DIVISION OF LEGISLATIVE SERVICES
Supreme Court Decisions in Shaw v. Hunt and Bush v. Vera
Virginia A. Edwards, Staff Attorney
On June 13, 1996, the United States Supreme Court struck down, in two 5-4 decisions, one congressional district in North Carolina and three congressional districts in Texas for being products of unconstitutional racial gerrymandering. In these decisions, the Court determined that race-conscious redistricting predominated, and the Court considered, but rejected, arguments that race-neutral motivations, such as incumbency protection, partisan interests, and compliance with the Voting Rights Act dominated the redistricting process or justified the shape of the districts.
The decisions provoked two main inquiries -- both of immediate concern to Virginia, which will defend its Third Congressional District against a similar constitutional challenge in federal court at the end of July.
First, the Supreme Court gives no clear guidance to redistricters on how to balance the competing demands of the Voting Rights Act and the so-called "traditional" districting criteria, such as equal population, compactness, and contiguity. The Court does not rule out consideration of race in drawing district lines, but the issue of how race may be considered remains unsettled. Second, the Court was silent on the impact of its decisions in North Carolina and Texas for the 1996 congressional elections. An attorney for North Carolina plaintiffs has advised state legislators that plaintiffs will seek swift action on a new plan to be drawn by the legislature or the federal court for use in November. But the time is limited to redistrict and nominate and elect candidates by November 5.
Following the 1990 census, the North Carolina legislature adopted a congressional redistricting plan with one majority-minority district and submitted the plan to the U.S. Justice Department for preclearance, in compliance with Section 5 of the Voting Rights Act of 1965. After the Department of Justice objected to the first plan and cited the possibility that two majority-minority districts could be drawn, North Carolina redrew its congressional districts to create a second majority-minority district, District 12, consisting of 53.4 percent African-American voting age population, in a region of the state not identified for its minority voting strength by the Department of Justice's objection letter.
Five North Carolina residents filed suit, contesting the constitutionality of the redistricting plan because it segregated voters by race. In the case's first appearance before the Supreme Court, Shaw v. Reno, plaintiffs were successful in overturning the district court's dismissal of their case for the failure to state a claim for relief under the Equal Protection Clause of the Fourteenth Amendment. The Supreme Court held that the North Carolina plaintiffs had asserted a viable equal protection challenge and remanded the case back to the district court for further proceedings.
Although the district court found that North Carolina's redistricting plan was racially motivated and subject to strict scrutiny analysis, the court concluded that the plan passed constitutional muster because it was narrowly tailored to further the state's compelling interest in complying with Sections 2 and 5 of the Voting Rights Act. In Shaw v. Hunt the plaintiffs appeared a second time before the Supreme Court to appeal this decision.
The 1990 census revealed that the population of Texas increased at a rate much faster than the United States as a whole, largely in urban Hispanic and African-American population, entitling the state to three additional congressional districts. The legislature adopted and the Department of Justice precleared a redistricting plan that created three new majority-minority districts, including District 29, consisting of 61 percent Hispanic total population and 10 percent African-American total population, and District 18, an adjacent interlocking district, consisting of 51 percent African-American total population and 15 percent Hispanic total population. The plan also increased the African-American total population in District 30 from 40.8 percent to 50.8 percent. Six Texas voters challenged the plan, alleging that 24 of Texas' 30 districts were the result of racial gerrymandering in violation of the Equal Protection Clause. The district court held that Districts 18, 29, and 30 were unconstitutional. The state appealed this decision in Bush v. Vera.
Key Elements of the Supreme Court's Decisions
Race as a Predominant Factor to Trigger Strict Scrutiny
In Miller v. Johnson, decided in 1995, the Court held that plaintiffs must show that race was the predominant factor in assigning voters to districts in order to trigger strict scrutiny analysis of the plan. In Bush v. Vera, the Court concluded that race was the predominant consideration when Texas drew its district lines because the state (i) had substantially neglected traditional redistricting criteria, such as compactness; (ii) had intentionally created majority-minority districts by its own admissions to the Department of Justice; and (iii) had selected and used a computer program more sophisticated and detailed with respect to racial data than to other demographic data, such as party registration and voting history.
Although the Court refused to single out any one factor for its decision to invoke strict scrutiny analysis, two members of the majority stated that the intentional creation of a majority-minority district should be the deciding fact. In its analysis, the Court spent a considerable amount of time focusing on the districts' unusual shapes and their correlation to race. In the Court's opinion, the evidence did not support the state's arguments that traditional redistricting criteria played a primary role in configuring the districts' contours. Districts 18 and 29 divided dozens of political subdivisions and left 60 percent of the residents in split precincts. The data offered by the state to support the correlation between the shape of District 30 and efforts to preserve urban characteristics, common media sources, and major transportation links were not available in any organized fashion to the legislature at the time of redistricting.
