Bush v. Vera, 517 U.S. 952 (1996)

JUSTICE STEVENS, with whom JUSTICE GINSBURG and JUSTICE BREYER join, dissenting.

The 1990 census revealed that Texas’ population had grown, over the past decade, almost twice as fast as the population of the country as a whole. As a result, Texas was entitled to elect three additional Representatives to the United States Congress, enlarging its delegation from 27 to 30. Because Texas’ growth was concentrated in South Texas and the cities of Dallas and Houston, the state legislature concluded that the new congressional districts should be carved out of existing districts in those areas. The consequences of the political battle that produced the new map are some of the most oddly shaped congressional districts in the United States.

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, Miller v. Johnson, 515 U.S. 900, 915-916 (1995), and focuses exclusively on the role that race played in the State’s decisions to adjust the shape of its districts. A quick comparison of the unconstitutional majority minority districts with three equally bizarre majority Anglo districts, compare ante at Appendix A-C, with infra at |517 U.S. 952appa2|Appendix A-C, demonstrates that race was not necessarily the predominant factor contorting the district lines. I would follow the fair implications of the District Court’s findings,{1} and conclude that Texas’ entire map is a political, not a racial, gerrymander.{2} SeePart IV, infra.

Even if strict scrutiny applies, I would find these districts constitutional, for each considers race only to the extent necessary to comply with the State’s responsibilities under the Voting Rights Act while achieving other race-neutral political and geographical requirements. The plurality’s finding to the contrary unnecessarily restricts the ability of States to conform their behavior to the Voting Rights Act while simultaneously complying with other race-neutral goals. SeePart V, infra.

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, Shaw v. Reno (Shaw I), 509 U.S. 630, 652 (1993), 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. See Parts VI-VII, infra; Shaw v. Hunt, ante at 918-919 (Shaw II) (STEVENS, J., dissenting). Though we travel ever farther from it with each passing decision, I would return to the well traveled path that we left in Shaw I.

I

The factors motivating Texas’ redistricting plan are clearly revealed in the results of the 1992 elections. Both before and immediately after the 1990 census, the Democratic Party was in control of the Texas Legislature. Under the new map in 1992, more than two-thirds of the Districts -- including each of the new ones -- elected Democrats, even though Texas voters are arguably more likely to vote Republican than Democrat.{3} Incumbents of both parties were just as successful: 26 of the 27 incumbents were reelected, while each of the three new districts elected a state legislator who had essentially acted as an incumbent in the districting process,{4} giving "incumbents" a 97 percent success rate.

It was not easy for the State to achieve these results while simultaneously guaranteeing that each district enclosed the residence of its incumbent, contained the same number of people, and complied with other federal and state districting requirements. Much of Dallas and Houston, for example, was already represented in Congress by Democrats, and creating new Democratic districts in each city while ensuring politically safe seats for sitting Representatives required significant political gerrymandering. This task was aided by technological and informational advances that allowed the State to adjust lines on the scale of city blocks, thereby guaranteeing twists and turns that would have been essentially impossible in any earlier redistricting.{5} "[T]he result of the Legislature’s efforts," the District Court concluded, was "a crazy-quilt of districts" that bore little resemblance to "the work of public-spirited representatives." Vera v. Richards, 861 F.Supp. 1304, 1309 (SD Tex. 1994); see, e.g., |517 U.S. 952appa2|Appendix A-D.

It is clear that race also played a role in Texas’ redistricting decisions. According to the 1990 Census, Texas contained 16,986,510 residents, of whom 22.5% were of Hispanic origin, and 11.6% were non-Hispanic African American. 861 F.Supp. at 1311. Under the pre-1990 districting scheme, Texas’ 27-member delegation included four Hispanics and one African American. In Harris County, a concentrated Hispanic community was divided among several majority Anglo districts as well as the majority minority District 18. In Dallas County, the majority black community in South Dallas was split down the middle between two majority Anglo districts. The legislature was well aware, after the 1990 census, that the minority communities in each county were disproportionately responsible for the growth in population that gained three representatives for the State. Given the omnipresence of § 2 of the Voting Rights Act, 42 U.S.C. § 1973 (1994), the demographics of the two communities, and the pressure from leaders of the minority communities in those cities, it was not unreasonable -- and certainly not invidious discrimination of any sort -- for the State to accede to calls for the creation of majority minority districts in both cities.{6}

While complying with a multitude of other political and legal requirements, then, Texas created three new majority minority congressional districts and significantly reconfigured one preexisting district. The District Court concluded that the State impermissibly emphasized race over nonracial factors when it drew two of these new districts (District 30 in Dallas and District 29 in Houston) and the reconfigured District 18 in Houston. To determine whether the Court correctly affirms that decision, I begin, as does the plurality, by asking whether "strict scrutiny" should be applied to the State’s consideration of race in the creation of these majority minority districts.

