Appendix — Shaw v. Hunt

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®) 94 92:5 NOV 21 19%

Nos. D5EICE OF IE CLERK

IN THE

Supreme Court of the Hnited States

OCTOBER TERM, 1994

No. 94-

RUTH O. SHAW, ef ai.,

Appellants,

JAMES B. HUNT, JR., ef al,

Appellees,

and

RALPH GINGLES, et al.

Appellees.

No. 94-

JAMES ARTHUR “ART” POPE, ef ai,

Appellants,

Vv.

JAMES B. HUNT, JR., ef ai,

Appellees,

and

RALPH GINGLES, ef al.

Appellees.

Appeal from the United States District Court

Eastern District of North Carolina, Raleigh Division

APPENDIX TO JURISDICTIONAL STATEMENTS

Robinson O. Everett

Counsel of Record

Jor Shaw Appellants

Pro se and as Attorney

for the other Plaintiffs

Suite 300

301 West Main Street

Durham, North Carolina

27707

(919)682-1591

Of Counsel:

Cliff Dougherty, Esquire

Bean, Kinney &

Norman, P.C.

2000 N. Fourteenth St.

Suite 100

Arlington, VA 22201

Michael A. Hess

Counsel of Record

Sor Pope Appellants

310 First Street, S_E.

Washington, D.C. 20003

(202)863-8638

Thomas F. Ellis

Thomas A. Farr

Sean C. Callinicos

Craig D. Mills

Maupin, Taylor, Ellis &

Adams, P.A.

Highwoods Tower One

3200 Beechleaf Court,

Suite 500

Post Office Drawer 19764

Raleigh, North Carolina

27619-9764

(919)98 1-4000

CONTENTS

APPENDIX D

| ISSR A RIS Sea ma 155a

APPENDIX E |

Plaintiffs’ September 15, 1994

Order Extending Time for Filing Jurisdictional

in A-252 (Pope v. Hunt) to November 21, 1994.................... 167a

Order Extending Time for Filing Jurisdictional

in A-253 (Shaw v. Hunt) to November 21, 1994 ................... 168a

APPENDIX H

Chapter 7 (1991) (Extra Session) amend. to

North Carolina Elections Code, C. 163, art. 17 ..................0- 169a

APPENDIX A

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION

JUDGMENT IN A CIVIL CASE

No. 92-202-CIV-5-BR

(FILED

AUG 1 1994

DAVID W. DANIEL, CLERK

U.S. DISTRICT COURT

E. DIST. NO. CAR.]}

RUTH O. SHAW, MELVIN G. SHIMM, ROBINSON 0O.

EVERETT, JAMES M. EVERETT, and DOROTHY G.

BULLOCK,

Plaintiffs,

and

JAMES ARTHUR "ART" POPE, BETTY S. JUSTICE, DORIS

LAIL, JOYCE LAWING, NAT SWANSON, RICK WOODRUFF.

J. RALPH HIXON, AUDREY McBANE, SIM A. DELAPP. JR.

RICHARD S. SAHLIE and JACK HAWKE, individually.

Plaintiff-lntervencrs,

JAMES B, HUNT, in his official capacity as Governor SF the State

of North Carolina, DENNIS A. WICKER, in his official capacity

as Lieutenant Governor of the State of North Carolina and President

of the Senate, DANIEL T. BLUE, JR., in his official capacity as

Speaker of the North Carolina House of Representatives, RUFUS

L. EDMISTEN, in his official capacity as Secretary of the State of

North Carolina, THE NORTH CAROLINA STATE BOARD OF

ELECTIONS, an official agency of the State of North Carolina,

EDWARD J. HIGH, in his official capacity as Chairman of the

North Carolina State Board of Elections, JEAN H. NELSON, in

her official capacity as a member of the North Carolina State Board

of Elections, LARRY LEAKE, in his official capacity as a member

of the North Carolina State Board of Elections, DOROTHY

PRESSER, in her official capacity as a member of the North

Carolina State Board of Elections, and JUNE K. YOUNGBLOOD,

in her official capacity as a member of the North Carolina State

Board of Elections,

Defendants,

and

RALPH GINGLES, VIRGINIA NEWELL, GEORGE SIMKINS,

N. A. SMITH, RON LEEPER, ALFRED SMALLWOOD, DR.

OSCAR BLANKS, REVEREND DAVID MOORE, ROBERT L.

DAVIS, C. R. WARD, JERRY B. ADAMS, JAN VALDER,

BERNARD OFFERMAN, JENNIFER McGOVERN, CHARLES

LAMBETH, ELLEN EMERSON, LAVONIA ALLISON,

GEORGE KNIGHT, LETO COPELEY, WOODY CONNETTE,

ROBERTA WADDLE and WILLIAM M. HODGES,

Defendant-Intervenors.

For the reasons set forth in the opinion of the court filed of

even date herewith, it is the judgment of the court that the

challenged congressional redistricting pl-n does not violate any

rights of the plaintiffs or their supporting intervenors. IT IS

ORDERED AND ADJUDGED that this action is DISMISSED.

THIS JUDGMENT FILED AND ENTERED ON ] AUGUST

1994 WITH COPIES TO:

Robinson O. Everett

Attorney at Law

P. O. Box 586

Durham, NC 27702

Thomas A. Farr

Attorney at Law

P.O. Box 19764.

Raleigh, NC 27619-9764

Edwin M. Speas, Jr.

Tiare B. Smiley

N. C. Department of Justice

P. O. Box 629

Raleigh, NC 27602

Adam Stein

Anita Hodgkiss

Attorneys at Law

700 E. Stonewall St., Suite 730

Charlotte, NC 28202

Janice M. Cole

United States Attorney

Raleigh, NC

Dayna Cunningham

NAACP Legal Defense Fund

99 Hudson St., Suite 1600

New York, NY 10013

August 1, 1994

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION

- No: 92-202-CIV-5-BR

by e , Tt [FILED

as ae : AUG 1 1994

| 4 DAVID W. DANIEL, CLERK

ye U.S. DISTRICT COURT

a E. DIST. NO. CAR.]

RUTH O. SHAW, et al.,

Plaintiffs,

GOVERNOR JAMES B. HUNT, JR.,

et al.,

Defendants.

ORDER

Ie filing the majority and disseati wa oor

judges and the dissenting judge reserve the right to revise their

respective opinions on or before 21 August 1994.

This Ist of August 1994.

FOR THE COURT

a.) J Dichaoe Paitin }

J. DICKSON PHILLIPS, JR.

US. District Judge

[I certify the foregoing to be a true and correct

copy of the original.

David W. Daniel, Clerk

Easter District of North Carolina

By (-s-)_Jane Skinner

Deputy Clerk

“tis

APPENDIX

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declaratory judgment action in the United States District Court for

the District of Columbia. After debate, however, it elected not to do

this, but instead to revise its original plan in order to meet the

Attorney General's objection and secure his approval. In January of

1992, the General Assembly therefore convened in special session

and enacted a revised redistricting plan. 1991 N.C. Extra Sess.

Laws Ch. 7. This revised plan, which is the Plan under attack here,

creates two districts in which African-Americans constitute

majorities of both the registered voters and the voting age

populations. One of these majority-minority districts, the First, is

centered in the rural northeastern part of the state, where a large,

dense concentration of African-Americans has long existed, but

of the state. The other, the Twelfth, is located not in the southern

part of the state, as the Justice Department had suggested, but runs

diagonally across the Piedmont in a jagged band that stretches some

160 miles from Durham to Gastonia, generally following the route

of Interstate Highway 85, but with several extensions into the

historic “black sections" of the Piedmont cities that lie along its

course. The twelve districts created by the Plan are as equally

populated as is mathematically possible,’ but their configurations

are such that a number of precincts, townships, cities and counties

of the state are split among two or even three congressional

The state submitted its revised Plan to the Attorney General

under § 5, and the Attorney General precleared it on February 6,

1992. Almost immediately, the Republican Party of North Carolina

and several individual voters associated with it filed suit in federal

of the federal Constitution. Their primary claim was that the Plan

violated their rights under the Equal Protection Clause of the

Fourteenth Amendment, because its lines were deliberately drawn to

favor Democratic incumbents at the expense of Republican political

interests. On April 16, 1992, a three-judge district court dismissed

that claim under Rule 12(b)(6), holding that the plaintiffs had not,

* Seven of the twelve districts have a population of $52,386, the other five a

population of 552,387.

effect on an identifiable political group needed to state a valid

political gerrymandering claim under Davis v. Bandemer, 478 U.S.

109 (1986). Pope v. Blue, 809 F. Supp. 392 (W.D.N.C. 1992).

Court summarily affirmed. 506 U.S.__, 113 S.Ct.

lla

insure proportional representation of African-American citizens in

North Carolina's congressional delegation.

In addition, plaintiffs alleged that the Plan violated rights

secured to them by §§ 2 and 4 of Article I of the Constitution, the

Privileges and Immunities Clause of the Fourteenth Amendment,

and the Fifteenth Amendment. Finally, they made a two-pronged

attack on the constitutionality of the federal defendants’ conduct in

refusing to preclear a congressional redistricting plan for North

arguing both that the federal defendants had musinterpreted amended

§ 2 of the Voting Rights Act and im consequence applied «

unconstitutionally, and, in the alternative, that if amended § 2 mm

fact required the creation of two mayortty-munority districts in North

Carolina, t was mtself unconststutional

As rebef, plamtffs sought a declaration that the Plan was

unconstituponal, prelumunary and permanent myunctive rebef agamst

its use by the appropriate state defendants to conduct congressona!

clechons, a declaraton that the federal dGefendaets bed acted

unconsutuuonally m demanding that North Carole adopt «

congressonal rechstncting pian wath two majornty-aunorty Gistrcts.

anc af myuncton restramung the federal defendants form taking a

acbon requimnmg North Carolma to enact suck a pian

Fouowng Sesagmanon of thus three-sudge cour Doth sets of

defendants fied motos © Geese We Geese’ Ge Gare

against che federa: éefemdaets sconctudeng ‘het ~e f|cksd setyec

matter yurisdichon ower those claims” S08 F Supp of 466-47

°c ft De aes qgeenst Ge (Gere Sefemce <ere aes

~mct | «> of Ge Young Rage Ac UAC § IPT gove Ge eee

ee nc ot @ Ge eee of cee cede eee «68

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a op.); id. at 474 (Voorhees, C.J., concurring in relevant

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two majorty-munonty distncts and

qecnon of two Afncap-Amencan members of Congress. without

‘tgard & such vadmonal dstncting comsaderations as geograptucal

Ornpectness scomfgus. anc communsbes of mterest

Two of as thought CUD Gaposed of tus clam as well id

= 472-73 Gmperty op) We cead Ge various opewces @ LUO w

Sanc for te proposmor that a rechstoctimg scheme vwiaiex the

process amd \ elect camditmers of thew chowcr - but omy & gre

cfiec © Afmcep Amercar -cumg sremg? 2 ode © compn ech

Ge Votes Bigte Ac OM @ 472-73) (We aio comcieded Ge

mere nec wm eg he egeeste scrum

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effect, because they could not establish that the Plan unfairly diluted

or canceled out white voting strength and led to proportional

underrepresentation of white voters on a statewide basis. Jd. at 473.

Judge Voorhees disagreed with this analysis. He read the

plurality opinion in UJO to authorize the states to deliberately

create majority-minority districts in order to comply with the Voting

Rights Act oniy when they employ traditional districting principles

such as compactness, contiguity, and communities of interest, id. at

475-77 (Voorhees, C.J., dissenting in relevant part), which he

believed were "of constitutional dimension," id. at 480. The Plan's

alleged failure to respect these principles, in his view, "augur{ed] a

constitutionally suspect, and potentially unlawful, intent" on the

part of the General Assembly sufficient to state an Equal Protection

claim. Jd. at 477.

Plaintiffs appealed our dismissal of their claims to the

United States Supreme Court. In a 5-4 decision, the Court held that

plaintiffs had stated a claim under the Equal Protection Clause by

alleging that the General Assembly had adopted a redistricting plan

that was “so irrational on its face that it can be understood only as

an effort to segregate voters into separate voting districts because of

Shaw v. Reno, _ U.S. ___, 113 S.Ct. 2816, 2832 (1993). If this

“allegation of racial gerrymandering remains uncontradicted,” the

North Carolina plan is narrowly tailored to further a compelling

governmental interest." Jd. at _, 113 S.Ct. at 2832. The Court

therefore reversed our dismissal of the plaintiffs’ Equal Protection

claim and remanded that claim to this court for further

consideration. Jd. at __, 113 S.Ct. at 2832. The Court expressly

affirmed our dismissal of the claims against the federal defendants.

Id. at ___, 113 S.Ct. at 2823. It expressed no view on the validity

of plaintiffs’ claims against the state defendants under Art. 1, § 2;

Art. L, § 4, the Privileges and Immunities Clause of the Fourteenth

Amendment, and the Fifteenth Amendment, id. at __, 113 S.Ct. at

2832, leaving our dismissal of those claims undisturbed but,

because urweviewed, still open for possible reconsideration by this

court or, if not reconsidered, for possible later review by that Court.

In this posture of the case, our consideration has been confined on

l4a

remand to the one claim found legally viable by the Supreme Court

the claim of improper “racial gerrymandering” in violation of the

Rughts Act avoncung

a violation of § 2 of the Voting Rights Act. and erachcanng the

effects of past racial discrimination = the state id at 7

Persons registered to vote as Repubicams m North Carotm ~

mcluding Art Pope, who had been the lead plamntf @ & are

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As we understand it, the claim is a newly recognized one in

voting rights jurisprudence. Until Shaw, the Supreme Court had

recognized only two grounds on which a redistricting plan might be

subject to challenge under the Equal Protection Clause. The first,

based on the "one person one vote" principle, was that its districts

were not equal in population, so that the votes cast by individual

voters in some districts had less weight than those cast by voters in

other districts. See Reynolds v. Sims, 377 U.S. 233 (1964). The

second was that though its districts were of equal population, they

were drawn with the purpose and had the effect of unfairly

“diluting” or canceling out the voting strength of an identified group

of voters — that is, of so diminishing their ability to influence the

political process as essentially to shut them out of it, as opposed to

merely making it more difficult for them to elect representatives of

their choice in particular districts. See White v. Regester, 412 U.S.

755, 765-66 (1973) (racial and ethnic group); Whitcomb v. Chavis,

403 U.S. 124, 153-55 (1971) (racial group); Davis v. Bandemer,

478 U.S. 109, 131-33 (1986) (plurality opinion) (political group);

id. at 151-52 (O'Connor, J., concurring in judgment)? Until Shaw,

no majority opinion of the Supreme Court had held that a state

redistricting plan that did not cause concrete, material harm to the

voting strength of an identifiable group of citizens in one of these

"See Gomillion, 364 U.S. at 349 (Whittaker, J., concurring) (suggesting that

redistricting plan whose lines were deliberately drawn to exclude voters of a

parucular race from a particular district might be subject to challenge under

Equal Protection Clause as “an unlawful segregation of (the) races”), Wright v.

Rockefeller, 376 US. 52, 59-67 (1964) (Douglas, J., dissenting) (suggesting that

rechstnicting plan whose lines were deliberately drawn to concentrate voters of

pervcular racial anc ethmic groups m particular districts, while excluding them

form of state-sponsored segregation), id. at 67-74 (Goldberg, J., dissenting)

18a

of the Supreme Court had squarely held that the Equal Protection

Clause did not prevent a jurisdiction subject to § 5 of the Voting

Rights Act from deliberately creating districts in which racial

minorities were a majority, so long as it did so with the purpose of

complying with the Voting Rights Act and did not unfairly dilute or

cancel out the voting strength of any other racial group. UJO v.

Carey, 430 U.S. 144, 161-68 (1977) (plurality opinion); id. at 179-

80 (Stewart, J., concurring in the judgment); see also Metro

Broadcasting Inc. v. FCC, 497 U.S. 547, 584 (1990) ("a State

subject to § 5 of the Voting Rights Act ... may ‘deliberately creat{e]

or preservice} black majorities in particular districts in order to

ensure that its reapportionment plan complies with [the Voting

Rights Act]") (quoting UJO, 430 U.S. at 161)).

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19a

id.at___, 113 S.Ct. at 2826 (“district lines obviously drawn for the

purpose of separating voters by race require careful scrutiny under

the Equal Protection Clause regardless of the motivations

underlying their adoption"). Finally, the Court held that “a plaintiff

challenging a [state redistricting] plan under the Equal Protection

Clause may state a claim by alleging that the legislation, though

race-neutral on its face, rationally cannot be understood as anything

other than an effort to separate voters into different districts on the

basis of race, and that the separation lacks sufficient justification."

Id. at__, 113 S.Ct. at 2828. Because plaintiffs had made such an

allegation in their Amended Complaint, the Court concluded, they

had stated a valid Equal Protection claim.

This states our understanding of the general nature of the

Equal Protection claim recognized by the Court in this case and

remanded to us for trial. It is, in effect, the same basic claim that

the Court has recognized in other contexts in which race-based

remedial measures, or “affirmative action," undertaken by state

actors have been challenged, typically by members of the majority

race Claiming "reverse discrimination." See Regents of the Univ. of

Calif’ v. Bakke, 438 U.S. 265 (1978) (admission to public

institution of higher learning); Wygant v. Jackson Bd. of Educ., 476

U.S. 267 (1986) (public employment); and City of Richmond v.

