A. Counting the Population Overseas
B. Adjusting the Population Count
III. Congressional Reapportionment
A. The Race Between State and Federal Courts
B. Representing the State Legislature in Federal Court
A. Maximizing Minority Representation
1. Bizarre Shapes--North Carolina
4. The Need to Live in the District
In the 1960s, the Court said that everyone must play, and must redraw their legislative and congressional districts every ten years to take account of changes in the population recorded by the federal census. Baker v. Carr , 369 U.S. 186 (1962); Wesberry v. Sanders , 376 U.S. 1 (1964); Reynolds v. Sims , 377 U.S. 533 (1964).
In the 1970s, the Court developed a standard of population equality that required legislative districts to differ by no more than ten percent from the smallest to the largest, unless justified by some "rational state policy." Gaffney v. Cummings , 412 U.S. 735 (1973); White v. Regester , 412 U.S. 755 (1973).
In the 1980s, the Court developed a standard of equality for congressional districts that required them to be mathematically equal, unless justified by some "legitimate state objective." Karcher v. Daggett , 462 U.S. 725 (1983).
While that pretty well completed the Court's work on rules for population equality, its rules for treatment of racial and ethnic minorities were far from settled. In the 1970s, the Court had said that a redistricting plan need not be precleared by the Justice Department if it would be likely to cause fewer minority representatives to be elected than before. Beer v. United States , 425 U.S. 130 (1976). It began the 1980s with a decision that said that a plan would not be found to discriminate against a racial minority unless the plaintiffs could prove that its drafters intended to discriminate against them. City of Mobile v. Bolden , 446 U.S. 55 (1980). Congress was swift to react to this new limitation on how to prove racial discrimination. In 1982, after most of the plans based on the 1980 census had already been enacted, Congress amended § 2 of the Voting Rights Act to make clear that it applied to any plan that results in discrimination against a member of a racial or ethnic minority group. Pub. L. No. 97-205, 3, June 29, 1982, 96 Stat. 134, coded as 42 U.S.C. 1973.
How were the courts to determine whether a redistricting plan would have discriminatory results? In the 1986 case of Thornburg v. Gingles , 478 U.S. 30, the Court set forth three preconditions a minority group must prove in order to establish a violation of § 2 of the Voting Rights Act:
1) that the minority group is sufficiently large and geographically compact to constitute a majority in a single-member district;
2) that it is politically cohesive, that is, it usually votes for the same candidates; and
3) that, in the absence of special circumstances, bloc voting by the white majority usually defeats the minority's preferred candidate.
478 U.S. at 50 -51.
If the minority group could establish those three preconditions, it would be entitled to proceed to the next step: proving a § 2 violation by "the totality of the circumstances." Those circumstances would have to show that the members of the minority group had "less opportunity than other members of the electorate to participate in the electoral process and to elect representatives of their choice." 42 U.S.C. 1973 (b) .
What does that mean, "less opportunity"? In North Carolina, where Gingles arose, it meant replacing multimember districts where blacks were in the minority with single-member districts where blacks were in the majority. To the rest of the country, and to those of us who were going to be drawing new districts after the 1990 census, it meant that wherever there was a racial or ethnic minority that was "sufficiently large and geographically compact to constitute a majority in a single-member district," 478 U.S. at 50 -51, we would have to draw a district for them or risk having our plan thrown out, even if we acted without any intent to discriminate.
Being forewarned of the impact of § 2, drafters of redistricting plans after the 1990 census went to great lengths to draw majority-minority districts wherever the minority population counts seemed to justify it. There was intense pressure to go even further, and that pressure caused race to be the dominant issue for redistricting in the 1990s, especially for the U.S. Supreme Court.
Before I delve into the dominant issue, however, I'd like to describe the other issues the Supreme Court has resolved in the 1990s.
In Franklin v. Massachusetts , 505 U.S. 788 (1992), the Supreme Court found that the Secretary's decision was not subject to the Administrative Procedures Act, because it was not a "final agency action." Rather, it formed the basis for the Secretary's report to the President of the population of each state, which the President was free to adopt or revise as he saw fit.
The decision to allocate overseas federal employees to their home state based on their usual residence was consistent with the practice of the Census Bureau since the first census of trying to assign each person to the person's home state, even though they might be temporarily absent from it on the day of the census. Assuming that the overseas employees have retained ties to their home states, the Court found that the Secretary's method of allocation actually promotes equality of representation.
In anticipation of another "differential undercount" in the 1990 census, the City of New York and several other plaintiffs sued the Department of Commerce, demanding that the Department make a statistical adjustment to the 1990 census count to increase the total population to the number suggested by a post-enumeration survey, and also to increase the population within each state, city, precinct, and block. The Department of Commerce agreed to conduct the post-enumeration survey and prepared adjusted counts for the entire United States, but declined to adopt the statistically adjusted counts as the official census. The adjusted counts would have caused Wisconsin to lose one congressional seat, which would have been shifted to Arizona. The City of New York challenged the Department's decision not to adjust, and the State of Wisconsin intervened to support the Department.
