandering challenge.
It is plain that these intervenors are using their allegations of
impermissibly race-based districting to achieve the same substantive
result that their previous, less emotionally charged partisan
gerrymandering challenge failed to secure. In light of the amorphous
nature of the race discrimination claim recognized in Shaw I, it is
inevitable that allegations of racial gerrymandering will become a
standard means by which unsuccessful majority-race candidates, and
their parties, will seek to obtain judicially what they could not obtain
electorally.
Even if the other plaintiffs to this litigation do object to the use of race
in the districting process for reasons other than partisan political
advantage, the majority fails to explain adequately the nature of their
constitutional challenge, or why it should be cognizable under the
Equal Protection Clause. Not surprisingly, therefore, the majority's
explanation of why these plaintiffs have standing to bring this
challenge is unconvincing.
It is important to point out what these plaintiffs do not claim.
Counsel for appellees put the matter succinctly when he stated that
this case is not Gomillion v. Lightfoot, 364 U. S. 339 (1960).1
There, the plaintiffs had been prohibited from voting in municipal
elections; here, all voters remain free to select representatives to
Congress. Thus, while the plaintiffs purport to be challenging an
unconstitutional racial gerrymander, they do not claim that they have
been shut out of the electoral process on account of race, or that their
voting power has been diluted as a consequence of race-based
districting. Shaw I, 509 U. S., at 641.
What then is the wrong that these plaintiffs have suffered that entitles
them to call upon a federal court for redress? In Shaw I, the majority
construed the plaintiffs' claim to be that the Equal Protection Clause
forbids race-based districting designed solely to "separate" voters by
race, and that North Carolina's districting process violated the
prohibition. Ibid. Even if that were the claim before us, these
plaintiffs should not have standing to bring it. The record shows that
North Carolina's districting plan served to require these plaintiffs to
share a district with voters of a different race. Thus, the injury that
these plaintiffs have suffered, to the extent that there has been injury
at all, stems from the integrative rather than the segregative effects of
the State's redistricting plan.
Perhaps cognizant of this incongruity, counsel for plaintiffs asserted
a rather more abstract objection to race-based districting at oral
argument. He suggested that the plaintiffs objected to the use of race
in the districting process not because of any adverse consequence that
these plaintiffs, on account of their race, had suffered more than
other persons, but rather because the State's failure to obey a
constitutional command to legislate in a color-blind manner conveyed
a message to voters across the State that "there are two black districts
and ten white districts."2
Such a challenge calls to mind Justice Frankfurter's memorable
characterization of the suit brought in Colegrove v. Green, 328 U. S.
549, 552 (1946). "This is not an action to recover for damage
because of the discriminatory exclusion of a plaintiff from rights
enjoyed by other citizens," he explained. "The basis for the suit is
not a private wrong, but a wrong suffered by Illinois as a polity."
Ibid. Suits of this type necessarily press the boundaries of federal-
court jurisdiction, if they do not surpass it. When a federal court is
called upon, as it is here, to parse among varying legislative choices
about the political structure of a State, and when the litigant's claim
ultimately rests on "a difference of opinion as to the function of
representative government" rather than a claim of discriminatory
exclusion, Baker v. Carr, 369 U. S. 186, 333 (1962) (Harlan, J.,
dissenting), there is reason for pause. Cf. Lujan v. Defenders of
Wildlife, 504 U. S. 555, 573-574 (1992).3
Even if an objection to a State's decision to forego color-blind
districting is cognizable under some constitutional provision, I do not
understand why that provision should be the Equal Protection
Clause. In Reynolds v. Sims, 377 U. S. 533, 561 (1964), we were
careful to point out that "[a] predominant consideration in
determining whether a State's legislative apportionment scheme
constitutes an invidious discrimination violative of rights asserted
under the Equal Protection Clause is that the rights allegedly impaired
are individual and personal in nature." In addition, in Palmer v.
Thompson, 403 U. S. 217, 225 (1971), we explained that racially-
motivated legislation violates the Equal Protection Clause only when
the challenged legislation "affect[s] blacks differently from whites."
To be sure, as some commentators have noted, we have permitted
generalized claims of harm resulting from State-sponsored messages
to secure standing under the Establishment Clause. Pildes & Niemi,
Expressive Harms, "Bizarre Districts," and Voting Rights:
Evaluating Election-District Appearances After Shaw v. Reno, 92
Mich. L. Rev. 483, 499-524 (1993). It would be quite strange,
however, to confer similarly broad standing under the Equal
Protection Clause because that Clause protects against wrongs which
by definition burden some persons but not others.
Here, of course, it appears that no individual has been burdened
more than any other. The supposedly insidious messages that Shaw
I contends will follow from extremely irregular race-based districting
will presumably be received in equal measure by all State residents.
For that reason, the claimed violation of a shared right to a color-
blind districting process would not seem to implicate the Equal
Protection Clause at all precisely because it rests neither on a
challenge to the State's decision to distribute burdens and benefits
unequally, nor on a claim that the State's formally equal treatment of
its citizens in fact stamps persons of one race with a badge of
inferiority. See Bush v. Vera, post, at 9-11 (SOUTER, J.,
dissenting). Indeed, to the extent that any person has been burdened
more than any other by the State's districting plan, geography rather
than race would seem to be to blame. The State has not chosen to
subject only persons of a particular race to race-based districting.
Rather, the State has selected certain geographical regions in which
all voters--both white and black--have been assigned to race-based
districts. Thus, what distinguishes those residents who have
received a "color-blind" districting process from those who have not
is geography rather than racial identity. Not surprisingly, therefore,
Shaw I emphasizes that the race of the members of the plaintiff class
is irrelevant. Shaw I, 509 U. S., at 641. Given the absence of any
showing, or, indeed, any allegation, that any person has been
harmed more than any other on account of race, the Court's decision
to entertain the claim of these plaintiffs would seem to emanate less
from the Equal Protection Clause's bar against racial discrimination
than from the Court's unarticulated recognition of a new substantive
due process right to "color-blind" districting itself. See Shaw I, 509
U. S., at 641-642.4 Revealed for what it is, the constitutional claim
before us ultimately depends for its success on little more than
speculative judicial suppositions about the societal message that is to
be gleaned from race-based districting. I know of no workable
constitutional principle, however, that can discern whether the
message conveyed is a distressing endorsement of racial separatism,
or an inspiring call to integrate the political process. As a result, I
know of no basis for recognizing the right to color-blind districting
that has been asserted here.
Even if there were some merit to the constitutional claim, it is at least
clear that it requires the recognition of a new constitutional right. For
that very reason, the Court's suggestion that pre-Shaw, race
discrimination precedent somehow compels the application of strict
scrutiny is disingenuous. The fact that our Equal Protection
jurisprudence requires strict scrutiny of a claim that the State has used
race as a criterion for imposing burdens on some persons but not
others does not mean that the Constitution demands that a similar
level of review obtain for a claim that the State has used race to
impose equal burdens on the polity as a whole, or upon some
nonracially defined portion thereof. As to the latter claim, the State
may well deserve more deference when it determines that racial
considerations are legitimate in a context that results in no race-based,
unequal treatment.