II

We have traditionally applied strict scrutiny to state action that discriminates on the basis of race. Prior to Shaw I, however, we did so only in cases in which that discrimination harmed an individual or set of individuals because of their race. In contrast, the harm identified in Shaw I and its progeny is much more diffuse. See Shaw II, ante at 921-925 (STEVENS, J., dissenting). Racial gerrymandering of the sort being addressed in these cases is "discrimination" only in the sense that the lines are drawn based on race, not in the sense that harm is imposed on a given person on account of their race. Ante at 923-924 (STEVENS, J., dissenting).

Aware of this distinction, a majority of this Court has endorsed a position crucial to a proper evaluation of Texas’ congressional districts: neither the Equal Protection Clause nor any other provision of the Constitution was offended merely because the legislature considered race when it deliberately created three majority minority districts.{7} The plurality’s statement that strict scrutiny "does [not] apply to all cases of intentional creation of majority minority districts," ante at 958, merely caps a long line of discussions, stretching from Shaw I to Shaw II, which have both expressly and implicitly set forth precisely that conclusion.{8}

The conclusion that race-conscious districting should not always be subject to strict scrutiny merely recognizes that our equal protection jurisprudence can sometimes mislead us with its rigid characterization of suspect classes and levels of scrutiny. As I have previously noted, all equal protection jurisprudence might be described as a form of rational basis scrutiny; we apply "strict scrutiny" more to describe the likelihood of success than the character of the test to be applied. See Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 452-453 (1985) (STEVENS, J., concurring). Because race has rarely been a legitimate basis for state classifications, and more typically an irrational and invidious ground for discrimination, a "virtually automatic invalidation of racial classifications" has been the natural result of the application of our equal protection jurisprudence. Id. at 453. In certain circumstances, however, when the state action (i) has neither the intent nor effect of harming any particular group, (ii) is not designed to give effect to irrational prejudices held by its citizens but to break them down, and (iii) uses race as a classification because race is "relevant" to the benign goal of the classification, id. at 454, we need not view the action with the typically fatal skepticism that we have used to strike down the most pernicious forms of state behavior. See Wygant v. Jackson Bd. of Ed., 476 U.S. 267,316-317 (1986) (STEVENS, J., dissenting); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 320 (1978). While the Court insisted in Shaw I that racial classifications of this sort injure the Nation (though not necessarily any particular group) in myriad ways, see 509 U.S. at 647-648, redistricting that complies with the three factors I outline above simply is not the sort of despicable practice that has been taken in the past to exclude minorities from the electoral process. See Shaw II, ante at 931-933 (STEVENS, J., dissenting); Shaw I, 509 U.S. at 682-685 (SOUTER, J., dissenting); cf., e.g., Gomillion v. Lightfoot, 364 U.S. 339 (1960); Terry v. Adams, 345 U.S. 461 (1953). While any racial classification may risk some stereotyping, the risk of true "discrimination" in this case is extremely tenuous in light of the remedial purpose the classification is intended to achieve and the long history of resistance to giving minorities a full voice in the political process. Given the balancing of subtle harms and strong remedies -- a balancing best left to the political process, not to our own well developed but rigid jurisprudence -- the plurality reasonably concludes that race-conscious redistricting is not always a form of "discrimination" to which we should direct our most skeptical eye.

III

While the Court has agreed that race can, to a point, govern the drawing of district lines, it nonetheless suggests that at a certain point, when the State uses race "too much," illegitimate racial stereotypes threaten to overrun and contaminate an otherwise legitimate redistricting process. In Miller, the Court concluded that this point was reached when "race for its own sake, and not other districting principles, was the . . . dominant and controlling rationale" behind the shape of the district. 515 U.S. at 913. For strict scrutiny to apply, therefore, the plaintiff must demonstrate that

the legislature subordinated traditional race-neutral districting principles, including but not limited to compactness, contiguity, [and] respect for political subdivisions . . . to racial considerations.

Id. at 916; see also id. at 928 (O’CONNOR, J., concurring) (strict scrutiny should be applied only if State emphasized race in "substantial disregard" for traditional districting principles); ante at 962 (opinion of O’CONNOR, J.).

Of course, determining the "predominant" motive of the Texas Legislature, id. at 959 (citing Miller, 515 U.S. at 916) is not a simple matter.{9} The members of that body faced many unrelenting pressures when they negotiated the creation of the contested districts. They had to ensure that there was no deviation in population from district to district.{10} They reasonably believed that they had to create districts that would comply with the Voting Rights Act. See supra at 1007. If the redistricting legislation was to be enacted, they had to secure the support of incumbent Congressmen of both parties by drawing districts that would ensure their election. And all of these desires had to be achieved within a single contiguous district. Every time a district line was shifted from one place to another, each of these considerations was implicated, and additional, compensating shifts were necessary to ensure that all competing goals were simultaneously accomplished. In such a constrained environment, there will rarely be one "dominant and controlling" influence. Nowhere is this better illustrated than in Dallas’ District 30 where at the very least, it is clear that race was not such an overriding factor.