In Wisconsin v. City of New York , 517 U.S. 1 (U.S. 1996), the Supreme Court upheld the decision of the Department of Commerce not to make the statistical adjustment. The Court found that, while the Constitution requires that there be a census, the particular mode of conducting the census is delegated to the Congress, which in turn has delegated it to the Secretary of Commerce. The decisions of the Secretary of Commerce on how to conduct the census "need only bear a reasonable relationship" to accomplishing the "actual enumeration" required by article I, section 2, clause 3 . The decision of the Secretary not to adjust was based on the Secretary's determinations that "distributive accuracy" of the census had historically been more important than "numerical accuracy," that is, that the relative populations of various areas have been more important than their absolute populations; that the unadjusted census data would be most "distributively" accurate; and that an adjustment based on the post-enumeration survey would not improve the "distributive" accuracy of the census. The Court found these bases were reasonable and well within the Secretary's discretion.
Applying the method of equal proportions to the 1990 census count had caused Montana to drop from two congressional seats to one. Montana sued the Department of Commerce, home of the Census Bureau, alleging that the method of equal proportions did not achieve the greatest possible equality in the number of persons per representative.
In United States Department of Commerce v. Montana , 503 U.S. 442 (1992), the Supreme Court agreed, but pointed out that the method did achieve the smallest relative difference between the populations of the districts in different states. As between alternative methods, each of which measured equality differently, the Court held that Congress had not abused its discretion in selecting the method of equal proportions.
In Quilter v. Voinovich, 794 F. Supp. 695 (N.D. Ohio 1992), the federal district court had ruled that Ohio's legislative plan violated the Equal Protection Clause because it had total population deviations in excess of ten percent, and that the excess could not be justified by a policy of preserving political subdivisions. The Supreme Court reversed, Voinovich v. Quilter , 507 U.S. 146 (1993), citing its decisions from 1973, Mahan v. Howell , 410 U.S. 315, and 1983, Brown v. Thompson , 462 U.S. 835, where the Court had found that preserving the boundaries of political subdivisions was a "rational state policy" that could justify population deviations of up to 16.4 percent in one case and 89 percent in the other. On remand, the district court found that the population deviations of 13.81 percent in the house plan and 10.54 percent in the senate plan were justified by the state policy of preserving whole counties. Quilter v. Voinovich, 857 F. Supp. 579 (N.D. Ohio 1994).
In Abrams v. Johnson , 65 U.S.L.W. 4478 (June 19, 1997) (No. 95-1425), the federal district court had drawn a remedial plan with an overall range of 0.35 percent. Appellants challenged the plan for failing to meet the strict standards for population equality that apply to court-drawn congressional plans. The Supreme Court rejected the challenge for several reasons. First, because its overall range was lower than the 1982 plan, the 1992 plan, or any other plan presented to the court that was not based on race. Second, because of Georgia's historical preference for not splitting counties outside the Atlanta area. Third, because shifts in population since 1990 had made it unlikely that further tinkering with the district populations would reflect Georgia's true population distribution in any event.
After the 1990 census, 20 states had suits in state courts concerning redistricting plans; 28 states had suits in federal court. Eleven states had suits in both state and federal courts on the same plan. New York had cases in four different federal courts and three different state courts. How was all this parallel litigation supposed to be coordinated?
In a 1965 case, Scott v. Germano , 381 U.S. 407 (per curiam), the Supreme Court had recognized that state courts have a significant role in redistricting and ordered the federal district court to defer action until the state authorities, including the state courts, had had an opportunity to redistrict.
In the 1990s, some federal district courts properly deferred action pending the outcome of state proceedings, see, e.g., Members of the Cal. Democratic Congressional Delegation v. Eu, 790 F. Supp. 925 (N.D. Cal. 1992), rev'd, Benavidez v. Eu, 34 F.3d 825 (9th Cir. 1994) (deferral until conclusion of state proceedings was proper; dismissal "went too far"), but others did not.
In Minnesota, after a state court had issued a preliminary order correcting the technical errors in the legislative plan enacted by the Legislature, the federal district court enjoined the state court from issuing its final plan. Emison v. Growe, Order, No. 4-91-202 (D. Minn. Dec. 5, 1991). The U.S. Supreme Court summarily vacated the injunction a month later. Cotlow v. Emison, 502 U.S. 1022 (1992) (mem.). After the state court issued its final order on the legislative plan and had held its final hearing before adopting a congressional plan, the federal court threw out the state court's legislative plan, issued one of its own, and enjoined the Secretary of State from implementing any congressional plan other than the one issued by the federal court. Emison v. Growe, 782 F. Supp. 427 (D. Minn. 1992). The federal court's order regarding the legislative plan was stayed pending appeal, Growe v. Emison, No. 91-1420 (Mar. 11, 1992) (Blackmun, J., in chambers), but the congressional plan was allowed to go into effect for the 1992 election. After the election, the Supreme Court reversed.