To take but one example, I do not believe that it would make sense to
apply strict scrutiny to the Federal Government's decision to require
citizens to identify their race on census forms, even though that
requirement would force citizens to classify themselves racially, and
even though such a requirement would arguably convey an insidious
message about the Government's continuing belief that race remains
relevant to the formulation of public policy. Of course, if the Federal
Government required only those persons residing in the Midwest to
identify their race on the census form, I do not doubt that only
persons living in States in that region who filled out the forms would
have standing to bring the constitutional challenge. I do doubt,
however, whether our Equal Protection jurisprudence would require
a federal court to evaluate the claim itself under strict scrutiny. In
such a case, the only unequal treatment would have resulted from the
State's decision to discriminate on the basis of geography, a race-
neutral selection criterion that has not generally been thought to
necessitate close judicial review.
The majority ignores these concerns and simply applies the standing
test set forth in United States v. Hays, 515 U. S. ___ (1995), on the
apparent assumption that this test adequately identifies those who
have been personally denied "equal treatment" on account of race.
Id., at ___ (slip op., at 8). In Hays, the Court held that a plaintiff
has standing to challenge a State's use of race in districting for Shaw
claims if he (1) lives in a district that allegedly constitutes a racial
gerrymander or (2) shows that, although he resides outside such a
district, he has been personally subject to a racial classification.
Ante, at 3-4. On this basis, the Court concludes that none of the
plaintiffs in this action has standing to challenge District 1, but that
two of them have standing to challenge District 12. Ante, at 4.
As I understand it, the distinction drawn in Hays between those who
live within a district, and those who do not, is thought to be relevant
because voters who live in the "gerrymandered" district will have
suffered the "personal" injuries inflicted by race-based districting
more than other state residents.5 Those injuries are said to be
"representational" harms in the sense that race-based districting may
cause officeholders to represent only those of the majority race in
their district, or "stigmatic" harms, in the sense that the race-based
line-drawing may promote racial hostility. United States v. Hays,
515 U. S., at ___ (slip op., at 7-9); Shaw I, 509 U. S., at 646-649.
Even if I were to accept the flawed assumption that the Hays test
serves to identify any voter who has been burdened more than any
other as a consequence of his race, I would still find it a most
puzzling inquiry. What the Court fails to explain, as it failed to
explain in Hays, is why evidence showing either that one lives in an
allegedly racially gerrymandered district or that one's district
assignment directly resulted from a racial classification should suffice
to distinguish those who have suffered the representational and
stigmatic harms that supposedly follow from race-based districting
from those who have not.
If representational injuries are what one must show to secure
standing under Hays, then a demonstration that a voter's race led to
his assignment to a particular district would perhaps be relevant to the
jurisdictional inquiry, but surely not sufficient to satisfy it. There is
no necessary correlation between race-based districting assignments
and inadequate representation. See Davis v. Bandemer, 478 U. S.
109, 132 (1986) (opinion of White, J.). Indeed, any assumption that
such a correlation exists could only be based on a stereotypical
assumption about the kind of representation that politicians elected by
minority voters are capable of providing. See Miller v. Johnson, 515
U. S., at ___-___ (slip op., at 2-3) (STEVENS, J., dissenting).
To prove the representational harms that Hays holds are needed to
establish standing to assert a Shaw claim, one would think that
plaintiffs should be required to put forth evidence that demonstrates
that their political representatives are actually unlikely to provide
effective representation to those voters whose interests are not
aligned with those of the majority race in their district. Here, as the
record reveals, no plaintiff has made such a showing. See 861 F.
Supp., at 424-425, 471, n. 59. Given our general reluctance to hear
claims founded on speculative assertions of injury, I do not
understand why the majority concludes that the speculative
possibility that race-based districting "may" cause these plaintiffs to
receive less than complete representation suffices to create a
cognizable case or controversy. United States v. Hays, 515 U. S.,
at ___ (slip op., at 8).
If under Hays the so-called "stigmatic" harms which result from
extreme race-based districting suffice to secure standing, then I fail to
see why it matters whether the litigants live within the
"gerrymandered" district or were placed in a district as a result of
their race. As I have pointed out, all voters in North Carolina would
seem to be equally affected by the messages of "balkanization" or
"racial apartheid" that racially gerrymandered maps supposedly
convey, cf. Davis, 478 U. S., at 153 (O'CONNOR, J., concurring
in judgment).
Even if race-based districting could be said to impose more personal
harms than the so-called "stigmatic" harms that Hays itself identified,
I do not understand why any voter's reputation or dignity should be
presumed to have been harmed simply because he resides in a highly
integrated, majority-minority voting district that the legislature has
deliberately created. Certainly the background social facts are not
such that we should presume that the "stigmatic harm" described in
Hays and Shaw I amounts to that found cognizable under the Equal
Protection Clause in Brown v. Board of Education, 347 U. S. 483,
495 (1954), where state-sponsored school segregation caused some
students, but not others, to be stamped with a badge of inferiority on
account of their race. See Shaw I, 509 U. S., at 682, n. 4
(SOUTER, J., dissenting).
In sum, even if it could be assumed that the plaintiffs in this case
asserted the personalized injuries recognized in Hays at the time of
Shaw I by virtue of their bare allegations of racial gerrymandering,
they have surely failed to prove the existence of such injuries to the
degree that we normally require at this stage of the litigation. See
Lujan v. Defenders of Wildlife, 504 U. S. 555 (1992). 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 heretofore adopted, see Allen v.
Wright, 468 U. S. 737 (1984); cf. Palmer, 403 U. S., at 224-225,
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 that Shaw I was correctly decided.
The District Court concluded that Shaw I required the application of
strict scrutiny in any case containing proof that "racial considerations
played a `substantial' or `motivating' role in the line-drawing
process, even if they were not the only factor that influenced that
process." 861 F. Supp., at 431. The court acknowledged that under
this standard any deliberate effort to draw majority-minority districts
in conformity with the Voting Rights Act would attract the strictest
constitutional review, regardless of whether race-neutral districting
criteria were also considered. Id., at 429. As a consequence, it
applied strict scrutiny in this case solely on the basis of North
Carolina's concession that it sought to draw two majority-minority
districts in order to comply with the Voting Rights Act, and without
performing any inquiry into whether North Carolina had considered
race-neutral districting criteria in drawing District 12's boundaries.
As the majority concludes, the District Court's test for triggering
strict scrutiny set too low a threshold for subjecting a State's
districting effort to rigorous, if not fatal, constitutional review. Ante,
at 5. In my view, therefore, the Court should at the very least
remand the case to allow the District Court, which possesses an
obvious familiarity with the record and a superior understanding of
local dynamics,6 to make the fact-intensive inquiry into legislative
purpose that the proper test for triggering strict scrutiny requires.
Although I do not share the majority's willingness to divine on my
own the degree to which race determined the precise contours of
District 12, if forced to decide the matter on this record, I would
reject the majority's conclusion that a fair application of precedent
dictates that North Carolina's redistricting effort should be subject to
strict scrutiny.
Subsequent to the District Court's decision, we handed down Miller
v. Johnson, 515 U. S. ___ (1995), and issued our summary
affirmance in DeWitt v. Wilson, 515 U. S. ___ (1995). As I
understand the Miller test, and as it was applied in DeWitt, state
legislatures may take racial and ethnic characteristics of voters into
account when they are drawing district boundaries without triggering
strict scrutiny so long as race is not the "predominant" consideration
guiding their deliberations. Miller v. Johnson, 515 U. S., at ___
(slip op., at 15). To show that race has been "predominant," a
plaintiff must show that "the legislature subordinated traditional race-
neutral districting principles . . . to racial considerations" in drawing
that district. Id., at ___ (slip op., at 15); see also id., at ___ (slip
op., at 1) (O'CONNOR, J., concurring) ("To invoke strict scrutiny,
a plaintiff must show that the State has relied on race in substantial
disregard of customary and traditional districting practices"); DeWitt
v. Wilson, 856 F. Supp. 1409, 1412 (ED Cal. 1994), aff'd in part,
dism'd in part, 515 U. S. ___ (1995) (declining to apply strict
scrutiny because State complied with traditional districting
principles).
