June 14, 1996

Excerpts From the Plurality Opinion and Dissenting Opinion

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Article

Justices Invalidate 4 House Districts as Products of Racial Gerrymanders

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Following are excerpts from the Supreme Court's decision yesterday invalidating three Congressional districts in Texas as the products of unconstitutional racial gerrymandering, as transcribed by The New York Times. Justice Sandra Day O'Connor wrote a plurality opinion that was joined by Chief Justice William H. Rehnquist and by Justice Anthony M. Kennedy. Justices Clarence Thomas and Antonin Scalia concurred separately.

Justice John Paul Stevens filed a dissenting opinion that Justices Ruth Bader Ginsburg and Stephen G. Breyer joined; Justice David H. Souter also filed a dissenting opinion.

FROM THE DECISION By Justice O'Connor

The Constitution does not mandate regularity of district shape, and the neglect of traditional districting criteria is merely necessary, not sufficient.

For strict scrutiny to apply, traditional districting criteria must be subordinated to race. Nor, as we have emphasized, is the decision to create a majority-minority district objectionable in and of itself. The direct evidence of that decision is not, as Justice Stevens suggests, "the real key" to our decision; it is merely one of several essential ingredients.

Nor do we "condemn state legislation merely because it was based on accurate information." The use of sophisticated technology and detailed information in the drawing of majority-minority districts is no more objectionable than it is in the drawing of majority-majority districts.

But, as the District Court explained, the direct evidence of racial considerations, coupled with the fact that the computer program used was significantly more sophisticated with respect to race than with respect to other demographic data, provides substantial evidence that it was race that led to the neglect of traditional districting criteria here.

.á.á.

Strict scrutiny would not be appropriate if race-neutral, traditional districting considerations predominated over racial ones.

We have not subjected political gerrymandering to strict scrutiny. And we have recognized incumbency protection, at least in the limited form of "avoiding contests between incumbent(s)," as a legitimate state goal. .á.á.

In some circumstances, incumbency protection might explain as well as, or better than, race a State's decision to depart from other traditional districting principles, such as compactness, in the drawing of bizarre district lines. And the fact that, "(a)s it happens .á.á. many of the voters being fought over (by the neighboring Democratic incumbents) were African-American," would not, in and of itself, convert a political gerrymander into a racial gerrymander, no matter how conscious redistricters were of the correlation between race and party affiliation.

If district lines merely correlate with race because they are drawn on the basis of political affiliation, which correlates with race, there is no racial classification to justify, just as racial disproportions in the level of prosecutions for a particular crime may be unobjectionable if they merely reflect racial disproportions in the commission of that crime. .á.á.

If the State's goal is otherwise constitutional political gerrymandering, it is free to use the kind of political data on which Justice Stevens focuses -- precinct general election voting patterns, precinct primary voting patterns and legislators' experience -- to achieve that goal regardless of its awareness of its racial implications and regardless of the fact that it does so in the context of a majority-minority district. To the extent that the District Court suggested the contrary, it erred. But to the extent that race is used as a proxy for political characteristics, a racial stereotype requiring strict scrutiny is in operation. .á.á.

We cannot agree with the dissenters that racial stereotyping that we have scrutinized closely in the context of jury service can pass without justification in the context of voting. If the promise of the Reconstruction Amendments, that our Nation is to be free of state-sponsored discrimination, is to be upheld, we cannot pick and choose between the basic forms of political participation in our efforts to eliminate unjustified racial stereotyping by government actors.

Here, the District Court had ample bases on which to conclude both that racially motivated gerrymandering had a qualitatively greater influence on the drawing of district lines than politically motivated gerrymandering, and that political gerrymandering was accomplished in large part by the use of race as a proxy. .á.á.

It is true that District 30 does not evince a consistent, single-minded effort to "segregate" voters on the basis of race, and does not represent "apartheid." But the fact that racial data were used in complex ways, and for multiple objectives, does not mean that race did not predominate over other considerations.

The record discloses intensive and pervasive use of race both as a proxy to protect the political fortunes of adjacent incumbents, and for its own sake in maximizing the minority population of District 30 regardless of traditional districting principles. District 30's combination of a bizarre, noncompact shape and overwhelming evidence that that shape was essentially dictated by racial considerations of one form or another is exceptional; Texas Congressional District 6, for example, which Justice Stevens discusses in detail, has only the former characteristic. That combination of characteristics leads us to conclude that District 30 is subject to strict scrutiny. .á.á.

Significant deviations from traditional districting principles, such as the bizarre shape and noncompactness demonstrated by the districts here, cause constitutional harm insofar as they convey the message that political identity is, or should be, predominantly racial. For example, the bizarre shaping of Districts 18 and 29, cutting across pre-existing precinct lines and other natural or traditional divisions, is not merely evidentially significant; it is part of the constitutional problem insofar as it disrupts nonracial bases of political identity and thus intensifies the emphasis on race. .á.á.