IV

The Court lists several considerations which, when taken in combination, lead it to conclude that race, and no other cause, was the predominant factor influencing District 30’s configuration. First, there is the shape itself. Second, there is evidence that the districts were intentionally drawn with consciousness of race in an effort to comply with the Voting Rights Act. Third, the Court dismisses two race-neutral considerations (communities of interest and incumbency protection) that petitioners advanced as race-neutral considerations that led to the odd shape of the districts. Finally, the plurality concludes that race was impermissibly used as a proxy for political affiliation during the course of redistricting. In my opinion, an appropriate reading of the record demonstrates that none of these factors- either singly or in combination-suggests that racial considerations "subordinated" race-neutral districting principles. I discuss each in turn.

Bizarre Shape

As noted, supra at 1, and n. 6, Texas’ Legislature concluded that it would add a new district to Dallas County that would incorporate the rapidly growing minority communities in South Dallas. To do so, the new district would have to fit into the existing districts: Before redistricting, most of southern Dallas County (including the African American communities in South Dallas) was divided between Districts 5 and 24, represented by Democratic Representatives Bryant and Frost, respectively. The middle of the northern section of the county was divided between Districts 3 and 26, both represented by Republicans.

Then-State Senator Johnson began the redistricting process by proposing a compact, Democratic, majority minority district encompassing all of South Dallas. See App. 139; 861 F.Supp. at 1321, n. 22. Representatives Bryant and Frost objected, however, because the proposed district included not only Johnson’s residence, but their own homes, located within only 10 miles of each other on opposite sides of the city. Furthermore, Johnson’s plan transferred many of Frost and Bryant’s most reliable Democratic supporters into the proposed district. Rather than acquiesce to the creation of this compact majority minority district, Frost and Bryant insisted that the new district avoid both their own homes and many of the communities that had been loyal to them. Johnson’s plan was, therefore, "quickly abandoned." Ibid.

To accommodate the incumbents’ desires, District 30 required geographical adjustments that had telling effects on its shape. First, two notches carefully avoiding the residences of and neighborhoods surrounding Frost and Bryant were carved out of District 30’s side. See |517 U.S. 952appd2|Appendix D, infra.{11} Furthermore, Frost and Bryant retained several communities -- many majority black -- along the southern and eastern sides of the proposed district. See generally 861 F.Supp. at 1321-1322.{12}

Had these communities been retained by District 30, it would have been much more compact. By giving up these voters to Frost and Bryant, however, District 30 was forced to seek out population and Democratic voters elsewhere. The Democratic incumbents had blocked its way to the south and east; north (and, to a lesser extent, west) was the only way it could go.{13}

It would not have helped the prospects of a Democratic candidate in the new District 30 had it simply plowed directly north to pick up additional population. Immediately north of the city of Dallas are the "Park Cities," which include a population that has voted strongly Republican throughout recent elections. See State’s Exhs. 9A and 9B (depicting one index of political affiliation in 1990 and 1992 elections). Rather than dilute the Democratic vote (and threaten the Republican incumbents) in this manner, District 30 skirted these communities on the west, and then curved east, picking up communities on either side of the region’s major interstate freeways.{14}

As the process of extracting Democratic voters out of the core of the Republican districts in North Dallas progressed, the distinction between Democratic and Republican voters moved from the precinct level (the smallest level at which political affiliation data was immediately available in the redistricting programs) down to the smaller census block level (the smallest level at which demographic and socioeconomic data was available).{15} In an effort to further identify which census blocks were likely to support their candidacy, the incumbents used not only census data, but their own long experience as local representatives as well as the experiences of staffers and supporters. See 3 Tr. 177-179, 181-182 (describing methods, such as simply driving through neighborhoods, that staff members and candidates for office used to develop block-specific information regarding the likely political affiliation of voters).{16}

In addition, although information about political affiliation was not available at the block level through the computer program, legislators and staffers were able to get relatively precise information about voter preferences through a system, developed by the Democratic Party, which allowed candidates to determine in which party primary voters had participated. Id. at 179-180. By examining this information, legislators were able to further fine-tune district lines to include likely supporters and exclude those who would probably support their opponents. Cf. Gaffney v. Cummings, 412 U.S. 735, 753 (1973) ("[W]hen [political profiles are] overlaid on a census map, it requires no special genius to recognize the political consequences of drawing a district line along one street rather than another").{17}

The careful gerrymandering conducted by the Texas Legislature under the watchful eye of Johnson and her staff was a success not only on a districtwide level (Johnson was elected with over 70% of the vote in both 1992 and 1994), but on a precinct level. While the pre-1990 precincts in the heavily Republican North Dallas gave little reason for a Democratic incumbent to hope for much support, see State’s Exh. 9B (maps of Dallas and Collin Counties with 1990 election index results showing only a few Democrat-leaning precincts in North Dallas), the gerrymandering that occurred in 1991 resulted in smaller precincts that, by all indications, gathered concentrations of Democratic voters into District 30 while leaving concentrations of Republican voters in surrounding Districts 3 and 26. See State’s Exh. 9A (maps of Dallas and Collin Counties with 1992 election index results showing many more Democrat-leaning precincts in the North Dallas sections of District 30).