Indeed, the principal opinion in Bush v. Vera, post, p. ___, issued
this same day, makes clear that the deliberate consideration of race in
drawing district lines does not in and of itself invite constitutional
suspicion. As the opinion there explains, our precedents do not
require the application of strict scrutiny "to all cases of intentional
creation of majority-minority districts." Bush, post, at 3. Rather,
strict scrutiny should apply only upon a demonstration that "`race for
its own sake, and not other districting principles, was the
legislature's dominant and controlling rationale in drawing its district
lines.'" Ibid. (quoting Miller, 515 U. S. at ___ (slip op., at 11)).
Because "the legitimate consideration of race in a districting decision
is usually inevitable under the Voting Rights Act when communities
are racially mixed," Shaw I, 509 U. S., at 683 (SOUTER, J.,
dissenting), our decisions in Miller, DeWitt, and Bush have quite
properly declined to deem all race-based districting subject to strict
scrutiny. Unlike many situations in which the consideration of race
itself necessarily gives rise to constitutional suspicion, see, e.g.,
Batson v. Kentucky, 476 U. S. 79 (1986), Adarand Constructors,
Inc. v. Pea, 515 U. S. ___ (1995), our precedents have sensibly
recognized that in the context of redistricting a plaintiff must
demonstrate that race had been used in a particularly determinative
manner before strict constitutional scrutiny should obtain. Cf.
Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978). This
higher threshold for triggering strict scrutiny comports with the fact
that the shared representational and stigmatic harms that Shaw
purports to guard against are likely to occur only when the State
subordinates race-neutral districting principles to a racial goal. See
Shaw I, 509 U. S., at 646-649; 861 F. Supp., at 476-478
(Voorhees, C. J., dissenting); Pildes & Niemi 92 Mich. L. Rev., at
499-524.
Shaw I is entirely consistent with our holdings that race-based
districting which respects traditional districting principles does not
give rise to constitutional suspicion. As the District Court noted,
Shaw I expressly reserved the question whether "`the intentional
creation of majority-minority districts, without more,' always gives
rise to an equal protection claim." 861 F. Supp., at 429 (quoting
Shaw I, 509 U. S., at 649). Shaw I held only that an equal
protection claim could lie as a result of allegations suggesting that the
State's districting was "so extremely irregular on its face that it
rationally can be viewed only as an effort to segregate the races for
purposes of voting, without regard for traditional districting
principles[.]" Id., at 642 (emphasis added).
Moreover, Miller belies the conclusion that strict scrutiny must apply
to all deliberate attempts to draw majority-minority districts if the
Equal Protection Clause is to provide any practical limitation on a
State's power to engage in race-based districting. Although Georgia
argued that it had complied with traditional districting principles, the
Miller majority had little difficulty concluding that the State's race-
neutral explanations were implausible. Miller v. Johnson, 515 U. S.
___ (1995).7 Thus, Miller demonstrates that although States may
avoid strict scrutiny by complying with traditional districting
principles, they may not do so by proffering pretextual, race-neutral
explanations for their maps.
The notion that conscientious federal judges will be able to
distinguish race-neutral explanations from pretextual ones is hardly
foreign to our race discrimination jurisprudence. In a variety of
contexts, from employment to juror selection, we have required
plaintiffs to demonstrate not only that a defendant's action could be
understood as impermissibly race-based, but also that the defendant's
assertedly race-neutral explanation for that action was in fact a pretext
for racial discrimination. Purkett v. Elem, 514 U. S. ___, ___
(1995) (slip op., at 3-4); St. Mary's Honor Center v. Hicks, 509 U.
S. 502, 518-519 (1993). Similarly, I understand Shaw I, Miller,
DeWitt, and Bush to require plaintiffs to prove that the State did not
respect traditional districting principles in drawing majority-minority
districts. See Bush, post, at 3.
In holding that the present record shows race to have been the
"predominant" consideration in the creation of District 12, the Court
relies on two pieces of evidence: the State's admission that its
"overriding" purpose was to "`create two congressional districts with
effective black voting majorities,'" ante, at 5-6; and the
"`geographically non-compact'" shape of District 12, ante, at 6. In
my view, this evidence does not suffice to trigger strict scrutiny
under the "demanding" test that Miller establishes. Miller v.
Johnson, 515 U. S., at ___ (slip op., at 1) (O'CONNOR, J.,
concurring).8
North Carolina's admission reveals that it intended to create a second
majority-minority district.9 That says nothing about whether it
subordinated traditional districting principles in drawing District 12.
States which conclude that federal law requires majority-minority
districts have little choice but to give "overriding" weight to that
concern. Indeed, in Voinovich v. Quilter, 507 U. S. 146, 159
(1993), we explained that evidence which showed that Ohio's chief
mapmaker preferred "federal over state law when he believed the two
in conflict does not raise an inference of intentional discrimination; it
demonstrates obedience to the Supremacy Clause of the United States
Constitution." For that reason, we have not previously held that
concessions such as North Carolina's suffice to trigger strict
scrutiny. Cf. Bush, post, at 3, 7-8.10 Thus, the State's concession
is of little significance.
District 12's noncompact appearance also fails to show that North
Carolina engaged in suspect race-based districting. There is no
federal statutory or constitutional requirement that state electoral
boundaries conform to any particular ideal of geographic
compactness. In addition, although the North Carolina Constitution
requires electoral districts for state elective office to be contiguous, it
does not require them to be geographically compact.11 N. C.
Const., Art. II, Sections 2, 5 (1984). Given that numerous States
have written geographical compactness requirements into their state
constitutions, North Carolina's omission on this score is noteworthy.
See Grofman, Criteria for Districting: A Social Science Perspective,
33 UCLA L. Rev. 77, 84 (1985). It reveals that North Carolina's
creation of a geographically noncompact district does not itself mark
a deviation from any prevailing state districting principle.12 Thus,
while the serpentine character of District 12 may give rise to an
inference that traditional districting principles were subordinated to
race in determining its boundaries, it cannot fairly be said to prove
that conclusion in light of the clear evidence demonstrating race-
neutral explanations for the district's tortured shape. See infra.
There is a more fundamental flaw in the majority's conclusion that
racial concerns predominantly explain the creation of District 12. The
evidence of shape and intent relied on by the majority cannot
overcome the basic fact that North Carolina did not have to draw
Districts 1 and 12 in order to comply with the Justice Department's
finding that federal law required the creation of two majority-minority
districts. That goal could have been more straightforwardly
accomplished by simply adopting the Attorney General's
recommendation to draw a geographically compact district in the
southeastern portion of the State in addition to the majority-minority
district that had already been drawn in the northeastern and Piedmont
regions. See Shaw I, 509 U. S., at 634-635; 861 F. Supp., at 460,
461-462, 464.