In Growe v. Emison , 507 U.S. 25 (1993), the Court held that the district court had erred in not deferring to the state court. The Court repeated its words from several previous cases that "reapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court." 507 U.S. at 34 . As the court said:
Rather than coming to the rescue of the Minnesota electoral process, the federal court had raced to beat the state court to the finish line, even tripping it along the way. 507 U.S. at 37 . The Supreme Court found that the state court had been both willing and able to adopt a congressional plan in time for the elections. 507 U.S. at 34 . By reversing the federal court's decision in its entirety, the Supreme Court allowed the state court's congressional plan to become effective for the 1994 election.
Florida Senate District 21 (Tampa Bay) had been challenged in federal court on the ground that it violated the Equal Protection Clause of the United States Constitution. The district had been drawn by the Florida Legislature; the Justice Department had refused to preclear it because it failed to create a majority-minority district in the area; the Governor and legislative leaders had refused to call a special session to revise the plan; the state Supreme Court, performing a review mandated by the Florida Constitution before the plan could be put into effect, had revised the plan to accommodate the Justice Department's objection; and the plan had been used for the 1992 and 1994 elections. Suit was filed in April 1994, and a settlement agreement was presented for court approval in November 1995. The Florida Attorney General appeared representing the State of Florida and lawyers for the President of the Senate and the Speaker of the House appeared representing their respective bodies. All parties but two supported the settlement agreement, and in March 1996 the district court approved it. Appellants argued that the district court had erred in not affording the Legislature a reasonable opportunity to adopt a substitute plan of its own. The Supreme Court did not agree.
Justice Stevens, writing for the majority, found that action by the legislature was not necessary. He found that the State was properly represented in the litigation by the attorney general and that the attorney general had broad discretion to settle it without either a trial or the passage of legislation. Slip op. at 8-11 .
Justice Scalia, writing for the four dissenters, argued that:
Now that this argument has been rejected, legislatures will want to take care to remain on good terms with their attorney general.
To make sure that intransigent public officials did not create new barriers to effective participation in the political process as fast as the courts could strike them down, § 5 of the Voting Rights Act of 1964, 42 U.S.C. 1973c , gave the Department of Justice extraordinary power over certain "covered" jurisdictions, primarily in the South and large urban areas. The Department was given the responsibility to "preclear" any change in election laws in those covered jurisdictions before they could take effect. (If a covered jurisdiction did not choose to ask the Department of Justice for preclearance, it could seek preclearance from the federal district court for the District of Columbia.) The Department of Justice had become a vigorous advocate for the rights of minorities in the electoral process and reviewed every redistricting plan to make sure it did not discriminate against them.
In the 1990s, when new redistricting plans were drawn in preparation for the 1991 and 1992 elections, the Justice Department was controlled by Republicans. As states like North Carolina, Georgia, Louisiana, and Texas presented their plans to the Justice Department for approval, the Justice Department insisted that they create additional majority-minority districts wherever the minority populations could be found to create them. This insistence was not limited by any concern that the districts be "geographically compact." The States' plans were first denied preclearance and then, after majority-minority districts were added, the plans were precleared. It seemed as though the Justice Department was requiring the States to maximize the number of majority-minority districts.
Section 2 of the Voting Rights Act included a proviso, added through the efforts of Senator Dole in 1982, that "nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population." 42 U.S.C. 1973 (b) . In other words, § 2 did not mandate proportional representation. So, how could it be construed by the Justice Department to require that a minority group be given the maximum number of elected representatives?
In Johnson v. DeGrandy , 114 S. Ct. 2647 (1994), the Supreme Court found that it could not be so construed. The Florida Legislature had drawn a house plan that created nine districts in Dade County (Miami) where Hispanics had an effective voting majority. Miguel DeGrandy and the Justice Department attacked the plan in federal court, alleging that the Hispanic population in Dade County was sufficient to create 11 house districts where Hispanics would have an effective voting majority. The district court agreed, imposing its own plan (based on one submitted by DeGrandy) that created 11 Hispanic districts. The Supreme Court reversed, saying that maximizing the number of majority-minority districts was not required. As Justice Souter said in his opinion for the Court, "Failure to maximize cannot be the measure of § 2." 114 S. Ct. at 2660 . Indeed, even a failure to achieve proportionality does not, by itself, constitute a violation of § 2. 114 S. Ct. at 2656-57 .
The nine districts provided for in the Legislature's plan were roughly proportional to the number of Hispanics in Dade County's voting-age population. But the Court refused to draw a bright line giving plan drafters a safe harbor if they created minority districts in proportion to the minority population. That, the Court said, would ignore the clear command of the statute that the question of whether minority voters have been given an equal opportunity to elect representatives of their choice must be decided based on "the totality of the circumstances," rather than on any single test. It would encourage drafters to draw majority-minority districts to achieve proportionality even when they were not otherwise necessary, and would foreclose consideration of possible fragmentation of minority populations among other districts where they were not given a majority. 114 S. Ct. at 2660-61 . However, after reviewing the totality of circumstances in the Dade County area and not finding evidence that the plan discriminated against Hispanics in other ways, the Supreme Court concluded that affording Hispanics a proportional number of districts was sufficient in this case to provide them with an equal opportunity to elect representatives of their choice. 114 S. Ct. at 2658-59 .