Presumably relying on Shaw I’s statement that

a reapportionment plan may be so highly irregular that, on its face, it rationally cannot be understood as anything other than an effort to "segregat[e] voters" on the basis of race,

509 U.S. at 646-647, the plurality offers mathematical proof that District 30 is one of the most bizarre districts in the Nation, see ante at 960, and relates the now-obligatory florid description of the district’s shape, ante at 965-966; see also ante at 973-974 (describing District 29). As the maps appended to this opinion demonstrate, neither District 30 nor the Houston districts have a monopoly on either of these characteristics. Three other majority white districts are ranked along with the majority minority districts as among the oddest in the Nation. See Pildes & Niemi, Expressive Harms, "Bizarre Districts," and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 Mich.L.Rev. 483, 565 (1993). Perhaps the clearest example of partisan gerrymandering outside of the context of majority minority districts is District 6, a majority Anglo district represented by a Republican.{18}

For every geographic atrocity committed by District 30, District 6 commits its own and more. District 30 split precincts to gerrymander Democratic voters out of Republican precincts; District 6 did the same. See State’s Exh. 9B (Tarrant County, showing District 6 cuts). District 30 travels down a river bed; District 6 follows the boundaries of a lake. District 30 combines various unrelated communities of interest within Dallas and its suburbs; District 6 combines rural, urban, and suburban communities. District 30 sends tentacles nearly 20 miles out from its core; District 6 is a tentacle, hundreds of miles long (as the candidate walks), and it has no core.

The existence of the equally bizarre majority white District 6 makes the plurality’s discussion of District 30’s odd shape largely irrelevant. If anything, the similarities between Districts 6 and 30 suggest that it is more likely than not that the incumbency considerations that led to the mutation of District 6 were the same considerations that forced District 30 to twist and turn its way through North Dallas.{19}

The political, rather than the racial, nature of District 30’s gerrymander is even more starkly highlighted by comparing it with the districts struck down in Shaw II and Miller. District 30’s black population is, for instance, far more concentrated than the minority population in North Carolina’s District 12. And in Miller, the Court made it clear that the odd shape of Georgia’s Eleventh District was the result of a conscious effort to increase its proportion of minority populations: It was, the Court found,

"exceedingly obvious" from the shape of the Eleventh District, together with the racial demographics, that the drawing of narrow land bridges to incorporate within the District outlying appendages containing nearly 80% of the district’s total black population was a deliberate attempt to bring black populations into the district.

Miller, 515 U.S. at 917 (emphasis added, citation omitted).

District 30 is the precise demographic converse of the district struck down in Miller. District 30, for example, has a compact core in South Dallas which contains 50% of the district population and nearly 70% of the district’s total black population. Compare ibid. Unlike the appendages to Georgia’s District 11, the tentacles stretching north and west from District 30 add progressively less in the way of population, and, more important for purposes of this inquiry, they actually reduce the proportional share of minorities in the district. See State’s Exh. 33.

For example: The worst offender, in the trained eye of the Court, may be the northern arm of the district that winds around the Park Cities and then up into Collin County. But that arm, which contains 22 percent of the population, is only 21 percent black, ibid. -- a proportion essentially identical to the proportion of African Americans in Dallas County as a whole.{20}

The plurality is certainly correct in pointing out that District 30’s outlying reaches encompass some communities with high concentrations of minorities.{21} It is implausible to suggest, however, that an effort to "segregate" voters drove District 30 to collect those populations. After all, even the District Court noted that African American voters immediately adjacent to the core of District 30 were intentionally excluded from the district "in order to protect incumbents." 861 F.Supp. at 1339 (emphasis added). Forced into Republican territory to collect Democratic votes, the district intentionally picked up some minority communities (though far more majority white communities). If it had not, the goal of creating a majority black district would have been sacrificed to incumbency protection (the very sort of "predominance" of race over race-neutral factors that the Court discredits). But unlike Georgia’s District 11 and North Carolina’s District 12, the reason that the district was there in the first place was not to collect minority communities, but to collect population -- preferably Democrats. It would, therefore, be fanciful to assert that the "several appendages" to District 30 were "drawn for the obvious," let alone the predominant, "purpose of putting black populations into the district." Miller, 515 U.S. at 910.{22}

In sum, a fair analysis of the shape of District 30, like the equally bizarre shape of District 6, belies the notion that its shape was determined by racial considerations.