That the legislature chose to draw Districts 1 and 12 instead surely
suggests that something more than the desire to create a majority-
minority district took precedence. For that reason, this case would
seem to present a version of the very hypothetical that the principal
opinion in Bush suggests should pose no constitutional problem--"an
otherwise compact majority-minority district that is misshapen by
nonracial, political manipulation." Bush, post, at 27.
Here, no evidence suggests that race played any role in the
legislature's decision to choose the winding contours of District 12
over the more cartographically pleasant boundaries proposed by the
Attorney General.13 Rather, the record reveals that two race-neutral,
traditional districting criteria determined District 12's shape: the
interest in ensuring that incumbents would remain residents of the
districts they have previously represented; and the interest in placing
predominantly rural voters in one district and predominantly urban
voters in another. 861 F. Supp., at 466-472; see also Miller v.
Johnson, 515 U. S. ___ (1995) (considering whether communities
of interest were preserved); White v. Weiser, 412 U. S. 783, 793-
797 (1973) (establishing incumbency protection as a legitimate
districting principle).
Unlike most States, North Carolina has not given its chief executive
any power to veto enactments of its legislature. Thus, even though
the voters had elected a Republican Governor, the Democratic
majority in the legislature was in control of the districting process. It
was the Democrats who first decided to adopt the 11-white-district
plan that arguably would have violated Section 2 of the Voting Rights
Act and gave rise to the Attorney General's objection under Section
5. It was also the Democrats who rejected Republican Party maps
which contained two majority-minority districts because they created
too many districts in which a majority of the residents were registered
Republicans. 861 F. Supp., at 460.
If race rather than incumbency protection had been the dominant
consideration, it seems highly unlikely that the Democrats would
have drawn this bizarre district rather than accepting more compact
options that were clearly available. If race, rather than politics, had
been the "predominant" consideration for the Democrats, they could
have accepted the Republican Plan, thereby satisfying the Attorney
General and avoiding any significant risk of liability as well as the
attack mounted by the plaintiffs in this case. Instead, as the detailed
findings of the District Court demonstrate, the legislature deliberately
crafted a districting plan that would accommodate the needs of
Democratic incumbents. Id., at 466-467.14
If the Democrats remain in control of the districting process after the
remand in this case, it will be interesting to see whether they will be
willing to sacrifice one or more Democratic-majority districts in order
to create at least two districts with effective minority voting
majorities. My review of the history revealed in the findings of the
District Court persuades me that political considerations will probably
take priority over racial considerations in the immediate future, just as
they surely did during the process of rejecting the Republican plan
and ultimately adopting the plan challenged in this case.15
A deliberate effort to consolidate urban voters in one district and rural
voters in another also explains District 12's highly irregular shape.
Before District 12 had been drawn, members of the public as well as
legislators had urged that "the observance of distinctive urban and
rural communities of interest should be a prime consideration in the
general redistricting process." Id., at 466. As a result, the
legislature was naturally attracted to a plan that, although less than
aesthetically pleasing, included both District 12, which links the
State's major urban centers, and District 1, which has a population
that predominantly lives in cities with populations of less than
20,000. Id., at 467.
Moreover, the record reveals that District 12's lines were drawn in
order to unite an African-American community whose political
tradition was quite distinct from the one that defines African-
American voters in the Coastal Plain, which District 1 surrounds.
Ibid. Indeed, two other majority-minority-district plans with less
torturous boundaries were thought unsatisfactory precisely because
they did not unite communities of interest. 861 F. Supp., at 465-
466; Tr. 481. Significantly, the irregular contours of District 12
track the State's main interstate highway and are located entirely
within the culturally distinct Piedmont Crescent region. 861 F.
Supp., at 466. Clearly, then, District 12 was drawn around a
community "defined by actual shared interests" rather than racial
demography. Miller v. Johnson, 515 U. S., at ___ (slip op., at 15);
see also Shaw I, 509 U. S., at 647-648; DeWitt v. Wilson, 856 F.
Supp., at 1412, 1413-1414 (recognizing that districts were
"functionally" compact because they surrounded "communit[ies] of
interest").
In light of the majority's decision not to remand for proper
application of the Miller test, I do not understand how it can condemn
the drawing of District 12 given these two race-neutral justifications
for its shape. To be sure, in choosing a district that snakes rather
than sits, North Carolina did not put a premium on geographical
compactness. But I do not understand why that should matter in light
of the evidence which shows that other race-neutral districting
considerations were determinative.16
As the foregoing discussion illustrates, legislative decisions are often
the product of compromise and mixed motives. For that reason, I
have always been skeptical about the value of motivational analysis
as a basis for constitutional adjudication. See, e.g., Washington v.
Davis, 426 U. S. 229, 253-254 (1976) (STEVENS, J., concurring).
I am particularly skeptical of such an inquiry in a case of this type, as
mixed motivations would seem to be endemic to the endeavor of
political districting. See, e.g, Bush, post, at 4 ("The present case is a
mixed-motive case").
The majority's analysis of the "compelling interest" issue nicely
demonstrates the problem with parsing legislative motive in this
context. The majority posits that the legislature's compelling interest
in drawing District 12 was its desire to avoid liability under Section 2
of the Voting Rights Act. Yet it addresses the question whether
North Carolina had a compelling interest only because it first
concludes that a racial purpose dominated the State's districting
effort.
It seems to me that if the State's true purpose were to serve its
compelling interest in staving off costly litigation by complying with
federal law, then it cannot be correct to say that a racially
discriminatory purpose controlled its line-drawing. A more accurate
conclusion would be that the State took race into account only to the
extent necessary to meet the requirements of a carefully thought out
federal statute. See Voinovich v. Quilter, 507 U. S., at 159. The
majority's implicit equation of the intentional consideration of race in
order to comply with the Voting Rights Act with intentional racial
discrimination reveals the inadequacy of the framework it adopts for
considering the constitutionality of race-based districting.
However, even if I were to assume that strict scrutiny applies, and
thus that it makes sense to consider the question, I would not share
the majority's hesitancy in concluding that North Carolina had a
"compelling interest" in drawing District 12. In my view, the record
identifies not merely one, but at least three acceptable reasons that
may have motivated legislators to favor the creation of two such
districts. Those three reasons easily satisfy the judicially created
requirement that the state legislature's decision be supported by a
"compelling state interest," particularly in a case in which the alleged
injury to the disadvantaged class--i.e., the majority of voters who are
white--is so tenuous.
First, some legislators felt that the sorry history of race relations in
North Carolina in past decades was a sufficient reason for making it
easier for more black leaders to participate in the legislative process
and to represent the State in the Congress of the United States. 861
F. Supp., at 462-463. Even if that history does not provide the kind
of precise guidance that will justify certain specific affirmative action
programs in particular industries, see ante, at 9-10, it surely provides
an adequate basis for a decision to facilitate the election of
representatives of the previously disadvantaged minority.
As a class, state legislators are far more likely to be familiar with the
role that race plays in electoral politics than they are with the role that
it plays in hiring decisions within discrete industries. Moreover,
given the North Carolina Legislature's own recent experience with
voting rights litigation, see Thornburg v. Gingles, 478 U. S. 30
(1986), as well as the fact that 40 of the State's districts are so-called
covered jurisdictions which the Attorney General directly monitors as
a result of prior discriminatory practices, see 42 U. S. C. Section
1973c (1988 ed.), there is less reason to assume that the state
legislative judgments under review here are based on unwarranted
generalizations than may be true in other contexts. Thus, even if a
desire to correct past discrimination did not itself drive the legislative
decision to draw two majority-minority districts, it plainly constituted
a legitimate and significant additional factor supporting the decision
to do so. 861 F. Supp., at 472-473.