J.A. Croson Co., 488 U.S. 469 (1989) (government contracting)"

That being its general nature, there remain significant problems

concerning how the substantive elements and procedural incidents

of such a claim are to be transposed to the unique voting rights

context: specifically, the problems of standing; the nature of the

showing required to trigger strict scrutiny; the allocation of the

burden of proof at the strict scrutiny stage; the types of compelling

meaning of narrowly tailored in this context. On all of these

matters, the parties are in flat disagreement. We now turn to them.

'' It would appear, however, that this claim, even when advanced by members

of the majority race, cannot properly be referred to as one of “reverse

discrimination,” for it has no “reverse” aspect, but instead claims “equal”

discrimination against all individuals. See infra at 25-27.

20a

B. Standing

Defendant-intervenors contend that the action should be

dismissed for lack of standing. They point out that the Supreme

Court's decision in this case technically held only that, as a matter

of substantive Equal Protection doctrine, plaintiffs could state a

valid Equal Protection challenge to the Plan without alleging that it

had the purpose and effect of diluting their group voting strength.

standing to assert such a claim, nor did it purport to relieve them

from the obligation to satisfy the normal requirements for standing:

a showing that they have personally suffered, or are in immediate

danger of suffering, some actual “injury in fact" that is “fairly

traceable” to the challenged conduct and “likely to be redressed” by

the relief they seek. See Lujan v. Defenders of Wildlife, 504 U.S.

— —_, 112 S.Ct. 2130, 2136 (1992). And they argue that

piaintiffs have now failed to prove that the Plan has caused them the

sort of “injury in fact" required to give them standing to challenge it.

They concede that the clear implication, if not the actual holding, of

the Supreme Court's decision is that plaintiffs need not show that

the Plan has caused injury to their voting strength. But they read

the Court's discussion of the other ways in which race-based

districting legislation can injure voters, _. U.S. at__, 113 S.Ct.

at 2827-28, as implying that a voter has standing to challenge such

legislation only if he can show that it has actually injured his

political interests in one of two other ways: (i) by causing the

representative elected from his district to represent only the interests

of a particular racial group of which he is not a member; or (ii) by

exacerbating existing patterns of racial bloc voting by a racial

group of which he is not a member. While they concede that the

Supreme Court's decision can be read to hold that plaintiffs had

sufficiently alleged one or both of these injuries to establish

standing for purposes of Rule 12(b)(6), they say it cannot be read to

foreclose the possibility that this action might yet be dismissed for

lack of standing, should plaintiffs fail to prove those allegations a:

trial. See Lujan, 504 U.S. at __, 112 S.Ct. at 2136-37 (while

generalized allegations of injury resulting from the challenged

conduct may be adequate to establish standing at the pleading stage,

when the court is obliged to accept all material allegations of the

2la

complaint as true, they will not suffice to carry plaintiff's burden of

proof on standing at trial).

Defendant-intervenors' argument is not without some force.

The federal courts are not a general forum for the airing of any and

all complaints a citizen may have about the way in which his

government conducts its business, Los Angeles v. Lyons, 461 U.S.

95, 112 (1983), and they do not have “an unconditioned authority to

determine the constitutionality of legislative or executive acts."

Valley Forge Christian College v. Americans United, 454 U.S.

464, 471 (1982). An unbroken line of Supreme Court decisions

establishes that a federal court may decide the merits of a

constitutional challenge to a legislative act only when asked to do so

by a party who has personally suffered, or is in immediate danger of

suffering, some actual "injury in fact" that is “fairly traceable" to

the challenged act and "likely to be redressed” by the relief he seeks.

Lujan, 504 U.S. at __, 112 S.Ct. at 2136; Allen v. Wright, 468

U.S. 737, 750 (1984); Valley Forge, 454 U.S. at 472; Simon v.

Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38 (1976); Warth

v. Seldin, 422 U.S. 490, 498-99 (1975); Flast v. Cohen, 392 U.S.

» 25 97 (1968). These three elements - injury in fact, causation, and

* redressability — are the “irreducible constitutional minimum" for

standing, derived directly from the Article III case-or-contioversy

limitation on the federal judicial power. Northeastern Florida

Contractors v. Jacksonville, U.S. __, __, 113 S.Ct. 2297,

2301-02 (1993); Lujan, 504 U.S. at__, 112 S.Ct. at 2136. As

such, they are "an indispensable part of the plaintiff's case," which

he must prove at trial "with the [same] manner and degree of

evidence as any other matter on which fhe] bears the burden of

proof," id. at__, 112 S.Ct. at 2136, before he is entitled to have

the court rule on the merits of his claim. See Warth, 422 U.S. at

499; Allen, 468 U.S. at 750.

At first blush, it would appear that plaintiffs have not even

alleged, much less proved, the sort of “injury in fact" required by

this line of decisions. The Supreme Court has emphasized that such

a injury must be “concrete” in both a qualitative and a temporal

sense, Whitmore v. Arkansas, 495 U.S. 149, 155 (1990), which

means that it must be both "distinct and palpable" in nature, Warth,

422 U.S. at 501, as opposed to “[a}bstract," O'Shea v. Littleton,

22a

414 U.S. 488, 494 (1974), and “real and immediate," as opposed to

"conjectural" or “hypothetical,” Lyons, 461 U.S. at 101-02. See

generally Whitmore, 495 U.S. at 155. It surely is arguable that the

satisfy these criteria. Their primary claim is that the Plan "injures"

them -- as well as all other citizens, residents, and registered voters

of the State of North Carolina - because it threatens to perpetuate

archaic racial stereotypes and to increase racial divisions in society.

See Plaintiffs’ Responses to Defendant-Intervenors’ First Set of

Interrogatories, Responses Nos. 1 and 2. In addition, the two

plaintiffs who reside in districts in which African-Americans are a

majority under the Plan - Shaw and Shimm -- claim that it "injures"

them in another way, by causing them to doubt the quality of their

representation in Congress and making them feel “disenfranchised.”

See Shimm testimony, Tr. pp. 1084-93. All of these expressly

claimed harms could be thought abstract, theoretical, and merely

speculative, not concrete and palpable; all have the marks of the

sort of “injury in perception" rather than “in fact," Powers v. Ohio,

499 U.S. 400, 426-27 (1991) (Scalia, J., dissenting), that the

Supreme Court has previously found insufficient to confer Article

III standing.

Nevertheless, as we now understand the nature of the claim,

we believe the Supreme Court would hold that the plaintiffs have

adequately established their standing to assert it. That claim, as

indicated, is that the Plan violates the Equal Protection Clause

simply because it “classifies” voters — that is, assigns them to

particular voting districts — on the basis of their race, without

sufficiently compelling justification. In other contexts, the Supreme

Court has recognized that a state's use of racial classifications

necessarily inflicts “stigmatic” injury, Allen, 468 U.S. at 755,

which, though “abstract” in the sense that it cannot casily be

quantified, is sufficient "injury in fact" to give any citizen who has

been “personally denied equal treatment" by such a classification

standing to challenge it under the Equal Protection Clause. See

Bakke, 438 U.S. at 281 n. 14 (opinion of Powell, J., joined by four

other justices) (white male applicant to state medical school has

standing to challenge admission program that sets aside a certain

number of places in the class for minority applicants, even though

he cannot show that he would have been admitted but for that set-

23a

aside program); Northeastern Florida Contractors, __ U.S. at

__, 113 S.Ct. at 2303 (white contractors have standing to

challenge municipal ordinance that sets aside a certain percentage of

city contracts for minority-owned businesses, even though they

cannot show that they would have been awarded a contract but for

the set-aside program); see also Heckler v. Mathews, 465 U.S. 728,

739-40 (1984) (applying same standing rule in action challenging

federal government's use of gender-based classification under the

equal protection component of the Due Process Clause of the Fifth

Amendment). On remand, plaintiffs seem to have added a claim of

such “stigmatic” injury to the list of harms that they claim the Plan

has inflicted upon them. See Plaintiffs’ Post-Trial Brief at 4;

Plaintiffs’ Responses to Defendant-Intervenors' First Set of

Interrogatories, Responses Nos. 1 and 2. Under the reasoning of

Bakke and its progeny, this "stigmatic" injury would appear

sufficient to give them standing to challenge the Plan, if they can

show that they were "personally denied equal treatment" by it.

But difficulties remain, which in fairness must be

recognized. It is not immediately obvious how this liberal rule of

standing developed in Bakke and later cases challenging explicit

racial classifications can be transposed to race-based districting.

To date, all of the cases in which the dignitary injury resulting from

a racial classification has been found sufficient to confer Article III

standing have involved the use of race to disadvantage members of

a particular racial group relative to other persons in the distribution

of some governmental benefit. Bakke and Northeastern Florida

Contractors, for example, involved explicit racial set-asides that

prevented applicants of a certain race from being considered for a

particular governmental benefit.'* In such cases, the classification

Clearly subjects the members of the disfavored group to "unequal

treatment,” because it makes it more difficult for them to obtain the

benefit in question than it is for other persons. As the Court

explained, “the ‘injury in fact’ in an Equal Protection case of th{at]

variety is the denial of equal treatment resulting from the imposition

2 Though Heckler was a gender case rather than a race case, it too involved the

use of a suspect classification to make it more difficult for certain otherwise

qualified persons to obtain a particular government benefit. See 465 U.S. at 731

(Social Security benefits).

24a

of the barrier" which denies members of one racial group the

opportunity to compete for the benefit on an equal footing with

members of other racial groups. | Northeastern Florida

Contractors, __ U.S. at __, 113 S.Ct. at 2303. But laws that

assign voters to particular districts on the basis of their race, unlike

racial set-asides, do not appear to subject members of any racial

group to “unequal treatment" vis-a-vis any other. So long as all

citizens may vote, all individual votes receive the same weight, and

no racial group's voting strength is unduly diluted, all racial groups

are by definition given a fair opportunity to participate in the

electoral process, even if some are better positioned than others to

elect representatives of their choice in particular districts. See

Shaw, __ US. at___ & n 4, 113 S.Ct. at 2846 & n.4 (Souter, J.,

dissenting), see also Whitcomb v. Chavis, 403 U.S. at 153-55 (fact

that redistricting scheme causes members of a particular group to

suffer repeated defeats at the polls and fails to provide them with

proportional representation does not mean that it denies them an

“equal opportunity” to participate in the electoral process); Davis v.

Bandemer, 478% U.S. at 131-32 (same).

Despite this possible awkwardness, we think the Shaw

Court must have intended to transpose to race-based districting the

expansive concept of standing to challenge racial classifications

born in Bakke and brought to maturity in Northeastern Florida

Contractors. The linchpin of the Court's analysis in Shaw was that

race-based districting is no different than any other legislation that

deliberately classifies citizens by race; it was on that basis that the

Court held such legislation subject to strict scrutiny under the Equal

Protection Clause. See Shaw, _ U.S. at_, 113 S.Ct. at 2824-

25. Having equated race-based districting with legislation that

explicitly classifies citizens on the basis of race for purposes of the

underlying substantive law, it seems inconceivable that the Court

would not also equate the two for purposes of standing, which

serves merely to define the class of persons who have a sufficient

personal stake in a particular substantive claim to litigate it in court.

We therefore believe that the same expansive notion of standing

developed in Bakke and other cases challenging explicit racial set-

asides must also apply to cases challenging race-based districting;

that is, that any person who can show that a redistricting plan has

assigned him to vote in a particular district af least in part because

25a

of his race has standing to challenge it, even if he cannot show that

it has caused any concrete injury to his political interests."? In this

context, the "injury in fact" presumably is the state's decision to deal

with the voter as a member of a particular racial class, rather than

as an individual, in assigning him to a voting district, which is an

affront to his “personal dignity." See JE.B. v. Alabama ex rel.

TB, US. __, __, 114 S.Ct. 1419, 1434 (1994) (Kennedy,

J., concurring in the judgment); Metro Broadcasting Inc. v. FCC,

497 U.S. 547, 602 (1990) (O'Connor, J., dissenting) ("At the heart

of the Constitution's guarantee of equal protection lies the simple

command that the Government must treat citizens as ‘individuals,

not as simply components of a racial ... class”). That race-based

would appear to be of no consequence in the standing analysis, for

"racial classifications do not become legitimate [because] all

persons suffer them in equal degree." Powers, 499 U.S. at 410.

Such a broad standing principle concededly, and with all

contend demonstrate its unacceptability. It would appear to mean

that any person registered to vote in a jurisdiction with a districting

pian that contains one or more districts which have been deliberately

designed to have a certain racial composition has standing to

challenge that plan, even if he is not assigned to vote in one of those

standing law. We read the passage in the Shaw opinion upon which defendant-

peerage par ly mg 113 S.Ct. at 2827-28, as not intended to limit

voters standing to challenge race-based districting

legislation, but merely to point out some of the pernicious effects that such

legislation can have, in order to explain why it should be subject to the same

strict scrutiny as other laws that deliberately classify citizens by race.

26a

districts himself."* And its ultimate implication, as defendant-

intervenors emphasize, is that any member or members of a racial

leper Sed en 1 beneli¢ a majority-minority distr

has been created would have standing to challenge it as an improper

“racial classification," even if they cannot prove the sort of injury to

their group voting strength required to make out a constitutional or

statutory vote-dilution claim. See Croson, 488 U.S. at 494

(plurality) (all racial classifications immediately suspect under

Equal Protection Clause, regardless of which race is benefitted or

burdened).

Despite these difficulties, we understana Shaw necessarily

to have implied a standing principle that accords standing to

challenge a race-based redistricting plan to any voter who can show

that it has assigned him to vote in a p-sticular electoral district in

part at least because of his race.

C. Proof Required io Trigger Strict Scruti

The threshold showing required by Shaw to establish that a

particular districting plan is subject to strict scrutin, is not

immediately clear, as the conflicting contentions of the parties

illustrate.

Shaw, strict scrutiny applies to any districting plan in which

consideration of race is shown to have played a “substantial” or

“motivating” role in the line-drawing process, even if it was not the

only factor that influenced that process. They note that it has long

applies to any legislation in which a racially-discriminatory purpose

is shown to have played a “substantial” or "motivating" role, even if

it was not the "sole," “dominant,” or even the "primary" purpose of

the legislation. Arlington Heights v. Metropolitan Housing Dev.

See Pildes & Niemi, Expressive Harms, "Bizarre Districts,” and Voting

Rights: Evaluating District Appearances after Shaw v. Reno, 92 Mich L.Rev.

483, 514-515 & n 115 (1993), Aleinikoff & Issacharoff, Race and Redistricting:

Drawing Constitutional Lines after Shaw v. Reno, 92 Mich. L. Rev. 588, 642

(1993).

}

27a

Corp., 429 U.S. 252, 265-66 (1977); see Hunter v. Underwood,

471 U.S. 222, 231 (1985). They contend that Shaw simply

transposed the Arlington Heights “substantial” or “motivating” role

adopted by all three members of the court in Hays v. Louisiana,

839 F. Supp. 1188 (W.D.La. 1993) (Hays I), vacated, _ US.

___, 114 S.Ct. 2731 (June 27, 1994),"* the first three-judge court

hict ined two majority-minority districts designed to

Voting Rights Act, as an unconstitutional racial gerrymander under

eal jonal redistricting plan, which red cg act na Reqaeer see

districts so as to correct some of the problems that the district court

identi in declaring the earlier plan unconstitutional. Act 1 of the

Extraordinary Session of the 1994 Louisiana Legislature. The Hays plainti

promptly moved to amend their complaint to add a challenge to the revised

and the parties filed supplemental briefs in the Supreme Court addressing

Alt

12)

in this Court concerning Act 1," id. at___, 114 S.Ct. at 2731, which is not the

language the Court normally uses when vacating a lower court decision under

Munsingwear. See, ¢.g., Gantt v. Skelos, _ US. __ , 113 S.Ct. 30 (1992)

.. With instructions to dismiss the appeal as moot. United States v.

Munsingwear, 340 U.S. 36 (1950)."), Yellow Freight System Inc. v. United

States, ___ U.S. ___ , 113 S.Ct. 31 (1992) (petition for certiorari from United

States Court of Appeals) ("The judgment is vacated and the case is remanded to

28a

to consider a Shaw-like challenge to a race-based redistricting plan

in the aftermath of the Supreme Court's decision here. See id. at

1202 & n. 46 (majority op.) (under Shaw, strict scrutiny is triggered

by proof that race was an “important” or “significant{ ]" factor in

the line-drawing process, even if it was not the only factor that

influenced that process); id. at 1216 (Walter, J., concurring) (strict

scrutiny applies if race was “a motivating factor" in the line-

drawing process); Jeffers v. Tucker, 847 F. Supp. 655, 671-72

(E.D.Ark. 1994) (Eisele, J., concurring) (same).

The state and its allies, by contrast, argue that mere proof

that the legislature deliberately drew district lines in order to create

one or more districts in which a particular racial group has a

majority is not sufficient to trigger strict scrutiny under Shaw.