The Court rejected the argument of the Justice Department that proportionality of a statewide plan should be considered only on a statewide basis. Rather, the Court said, the choice of whether to evaluate the plan on a statewide basis or with reference to a particular region was left to the parties. In this case, the plaintiffs had chosen to attack the plan in the Dade County area, and all the evidence of both sides was directed to its proportionality in that area. The Court refused to change the focus of the case after the evidence was in. 114 S. Ct. at 2662 .
The North Carolina plan has already been reviewed by the Supreme Court for the third time, Shaw v. Hunt , 116 S. Ct. 1894 (1996). Let me begin by telling you about its first two trips there.
Congressional District 12
The second time, the plan was attacked as a racial gerrymander. That attack also failed in the district court, Shaw v. Barr, 809 F. Supp. 392 (W.D. N.C. 1992), but the legal theory on which the attack was based was endorsed by the Supreme Court. Shaw v. Reno , 509 U.S. 630 (1993). The Supreme Court did not actually rule that the plan was invalid. It only ruled that a racial gerrymander may, in some circumstances, violate the Equal Protection Clause. The case was remanded to the district court to determine whether the districts had been drawn on the basis of race and, if so, whether the racial gerrymander that resulted was "narrowly tailored to further a compelling governmental interest." 509 U.S. ____ ( slip op. at 26 ) .
The five-to-four majority opined that "reapportionment is one area in which appearances do matter." 509 U.S. 630, ____ ( slip op. at 15 ). As Justice O'Connor said in her opinion for the Court:
The Court said that a redistricting plan that is so bizarre on its face that it is unexplainable on grounds other than race demands the same strict scrutiny given to other state laws that classify citizens by race. 509 U.S. 630, ____ ( slip op. at 12 ).
The Court did not say that race-based redistricting is always unconstitutional. The Court recognized that:
* * *
But, when a State concentrates a dispersed minority population in a single district by disregarding "traditional districting principles such as compactness, contiguity, and respect for political subdivisions" the State is drawing a racial gerrymander that is subject to strict scrutiny.
To survive strict scrutiny, a racial classification must be narrowly tailored to serve a compelling governmental interest. The Court acknowledged that eradicating the effects of past racial discrimination was a compelling governmental interest. But the Court warned that the State must have "a strong basis in evidence for concluding that remedial action is necessary," 509 U.S. 630, ____ ( slip op. at 24 ), and that "race-based districting, as a response to racially polarized voting, is constitutionally permissible only when the State employs sound districting principles, and only when the affected racial group's residential patterns afford the opportunity of creating districts in which they will be in the majority." 509 U.S. 630, ____ ( slip op. at 25 ) (internal citations and quotations omitted). The Court anticipated that the State might assert on remand that complying with § 5 of the Voting Rights Act was a compelling governmental interest that justified the creation of District 12. But the Court warned that "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." 509 U.S. 630, ____ ( slip op. at 23 ). The Court also noted that the State had asserted that the race-based district was necessary to comply with § 2 of the Voting Rights Act, but left the arguments on that question open for consideration on remand. 509 U.S. 630, ____ ( slip op. at 23 -24).
In dissent, Justice White criticized the majority for focusing on the district's shape, rather than on the political impact it would have. He chastised them for failing to adhere to the requirements he had enunciated in Davis v. Bandemer , 478 U.S. 109 (1986), for striking down a partisan political gerrymander under the Equal Protection Clause: that the plan have both a discriminatory purpose and a discriminatory effect on an identifiable group of voters. Since the plaintiffs had not alleged that the plan discriminated against either blacks or whites, Justice White would have affirmed the decision of the district court dismissing the claim. 509 U.S. 630 , ____ (slip op. at 6).
Justice Stevens pointed out that the Court already knew that the North Carolina Legislature had drawn the I-85 district to include a majority of African-American residents. The Court didn't need to examine the shape of the district to find that out. But, since the purpose of drawing the district was to enhance the minority's electoral strength, rather than to diminish it, he saw no equal protection violation. Indeed, he found it "perverse" that the Court was using the Equal Protection Clause to deny African-Americans, the people for whom the Equal Protection Clause was written, an improvement in their electoral representation. 509 U.S. 630 , ____ (slip op. at 4).
On remand, the federal district court in North Carolina found that the Legislature had intentionally drawn the plan to create two districts where blacks were an effective voting majority. Shaw v. Hunt, 861 F. Supp. 408, 473-74. The Court then applied strict scrutiny to the plan and found that it was narrowly tailored to achieve a compelling state interest. Eradicating the effects of past racial discrimination was not a compelling state interest in this case, because that was not actually the reason the State created District 12. But complying with § 5 and § 2 of the Voting Rights Act were compelling state interests, and the district court found the plan was necessary to comply with both of those sections.