Second, regardless of whether Section 5 of the Act was actually
violated, I believe the State's interest in avoiding the litigation that
would have been necessary to overcome the Attorney General's
objection to the original plan provides an acceptable reason for
creating a second majority-minority district. It is entirely proper for a
State whose past practices have subjected it to the pre-clearance
obligation set forth in Section 5 to presume that the Attorney
General's construction of the Act is correct, and to take corrective
action rather than challenging him17 in Court.
Moreover, even if the State's interest in avoiding a court challenge
that might have succeeded does not constitute a sufficient justification
for its decision to draw a majority-minority district, the State plainly
had an interest in complying with a finding by the Attorney General
that it reasonably believed could not have been successfully
challenged in court. The majority disagrees, relying on our analysis
in Miller v. Johnson, 515 U. S., at ___-___ (slip op., at 20-26).
That reliance is misplaced.
In Miller, the Court concluded that Georgia had simply acceded to the
Attorney General's unreasonable construction of Section 5 without
performing any independent assessment of its validity. Ibid. By
contrast, the District Court here found as a factual matter that the
legislature's independent assessment of the reasons for the Attorney
General's denial of preclearance led it to the reasonable conclusion
that its 11-white district plan would violate the purpose prong of
Section 5. 861 F. Supp., at 474. As a result, I do not accept the
Court's conclusion that it was unreasonable for the State to believe
that its decision to draw 1 majority-minority district out of 12 would
have been subject to a successful attack under the purpose prong of
Section 5. Ante, at 11-14.
I acknowledge that when North Carolina sought preclearance it
asserted nondiscriminatory reasons for deciding not to draw a second
majority-minority district. See 861 F. Supp., at 480, n. 9 (Vorhees,
C. J., dissenting). On careful reflection, however, the legislature
concluded that those reasons would not likely suffice in a federal
action to challenge the Attorney General's ruling. The District Court
found that conclusion to be reasonable. Id., at 474. I am mystified
as to why this finding does not deserve our acceptance. Nor do I
understand the Court's willingness to credit the State's declarations
of nondiscriminatory purpose in this context, ante, at 12-13, in light
of its unwillingness to accept any of North Carolina's race-neutral
explanations for its decision to draw District 12, ante, at 5-6.
Third, regardless of the possible outcome of litigation alleging that
Section 2 of the Voting Rights Act would be violated by a plan that
ensured the election of white legislators in 11 of the State's 12
congressional districts, the interest in avoiding the expense and
unpleasantness of such litigation was certainly legitimate and
substantial. That the legislature reasonably feared the possibility of a
successful Section 2 challenge cannot be credibly denied.18
In the course of the redistricting debate, numerous maps had been
presented showing that blacks could constitute more than 50 percent
of the population in two districts. 861 F. Supp., at 460-461, 474.
The District Court found that these plans had demonstrated that "the
state's African-American population was sufficiently large and
geographically compact to constitute a majority in two congressional
districts." Id., at 464.
Moreover, the Attorney General denied preclearance on the ground
that North Carolina could have created a second majority-minority
district that was, under any reasonable standard, geographically
compact. Id., at 461-462; Shaw I, 509 U. S., at 635. Maps
prepared by the plaintiff-intervenors for this litigation conclusively
demonstrate that two compact, majority-minority districts could
indeed have been drawn. 866 F. Supp., at 464-465; Plaintiff-
Intervenors' Exh. 301, A2-A3.
Even if many of the maps proposing two
majority-African-American districts were not particularly compact,
the legislature reasonably concluded that a federal court might have
determined that some of them could have provided the basis for a
viable vote dilution suit pursuant to Thornburg v. Gingles, 478 U.
S., at 50-51. 861 F. Supp., at 474. That conclusion is particularly
reasonable in light of the fact that Gingles was a case fresh in the
minds of many of North Carolina's state legislators, id., at 463.
There, the State challenged the plaintiffs' Section 2 claim by pointing
to the oddly configured lines that defined their proposed majority-
minority districts. See Gingles v. Edmisten, 590 F. Supp. 345, 373
(EDNC 1984). As we know, North Carolina's defense to Section 2
liability proved unsuccessful in that instance, even though the district
court acknowledged that the "single-member district specifically
suggested by the plaintiffs as a viable one is obviously not a model of
aesthetic tidiness." Id., at 374.19
Finally, even if the record shows that
African-American voters would not have comprised more than 50
percent of the population in any plan containing two compact,
majority-minority districts, the record reveals that it would have been
possible to have drawn a map containing one compact district in
which African-Americans would have comprised more than 50
percent of the population and another compact district in which
African-Americans, by reason of the large presence of Native
Americans, would have by far constituted the largest racial group.
Plaintiff-Intervenors' Exh. 301, A2-A3. Given our recent emphasis
on considering the totality of the circumstances in Section 2 cases,
we are in no position to rebuke a State for concluding that a 40-plus
percent African-American district could provide a defense to a viable
Gingles challenge as surely as could one with a 50.1 percent African-
American population. See Johnson v. De Grandy, 512 U. S. ___,
___ (1994) (slip op., at 15-18); Voinovich v. Quilter, 507 U. S. 146
(1993); Rural West Tennessee African-American Affairs Council,
Inc. v. McWherter, 877 F. Supp 1096 (WD Tenn. 1995), aff'd, 516
U. S. ___ (1995).20
Although the Court assumes that North Carolina had a compelling
interest in "avoiding liability" under Section 2, ante, at 15, it avoids
conclusively resolving that question because it holds that District 12
was not a "narrowly tailored" means of achieving that end. The
majority reaches this conclusion by determining that District 12 did
not "remedy" any potential violation of Section 2 that may have
occurred. Ante, at 16-17.
In my judgment, 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. Thus, the fact that
no Section 2 violation has been proven in the territory that comprises
District 12 does not show that the district fails to serve a compelling
state interest. It shows only that a federal court, which is constrained
by Article III, would not have had the power to require North
Carolina to draw that district. It is axiomatic that a State should have
more authority to institute a districting plan than would a federal
court. Voinovich v. Quilter, 507 U. S., at 156-157.
That District 12 will protect North Carolina from liability seems clear.
The record gives no indication that any of the potential Section 2
claimants is interested in challenging the plan that contains District
12. Moreover, as a legal matter, North Carolina is in a stronger
position to defend against a Section 2 lawsuit with District 12 than
without it.
Johnson v. De Grandy expressly states that, at least in the context of
single-member districting plans, a plaintiff cannot make out a prima
facie case of vote dilution under Section 2 unless he can demonstrate
that his proposed map contains more majority-minority districts than
the State's. 512 U. S., at ___ (slip op., at 10). By creating a plan
with two majority-minority districts here, the State would seem to
have precluded potential litigants from satisfying that precondition.21
In addition, satisfaction of the so-called Gingles preconditions does
not entitle an individual minority voter to inclusion in a majority-
minority district. A court may conclude that a State must create such
a district only after it considers the totality of the circumstances. A
court would be remiss if it failed to take into account that the State
had drawn majority-minority districts proportional to its minority
population which include portions of the very minority community in
which an individual minority plaintiff resides. Indeed, our recent
decisions compel courts to perform just such a calculus. See Johnson
v. De Grandy, 512 U. S., at ___ (slip op., at 15-18); Voinovich v.
