December 01, 1996
A closely divided U.S. Supreme Court has extended the emerging pattern of condemnation of race-based remedies1 to a state's failed efforts to comply with the federal Voting Rights Act in two recent cases involving majority-minority districts in North Carolina and Texas.2
In Shaw v. Reno3 the court by a 5-4 vote rejected the finding of the District Court that while North Carolina had classified voters on the basis of race the policy survived strict scrutiny because it was narrowly tailored to meet the state's compelling interests in complying with Sections 2 and 5 of the Voting Rights Act of 1965.
The majority decision by Chief Justice Rehnquist was joined by Justices O'Connor, Scalia, Kennedy, and Thomas. Dissents by Justices Souter and Stevens were joined by Justices Ginsburg and Breyer. The elusiveness of the Reno analysis was quickly demonstrated as the Court attempted to apply it in Bush v. Lawson which addressed three majority-minority districts in Texas. Here the same five votes found the creation of the districts in violation of the Fourteenth Amendment. While agreeing on an outcome, the five were unable to agree on the analysis. Justice O'Connor wrote an opinion that was joined by the Chief Justice and Justice Kennedy that recognized the possibility for constitutional episodes involving states deliberately creating majority-minority districts. Justice Kennedy also wrote a separate concurrence expressing his reservation with Justice O'Connor's position that strict scrutiny should not be applied to every case of intentionally created majority-minority districts. Justice Thomas was joined by Justice Scalia concurring in the outcome, but repudiating O'Connor's analysis denying the universal application of strict scrutiny to majority-minority districts. Justice Stevens was joined by Justices Ginsburg and Breyer, and found error in the repudiation of the Texas districts. Stevens argued that the Court had ignored its own standards for racial gerrymandering by failing to consider the complex factors of political and geographic interests while improperly focusing on race alone.
The cases together cast a grave constitutional shadow over majority-minority districts while ultimately providing insecure guidance because of the dispute over the key issue of whether strict scrutiny must be applied in every case, and how to weigh the other political and geographic factors in the evaluated districts.
Both Shaw and Bush involved southern states required to comply with the Voting Rights Act preclearance procedures under which the federal Justice Department reviews redistricting plans for their adverse and unlawful effects on minority voters. In both cases the states had redrafted their plans to gain Justice Department approval. In each case the state effort had been judged under the then-prevailing maximization standard being promoted by the Justice Department. This procedure rejected state plans unless they created the maximum number of majority-minority districts.
The Supreme Court later rejected the Justice Department's analysis of sections 2 and 5 of the Voting Rights Act that served as a basis of maximization demand.4 The Court favored a more narrow reading of the Voting Rights Act that only prohibited state action that reduced minority political power from a prior level but did not require the state to increase that power to its highest possible level. The question presented to the Court in Shaw and Bush was whether the state's attempt to comply with the Justice Department's requirement served as a separate and validating reason for the use of race in classifying citizens. Justice Stevens would have accepted this logic arguing that the states were not motivated by race-based animus but by a desire to avoid litigation and comply with federal law. Justice Stevens would have added either a good faith defense to the facial use of race or incorporated a motive--to effect harm based on race--in addition to an intent requirement.
Justice Stevens would have held that the plaintiffs had suffered no harm by the state's maximization of minority voting power because it could not be shown that the state had injured the majority, which could still fully participate in the political process. The majority, however, found that the state's attempt to comply with the Justice Department's demands for a maximum number of districts where minority electoral prospects were enhanced was sufficient to meet the Miller requirement. The use of race in drafting districts violates the Constitution where race was a predominant factor in drawing the district lines.
The majority refused to recognize the state's good faith attempt to comply with federal law as interpreted by an authoritative federal agency. Instead, the Voting Rights Act would only serve as a shield for state action where the Court later agreed with the federal interpretation of the Act. Because Congress is not presently expected to pass legislation adopting the maximization standards for reading sections 2 and 5, the case provides little direct insight on Congressional power to achieve such an objective. Under prior case law, the Fourteenth Amendment was viewed as limiting state action but granting broad, if not unrestricted, remedial powers to Congress.
In attacking the administrative process through which statutory language is applied, the Court has challenged Congress to either openly affirm a controversial political proposition or let the reading die. Whether this holding reveals a true shift in the Court's thinking on Congressional power to effect race-based remedies, or merely a demand for accountability, is uncertain.
The citation in both Shaw and Bush to Adarand indicates that the majority is attempting to structure a uniform and highly critical system for evaluation of race-based classification that will tolerate few exceptions. This would suggest that when the Court undertakes review of education cases the majority might be willing to extend the rule to limit affirmative action previously authorized by Bakke. However, Justice O'Connor's recognition of some circumstances appropriate for the use of race-based classification for voting districts undermines the vision of a general rule, and suggests an emerging period of revision and conflict on the Court.
1. In Adarand Constructors, Inc. v. Pena, the Court held that even benign or remedial use of race in classifying citizens is constitutionally suspect.
2. Both cases involved responses by state legislatures to federal Justice Department demands that they create congressional districts that maximize minority political power. The Voting Rights Act required preclearance of these districts. Subsequent to the states' compliance with federal agency demands the court held the Voting Rights Act did not require maximization.
3. In the case's first trip to the Court, Shaw v. Reno, (Shaw 1), the Court held that a valid equal protection claim was set out where the plaintiff alleged deliberate racial segregation of voters into bizarre-looking districts.
4. Miller v. Johnson, 515 U.S. ___ (1995).
Joseph E. Broadus is a professor of law at the George Mason University Law School in Virginia.