Instead, they read Shaw as holding that strict scrutiny applies only

to plans that are shown to (i) create districts with highly irregular

shapes; (ii) in which citizens of particular racial groups are

concentrated in numbers disproportionate to their representation in

the state's population as a whole; and (iii) whose shape and location

cannot rationally be explained by reference to any districting factor

other than race. While they concede that proof of the first two

factors may give rise to an inference that a plan is a “racial

gerrymander” triggering strict scrutiny, they maintain that the state

may rebut that inference by presenting evidence that the location

and shape of the districts can rationally be explained by reference to

some districting principle other than race, and that if the state does

the United States Court of Appeals ... with directions to dismiss as moot.”). For

this reason, the order of vacation could be read to indicate some doubt about the

validity of the Hays I court's rulings on the merits.

samglaeh © deans G0 couttetanaiy fhe eadorh pin, aod tom

their iat to eR?

ruled that it too was unconstitutional under Shaw. Hays v. Louisiana, No. 92-

1522 (W.D.La. Aug. 1, 1994) (Hays II). The court's brief opinion explaining

this ruling stated that it continued to adhere to the interpretation of Shaw set

forth in its Hays J opinion, notwithstanding the uncertainty about the validity of

that interpretation after the Supreme Court's action, and that it was adopting by

reference the constitutional analysis set forth in that earlier opinion. Jd. at _

(slip op. at 2). Because Hays I] does not reiterate that analysis in any detail, but

simply incorporates by reference the discussion in Hays I, we continue to cite to

Hays I here.

29a

this, strict scrutiny does not apply and the plan must be judged

instead under the lenient rational basis test. In their view, the Shaw

Court was concerned not about ail] deliberate use of race in

purpose and thereby serve to exacerbate, rather than to alleviate, the

existing racial divisions in society.

It is certainly possible to read the majority opinion ir haw

as holding no more than the state and its allies say it does. See

Dewitt v. Wilson, No. Civ.-5-93-535-EJG/JFM, 1994 WL 325415,

at * 3-7 (E.D.Cal. June 27, 1994) (adopting this reading of Shaw).

As they point out, the plaintiffs’ reading of Shaw is hard to square

with the nature of the Supreme Court's remand in this case. It was

clear, on the record before the Court, that the desire to create two

districts in which African-Americans were a majority of voting age

population was indeed a substantial motivating factor behind the

enactment of this particular plan. Our opinion below had indicated

that the state had conceded this fact in the proceedings before us,

808 F. Supp. at 470, and several of the dissents in the Supreme

Court called this concession to the majority's attention. ae

U.S. at __, 113 S.Ct. at 2838 (White, J., dissenting); id. at ___,

113 S.Ct. at 2843 (Stevens, J., dissenting). If the deliberate

creation of majority-minority districts was all that it took to trigger

strict scrutiny, the most logical thing for the Court to have done

would have been to note the state's concession, announce that strict

scrutiny was therefore applicable, and remand for application of

that standard, since the factual record at that Stage was not

sufficiently well-developed to allow the Court to do so itself. But

the Court did not do this; instead, it held only that plaintiffs’

allegations were sufficient to state a claim that the Plan was a racial

gerrymander subject to strict scrutiny, id. at __, 113 S.Ct. at 2832,

and it suggested several times that the state might yet avoid strict

scrutiny on remand, by producing evidence that would somehow

"rebut" or "contradict" that allegation of racial gerrymandering. Id.

at __, 113 S.Ct. at 2832 ("If the allegation of racial

gerrymandering remains uncontradicted, the District Court further

must determine whether the North Carolina plan is narrowly

tailored to further a compelling governmental interest"); id. at _,

30a

113 S.Ct. at 2830 ("[I}f appellants’ ailegations of a racial

gerrymander are not contradicted on remand, the District

must determine whether the General Assembly's reapportionment

plan satisfies strict scrutiny"). In addition, the majority explicitly

reserved the question whether the deliberate creation of majority-

minority districts, without more, always triggers strict scrutiny, id.

at__, 113 S.Ct. at 2828 ("[W]e express no view as to whether ‘the

intentional creation of majority-minority districts, without more,'

always gives rise to an equal protection claim"). For these reasons,

the state's reading of Shaw cannot be rejected out of hand.

Despite its surface plausibility, however, we do not think

the state's interpretation of Shaw can be correct. If Shaw meant no

more than the state says it does, it would have precious little

practical effect on race-based districting, for it would require states

to defend the deliberate creation of majority-minority districts under

strict scrutiny only when they could not come up with any rational

explanation for the location and shape of those districts other than

race. This would seldom be the case, given the wide variety of

other districting principles that may be used to justify even the most

peculiar-looking districts. The language and structure of the

Court's opinion, if not its actual holding, strongly suggest that the

Court intended to do much more than this. As we read the opinion,

it was intended to place race-based redistricting legislation into the

same category as all other forms of race-based state action after

Croson, for purposes of analysis under the Equal Protection Clause:

subject to strict scrutiny upon a showing that the state's use of race

to distinguish among citizens was deliberate, whether or not it can

be said to have had a “benign” or "remedial" purpose. There are

admittedly some problems with this reading, though, which the state

defendants and their allies properly point out. We therefore analyze

the relevant portions of the Court's opinion in some detail.

The whole thrust of tie Court's description of the remanded

claim is to locate it within post-Croson “color-blind" Equal

Protection jurisprudence, in which strict scrutiny is triggered simply

by the fact that legislation “classifies” citizens by race — whatever

its asserted purpose, however its presumed benefits and burdens are

cast, and whether the racial classification is overt or implicit. The

Court begins with a textbook exposition of the basic premises and

3la

precepts of that jurisprudence: The “central purpose” of the Equal

Protection Clause is "to prevent the States from purposefully

discriminating between individuals on the basis of [their] race." ___

US. at__, 113 S.Ct. at 2824. Laws that deliberately distinguish

between citizens on the basis of their race are “odious to a free

people whose institutions are founded upon the doctrine of

equality,” because they “threaten to stigmatize individuals by reason

of their membership in a racial group and to incite racial hostility.”

Id. at __, 113 S.Ct. at 2824 (internal quotations omitted). '* They

must therefore be subject to the strictest judicial scrutiny, even

when claimed to have a “benign” or “remedial” purpose, for

"™[a}bsent searching judicial inquiry ..., there is simply no way of

determining whfich] [racial] classifications are “benign” or

“remedial” and wh[ich] are in fact motivated by illegitimate notions

of racial inferiority or simple racial politics." Jd. at __, 113 §.Ct.

at 2824 (quoting Croson, 488 U.S. at 493 (plurality)). This strict

scrutiny applies not only to legislation that is overtly race-based --

that is, that draws "explicit racial distinctions" on its face, as did the

minority set-aside policy in Croson -— but also to legislation that

employs a classification which, though facially race-neutral, is

shown to be “an obvious pretext for racial discrimination.” Jd. at

___, 113 S.Ct. at 2825. And one way to prove that a facially race-

neutral law is in fact a pretext for racial discrimination is to show

that it draws distinctions that are “unexplainable on grounds other

than race." Id. at _, 113 S.Ct. at 2825.

'* Throughout its opinion, the Court seems to be using the term “racial

discrimination” to mean simply deliberately distinguishing between people on

the basis of their race, without regard to whether the distinction results in

disadvantageous treatment of one racial group vis-a-vis another. See id. at ___,

113 S.Ct at 2824-26 (using “discriminating” and "distinguishing"

interchangeably). This is consistent with the Court's general shift, in recent

years, from the “anti-discrimination" model of the Equal Protection Clause,

under which strict scrutiny was warranted only when race was used to single out

histoncally-disadvantaged minority groups for further adverse treatment, to the

more individualistic “colorblind” model, under which any deliberate use of race

to distinguish betwee:. citizens triggers strict scrutiny, regardless of whom it

benefits or burdens, because race is presumptively irrelevant to legitimate

governmental decisionmaking. See generally Kiarman, An Interpretive History

of Modern Equal Protection, 90 Mich. L.Rev. 213, 308-16 (1991).

32a

The Court then turns to a discussion of how these principles

apply in the context of electoral districting. Jd. at _, 113 S.Ct. at

2825-28. It begins by stating that “district lines obviously drawn

for the purpose of separating voters by race require careful scrutiny

under the Equal Protection Clause, regardless of the motivations

underlying their adoption.” Jd. at __, 113 S.Ct. at 2826. It

observes that it is normally difficult to prove that a single-member

districting plan “purposefully distinguishes between voters on the

basis of rece," because such plans “typically do{ ] not classify

persons at all,” but “tracts of land, or addresses,” and there are

many legitimate non-racial reasons why a legislature might choose

to construct districts in a way that concentrated members of a

particular racial group in one or more of them. Id. at __, 113

S.Ct. at 2826. But it says there are a handful of “exceptional cases”

in which proving that a redistricting plan “purposefully

distinguishes between voters on the basis of race," hence is subject

_ to strict scrutiny, "will not be difficult at all": those in which the

plan contains district lines “so highly irregular” that they "rationally

cannot be understood as anything other than an effort to 'segregat{e]

... voters’ on the basis of race." Jd at _, 113 S.Ct. at 2826. Two

examples of plans that fall into this category are given: the actual

plan in Gomillion, in which "a tortured municipal boundary line

was drawn to exclude black voters,” and a hypothetical plan that

“concentrate[s] a dispersed minority population in a single district

by disregarding traditional districting principles such as

ee Id.

__, 113 S.Ct. at 2826-27. In such cases, the Court explains, the

raf ren gta wate trate ten me doe

evidence that the legislature was in fact motivated by a racial

purpose when it drew them. See id. at__, 113 S.Ct. at 2827 (the

legislature's failure to observe “traditional districting principles” is

“objective” evidence that the districts were "gerrymandered on racial

lines"); id. at __, 113 S.Ct. at 2827 (“dramatically irregular

shapes may have sufficient probative force to call for an

explanation”) (quoting Karcher v. Daggett, 462 U.S. 725, 755

(1983) (Stevens, J., concurring))."’

'’ As the Hays J Court recognized, the Shaw majority apparently uses the term

“racial gerrymander” to refer to districting legislation which, though race-neutral

on its face, is in fact deliberately designed to produce one or more districts of a

certain racial composition, so that it can be said to reflect a deliberate policy of

33a

We think it readily apparent from the Court's analysis that

what it finds potentially offensive about the Plan under challenge

here — from a constitutional standpoint — is not that it is

aesthetically “ugly,” but that its drafters may deliberately, and

unjustifiably, have taken race into account in assigning voters to

particular districts. See U.S.at___, 113 S.Ct. at 2832 ("race-

based districting by our state legislatures," like "[rJacial

classifications of any sort," must be subject to "close judicial

scrutiny,” because it “reinforce[s] the belief, held by too many for

too much of our history, that individuals should be judged by the

color of their skin," and threatens to “balkanize us into competing

assigning citizens to voting districts on the basis of their race. Hays I, 839 F.

Supp. at 1194 (majority op.) (defining a “racial gerrymander” under Shaw as a

districting plan that “intentionally draws one or more districts along racial lines

or otherwise intentionally segregates citizens into voting districts based on their

race"), id. at 1214 (Walter, J., concurring) (defining a “racial gerrymander"

under Shaw as "[districting] legislation that manipulates district lines to achieve

a predetermined racial result"). This focus on deliberate manipulation of district

lines to achieve an ulterior purpose is consistent with the traditional

understanding of a "gerrymander." See Black's Law Dictionary at 618 (Sth ed.

1979) (defining "gerrymandering" as “the process of dividing a state or other

territory into the authorized ... political divisions, but with such a geographical

arrangement as to accomplish an ulterior or unlawful purpose, as, for instance, to

secure a majority for a given political party in districts where the result would be

otherwise if they were divided according to obvious natural lines").

In its most extreme form, a “racial gerrymander” may result in districts

that actually “segregate” or “separate” the races for voting purposes — the sort of

redistricting plan that the Shaw majority characterizes as “political apartheid."

Shaw, U.S. at __, 113 S.Ct at 2827. But it need not be this extreme to trigger

strict scrutiny, neither Gomillion nor Wright — upon which the Shaw majority

relies in reaching its conclusion that race-based redistricting plans are subject to

strict scrutiny, and from which it draws the language about “segregating” voters

by race — involved plans that completely separated the races for purposes of

voting. See Gomillion, 364 U.S. at 341 (redistricting plan removed from

particular electoral district all but "four or five” out of 400 voters of a particular

racial minority), Wright, 376 U.S. at 59 (Douglas, J., dissenting) (redistricting

plan resulted in “substantial, though not complete, segregation fof voters] by

race"). The critical feature of a racial gerrymander is not that it completely

separates the races for purposes of voting, but that it reflects the deliberate

manipulation of district lines so as to accomplish a particular racial result. See

Shaw, __ US. at ee dee eee ae eae

"the deliberate and arbitrary distortion of district boundaries .. for [racial]

purposes”) (internal citations omitted).

34a

racial factions"). The peculiar, “bizarre,” or “ugly” shapes of its

districts has some significance in the constitutional analysis at this

stage, but only as circumstantial evidence that the disproportionate

concentration of members of a particular race in certain districts

was something the line-drawers deliberately set about to

accomplish, as opposed to being simply an accidental consequence

of a line-drawing process driven by other districting concerns. See

id.at__, 113 S.Ct. at 2827.

The necessary implication of this analysis is that strict

scrutiny of an electoral redistricting plan is now triggered by proof -

- by any means, including state concession, bizarre shape, or some

combination of the various factors typically used to prove the

intent" element of an Equal Protection claim under Arlington

Heights — that racial considerations played a “substantial” or

"motivating" role in the line-drawing process, even if they were not

the only factor that influenced that process. See Hays I, 839 F.

Supp. at 1202 & n. 46 (majority op.); id. at 1216 (Walter, J.,

concurring); Jeffers, 847 F.Supp, at 671-72 (Eisele, J., concurring).

This “race-a-motivating-factor" triggering test is necessarily met by

proof that the plan's lines were deliberately drawn so as to create

one or more districts in which a particular racial group is a

majority, even if factors other than race are shown to have played a

significant role in the precise location and shape of those districts.

If the line-drawing process is shown to have been infected by such a

deliberate racial purpose, strict scrutiny cannot be avoided simply

by demonstrating that the shape and location of the districts can

rationally be explained by reference to some districting principle

other than race, for the intentional classification of voters by race,

though perhaps disguised, is still likely to reflect the "impermissible

racial stereotypes," Shaw, US. at ___, 113 S.Ct. at 2827,

“illegitimate notions of racial inferiority” and “simple racial

politics,” id. at ___, 113 S.Ct. at 2824, that strict scrutiny is

designed to “smoke out.” Croson, 488 U.S. at 493 (plurality)."*

'® Of course, if a legislature could show that it would have enacted precisely the

same plan even if it had not considered race at all, then it ought to be able to

avoid strict scrutiny. See Arlington Heights, 429 U.S. at 270-71 n. 21, Mt.

Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). But

that would be a rare case indeed.

35a

This is the obvious implication of the Shaw majority's effort to

import post-Croson Equal Protection principles into the electoral

districting context, see Aleinikoff & Tsaacharoff, supra, at 664-43,

and it is the reading of Shaw most consistent with the views on

Equal Protection expressed by the members of the Shaw majority in

their various opinions in Wygant, Croson, and Metro

Broadcasting.'® See also Johnson v. DeGrandy, __ US. __,

___, 62 U.S.L.W. 4755, 4764-65 (June 30, 1994) (Kennedy, J.

concurring in part and concurring in the judgment) (reading Shaw as

applying “to the drawing of electoral and political boundaries” the

Croson principle that "the sorting of persons with an intent to divide

by reason of race raises the most serious constitutional questions,"

triggering strict scrutiny under the Equal Protection Clause

regardless of the race of those burdened or benefited by it, and

therefore admonishing "state and federal officials with

responsibilities related to redistricting, as well as reviewing courts,

to recognize that explicit race-based districting ... must comply with

the overriding demands of the Equal Protection Ciause"). But, the

state defendants and their allies fairly ask, if the Court intended the

deliberate creation of majority-minority districts, standing alone, to

trigger strict scrutiny, why did it not rest its remand simply on that

ground, as it easily could have done here, given the state's

concession? Why did it deliberately reserve the question whether

the deliberate creation of majority-minority districts, without more,

will always give rise to an Equal Protection claim, and write an

opinion that can be read to confine strict scrutiny to cases in which

the lines cannot rationally be explained on any ground other than

race?

'% See, e.g., Wygant, 476 U.S. at 284-85 (O'Connor, J., concurring in part and

concurring in the judgment) ("Racial and ethnic distinctions of any sort are

inherently suspect and thus call for the most exacting judicial examination”)

(quoting Bakke, 438 U.S. at 291 (opinion of Powell, J.), Croson, 488 U.S. at

493-94 (opinion of O'Connor, J., joined by Rehnquist, C.J., and White and

Kennedy, JJ.), id. at 518 (Kennedy, J., concurring in part and concurring in the

judgment) ("The moral imperative of racial neutrality is the driving force of the

Equal Protection Clause”), id. at 520 (Scalia, J., concurring in the judgment) ("to

classify and judge men and women on the basis of ... the color of their skin" is

"fatal to a Nation such as ours"), Metro Broadcasting, 497 U.S. at 602-10

(O'Connor, J., joined by Rehnquist, C.J., and Scalia and Kennedy, JJ.,

dissenting), id. at 631-38 (Kennedy, J., joined by Scalia, J., dissenting).