On the plan's third trip to the Supreme Court, the Supreme Court reversed the district court for a second time. Shaw v. Hunt , 116 S. Ct. 1894 (1996). In an opinion by Chief Justice Rehnquist, the Supreme Court again assumed without deciding that complying with § 5 and § 2 was a compelling state interest, but found that the plan was not narrowly tailored to achieve that interest.
North Carolina had not previously had any black-majority districts. The first plan drawn by the State had included one black-majority district. A second black-majority district was not necessary in order to avoid retrogression under § 5. 116 S. Ct. at 1904.
To make out a violation of § 2, a plaintiff must show that a minority population is "sufficiently large and geographically compact to constitute a majority in a single member district." The Court noted that District 12 had been called "the least geographically compact district in the Nation." 116 S. Ct. at 1901. There may have been a place in North Carolina where a geographically compact minority population existed, but the shape of District 12 showed that District 12 was not that place. Since District 12 did not encompass any "geographically compact" minority population, there was no legal wrong for which it could be said to provide the remedy. 116 S. Ct. 1906 .
The Supreme Court's decision striking down the North Carolina plan was announced June 13, 1996. But the federal district court took no action to draw new districts for the 1996 election. Rather, the court referred the plan to the North Carolina Legislature, with instructions that it draw a new plan for use in the 1998 election.
In Georgia, the Court was faced with a congressional district that, while perhaps uncouth, was "not among those on a statistically calculated list of the 28 most bizarre districts in the United States." Miller v. Johnson , 115 S. Ct. 2475, 2504 (1995) (Ginsburg, J., dissenting).
Congressional District 11
In Miller v. Johnson , 115 S. Ct. 2475 (1995), the Supreme Court shifted its focus away from the shape of the district, saying that plaintiffs challenging a racial gerrymander need not prove that a district has a bizarre shape. The shape of the district is relevant, not because bizarreness is a necessary element of the constitutional wrong, but because it may be persuasive circumstantial evidence that race was the Legislature's dominant motive in drawing district lines. Where district lines are not so bizarre, plaintiffs may rely on other evidence to establish race-based redistricting. 115 S. Ct. at 2486 .
In Georgia's case, the Legislature's correspondence with the Justice Department throughout the preclearance process demonstrated that race was the dominant factor the Legislature considered when drawing the 11th District. The Court found that the Legislature had considered "traditional race-neutral districting principles," such as compactness, contiguity, and respect for political subdivisions and communities of interest, but that those principles had been subordinated to race in order to give the 11th District a black majority. 115 S. Ct. at 2489-90 .
Since the district had been proved to be a racial gerrymander, it was subject to strict scrutiny. It could be sustained only if narrowly tailored to achieve a compelling state interest. Assuming that complying with the Voting Rights Act might be considered a compelling state interest, the Court found that drawing a third black-majority district was not necessary to comply with § 5's nonretrogression requirement. The plan for the previous decade had included only one black-majority district. The two previous plans enacted by the Georgia Legislature after the 1990 census had included two black-majority districts, thus improving on the status quo. Without evidence that the Georgia Legislature had enacted the plans with an intent to discriminate against blacks, and without any other evidence that the plans had a discriminatory effect, the plans were sufficient to comply with § 2. Adding a third black-majority district was not necessary and thus not narrowly tailored to achieve the state's interest in complying with the Voting Rights Act. 115 S. Ct. at 2490-94 .
The Supreme Court scolded the Justice Department for having pursued its policy of maximizing the number of majority-minority districts. As the Court said:
In dissent, Justice Stevens repeated his argument from Shaw: that a plan drawn to favor a racial minority is not unconstitutional when there is no evidence it was drawn with any intent or effect to discriminate against any other group of voters. 115 S. Ct. at 2497-99 .
On remand, the federal district court first allowed the Georgia Legislature an opportunity to draw a new plan. When the Legislature failed to agree on a plan, the district court found that Georgia's Second Congressional District was also an unconstitutional racial gerrymander. Johnson v. Miller , 922 F. Supp. 1552 (S.D. Ga., Dec. 1, 1995). The district court reasoned that, since the enacted plan was the product of improper pressure imposed by the Justice Department, it did not embody the Legislature's own policy choices and therefore should not be used as the basis for the court's remedial plan. The district court then imposed an entirely new plan with only one African-American majority district. Johnson v. Miller, 922 F. Supp. 1556 (S.D. Ga., Dec. 13, 1995). The court's plan was used for the 1996 election, but the district court's decision was appealed to the Supreme Court on the ground that the court failed to give due deference to the Legislature's policy choices.
The Supreme Court affirmed. Abrams v. Johnson , 65 U.S.L.W. 4478 (June 19, 1997) (No. 95-1425). It found that neither the Legislature's 1991 plan, rejected by the Justice Department because it contained only two black-majority districts, nor the 1992 plan, with three black-majority districts, embodied the Legislature's own policy choices because of the improper pressure imposed by the Justice Department. It found the district court was within its discretion in deciding it could not draw two black-majority districts without engaging in racial gerrymandering. Since the last valid plan, the 1982 plan, contained only one black-majority district, the district court's one-district plan did not retrogress in violation of § 5 of the Voting Rights Act.
| Congressional District 30 | Congressional District 18 | Congressional District 29 |
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The Justice Department precleared the plan under § 5 of the Voting Rights Act and it was used in the 1992 election.