Intent

Perhaps conscious that noncompact congressional districts are the rule rather than the exception in Texas, the plurality suggests, ante at 960-961, 969-970, that the real key is the direct evidence, particularly in the form of Texas’ § 5 Voting Rights Act submissions and the person of then-State Senator Johnson, that the State expressed an intent to create these districts with a given "minimum percentage of the favored minority." 861 F.Supp. at 1309. Even if it were appropriate to rest this test of dominance on an examination of the subjective motivation of individual legislators,{23} or on testimony given in a legal proceeding designed to prove a conflicting conclusion,{24} this information does little more than confirm that the State believed it necessary to comply with the Voting Rights Act. Given its reasonable understanding of its legal responsibilities, see supra at 1007, the legislature acted to ensure that its goal of creating a majority black district in Dallas County was not undermined by the changes made to accommodate District 30 to other, race-neutral districting principles. As the plurality admits, see ante at 958, the intent to create majority minority districts does not in itself trigger strict scrutiny; these admissions prove nothing more than that. See also Shaw II, ante, at 930-932 (STEVENS, J., dissenting).

Nonracial Factors: Community

In an effort to provide a definitive explanation for the odd shape of the district, the State emphasized two factors: the presence of communities of interest tying together the populations of the district, and the role of incumbency protection. The District Court and the plurality improperly dismissed these considerations as ultimately irrelevant to the shape of the districts.

First, the appellants presented testimony that the districts were drawn to align with certain communities of interest, such as land use, family demographics, and transportation corridors. See 861 F.Supp. at 1322-1323. Although the District Court recognized that these community characteristics amounted to accurate descriptions of District 30, id. at 1323, it dismissed them as irrelevant to the districting process, concluding that there was no evidence that "the Legislature had these particular `communities of interest’ in mind when drawing the boundaries of District 30." Ibid. The plurality concludes that petitioners present no reason to displace that conclusion. Ante at 966-967.

I do not understand why we should require such evidence ever to exist. It is entirely reasonable for the legislature to rely on the experience of its members when drawing particular boundaries rather than on clearly identifiable "evidence" presented by demographers and political scientists. Most of these representatives have been members of their communities for years. Unless the Court intends to interfere in state political processes even more than it has already expressed an intent to do, I presume that it does not intend to require States to create a comprehensive administrative record in support of their redistricting process. State legislators should be able to rely on their own experience, not only prepared reports. To the extent that the presence of obvious communities of interest among members of a district explicitly or implicitly guided the shape of District 30, it amounts to an entirely legitimate nonracial consideration.{25}*

Nonracial Factors: Incumbency

The plurality admits that the appellants "present a . . . substantial case for their claim that incumbency protection rivalled race in determining the district’s shape." Ante at 967. Every individual who participated in the redistricting process knew that incumbency protection was a critical factor in producing the bizarre lines and, as the plurality points out, ante at 963-964, even the District Court recognized that this nearly exclusive focus on the creation of "safe" districts for incumbents was intimately related to the bizarre shape of district lines throughout the State.

[I]n Texas in 1991, many incumbent protection boundaries sabotaged traditional redistricting principles as they routinely divided counties, cities, neighborhoods, and regions. For the sake of maintaining or winning seats in the House of Representatives, Congressmen or would-be Congressmen shed hostile groups and potential opponents by fencing them out of their districts. The Legislature obligingly carved out districts of apparent supporters of incumbents, . . . and then added appendages to connect their residences to those districts. The final result seems not one in which the people select their representatives, but in which the representatives have selected the people.

861 F.Supp. at 1334 (citations and footnotes omitted). See also id. at 1335, n. 43. Despite this overwhelming evidence that incumbency protection was the critical motivating factor in the creation of the bizarre Texas districts, the District Court reached the stunning conclusion that because the process was so "different in degree" from the "generalized, and legitimate, goal of incumbent and seniority protection" that this Court has previously recognized, it could not serve as a legitimate explanation for the bizarre boundaries of the congressional districts. Id. at 1334-1335. In dismissing incumbency protection once and for all, the District Court stated that "[i]ncumbent protection is a valid state interest only to the extent that it is not a pretext for unconstitutional racial gerrymandering." Id. at 1336.