36a

The question is by no means easily answered, but we think

there must be an answer that does not undercut our previously-

stated understanding of Shaw. Several can be ventured. First, a

broad aolding that strict scrutiny applies to any plan that

districts are not highly irregular, would have required the Court to

overrule its earlier decision in UJO. By confining its discussion to

bizarre-looking districts, the Court was able to distinguish UJO as

involving a majority-minority district of relatively normal shape.

See __ US. at ___, 113 S.Ct. at 2829. Second, the Court may

have thought it unfair to hold the State of North Carolina, which

had not yet even filed an answer in this action, to a concession it

made in response to a Rule 12(b)(6) motion at a time when it had

fair reason to believe that UJO, under which the concession would

have made no difference, was still the controlling authority. Finally,

the Court may have viewed the concession made by the state here as

an aberration that was unlikely to occur in the vast majority of

cases, and ignored it in order to announce a rule that would permit

plaintiffs making comparable claims to prove the "intentional" use

of race necessary to trigger strict scrutiny inferentially, when the

state did not concede it. In any event, we have no need to identify

the exact reason for this action by the Court; it suffices here simply

to demonstrate that the state has not identified the only possible

reason.

Before leaving this point, we also need, in fairness, to

consider one other objection that the state and its allies raise to the

reading of Shaw suggested by plaintiffs and their supporting

intervenors: that it will require virtually all redistricting plans to be

defended under strict scrutiny, since it is almost always possible to

show that a legislature was aware to some degree of the racial

impact of the lines it was drawing, particularly now that all

redistricting is done with computers into which racial data is loaded.

See Shaw, __ US. at__, 113 S.Ct. at 2826 (“redistricting differs

from other kinds of state decisionmaking in that the legislature

always is aware of race when it draws district lines, just as it is

aware of age, economic status, religious and political persuasion,

and a variety of other demographic factors”) (emphasis in original).

37a

We do not believe any such drastic consequence will result

from our reading of Shaw. The Supreme Court's Equal Protection

cases have long recognized that there is a critical distinction

between "race-conscious" action and "race-based" action, and that

the “intentional” use of race required to trigger strict scrutiny of

legislative action cannot be established simply by showing that the

legislature adopted a particular course of action with knowledge

that it was likely to have a particular racial impact. See Personnel

Adm. of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (the sort of

“discriminatory purpose" required to trigger strict scrutiny of a

facially-neutral statute "implies more than intent as volition or intent

as awareness of consequences"; it requires a showing “that the

decisionmaker ... selected or reaffirmed a particular course of action

at least in part ‘because of,’ not merely ‘in spite of,' its adverse

effects upon an identifiable group"). The Shaw majority

specifically stated that the “intentional” or "deliberate" use of race

required to trigger strict scrutiny in the redistricting context, as

elsewhere, means not just taking action with knowledge or

awareness that it is likely to have a particular racial impact, but

taking it with the specific intent to bring about such an impact. See

_. US. at ___, 113 S. Ct. at 2826 (noting that "the legislature

always is aware of race when it draws district lines," but that

"[t}hat sort of race consciousness does not lead inevitably to

impermissible race discrimination") (emphasis in original).

Properly applied, this distinction between "race-conscious" and

“race-based” districting should prevent legislatures from having to

defend all districting plans under the strict scrutiny standard.”

** As a practical matter, there will probably be only two types of redistricting

cases in which plaintiffs will consistently be able to prove the intent necessary to

trigger strict scrutiny: (i) those in which a redistricting plan creates more

majority-minority districts than did the prior plan, and there is direct evidence

that this has been done in response to either a private suit under the Voting

Rights Act or a § 5 objection from the Justice Department, and (ii) those in

which a plan creates one or more districts in which citizens of a particular racial

group are concentrated in numbers disproportionate to their representation in the

state's population as a whole, whose shapes are so highly irregular as to give rise

to an inference that the concentration was something the legislature affirmatively

set out to achieve, as opposed to being merely an accidental side-effect of a

redistricting process in which racial considerations played no role.

In all other situations, proof of the requisite intent will be difficult

38a

Nor will our reading of Shaw condemn to constitutional

invalidity all majority-minority districts drawn to give effect to

minority voting strength in order to comply with the requirements of

the Voting Rights Act. As the cases involving affirmative action in

higher education and public employment demonstrate, although

strict scrutiny places significant limitations on the ability of state

actors to take race-based remedial action, it need not be "strict in

theory, fatal in fact." Fullilove v. Klutznick, 448 U.S. 448, 518-19

(1980). Application of strict scrutiny to all redistricting proven to

be race-based will certainly make state legislatures look before they

leap when it comes to voluntary compliance with the Voting Rights

Act. But it should not prevent them from attempting to comply with

it altogether, so long as the “narrowly tailored to further a

compelling state interest" standard is applied in a way that is

sensitive not only to the state legislatures’ statutory obligation to

create majority-minority districts to give effect to minority voting

strength in areas where minorities have been subjected to persistent

discrimination in the political process, but also to the special

compromises that they must make in order to pass plans that draw

With that in mind, we turn now to the problems of how,

under Shaw, strict scrutiny is to be applied in the redistricting

context.

proving the intent of a collective body like a legislature, which is notoriously

difficult in the best of circumstances, is even more difficult when it is engaged in

Shaw, _ U.S. at ____, 113 S.Ct. at 2826, see also Wright, 376 U.S. at 53-58

(finding that plaintiffs failed to prove that legislature was motivated by racial

considerations when it drew congressional redistricting plan in which members

of particular racial and ethnic minorities were concentrated in a single district in

numbers disproportionate to their representation in the population as a whole,

where that concentration could be explained by reference to existing patterns of

residential segregation ).

39a

D. Application of The Strict Scrutiny Standard

in the Redistricting C

Shaw holds that any deliberately race-based state

redistricting plan is subject to "strict scrutiny" under the Equal

Protection Clause, and that it can survive that scrutiny only if its

use of race is both justified by a “compelling governmental interest"

and “narrowly tailored” to further that interest. __ U.S. at,

113 S.Ct. at 2832. But while Shaw offers some brief suggestions

about what this standard might require in the redistricting context,

seeid.at__, 113 S.Ct. at 2830-32, it does not actually apply it to

this particular redistricting plan. Nor has any other decision of the

Supreme Court ever applied strict scrutiny under the Equal

Protection Clause to specific electoral redistricting legislation. In

seeking to understand how that is to be done here, we must look for

guidance primarily to the Court's decisions applying the strict

scrutiny standard to race-based remedial measures voluntarily

undertaken by state actors in other contexts: higher education,

employment, and government contracting. See Regents of the Univ.

of Calif. v. Bakke, 438 U.S. 265 (1978); Wygant v. Jackson Bd. of

Educ., 476 U.S. 267 (1986), and City of Richmond v. J.A. Croson

Co., 488 U.S. 469 (1989).”"

view, a race-based redistricting plan enacted by a state, even under

pressure from the Justice Department, is most closely analogous to an

affirmative action plan voluntarily adopted by a state actor, for purposes of

analysis under the Equal Protection Clause. By contrast, a race-based

redistricting plan imposed upon a state by a federal court as a remedy for a found

violation of federal law is analogous to a judicially-imposed affirmative action

the strict scrutiny analysis than its voluntarily-adopted counterpart. See United

minority-preference policies adopted and maintained by the FCC in Metro

Broadcasting and thus should be evaluated under the more forgiving

intermediate scrutiny standard announced in that case.

We disagree. Even if Metro Broadcasting’s holding that race-based

redistricting plan. Of course, the Justice Department may, and frequently does,

tell a state, in the course of the § 5 preclearance process, that it believes its

redistricting plan must contain a certain number of majority-minority districts in

order to comply with the Act . But such a statement cannot fairly be considered a

mandate from Congress to enact a plan with that number of majority-minority

districts, since Congress has specifically given the state the right to challenge the

Justice Department's interpretation of the Act in the United States District Court

4la

employment, and government contracting, the specific type of

discrimination that race-based redistricting is designed to redress --

denial of fair and effective representation - threatens the very

legitimacy of our nation's political system. Third, unlike most other

types of affirmative action, race-based redistricting is a remedy

whose benefits inure, in large part, to individuals who have

themselves been victims of the discriminatory practices that it is

designed to dismantle. See Grofman, Would Vince Lombardi Have

Been Right If He Said: "When It Comes to Redistricting, Race Isn't

Everything, It's the Only Thing?", 14 Cardozo L.Rev. 1237, 1246

& n. 40 (1993). Finally, as noted in our standing discussion, unlike

the use of racial preferences in making admissions to medical

school, deciding which employees to lay off, and awarding

government contracts, the drawing of district lines so as to give

effect to minority voting strength does not necessarily disadvantage

members of other racial groups. So long as all citizens may vote,

all individual votes receive the same weight, and no racial group's

voting strength is unduly diluted by the resulting districting scheme,

there is no unequal treatment as between affected groups. See

Shaw, __ U.S. at __, 113 S.Ct at 2846 (Souter, J., dissenting);

Bakke, 438 U.S. at 305 (Powell, J.) (noting that deliberate creation

of majority-minority districts in order to give effect to existing

munonity voting strength "improve[s] the previously disadvantaged

group's ability to participate without excluding individuals

belonging to any other group from enjoyment of the relevant

Opportunity — meaningful participation in the electoral process").

As discussed more fully below, these differences give rise to several

specific difficulties in transposing developed strict scrutiny

principles to the context of remedial redistricting.

_____ This is not to say, however, that the fact that this particular race-based

redistricting plan was enacted in response to a § 5 objection from the Justice

42a

1. Burden of Proof

The parties disagree at the outset about the allocation of the

burden of proof at the strict scrutiny stage of the Equal Protection

concede that they have the burden of proving the Plan is a “racial

gerrymander" subject to strict scrutiny, they argue that if they

succeed in doing this, the burden then shifts to the state to prove

that the Plan's use of race is narrowly tailored to further a

compelling governmental interest. According to them, this is how

the three-judge court in Hays I viewed the state's burden of

justification at the strict scrutiny stage of a racial gerrymandering

case like this one. The state and its allies, by contrast, maintain that

the state's burden is merely to identify a compelling justification for

its use of race, and that plaintiffs retain the ultimate burden of

persuading the court that its proferred justification is not compelling

or that the Plan is not narrowly tailored to further it.

We think the state has the better of this argument. The

Supreme Court repeatedly has emphasized that when members of a

racial minority bring an Equal Protection challenge to a state law or

policy, they bear the ultimate burden of persuasion throughout the

proceeding. See, e.g., Batson v. Kentucky, 476 U.S. 79, 93-94 &

n.18 (1986). The rule is no different for Equal Protection

challenges to state laws or policies brought by members of the

majority race. Cf Croson, 488 U.S. at 494 (plurality) ("the

guarantee of equal protection cannot mean one thing when applied

to one individual and something else when applied to a person of

another color"). In such a reverse-discrimination case, as in any

other Equal Protection case, "[t]he ultimate burden remains with the

{plaintiff} to demonstrate the wunconstitutionality of [the]

affirmative-action program." Wygant, 476 U.S. at 277-78

(plurality); id. at 292 (O'Connor, J., concurring in part and

concurring in the judgment) ("in ‘reverse discrimination’ suits, as in

any other suit, it is the plaintiffs who must bear the burden of

challenged law or policy is race-based gives rise to a presumption

that it is unconstitutional and shifts to the state the burden of

“demonstrating” that its use of race was justified by a compelling

governmental interest. Croson, 488 U.S. at 505 (majority). But the

43a

burden thus shifted is one of production only, not persuasion;

plaintiffs still "bear the ultimate burden of persuading the court that

the [state's] evidence did not support an inference of prior

discrimination and thus a remedial purpose, or that the [remedial

action] instituted on the basis of this evidence was not sufficiently

‘narrowly tailored,"’ and they can “establish a violation of their

constitutional nghts," and thus prevail on their Equal Protection

claim, “[o]nly by meeting this burden." Wygant, 476 U.S. at 293

(O'Connor, J., concurring).

Nothing in Shaw purports to alter these well-settled

principles of Equal Protection jurisprudence. Nor do we read the

passage in Hays I upon which plaintiffs and their supporting

intervenors rely as holding that the state bears the burden of

persuasion with respect to either prong of the strict scrutiny inquiry.

While the Hays J court did remark that there was a rough

"parallelism" between “the State's burden here of establishing the

affirmative justification of a compelling state interest" and a

“criminal defendant's burden -- at common law - of establishing an

affirmative defense,” 839 F. Supp. at 1206 (emphasis in original), it

was very careful to point out that it was nof using this analogy to

make any point about the location of the burden of persuasion with

respect to the presence or absence of such justification. Jd. at 1206

n. 59. We therefore conclude that in a Shaw-like challenge to a

race-based redistricting plan, as in any other sort of Equal

Protection case, the state's burden at the strict scrutiny stage is

producing evidence that the plans use of race is narrowly tailored to

further a compelling state interest, and that plaintiffs retain the

ultimate burden of persuading the court either that the proferred

justification is not compelling or that the Plan is not narrowly

tailored to further it. See Wygant, 476 U.S. at 292-93 (O'Connor,

J., concurring).

2. Compelling State Interest

We next consider the circumstances in which a state might

have a “compelling interest" in engaging in race-based redistricting

to give effect to minority voting strength. At the outset, we note

that, contrary to plaintiffs’ suggestion, the critical question at this

stage of the analysis is not whether the state had a compelling

44a

interest in enacting the particular race-based redistricting plan

under challenge, with all of its twists and turns, but whether it had a

compelling interest in enacting any race-based redistricting plan.

Whether the particular plan under challenge takes race into account

to a greater degree than necessary to further a compelling state

interest is a question for the "narrowly tailored” prong of the strict

scrutiny analysis, which examines the "fit" between the compelling

state interest and the precise means chosen by the state to

accomplish it. See Wygant, 476 U.S. at 280 & n. 6 (opinion of

Powell, J.); Fullilove, 448 U.S. at 507 (Powell, J., concurring). We

therefore focus our attention here on the types of state interests that

might be considered sufficiently “compelling” to justify race-based

redistricting. The state and its allies have suggested two:

compliance with the Voting Rights Act and eradicating the effects

of past and present racial discrimination in North Carolina's

political processes. We take these in turn.

a. Comm ith the Voting Rights A

We agree that a state may have a “compelling” interest in

engaging in race-based redistricting in order to comply with the

substantive requirements of the Voting Rights Act. The Supreme

Court has long recognized that a state's interest in eradicating the

effects of its own past or present racial discrimination is sufficiently

“compelling” to support its undertaking of race-based remedial

action. See Shaw, __ US. at_, 113 S.Ct. at 2831; Croson, 488

US. at 491-93, 509-10 (plurality); id. at 518 (Kennedy, J.,

concurring in part and concurring in the judgment); Wygant, 476

U.S. at 280-82 (plurality); id. at 286 (O'Connor, J., concurring),

Bakke, 438 U.S. at 307 (opinion of Powell, J.). The Court also has

recognized that this interest extends to remedying past or present

violations of federal statutes that are designed to eradicate such

discrimination in particular aspects of life. See Croson, 488 U.S. at

500 (majority) ("constitutional or statutory violation{s]"); Wygant,

476 U.S. at 274-75 (plurality) (Title VII); id. at 289 (O'Connor, J.,

concurring) (“violation[s] of federal statutory or constitutional

requirements"); Bakke, 438 U.S. at 307-09 (opinion of Powell, J.)

(“constitutional or statutory violations"). Finally, the Court has

made clear that a state need not await a judicial finding that it is

guilty of past or present discrimination before embarking on a

45a

voluntary program of remedial action designed to eradicate that

discrimination, so long as it has a “strong basis in evidence” for

concluding that such remedial action is “necessary.” Croson, 488

U.S. at 500 (majority); Wygant, 476 U.S. at 277 (plurality); id. at

286 (O'Connor, J., concurring) ("a firm basis for believing that

remedial action is required").~ Indeed, the political branches of

state government have an affirmative constitutional duty to take

voluntary remedial action in the face of such evidence. See Wygant,

476 U.S. at 277 (plurality); id. at 291 (O'Connor, J., concurring);

Croson, 488 U.S. at 519 (Kennedy, J., concurring).

Under these principles, we think it clear that a state has a

“compelling” interest in engaging in race-based redistricting to give

effect to minority voting strength whenever it has a "strong basis in

evidence” for concluding that such action is “necessary” to prevent

its electoral districting scheme from violating the Voting Rights Act.