Quilter, 507 U. S. 146 (1993); see also African American Voting
Rights Legal Defense Fund, Inc., v. Villa, 54 F. 3d 1345, 1355-
1357 (CA8 1995).
Finally, North Carolina's chosen means of avoiding liability will
impose none of the burdens on third parties that have made the Court
wary of voluntary, race-based state action in the past. No white
employees or applicants stand to lose jobs on account of their race as
a result of North Carolina's actions. In fact, no white voters risk
having their votes unlawfully diluted. At most, North Carolina's
chosen means will require that some people of both races will be
placed in districts other than those to which they would have
otherwise been assigned. Even assuming that "burden" is more
onerous when it results from racial considerations, it does not rise to
a level of injury that justifies a federal court intruding on the State's
discretion to formulate a plan that complies with the Voting Rights
Act.
In fact, to the extent that plaintiffs in these cases premise their
standing on the "representational" harms that they suffer, see supra,
at 10-11, a State's decision to locate a majority-minority district
outside the area that suffers from acute, racial bloc voting would
seem to diminish the likelihood that representatives in majority-
minority districts will serve only the interests of minority voters.
After all, a representative of a majority-minority district that does not
suffer from racial bloc voting cannot safely ignore the interests of
voters of either race. In this respect, the majority's narrow tailoring
requirement, by forcing States to remedy perceived Section 2
violations only by drawing the district around the area in which the
Gingles preconditions have been satisfied, has the perverse
consequence of requiring States to inflict the very harm that
supposedly renders racial gerrymandering challenges constitutionally
cognizable.22
Although I do not believe a judicial inquiry into "narrow tailoring" is
either necessary or appropriate in this case, the foregoing discussion
reveals that the "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.23 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, and forces States to
imagine the legally "correct" outcome of a lawsuit that has not even
been filed.
The proposition is also at odds with the course of the litigation that
led to Gingles itself. In that case, the plaintiffs proposed a number of
oddly configured majority-minority districts to prove their vote
dilution claim. In implementing a remedy for the Section 2 violation,
the federal court wisely permitted North Carolina to propose its own
remedial districts, many of which were highly irregular in dimension.
Indeed, so peculiar were some of the shapes concocted by the State
that the Gingles plaintiffs challenged them on the grounds that they
constituted racial gerrymanders which failed to remedy the very
violations that had given rise to the need for their creation, and that
they reflected only grudging responses designed to protect incumbent
officeholders. Gingles v. Edmisten, 590 F. Supp., at 381.
Although the District Court in Gingles acknowledged that the State's
plan was not the one that it would have implemented, it nonetheless
concluded that the plan constituted a reasonable exercise of state
legislative judgment. "[A] state legislature's primary jurisdiction for
legislative apportionment and redistricting must include the right, free
of judicial rejection, to implement state policies that may fail to
remedy to the fullest extent possible the voting rights violations
originally found." Id., at 382.
In dramatic contrast, the Court today rejects North Carolina's plan
because it does not provide the precise remedy that might have been
ordered by a federal court, even though it satisfies potential plaintiffs,
furthers such race-neutral legislative ends as incumbency protection
and the preservation of distinct communities of interest, and
essentially serves to insulate the State from a successful statutory
challenge. There is no small irony in the fact that the Court's
decision to intrude into the State's districting process comes in
response to a lawsuit brought on behalf of white voters who have
suffered no history of exclusion from North Carolina's political
process, and whose only claims of harm are at best rooted in
speculative and stereotypical assumptions about the kind of
representation they are likely to receive from the candidates that their
neighbors have chosen.
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 voters 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 of 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.
==============================================
==========
SUPREME COURT OF THE UNITED STATES
Nos. 94-923 AND 94-924
RUTH O. SHAW, ET AL., APPELLANTS
94-923 v.
JAMES B. HUNT, JR., GOVERNOR OF NORTH CAROLINA,
ET AL.
JAMES ARTHUR POPE, ET AL., APPELLANTS
94-924 v.
JAMES B. HUNT, JR., GOVERNOR OF NORTH CAROLINA,
ET AL.
ON APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
[June 13, 1996]
JUSTICE SOUTER, with whom JUSTICE GINSBURG and
JUSTICE BREYER join, dissenting.
My views on this case are substantially expressed in my dissent to
Bush v. Vera, post, p. ___.
ENDNOTES for Chief Justice Rehnquist opinion
1 The complaint also named the Attorney General of the United
States and the Assistant Attorney General for the Civil Rights
Division as defendants. The District Court granted the federal
officials' motion to dismiss, Shaw v. Barr, 808 F. Supp. 461
(EDNC 1992), and that judgment was not appealed.
2 JUSTICE STEVENS would dismiss the complaint for a lack of
standing. Post, at 4-6. Here, as in other places in his dissent,
JUSTICE STEVENS' disagreement is more with the Court's prior
decisions in Shaw I, supra, United States v. Hays, 515 U. S. ___
(1995), and Miller v. Johnson, 515 U. S. ___ (1995), than with this
decision. JUSTICE STEVENS challenged the Court's standing
analysis and its finding of cognizable injury in both Hays, supra, at
___ (STEVENS, J., concurring in judgment) and Miller, supra, at
___ (STEVENS, J., dissenting), and both Justice White and
JUSTICE SOUTER advanced many of the same arguments in Shaw
I. See Shaw I, supra, at ___ (slip op., at 2-17) (White, J.,
dissenting); id. at ___ (slip op., at 3-9, and n. 9) (SOUTER, J.,
dissenting). Their position has been repeatedly rejected by the Court.
See Shaw I, supra, at ___, Miller, supra, at ___, and Hays, supra, at
___.
3 The dissent incorrectly reads Miller as demonstrating that "although
States may avoid strict scrutiny by complying with traditional
districting principles, they may not do so by proffering pretextual,
race-neutral explanations." Post, at 16. Miller plainly states that
although "compliance with `traditional districting principles such as
compactness, contiguity, and respect for political subdivisions' may
well suffice to refute a claim of racial gerrymandering," a State
cannot make such a refutation where "those factors were
subordinated to racial objectives." Miller, 515 U. S., at ___ (slip
op., at 17-18) (citation omitted) (emphasis added).
4 JUSTICE STEVENS discerns three reasons which he believes
"may have motivated" the legislators to favor the creation of the two
minority districts and which he believes together amount to a
compelling state interest. Post, at 25. As we explain below, a racial
classification cannot withstand strict scrutiny based upon speculation
about what "may have motivated" the legislature. To be a compelling
interest, the State must show that the alleged objective was the
legislature's "actual purpose" for the discriminatory classification,
see Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 730
and n. 16 (1982), and the legislature must have had a strong basis in
evidence to support that justification before it implements the
classification. See infra, at 10. Even if the proper factual basis
existed, we believe that the three reasons JUSTICE STEVENS
proffers, separately or combined, would not amount to a compelling
interest. First, the dissent seems to acknowledge that its initial
reason--the "sorry history of race relations in North Carolina," post,
at 25--did not itself drive the decision to create the minority districts,
presumably for the reasons we discuss infra, at 10. The dissent
contends next that an "acceptable reason for creating a second
majority-minority district" was the "State's interest in avoiding the
litigation that would have been necessary to overcome the Attorney
General's objection" under Section 5. Post, at 26. If this were true,
however, Miller v. Johnson would have been wrongly decided
because there the Court rejected the contention that complying with
the Justice Department's preclearance objection could be a compelling
interest. Miller, supra, at ___ (slip op., at 20-21). It necessarily
follows that avoiding the litigation required to overcome the
Department's objection could not be a compelling interest. The
dissent's final reason--"the interest in avoiding the expense and
unpleasantness of [Section 2] litigation" "regardless of the possible
outcome of [that] litigation, post, at 28--sweeps too broadly. We
assume, arguendo, that a State may have a compelling interest in
complying with the properly interpreted Voting Rights Act. Infra, at
15. But a State must also have a "strong basis in evidence," see
Shaw I, supra, at ___ (quoting Richmond v. J. A. Croson Co., 488
U. S. 469, 500 (1989)), for believing that it is violating the Act. It
has no such interest in avoiding meritless lawsuits.