It is difficult to know where to begin to attack the misperceptions reflected in these conclusions,{26} and the plurality’s failure to do so seriously taints its evaluation of the relative importance of nonracial considerations in the creation of District 30. The initial problem, of course, is that under the Court’s threshold test as set forth in Miller, one must consider the role of incumbency protection before determining whether there is an "unconstitutional racial gerrymander." And because the ultimate focus in these gerrymandering cases is the claim that race was the "dominant and controlling rationale in drawing [the] district lines," 515 U.S. at 913, a court must, in applying that test, consider a State’s claim that a given race-neutral rationale controlled the creation of those lines. See id. at 916 ("Where [compactness, contiguity,] or other race-neutral considerations are the basis for redistricting legislation, and are not subordinated to race, a State can `defeat a claim that a district has been gerrymandered on racial lines’"). Although a court may not like the State’s explanation, that is no excuse for ignoring it.

If some independent bar prevented the use of that race-neutral criterion, then the District Court might be in a position to object to the State’s use of it. We have, however, affirmed that a State has an interest in incumbency protection, see, e.g., ante at 964-965 (opinion of O’CONNOR, J.); White v. Weiser, 412 U.S. 783, 791, 797 (1973), and also assured States that the Constitution does not require compactness, contiguity, or respect for political borders, see Shaw I, 509 U.S. at 647. While egregious political gerrymandering may not be particularly praiseworthy, see infra at 1038-1040, it may nonetheless provide the race-neutral explanation necessary for a State to avoid strict scrutiny of the district lines where gerrymandering is the "dominant and controlling" explanation for the odd district shapes.{27}

The District Court’s error had an apparently dispositive effect on its assessment of whether strict scrutiny should apply at all. Although aspects of our dispute with the plurality are "largely factual," ante at 17, n. *, they arise not out of our disagreement with the District Court’s credibility assessments, but out of that court’s erroneous conclusion that the state’s overwhelming reliance on this race-neutral factor was illegitimate and irrelevant to its evaluation of the factors involved in the shifting of this District’s lines. A fair evaluation of the record made in light of appropriate legal standards requires a conclusion very different from the District Court’s. By following the District Court down its misdirected path, the Court itself goes astray.

Race as a Proxy

Faced with all this evidence that politics, not race, was the predominant factor shaping the district lines, the plurality ultimately makes little effort to contradict appellants’ assertions that incumbency protection was far more important in the placement of District 30’s lines than race. See ante at 967-969. Instead, it adopts a fall-back position based on an argument far removed from even the "analytically distinct" claim set forth in Shaw I, 509 U.S. at 652. In it, the Court suggests that even if the predominant reason for the bizarre features of the majority minority districts was incumbency protection, the State impermissibly used race as a proxy for determining the likely political affiliation of blocks of voters. See ante at 968-971 (opinion of O’CONNOR, J.).

The effect of this process, in all likelihood, was relatively unimportant to the overall shape of the district. A comparison of the 1992 precinct results with a depiction of the proportion of black population in each census block reveals that Democratic-leaning precincts cover a far greater area than majority black census blocks. Compare State’s Exh. 9A with State’s Exh. 45. One would expect the opposite effect if the single-minded goal of those drawing the districts was racial composition rather than political affiliation. At the very least, the maps suggest that the drawing of boundaries involves a demographic calculus far more complex than simple racial stereotyping.

Furthermore, to the extent that race served as a proxy at all, it did so merely as a means of "fine tuning" borders that were already in particular locations for primarily political reasons. This "fine tuning" through the use of race is, of course, little different from the kind of fine tuning that could have legitimately occurred around the edges of a compact majority minority district.{28} I perceive no reason why a legitimate process -- choosing minority voters for inclusion in a majority minority district -- should become suspect once nonracial considerations force district lines away from its core.

Finally, 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% of the blacks in that community vote in Democratic primary elections. See Brief for United States 44. 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," ante at 969 (opinion of O’CONNOR, J.), 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.{29} 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.{30}

Despite all the efforts by the plurality and the District Court, then, the evidence demonstrates that race was not, in all likelihood, the "predominant" goal leading to the creation of District 30. The most reasonable interpretation of the record evidence instead demonstrates that political considerations were. In accord with the presumption against interference with a legislature’s consideration of complex and competing factors, seen. 9, supra, I would conclude that the configuration of District 30 does not require strict scrutiny.

V

The Houston districts present a closer question on the application of strict scrutiny. There is evidence that many of the same race-neutral factors motivating the zigzags of District 30 were present at the creation (or recreation) of Districts 29 and 18. In contrast to District 30, however, there is also evidence that the interlocking shapes of the Houston districts were specifically, and almost exclusively, the result of an effort to create, out of largely integrated communities, both a majority black and a majority Hispanic district. For purposes of this opinion, then, I am willing to accept arguendo the Court’s conclusion that the Houston districts should be examined with strict scrutiny.{31} Even so, the Court errs by concluding that these districts would fail that test.

The plurality begins with the perfectly obvious assumptions that a State has a compelling interest in complying with § 2 of the Voting Rights Act and that Texas had a strong basis for believing that it would have violated that Act in 1991 if it did not create three new majority minority districts.{32} The plurality goes on to conclude, however, that because the final shape of these districts is not coextensive with the community that would form the core of a § 2 violation, these districts would not be "narrowly tailored" to further that state interest. Ante at 979. I respectfully disagree.