If a state's interest in remedying a violation of the anti-

discrimination provisions of Title VII is sufficiently “compelling” to

support its undertaking of race-based affirmative action, see

Wygant, 476 U.S. at 274-75 (plurality); id. at 289-93 (O'Connor,

J., concurring), its interest in remedying a violation of the anti-

discrimination provisions of the Voting Rights Act is even more

compelling, for Title VII is based only on the commerce power,

whereas the Voting Rights Act is a direct exercise of Congress’

broad constitutional power to enforce the provisions of the

Fourteenth and Fifteenth Amendments. Indeed, the Supreme Court

has recognized consistently that the Voting Rights Act is the single

most important piece of federal anti-discrimination legislation ever

passed by Congress — enacted, and then twice extended, with the

avowed purpose of putting a stop to nearly a century of

“unremitting and ingenious defiance’ of the commands of the

® At one point, Justice Powell suggested that a state has a compelling interest in

taking race-based remedial action only in the face of “judicial, legislative, or

administrative findings of constitutional or statutory violations.” Bakke, 438

U.S. at 307 (opinion of Powell, J.) (emphasis added). But he later revised this

view, concluding that it was sufficient that the state have a “strong basis in

evidence for [the] conclusion that remedial action [is] necessary." Wygant, 476

U.S. at 277 (plurality). A majority of the Court adopted this “strong basis in

evidence” test in Croson. See 488 U.S. at 500 (O'Connor, J., joined in relevant

part by Rehnquist, C.J., and White, Stevens, and Kennedy, JJ.).

46a

Fifteenth Amendment” by the states and “banish[ing] the blight of

racial discrimination in voting’ once and for all." McCain v.

Lybrand, 465 U.S. 236, 244 (1984) (quoting South Car-lina v.

Katzenbach, 383 U.S. 301, 308-09 (1966)).

Nothing in Shaw suggests that a state's interest in

complying with the Voting Rights Act is not sufficiently

“compelling” to justify its engaging in race-based redistricting.

a very strong interest in complying with [the Voting Rights Act],” at

least to the extent it is “constitutionally valid as interpreted and as

applied." _—sU.S. at _, 113 S.Ct. at 2830. We do not believe

any of the provisions of the Voting Rights Act to be constitutionally

infirm, at least when they are applied in accordance with the

Supreme Court's established interpretation of them. The Court has

specifically upheld the § 5 preclearance requirement as a legitimate

exercise of Congress’ power to enforce the Fifteenth Amendment,

South Carolina v. Katzenbach, 383 U.S. 301, 334-35 (1966); see

City of Rome v. United States, 446 U.S. 156, 180-82 (1980)

(finding 1975 extension of § 5 constitutional on same ground), and

it has rejected a claim that the "effect" prong of § 5 exceeds

Congress’ power under the Fifteenth Amendment because it reaches

conduct which may not itself have violated the Fifteenth

Amendment. Id. at 185-87. The constitutionality of the “purpose”

prongs of § 5 and § 2 cannot be doubted, since they merely

reiterate the substantive standards imposed upon the states by th

Fourteenth and Fifteenth Amendments themselves. See Chisom v.

Roemer, _ US. , __, 111 $.Ct. 2354, 2362 (1991). And we

think it clear that the “results” prong of amended § 2, as interpreted

in Thornburg v. Gingles, is constitutional under the test set forth in

South Carolina v. Katzenbach and City of Rome. See 446 US. at

177 (“under section 2 of the Fifteenth Amendment, Congress may

prohibit practices that in and of themselves do not violate § 1 of the

Amendment, so long as the prohibitions attacking racial

discrimination in voting are ‘appropriate,’ as that term is defined in

McCulloch v. Maryland and Ex parte Virginia"), see also Croson,

488 U.S. at 490 (opinion of O'Connor, J., joined by Rehnquist, CJ.,

and White, J) ("Congress ... has a specific constitutional mandate to

enforce the dictates of the Fourteenth Amendment,” which "may at

times also include the power to define situations which Congress

47a

determines threaten principles of equality and to adopt prophylactic

rules to deal with those situations") (emphasis in original).“ We

therefore hold that a state necessarily has a “compelling” interest in

engaging in race-based redistricting to whenever it has a firm basis

for concluding that such action is necessary to bring its electoral

districting scheme into compliance with the Voting Rights Act.

Accord Hays I, 839 F. Supp. at 1217 (Walter, J., concurring).

As in other affirmative action contexts, a state need not

await a judicial finding that its existing districting scheme (or a

proposed revision thereof) actually violates the Voting Rights Act

before it enacts a race-based redistricting plan designed to give

effect to minority voting strength, so long as it has a "strong basis in

evidence" for concluding that such action is "necessary" to avoid a

violation of the Act. See Croson, 488 U.S. at 500 (majority);

Wygant, 476 U.S. at 277 (plurality); id. at 286 (O'Connor, J.,

concurring). Nor must the state legislature make an explicit finding

that the state's existing districting plan (or a proposed revision

thereof) violates the Act before it draws one that deliberately gives

greater effect to minority voting strength. See id. at 277-78

(plurality); id. at 289-90 (O'Connor, J., concurring). Such a

specific contemporaneous finding of discrimination is of course

useful to a court, because it provides "a means by which it can be

made absolutely certain that the governmental actor truly is

attempting to remedy its own unlawful conduct when it adopts an

affirmative action plan, rather than attempting to alleviate the

** We recognize that the constitutionality of amended § 2 technically remains

an open one, notwithstanding the magnitude of all that has been done under the

authority of Gingles. See Chisom v. Roemer, 501 U.S. 380, 418 (1991)

(Kennedy, J., dissenting) (writing separately solely to reserve this issue),

DeGrandy, ___ U.S. at ___, 62 U.S.L.W. at 4764 (Kennedy, J., concurring in

part and concurring in the judgment) (again reserving this point), see also Shaw,

U.S. at __, 113 S.Ct. at 2831 (reserving question that "if § 2 did require

adoption of North Carolina's revised plan, § 2 is to that extent unconstitutional).

But we believe that once legislation of such magnitude and consequential

importance has been fully analyzed, interpreted, and applied by the Supreme

Court, as amended § 2 has been in Gingles, Voinovich v. Quilter, US. ___,

113 S.Ct. 1149 (1993), Growe v. Edmison, _U.S.__, 113 S.Ct. 1075 (1993),

and DeGrandy, its constitutionality must be assumed by lower federal courts

(and all other branches of state and federal government), even though the Court

has never expressly confirmed it.

48a

wrongs suffered through general societal discrimination." Jd. at

289. But it is not essential; all that is required is evidence that the

legislature “act[ed] on the basis of information which gfave] [it] a

sufficient basis for concluding that [such] remedial action [was]

necessary." Id. at 291.” As Justice O'Connor has explained, a rule

that a state actor must make an explicit finding that it is guilty of

illegal discrimination before it can take voluntary steps to remedy

that discrimination "would severely undermine [the state's] incentive

to meet voluntarily [its] civil rights obligations," which would

"clearly be at odds with [the] Court's and Congress’ consistent

emphasis on the value of ... voluntary compliance" with the federal

discrimination laws. Jd. at 290 (internal citations omitted).

A state has a “strong basis in evidence" for concluding that

it must engage in race-based redistricting in order to comply with

the Voting Rights Act when it has information sufficient to support

a prima facie showing that its failure to do so would violate the Act.

See Croson, 488 U.S. at 500 (majority) (evidence “approaching a

prima facie case of a constitutional or statutory violation"); Wygant,

476 U.S. at 292 (O'Connor, J., concurring) ("demonstrable evidence

.... Sufficient to support a prima facie Title VII . . . claim by [the]

minority"); see also Johnson v. Transportation Agency, 480 U.S.

616, 650-52 (1987) (O'Connor, J., concurring in the judgment)

(evidence sufficient for a "Title VII prima facie case" by the

relevant minority). There are at least two situations in which this

> Though Croson requires a state or local governmental actor to “identify”

specific instances of past or present discrimination “with some specificity”

before undertaking race-based remedial action, 488 U.S. at 504 (majority), it

does not alter the Wygant rule that the governmental actor is not required to

make a formal finding of such discrimination on the record before doing so. See

id. at 500 (majority) (sufficient if state actor has "a strong basis in evidence for

its conclusion that remedial action was necessary”) (quoting Wygant, 476 U.S. at

277 (plurality)). Instead, Croson holds only that the governmental actor must be

able to demonstrate that it was attempting to remedy specific instances of past or

present discrimination within its own jurisdiction, as opposed to general

"societal discrimination." See id. at 504-05 (majority).

° This does not mean, of course, that a state attempting to defend a race-based

redistricting plan designed to comply with the Voting Rights Act must prove that

its existing plan (or a proposed revision thereof) actually violates the Act in

order to meet its burden of justification at the strict scrutiny stage, nor does it

mean that the court must make such a finding in order to uphold the plan under

49a

might be the case, both of which are suggested by the state and its

allies here.

The first is when the state has before it information

sufficient to support a prima facie § 2 challenge to the existing

districting plan by members of the relevant minority group. To

make out a prima facie § 2 challenge to a single-member districting

scheme, members of a protected racial minority must show three

things: (i) that their population is "sufficiently large and

geographically compact to constitute a majority" in more single-

member districts than the number in which they have a majority

under the challenged scheme; (ii) that they are "politically cohesive,"

and (iii) that “the white majority votes sufficiently as a bloc to

enable it ... usually to defeat the minority's preferred candidate" in

districts that are not majority-minority. See Growe v. Emison,

US. __, __, 113 S.Ct. 1075, 1084 (1993) (internal quotations

omitted); Voinovich v. Quilter, US. __,__, 113 S.Ct. 1149,

1157 (1993).”” When a state legislature has before it information

strict scrutiny. See Wygant, 476 U.S. at 292 (O'Connor, J., concurring) (a

reverse-discrimination challenge to a state's voluntary affirmative action plan

“does not automatically impose upon the [state] the burden of convincing the

court of its liability for prior unlawful discrimination, nor does it mean that the

court must make an actual finding of prior discrimination based upon the [state's]

proof before [its] affirmative action plan will be upheld"), Johnson, 480 U.S. at

652-53 (O'Connor, J., concurring in the judgment) (same). Such a rule would

impose an unfair burden of omniscience upon the state, which is “trapped

between the competing hazards of liability to minorities if affirmative action is

not taken to remedy apparent ... discrimination [in its electoral districting

scheme] and liability to nonminorities if affirmative action is taken." Wygant,

476 U.S. at 291 (O'Connor, J., concurring). Instead, the court need only find that

the state enacted the race-based redistricting plan based on information which

gave it “a strong basis in evidence for ... conclu[ding]} that [such] remedial action

was necessary” to comply with the Voting Rights Act. Jd. at 277 (plurality), id.

at 292-93 (O'Connor, J., concurring).

”” DeGrandy does not alter this settled understanding of the nature of a prima

facie case under § 2. The Court there made explicit the notion, already implicit

in its earlier § 2 cases, that while proof of the three Gingles conditions is

necessary to establish a § 2 violation, it is not necessarily sufficient, “either in

the sense that a court's examination of relevant circumstances [is] complete once

the three factors [are] found to exist, or in the sense that the three in combination

necessarily and in all circumstances demonstrate[ | dilution” .-~;U.'S.at__,

62 U.S.L.W. at 4759. Instead, proof that the three Gingles conditions exist with

respect to a particular plan will support a finding that the plan violates § 2 only

50a

sufficient to permit it to conclude that the relevant minority group

could make out such a prima facie § 2 challenge to the existing

plan, then it has a "strong basis in evidence” for concluding that it

needs to engage in race-based redistricting to comply with § 2, and

it has necessarily established a compelling interest in doing so. ™

See Hays I, 839 F. Supp. at 1217 (Walter, J., concurring); see also

Croson, 488 U.S. at 500 (majority) (evidence “approaching a prima

facie case of a constitutional or statutory violation"), Wygant, 476

U.S. at 292 (O'Connor, J., concurring) (evidence "sufficient to

support a prima facie Title VII ... claim by [the] minority”),

Johnson vy. Transportation Agency, 480 U.S. 616, 650-52 (1987)

(O'Connor, J., concurring in the judgment) (evidence sufficient for a

"Title VII prima facie case” by the relevant minority).”

if the court further finds, after considering all other factors that “arguably bear{ |

on the issue of equal political opportunity," that the circumstances in totality

show that the plan would deny minority voters an equal opportunity “to

participate in the electoral process and to elect representatives of their choice."

Id. at __, 62 U.S.L.W. at 4759-60. The Court's holding that proof of the three

Gingles conditions does not necessarily compel a finding of a § 2 violation,

however, cannot fairly be read to alter the settled understanding that such proof

is sufficient to make out a prima facie case under § 2. Cf St. Mary's Honor

Center v. Hicks, US. __, 113 S.Ct 2742 (1993) (proof of McDonnell

Douglas factors, though sufficient to make out « prima facie case of

discrimination under Title VII, will not necessarily suffice to prove a Title VII

violation, even if unrebutted).

5 That is, unless the existing plan already creates majority-minority districts in

substantial proportion to the minority's share of voting-age population. In such a

case, a state will not have a “strong basis in evidence” for concluding that further

race-based remedial action is necessary to bring its electoral scheme into

compliance with § 2, unless it has some compelling evidence that the existing

plan's lines, though appearing to confer political and electoral power upon the

minority i rough proportion to its share of the relevant population, nonetheless

deny the minority an equal opportunity to participate in the electoral process and

to elect representatives of its choice. Cf DeGrandy, US. at _,62 USL.W.

at 4760-62 (in a § 2 challenge to a single-member districting plan, 2 showing

that the plan “[creates] majority-minority districts in substantial proportion to the

minority's share of voting-age population” should make a court reluctant to

conclude that it denies minority voters equal opportunity to participate in the

political process and to elect representatives of their choice, hence violates § 2).

® If the Justice Department has denied preclearance to an earlier plan on the

ground that it was in “clear violation” of § 2, as its § 5 regulations permit it to

do, see 28 CFR. § 51.55(bX2), this fact, standing alone, would probably be

sufficient to give the state a “substantial basis in evidence” for concluding that it

Sla

The second, which is a possibility only in jurisdictions

subject to the preclearance requirements of § 5, is that a plan

previously proposed by the state for the same round of redistricting

has been denied preclearance on the ground that it fails to give

sufficient effect to minority voting strength to satisfy § 5. Section 5

forbids a covered jurisdiction to put a redistricting plan into effect

unless it proves, to the satisfaction of either the United States

District Court for the District of Columbia or its surrogate, the

United States Department of Justice, that the proposed plan had

neither the "purpose ... [nor] the effect of denying or abridging the

night to vote on account of race or color." 42 U.S.C. § 1973c; see

Georgia v. United States, 411 U.S. 526, 531-35 (1973); McDaniel

v. Sanchez, 452 U.S. 130, 137 (1981). The Supreme Court has

consistently held that the § 5 standard has two prongs, a “purpose”

prong and an "effect" prong, and that a plan cannot be precleared

unless it satisfies both of them. McCain v. Lybrand, 465 U.S. 236,

247 (1984); City of Lockhart v. United States, 460 U.S. 125, 130

& n. 4 (1983); City of Port Arthur v. United States, 459 U.S. 159,

168 (1982); City of Rome v. United States, 446 U.S. 156, 172

(1980); Beer v. United States, 425 U.S. 130, 136 n. 7, 141 (1976);

City of Richmond v. United States, 422 U.S. 358, 372-73 (1975).

As currently interpreted by the Supreme Court, the “effect” prong of

§ 5 is relatively toothless, being satisfied — at least in the context of

legislative reapportionment -- simply by proof that the proposed

plan will not “lead to a retrogression in the position of racial

minorities with respect to their effective exercise of the electoral

franchise." Beer, 425 U.S. at 141.% The “purpose” prong, by

needed to engage in race-based redistricting in order to avoid a violation of § 2.

See Bakke, 438 U.S. at 305 (opinion of Powell, J.) (§ 5 objection by Justice

Department is properly viewed as “an administrative finding of discrimination,"

which is sufficient to give the state a compelling interest in taking race-based

remedial action). But that issue is not presented in this case, since the Justice

Department's denial of preclearance was not based on the ground that the

proposed plan was in clear violation of § 2, but on the ground that the state had

failed to meet its burden of demonstrating that the plan did not violate the

“purpose” prong of § 5 itself. Accordingly, we need not address plaintiff-

intervenors’ argument that the Justice Department has exceeded its authority

under § 5 by incorporating the § 2 “results” standard into the § 5 preclearance

analysis.

* The Justice Department has argued elsewhere that Congress intended the

1982 amendments to § 2 to alter Beer's interpretation of the "effect" prong of §

$2a

contrast, requires a showing that the proposed plan was not

designed to dilute minority voting strength in the sense forbidden by

the Constitution. City of Port Arthur, 459 U.S. at 168; City of

Richmond, 422 U.S. at 372, 378-79."" The Supreme Court has

previously upheld the denial of preclearance to redistricting plans

which, though non-retrogressive, have not been shown to be free

from such a racially discriminatory purpose. See, e.g., Busbee v.

Smith, 549 F. Supp. 494, 516 (D.D.C. 1982) (three-judge court),

aff'd, 459 U.S. 1166 (1983); see also City of Richmond, 422 US.

at 372, 378-79.”

5. The Supreme Court has specifically reserved this question, City of Lockhart,

460 U.S. at 133 n.9, and we do not reach it here.

The “purpose” prong of § 5 thus essentially duplicates the constitutional vote

dilution standard, except that it shifts the burden of proof with respect to the

constitutionality of a proposed redistricting plan from affected minority groups to

the covered jurisdiction. See Beer, 425 U.S. at 147-48 (Marshall, J., dissenting),

Days, Section 5 and the Role of the Justice Department, in Controversies in

Minority Voting: The Voting Rights Act in Perspective (ed. B. Grofman and C.

Davidson, 1993), at 53.