5 For examples of this limitation in application see Wygant, 476 U.
S., at 274-276 (where a plurality of the Court concluded that
remedying societal discrimination and promoting role models for
students was not a compelling interest); Richmond v. J. A. Croson
Co., 488 U. S. 469, 498-506 (1989).
6 The United States attempts to distinguish this case from Miller by
relying on the District Court's finding that North Carolina conducted
"its own independent reassessment" of Chapter 601 and found "the
Department's objection was legally and factually supportable." Brief
for United States as Amicus Curiae 25; 861 F. Supp. 408, 474
(1994) (case below). The "reassessment" was the legislature's
determination that it may be susceptible to a Section 2 challenge. Id.,
at 464-465. Even if the General Assembly properly reached that
conclusion, we doubt that a showing of discriminatory effect under
Section 2, alone, could support a claim of discriminatory purpose
under Section 5. Even if discriminatory purpose could be shown, the
means of avoiding such a violation could be race-neutral, and so we
also doubt that the prospect of violating the purpose prong of Section
5 could justify a race-based redistricting plan such as the one
implemented by North Carolina.
7 We do not suggest that where the governmental interest is
eradicating the effects of past discrimination the race-based action
necessarily would have to achieve fully its task to be narrowly
tailored.
8 JUSTICE STEVENS in dissent argues that it does not matter that
District 12 could not possibly remedy a Section 2 violation because
he believes the State's plan would avoid Section 2 liability. Post, at
31. As support, JUSTICE STEVENS relies on our decision in
Johnson v. De Grandy, 512 U. S. ___ (1994), which he reads to say
that "a plaintiff cannot make out a prima facie case of vote dilution
under Section 2 unless he can demonstrate that his proposed plan
contains more majority-minority districts than the State's." Id.
(citing De Grandy, supra, at ___ (slip op., at 10)). The dissent's
reading is flawed by its omission. In De Grandy, we presumed that
the minority districts drawn in the State's plan were lawfully drawn
and, indeed, we expressly stated that a vote dilution claim under
Section 2 "requires the possibility of creating more than the existing
number of reasonably compact districts with a sufficiently large
minority population to elect candidates of its choice." De Grandy,
supra, at ___ (slip op., at 10) (emphasis added).
9 This does not mean that a Section 2 plaintiff has the right to be
placed in a majority-minority district once a violation of the statute is
shown. States retain broad discretion in drawing districts to comply
with the mandate of Section 2. Voinovich v. Quilter, 507 U. S. 146,
156-157 (1993); Growe v. Emison, 507 U. S. 25, 32-37 (1993).
ENDNOTES for Justice Stevens dissenting
1 Tr. of Oral Arg. 58.
2 Counsel went so far as to liken the State's districting plan to State-
run water fountains that are available to citizens of all races but are
nevertheless labeled "Black" and "White." He argued that the State's
race-based redistricting map constituted an unlawful racial
classification in the same way that the signs above the fountains
would. Although neither racial classification would deprive any
person of a tangible benefit--water from both fountains and effective
political representation would remain equally available to persons of
all races--each would be unconstitutional because of the very fact that
the State had espoused a racial classification publicly. Id., at 5-6.
3 There, a majority of the Court stated that "[w]e have consistently
held that a plaintiff raising only a generally available grievance about
government--claiming only harm to his and every citizen's interest in
proper application of the Constitution and laws, and seeking relief
that no more directly and tangibly benefits him than it does the public
at large--does not state an Article III case or controversy." Lujan v.
Defenders of Wildlife, 504 U. S., at 573-574.
4 The Court's decision in Powers v. Ohio, 499 U. S. 400 (1991),
and Batson v. Kentucky, 476 U. S. 79 (1986), are not to the
contrary. There, we have held that defendants have third-party
standing, no matter what their race, to assert the rights of jurors, who
have been deprived because of their race of a benefit available to all
others. No voter in this litigation has shown either that he has
uniquely been denied an otherwise generally available benefit on
account of race, or that anyone else has.
5 As I have explained, even if the Hays test showed that much, it
would still only demonstrate that the State had used geography,
rather than race, to select the citizens who would be deprived of a
color-blind districting process.
6 That is particularly true here because the author of the District Court
opinion was also the author of the District Court opinion in Gingles
v. Edmisten, 590 F. Supp. 345 (EDNC 1984), aff'd in part, rev'd in
part, Thornburg v. Gingles, 478 U. S. 30 (1986).
7 For example, the State argued that it drew the majority-minority
district under review so that it would follow precinct lines, but the
Court found that precinct lines had been relied on only because they
happened to facilitate the State's effort to achieve a particular racial
makeup. Similarly, the State argued that District 11 was drawn in
order to ensure that communities of interest would be kept within a
single district, but the Court found that no such communities could
be found within the district's boundaries. See Miller v. Johnson,
515 U. S., at ___-___ (slip op., at 17-19).
8 It is unclear whether the majority believes that it is the combination
of these two pieces of evidence that satisfies Miller, or whether either
one would suffice.
9 Citing to trial and deposition testimony, the majority also relies on a
statement by North Carolina's chief mapmaker, Gerry Cohen, that
the creation of a majority-minority district was the "`principal
reason'" for the configurations of District 1 and District 12. Ante, at
6. Mr. Cohen's more complete explanation of the "`principal
reason'" was to create "two majority black districts that had
communities of interest within each one." Tr. 514. What Mr. Cohen
admitted, therefore, was only that the State intentionally drew a
majority-minority district that would respect traditional districting
principles. Moreover, Mr. Cohen's "admission" in his deposition
only pertained to District 1. App. 675. Finally, he explained in his
deposition that "other reasons" also explained that District's
configuration. Ibid. Absent a showing that those "other reasons"
were race-based, Mr. Cohen's admission does not show that North
Carolina subordinated race-neutral districting criteria in drawing
District 1; it shows only that the need to comply with federal law was
critical.
10 In DeWitt v. Wilson, 856 F. Supp. 1409 (ED Cal. 1994), for
example, the State conceded that compliance with Section 5 of the
Voting Rights Act constituted the one unavoidable limitation on its
redistricting process. Id., at 1410. Nevertheless, we affirmed the
District Court's conclusion that strict scrutiny did not apply because
the State gave significant weight to several race-natural
considerations in meeting that goal. Id., at 1415. Moreover, in
Miller v. Johnson, the Court applied strict scrutiny only after it
concluded that the State considered only race in adding African-
American voters to District 11; it did not hold that Georgia's general
admissions about its desire to comply with federal law themselves
sufficed. 515 U. S., at ___-___ (slip op., at 17-19).