Neither evidence nor insinuation suggests that the State in the redistricting process considered race for any reason other than as a means of accomplishing its compelling interest of creating majority minority districts in accord with the Voting Rights Act. The goal was, by all accounts, achieved, for these districts would certainly avoid liability under § 2 of the Voting Rights Act.{33} For reasons that continue to escape me, however, the Court simply insists that the lack of compactness in the districts prevent them from being "narrowly tailored" solutions to the State’s interests.

The Court uses two premises to reach its conclusion that compactness is required to meet the "narrow tailoring" requirement: (i) § 2 would not have been violated unless a reasonably compact majority minority district could have been created; and, (ii) nothing in § 2 requires the creation of a noncompact district. I have no quarrel with either proposition, but each falls far short of mandating the conclusion that the Court draws from it. While a State can be liable for a § 2 violation only if it could have drawn a compact district and failed to do so, it does not follow that creating such a district is the only way to avoid a § 2 violation. See generally Shaw II, ante at 946-950 (STEVENS, J., dissenting). The plurality admits that a State retains "a limited degree of leeway" in drawing a district to alleviate fears of § 2 liability, ante at 23, but if there is no independent constitutional duty to create compact districts in the first place, and the Court suggests none, there is no reason why noncompact districts should not be a permissible method of avoiding violations of law. The fact that they might be unacceptable judicial remedies does not speak to the question whether they may be acceptable when adopted by a state legislature. Because these districts satisfy the State’s compelling interest and do so in a manner that uses racial considerations only in a way reasonably designed to ensure such a satisfaction, I conclude that the Districts are narrowly tailored.

VI

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," ante at 967 (opinion of O’CONNOR, J.), and within the "limited degree of leeway" granted by the Court, id. at 977, the precise compact district that a court would impose in a successful § 2 challenge. See post at 1066-1067 (SOUTER, J., dissenting). 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. See Karlan, Still Hazy After All These Years: Voting Rights in the Post-Shaw Era, 26 Cumberland L.Rev. 287, 309 (1995-1996). The inviolable sanctity of the § 2-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.

In light of this Court’s recent work extolling the importance of state sovereignty in our federal scheme, cf. Seminole Tribe of Fla. v. Florida, ante, p. 44, I would have expected the Court’s sensibilities to steer a course rather more deferential to the States than the one that it charts with its decisions today. As we have previously noted, "[e]lectoral districting is a most difficult subject for legislatures, and so the States must have discretion to exercise the political judgment necessary to balance competing interests." Miller, 515 U.S. at 915; see also post at 1047-1048 (SOUTER, J., dissenting). The record in this case evidences the "complex interplay of forces that enter a legislature’s redistricting calculus," ibid. and the Court’s failure to respect those forces demonstrates even less respect for the legislative process than I would have expected after the decision in Miller.

The results are not inconsequential. After Miller and today’s decisions, States may find it extremely difficult to avoid litigation flowing from decennial redistricting. On one hand, States will risk violating the Voting Rights Act if they fail to create majority minority districts. If they create those districts, however, they may open themselves to liability under Shaw and its progeny. See Miller, 515 U.S. at 949 (GINSBURG, J., dissenting). Perhaps States will simply avoid the problem by abandoning voluntary compliance with § 2 of the Voting Rights Act altogether. See Shaw I, 509 U.S. at 672 (White, J., dissenting); post at 1063-1064 (SOUTER, J., dissenting).{34} This result would not necessarily bring peace to redistricting, for there is no guarantee that districts created by court order to comply with § 2 will be immune from attack under Shaw; in both Florida and Illinois, for instance, that very sort of schizophrenic second-guessing has already occurred. See King v. State Bd. of Elections, No. 95-C-827, 1996 WL 130439 (ND Ill., Mar. 15, 1996); Johnson v. Mortham, No. 94-40025, 1996 WL 189235 (ND Fla., Apr. 17, 1996). Given the difficulty of reconciling these competing legal responsibilities, the political realities of redistricting, and the cost of ongoing litigation, some States may simply step out of the redistricting business altogether, citing either frustration or hopes of getting a federal court to resolve the issues definitively in a single proceeding. See, e.g., Johnson v. Miller, No. CV 94-008, 1995 WL 783038, *1 (SD Ga., Dec. 13, 1995) (after remand from Miller, Georgia legislature abdicated its redistricting responsibilities to federal district court); post at 1064 (SOUTER, J., dissenting) (noting the likely "vacuum of responsibility at the state level").