2 As did the three-judge court in Hays I, see 839 F. Supp. at 1207 (majority), id.

at 1218 (Walter, J., concurring), plaintiffs and their supporting intervenors read

Beer as holding that the § 5 standard is necessarily satisfied so long as the

proposed plan is not “retrogressive.” With all respect, this is simply incorrect.

Beer held only that the "effect" prong of § 5 is satisfied by proof that a proposed

plan does not have a retrogressive effect, it did not purport to define the meaning

of the “purpose” prong. Indeed, the Beer Court specifically stated that even a

nonretrogressive redistricting plan would fail to satisfy § 5 if it “so discriminates

on the basis of race or color as to violate the Constitution.” Beer, 425 U.S. at

141; see also id. at 142 n. 14. The discussion of § 5 in Shaw, _US.at__,

113 S.Ct. at 2830-31, does not cast doubt on this settled understanding of the

two-pronged nature of the § 5 standard. Though the Court indicates that a state

would have a firm basis for concluding that § 5 required it to give greater effect

to minority voting strength if it had evidence that its proposed plan would have a

“retrogressive” effect on the position of minority voters, id. at __, 113 S.Ct. at

2830, the Court does not say this is the only basis on which a state might

properly conclude that further race-based remedial action was necessary to

comply with § 5.

The interpretation of § 5 suggested by plaintiffs, which would allow

jurisdictions whose existing districting schemes were already unconstitutionally

dilutmg minonty voting strength to obtain preclearance of plans that deliberately

perpetuated that constitutional wrong, so long as they did not make it worse,

would undermine the central purpose of § 5, which was to break the cycle of

53a

When an earlier version of a state's redistricting plan is

denied preclearance by the United States District Court for the

District of Columbia on the ground that it fails to satisfy either the

"purpose" or "effect" prong of the § 5 test, the state obviously has a

"strong basis in evidence" for concluding that the Voting Rights Act

requires it to engage in race-based redistricting in order to remedy

that problem. See Bakke, 438 U.S. at 307 (opinion of Powell, J.)

(judicial finding of statutory violation sufficient to give state a

compelling interest in taking race-based remedial action). The same

is normally true when preclearance is denied by the Justice

Department, which Congress has authorized to serve as a surrogate

for the District Court in reviewing § 5 submissions. See id. at 305

(opinion of Powell, J.) (§ 5 objection by Justice Department is

properly viewed as "an me een finding of discrimination,"

which is sufficient to give thé state a compelling interest in taking

race-based remedial action). Contrary to plaintiffs’ suggestion, the

Equal Protection Clause does not require a state to challenge a

Justice Department denial of preclearance in the United States

District Court for the District of Columbia, and lose, before it may

safely conclude that it has a compelling interest in adopting a new

plan to address the concerns upon which the Department's denial of

preclearance was based. Such a rule would indicate disrespect for

the judgment of the Attorney General, who has been authorized by

Congress to serve as a surrogate for the District Court in reviewing

§ 5 submissions. It would also be inconsistent with the general

federal policy of encouraging the states to comply voluntarily with

their obligations under the federal civil nights laws. See Wygant,

476 U.S. at 29091 (O'Connor, J., concurring). Finally, it would

encourage needless litigation, which would undermine the central

purpose of the § 5 preclearance requirement: to prevent

jurisdictions whose electoral systems have been infected with

official racial discrimination in the recent past * from avoiding

“unremitting and ingenious defiance" of the constitutional guarantees of

nondiscrimination in voting by covered states. See Katzenbach, 383 U.S. at 309.

® Coverage under § 5 is tantamount to a congressional finding that the

jurisdiction in question has committed identified violations of the Fifteenth

Amendment in the relatively recent past, see McCain v. Lybrand, 465 U.S. at

244-45, Bakke, 438 U.S. at 302 n. 41 (opinion of Powell, J.), which could

conceivably be regarded as sufficient, in and of itself, to give that jurisdiction a

"strong basis in evidence” for thinking that it must engage in race-based

S4a

their constitutional duty to remedy the effects of that discrimination

by engaging in protracted litigation over the nature of that

obligation. See McCain, 465 U.S. at 244-46; see also South

Carolina v. Katzenbach, 383 U.S. at 335. Instead, we believe that

a state has a “strong basis in evidence” for concluding that it must

engage in race-based redistricting to comply with § 5 whenever the

Justice Department has refused to preclear a plan it has proposed

for the same round of redistricting on the ground that it fails to

satisfy the § 5 standard, and the state reasonably concludes, after

conducting its own independent reassessment of the rejected plan in

light of the concerns identified by the Justice Department, that the

Justice s conclusion is legally and factually

—

redistricting to avoid a violation of the Voting Rights Act, leaving only the

question whether the particular race-based plan it enacts is “narrowly tailored” to

further that interest.

for in this case, the state's conclusion that it had to engage in race-based

redistricting to comply with § 5 was based not merely on the fact that it was

subject to § 5, be’ on an explicit finding by the Justice Department that its

proposed plan did not satisfy § 5.

™ This is not to say, of course, that a state which has submitted a proposed

redistricting plan to the Justice Department for administrative preclearance, and

been denied it, may not challenge the Department's denial of preclearance in the

United States District Court for the District of Columbia, if it believes it to be

unfounded, before enacting a race-based alternative plan. It is only to say that a

state may properly regard the Justice Department's denial of preclearance as an

“administrative finding” that its proposed plan violates the anti-discrimination

provisions of the Voting Rights Act, which is sufficient — unless clearly legally

and factually unsupportable — to justify its adoption of a race-based alternative

plan designed to remedy that violation. See Bakke, 438 U.S. at 305-07 (opinion

of Powell, J.).

The state and its allies also argue that a state may have a

“compelling” interest in engaging in race-based redistricting to

eradicate the effects of past or present racial discrimination in its

political processes, even when it has no basis for believing that the

Voting Rights Act requires it to do» so We agree.

The Supreme Court has recognized repeatedly that a state

has a compelling interest in taking race-based affirmative action

where it has a firm basis for concluding that such action is

necessary to eradicate the effects of past or present racial

discrimination within its own jurisdiction, even when it has no

federal statutory mandate to do so. See, e.g, Croson, 488 U.S. at

491-93 (opinion of O'Connor, J., joined by Rehnquist, C.J., and

White, J.); id. .< 509 (plurality); id. at 518 (Kennedy, J,

concurring); Wygant, 476 U.S. at 280-82 (plurality); id. at 286

(O'Connor, J., concurring). Of course, generalized evidence that

past “societal discrimination” has continuing effects within the state

is not sufficient to trigger this compelling interest. See Croson, 488

U.S. at 504-06 (majority); Wygant, 476 U.S. at 276 (plurality)

(“Societal discrimination, without more, is too amorphous a basis

for imposing a racially classified remedy"); Bakke, 438 U.S. at 308-

09 (Powell, J., concurring). Instead, the state must demonstrate that

it had a “strong basis in evidence” for believing that race-based

remedial action was “necessary” to remedy specific instances of

racial discrimination, either public or private, within its own

junsdiction. Croson, 488 U.S. at 500-06 (majority); see id. at 518

(Kennedy, J., concurring). While the state must “identify that

discrimination, public or private, with some particularity” before it

may take race-based remedial action, id. at 504, it need not make an

explicit finding of discrimination on the record, so long as it can

demonstrate that it acted on the basis of evidence that would have

permutted it to do so. See Wygant, 476 U.S. at 289-91 (O'Connor,

J., concurring).

Under these principles, we think it clear that a state may

have a compelling interest in engaging in race-based redistricting to

give effect to minority voting strength, even when it has no reason to

56a

believe that the Voting Rights Act requires it to do so, where it has

a substantial basis in evidence for concluding that such action is

necessary to eradicate the sffects of identified past or present racial

discrimination in its own political processes.’ Accord Hays I, 839

F.Supp. at 1215 (Walter, J., concurring). As a practical matter, a

state defending a race-based redistricting plan against a Shaw-like

challenge will seldom need to rely very heavily on this particular

justification, for the evidence required to establish the existence of

this compelling interest will normally be sufficient to demonstrate

that the State had a firm basis for believing that race-based

redistricting was required to avoid a potential § 2 violation, and

thus that it had a compelling interest in taking such action to comply

with the Voting Rights Act. But there may be cases in which a state

will have a compelling interest in engaging in race-based

redistricting to remedy identified instances of discrimination in its

own political processes, even when it has no firm basis for

concluding that § 2 requires it to do so: for example, when it has a

history of official racial discrimination in its electoral system, which

has resulted in the virtual exclusion of members of a particular

racial minority from participation in its political processes, but it

knows that the creation of majority-minority districts 1s not required

by the “effects” prong of § 5, because it has never had such districts

before, and that the relevant minority group cannot show that § 2

% The Shaw majority recognized the possibility that a State might have a

compelling interest in engaging in race-based redistricting to eradicate the

effects of past discrimination in its electoral processes that was “entirely distinct

from the Voting Rights Act." —=-s«U S. at_, 113 S.Ct. at 2931-32. It is true

that the Court remarked that “only three Justices in LJO were prepared to say

that States have a significant interest in minimizing the consequences of racial

bloc voting apart from the requirements of the Voting Rights Act,” and that those

three Justices “specifically concluded” that race-based redistricting could be

justified on this ground “only when the State ‘employ(s] sound districting

principles." Jd. at __, 113 S.Ct at 2832 (citing LWO, 430 US. at 167-48

(White, J., joined by Stevens and Rehnquist, JJ.)). But we do not read this

statement as implying that a state cannot have a compelling interest in engaging

in race-based redistricting to remedy the effects of identified iastances of past or

prevent discrimination in its own political processes unless 1{ has reason (o

believe that the Voting Rights Act requires it to do so. Instead, we think the

Court meant only that a race-based redistricting pian adopted to further this

interest, like amy other type of redistricting plan, must be based on rational

districting principles that ensure that ail citizens covered by it recerve faur and

effective representation. See infra at 37-88 & n.44.

57a

requires the creation of any majority-minority districts, because it is

too widely dispersed to constitute a majority in a single-member

district that is "geographically compact" under Gingles. For that

reason, w_ think it important to recognize this as an independent

compelling interest that may justify race-based redistricting.

3. Narrowly Tailored

We tum, finally, to the question of how to determine

whether a particular race-based redistricting plan, if supported by a

compelling state interest, is "narrowly tailored" to the achievement

of that interest. Shaw itself has very little to say about this aspect

of the strict scrutiny analysis, except to indicate that a plan which

deliberately creates majority-minority districts in order to comply

with the Voting Rights Act would not be "narrowly tailored" to that

goal if it "went beyond what was reasonably necessary to avoid" a

violation of the Act. US. at, 113 S.Ct. at 2831. We

therefore seek guidance in the Court's decisions applying the

“narrowly tailored" standard to other types of race-based remedial

measures.

In other contexts, the Supreme Court has looked to five

basic factors to decide whether a race-based affirmative action

program is “narrowly tailored” to further a compelling state interest

in remedying identified discrimination: (i) the efficacy of alternative

remedies, (11) whether the program imposes a rigid racial “quota” or

just a flexible racial "goal"; (iii) the planned duration of the

program; (iv) the relationship between the program's goal for

munority representation in the pool of individuals ultimately selected

to receive the benefit in question and the percentage of minorities in

the relevant pool of eligible candidates; and (v) the impact of the

program on the rights of innocent third parties. See United States

v. Paradise, 480 U.S. 149, 171-85 (1987) (plurality); id. at 186-89

(Powell, J., concurring); Sheet Metal Workers v. EEOC, 478 U.S.

421, 485-89 (1986) (Powell, J., concurring in part and concurring

in the judgment); see also Croson, 488 U.S. at 507-08 (majority);

Wygant, 476 U.S. at 279-84 (plurality); Fullilove v. Klutznick, 448

U.S. 448, 510-15 (1980) (opinion of Powell, J.) (applying same

strict scrutiny analysis to affirmative action plan adopted by

58a

Congress). Though these factors were developed in the context of

affirmative action programs in public employment and government

contracting, we think they can be transposed fairly easily to the

context of race-based redistricting. See Hays J, 839 F. Supp. at

1206-09 (majority) (looking to same five factors in deciding

whether a race-based redistricting plan is "narrowly tailored” under

Shaw), id. at 1215 (Walter, J., concurring) (same).

The first factor requires the court to decide whether the

state could have accomplished its compelling purpose just as well

by some alternative means that was either completely race-neutral

or made less extensive use of racial classifications. See Wygant

476 U.S. at 280 n. 6 (plurality) (“whether a nonracial approach or

a more narrowly-tailored racial classification could promote the

[compelling] interest about as well and at tolerable administrative

expense’), Croson, 488 U.S. at 507 (majority); see also Sheet

Metal Workers, 478 US. at 486-87 (Powell, J., concurring);

Paradise, 480 U.S. at 171-77 (plurality); id. at 188 (Powell, J.,

concurring); id. at 199-201 (O'Connor, J., dissenting). A state that

has a compelling interest in engaging in race-based redistricting to

comply with the Voting Rights Act obviously has no completely

* Applying these factors, the Court has held that three race-based affirmative

action programs were sufficiently “narrowly tailored” to pass constitutional

muster, see Paradise, 480 U.S. at 171-86 (plurality), id. at 187-89 (Powell, J.,

concurring}, Sheet Metal Workers, 478 U.S. at 479-81 (plurality), id. at 485-89

(Powell, J., concurring), Fullilove, 448 U.S. at 480-92 (opinion of Burger, J.), id.

at 510-15 (Powell, J., concurring), and that two others were not, one because it

imposed a rigid racial quota and was adopted without consideration of race-

neutral alternatives, see Croson, 488 U.S. at 507-08 (majority), and the other

because it unduly burdened third-party interests, see Wygant, 476 U.S. at 279-84

(plurality), id. at 293-94 (O'Connor, J., concurring).

Paradise and Sheet Metal Workers involved Equal protection

challenges to affirmative actions plans that were judicially-tmposed, Wygant and

Fullilove challenges to ones that were voluntanily-adopted. But the distinction is

of no consequence at this stage of the analysis, for the Court has applied the

same “narrowly tailored” analysis — derived essentially from Justice Powell's

plurality opinion in Wygant and his earlier concurrence in Fullilove — to both

types of plans. Compare Paradise, 480 U.S. at 171-85 (plurality), id. at 136-89

(Powell, J., concurring), and Sheet Metal Workers, 478 US. at 479-81

(plurality), id. at 485-89 (Powell, J., concurring) with Wygant, 476 U.S. at 279-

$4 (plurality), and Fullilove, 448 U.S. at 510-15 (Powell, J., concurring).

59a

race-neutral alternative means of accomplishing that end.”’

Compare Croson, 488 U.S. at 510 (plurality). In such a case, the

primary inquiry with respect to this factor will therefore be whether

the state could have complied with the Act by enacting a

redistricting plan which, though race-based, made /ess extensive use

of racial classifications than the one it chose. * Because the "racial

classification” at issue here is the use of race to assign voters to

districts, we agree with the three-judge court in Hays / that inquiry

here is properly confined to two questions: whether the plan creates

more majority-minority districts than is reasonably necessary to

comply with the Act, and whether the majority-minority districts it

creates contain substantially larger concentrations of minority

voters than is reasonably necessary to give minority voters a

realistic opportunity to elect representatives of their choice in those

districts. See Hays I, 839 F. Supp. at 1206-08 (majority); id. at

1218 (Walter, J., concurring).”

* This does not mean that any race-based redistricting plan adopted to comply

with the Voting Rights Act necessarily ‘ails constitutional scrutiny for want of

proper consideration of race-neutral alternative means of remedying the

discrimination in question. See Croson, 488 U.S. at 507 (majority). Congress

itself carefully considered and rejected race-neutral alternatives for remedying

discrumination in the states’ electoral processes when it enacted, and then twice

extended, the provisions of the Voting Rights Act that require the states to

consider race in redistricting See LUJO, 430 US. at 175-76 (Brennan, J.,

concurring in part) (*[T]he history of the Voting Rights Act provides reassurance

that .. the congressional decision to authorize the use of race-oriented remedies

in this context was the product of substantial and careful deliberations ... [and]

represents an unequivocal and well-defined congressional consensus on the

national need for ‘sterner and more elaborate measures’ to secure the promise of

the Fourteenth and Fifteenth Amendments with respect to the exercise of the

franchise"), see also McCain v. Lybrand, 465 U.S. 236, 243-48 (1984), City of

Rome v. United States, 446 U.S. 156, 172-78, 180-83 (1980), South Carolina v.

Katzenbach, 383 U.S. 301, 308-09 (1966).

= The same cannot necessarily be said for a state that engages in race-based

redistnicting not to further a compelling interest in complying with the Voting

Rughts Act, but to further an independent interest in eradicating the effects of

past or present racial discrimination in its political processes. See supra at 69-

72.