Plaintiffs challenged 24 of the state's 30 congressional districts as racial gerrymanders. The federal district court struck down three, Districts 18, 29, and 30, Vera v. Richards, 861 F. Supp. 1304 (S.D. Tex. 1994), but the decision was stayed pending appeal, so the plan continued in use for the 1994 election.
In June of 1996, the Supreme Court affirmed the district court's decision throwing out those three districts. Bush v. Vera , 116 S. Ct. 1941 (U.S. 1996). The Court, in a plurality opinion written by Justice O'Connor, found that the plan was subject to strict scrutiny. She repeated what the Court had said in Shaw v. Reno , 509 U.S. 630 (1993), that strict scrutiny does not apply merely because redistricting is performed with consciousness of race. She added that strict scrutiny does not apply in all cases of intentional creation of majority-minority districts, such as the compact districts created by a state court in California. But strict scrutiny does apply where race was the predominant factor in drawing district lines and traditional, race-neutral districting principles were subordinated to race. 116 S. Ct. at 1951 .
The State argued that the bizarre shape of District 30 in Dallas County was explained by the drafters' desire to unite urban communities of interest and that the bizarre shape of all three districts was attributable to the Legislature's efforts to protect incumbents of old districts while designing the new ones. The Supreme Court upheld the district court's finding to the contrary, holding that race was the predominant factor. 116 S. Ct. at 1959-60 .
The Court again assumed without deciding that complying with § 2 of the Voting Rights Act was a compelling state interest, 116 S. Ct. 1960 , but found that the districts were not narrowly tailored to comply with § 2 because all three districts were bizarrely shaped and far from compact as a result of racial manipulation. To the extent there was political manipulation, race was used as a proxy for political affiliation. It was race that predominated. 116 S. Ct. at 1961 .
Justice O'Connor further noted that:
The court pointed out that, if the minority population is not sufficiently compact to draw a compact district, there is no violation of § 2; if the minority population is sufficiently compact to draw a compact district, nothing in § 2 requires the creation of a race-based district that is far from compact. 116 S. Ct. at 1961 .
How compact must a race-based district be? Reasonably compact.
A § 2 district that is reasonably compact and regular, taking into account traditional districting principles such as maintaining communities of interest and traditional boundaries, may pass strict scrutiny without having to defeat rival compact districts designed by plaintiffs' experts in endless "beauty contests."
The Court found that the district lines were not justified as an attempt to remedy the effects of past discrimination, since there was no evidence of present discrimination other than racially polarized voting. Since racially polarized voting only served to make a case for a violation of § 2, and the plan was not narrowly tailored to remedy a § 2 violation, the bizarre shapes were not justified.
The Court found that creation of District 18, the reconfigured African-American district in the Houston area, was not justified as an attempt to avoid retrogression under § 5, since it actually increased the African-American voting population from 40.8 percent to 50.9 percent.
On remand, after being notified by the Governor that he did not intend to call a special session to redraw the invalid districts in time for the 1996 election, the district court redrew both the offending districts and the districts adjoining them to be more compact. It ordered the voters in the 13 affected congressional districts to participate in a special open primary election to be held the same day as the general election, with a runoff election to be held December 10, 1996, if no candidate in a district received a majority of the votes cast in the primary. The Court denominated its plan an interim one, to govern the 1996 election only, and directed the Texas Legislature to draft a plan to govern future elections by June 30, 1997. Vera v. Bush , 933 F. Supp. 1341 (S.D. Tex., Aug. 6, 1996).
The federal district court in Florida had deferred action on a challenge to the Third Congressional District pending the Supreme Court's decision in the Georgia case. Johnson v. Smith, 1994 WL 907596 (N.D. Fla. Jul. 18, 1994). Following the decision, the Florida court found that the Third District was drawn for predominantly race-based reasons and therefore subject to strict scrutiny. Johnson v. Mortham, 915 F. Supp. 1529 (N.D. Fla. 1995). Applying strict scrutiny, the court found that the state did not have a compelling interest in drawing a race-based plan. The African-American population in the district was not sufficiently compact to make out a violation of § 2 of the Voting Rights Act, nor was there sufficient evidence of present discrimination to provide a "strong basis in evidence" that a race-based district was needed to remedy the effects of past discrimination. Johnson v. Mortham, 926 F. Supp. 1460 (N.D. Fla. Apr. 17, 1996). The court gave the Florida Legislature until May 22, 1996, to draw a new plan. Id. The Legislature drew a new plan by the deadline, and the court approved it as an interim plan for use in the 1996 election. Johnson v. Mortham , 1996 WL 297280 (N.D. Fla., May 31, 1996). Any use beyond 1996 will require preclearance under 5 of the Voting Rights Act .