Regardless of the route taken by the States, the Court has guaranteed that federal courts will have a hand -- and perhaps the only hand -- in the "abrasive task of drawing district lines." Wells v. Rockefeller, 394 U.S. 542, 553 (1969) (White, J., dissenting). Given the uniquely political nature of the redistricting process, I fear the impact this new role will have on the public’s perception of the impartiality of the federal judiciary. I can only reiterate the Court’s cautionary admonition, issued over two decades ago, that,

[i]n fashioning a reapportionment plan or in choosing among plans, a district court should not preempt the legislative task nor "intrude upon state policy any more than necessary."

White v. Weiser, 412 U.S. at 795 (citing Whitcomb v. Chavis, 403 U.S. 124, 160 (1971)).

I do not wish to leave the impression that decisions of the Court from Shaw I to the present are focusing on entirely nonexistent problems. I merely believe that the Court has entirely misapprehended the nature of the harm that flows from this sort of gerrymandering. Rather than attach blameworthiness to a decision by the majority to share political power with the victims of past discriminatory practices, the Court’s real concern should be with the more significant harms that flow from legislative decisions that "serve no purpose other than to favor one segment -- whether racial, ethnic, religious, economic, or political -- that may occupy a position of strength at a particular point in time, or to disadvantage a politically weak segment of the community." Karcher v. Daggett, 462 U.S. 725, 748 (1983) (STEVENS, J., concurring). This case is as good an illustration of such self-serving behavior on the part of legislators as any-but not with respect to racial gerrymandering. The real problem is the politically motivated gerrymandering that occurred in Texas. Many of the oddest twists and turns of the Texas districts would never have been created if the Legislature had not been so intent on protecting party and incumbents. See also Shaw II, ante, at 937-938 (STEVENS, J., dissenting) (noting the same influences behind the bizarre shape of North Carolina’s District 12).

By minimizing the critical role that political motives played in the creation of these districts, I fear that the Court may inadvertently encourage this more objectionable use of power in the redistricting process.{35} Legislatures and elected representatives have a responsibility to behave in a way that incorporates the "elements of legitimacy and neutrality that must always characterize the performance of the sovereign’s duty to govern impartially." Cleburne, 473 U.S. at 452. That responsibility is not discharged when legislatures permit and even encourage incumbents to use their positions as public servants to protect themselves and their parties rather than the interests of their constituents. See Karcher v. Daggett, 462 U.S. at 748, 754 (STEVENS, J., concurring). If any lines in Texas are worth straightening, it is those that were twisted to exclude, not those altered to include.{36}

VII

The history of race relations in Texas and throughout the South demonstrates overt evidence of discriminatory voting practices lasting through the 1970’s. Brischetto, Richards, Davidson, & Grofman, Texas, in Quiet Revolution in the South: The Impact of the Voting Rights Act, 1965-1990, pp. 233-248 (C. Davidson & B. Grofman eds. 1994). Even in recent years, Texans have elected only two black candidates to statewide office; majority white Texas districts have never elected a minority to either the State Senate or the United States Congress. Brief for Petitioners in No. 94-806, p. 53. One recent study suggests that majority white districts throughout the South remain suspiciously unlikely to elect black representatives. Davidson & Grofman, The Effect of Municipal Election Structure on Black Representation in Eight Southern States, in Quiet Revolution in the South at 344. And nationwide, fewer than 15 of the hundreds of legislators that have passed through Congress since 1950 have been black legislators elected from majority white districts.{37} In 1994, for example, 36 of the Nation’s 39 black Representatives were elected from majority-minority districts, while only three were elected from majority white districts.{38} See post at 1050-1051 (SOUTER, J., dissenting).

Perhaps the state of race relations in Texas and, for that matter, the Nation, is more optimistic than might be expected in light of these facts. If so, it may be that the plurality’s exercise in redistricting will be successful. Perhaps minority candidates, forced to run in majority white districts, will be able to overcome the long history of stereotyping and discrimination that has heretofore led the vast majority of majority white districts to reject minority candidacies. Perhaps not. I am certain only that bodies of elected federal and state officials are in a far better position than anyone on this Court to assess whether the Nation’s long history of discrimination has been overcome, and that nothing in the Constitution requires this unnecessary intrusion into the ability of States to negotiate solutions to political differences while providing long-excluded groups the opportunity to participate effectively in the democratic process. I respectfully dissent.

APPENDIX A TO OPINION OF STEVENS, J.

TEXAS CONGRESSIONAL DISTRICT 3

APPENDIX B TO OPINION OF STEVENS, J.

TEXAS CONGRESSIONAL DISTRICT 6

APPENDIX C TO OPINION OF STEVENS, J.

TEXAS CONGRESSIONAL DISTRICT 25

APPENDIX D TO OPINION OF STEVENS, J.

DALLAS-FORT WORTH AREA CONGRESSIONAL DISTRICTS

Before 1991 Redistricting

After 1991 Redistricting