The Court gave considerable weight to the state's correlation between the districts' unusual configurations and partisan interests. The Court stated that in some instances "incumbency protection might explain as well as, or better than, race, a State's decision to depart from other traditional districting principles." However, the Court concluded that party politics did not adequately explain the erratic interlocking boundary lines for Districts 18 and 29, since both districts were similarly solidly Democratic. In addition, the Court found that political manipulation of the lines in District 30 occurred when legislators used race as a proxy for political affiliation. Declaring this type of racial stereotyping suspect, the Court invoked strict scrutiny analysis of the plan.
Applying essentially the same analysis in the North Carolina case, the Court reached the same conclusion: that race was the predominant factor in drawing the state's challenged district. The fact that other nonracial interests had also been advanced by the redistricting plan, including the creation of one rural and one urban district and the protection of incumbents, did not sway the Court from its finding. According to the Court, "race was the criterion that, in the state's view, could not be compromised, respecting communities of interest and protecting incumbents came into play only after race-based decisions had been made."
The Court's Strict Scrutiny Analysis
Under strict scrutiny analysis, the state must show not only that its redistricting plan is in pursuit of a compelling state interest, but also that its redistricting legislation is narrowly tailored to achieve that compelling interest. Texas and North Carolina offered three compelling state interests to justify their redistricting plans: compliance with Section 5 of the Voting Rights Act, compliance with Section 2 of the Voting Rights Act, and amelioration of the effects of past and present discrimination.
Compliance with Section 5 of the Voting Rights Act means that states cannot adopt redistricting plans that reduce minority voting strength. States covered by Section 5, including Texas, North Carolina, and Virginia, must have their redistricting plans approved by the United States Attorney General or the United States Court for the District of Columbia before such plans can be implemented. The Court found that North Carolina's decision to draw two majority-minority districts was not necessary to comply with Section 5 requirements, because North Carolina's first plan was clearly ameliorative by creating the first majority black district in the state's recent history. The Court reiterated that a correct reading of Section 5 does not require a state to maximize the number of majority-minority districts. The Court also dismissed North Carolina's assertion that legislative interest in ameliorating racial discrimination was the driving force for using race in the redistricting plans. The Court found nothing in the record to indicate that these considerations were brought to the attention of the legislature in more than an anecdotal way. In the Texas case, the Court ruled that the state did not need to increase District 18 to 50.9 percent African-American total population to insure nonretrogression of minority voting strength under Section 5.
Under Section 2 of the Voting Rights Act, states are prohibited from enacting redistricting plans that would deny minorities an equal opportunity to participate in the political processes and to elect candidates of their choice. Under the Court's Gingles decision, three preconditions must be met to prove minority vote dilution under Section 2: (i) the minority must be sufficiently large and geographically compact; (ii) the minority must be politically cohesive; and (iii) the white majority must vote in a bloc that usually defeats the minority's preferred candidate. In areas where these conditions exist, the state may create a majority-minority district, but it may not subordinate traditional districting principles to race "substantially more than is reasonably necessary" to avoid Section 2 liability.
The Court assumed, without deciding, that North Carolina and Texas had compelling interests in complying with Section 2. However, the Court found none of the districts sufficiently geographically compact to be narrowly tailored to avoid Section 2 liability. The Court concluded that race was taken into account "substantially more than was reasonably necessary" for Section 2 compliance.
The dissent argued that political motives, not race, played the critical role in the creation of the challenged districts. Not only did incumbency protection explain in many instances the bizarre shape of the districts, it also explained why several alternative plans, which included more compact majority-minority districts, were rejected. The dissent found that legislators also used their long experiences as local representatives and the party apparatus to identify constituent strength and political affiliation of voters. In contrast to the majority, the dissent argued that states should be given great discretion in drawing districts to alleviate Section 2 liability concerns. To address these overriding concerns and satisfy other race-neutral legislative ends, states may have to draw noncompact majority-minority districts in areas that do not meet the Gingles preconditions.
Virginia's Legal Challenge
At the end of July, a panel of three federal judges in Roanoke will take evidence concerning the constitutionality of Virginia's Third Congressional District, a majority-minority district with 64.4 percent African-American population and 61.6 percent African-American voting age population. The plaintiffs, residents of the Third District, will try to prove that race was the predominant factor when Virginia drew the boundaries of the Third District and that traditional redistricting criteria and partisan interests played an incidental role. The state will try to distinguish the demographics of the Third District and draw a stronger correlation between the district's contours and other legitimate redistricting criteria, including economic and political interests. In the event strict scrutiny is triggered, the state intends to show that this district is narrowly tailored to avoid Section 2 liability under the Voting Rights Act.
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