Plaintiffs appealed. The Supreme Court vacated the judgment and remanded to the district court for further consideration in light of its decisions in the North Carolina and Texas congressional district cases. King v. Illinois Board of Elections, 1996 WL 442640 (U.S., Nov 12, 1996) (No. 96-146).
Not every challenge to a racial gerrymander has succeeded. In Louisiana, the congressional plan enacted by the Legislature under pressure from the Justice Department included two majority-minority districts. District 4 was a Z-shaped creature that zigzagged through all or part of 28 parishes and five of Louisiana's largest cities. It was attacked by plaintiffs who lived in the district. After the plan had been used for the 1992 election, it was struck down by the federal district court. Hays v. Louisiana , 839 F. Supp. 1188 (W.D. La. 1993). The Legislature then enacted a new plan for use in the 1994 election. District 4 was substantially altered, so that instead of a "Z," it was more of a backslash, stretching from the northwest corner of the state, through Baton Rouge, southeast to New Orleans. Plaintiffs amended their complaint to attack the new District 4. The court likewise struck down the new district and substituted a plan of its own. Hays v. Louisiana , 862 F. Supp. 119 (W.D. La. 1994). The Supreme Court stayed the order of the district court pending appeal. 115 S. Ct. 31 (1994).
In June of 1995, the Supreme Court vacated the decision of the district court. U.S. v. Hays , 115 S. Ct. 2431 (1995). It noted that the change in the shape of District 4 between the 1992 and 1994 elections had removed the plaintiffs from the district. Not living in the district, they did not have standing to complain about any representational harm the racially gerrymandered district lines might be causing.
A new complaint was filed by plaintiffs who lived in District 4. The federal district court again ruled the plan invalid and imposed the plan it had drawn in 1994. Hays v. Louisiana, 936 F. Supp. 369 (W.D. La., Jan. 5, 1996). The Louisiana Legislature enacted the court's plan, but the Justice Department, still insisting on maximizing the number of majority-minority districts, denied the plan preclearance. Since the Legislature's plan could not be put into effect without preclearance, the court's plan (which was identical) was used as an interim plan for the 1996 election.
In Ohio, legislative redistricting plans are drawn by a five-member Apportionment Board. In the 1990s, the board has had a Republican majority. Since black voters in Ohio have had a history of voting Democratic, the Apportionment Board had a natural interest in packing them into as few districts as possible. That interest coincided with the interest of the Ohio Branch of the NAACP, which wanted to elect as many black legislators as possible. The two worked together to create a plan that included five black-majority districts. Democratic plaintiffs attacked the plan, alleging that it diluted the voting strength of black voters. That happened because blacks had historically often supported the same candidates as whites, that is, Democrats. Blacks and white Democrats often lived in the same areas, so that creating majority-black districts also created super-majority Democratic districts, thus reducing the number of seats Democrats were likely to win statewide. This arrangement may have helped black candidates, but plaintiffs alleged that it hurt black voters by diluting their influence in other districts.
In Voinovich v. Quilter , 507 U.S. 146 (1993), the Supreme Court assumed that there might be some circumstances under which a plan must include influence districts, but that the plaintiffs had failed to prove those circumstances here. In particular, the plaintiffs had failed to prove that bloc voting by the white majority had usually defeated the blacks' preferred candidate. On the contrary, plaintiffs had showed that whites and blacks often voted together to elect candidates. In the absence of racially polarized voting, there could be no § 2 violation.
The Supreme Court disagreed with the lower court's holding that § 2 prohibits the creation of majority-minority districts except to remedy a statutory violation. The choice of whether to draw majority-minority districts is left in the first instance to the state officials who draw the plan. The burden is on plaintiffs to show that, in the totality of the circumstances, the plan discriminates against minority voters. 507 U.S. 146, 155-56 .
Minnesota's greatest concentrations of minority voters are in Minneapolis and St. Paul. Nowhere is it possible to draw either a senate district or a house district where any racial or language minority group is a majority of the voting age population. The efforts of the Minnesota Legislature focused instead on drawing districts where minority voters would have the greatest possible influence. The plan's drafters worked with leaders from the black, Indian, Asian, and Hispanic communities to create two senate districts in Minneapolis where the voting age population of all minorities taken together was between 30 and 40 percent. The plan enacted by the Legislature was not alleged to violate the Voting Rights Act. The federal district court, acting on its own initiative, without receiving any evidence or briefs or hearing any argument on the issue, threw the plan out for not having created a senate district where all minorities taken together constituted a majority of the population. Having invalidated the plan because it lacked this one senate district, the district court proceeded to redraw all 201 Senate and House districts in the state. Its super-majority minority district had a total black population of 43 percent and total population counting all minorities of 60 percent. (Considering only the voting-age population, it was 37 percent black and just under 50 percent counting all minorities.)