We subject racial classifications to strict scrutiny precisely because that scrutiny is necessary to determine whether they are benign as Justice Stevens' hypothetical of a targeted outreach program to protect victims of sickle cell anemia would, no doubt, be or whether they misuse race and foster harmful and divisive stereotypes without a compelling justification.

We see no need to revisit our prior debates. .á.á.

Our 14th Amendment jurisprudence evinces a commitment to eliminate unnecessary and excessive governmental use and reinforcement of racial stereotypes. We decline to retreat from that commitment today.

FROM THE DISSENT By Justice Stevens

Today, the Court strikes down three of Texas' majority-minority districts, concluding, inter alia, that their odd shapes reveal that the State impermissibly relied on predominantly racial reasons when it drew the districts as it did.

For two reasons, I believe that the Court errs in striking down those districts.

First, I believe that the Court has misapplied its own tests for racial gerrymandering, both by applying strict scrutiny to all three of these districts, and then by concluding that none can meet that scrutiny.

In asking whether strict scrutiny should apply, the Court improperly ignores the "complex interplay" of political and geographical considerations that went into the creation of Texas' new Congressional districts, and focuses exclusively on the role that race played in the State's decisions to adjust the shape of its districts. .á.á.

Second, even if I concluded that these districts failed an appropriate application of this still-developing law to appropriately read facts, I would not uphold the District Court decision.

The decisions issued today serve merely to reinforce my conviction that the Court has, with its "analytically distinct" jurisprudence of racial gerrymandering, struck out into a jurisprudential wilderness that lacks a definable constitutional core and threatens to create harms more significant than any suffered by the individual plaintiffs challenging these districts.

.á.á. I note that in most contexts racial classifications are invidious because they are irrational.

For example, it is irrational to assume that a person is not qualified to vote or to serve as a juror simply because she has brown hair or brown skin.

It is neither irrational, nor invidious, however, to assume that a black resident of a particular community is a Democrat if reliable statistical evidence discloses that 97 percent of the blacks in that community vote in Democratic primary elections.

For that reason, the fact that the architects of the Texas plan sometimes appear to have used racial data as a proxy for making political judgments seems to me to be no more "unjustified," and to have no more constitutional significance, than an assumption that wealthy suburbanites, whether black or white, are more likely to be Republicans than communists.

Requiring the State to ignore the association between race and party affiliation would be no more logical, and potentially as harmful, as it would be to prohibit the Public Health Service from targeting African-American communities in an effort to increase awareness regarding sickle-cell anemia. .á.á.

I cannot profess to know how the Court's developing jurisprudence of racial gerrymandering will alter the political and racial landscape in this Nation although it certainly will alter that landscape.

As the Court's law in this area has developed, it has become ever more apparent to me that the Court's approach to these cases creates certain perverse incentives and (I presume) unanticipated effects that serve to highlight the essentially unknown territory into which it strides.

Because I believe that the social and political risks created by the Court's decisions are not required by the Constitution, my first choice would be to avoid the preceding analysis altogether, and leave these considerations to the political branches of our Government.

The first unintended outcome of the legal reasoning in Shaw II and Bush is the very result that those decisions seek to avoid: The predominance of race in the districting process, over all other principles of importance.

Given the Court's unwillingness to recognize the role that race-neutral districting principles played in the creation of the bizarrely shaped districts in both this case and Shaw II, it now seems clear that the only way that a State can both create a majority-minority district and avoid a racial gerrymander is by drawing, "without much conscious thought," the precise compact district that a court would impose in a successful s2 challenge.

After the Court's decisions today, therefore, minority voters can make up a majority only in compact districts, whether intentionally or accidentally drawn, while white voters can be placed into districts as bizarre as the State desires.

The great irony, of course, is that by requiring the State to place the majority-minority district in a particular place and with a particular shape, the district may stand out as a stark, placid island in a sea of oddly shaped majority-white neighbors.

The inviolable sanctity of the s2-eligible districts will signal in a manner more blatant than the most egregious of these racial gerrymanders that "a minority community sits here: Interfere with it not." The Court-imposed barriers limiting the shape of the district will interfere more directly with the ability of minority voters to participate in the political process than did the oddly shaped districts that the Court has struck down in recent cases.

Unaffected by the new racial jurisprudence, majority-white communities will be able to participate in the districting process by requesting that they be placed into certain districts, divided between districts in an effort to maximize representation, or grouped with more distant communities that might nonetheless match their interests better than communities next door.

By contrast, none of this political maneuvering will be permissible for majority-minority districts, thereby segregating and balkanizing them far more effectively than the Districts at issue here, in which they were manipulated in the political process as easily as white voters.

This result, it seems to me, involves "discrimination" in a far more concrete manner than did the odd shapes that so offended the Court's sensibilities in Miller, Shaw II and Bush.