* The race-based redistricting plan at issue in Hays | was found to be not

“narrowly tailored” to the state's asserted interest in complying with the Voting

Rughts Act chiefly because it “packed” minority voters into majority-minority

districts in percentages “well in excess” of those reasonably necessary to give

60a

The second factor requires a court to determine whether the

challenged plan imposes a “strict racial quota” designed "to achieve

and maintain racial balance,” or simply a “flexible goal” to be used

as a “benchmark” for gauging the success of the state's efforts to

eliminate the particular discrimination in question. Sheet Metal

Workers, 478 U.S. at 477-78 (plurality), see id. at 487-88 & n. 4

(Powell, J., concurring). As Justice O'Connor has explained

repeatedly, a rigid racial quota is constitutionally impermissible,

even to further a compelling interest in remedying identified

discrimination, because it rests upon the “completely unrealistic’

assumption” that members of various racial groups would be

represented in particular positions "in lockstep proportion to their

proportion in the [general] population,” were it not for unlawful

discrimination. Croson, 488 U.S. at 507 (majority), see Paradise,

480 US. at 197 (O'Connor, J., dissenting). But race-based

redistricting plans will seldom be invalid on this ground, for they do

not impose the sort of “rigid racial quota” that the Court has

previously found constitutionally infirm. Unlike the racial set-aside

provisions invalidated in Bakke and Croson, a redistricting plan

which creates a certain number of electoral districts in which

members of a racial minority constitute a majority of the voting age

population (or even of registered voters) does not guarantee

members of that race a fixed percentage of the benefit ultimately at

stake (here, membership in the relevant legislative body), for it does

not prevent nonminority candidates for running for office in such

districts, nor does it guarantee that they will not be elected from

them.” See DeGrandy, US. at __, 62 US.L.W. at 4764

(Kennedy, J., concurring in part and concurring in the judgment)

("The assumption that majority-minority districts elect only

minority representatives ... is false as an empirical matter”). While

such a plan guarantees the minority a fair opportunity to elect a

certain number of representatives of their choice, that number

cannot fairly be termed a “quota,” since there is no guarantee that it

will be achieved; instead, can only be viewed as a flexible “goal” for

them a fair opportunity to elect candidates of thew choice in those districts. See

839 F. Supp. at 1207-08 (majority), id. at 1218 (Walter, J., concurring).

“@ The North Carolina General Assembly, for example, has three white

members elected from majority-minonty districts created by the Gingles

redistricting. See infra at 145.

6la

minority representation in the relevant legislative body. See Sheet

Metal Workers, 478 U.S. at 487-88 & n. 4 (Powell, J., concurring).

Compare Ravitch v. City of New York, 1992 WL 196735

(S.D.N.Y. Aug. 3, 1992), at * 7 (provision in city charter requiring

racial minorities to be represented on appointed city commission in

direct proportion to their percentage in the city's population as a

whole was not “narrowly tailored” to city's compelling interest in

remedying past discrimination, because it imposed a “rigid” racial

quota).

The third factor asks whether the challenged affirmative

action plan is a temporary measure with some built-in mechanism to

prevent it from lasting longer than is reasonably necessary to

eliminate the effects of the particular discrimination it is designed to

redress. See Fullilove, 448 U.S. at 513 (Powell, J., concurring) (a

“temporary” measure that “will not last longer than the

discriminatory effects it is designed to eliminate"); Sheet Metal

Workers, 478 U.S. at 479 (plurality) (a “temporary tool for

remedying [identified] discrimination” that “will end as soon as ... it

is no longer needed to remedy [that] discrimination"); id. at 487

(Powell, J., concurring) ("of limited duration"); Paradise, 480 U.S.

at 178 (“temporary in application," with a term “contingent upon the

[state's] own conduct"); see also Croson, 488 U.S. at 498

(plurality) (not “timeless in its ability to affect the future"). A race-

based redistricting plan governing elections to the United States

Congress or a state legislature will almost always satisfy this

requirement: such plans are inherently temporary in nature, because

the states are, as a practical matter, required to redraw them after

each decennial census, in order to even out irregularities in district

population caused by intervening demographic changes. See

Karcher v. Daggett, 462 U.S. 725, 731 (1983) (congressional

districting); Mahan v. Howell, 410 U.S. 315 (1973) (districting for

state legislature). When the state legislature undertakes this

redistricting process after each census, it will of course be forced,

by considerations of suits like this one, to re-evaluate the continued

need for race-based redistricting in light of the electoral experiences

under the prior plan. Compare Ravitch, supra, at * 7 (provision in

city charter that required appointments to city commission to be

made on basis of race was not “narrowly tailored” to its compelling

purpose in remedying past discrimination, because it “made no

62a

provision whatsoever for its termination" but was of “indefinite”

duration).“'

The fourth factor asks whether there is a reasonable

relationship between the challenged plan's goal for minority

represen’ ation in the pool of individuals ultimately selected to

receive the benefit in question (be it a government contract, a place

in a medical school class, or a job) and the percentage of minorities

in the relevant pool of eligible candidates. See Paradise, 480 U.S.

at 187 (Powell, J., concurring) (such a goal must be directly related

to “the percentage of minority group members in the relevant

population or work force"); id. at 198-99 (O'Connor, J., dissenting)

(“of vital importance” that such a goal “not substantially exceed the

percentage of [eligible] minority group members in the relevant

population or work force"). In the redistricting context, we think

this factor is satisfied so long as the percentage of majority-minority

districts created by the plan — which, as indicated earlier, is best

seen as a flexible goal for minority representation in the pool of

individuals selected to receive the ultimate benefit of membership in

the relevant legislative body -- does not substantially exceed the

“ Section 5 of the Voting Rights Act, which serves as the impetus for most

race-based redistricting, is itself a temporary remedy, both generally and in its

application to particular jurisdictions. The Voting Rights Act provides that § 5

will expire of its own accord in 2007, 42 U.S.C. § 1973b(aX7) (Supp. 1994),

and specifically requires Congress to reconsider it in 1997, id. § 1973b(aX8).

And the Act's “bailout” provisions ensure that no jurisdiction will labor under §

5's mandate for any longer than reasonably necessary to eliminate the effects of

the particular discnmination which it is designed to eradicate. See id. §

has been free from the sort of discrimination that triggered its § 5 coverage for a

certain number of years).

Though amended § 2 has no expiration date, it too has a built-in

mechanism which ensures that its race-based remedies will not be available any

63a

percentage of minority voters in the jurisdiction as a whole. C/

DeGrandy, __—*US. at _—, 62 US. LW. at 4760 & n. Il

(endorsing this notion of “proportionality” between the number of

majorty-minority voting districts and the number of minorities in

the relevant population group as a rough proxy for the equality of

political and electoral opportunity that the Voting Rights Act

guarantees); id at . 62 US.L.W. at 4763 (O'Connor, J,

concurring) (same).

The fifth and final factor asks whether the challenged plan

“umpose{s} an unacceptable burden on innocent third parties.”

Paradise, 480 U.S. at 182 (plurality); see Fullilove, 448 U.S. at

514-15 (Powell, J., concurring). The Court has invalidated the use

of racial preferences in selecting employees for layoff on this

ground, because it “imposes the entire burden of achieving racial

equality” on innocent individuals and causes “serious disruption” to

their lives and “settled expectations." Wygant, 476 U.S. at 283

(plurality). But the Court has held that an affirmative action plan

may be “narrowly tailored" to its goal of remedying identified

discrimination even though it requires innocent third parties to bear

some of the burden of eradicating the effects of that discrimination.

See Wygant, 476 U.S. at 280-81 (plurality) ("As part of this

Nation's dedication to eradicating racial discrimination, innocent

persons may be called upon to bear some of the burden of the

remedy"); id. at 287 (O'Connor, J., concurring) (an affirmative

action program designed "to further a legitimate remedial purpose”

is mot constitutionally invalid because it forces “innocent

individuals” to bear some of the burden of the remedy, so long as it

“dofes} not impose disproportionate harm on the interests, or

unnecessarily trainmel the rights, of innocent individuals directly

and adversely affected by [its] racial preference"); Fullilove, 448

U.S. at 484 (opinion of Burger, C.J.) (“such a sharing of the burden

lof remedying the effects of past discrimination] by innocent parties

1S not impermissible"); id. at 514-15 (Powell, J., concurring); see

also Croson, 488 U.S. at 509 (plurality); id. at 518-19 (Kennedy,

J., concurring). The Court has specifically found affirmative action

plans which burdened innocent individuals to some degree to be

“narrowly tailored” to a compelling interest in remedying the effects

Sf ale? ae te ee

and “diffuse” ones that “foreclos[ed] only one of several

64a

opportunities” and did not result in "serious disruption" of their lives

or “settled expectations." See Fullilove, 448 U.S. at 484 (opinion

of Burger, J.) (racial set-aside in government contracting), id. at

515 (Powell, J., concurring); Sheet Metal Workers, 478 U.S. at 479

(plurality) (racial goals in union membership), id. at 488 (Powell,

J., concurring); Paradise, 480 U.S. at 182-83 (plurality) (racial

hiring and promotion goals in public employment), id. at 188-89

(Powell, J., concurring). See generally Wygant, 476 U.S. at 283

(plurality). In such cases, the “marginal unfairness" to innocent

third parties is “outweighfed)" by the compelling interest in

eradicating the effects of past or present discrimination. /d, see

Fullilove, 448 U.S. at 515 (Powell, J., concurring).

Plaintiffs and their supporting intervenors contend that, as

the panel majority in Hays / held, a race-based redistricting plan

imposes an undue burden on innocent third parties, hence is not

“narrowly tailored,” if it deviates from traditional notions of

geographical compactness, contiguity, and respect for the integrity

of political subdivisions to a greater degree than is necessary to

accomplish its compelling purpose. See 839 F. Supp. at 1208-09

(majority). In their view, strict scrutiny requires a court to

invalidate a race-based redistricting plan whenever it finds that the

legislature could have drawn some alternative plan that would have

are constitutionally-mandated, like the “one-person, one-vote"

contiguity, and respect for the integrity of political subdivisions. /d.

at 1208.

We agree with the district court in Hays / that a race-based

pag Ae: nar eyes 4 separa

dilution of the voting strength of any identifiable group of voters. A

plan which causes concrete and material harm to the voting nghts of

an identified group of persons in one of these two ways certainly

imposes the sort of “unacceptable burden” on third party interests

65a

which cannot survive strict scrutiny, even when supported by a

compelling state interest. But we cannot agree that a race-based

redistricting plan imposes an unacceptable burden upon third parties

simply because it deviates from traditional notions of geographical

compactness, contiguity, and respect for the integrity of political

districting principles, to a greater degree than a federal court may

think was necessary to accomplish the state's compelling purpose.

As the Supreme Court has emphasized time and again,

there is no general constitutional requirement that the states design

their redistricting plans to produce districts that are compact and

contiguous and that maintain the integrity of political subdivisions.

See, e.g., Gaffney v. Cummings, 412 U.S. 735, 752 n. 18 (1973),

White v. Weiser, 412 U.S. 783, 793-97 (1973); see also Cline v.

Robb, 548 F. Supp. 128, 132-33 (E.D.Va. 1982) (three-judge

court); Cook v. Luckett, 735 F.2d 912, 920 (Sth Cir. 1984).

Compactness, contiguity, and respect for political subdivisions are

of course rational districting principles which the states may take

into account in designing redistricting plans. See Reynolds v. Sims,

377 U.S. 533, 578 (1964); Mahan v. Howell, 410 U.S. 315, 320-30

(1973). But they are not constitutional imperatives, see Gaffney,

412 U.S. at 752 n. 18 (“compactness or attractiveness has never

been held to constitute an independent federal constitutional

requirement" for state redistricting schemes), and the Court has

repeatedly rejected claims that a state redistricting plan violates the

Equal Protection Clause because it sacrifices these considerations in

order to achieve other legitimate redistricting objectives, such as

protecting incumbents, preserving the integrity of established

highly irregular shapes and an |1-sided, step-shaped boundary between two

districts, where those lines were designed to preserve the integrity of established

an exception to this general rule that would make adherence to

traditional notions of compactness, contiguity, and respect for

political subdivisions a constitutional imperative for a certain class

of redistricting plans: those designed to give effect to munority

voting strength in order to further a compelling state interest in

remedying identified discrimination in the state's electoral processes.

played a sufficiently important role in the plan's design to warrant

application of strict scrutiny. Jd. at__, 113 S.Ct. at 2826-27. But

it made clear that compliance with these criteria was not to be used

as the ultimate test of the plan's constitutionality. See id. at ___,

113 S.Ct. at 2826-27 ("We emphasize that [adherence to} these

criteria [is] important not because they are constitutionally required

—they are not, of Gaffney v. Cummings, 412 U.S. 735, 752, n. 18

(1973) — but because they are objective factors that may serve to

defeat a claim that a district has been gerrymandered on racial

lines"); see also id. at _, 113 S.Ct. at 2827 (“One need not use

[adherence to these criteria] ... as an ultimate standard for judging

the constitutionality of a gerrymander to recognize that dramatically

irregular shapes may have sufficient probative force to call for an

neighborhoods), see also White, 412 U.S. at 793-97 (in crafting « remedy for a

“one person, one vote” violation, district court abused us discretion un ordering

state to adopt a redistricting plan that failed to respect “the districting

preferences of the state legislature” — including its policy of preserving the core

constituencies of incumbents — simply because it was “significantly more

compact and contiguous” than the proposed alternatives ).

67a

explanation”) (quoting Karcher, 462 U.S. at 755 (Stevens, J.,

concurring). And while the Court remarked in dicta that a race-

based redistricting plan designed to further an interest in remedying

identified discrimination apart from the Voting Rights Act is

“constitutionally permissible only when the State ‘employ[s] sound

districting principles,” id. at__, 113 S.Ct. at 2832(quoting UJO,

430 U.S. at 167-68 (opinion of White, J., joined by Stevens and

Rehnquist, JJ.)), we think it meant only that such a plan, like any

other redistricting plan, must employ rational districting principles

that ensure fair and effective representation to all citizens, see

Reynolds, 377 U.S. at 568 (redistricting plan that was a “crazy

quilt{ ] completely lacking in rationality, ...could be found invalid

on that basis alone"), be they compactness, contiguity, and respect

for political subdivisions, or any of a host of other race-neutral

principles — including preservation of the core constituencies of

incumbents and recognition of distinctive urban and rural interests -

designing electoral districts. ““ We therefore conclude that Shaw

establish a “prima facie showing of gerrymandering” and “shift the task of

justification to the state,” 462 U.S. at 754-61. But it expressly warns against

using adherence to traditional notions of compactness and respect for the

integrity of political subdivisions as an “ultimate standard for judging the

constitutionality of a gerrymander." Jd. at 755 & n. 15.

“ The passage in LUO from which the Shaw majority quotes reads in full that

"we think it .. ion ab made ea

pnnciples which can be considered “sound,” and longstanding Supreme Court

precedent makes clear that they are not. See Gaffney, 412 US. at 754

(recognizing the voting strength of political parties), White v. Weiser, 412 U.S. at

791 (preserving the core constituencies of incumbents), Burns v. Richardson,

384 U.S. 73, 89 n. 16 (1966) (avoiding contests between incumbents).

68a

itself cannot be read to hold that a race-based redistricting plan is

not “narrowly tailored" if it deviates from traditional notions of

compactness, contiguity, and respect for political subdivisions to a

greater degree than a federal court thinks is necessary to accomplish

the state's compelling purpose.

Nor do we believe that the Supreme Court will ultimately

acopt a definition of “narrow tailoring” in the redistricting context

that requires consideration of whether the challenged plan deviates

from traditional notions of compactness, contiguity, and respect for

political subdivisions to a greater degree than is necessary to

accomplish the state's compelling purpose. As one set of

commentators has suggested, such a rule would “confuse the

purpose of Shaw's strict scrutiny standard,” which is not to ensure

that the state creates wise or aesthetically-pleasing districts, but to

ensure that it “is not covertly pursuing forbidden ends" when it

draws district lines. Pildes & Niemi, supra, at 584-85. It would

also make little sense from a practical standpoint, for several

reasons.

In the first place, compactness, contiguity, and respect for

political subdivisions have little inherent value in the districting

process. The ultimate purpose of legislative apportionment and

redistricting is to ensure “fair and effective representation for all

citizens.” Gaffney, 412 U.S. at 748 (quoting Reynolds, 377 US. at

facilitate the realization of that goal, because they link together

citizens who are likely to share common needs and interests, reduce

the cost of campaigning, and miake it easier for legislators to

maintain close contact with their constituents. See Prosser v.

Elections Bd., 793 F.Supp. 859, 863 (W.D.Wis. 1992) (three-judge

court). But, as plaintiffs’ own experts have testified, there is no

consensus, nor even any empirical evidence, that adherence to these

criteria is necessary to ensure fair and effective representation. See

O'Rourke testimony, Tr. pp. 274-75; Hofeller testimony, Tr. pp.

139-42; Niemi Dep. at 83; O'Rourke Dep. at 89-93. As the Court

explained in Reynolds, arguments that “geographic considerations”

should receive primary emphasis in redistricting, while perhaps

69a

valid at one point in our history, are "unconvincing" today, because

"[mJjodern developments and improvements in transportation and

communications" mean that small and compact legislative districts

are no longer necessary to insure that all citizens have access to

their representatives. 377 U.S. at 580.“ Nor are compact and

“ There appears to be general agreement in both the United States Congress

and the state legislatures that strict adherence to traditional notions of

compactness, contiguity, and respect for political subdivisions in designing

congressional districts is no longer appropriate today.

From 1842 to 1929, federal statutory law required that all single-

member congressional districts be composed of “contiguous territory." Wood v.