In Growe v. Emison , 507 U.S. 25 (1993), the Supreme Court reversed. It found that the Gingles preconditions, which it had previously applied only to challenges to multimember districts, also applied to single-member districts. 507 U.S. at 39 -41. Applying the Gingles preconditions to the Minnesota plan, the Supreme Court found that they were unattainable. Even making the "dubious assumption" that the minority voters were geographically compact, there was no evidence of political cohesion within any of the three minority groups in the district, nor was there any evidence of political cohesion between them. Likewise, there was no evidence of bloc voting by the white majority. In the absence of evidence to establish the preconditions, the § 2 challenge was thrown out. 507 U.S. 41 -42. (The Court observed in a footnote that the usual measure for determining vote dilution is the minority population of voting age, not the total minority population used by this district court. 507 U.S. at 38 n.4 .)
Baker v. Carr , 369 U.S. 186 (1962)
Beer v. United States , 425 U.S. 130 (1976)
Brown v. Thompson , 462 U.S. 835
City of Mobile v. Bolden , 446 U.S. 55 (1980)
Davis v. Bandemer , 478 U.S. 109 (1986)
Emison v. Growe, Order, No. 4-91-202 (D. Minn. Dec. 5, 1991), vacated sub nom. Cotlow v. Emison, 502 U.S. 1022 (1992) (mem.), 782 F. Supp. 427 (D. Minn. 1992), rev'd sub nom. Growe v. Emison , 507 U.S. 25 (1993)
Franklin v. Massachusetts , 505 U.S. 788 (1992)
Gaffney v. Cummings , 412 U.S. 735 (1973)
Hays v. Louisiana, 839 F. Supp. 1188 (W.D. La. 1993), vacated and remanded 114 S. Ct. 2731 (1994) (mem.), on remand 862 F. Supp. 119 (W.D. La. 1994), vacated and remanded sub nom. U.S. v. Hays , 115 S. Ct. 2431 (1995), on remand sub nom. Hays v. Louisiana , 936 F. Supp. 360 (W.D. La. 1996)
Johnson v. DeGrandy , 114 S. Ct. 2647 (1994)
Johnson v. Mortham, 915 F. Supp. 1529 (N.D. Fla. 1995), 926 F. Supp. 1540 (N.D. Fla. 1996), 1996 WL 297280 (N.D. Fla. May 31, 1996)
Johnson v. Smith, 1994 WL 907596 (N.D. Fla. Jul. 18, 1994)
Karcher v. Daggett , 462 U.S. 725 (1983)
King v. State Board of Elections, No. 95 C 827, 1996 WL 130439 (N.D. Ill. Mar 15, 1996), vacated sub nom. King v. Illinois Board of Elections , 1996 WL 442640, 65 U.S.L.W. 3086 (Nov. 12, 1996) (No. 96-146) (mem.)
Lawyer v. Dept. of Justice , 65 U.S.L.W. 4629 (June 25, 1997) (No. 95-2024)
Mahan v. Howell , 410 U.S. 315
Members of the Cal. Democratic Congressional Delegation v. Eu, 790 F. Supp. 925 (N.D. Cal. 1992)
Miller v. Johnson , 115 S. Ct. 2475, 2504 (1995), on remand sub nom. Johnson v. Miller , 922 F. Supp. 1552, 1556 (S.D. Ga. 1995), aff'd sub nom. Abrams v. Johnson , and U.S. v. Johnson, 65 U.S.L.W. 4478 (June 19, 1997) (Nos. 95-1425, 95-1460)
Pope v. Blue, 809 F. Supp. 392 (W.D. N.C. 1992), aff'd 113 S. Ct. 30 (1992) (mem.)
Quilter v. Voinovich, 794 F. Supp. 695 (N.D. Ohio 1992), rev'd sub nom. Voinovich v. Quilter , 507 U.S. 146 (1993), on remand sub nom. Quilter v. Voinovich , 857 F. Supp. 579 (N.D. Ohio 1994), vacated sub nom. Voinovich v. Quilter , 116 S. Ct. 2542 (1996)
Reynolds v. Sims , 377 U.S. 533 (1964)
Sanchez v. Colorado, 97 F.3d 1303 (10th Cir., Sep. 30, 1996), cert. denied sub nom. Colorado v. Sanchez, 1997 WL 120597, 65 U.S.L.W. 3763, 3766 (May 19, 1997) (No. 96-1452)
Scott v. Germano , 381 U.S. 407 (per curiam)
Shaw v. Reno , 509 U.S. 630 (1993), on remand sub nom. Shaw v. Hunt, 861 F. Supp. 408 (E.D. N.C. 1994), rev'd sub nom. Shaw v. Hunt, 116 S. Ct. 1894 (1996)
Thornburg v. Gingles , 478 U.S. 30
United States Department of Commerce v. Montana , 503 U.S. 442 (1992)
Vera v. Richards, 861 F. Supp. 1304 (S.D. Tex. 1994), aff'd sub nom. Bush v. Vera , 116 S. Ct. 1941 (1996), on remand sub nom. Vera v. Bush, 933 F. Supp. 1341 (S.D. Tex. 1996)
Wesberry v. Sanders , 376 U.S. 1 (1964)
White v. Regester , 412 U.S. 755 (1973)
Wisconsin v. City of New York , 64 U.S.L.W. 4153 (U.S. 1996)
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