11 The State Constitution sets forth no limitation on districting for
federal offices. Moreover, the state-prepared 1991 Legislator's
Guide to North Carolina Legislative and Congressional Redistricting
points out that the state law prohibition against dividing counties in
formulating state electoral districts was eliminated in the 1980's. See
Legislator's Guide to North Carolina Legislative and Congressional
Redistricting 12 (Feb. 1991).
12 Indeed, the State's guide to redistricting specifically informed
state legislators that compactness was of little legal significance.
"Neither the State nor federal constitution requires districts to be
compact. Critics often refer to the lack of compactness of a particular
district or group of districts as a sign of gerrymandering, but no court
has ever struck down a plan merely on the basis that it did not appear
to be compact. Although there are geometric methods for measuring
the compactness of an area, these methods have not been recognized
as judicial standards for evaluating the compactness of districts.
The recent decision in Davis v. Bandemer . . . mentions irregularly-
shaped districts as a possible sign of gerrymandering but makes clear
that irregular shapes alone do not invalidate a redistricting plan."
Ibid.
13 The State's decision to give little weight to how the district would
look on a map is entirely justifiable. Although a voter clearly has an
interest in being in a district whose members share similar interests
and concerns, that interest need not, and often is not, vindicated by
drawing districts with attractive shapes. "[The Districts] perceived
`ugliness'--their extreme irregularity of shape--is entirely a function
of an artificial perspective unrelated to the common goings and
comings of the citizen-voter. From the mapmaker's wholly
imaginary vertical perspective of 1:25,000 or so range, a citizen may
well find his district's one-dimensional, featureless shape
aesthetically `bizarre,' `grotesque,' or `ugly.' But back down at
ground or eye-level, viewing things from his normal closely-bound
horizontal perspective, the irregularity of outline or exact volume of
the district in which he resides surely is not a matter of any great
practical consequence to his conduct as a citizen-voter." 861 F.
Supp. 408, 472, n. 60 (EDNC 1994).
In the same vein, I doubt that residents of hook-shaped
Massachusetts receive less effective representation than their
counterparts in perfectly rectangular Wyoming, or that the voting
power of residents of Hawaii is in any way impaired by virtue of the
fact that their State is not even contiguous.
14 It is ironic that despite the clear indications that party politics
explain the district's odd shape, the Court affirmed the district court's
dismissal of the plaintiffs' partisan gerrymandering claim. See Pope
v. Blue, 506 U. S. 801 (1992).
15 Interestingly, the Justice Department concluded that it was the
State's impermissible desire to favor white incumbents over African-
American voters that explained North Carolina's refusal to create a
second district and thus gave rise to a violation of the purpose prong
of Section 5 of the Voting Rights Act. See Shaw I, 509 U. S. 630,
___ (1993). Of course, the white plaintiffs before us here have no
standing to object to District 12 on similar grounds.
16 Although the majority asserts that North Carolina "subordinated"
traditional districting principles to racial concerns because "[r]ace was
the criterion that, in the State's view, could not be compromised,"
ante, at 7, no evidence suggests that North Carolina would have
sacrificed traditional districting principles in order to draw a second
majority-minority district. Rather, the record reveals that the State
chose District 12 over other options so that its plan would remain
faithful to traditional, race-neutral districting criteria. If strict scrutiny
applies even when a State draws a majority-minority district that
respects traditional districting principles, then I do not see how a
State can ever create a majority-minority district in order to fulfill its
obligations under the Voting Rights Act without inviting
constitutional suspicion. I had thought that the "demanding"
standard Miller established, Miller v. Johnson, 515 U. S., at ___
(slip op., at 1) (O'CONNOR, J., concurring), as well as our
summary affirmance in DeWitt, reflected our determination that
States should not be so constrained.
17 Although Attorney General Reno has endorsed the position taken
by the Republican administration in 1991, it was her male
predecessor who refused to preclear the State's original plan.
18 While the majority is surely correct in stating that the threat of a
lawsuit, however unlikely to succeed, does not constitute a
compelling interest, ante, at 9, n. 4, it does not follow that a State has
no compelling interest in avoiding litigation over a substantial
challenge. Here, of course, the District Court found that North
Carolina premised its decision to draw a second-majority minority
district on its reasonable conclusion that it would otherwise be
subject to a successful Section 2 challenge, not a "meritless" one.
Ibid.
19 Interestingly, although this Court in Thornburg v. Gingles held
that Section 2 plaintiffs must demonstrate that they live in "compact"
majority-minority districts, we affirmed the district court which had
found that the plaintiffs' proposed districts were contiguous but not
compact. 478 U. S., at 38. Arguably, therefore, the State could
have reasonably concluded that the maps proposing District 12 would
have themselves provided the foundation for a viable Section 2 suit.
For a discussion of how compact "compact" districts must be, see
Karlan, Maps and Misreadings: The Role of Geographic
Compactness in Racial Vote Dilution Litigation, 24 Harv. Civ.
Rights-Civ. Lib. L. Rev. 173, 199-213 (1989). See also Dillard v.
Baldwin County Bd. of Ed., 686 F. Supp. 1459, 1465-1466 (MD
Ala. 1988); Houston v. Lafayette County, Miss., 56 F. 3d 606, 611
(CA5 1995).
20 Moreover, Mr. Cohen, the State's chief mapmaker, testified at
trial that in statewide elections, Native Americans and African-
Americans in the southeastern portion of North Carolina had voted
for the same candidates. Tr. 411-412.
21 The majority's assertion that De Grandy only requires a plaintiff
to show that more "reasonably compact" majority-minority districts
could have been drawn would seem to expand dramatically a State's
potential liability under Section 2. Ante, at 16-17, n. 8. I would
have thought that a State that had drawn three majority-minority
districts, one of which was "reasonably compact" and two of which
straggled in order to preserve certain distinctive communities of
interest, would at the very least be immune to a challenge by a single
African-American plaintiff bearing a map proposing to draw but two
compact majority-minority districts. The Court's expansive notion of
Section 2 liability, combined with its apparent eagerness to subject all
legislative attempts to comply with that Act to strict scrutiny, will
place many States in the untenable position of facing substantial
litigation no matter how they draw their maps. See Miller v.
Johnson, 515 U. S., at ___ (slip op., at 17-18) (GINSBURG, J.,
dissenting).
Of course, a State that unfairly "packs" African-American voters into
a limited number of districts may be subject to a Section 2 challenge
on the ground that it failed to create so-called "influence" districts,
and perhaps the majority means to endorse that proposition as well. I
note here, however, that there is no indication that such a challenge
could be successfully brought against North Carolina's two majority-
minority district plan, which creates districts with only bare African-
American majorities.
22 The Court's strict analysis in this case is in some tension with the
more reasonable approach endorsed by JUSTICE O'CONNOR this
same day. On her view, state legislatures seeking to comply with the
Voting Right Act clearly possess more freedom to draw majority-
minority districts than do federal courts attempting to enforce it.
Bush, post, at 6 (O'CONNOR, J., concurring).
23 That judicial creativity rather than constitutional principle defines
the narrowing tailoring requirement in this area of our law is clear
from Bush's quite different analysis of the same question. See
Bush, post, at 21.
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