Broom, 287 U.S. 1, 6 (1932) (citing Reapportionment Acts of 1842, 1872, 1882,

1891, 1901, and 1911). From 1901 until 1929, federal statutory law also

required them to be geographically compact. Reapportionment Act of 1901, ch.

93, § 3, 31 Stat. 733, 734, Reapportionment Act of 1911, ch. 5, § 3, 37 Stat. 13,

14. In the Reapportionment Act of 1929, however, Congress repealed both the

contiguity requirement and the compactness requirement. Wood, 287 US. at 6-

7. Since 1929, there have been a number of bills introduced in Congress to

reimpose requirements of compactness and contiguity for all single-member

euapumiend Gantt, tes ot tame tenn Oetteeed te atten nie See,

e.g., H.R. 2648, 82d Cong., Ist Sess. (1951), H.R. 970, 89th Cong, Ist Sess.

(1965), H.R. 2508, 90th Cong., Ist Sess. (1967). Federal statutory law has

never required that congressional districts respect the integrity of political

subdivisions.

Roughly half of the states — including North Carolina — impose

requirements of compactness, contiguity, and/or respect for the integrity of

political subdivision lines upon their state legislative districts. she

Niemi, supra, at 528, N.C. Constit. Art. I. §§ 3 and 5. But only

eam pet es hater sh eto ti Bg a

supra, at S28 & n. 140, and North Carolina is not among them. Stip. 20. And

while contiguity and respect for the integrity of precincts and census blocks were

among the general criteria adopted by the North Carolina General Assembly's

redistricting committees for consideration in designing the 1990 congressional

redistricting plan, neither compactness nor respect for county or municipal

boundaries were. See Stip. Ex. 9, Fitch Testimony, Tr. pp. 719, Cohen

Testumory, Tr. pp. 319.

consensus that there is less correlation between adherence to these principles

70a

contiguous districts which respect the integrity of political

subdivisions any guarantee of fair and effective representation. As

Reynolds demonstrates, and plaintiffs’ expert has conceded, even the

most perfectly-shaped districts may “do great harm to fair

representation,” O'Rourke Dep. at 89, and “the use of highly

compact districts may be the most effective way to shut out a

minority from equal participation." Comment, Constitutional

Challenges to Gerrymanders, 45 U.Chi.L.Rev. 845, 879 (1978).

Requiring states to adhere strictly to these criteria in crafting

remedial redistricting plans would thus serve "no obvious purpose."

Pildes & Niemi, supra, at 584-85.

Second, even if compactness, contiguity, and respect for

political subdivisions had some inherent value, there is no

"relatively simple and judicially manageable" standard, Davis v

Bandemer, 478 US. at 149 (O'Connor, J., concurring in the

mathematically possible, see Kirkpatrick v. Preisler, 394 U.S. 526

(1969), Karcher v. Daggett, 462 U.S. 725 (1983), nonetheless fails

7la

adequately to respect the integrity of those political subdivisions.

Finally, there is no generally-accepted definition of what it means

for a district to be "compact." See Pildes & Niemi, supra, at 540-

59. While plaintiffs’ experts and others have suggested a number of

different ways in which district compactness can be measured

mathematically, see Hofeller testimony, Tr. pp. 118-20; O'Rourke

testimony, Tr. pp. 212-14; see also Karcher, 462 U.S. at 756-57 n.

19 (Stevens, J., concurring); R. Niemi, B. Grofman, C. Carlucci, &

T. Hofeller, Measuring Compactness and the Role of a

Compactness Standard in a Test for Partisan and Racial

Gerrymandering, 52 J. Pol. 1155 (1990); Pildes & Niemi, supra at

553-59, there is admittedly no consensus as to which of these is

most valid. See B. Grofman, Criteria for Districting: A Social

Science Perspective, 33 UCLA L. Rev. 77, 85 (1985) ("There are

many different ways of applying a compactness requirement but

none is generally accepted as definitive."). And even if there were,

the long experience with state-law requirements of district

compactness stands as vivid testimony to the fact that these

proposed measures of compactness are not "judicially manageable."

See Karcher, 462 U.S. at 756 (Stevens, J., concurring) (state

compactness requirements “have been of limited utility because they

have not been defined and applied with rigor and precision"); Pildes

& Niemi, supra, at 529-31 (state compactness requirements have

been "ineffective" in producing more compact districts, because the

courts have been either unwilling or unable to enforce them).“”

inquiry suggested by the Hays J Court thus promises to be "so

standardless as to make the [principled] adjudication of [racial

gerrymandering] claims impossible," Bandemer, 478 U.S. at 157

(O'Connor, J., concurring), which in tum will make it virtually

impossible for the state legislatures to determine what is required to

make a race-based remedial plan comply with the Constitution.

“" The same lack of a meaningful objective measure of compactness has plagued

courts attempting to implement the "geographic compactness” prong of the

Gingles prima facie case under § 2 of the Voting Rights Act. See Pildes &

Niemi, supra, at 532-46 (noting "considerable inconsistency” in approach and

widespread use of “intuitive, eyeball assessments” in decisions of lower federal

courts attempting to implement this requirement), P. Karlan, Maps and

Misreadings: The Role of in Racial Vote Dilution

Litigation, 24 Harv.C.R.-C.L. L. Rev. 173, 204-13 (1989) (same).

72a

Finally, and most critically, the "narrowly tailored" inquiry

suggested by plaintiffs would result in undue interference by the

federal judiciary in matters that have long been thought to be the

primary province of the state legislatures. From its earliest ventures

into the “political thicket" of legislative reapportionment, Colegrove

v. Green, 328 U.S. 549, 556 (1946) (opinion of Frankfurter, J.), the

Supreme Court has hewed fast to the view that the task of

redistricting is fundamentally a political one for the state

legislatures, see Reynolds v. Sims, 377 U.S. at 586, Burns v.

Richardson, 384 U.S. 73, 84-85, 92 (1966); re aio Cummings,

412 US. at 749; Mahan v. Howell, 410 U.S. at 327; White v

Weiser, 412 U.S. at 794-95; Wise v. Lipscomb, 437 U.S. 535, 539-

40 (1978), into which the unelected federal judiciary should not

intrude any more than is absolutely necessary to protect

constitutional rights. White, 412 U.S. at 795. This “hands off"

approach is not some accident of history, but a deliberate

recognition of the fact that the process of redistricting ‘is

fundamentally a political affair," Bandemer, 478 U.S. at 145

(O'Connor, J., concurring), and that the state legislatures, as the

very “fountainhead of representative government in this country,"

Reynolds, 377 U.S. at 564, are the organs of government best

situated to identify and strike an appropriate balance between the

many different — and often conflicting - considerations that are at

stake in it. Connor v. Finch, 431 U.S. 407, 414-15 (1977), see

Growe v. Emison, __ US. at __, 113 S.Ct. at 1081

(” is primarily the duty and responsibility of the

Swnniadaaeinanan or other body, rather than of a federal

court”) (internal quotations omitted); Voinovich v. Quilter, ___

US. at__, ee eee ae ae

their reapportionment authority from the Voting Rights

rather from independent provisions of state and federal law, the

federal courts are bound to respect the States’ apportionment

choices unless those choices contravene federal requirements. ")

(internal quotations omitted)“ The “narrowly tailored” analysis

“ It is for this reason that the federal courts, upon finding that redistricting is

necessary to remedy a proven violation of federal law, have traditionally given

the staie legislature an opportunity to devise a plan that will remedy the

violation found, before undertaking to fashion one themselves. See White v.

Weiser, 412 U.S. at 794-95, Chapman v. Meier, 420 U.S. 1, 27 (1975), McGhee

v. Granville County, 860 F 2d 110 (4th Cir. 1988).

73a

suggested by plaintiffs, which would force the federal courts “to

attempt to recreate the complex process of legislative apportionment

in the context of adversary litigation" and embroil them in after-the-

fact "second-guessing" of the wisdom of legislative judgments about

how best to balance competing districting considerations that are

not themselves of constitutional stature, Bandemer, 478 U.S. at

146-47 (O'Connor, J., concurring), is fundamentally inconsistent

with this principle. We do not believe the Shaw majority intended to

“open{ ] the door to [such] pervasive and unwarranted judicial

superintendence of the legislative task of {redistricting]," id. at 147,

and "bog| } [the federal courts] down in [such] a vast, intractable ...

slough, particularly when there is little, if anything, to be

accomplished by doing so." Gaffney, 412 U.S. at 750.”

It is one thing to tell the states that the Voting Rights Act

does not give them license to engage in race-based redistricting,

even with the "benign" purpose of giving effect to minority voting

strength, unless they have a substantial basis for believing that such

remedial action is required to comply with the Act; and that they

must take care, even then, not to take race into account in drawing

district lines any more than is reasonably necessary to provide

minority voters the "equal political opportunity,” DeGrandy, __

US. at __, 62 US.L.W. at 4760, that the Voting Rights Act

requires. “That is the fundamental point of Shaw, and it is a point

well worth making, if this nation is ever to attain the goal that the

Voting Rights Act itself was designed to bring about — that is, to

overcome its long history of racial discrimination in electoral

politics and transform its political system into one in which the

color of an individual's skin has no bearing on his ability to

participate effectively in the political process. But it is another

thing entirely to tell a state which does have a substantial basis for

concluding that it must engage in race-based redistricting to comply

with the Voting Rights Act that it can do so only if it draws districts

whose lines are sufficiently "regular" or "pleasing" in their

which attempts to reconstruct — some years after the fact — — the complex and

compromise-ridden legislative process that led to the enactment of the

challenged Plan, in order to somehow divine the precise reason for each dip and

tun in the district lines, is perfect illustration of the inadvisability of adopting

the “narrowly tailored” inquiry suggested by the plaintiffs.

74a

appearance to satisfy the aesthetic sensibilities of a handful of

unelected federal judges. Shaw itself holds no such thing, and we do

not believe its reasoning compels us to do so here.

For all these reasons, we cannot agree with the Hays J court

that a race-based redistricting plan enacted to further a compelling

state interest in complying with the Voting Rights Act imposes an

unacceptable burden upon innocent third parties, hence is not

sufficiently “narrowly tailored" to survive constitutional muster,

simply because it deviates from traditional notions of geographical

compactness, contiguity, and respect for the integrity of political

subdivisions to a greater degree than a federal court later concludes

was necessary to accomplish the state's compelling purpose.

Instead, we believe that such a plan imposes an undue burden on

innocent third parties only if it fails to give equal weight to the votes

of all individuals, see Reynolds, unconstitutionally dilutes the voting

strength of any identified group of voters, see Whitcomb,

Bandemer, or is not grounded in rational districting principles

which ensure that all citizens seceive “fair and effective

representation,” see Reynolds, 377 U.S. at 568. So long as the

plan stays within these basic constitutional boundaries, it “unsettles

no legitimate, firmly-rooted expectation" on the part of any voter,

Johnson v. Transportation Agency, 480 U.S. 616, 638 (1987),

including the nonminority voters it places in majority-minority

districts, for no voter has a legitimate right to expect that he will be

placed in a district in which he is part of the majority or that his

preferred candidate will win, see Whitcomb, 403 US. at 149, 154;

UJO, 430 U.S. at 166, nor does he have a legitimate right to expect

that his district will have a certain shape, see infra n. 60.”

*® We do not agree with the dissent's suggestion, post at 176-77, 190-91, that to

be “narrowly tailored" to a compelling interest in avoiding a violation of

amended § 2, a plan which creates majority-minority districts must "incorporate"

in those majority-minority districts the specific “geographically compact"

minority population which led the state to believe that§ 2 required it to engage

papery 4 rpm other the first place. With all respect, this argument is

based on a fundamental misconception of the nature of the “wrong” which § 2

forbids, and the role that the Gingles “geographical compactness” inquiry plays

in establishing a § 2 violation.

As amended, § 2 of the Voting Rights Act forbids a state to adopt or

maintain any districting plan that “results in a denial or abridgement of the right

of any citizen of the United States to vote on account of race or color.” 42

75a

Of course, on current doctrine, a race-based redistricting

plan that complies with these requirements may cause some

“stigmatic” or “dignitary" harm to the voters — both minority and

nonminority — that it "classifies" by race. Though we believe this

harm is sufficient, on that doctrine, to give those voters standing to

challenge the plan, see supra at 20-30, we do not think it suffices to

U.S.C. § 1973(a). Section 2(b) provides that such an impermissible "denial or

abridgement of the right ... to vote” occurs where, “based on the totality of

curcumstances, it is shown that the political processes leading to nomination or

election in the State or political subdivision are not equally open to participation

by members of [the relevant minority group] ... in that its members have less

opportunity than other members of the electorate to participate in the political

process and to elect representatives of their choice." Jd. § 1973(b). To make out

a claim that a single-member districting plan results in such an impermissible

“dilution” of minority voting strength, a plaintiff must show, among other things,

number in which it has a majority under the challenged plan. Growe,_ _ US.

at __, 113 S.Ct. at 1084 (citing Gingles, 478 U.S. at 50-51). Such a showing

that it 1s possible to draw more majonity-minority districts than the challenged

plan does, together with evidence that the minority is “politically cohesive” and

that the white majority “votes sufficiently as a bloc to enable it ... usually to

defeat the minority’s preferred candidate” in districts that are not maijority-

minority, is necessary to establish that the plan impermissibly “dilutes” the

voting strength of a distinctive minority group, hence violates § 2. Id. But such

a showing is not necessarily sufficient to establish that the challenged plan

court may properly find a violation of § 2 only if it further finds, after assessing

the probative significance of the inference arising from the three Ging/es factors

in light of all other circumstances “with arguable bearing on the issue of equal

political opportunity »” that the plan's lines do in fact operate to deny the minority ’

an equal opportunity to participate in the electoral process and to elect

candidates of their choice. DeGrandy, _ US. at__, 62 U.S.L.W. at 4758-1.

The "wrong" which constitutes a violation of § 2 is therefore not that the plan

that is sufficiently large and geographically compact, as the dissent seems to

76a

establish that the plan imposes an “unacceptable” burden on

innocent third parties for purposes of the “narrowly tailored" prong

of the strict scrutiny analysis. Congress carefully considered the

burdens that the drawing of district lines to give effect to minority

voting strength would impose upon the citizenry when it enacted,

amended, and extended the provisions of the Voting Rights Act that

require the states to take such action to remedy the effects of past

and present discrimination in their electoral processes. See UJO,

430 U.S. at 175-78 (Brennan, J., concurring in part); Gingles v.

Edmisten, 590 F. Supp. at 356-57 & nn. 17-20. See generally Boyd

& Markman, The 1982 Amendments to the Voting Rights Act: A

Legislative History, 40 Wash. & Lee L. Rev. 1347 (1983). And it

made “a considered decision," Fullilove, 448 U.S. at 473 (opinion

of Burger, C.J., joined by White and Powell, JJ.), after “substantial

and careful deliberations,” UJO, 430 U.S. at 176 (Brennan, J.,

concurring in part), that these burdens were not unacceptable, given

the national consensus on the compelling need for “sterner and more

elaborate measures” to eradicate the effects of the states’

“unremitting and ingenious defiance" of the Fourteenth and

Fifteenth Amendments’ guarantees of racial equality in the exercise

of the franchise. South Carolina v. Katzenbach, 383 U.S. at 308-

09 (1966), see McCain, 465 U.S. at 243-48; City of Rome, 446

U.S. at 172-78, 180-83. We are obligated to give considerable

deference to Congress’ judgment on that score, see Fullilove, 448

U.S. at 472 (opinion of Burger, C.J.), given its “specially informed

legislative competence" in the area of voting rights, Katzenbach v.

Morgan, 384 U.S. 641, 656 (1966), and the fact that the Voting

Rights Act is an exercise of its “specific constitutional mandate” to

enforce by “appropriate” legislation the guarantees of racial equality

in the Fourteenth and Fifteenth Amendments, Croson, 488 U.S. at

490 (opinion of O'Connor, J., joined by Rehnquist, C.J., and White,

J.), a mandate which the Supreme Court has consistently recognized

gives it unique and far-reaching remedial powers. Jd. at 488; see

Fullilove, 448 U.S. at 483 (opinion of Burger, C.J.) ("[I]n no organ

of government, state or federal, does there repose a more

comprehensive remedial power than in the Congress, expressly

charged by the Constitution with competence and authority to

enforce the equal protection guarantees" of the Civil War

Amendments); id. at 516 (Powell, J., concurring); see also Metro

Broadcasting, 497 U.S. at 605 (O'Connor, J., joined by Rehnquist,

77a

C.J., and Scalia and Kennedy, JJ., dissenting) ("Congress has

review, when it exercises its ‘unique remedial powers ... under § 5

of the Fourteenth Amendment™). We believe that Congress

“adequately struck th[e] balance” between the need for race-based

redistricting as a remedy for past and present discrimination in the

states’ electoral processes and the burden that such measures impose

upon innocent third parties when it enacted, and twice extended,

“the carefully conceived remedial scheme embodied in the Voting

Rights Act." UJO, 430 U.S. at 175 (Brennan, J., concurring). Any

argument that the passage of time has thrown that balance out of

kilter, or that those measures have accomplished their purpose and

outlived their usefulness, is properly addressed to Congress, which

has the power to call an end to the extraordinary remedial effort

embodied in the Voting Right

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